        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs April 13, 2010

                   JAMIE BAILEY v. STATE OF TENNESSEE

                     Appeal from the Circuit Court for Dyer County
                           No. C02-73     Lee Moore, Judge


                 No. W2008-00983-CCA-R3-PC - Filed April 29, 2010


The petitioner, Jamie Bailey, appeals the denial of his petition for post-conviction relief from
his three first degree murder convictions, arguing that he was denied the effective assistance
of counsel and that his guilty pleas were therefore unknowing and involuntary. Following
our review, we affirm the denial of the petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which JOHN E VERETT W ILLIAMS
and N ORMA M CG EE O GLE, JJ., joined.

Magan N. White, Jackson, Tennessee (on appeal); and Martin Howie, Dyersburg, Tennessee
(at hearing), for the appellant, Jamie Bailey.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark E. Davidson, Senior Counsel;
and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                            FACTS

        In April 2002, the petitioner was indicted by the Dyer County Grand Jury for three
counts of first degree premeditated murder based on his actions of October 9, 2001, in which
he shot and killed his estranged girlfriend and the two men with whom he believed she had
had affairs, and then shot himself in the head when confronted by police. Following the trial
court’s ruling that he was competent to stand trial, on April 15, 2004, the petitioner entered
best interest guilty pleas to all three counts of the indictment in exchange for three concurrent
life sentences. The prosecutor recited the following factual basis for the pleas at the guilty
plea hearing:
        The State contends, Your Honor, that if the matter had proceeded to
trial that the proof would be that on October 9, 2001 at approximately 4:31 in
the morning law enforcement officers were called to the residence of Ms. Eva
King who was the mother of Mr. Gary Bizzle where Mr. Bizzle also resided;
that Mr. Bizzle had been shot. Mr. Bizzle was a paraplegic, Your Honor, and
was . . . in a bed at that time. That when the first responders arrived at the
scene Mr. Bizzle had not expired; was mortally wounded, however, Your
Honor. That Mr. Bizzle did tell the first responders and also the deputies that
arrived at the scene prior to his death that he had been shot by the [petitioner].
Also, . . . the proof would be that Mr. Bizzle’s sister, Margaret Presslar, had
spoken . . . to [the petitioner] some four days earlier . . . and that [the
petitioner] at that point had made the statement that he would kill Melissa
Clark who . . . had cohabited with [him] if she did not come back to him.

       Approximately 8:33 that morning, approximately four hours later, Your
Honor, law enforcement officers did go to the home of Arlyn Cryts after Mr.
Cryts had been discovered in his home by his son, shot and killed in his home,
Your Honor. The proof would also be that Melissa Clark had been at the home
of Danny Cryts, Arlyn Cryts’ son which is on the same property, the night
before these murders took place.

       And then at approximately 9:35 a.m. that morning, Your Honor, the
officers went to the home of Melissa Clark concerned about her safety since
they’d found the two other murder victims. Upon entering her home did find
Ms. Clark’s body on the couch in her home where she had been shot and killed
also, Your Honor.

        At approximately 2:30 p.m. that afternoon [s]heriff’s deputies received
a call that a gentleman was attempting to paint a car. The officers responded
to the scene; discovered the individual to be [the petitioner]. Upon attempting
to take [the petitioner] into custody [the petitioner] did take a weapon which
he had with him, a pistol, and did shoot himself in the head, Your Honor. [The
petitioner] was transported to the hospital [and] then did recover from his
wounds.

          The weapon that was recovered from [the petitioner] that he had used
. . . in shooting himself. . . . The ballistics reports do show that that weapon
fired the shots that killed all three individuals in addition to being the weapon
with which [the petitioner] shot himself.



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       As part of his guilty pleas, the petitioner attempted to reserve as a certified question
of law whether the trial court was correct in its competency determination. This court,
however, dismissed the appeal on the basis that the attempted certified question of law was
not dispositive of the case, and our supreme court denied the petitioner’s application for
permission to appeal. See State v. Bailey, 213 S.W.3d 907, 912 (Tenn. Crim. App.), perm.
to appeal denied (Tenn. 2006).

       The petitioner filed a pro se petition for post-conviction relief on May 17, 2007,
followed by an amended petition on February 20, 2008, after the appointment of post-
conviction counsel. In the pro se and amended petitions, the petitioner raised the claim of
ineffective assistance of trial counsel. Specifically, he alleged that counsel provided
ineffective assistance by not attending the petitioner’s interview with Tennessee Bureau of
Investigation (“TBI”) officers and not requesting an audiotape of the interview, not
requesting a preliminary hearing, and not moving for a change in venue. At the post-
conviction evidentiary hearing, the petitioner added as an additional claim that he would not
have pled guilty had trial counsel not assured him that he would succeed with his certified
question of law.

       At the evidentiary hearing, the petitioner testified that his interview with the TBI
officers occurred at the Dyer County Jail within a few months of his arrest and after counsel
had already been appointed to represent him. Trial counsel, however, was not present for the
interview and, as far as he knew, never requested a copy of the audiotape of the interview or
a transcript of the tape. The petitioner said he thought he should have had a preliminary
hearing, but counsel never requested one. In addition, he never saw any discovery in the
case, which resulted in his not learning of the State’s evidence until approximately thirty
months after his arrest when counsel came to talk to him about his guilty pleas. The
petitioner stated that he asked counsel to file a motion for change of venue, but he did not
know whether counsel ever did so.

        The petitioner further testified that counsel told him that he was going to file five
petitions in his behalf, including a motion to dismiss, but when the petitioner was taken to
court, trial counsel was not present. The petitioner said that the trial court reset the case after
informing him that counsel was in juvenile court on another matter. The petitioner stated that
because trial counsel’s failure to appear made him angry, he wrote counsel a letter telling him
to prepare the paperwork for his guilty pleas and to “send [him] on to prison.” Two days
later, which was on a Monday, counsel and his colleague came to see him and at that time
informed him of the State’s evidence in the case. He then entered his pleas the following
Thursday and the next day was sent to prison.

       The petitioner agreed that the main issue in his case involved his competency. He said
that he was evaluated by the Middle Tennessee Mental Health Institute, which found him

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incompetent to stand trial due to retrograde amnesia. However, at the hearing that followed,
the trial court found him to be competent. He stated that trial counsel, when discussing the
certified question of law, “more or less told [him] that he believe[d] the appellate court would
go in [his] favor.” He said that had it not been for counsel’s assurance that the issue would
be resolved in his favor, he would not have pled guilty.

        On cross-examination, the petitioner testified that he recalled counsel’s having filed
a motion to dismiss almost immediately after the indictment was returned. He also recalled
that he was present at that hearing, but he could not recall that the evidence against him was
discussed at that time. He said that counsel asked him why he had not informed counsel
about his interview with the TBI, and he responded that he had not known that they were
coming. Although he expressed his belief that counsel’s failure to be present hurt his case,
he acknowledged that he had, in the interview, disavowed any knowledge of the crimes.

        The petitioner further acknowledged that at the time he entered his pleas he
understood the charges against him, the State’s evidence in the case, the possible penalties
for the crimes, and the sentences he would receive for pleading guilty. He also conceded that
he had assured the trial court that he understood what he was doing in pleading guilty, was
satisfied with counsel’s representation, and realized that he could be unsuccessful with his
certified question of law. He explained, however, that trial counsel had told him that “more
than likely” the certified question of law would be decided in his favor.

         Trial counsel, who was appointed to represent the petitioner while the case was still
in general sessions court, testified that he had been practicing law in Tennessee for fifteen
years and employed by the Public Defender’s Office for the Twenty-Ninth Judicial District
for approximately thirteen years, during which time he had been involved in numerous jury
trials, including homicide cases. He said that one of the first things he did was to request a
mental evaluation of the petitioner. The petitioner was transferred to the Middle Tennessee
Mental Health Institute prior to the return of the indictment, and the letter he received from
the Institute stated that an insanity defense could not be supported but that the petitioner was
incompetent to stand trial due to his amnesia. Based on those results, and the fact that the
district attorney’s office had an open file policy on discovery, he decided not to request a
preliminary hearing in general sessions court but to instead concentrate his efforts on the
competency hearing in the trial court.

        Trial counsel testified that when he learned of the petitioner’s interview with the TBI,
he informed the prosecutor that he did not think it would be appropriate for the State to use
any statement the petitioner made after the appointment of counsel. Overall, he believed that
the State had “pretty good proof” in the case, including the dying declaration by one of the
victims, an eyewitness who saw the petitioner leaving the scene of one of the crimes, and the
ballistics evidence showing that the fatal shots came from the petitioner’s gun. He, therefore,

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was of the opinion that the petitioner would lose at trial.

         Trial counsel testified that he did not discuss the case with the petitioner in great detail
because, in light of the diagnosis of amnesia, he did not want to risk giving the petitioner any
false memories. He said he filed an unsuccessful motion to dismiss the case based on the
petitioner’s incompetency and also sought an interlocutory appeal of the trial court’s
competency ruling, but it was denied. In addition, he had a number of motions prepared,
including one for change in venue, which he indicated he would have filed had the case gone
to trial.

       Trial counsel testified that he felt fairly confident of his position on the competency
issue and indicated as much to the petitioner, but that the petitioner’s physicians did a “one
eighty” at the hearing, testifying that the petitioner was now competent to stand trial. He said
he told the petitioner that he thought the appellate court would consider the issue, but he
never told him that he was going to win on appeal. He also said that although no death
notices were filed in the case, it was still a possibility at the time the petitioner entered his
pleas. On cross-examination, trial counsel acknowledged that had the competency issue been
raised on direct appeal following conviction at trial, the appellate court would have likely
reached the merits of the issue.

       On April 8, 2008, the post-conviction court entered a written order denying the
petition, finding that the petitioner had failed to meet his burden of showing that he was
denied the effective assistance of counsel.

                                           ANALYSIS

                           I. Post-Conviction Standard of Review

        Post-conviction relief “shall be granted when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee
or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103 (2006). The
petitioner bears the burden of proving factual allegations by clear and convincing evidence.
Id. § 40-30-110(f). When an evidentiary hearing is held in the post-conviction setting, the
findings of fact made by the court are conclusive on appeal unless the evidence
preponderates against them. See Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006). When
reviewing factual issues, the appellate court will not reweigh the evidence and will instead
defer to the trial court’s findings as to the credibility of witnesses or the weight of their
testimony. Id. However, review of a trial court’s application of the law to the facts of the
case is de novo, with no presumption of correctness. See Ruff v. State, 978 S.W.2d 95, 96
(Tenn. 1998). The issue of ineffective assistance of counsel, which presents mixed questions
of fact and law, is reviewed de novo, with a presumption of correctness given only to the

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post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn.
2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

                            II. Ineffective Assistance of Counsel

       To establish a claim of ineffective assistance of counsel, the petitioner has the burden
to show both that trial counsel’s performance was deficient and that counsel’s deficient
performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S.
668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting
that same standard for determining ineffective assistance of counsel that is applied in federal
cases also applies in Tennessee). The Strickland standard is a two-prong test:

       First, the defendant must show that counsel’s performance was deficient. This
       requires showing that counsel made errors so serious that counsel was not
       functioning as the “counsel” guaranteed the defendant by the Sixth
       Amendment. Second, the defendant must show that the deficient performance
       prejudiced the defense. This requires showing that counsel’s errors were so
       serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687.

       The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
The prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a
“probability sufficient to undermine confidence in the outcome,” that “but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 694. In the context of a guilty plea, the petitioner must show a reasonable
probability that were it not for the deficiencies in counsel’s representation, he would not have
pled guilty but would instead have insisted on proceeding to trial. Hill v. Lockhart, 474 U.S.
52, 59 (1985); House v. State, 44 S.W.3d 508, 516 (Tenn. 2001).

                         III. Allegations of Ineffective Assistance

       On appeal, the petitioner contends that trial counsel was ineffective for not attending
his interview with the TBI or seeking a recording or transcript of the interview, not
requesting a preliminary hearing, not moving for a change in venue, and improperly advising
him he would be successful on appeal with respect to the competency issue he attempted to
preserve in the certified question of law.



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                              A. Failure to Attend Interview

        The petitioner first argues that trial counsel was deficient for failing to attend his
interview with the TBI or to obtain a recording or transcript of that interview and that “such
deficiency resulted in prejudice.” Both trial counsel and the petitioner, however, testified
that counsel was not informed of the interview until after it had already taken place. Trial
counsel also explained that he informed the prosecutor, after learning that the interview had
occurred, that he did not think it would be appropriate for the State to introduce any
statement obtained from the petitioner after the appointment of counsel. Implicit in counsel’s
testimony is that he would have taken steps to suppress the statement had the need arisen.
Notably, the petitioner did not testify that he would not have pled guilty had counsel been
present or obtained a recording of the interview, and he admitted that his “statement” had
consisted of nothing more than his disavowal of any knowledge of the crimes. Thus, the
record supports the post-conviction court’s finding that the petitioner failed to show either
deficiency or resulting prejudice with respect to counsel’s failure to attend or obtain a copy
of the interview. We conclude, therefore, that the petitioner is not entitled to relief on the
basis of this claim.

                      B. Failure to Request a Preliminary Hearing

        The petitioner next argues that trial counsel was deficient for not requesting a
preliminary hearing in general sessions court, which resulted in the petitioner’s “enter[ing]
a plea without knowing the evidence against him.” The petitioner, however, acknowledged
in his testimony that he was aware of the evidence against him at the time he entered his
guilty pleas. Moreover, trial counsel offered a reasonable explanation for his decision not
to pursue a preliminary hearing, testifying that because the State had an open file discovery
policy and the results of the petitioner’s mental evaluation indicated that he was incompetent
to stand trial due to his amnesia surrounding the events, he chose to concentrate on the
competency hearing in criminal court. The petitioner has not shown that counsel was
deficient for not requesting the preliminary hearing, or that he was prejudiced as a result. We
conclude, therefore, that the petitioner is not entitled to relief on the basis of this claim.

                     C. Failure to File Motion for Change in Venue

        The petitioner next argues that trial counsel was deficient for failing to file a motion
for change in venue and that such deficiency prejudiced his case because “[a]s he maintains
in the record, he would not have entered the plea if he had known that the trial would have
been held in another county.”

     We note that the petitioner never testified that he would not have pled guilty had he
known that the trial would be held in another county, but instead only that he requested that

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trial counsel file a motion for change in venue and was not sure if counsel ever did so.
Moreover, as the State points out, no proof was presented at the evidentiary hearing that there
was any need for a change in venue or that the motion would have been granted if filed.
Furthermore, trial counsel testified that he had started a motion for change in venue and
indicated that he would have filed it along with other motions had the petitioner not decided
to plead guilty. Thus, the petitioner has not met his burden of establishing either a deficiency
in counsel’s representation or prejudice to his case. We conclude, therefore, that the
petitioner is not entitled to relief on the basis of this claim.

         D. Failure to Properly Advise Petitioner on Certified Question of Law

       Lastly, the petitioner argues that trial counsel was deficient for assuring him that the
appellate court would address the competency issue and for advising him that he felt fairly
confident that the court would rule in his favor. The petitioner asserts that were it not for
these statements, he would not have pled guilty.

        The petitioner has not, however, met his burden of showing that counsel was deficient
in his advice or that counsel’s alleged deficiency in this respect caused him to plead guilty.
At the evidentiary hearing, trial counsel explained that he had researched the issue and
believed he had strong case law in support of his position, which made him feel fairly
confident with respect to the competency issue. However, although he told the petitioner he
thought he could have the issue heard by the appellate court, he never assured him that he
would be successful in his appeal. Trial counsel’s testimony on this latter point was
corroborated by the petitioner, who testified that counsel “more or less told [him] that he
believe[d] the appellate court would go in [his] favor,” and that the issue would “more than
likely” go his way. The petitioner also acknowledged that the trial court informed him at the
guilty plea hearing that he might not be successful with his certified question of law and that
he would be unable to withdraw his guilty pleas if that were the case.

         We conclude, therefore, that the petitioner is not entitled to relief on the basis of this
claim.

                          IV. Voluntary and Knowing Guilty Pleas

       In an interrelated argument, the petitioner argues that counsel’s deficiencies resulted
in involuntary and unknowing guilty pleas because at the time of their entry, he believed that
the competency issue would be addressed by this court as a certified question of law and was
unaware of what evidence the State intended to present at trial, the effect that his statement
would have on his case, and where his trial would be conducted.

         When analyzing a guilty plea, we look to the federal standard announced in Boykin

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v. Alabama, 395 U.S. 238 (1969), and the state standard set out in State v. Mackey, 553
S.W.2d 337 (Tenn. 1977). State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999). In Boykin,
the United States Supreme Court held that there must be an affirmative showing in the trial
court that a guilty plea was voluntarily and knowingly given before it can be accepted. 395
U.S. at 242. Similarly, our Tennessee Supreme Court in Mackey required an affirmative
showing of a voluntary and knowledgeable guilty plea, namely, that the defendant has been
made aware of the significant consequences of such a plea. Pettus, 986 S.W.2d at 542.

       A plea is not “voluntary” if it results from ignorance, misunderstanding, coercion,
inducements, or threats. Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The trial
court must determine if the guilty plea is “knowing” by questioning the defendant to make
sure he or she fully understands the plea and its consequences. Pettus, 986 S.W.2d at 542;
Blankenship, 858 S.W.2d at 904. Because the plea must represent a voluntary and intelligent
choice among the alternatives available to the defendant, the trial court may look at a number
of circumstantial factors in making this determination. Blankenship, 858 S.W.2d at 904.
These factors include: (1) the defendant’s relative intelligence; (2) his familiarity with
criminal proceedings; (3) whether he was represented by competent counsel and had the
opportunity to confer with counsel about alternatives; (4) the advice of counsel and the court
about the charges against him and the penalty to be imposed; and (5) the defendant’s reasons
for pleading guilty, including the desire to avoid a greater penalty in a jury trial. Id. at
904-05.

       The transcript of the guilty plea hearing reveals that the trial court appropriately
informed the petitioner of his constitutional rights and of the specific rights he was waiving
by pleading guilty. The petitioner assured the trial court that his counsel had thoroughly
discussed the plea agreement with him, that he fully understood its terms and the
constitutional rights he was waiving by entering his plea, and that he was not under the
influence of alcohol or any drugs other than his prescribed medication. Upon further
questioning by the trial court, he stated that his medication did not affect his ability to
understand the proceedings. He also assured the court that counsel had answered all his
questions, that he was completely satisfied with counsel’s representation, and that he
understood that the appellate courts might reject his certified question of law or rule against
him on the issue and, if that happened, he would be unable to withdraw his guilty pleas.

      We conclude, therefore, that the record shows that the petitioner’s guilty pleas were
knowingly, intelligently, and voluntarily entered.

                                       CONCLUSION

      Based on our review, we conclude that the petitioner has not met his burden of
showing that trial counsel was ineffective in his representation or that the petitioner’s guilty

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pleas were unknowing and involuntary. Accordingly, we affirm the denial of the petition for
post-conviction relief.

                                                  _________________________________
                                                  ALAN E. GLENN, JUDGE




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