             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                                    Assigned on Briefs July 12, 2006

                   THOMAS STUDDARD v. STATE OF TENNESSEE

                             Appeal from the Circuit Court for Dyer County
                                    No. C02-61 Lee Moore, Judge



                     No. W2004-00500-CCA-R3-PC - Filed September 27, 2006


The petitioner, Thomas Studdard, was indicted by the Dyer County Grand Jury on three counts of
rape of a child in 2002. The petitioner subsequently pled guilty to one count of incest and was
sentenced to eight years as a Range II multiple offender. The petitioner sought a reduction of his
sentence in the trial court. The trial court denied the relief sought and the petitioner appealed. On
direct appeal, this Court, without reaching the merits of the petitioner’s sentencing issues, vacated
the judgment of conviction on the grounds that incest was not a lesser-included offense of rape.
Thomas Poston Studdard v. State, No. W2003-01210-CCA-R3-PC, 2004 WL 370259 (Tenn. Crim.
App., at Jackson, Feb. 27, 2004), perm. app. granted, (Tenn. Sept. 7, 2004). Having granted the
petitioner’s application for permission to appeal, our supreme court concluded that the trial court had
jurisdiction to accept the petitioner’s guilty plea and remanded the case to this Court for
consideration of the sentencing issues. Studdard v. State, 182 S.W.3d 283 (Tenn. 2005). On
remand, this Court determined that the trial court did not err in denying the petitioner’s motion to
reduce his sentence and that the certification requirement of Tennessee Code Annotated section 40-
35-503(c) did not violate the petitioner’s equal protection rights.1 Thomas Poston Studdard v. State,
No. W2005-02707-CCA-RM-PC, 2006 WL 287427 (Tenn. Crim. App., at Jackson, Feb. 6, 2006),
perm. app. denied, (Tenn. May 30, 2006). While the petitioner’s direct appeal was still pending, the
petitioner sought post-conviction relief on the basis of ineffective assistance of counsel2. The post-
conviction court denied the petition and the petitioner sought relief in this Court. After a 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 Criminal Court is Affirmed.

JERRY L. SMITH , J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR ., and
JOHN EVERETT WILLIAMS, JJ., joined.

         1
          Tennessee Code Annotated section 40-35-503(c) prohibits the parole of a convicted sex offender unless a
licensed psychiatrist or psychologist certifies that the offender does not pose a likelihood to re-offend.

         2
          Because the direct appeal was still pending when the petitioner sought post-conviction relief, this Court, on
July 13, 2005, stayed the post-conviction proceedings until the Supreme Court entered a final decision in the petitioner’s
direct appeal.
Clifford K. McGown, Jr., Waverly, Tennessee, on appeal; Jim W. Horner, District Public Defender
and H. Tod Taylor, Assistant Public Defender, at trial, for the appellant, Thomas Studdard.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; and
Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.



                                              OPINION

       On February 11, 2002, the petitioner was indicted on three counts of rape of a child. In
August of 2002, the petitioner entered a best interest plea to one count of incest with an agreed-upon
sentence of eight years as a Range II multiple offender.

         Subsequently, the petitioner filed a pro se motion for correction or reduction of sentence,
pursuant to Tennessee Rule of Criminal Procedure 35. The petitioner alleged his plea agreement
failed to stipulate that his parole was contingent upon his completion of a mandatory sexual offender
program and that his trial counsel had misinformed him of the actual time he would be required to
serve by telling him he would be eligible for parole in approximately fourteen months. The
petitioner asserted that the interest of justice required that his sentence be reduced to conform with
his expectation at the time he entered into his plea agreement. The trial court denied the relief sought
and the petitioner appealed.

        On direct appeal, this Court vacated the judgment of conviction, determining that incest was
not a lesser-included offense of rape, but did not reach the merits of the petitioner’s sentencing
issues. Thomas Poston Studdard v. State, No. W2003-01210-CCA-R3-PC, 2004 WL 370259 (Tenn.
Crim. App., at Jackson, Feb. 27, 2004), perm. app. granted (Tenn. Sept. 7, 2004). Our supreme court
concluded that the trial court had jurisdiction to accept the petitioner’s guilty plea and remanded the
case to this Court for consideration of the sentencing issues. Studdard v. State, 182 S.W.3d 283
(Tenn. 2005). On remand, this Court determined that the trial court did not err in denying the
petitioner’s motion to reduce his sentence and that the certification requirement of Tennessee Code
Annotated section 40-35-503(c) did not violate the petitioner’s equal protection rights. Thomas
Poston Studdard v. State, No. W2005-02707-CCA-RM-PC, 2006 WL 287427 (Tenn. Crim. App.,
at Jackson, Feb. 6, 2006), perm. app. denied (Tenn. May 30, 2006).

        On August 21, 2003, while the petitioner’s direct appeal was still pending, the petitioner filed
a pro se petition for post-conviction relief in which he claimed that his guilty plea was unlawfully
induced or involuntarily entered into and that the State breached the plea agreement. The petitioner
filed an amended petition after appointment of counsel in which he reasserted his earlier arguments
and argued that his sentence was “void or voidable because of the abridgment of his constitutional
right to effective assistance of counsel and due process.”




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        The post-conviction court held a hearing on the petition on October 31, 2003. At the hearing,
the petitioner testified that trial counsel did not talk to him “about the certification or the counseling
that was involved [with his sentence],” but rather told him that “those programs were offered by the
State.” According to the petitioner, trial counsel first came to him with an offer of fifteen years at
one hundred percent and then worked the offer down to eight years at thirty-five percent, but made
a “big deal” about the percentage. The petitioner understood that once he served thirty-five percent
of the eight years, “that was the time that [he] was led to believe that [he’d] be eligible to be
released.” In the petitioner’s words, he “was not forewarned about anything other than the fact that
[he] was pleading to eight years at thirty-five percent and [he] would have the same opportunity for
parole as anyone else would have.” The petitioner complained that “because of a program that’s
mandatory by the State, [his sentence] was an impossibility then, and is now.” At the time of the
hearing, the petitioner was not enrolled in the required program. The petitioner asked the trial court
to grant “specific performance” of his plea agreement. On cross-examination, however, the
petitioner agreed that he received an eight-year sentence with a thirty-five percent release eligibility.

        The petitioner’s trial counsel testified that he had been practicing law for thirty-one years and
that he was retained to represent the petitioner at trial. According to trial counsel, he met with the
petitioner numerous times and employed a psychologist to meet with the victim prior to trial.
According to the mental health expert, the victim was telling the truth. The expert also evaluated
the petitioner prior to trial.

         Trial counsel advised the petitioner that he was facing fifteen to twenty-five years at one
hundred percent. Once plea discussions started, trial counsel recalled several offers that were
discussed. The final offer was eight years at thirty-five percent and that was the offer that was
communicated to the petitioner. Trial counsel did not “remember” discussing parole eligibility with
the petitioner. Trial counsel did recall talking with the petitioner about the counseling programs that
would have to be completed in order for the petitioner to be eligible for parole. In fact, trial counsel
testified that he advised the petitioner that he would, in his opinion, “have to do eight years.” Trial
counsel also felt that the petitioner’s prior criminal convictions would prohibit his parole eligibility
after service of thirty-five percent of the eight-year sentence.

       The petitioner came back to the stand to rebut trial counsel’s testimony, stating that trial
counsel “absolutely did not” communicate to him that he was going to have to “flatten” the eight
year sentence or that there was a certification requirement prior to his eligibility for parole.

        At the conclusion of the hearing, the post-conviction court denied relief. The post-conviction
court then entered an order denying post-conviction relief. The petitioner filed a timely notice of
appeal. On appeal, the petitioner argues that the post-conviction court improperly denied the petition
for post-conviction relief.




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                                               Analysis

                                Post-Conviction Standard of Review

         The post-conviction court’s findings of fact are conclusive on appeal unless the evidence
preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). During our review
of the issues raised, we will afford those findings of fact the weight of a jury verdict, and this Court
is bound by the post-conviction court’s findings unless the evidence in the record preponderates
against those findings. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State, 958
S.W.2d 138, 147 (Tenn. Crim. App. 1997). This Court may not reweigh or re-evaluate the evidence,
nor substitute its inferences for those drawn by the post-conviction court. See State v. Honeycutt,
54 S.W.3d 762, 766 (Tenn. 2001). However, the post-conviction court’s conclusions of law are
reviewed under a purely de novo standard with no presumption of correctness. See Shields v. State,
40 S.W.3d 450, 458 (Tenn. 2001).

                                  Ineffective Assistance of Counsel


        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, the petitioner bears the burden of showing that (a) the services rendered by trial counsel
were deficient and (b) that the deficient performance was prejudicial. See Powers v. State, 942
S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient performance, the
petitioner must show that the services rendered or the advice given was below “the range of
competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). In order to demonstrate prejudice, the petitioner must show that there is a reasonable
probability that, but for counsel’s deficient performance, the result of the proceeding would have
been different. See Strickland v. Washington, 466 U.S. 668, 694 (1984). “Because a petitioner must
establish both prongs of the test to prevail on a claim of ineffective assistance of counsel, failure to
prove either deficient performance or resulting prejudice provides a sufficient basis to deny relief
on the claim.” Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997).

        As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record preponderates
against the court’s findings. See id. at 578. However, our supreme court has “determined that issues
of deficient performance by counsel and possible prejudice to the defense are mixed questions of law
and fact . . . ; thus, [appellate] review of [these issues] is de novo” with no presumption of
correctness. Burns, 6 S.W.3d at 461.

       Furthermore, on claims of ineffective assistance of counsel, the petitioner is not entitled to
the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. 1994). This Court may
not second-guess a reasonably-based trial strategy, and we cannot grant relief based on a sound, but


                                                  -4-
unsuccessful, tactical decision made during the course of the proceedings. See id. However, such
deference to the tactical decisions of counsel applies only if counsel makes those decisions after
adequate preparation for the case. See Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

        In the case herein, the petitioner argues that trial counsel was ineffective because he failed
to inform the petitioner of the provisions of Tennessee Code Annotated section 40-35-503(c) prior
to the entry of the guilty plea.

        At the conclusion of the hearing, the post-conviction court made the following findings of
fact and conclusions of law:

                 The proof that we have before us, after considering the testimony today, also
        considering the transcript of the guilty plea taken on August 22, 2002, and the
        transcript of your hearing on your Rule 35 motion that was conducted on April 11,
        2003, it’s clear to the Court that there was no misunderstanding as far as the plea was
        concerned. And he was questioned about that, and that is that it was an 8-year
        sentence as a Range II offender, which would be at 35 percent, as [the petitioner]
        states. He was questioned about any other agreements, and he did not indicate that
        there was any other agreement. The proof today is such that the one thing that is
        clear is that it was an eight-year sentence as a Range II offender.

                Unfortunately, the - - it’s not working out, I suppose, as [the petitioner] would
        like, but I agree with [the State], the problem is with the Tennessee Department of
        Correction or the Board of Paroles. That does not mean that there’s ineffective
        assistance of counsel. [Trial counsel] appears to have met the standard set out in
        Baxter v. Rose and the Strickland case. The burden is on the petitioner to show that
        counsel’s act of omissions were so serious as to an objective standard of
        reasonableness under prevailing professional norms. The Court does not find under
        the facts that have been presented that that has in fact occurred.

                 It’s unfortunate, [petitioner], that you’re dissatisfied as you are, but there’s not
        anything at this point that the Court can do. Under the circumstances, you might try
        a petition for writ of habeas corpus at the time, you know, that your sentence expires.
        But at this point in time, under the law governing ineffective assistance of counsel
        or post-conviction relief, the Court must deny your petition.

         In order for the petitioner to prevail herein, he must show, by clear and convincing evidence,
that his attorney failed to properly advise him of the possible consequences of his plea and that trial
counsel’s failure to do so resulted in prejudice. Once a guilty plea has been entered, effectiveness
of counsel is relevant only to the extent that it affects the voluntariness of the plea. In this respect,
such claims of ineffective assistance necessarily implicate the principle that guilty pleas be
voluntarily and intelligently made. See Hill v. Lockhart, 474 U.S. 52, 56 (1985) (citing North
Carolina v. Alford, 400 U.S. 25, 31 (1970)). As stated above, in order to successfully challenge the


                                                    -5-
effectiveness of counsel, the petitioner must demonstrate that counsel’s representation fell below the
range of competence demanded of attorneys in criminal cases. See Baxter, 523 S.W.2d at 936.
Under Strickland v. Washington, 466 U.S. at 687, the petitioner must establish (1) deficient
representation and (2) prejudice resulting from the deficiency. However, in the context of a guilty
plea, to satisfy the second prong of Strickland, the petitioner must show that “there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted
on going to trial.” Hill, 474 U.S. at 59; see also Walton v. State, 966 S.W.2d 54, 55 (Tenn. Crim.
App. 1997).

         The record supports the finding that trial counsel was effective. Implicit in the post-
conviction court’s findings and conclusions is a lack of accreditation of the petitioner’s testimony.
“[Q]uestions of credibility of the witnesses, the weight and value of the evidence, and resolution of
conflicts in the evidence are matters entrusted to the trial judge as the trier of fact.” State v. Odum,
928 S.W.2d 18, 23 (Tenn.1996). Further, this Court has previously determined that defense
counsel’s failure to advise a criminal defendant about the details of his parole eligibility, including
informing the defendant of a sex offender that the program must be completed prior to parole release
eligibility is not ineffective assistance of counsel. See e.g., Wade v. State, 914 S.W.2d 97, 104
(Tenn. Crim. App. 1995); Alan Dale Bailey v. State, No. M2001-01018-CCA-R3-PC, 2020 WL
215657 (Tenn. Crim. App., at Nashville, Feb. 8, 2002), perm. app. granted (Tenn. May 28, 2002),
app. dismissed (Jul. 11, 2002); Rickey Sams v. State, No. 03C01-9511-CC-00368, 1996 WL 663884
(Tenn. Crim. App., at Knoxville, Nov. 14, 1996), perm. app. denied (Tenn. Mar. 3, 1997). Defense
counsel’s failure to inform a sex offender that he must be certified in order to be eligible for parole
is, likewise, not ineffective assistance. Wade, 914 S.W.2d at 104. The petitioner’s herein is unable
to satisfy the prejudice prong of Strickland where the parole certification requirements would have
been applied to the petitioner whether he pled guilty or was convicted by a jury. After a de novo
review, we conclude that the evidence in the record does not preponderate against the post-
conviction court’s decision that trial counsel was effective.

                                Voluntary and Knowing Guilty Plea

        The petitioner also questions the knowing and voluntary nature of his guilty plea. The
petitioner argues that he was “induced” to enter a plea of guilty by the promise of a thirty-five
percent release eligibility.

        When evaluating the knowing and voluntary nature of a guilty plea, the United States
Supreme Court has held that “[t]he standard was and remains whether the plea represents a voluntary
and intelligent choice among the alternative courses of action open to the defendant.” Alford, 400
U.S. at 30. The court reviewing the voluntariness of a guilty plea must look to the totality of the
circumstances. See State v. Turner, 191 S.W.2d 346, 353 (Tenn. Crim. App. 1995); see also
Chamberlain v. State, 815 S.W.2d 534, 542 (Tenn. Crim. App. 1990). Specifically, a reviewing
court must consider “the relative intelligence of the defendant; 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


                                                  -6-
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).

        A plea is not “voluntary” if it results from ignorance, misunderstanding, coercion,
inducements, or threats. Id. at 904. The trial court must determine if the guilty plea is “knowing”
by questioning the defendant to make sure he fully understands the plea and its consequences. State
v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999); Blankenship, 858 S.W.2d at 904.

        In Boykin v. Alabama, the United States Supreme Court held that an accused’s guilty plea
must be voluntarily, knowingly, and understandingly entered before a conviction resting upon a
guilty plea may comply with due process. 395 U.S. 238 (1969). In Boykin, the Supreme Court
stated that a guilty plea constituted a waiver of various rights and that it would not presume a waiver
of the following federal constitutional rights from a silent record: (1) the privilege against
compulsory self-incrimination; (2) the right to trial by jury; and (3) the right to confront one’s
accusers. Id. at 242. Thus, Boykin placed a premium on a showing in the record of a sufficient
waiver of these specified rights.

         Exercising “its supervisory power to [e]nsure that the courts of this State afford fairness and
justice to defendants in criminal cases,” our Supreme Court developed stricter standards than those
mandated by the Boykin decision in State v. Mackey, 553 S.W.2d 337, 340-41 (Tenn. 1977),
superseded on other grounds by Tenn. R. Crim. P. 37(b) & Tenn. R. App. P. 3(b). Mackey requires
that trial judges accepting pleas of guilty in criminal cases substantially adhere to the following
procedure:

       [T]he court must address the defendant personally in open court and inform him of,
       and determine that he understands, the following:
       (1) The nature of the charge to which the plea is offered, and the mandatory
       minimum penalty provided by law, if any, and the maximum possible penalty
       provided by law; and, if applicable, that a different or additional punishment may
       result by reason of his prior convictions or other factors which may be established in
       the present action after the entry of his plea; and
       (2) If the defendant is not represented by an attorney, that he has a right to be
       represented by an attorney at every stage of the proceeding against him, and if
       necessary, one will be appointed to represent him; and
       (3) That he has a right to plead not guilty or to persist in that plea if it has already
       been made, and, that he has the right to be tried by a jury and at that trial has the right
       to the assistance of counsel, the right to confront and cross-examine witnesses against
       him, and the right not to be compelled to incriminate himself; and
       (4) That if he pleads guilty, there will not be a further trial of any kind except to
       determine the sentence so that by pleading guilty he waives the right to a trial; and
       (5) That if he pleads guilty, the court or the state may ask him questions about the
       offense to which he has pleaded, and if he answers these questions under oath, on the


                                                  -7-
       record, and in the presence of counsel, his answers may later be used against him in
       a prosecution for perjury or false statement, and, further, that, upon the sentencing
       hearing, evidence of any prior convictions may be presented to the judge or jury for
       their consideration in determining punishment.

Id. at 341. The Mackey court also stated:

       The court shall not accept a plea of guilty without first, by addressing the defendant
       personally in open court, determining that the plea is voluntary and not the result of
       force or threats or of promises apart from a plea agreement. The court shall also
       inquire as to whether the defendant’s willingness to plead guilty results from prior
       discussions between the District Attorney General and the defendant or his attorney.

Id. The Mackey requirements have been adopted into Rule 11 of the Tennessee Rules of Criminal
Procedure.

       However, some of the mandated Mackey advice is not required by Boykin, but represents a
supervisory pronouncement of the Court. State v. Prince, 781 S.W.2d 846, 852-53 (Tenn. 1989).
“[A]ny other requirement of Mackey in excess of Boykin is not based upon any constitutional
provision, federal or state. It follows, that any omissions, not required in Boykin may be relied upon
on direct appeal in appropriate cases but such omissions have no validity on the first or any
subsequent post-conviction proceeding.” Id. at 853. Courts of this state have consistently held that
Mackey advice which is not required by Boykin is not constitutionally based and, therefore, is not
cognizable in a petition for post-conviction relief. See, e.g., Johnson v. State, 834 S.W.2d 922, 925
(Tenn. 1992); State v. Neal, 810 S.W.2d 131 (Tenn. 1991), overruled in part on other grounds by
Blankenship, 858 S.W.2d at 902; Prince, 781 S.W.2d at 853; Hicks v. State, 983 S.W.2d 240, 247
n.10 (Tenn. Crim. App. 1998); Sneed v. State, 942 S.W.2d 567, 568-69 (Tenn. Crim. App. 1996);
Bryan v. State, 848 S.W.2d 72, 75 (Tenn. Crim. App. 1992); Teague v. State, 789 S.W.2d 916, 917
(Tenn. Crim. App. 1990).

         The colloquy between the petitioner and the trial court at the plea hearing indicates that the
trial court asked the petitioner if the plea was freely and voluntarily made; if he had been informed
of the elements of the crime, burden of proof, and defenses; and if he understood: (1) the nature of
the charges against him; (2) that by pleading guilty he was giving up the right to a trial by jury; (3)
that by pleading guilty he was giving up the right to confront witnesses; and (4) that by pleading
guilty he was giving up the right to self-incrimination. In other words, the trial court satisfied the
requirements of Boykin. Moreover, the Tennessee Supreme Court determined in Jaco v. State, 120
S.W.3d 828 (Tenn. 2003), that a guilty plea was not involuntary where the trial court failed to inform
the defendant of sex offender certification requirements but the defendant was properly informed as
to his release eligibility date because the defendant did not receive inaccurate information as to his
parole eligibility, rather the defendant was not informed of the criteria that guided the determination
of whether he would actually be released upon arriving at his parole release eligibility date. The
petitioner herein was likewise properly informed that he would be eligible for parole after service


                                                 -8-
of thirty-five percent of his sentence and testified at the post-conviction hearing that he was armed
with that knowledge prior to the guilty plea. The petitioner complained that his plea agreement
failed to stipulate that his parole eligibility was contingent upon his completion of the mandatory
sexual offender program and certification prior to parole. “Neither the federal or state constitution
requires that [the defendant] be informed of all possible factors that could affect the parole board’s
decision.” Id. at 833. The petitioner was correctly informed as to his release eligibility date.
Consequently, the petitioner has failed to prove that his guilty plea was not knowing or voluntary.
This issue is without merit.

                                            Conclusion

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




                                               ___________________________________
                                               JERRY L. SMITH, JUDGE




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