        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs July 12, 2011

                  JASON KAYSER v. STATE OF TENNESSEE

                    Appeal from the Weakley County Circuit Court
                    No. 2010-CR35    William B. Acree, Jr., Judge




              No. W2010-02234-CCA-R3-PC - Filed September 26, 2011


The Petitioner, Jason Kayser, appeals the Weakley County Circuit Court’s denial of post-
conviction relief from his conviction upon his guilty plea for second degree murder, a Class
A felony, for which he is serving seventeen years as a violent offender. The Petitioner
contends that he did not receive the effective assistance of counsel in connection with his
guilty plea and that his plea was not knowingly, voluntarily, and intelligently entered. We
affirm the judgment of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which T HOMAS T. W OODALL
and N ORMA M CG EE O GLE, JJ., joined.

Danny H. Goodman, Tiptonville, Tennessee, for the appellant, Jason Kayser.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Tommy A. Thomas, District Attorney General; and Kevin McAlpin, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

       According to the transcript of the guilty plea hearing:

                      The facts of the case are that on or about April the 11th,
              2008, [the Petitioner] was living with the victim, April Kayser.
              She was 30 years of age. The evening before that, he hit [the
              victim], according to his statement, that there was an argument,
              that he was accusing [the victim] of seeing another man and that
              he hit her several times about the body, also about the head.
              There is no evidence of a weapon being used. Perhaps he
              kicked her; it’s not really known, but he struck her, he did strike
              her several times. Again, according to his statement, that she
              went to bed late that night or early the next morning. At the
              time he thought that there were no life-threatening injuries;
              according to his statement, he had nothing that indicated they
              were.

                     The next afternoon, sometime the next afternoon, he
              realized, I think maybe through conversations with his – their
              children and also checking on her, that she was not responsive.
               He did take her to the Volunteer General Hospital. From there
              she was sent to – by Air Evac to Vanderbilt Hospital when it
              was determined she had a closed-head injury. Again, at that
              time, she was unresponsive. She was left on life support for six
              days, where it was determined from the doctors that she was not
              going to recover, life support was discontinued, and she died on
              April the 17th of 2008.

                     The autopsy was performed on the following day, April
              18, 2008 from the Tennessee State Medical Examiner’s Office.
              Autopsy indicates that she had multiple bruises all over her
              body, some old, some new, from – literally from the bottom of
              her legs up to the top of her head. The cause of death was
              determined in the autopsy as being multiple blunt force injuries.
              There were – the primary injury was to the brain where there
              was a hemorrhage at the back part of the brain that caused –
              there was already severe bleeding on the brain, that being the
              cause of death.

                     Again, the [Petitioner] admitted to the cause of the
              injuries. Also, he admitted during his statement that he had
              struck her in the past and, therefore, pursuant to the second
              degree murder statute he did knowingly kill [the victim].

       The transcript of the plea hearing reflects that the Petitioner affirmed his
understanding of the nature of the charge, the range of punishment, that the sentence would
not include the possibility of early parole but would allow for early release for “good time,”
and the possible fine. The Petitioner acknowledged his understanding that he was waiving
his rights to a jury trial and an appeal by pleading guilty, to confront and cross-examine

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witnesses, and not to incriminate himself. The Petitioner also affirmed that he understood
the conviction could be used to enhance his punishment for any later conviction. The
Petitioner agreed that the facts of the crime stated by the district attorney were true. He
professed that his attorney had advised him about the guilty plea and that he was satisfied
with trial counsel’s representation. The trial court found that the Petitioner’s guilty plea was
made “voluntarily, intelligently and freely,” accepted the plea, entered the judgment of
conviction, and sentenced the Petitioner accordingly.

       The Petitioner filed a pro se post-conviction petition alleging that trial counsel was
ineffective and that he did not enter a knowing, voluntary, and understanding guilty plea.
Counsel was appointed. The petition was amended, but the issues remained the same.

        At the post-conviction hearing, the Petitioner testified that for about a year, he was
represented by appointed counsel in the conviction proceedings. His family retained trial
counsel, the attorney whose assistance he alleged was ineffective, about two months before
he entered his guilty plea. He said that counsel visited him about four times but never
discussed the facts of the case or possible witnesses. He said counsel discussed plea offers
that had been conveyed from the State. He did not recall the crime that was the subject of
the plea offers and said he and counsel never discussed how second degree murder was
defined. He said he did not know before entering his plea that each element of a crime must
be proven. He said that he and counsel discussed the victim’s psychiatric history and that
trial counsel advised him that the information “would have to come out” during a trial.

        With respect to the elements of second degree murder, the Petitioner denied that he
knowingly killed the victim. He did not recall whether he discussed this with trial counsel.
He denied telling counsel that he knowingly killed the victim. He said he would not have
entered a plea if he had known he was admitting a knowing killing. He also denied that he
unlawfully distributed a Schedule I or Schedule II drug that caused the victim’s death and
that he ever discussed this with counsel. He said the cause of the victim’s death was blunt
force trauma to the head. He said he had never been charged with assaulting the victim, nor
had he engaged in domestic abuse toward her. He acknowledged, “I did slap her one day,”
but said it was the only time he ever hit the victim. He denied engaging in multiple incidents
of domestic abuse, assault, or infliction of bodily injury to the victim. He said he and trial
counsel never discussed this element of second degree murder, even though it was part of the
charged offense. He said counsel never asked him if he had hit the victim or had been
convicted of domestic assault. He denied knowing when he entered the plea that he was
admitting multiple incidents of domestic abuse and said he only learned he had done this on
the day of the post-conviction hearing. He again denied that he would have pled guilty if he
had known the elements of the offense. He said he did not remember the prosecutor’s



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statement on the record at the guilty plea hearing that he admitted causing the victim’s
injuries and striking her in the past.

        The Petitioner testified that he did not remember if there were witnesses he wanted
trial counsel to interview. He said that he asked counsel to investigate the victim’s
psychiatric records but that counsel failed to do so. He said he thought the records would
have helped the defense because the victim had been diagnosed with bipolar disorder and
became abusive. He said this evidence was never provided to the district attorney’s office.

        The Petitioner testified that he was taking Zoloft, Depakote, and Buspar while he was
in jail and when he entered his guilty plea. He said he began the medications two to three
months after he was jailed. He said he had not gone to a medication management
appointment for about six months because the jail “cut it off” and did not want to pay for it.
He claimed he was given a reduced amount of Depakote but did not know how long he
received the improper dosage. He said Depakote was a mood stabilizer but was primarily
used for seizures. He said that when he was transferred to a Department of Correction
facility, a blood test revealed that he was not receiving a therapeutic level of Depakote. He
attributed his “trouble thinking clearly and . . . mind just racing constantly” to the low
dosage. He said that after the blood test, his dosage was increased from 250 milligrams to
1500 milligrams per day. He said that he was still taking 1500 milligrams per day and that
he had taken 2000 milligrams at one point. He said that the medication “slow[ed] everything
down to where I can comprehend.” He said that when he was not taking it, his mind raced,
he could not accomplish anything, and he could not concentrate when someone spoke to him.
He said this was his state of mind when he entered his guilty plea.

        On cross-examination, the Petitioner was asked whether he understood at the guilty
plea hearing the rights he was waiving and responded, “To an extent, I think I did.” He said
he was not aware that multiple assaults or acts of domestic violence could support a finding
of a knowing killing. He said that he slapped the victim one time weeks before her death.
He said that there were “several occasions where I had to hold her down” and that they were
trying to get help. When asked about the statement in his post-conviction petition that he and
the victim sometimes fought, he said that most of the time he held the victim to keep her
from hurting either of them.

       On redirect examination, the Petitioner testified that the injuries with bruising and
scratching referred to in his post-conviction petition were not from his assaulting the victim.
He said the victim would get upset and he would only defend himself to keep her from hitting
him. He denied that he hit the victim other than slapping her once and that there were
multiple incidents of domestic assault.



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        Trial counsel testified as a State’s witness that the Petitioner’s family retained him and
that he represented the Petitioner from December 17, 2008, until June 25, 2009. He said he
discussed the element of second degree murder involving the inference of a knowing killing
from multiple incidents of abuse. He said that he provided the discovery materials to the
Petitioner on December 31, 2008, and that they discussed that the witnesses would likely
testify in accord with their statements about prior abuse. He believed he told the Petitioner
that the problem with the defense was the evidence of prior abuse. He said the Petitioner told
him multiple times that the Petitioner wanted the plea offer to involve a fifteen-year sentence.
Trial counsel said that at first the offer was for a nineteen-year sentence. He said that when
the State offered a seventeen-year sentence, the Defendant accepted the plea bargain.

       Counsel testified that the Petitioner’s testimony was inaccurate regarding a lack of
discussions about the facts of the case or potential defense witnesses. He said he told the
Petitioner that presenting defense witnesses would be important. He said he and the
Petitioner reviewed the facts, the statement, and the sentence length and service requirement.
He said he never saw the Petitioner have difficulty understanding their communications. He
said that he thoroughly reviewed the Petitioner’s rights that were waived by the guilty plea
and that he thought the Petitioner understood. He said their conversations “almost always
boiled down to fifteen years.”

       Counsel testified that the Petitioner claimed he was not getting the correct medication
dosage. Counsel said he spoke with jail personnel and was told that the jail personnel would
investigate the claim but that they believed the dosage was proper. He said the Petitioner’s
parents called him around the same time as the Petitioner’s complaint. He said the Petitioner
did not express concern about the medication dosage again. Trial counsel said his file
reflected that he went to the jail to visit the Petitioner about six times and that another lawyer
from his office went one other time.

      Counsel testified that before he was retained, the Petitioner had a mental evaluation
and was determined to be competent to stand trial. He said he filed a motion for change of
venue due to pretrial publicity that was denied.

        On cross-examination, trial counsel testified that there were statements from the
victim’s coworkers about the victim’s claims of prior abuse. He did not recall any
eyewitnesses to the prior abuse. He said he explained to the Petitioner the possibility of a
hearsay exception for the victim’s statements. He acknowledged that the other lawyer from
his office who visited the Petitioner at the jail once was the attorney present in court when
the Petitioner entered his plea. He said, however, he had discussed everything with the
Petitioner beforehand.



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        Counsel admitted that he would be concerned about the Petitioner’s ability to enter
a guilty plea if the Petitioner had expressed concern about the medication dosage. He said
he remembered reviewing the report of the Petitioner’s mental evaluation. The transcript of
the guilty plea and the report of the mental evaluation were received as exhibits.

        The trial court filed an order in which it found “no competent evidence” that the
Petitioner’s medication dosage was incorrect or that the medication affected the Petitioner’s
ability to understand and accept the guilty plea. The order also states the court’s finding that
the transcript of the guilty plea hearing demonstrated that the Petitioner knowingly and
understandingly entered his plea. The court also found “no evidence” that trial counsel failed
to investigate the case properly. The trial court’s findings implicitly reflect that the trial court
accredited trial counsel’s testimony and discredited the Petitioner’s conflicting testimony.
The trial court denied relief. This appeal followed.

        The burden in a post-conviction proceeding is on the petitioner to prove his grounds
for relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006). 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, 456-57 (Tenn.
2001). 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.
Post-conviction relief may only be given if a conviction or sentence is void or voidable
because of a violation of a constitutional right. T.C.A. § 40-30-103 (2006).

                                                 I

        The Petitioner contends that his guilty pleas were not knowingly, voluntarily, and
intelligently entered because he was not given the proper dosage of his medication and
because he did not understand the elements of the offense. The State counters that the trial
court correctly found that the Petitioner failed to prove this claim. We agree with the State.

       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.” North Carolina v. Alford, 400 U.S. 25, 31 (1970). The court reviewing the
voluntariness of a guilty plea must look to the totality of the circumstances. See State v.
Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995). The circumstances include:

               the relative intelligence of the defendant; the degree of his
               familiarity with criminal proceedings; whether he was

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              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) (citing Caudill v. Jago, 747 F.2d
1046, 1052 (6th Cir. 1984)). A plea resulting from ignorance, misunderstanding, coercion,
inducement, or threats is not “voluntary.” Blankenship, 858 S.W.2d at 904.

       The record reflects that before the guilty plea, trial counsel explained the elements of
the offense to the Petitioner and discussed the facts and defense strategy, and that their
conversations always returned to the Petitioner’s desire for a fifteen-year sentence. The
transcript of the guilty plea hearing reflects that the Petitioner acknowledged his
understanding of the offense, his rights, his satisfaction with trial counsel, and his desire to
plead guilty. At that hearing, the Petitioner also agreed that the facts recited by the State
were accurate. In denying post-conviction relief, the trial court found that the Petitioner’s
testimony was not credible, and the Petitioner did not present any other proof to support his
claim that he was improperly medicated or that the medication dosage he was given
prevented him from entering a knowing, voluntary, and intelligent guilty plea. The record
does not preponderate against the trial court’s determination that the Petitioner understood
the plea agreement and that he entered a knowing, voluntary, and intelligent guilty plea. The
Petitioner is not entitled to relief.

                                               II

       The Petitioner also contends that he did not receive the effective assistance of counsel
because trial counsel did not adequately advise him about the elements of second degree
murder and did not ensure that the Petitioner was receiving proper medication before
allowing the plea agreement to go forward. The State contends that the trial court did not err
in finding that the Petitioner failed to prove his claim. We agree with the State.

       Under the Sixth Amendment, when a claim of ineffective assistance of counsel is
made, the burden is on the Petitioner to show (1) that counsel’s performance was deficient
and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687
(1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). In other words, a showing
that counsel’s performance fell below a reasonable standard is not enough because the
Petitioner must also show that but for the substandard performance, “the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. The Strickland

                                              -7-
standard has been applied to the right to counsel under article I, section 9 of the Tennessee
Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

        A petitioner will only prevail on a claim of ineffective assistance of counsel after
satisfying both prongs of the Strickland test. Henley v. State, 960 S.W.2d 572, 580 (Tenn.
1997). The performance prong requires a petitioner to show that counsel’s representation fell
below an objective standard of reasonableness or “outside the wide range of professionally
competent assistance.” Strickland, 466 U.S. at 690. The prejudice prong requires a
petitioner to demonstrate that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
A reasonable probability means a “probability sufficient to undermine confidence in the
outcome.” Id. When a petitioner pleads guilty, he must show a reasonable probability that,
but for the errors of his counsel, he would not have pled guilty. See Hill v. Lockhart, 474
U.S. 52, 59 (1985); Adkins v. State, 911 S.W.2d 334, 349 (Tenn. Crim. App. 1994).

        In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that
attorneys should be held to the general standard of whether the services rendered were
“within the range of competence demanded of attorneys in criminal cases.” Further, the court
stated that the range of competence was to be measured by the duties and criteria set forth
in Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974), and United States v.
DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Baxter, 523 S.W.2d at 936. Also, in
reviewing counsel’s conduct, a “fair assessment of attorney 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 Hellard v. State, 629 S.W.2d 4, 9
(Tenn. 1982). Thus, the fact that a particular strategy or tactic failed or even hurt the defense
does not, alone, support a claim of ineffective assistance. Cooper v. State, 847 S.W.2d 521,
528 (Tenn. Crim. App. 1992). Deference is made to trial strategy or tactical choices if they
are informed ones based upon adequate preparation. See DeCoster, 487 F.2d at 1201;
Hellard, 629 S.W.2d at 9.

       As we have discussed, the trial court discredited the Petitioner’s testimony and
accredited the State’s proof that trial counsel advised the Petitioner of the elements of the
offense and consulted with the Petitioner about the case. The record contains proof that trial
counsel had no reason to doubt the Petitioner’s competency to enter the guilty plea, that
counsel was aware of the prior mental evaluation in which the Petitioner was found
competent for trial, and that the Petitioner failed to mention any ongoing issues with his
medication after trial counsel spoke with jail personnel. The trial court’s findings implicitly
discredited the Petitioner’s testimony, and the Petitioner did not present any proof aside from
his own testimony that the medication dosage was incorrect or that the dosage was

                                               -8-
inadequate to address any mental health concerns. We conclude the evidence does not
preponderate against the trial court’s findings. The trial court properly concluded that the
Petitioner failed to prove his ineffective assistance of counsel claim. The Petitioner is not
entitled to relief.

        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.

                                           ____________________________________
                                           JOSEPH M. TIPTON, PRESIDING JUDGE




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