        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs May 18, 2016

         BRIAN GARRETT WALLACE v. STATE OF TENNESSEE

                Appeal from the Circuit Court for Robertson County
                No. 74CC3-2012-CR-23 John H. Gasaway, III, Judge
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              No. M2015-02163-CCA-R3-PC – Filed November 18, 2016
                     ___________________________________

Petitioner, Brian Garrett Wallace, entered an open guilty plea to five counts of attempted
especially aggravated exploitation of a minor and one count of attempted sexual battery.
The trial court imposed an effective eighteen-year sentence to be served at 35 percent as a
Range II offender which included consecutive sentencing. On appeal, this Court upheld
the sentence. State v. Brian Garrett Wallace, No. M2013-01172-CCA-R3-CD, 2014 WL
1883704 (Tenn. Crim. App. May 12, 2014).             Petitioner filed a petition for post-
conviction relief alleging that his trial counsel provided ineffective assistance and that
Petitioner‟s guilty plea was unknowingly and involuntarily entered. Following an
evidentiary hearing, the post-conviction court denied relief. Following a careful review
of the record, we affirm the judgment of the post-conviction court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

THOMAS T. WOODALL, P.J., delivered the opinion of the Court, in which JAMES
CURWOOD WITT, JR., and D. KELLY THOMAS, JR., JJ., joined.

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Brian Garrett Wallace.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; John Wesley Carney, Jr., District Attorney General; and Jason White,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

Background

      The following facts were recited by the State at the guilty plea submission hearing:
[T]he facts would show that at the time—December 11 of last year—of
2011, [Petitioner] was living with [the victim‟s mother] and her children
and [the victim‟s mother] had a little girl, [the victim], at the age of I
believe eight or nine at the time. [The victim‟s mother], it was late at
night, and there had been some previously some—they had shared
phones and [Petitioner] had taken a SIM card or SD card out of a
phone—a card that contains pictures and prevented [the victim‟s mother]
from looking at it. Another occasion, [the victim‟s mother] picked it up
and said something about it and [Petitioner] did not want her to—acted
like he didn't want her to see what was on the pictures so that night,
December 11, [the victim‟s mother] was up late and changing out his
wallet and finds this SD card in his pants pocket. More out of curiosity,
puts it in the phone and begins looking at what is on the SD card and
discovers that there are pictures taken of [the victim] of a sexual or
lascivious nature.

Count Two, Your Honor, we can date—November 14, 2011 ... and it is
of basically [the victim‟s] buttocks—this point her pajamas are pulled
down and it shows her underwear and we do have that distinct pair of
underwear that we would—at a jury trial, show that it is her underwear.
Count five, Your Honor, is another picture taken that same day too, ...
and this time of naked buttocks of [the victim], and we would be able to
say it is [the victim] because of the distinct underwear. Also, the Mom
would be able to identify the bedspread and blanket that is in the picture.
As well, [Petitioner] admitted in a statement that it was of the victim and
he did take these pictures.

As to—and that specifically, the admission is specifically to—two, five
and eight. Count eight, Your Honor, is another picture taken November
14 2011, ... it shows a more distinct picture of compete pull down of the
panties and another picture of the naked buttocks. Once again, we could
determine the victim based on her clothing, bedspread and also based on
an admission.

Also, Your Honor, as related—and the reason—in the order it is, Count
nineteen, refers to that same event of November 14, in his confession,
[Petitioner] admits while he was pulling these panties down and taking
these different shots of the victim that he rubbed her buttocks. This
was—the victim all accounts was asleep, does not remember anything
but his confession would be corroborated by the pictures because they
are consistent with him—with the panties in one position and pulling
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        them down and pulling them down again, which is consistent with him
        rubbing the buttocks as he described in his confession. So there would
        be enough evidence, Your Honor, to corroborate on what [Petitioner] is
        admitting to or admitted to as far as the aggravated sexual—attempted
        aggravated sexual battery as to the confession.

        As to count nine, Your Honor, it‟s a picture of a different date. It‟s a—
        the phone had been set in a particular location and [Petitioner] is seen
        getting the victim dressed and he‟s got the phone positioned in a manner
        in which when the victim—he pulls the victim‟s panties off, it showed—
        it creates a picture clearly of her vagina, of her naked vagina.
        [Petitioner], once again—this can be ID‟d by the mother who can ID the
        child and ID the blankets in the picture and ID the bedroom, can ID
        everything [of that] nature. [Petitioner] admits in his confession to the
        picture. The one thing he does say about this picture though is he says
        he didn't realize the phone was on. At a trial, the State would challenge
        that, Your Honor, based on the location of the phone and the distinctness
        of the picture that was created. The phone had to be in a certain position
        to get that picture. But he does acknowledge, that he was aware of it and
        didn't know.

        As to count sixteen, Your Honor, it‟s a different picture—you can‟t tell
        it‟s a different date from the two through nineteen range and the count
        nine incident, but it is a picture of the victim‟s buttocks with her pants
        pulled down, it‟s of jeans and a t-shirt and we can ID that and it was on
        the same phone, LG phone as well that contained—the same card that
        contained all these other pictures.

        The expert, Your Honor, at T.B.I., at the trial would be able to say that
        something happened—nine and sixteen he cannot say where they were
        taken from but he can say that two, five and eight were taken off the
        phone that was recovered at the scene and that the defendant admitted
        was his phone.
Post-Conviction Hearing

       Petitioner testified that he dropped out of high school in the ninth grade but
obtained his GED. He was incarcerated at the time of his guilty plea and had been in
custody since September of 2012. Petitioner testified that he made bond after his arrest
for the current offenses, and he was on bond from March to September of 2012. He said
that he saw trial counsel three or four times during his release, and he saw her once or

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twice after he was taken back into custody. Petitioner testified that each meeting lasted a
few minutes.

        Petitioner testified that trial counsel first presented a plea agreement to him while
he was released on bond. He thought that he was shown a proposed plea agreement two
times. Petitioner understood the proposed agreement to be “just at 100 percent
sentencing for different amounts of years.” He did not agree to the offer. Petitioner
testified that trial counsel presented a different plea agreement to him on the morning of
his trial. He understood the agreement to be an “open plea at 35 percent, which was out
of range, but taking the plea for a minimum and a maximum amount of years, but I was
eligible for minimum sentencing.”

      Petitioner understood the agreement to mean that he would “have to serve five
more percent of [his] time before [he] was eligible for parole.” When asked what he did
not understand about the plea agreement, Petitioner testified:

        [Trial counsel] told me that if I took the plea at 35 percent that I was
        going - - I was going to basically get the minimum sentencing, which
        was - - I‟d get between eight to ten years at 35 percent; that was the
        minimum basis I would get. I was never told that there was any
        possibility being at 35 percent that I could get consecutive sentencing. I
        was explained any mitigating or enhancement factors that could be
        offered. That was about it.

Petitioner said that he and trial counsel did not discuss the release eligibility date and that
parole was not guaranteed. They also did not discuss whether he would receive
consecutive or concurrent sentencing. Petitioner testified that he was ultimately
sentenced to eighteen years with a 35 percent release eligibility date. He explained that he
received partial consecutive sentences. Petitioner acknowledged that some of his charges
were dismissed as a result of the plea agreement, and the six charges to which he pled
guilty were reduced. Petitioner testified that he and trial counsel did not have any “deep”
discussion about community service for life, supervision for life, or registering as a sex
offender.

       Petitioner acknowledges that the trial court discussed the possibility of an out of
range sentence at the guilty plea submission hearing. He thought that the trial court‟s
discussion during the hearing concerning release eligibility date “meant parole.”
Petitioner thought that he and trial counsel met one time between the guilty plea
submission and the sentencing hearing. He said that they did not discuss enhancement or
mitigating factors. Petitioner claimed that the trial court told him that he would serve 35
percent of his 18-year sentence and that he would then be released on parole. When
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asked if he would have entered the plea if he had known that the 35 percent release
eligibility date did not guarantee parole, Petitioner replied:

        I don‟t know. It would have probably dissuaded my decision whether - -
        of which plea deal to take. As far as going to trial what, I hate to say it
        this way but, scared me the most was that I was never shown a motion of
        discovery prior to any plea deals.

Petitioner testified that if he had fully understood the initial plea offer of eight years at
100 percent he would have chosen that offer.

        On cross-examination, Petitioner testified that trial counsel reviewed discovery
with him but did not show it to him. She also explained pictures to him that were
discovered on the memory card that he had admitted belonged to him. Petitioner agreed
that trial counsel explained the charges to him and gave her opinion about what would
happen at trial based on witness‟ testimony, the pictures that were discovered, and
Petitioner‟s confession. Trial counsel felt that it was in Petitioner‟s best interest to accept
a plea agreement.

        Petitioner testified that he knew that he was pleading out of range, and the trial
court advised him that he did not have to accept the plea. The trial court advised him that
he was pleading guilty as a Range II multiple offender with a sentencing range of eight to
thirty-two years. Petitioner understood that his sentence would be served in the
Department of Correction. He claimed that no one explained to him about concurrent
and consecutive sentencing and that trial counsel never said that he would be given
consecutive sentences. However, Petitioner admitted that the trial court explained
consecutive and concurrent sentencing to him at the guilty plea submission hearing. The
trial court further advised him that whether his sentences would be served consecutively
or concurrently would be determined during a sentencing hearing at a later date.
Petitioner told the trial court that he understood what the court had explained. Petitioner
acknowledged that at the end of the guilty plea submission hearing the trial court asked if
Petitioner had any questions. The only question Petitioner asked was about some of his
property.

       Trial counsel testified that Petitioner missed his initial appointment with her and
showed up the following day. She also met with him four additional times before the
guilty plea was entered, and she met with him two additional times after that. Trial
counsel noted that “[s]ome of the meetings were very detailed where we discussed the
charges in detail, some of them were a little more brief.” She remembered Petitioner‟s
case “pretty well” because he pled out of range, and she spent “so much time with him.”

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Trial counsel also stated that Petitioner faced “a lot more time than a normal client, so
[they] spent a good deal of time together.”

       Trial counsel testified that Petitioner was very forthcoming with her and during his
interview with police concerning his guilt. She said:

        He gave a very detailed statement to the detectives. And when I first met
        with him he was very candid and forthcoming with me about what had
        happened. So kind of from the beginning of the representation, based on
        the facts of the case, he and I were - - we talked a lot about what was
        going to happen to him. So the final plea offer may not have been ironed
        out until the day before but we were negotiating for several weeks.

        And he is correct, we did have an eight and 100 percent with the
        possibility of getting 15 percent off; we had that offer. I actually
        strongly recommended that he take that. He was more concerned with
        the percentage, which is how we ended up pleading out of range. So he
        had an opportunity to get a lower percentage.

Trial counsel testified that she discussed consecutive sentencing with Petitioner, and he
knew that it was a possibility. She said, “[W]hich is why I was encouraging him to take
the eight-year offer.”

        Trial counsel agreed that she did not give the discovery packet to Petitioner. She
testified: “We generally do not give discovery on sex offenses when the client is in jail.”
However, she discussed the charges with him in detail. Although she could not recall for
certain, trial counsel thought that Petitioner made bond and was released from jail and
that he picked up the discovery after his release.

       On cross-examination, trial counsel testified that the discovery in Petitioner‟s case
contained his confession. There were also pictures of the victim that were discovered by
the victim‟s mother. Trial counsel agreed that the pictures were provocative and
lascivious in nature and were considered child pornography which Petitioner could not be
allowed to carry around. She testified that the pictures were shown to Petitioner several
times, and she reviewed Petitioner‟s statement with him. Trial counsel testified that she
and Petitioner “talked about his statement a lot.” She did not see any grounds to file a
motion to suppress the statement.

       Trial counsel testified that the initial plea offer was eight years at 100 percent, and
she attempted to negotiate a lower percentage; however, the State would not agree. She
advised Petitioner to accept the eight-year offer, and she told him “the likelihood of
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making parole on a sex case was slim to none.” Trial counsel testified that Petitioner
was “hung up on the 100 percent versus the 35 percent.”

       Trial counsel testified that she explained to Petitioner that he was pleading guilty
to an out of range sentence, and he seemed to understand. She felt that Petitioner
“absolutely” had a clear understanding of what he was doing when he entered the guilty
plea. Trial counsel testified that she “definitely” told Petitioner that there was a
possibility of consecutive sentencing. She said that Petitioner‟s only concern was getting
back some pictures that were in the possession of “Chief Yates.”

Analysis

       Petitioner contends that his guilty plea was unknowingly and involuntarily
entered, and his trial counsel provided ineffective assistance because Petitioner did not
fully understand the plea.

       In a post-conviction proceeding, the burden is on the Petitioner to prove his
alleged factual grounds for relief by clear and convincing evidence. T.C.A. § 40-30-
110(f); see Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). On appeal, we are
bound by the trial court‟s findings of fact unless we conclude that the evidence in the
record preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456 (Tenn.
2001). Additionally, “questions concerning the credibility of the witnesses, the weight
and value to be given their testimony, and the factual issues raised by the evidence are to
be resolved” by the post-conviction court. Id. Because they relate to mixed questions of
law and fact, we review the trial court‟s conclusions as to whether counsel‟s performance
was deficient and whether that deficiency was prejudicial under a de novo standard with
no presumption of correctness. Id. at 457.

       In order to prevail on an ineffective assistance of counsel claim, the petitioner
must establish that (1) his lawyer‟s performance was deficient and (2) the deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.
Ct. 205, 280 L. Ed. 2d 674 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).
“[A] failure to prove either deficiency or prejudice provides a sufficient basis to deny
relief on the ineffective assistance claim. Indeed, a court need not address the
components in any particular order or even address both if the [petitioner] makes an
insufficient showing of one component.” Goad v. State, 938 S.W.2d 363, 370 (Tenn.
1996) (citing Strickland, 466 U.S. at 697).

       A petitioner successfully demonstrates deficient performance when facts
established by clear and convincing evidence prove that his attorney‟s conduct fell below
“an objective standard of reasonableness under prevailing professional norms.” Id. at 369
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(citing Strickland, 466 U.S. at 688; Baxter, 523 S.W.2d at 936). Prejudice arising
therefrom is demonstrated once the petitioner establishes “„a reasonable probability that,
but for counsel‟s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.‟” Id. at 370 (quoting Strickland, 466 U.S. at 694). In order to satisfy the
“prejudice” requirement in the context of a guilty plea, the petitioner must show that, but
for counsel‟s errors, he would not have entered his guilty plea and would have proceeded
to trial. Serrano v. State, 133 S.W.3d 599, 605 (Tenn. 2004) (citing Hill v. Lockhart, 474
U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)).

        Additionally, we note that in determining the voluntariness of a guilty plea, a trial
court must advise the defendant of the consequences of a guilty plea and determine
whether the defendant understands those consequences to ensure the plea is a “voluntary
and intelligent choice among the alternative courses of action open to the defendant.”
North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); see
also Boykin v. Alabama, 395 U.S. 238, 244, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). The
trial court must address the defendant personally in open court, inform the defendant of
the consequences of the guilty plea, and determine whether the defendant understands
those consequences. See State v. Mackey, 553 S.W.2d 337, 341 (Tenn. 1977),
superseded on other grounds by rule as stated in State v. Wilson, 31 S.W.3d 189, 193
(Tenn. 2000); Tenn. R. Crim. P. 11(c). In determining whether the petitioner‟s guilty
pleas were knowing and voluntary, this court looks to the following factors:

        the relative intelligence of the [petitioner]; the degree of his familiarity
        with criminal proceedings; whether he was represented by competent
        counsel and had the opportunity to confer with counsel about the options
        available to him; the extent of advice from counsel and the court
        concerning the charges against him; and the reasons for his decision to
        plead guilty, including a desire to avoid a greater penalty that might
        result from a jury trial.

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993).

       Following an evidentiary hearing, in a ruling from the bench, the post-conviction
court concluded that Petitioner had failed to establish that his guilty plea was not entered
knowingly and voluntarily. The post-conviction court found:

        [Petitioner] is before the Court today having filed an application for
        post[-]conviction relief. His application is predicated on his contention
        that his guilty plea was either involuntarily entered or that it was
        unlawfully [i]nduced and that - - and that is based on his contention that
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        he did not understand fully the nature and/or the consequences of the
        plea agreement.

        The Court has considered the testimony of [Petitioner], the testimony of
        [trial counsel] his lawyer, his trial lawyer, and the Court has also
        considered the guilty plea colloquy. And after considering everything
        the Court determined that he has failed to meet his burden to convince
        the Court by a preponderance of the evidence that - - that his guilty plea
        was not entered voluntarily and that he did not know - - understand the
        consequences of it. The Court finds [trial counsel‟s] representation to be
        thorough, complete, timely and above reproach. His petition is denied.

       The record fully supports the trial court‟s findings. Petitioner claims that he did
not have “much time to consider his options,” and he believed that he would be released
after serving thirty-five percent of his eighteen-year-sentence. He further contends that
he “never fully grasped what pleading „out-of-range‟ meant.” Petitioner also states: “If
the true impact of the plea were known to [Petitioner], [he] would have rejected the plea
even though he could face far greater time and the State would now probably not
negotiate a settlement offer with [Petitioner].”

        However, trial counsel testified that she encouraged Petitioner to accept the State‟s
initial plea offer of eight years at 100 percent; however, Petitioner rejected the plea
because he was “hung up on the 100 percent versus the 35 percent.” Trial counsel
testified that she explained to Petitioner that he was pleading guilty to an out of range
sentence, and he seemed to understand. She also felt that Petitioner “absolutely” had an
understanding of what he was doing when he entered the guilty plea. She “definitely”
told Petitioner that there was a possibility of consecutive sentencing. Trial counsel
testified that she also advised Petitioner that “the likelihood of making parole on a sex
case was slim to none.”

       At the post-conviction hearing, Petitioner acknowledged that he understood the
plea agreement to be an “open plea at 35 percent, which was out of range, but taking the
plea for a minimum and a maximum amount of years, but I was eligible for minimum
sentencing.” Petitioner further acknowledged that the trial court discussed the possibility
of an out of range sentence at the guilty plea submission hearing and told him that he did
not have to accept the plea. The trial court advised him that he was pleading guilty as a
Range II multiple offender with a sentencing range of eight to thirty-two years. Petitioner
understood that his sentence would be served in the Department of Correction. The trial
court explained consecutive and concurrent sentencing to Petitioner and that whether his
sentences would be served concurrently or consecutively would be determined during a
sentencing hearing at a later date. Petitioner told the trial court that he understood what
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the court had explained. The trial court also gave Petitioner an opportunity to ask
questions about the plea agreement.

        When asked if he would have entered the plea if he had known that the 35 percent
release eligibility date did not guarantee parole, Petitioner replied, “I don‟t know.” He
further stated that what “scared him the most” was that he was never shown discovery
“prior to any plea deals.” Petitioner‟s statement was disputed by trial counsel who
testified that she advised Petitioner that he was not guaranteed parole and that she
reviewed discovery with him, which included his statements to police and pictures of the
victim. Petitioner admitted at the post-conviction hearing that trial counsel explained the
charges to him and gave her opinion about what would happen at trial based on witness‟
testimony, the pictures that were discovered, and Petitioner‟s confession. He stated that
trial counsel felt that it was in his best interest to accept a plea. The post-conviction court
obviously accredited the testimony of trial counsel.

        Petitioner has failed to establish that trial counsel provided ineffective assistance
or that Petitioner‟s guilty plea was unknowingly or involuntarily entered.

       For the foregoing reasons, the judgment of the post-conviction court is affirmed.


                                    ____________________________________________
                                    THOMAS T. WOODALL, PRESIDING JUDGE




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