                                                                                          01/17/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs December 6, 2016

                 MARIO JOHNSON v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                   No. 11-00492       James C. Beasley, Jr., Judge
                      ___________________________________

                           No. W2015-02498-CCA-R3-PC
                       ___________________________________


Mario Johnson (“the Petitioner”) entered an open guilty plea to five counts of aggravated
assault. The trial court sentenced the Petitioner to an effective sentence of thirty years in
the Department of Correction. The Petitioner filed a petition for post-conviction relief
arguing that he received ineffective assistance of counsel and that he entered his guilty
plea unknowingly and involuntarily. The post-conviction court denied relief after a
hearing. On appeal, we affirm the post-conviction court’s denial of relief.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and ROBERT H. MONTGOMERY, JR., JJ., joined.

Monica A. Timmerman, Memphis, Tennessee, for the appellant, Mario Johnson.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Amy P. Weirich, District Attorney General; and Stacy McEndree, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                       OPINION
                         I. Factual and Procedural Background

                     Guilty Plea Submission & Sentencing Hearings

        As summarized in this court’s opinion from the Petitioner’s direct appeal, the State
set forth the following facts supporting its proof at the guilty plea hearing:
             Had the matter gone to trial, the State submits that the proof would
       have shown that on or about June 23rd of 2010[,] the [Petitioner] . . .
       confronted a Mr. Terry Ward about a debt for some marijuana that had not
       been paid.

                At that point, the two of them had verbally argued and exchanged
       blows physically. [The Petitioner] left, came back about a half hour later[,]
       . . . and fired shots at that residence. There were multiple shots fired.

              At that point, there were five people on the porch outside of that
       house[:] an Odarian Danish[;] Christopher Danish[;] Raphael Danish[;]
       Terry Ward [;] and a Darren Anderson. They were all standing under the
       carport. They all ducked for cover and tried to get out of the way.

              Odarian Danish, who had just gotten back from the Navy, was hit
       more than once and was hit in the neck[—][a] through[-]and[-]through
       shot. He was hit in the chest[,] and he remained in critical condition in the
       hospital for a period of about two weeks prior to being released.

             Odarian Danish did not know the [Petitioner], but [the Petitioner]
       was identified by Terry Ward, Odarian Danish, [and] Christopher Danish.

State v. Mario Johnson, No. W2012-02566-CCA-R3-CD, 2013 WL 6052873, at *1
(Tenn. Crim. App. Nov. 15, 2013), perm. app. denied (Tenn. Apr. 9, 2014). During the
plea colloquy, the Petitioner agreed that he had discussed entering an open plea with trial
counsel and that he understood the consequences of such a plea. The Petitioner also
agreed that he understood the charges against him. Initially, both trial counsel and the
prosecutor stated that they believed that the Petitioner was a career offender. The
prosecutor then stated that because some of the Petitioner’s convictions were from other
states it was possible that the Petitioner was a Range III persistent offender. The trial
court explained that, if the Petitioner was found to be a Range III persistent offender, he
could be sentenced to ten to fifteen years with a forty-five percent release eligibility for
each count. The trial court also explained that, if the Petitioner was found to be a career
offender, he could be sentenced to fifteen years with a sixty percent release eligibility on
each count. The Petitioner confirmed that he had a right to proceed to trial, to confront
the State’s witnesses, to testify, and to appeal and that he understood that he was waiving
those rights. Additionally, the Petitioner agreed that he was satisfied with trial counsel’s
representation. The trial court held that the Petitioner knowingly and voluntarily entered
his guilty plea.



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        At the sentencing hearing,1 the trial court sentenced the Petitioner as a Range III
persistent offender to fifteen years for each count of aggravated assault. Id. at *2. The
trial court found that the Petitioner had an extensive criminal history and was a dangerous
offender and ordered the sentences for count one and count five to be served
consecutively. Id. The trial court ordered the sentences for the remaining counts to be
served concurrently with count one for an effective sentence of thirty years with a forty-
five percent release eligibility in the Department of Correction. Id. This court affirmed
the judgments of the trial court. Id. at *4. Our supreme court denied further review.

                                    Post-Conviction Proceedings

       The Petitioner filed a timely petition for post-conviction relief. At the post-
conviction hearing, trial counsel testified that he had practiced criminal defense for
twenty-three years and that he had worked at the public defender’s office for the last
twelve years. Trial counsel stated that he met with the Petitioner many times at court
dates and met with the Petitioner in jail after the Petitioner’s case was set for trial. Trial
counsel noted that, when he first reviewed the Petitioner’s case, he believed that the
Petitioner could be sentenced as a career offender. Trial counsel testified that the
Petitioner was initially not interested in accepting the State’s plea offer of nine years for
each count to be served concurrently with a thirty-five percent release eligibility.

        After the Petitioner was charged with attempted second degree murder in an
unrelated case, the State withdrew its original plea offer. The State then offered a plea of
twenty years and later offered a plea of twenty-five years. Trial counsel stated that the
Petitioner was convinced that he would be acquitted of the attempted second degree
murder charge and that the Petitioner gave trial counsel “different details” about the
aggravated assault charges. However, trial counsel stated that he did not believe that the
Petitioner “had a real [sic] good chance of winning[]” based on the evidence, which
included a tape-recorded telephone call. On the tape-recorded call, the Petitioner could
be heard telling the call recipient that the individual that the Petitioner shot would not be
at his trial. Trial counsel advised the Petitioner that his chances of being acquitted at trial
were low, but at this point the Petitioner’s case had been set for trial and the State had
withdrawn all plea offers. Trial counsel testified that he advised the Petitioner that “the
options he had available at that time were to go to trial . . . [in Division 9] where [trial
counsel] thought that he did not have a chance to win at all[]” or enter an open plea in
Division 10. However, trial counsel stated that he gave this advice while still incorrectly
believing that the Petitioner was a career offender. Trial counsel advised the Petitioner

        1
          A transcript of the sentencing hearing was not included in the record of the post-conviction
appeal, but this court’s opinion from the Petitioner’s direct appeal summarized the Petitioner’s sentencing
hearing.
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about the different ways the trial court could run the sentences, such as consecutively or
concurrently.

        On cross-examination, trial counsel stated that he believed that the Petitioner’s
case was not a good case to proceed to trial because of the evidence against the
Petitioner, including the victims’ testimony and the tape-recorded call. Trial counsel
testified that the Petitioner did not accept the State’s initial offer of nine years because
“he didn’t believe that the [victims] were going to show up and testify against him.”
Trial counsel stated that he advised his clients strongly on whether or not to accept a plea
offer, but he never forced his clients to accept plea deals. Trial counsel stated that he
advised the Petitioner regarding the positive and negative aspects of accepting a plea
offer and also explained the Petitioner’s sentencing range. Trial counsel also explained to
the Petitioner how having his case transferred to a different trial court would affect his
chances at the sentencing stage. Trial counsel relied on his experience practicing in
Division 9 to inform the Petitioner that he might receive an effective sentence of seventy-
five years as a career offender if the Petitioner proceeded to trial and his case was
transferred from Division 10 to Division 9. Trial counsel testified that when the trial
court opined that the Petitioner was a Range III persistent offender at the plea submission
hearing, trial counsel stated on the record that the Petitioner might want to withdraw his
open plea based on that new information.

        The Petitioner testified that he did not want the opportunity to proceed to trial if
the post-conviction court granted relief but instead he wanted his sentences to be run
concurrently. The Petitioner testified that he understood that if the post-conviction court
granted him relief he would have the opportunity to proceed to trial, and the State may
not make a plea offer. The Petitioner stated that, at the plea submission hearing, trial
counsel informed the trial court that the State was no longer making a plea offer but that
the Petitioner wanted to enter an open plea, which trial counsel advised against. The
Petitioner stated that trial counsel then advised him against proceeding to trial. The
Petitioner testified that he did not reject the State’s original plea offer but that he told trial
counsel he wanted to see if the State would reduce four of the aggravated assault counts
to reckless endangerment because “only one guy got hit in the incident.” However, the
State declined to reduce any of the charges and withdrew its original plea offer. The
Petitioner testified that, after he posted bond in the current case, he was charged with
other crimes not related to the current charges and returned to custody. The Petitioner
stated that the tape-recorded call referred to one victim’s decision to drop the charges, not
the Petitioner’s attempt to “intimidate the witness or tell him not to come to court.”

       The Petitioner testified that at the Petitioner’s report date on August 20, 2012, trial
counsel advised against entering an open plea. The Petitioner stated that he was “willing
to accept the nine years deal” on that report date, but trial counsel informed him that the
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State had withdrawn that offer. The Petitioner testified that trial counsel advised him
about how the trial courts in the different judicial divisions might sentence him if he
proceeded to trial and was convicted. The Petitioner stated that trial counsel told him that
if he entered an open plea in Division 10, he would receive an effective sentence of
fifteen years. The Petitioner also testified that trial counsel advised him that if the
Petitioner proceeded to trial in Division 9 and was convicted, the Petitioner would likely
receive an effective sentence of seventy-five years. The Petitioner agreed that the trial
court explained during the plea colloquy that the trial court could run his sentences
consecutively or concurrently. The Petitioner also stated that trial counsel informed him
that if he proceeded to trial, he “would have no shot of winning.”

       On cross-examination, the Petitioner stated that he set his case for trial because he
“was informed by the victims that they [were] no longer going to prosecute [him].”
However, the Petitioner agreed that the victims appeared at his preliminary hearing in
general sessions court. The Petitioner also agreed that he had several opportunities from
February until May 2011 to accept the State’s nine-year offer at report dates, but he did
not. The Petitioner agreed that trial counsel advised against entering an open plea on the
Petitioner’s August 20, 2012 report date because trial counsel had recently received the
tape-recorded call and trial counsel wanted to give the Petitioner an opportunity to listen
to the recording before entering an open plea. On redirect examination, the Petitioner
stated that he would not have entered the open guilty plea if he had understood that he
could have received an effective sentence of thirty years.

        The post-conviction court noted that, at the sentencing hearing, trial counsel asked
the trial court to sentence the Petitioner to ten years on probation. The post-conviction
court also noted that both trial counsel and the State believed that the Petitioner was a
career offender at the sentencing hearing. The post-conviction court found that the
Petitioner “entered his plea freely and voluntarily and [with] full knowledge of what the
possibilities were.” The post-conviction court implicitly accredited trial counsel’s
testimony and stated that the Petitioner could have received ten years on probation in a
“best case scenario,” or the Petitioner could have been sentenced to seventy-five years as
trial counsel informed the Petitioner. The post-conviction court found that trial counsel
“thoroughly” represented the Petitioner, that the proof against the Petitioner was
“overwhelmingly strong[,]” and that the likelihood that the Petitioner would be convicted
at trial was “probably extremely high.” The post-conviction court concluded that the
Petitioner had not met the burden of proof and denied relief. This timely appeal
followed.




                                           -5-
                                        II. Analysis

       On appeal, the Petitioner argues that “due to the advice [trial counsel] afforded
[the Petitioner], [the Petitioner’s] plea was involuntar[y] as it was the product of
ignorance and incomprehension.” The Petitioner also argues that trial counsel’s deficient
representation prejudiced him because “trial counsel had offered [the Petitioner]
assurances that he would not be sentenced to more than fifteen (15) years, and but for
those assurances he would not have entered the guilty plea.” The State contends that the
evidence does not preponderate against the post-conviction court’s findings that trial
court’s performance was not deficient and that the Petitioner’s plea was knowing and
voluntary.

                                    Standard of Review

        In order to prevail on a petition for post-conviction relief, a petitioner must prove
all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828,
830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and
fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Appellate courts are bound
by the post-conviction court’s factual findings unless the evidence preponderates against
such findings. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015). When reviewing
the post-conviction court’s factual findings, this court does not reweigh the evidence or
substitute its own inferences for those drawn by the post-conviction court. Id.; Fields, 40
S.W.3d at 456 (citing Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). 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].” Fields, 40 S.W.3d at 456 (citing Henley, 960 S.W.2d at 579);
see also Kendrick, 454 S.W.3d at 457. The post-conviction court’s conclusions of law
and application of the law to factual findings are reviewed de novo with no presumption
of correctness. Kendrick, 454 S.W.3d at 457.

                             Ineffective Assistance of Counsel

         The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.
art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel,
a petitioner must prove: (1) that counsel’s performance was deficient; and (2) that the
deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);
see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same
standard for ineffective assistance of counsel applies in both federal and Tennessee
cases). Both factors must be proven in order for the court to grant post-conviction relief.
Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State, 938 S.W.2d 363,
                                            -6-
370 (Tenn. 1996). Accordingly, if we determine that either factor is not satisfied, there is
no need to consider the other factor. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007)
(citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)). Additionally, review of
counsel’s performance “requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S.
at 689; see also Henley, 960 S.W.2d at 579. We will not second-guess a reasonable trial
strategy, and we will not grant relief based on a sound, yet ultimately unsuccessful,
tactical decision. Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).

        As to the first prong of the Strickland analysis, “counsel’s performance is effective
if the advice given or the services rendered are within the range of competence demanded
of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that
counsel was deficient, the petitioner must demonstrate “that counsel’s acts or omissions
were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see
also Baxter, 523 S.W.2d at 936.

        Even if counsel’s performance is deficient, the deficiency must have resulted in
prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong
of the Strickland analysis, the petitioner “must show that there is 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. (quoting Strickland, 466 U.S. at 694) (internal quotation marks
omitted).

        A substantially similar two-prong standard applies when the petitioner challenges
counsel’s performance in the context of a guilty plea. Hill v. Lockhart, 474 U.S.52, 58
(1985); Don Allen Rodgers v. State, No. W2011-00632-CCA-R3-PC, 2012 WL 1478764,
at *4 (Tenn. Crim. App. Apr. 26, 2012). First, the petitioner must show that his counsel’s
performance fell below the objective standards of reasonableness and professional norms.
See Hill, 474 U.S. at 58. Second, “in order to satisfy the ‘prejudice’ requirement, the
[petitioner] must show that there is a reasonable probability that, but for counsel’s errors,
he would have not have pleaded guilty and would have insisted on going to trial.” Id. at
59.

                         Unknowing and Involuntary Guilty Plea

        Whether a guilty plea is intelligent and voluntary is a mixed question of law and
fact.   Jaco, 120 S.W.3d at 830-31. Therefore, in such cases we review the post-
                                            -7-
conviction court’s findings of fact de novo with a presumption of correctness. Id. The
post-conviction court’s findings of law are reviewed purely de novo. Id.

       Counsel’s effectiveness may implicate the requirement that a plea must be entered
knowingly and voluntarily, i.e., that the petitioner made the choice to plead guilty after
being made aware of the significant consequences of such a plea. State v. Pettus, 986
S.W.2d 540, 542 (Tenn. 1999). When reviewing a guilty plea, this court looks to both the
federal standard as announced in the landmark case Boykin v. Alabama, 395 U.S. 238
(1969), and the state standard as announced in State v. Mackey, 553 S.W.2d 337 (Tenn.
1977), superseded on other grounds by Tenn. R. Crim. P. 37(b) and Tenn. R. App. P.
3(b). Don Allen Rodgers, 2012 WL 1478764, at *5. Under the federal standard, there
must be an affirmative showing that the plea was “intelligent and voluntary.” Boykin,
395 U.S. at 242. Likewise, the Tennessee Supreme Court has held that “the record of
acceptance of a defendant’s plea of guilty must affirmatively demonstrate that his
decision was both voluntary and knowledgeable, i.e., that he has been made aware of the
significant consequences of such a plea . . . .” Mackey, 553 S.W.2d at 340. “[A] plea is
not ‘voluntary’ if it is the product of ‘[i]gnorance, incomprehension, coercion, terror,
inducements, [or] subtle or blatant threats . . . .” Blankenship v. State, 858 S.W.2d 897,
904 (Tenn. 1993) (quoting Boykin, 395 U.S. at 242-43). A reviewing court must
examine the totality of the circumstances to determine if a guilty plea was knowing and
voluntary. State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995).

       In order to determine whether a plea is intelligent and voluntary, the trial court
must “canvass[] the matter with the accused to make sure he has a full understanding of
what the plea connotes and of its consequence.” Boykin, 395 U.S. at 244. The trial court
looks to several factors before accepting a plea, including:

      [T]he relative intelligence of the defendant; 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, 858 S.W.2d at 904; Howell v. State, 185 S.W.3d 319, 330-31 (Tenn. 2006).
Once the trial court has conducted a proper plea colloquy, it discharges its duty to assess
the voluntary and intelligent nature of the plea and creates an adequate record for any
subsequent review. Boykin, 395 U.S. at 244.



                                           -8-
       Statements made by a petitioner, his attorney, and the prosecutor during the plea
colloquy, as well as any findings made by the trial court in accepting the plea, “constitute
a formidable barrier in any subsequent collateral proceedings.” Blackledge v. Allison,
431 U.S. 63, 73-74 (1977). Statements made in open court carry a strong presumption of
truth, and to overcome such presumption, a petitioner must present more than
“conclusory allegations unsupported by specifics.” Id. at 74.

       In the current case, the record supports the post-conviction court’s conclusions that
the Petitioner failed to prove that trial counsel was ineffective or that the Petitioner had
been prejudiced by trial counsel’s representation. Trial counsel testified that he advised
the Petitioner that he could receive a maximum sentence of seventy-five years as a career
offender. While the trial court sentenced the Petitioner as a Range III persistent offender
at the sentencing hearing, trial counsel still accurately advised the Petitioner of the
maximum sentence that he was facing. See Tenn. Code Ann. § 40-35-112(c)(3). Trial
counsel also testified that the Petitioner did not accept the State’s initial plea offer of nine
years with a thirty-five percent release eligibility for each count to be served concurrently
because the Petitioner hoped that the State would reduce some of the charges. Despite
the Petitioner’s assertions that the victims would not have testified against him at trial,
the post-conviction court found that the evidence against the Petitioner was
“overwhelmingly strong” and that the likelihood that the Petitioner would be convicted at
trial was “probably extremely high.” The Petitioner contends that trial counsel assured
him the trial court in Division 10 would give the Petitioner an effective sentence of
fifteen years; however, the post-conviction court implicitly accredited trial counsel’s
testimony as truthful. Trial counsel testified that he advised the Petitioner on the
different ways that the trial court in Division 10 could run his sentence if the Petitioner
entered an open plea in Division 10. The post-conviction court found that trial counsel’s
performance was not deficient and that the evidence does not preponderate against the
post-conviction court’s findings. We need not address whether the Petitioner was
prejudiced because the Petitioner has not established that trial counsel’s performance was
deficient. See Finch, 226 S.W.3d at 316.

       The plea submission hearing transcript shows that the trial court conducted a
thorough Tennessee Rule of Criminal Procedure 11(b) colloquy with the Petitioner and
accepted the Petitioner’s plea as knowingly and voluntarily entered. The Petitioner’s
wish for reduced charges and his extensive criminal record show that he was familiar
with the plea negotiating and sentencing stages of a criminal prosecution. The Petitioner
has failed to present more than “conculsory allegations unsupported by specifics” to
overcome the presumption that the Petitioner understood the potential sentencing ranges
associated with his charges, as he stated at his guilty plea submission hearing.
Blackledge, 431 U.S. at 74. The evidence in the record supports the trial court’s
conclusion that the Petitioner was aware of the sentences he faced whether he was
                                             -9-
sentenced as a Range III persistent or career offender and that the Petitioner’s guilty plea
was knowing and voluntary. Therefore, the Petitioner is not entitled to relief.

                                     III. Conclusion

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

                                             ____________________________________
                                             ROBERT L. HOLLOWAY, JR., JUDGE




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