        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                    May 5, 2009 Session

                MICHAEL HOOVER v. STATE OF TENNESSEE

                  Direct Appeal from the Circuit Court for Tipton County
                          No. 5462     Joseph H. Walker, Judge




               No. W2008-01938-CCA-R3-PC - Filed February 16, 2010


Petitioner, Michael Hoover, appeals the post-conviction court’s dismissal of his post-
conviction petition in which Petitioner alleged that his trial counsel rendered ineffective
assistance of counsel in connection with the entry of his plea of guilty, and that his guilty plea
was not voluntarily or knowingly entered. After a thorough review we affirm the judgment
of the post-conviction court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J. C. M CL IN and
C AMILLE R. M CM ULLEN, JJ., joined.

J. Barney Witherington, IV, Covington, Tennessee, for the appellant, Michael Hoover.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; D. Michael Dunavant, District Attorney General; and Tyler Burchyett, Assistant
District Attorney General, for the appellee, the State of Tennessee.

                                           OPINION

I. Background

        Although the indictments are not part of the record on appeal, we glean from the
transcript of the guilty plea submission hearing that Petitioner was indicted in case no. 5462
for first degree premeditated murder; in case no. 5461 for unlawful possession of a weapon
as a felon and possession of a weapon with an altered serial number; and in case no. 5460 for
possession of a Schedule VI controlled substance and possession of drug paraphernalia. On
August 21, 2007, Petitioner entered a plea of nolo contendere to the lesser included offense
of second degree murder, a Class A felony, in case no. 5462. The trial court imposed the
agreed upon sentence of fifteen years as a Range I, standard offender. As part of the
negotiated plea agreement, the State agreed to enter a nolle prosequi to the charges in case
nos. 5461 and 5460.

       At the guilty plea submission hearing, the State offered a factual basis for the plea
which included the potential testimony of multiple witnesses. Chattis Hall, Terry Currin,
Brandon Flowers, Yoshida Taylor, Nakia Johnson, and Joy White were present at a
convenience store on September 12, 2006. These witnesses would testify that Petitioner
drove up to the store, exited his vehicle, and approached the victim, Ivan Williams. The two
men exchanged words, and then Petitioner shot Mr. Williams in the chest. Mr. Williams ran,
with Petitioner in pursuit, and Petitioner shot at Mr. Williams two more times. Petitioner
returned to his car and drove away. Ms. Taylor would testify that Petitioner told Mr.
Williams immediately before the shooting, “You all quit playing me for a weak-ass boy.”
Ms. White would testify that Petitioner was armed with a handgun.

       Kat Smith, Petitioner’s aunt, and Frances Smith, Petitioner’s cousin, would testify that
Petitioner arrived at Ms. Smith’s home on September 12, 2006, and said that he had just shot
Mr. Williams. Petitioner said that Mr. Williams was not “going to brag about what he did
to [Petitioner] no more.” Petitioner had previously told Mr. Smith that he was tired of Mr.
Williams “messing with him,” and that Petitioner would kill Mr. Williams on the birthday
of Mr. Williams’ mother. Petitioner grabbed the keys to Mr. Smith’s vehicle and left.

        Deputy Harold Brown, with the Tipton County Sheriff’s Department, would testify
that he responded to a report of a shooting victim at Baptist Hospital on September 12, 2006.
Petitioner approached Deputy Brown in the hospital’s parking lot and told Deputy Brown
that he had shot the victim. Agent Terry Arney, with the Tennessee Bureau of Investigation
would testify that based on the testing of Petitioner’s gun and a cartridge from the gun,
Petitioner was standing between twelve and thirty-six inches from the victim when he
discharged his weapon. Dr. Mary Goldsby, with the Medical Examiner’s Office would
testify that the cause of the victim’s death was a gunshot wound to the chest.

      Petitioner gave several statements to the investigating officers. In his final statement
on September 14, 2006, Petitioner stated:

       [a]bout a month ago I saw Ivan Williams go – Ivan Williams pistol whipped
       me and shot me – shot at me under the water tower. Since that time people
       have been telling me that Ivan was going to kill me. We were fighting over a
       girl. . . . Sometime after September 1 Little Bubba . . . brought me a chrome
       .9mm I bought from him for fifty dollars. . . . On [September 12, 2006], I went

                                              -2-
       to the Thrifty Mart, and it was dark outside, but I don’t know what time it was.
       I went to get some cigars and cigarettes. Got out of my car . . .. I walked
       towards the store and saw Ivan coming around the yellow car beside the
       building. He had both his hands full. Ivan started walking towards me and
       said, “What’s up, Michael?” I said, “Nothing man. I’m not with it tonight.”
       I was turning, walking toward the store, and I heard a gunshot. I pulled and
       fired my gun at Ivan. It was in my right hand – my right front pocket. I did
       not know I had hit Ivan. Ivan was running across the front of the store. I
       chased Ivan. I thought that Ivan was getting a pistol, so I decided to chase him
       and shoot him. . . . After I fired the gun, it jammed. I tried to shoot again, but
       my gun was jammed. While I was chasing Ivan, I was trying to fire the gun.
       . . . Went back to my car and I left the store.

        Petitioner testified that he was thirty-one years old and had completed the eleventh
grade in high school. Petitioner acknowledged that he had reviewed the terms of his plea
agreement with his trial counsel and understood those terms. The trial court explained the
constitutional rights Petitioner was foregoing by entering a plea of nolo contendere, including
the right to present a defense of self-defense, and Petitioner stated that he understood.
Petitioner also indicated that he understood that he was entering a plea of nolo contendere
to second degree murder with a sentence of fifteen years. Petitioner stated that he was
satisfied with his trial counsel’s assistance during the negotiation of his plea agreement. At
the conclusion of the hearing, the trial court found that Petitioner was voluntarily and
knowingly entering his plea of guilty to the charged offense and accepted Petitioner’s plea.

II. Post-Conviction Hearing

        Petitioner testified that he was initially represented by retained counsel at the
preliminary hearing. After the hearing, the Public Defender’s Officer was appointed to
represent him. Petitioner stated that he told Billy Dan Huggins, an investigator with the
Public Defender’s Office, that he only discharged his weapon once on the night of the
incident, and there were four men shooting at him. Petitioner said that he did not provide his
trial counsel with a list of potential witnesses because all of the witnesses were members of
the victim’s family and would testify against Petitioner. Petitioner acknowledged that the
testimony of his female cousin, Pumpkin Williams, would not have been helpful because Ms.
Williams told the investigating officers that Petitioner “pulled out the gun and shot . . . and
kept on shooting.”

       Petitioner stated that the night that the victim “pistol whipped” him, Petitioner took
out a warrant for the victim’s arrest. Shortly thereafter, the victim stood at the side of
Petitioner’s house and discharged his weapon. Petitioner stated that he signed the paperwork

                                              -3-
to obtain a restraining order. Petitioner said that trial counsel checked on the warrant and
restraining order and discovered that they had not been issued. Petitioner stated that he
wanted to show a jury that he had taken steps to protect himself before the shooting.
Petitioner said that the sheriff would testify on his behalf about his altercation with the
victim.

        Petitioner said that he did not initially want to accept a plea agreement that included
a sentence of fifteen years. Petitioner stated that trial counsel told him that if he served seven
years and did not get into trouble, he would be paroled. Petitioner said that he discovered
after he was incarcerated that he would have to serve one hundred percent of his sentence.
Petitioner stated that he would not have entered a plea of nolo contendere if he had known
that he would not be eligible for parole in seven years. Petitioner said that he could only read
“small words,” and that trial counsel was aware that Petitioner was illiterate. Petitioner said
that his cell mate read the court documents to him.

        Trial counsel testified that he was appointed to serve as co-counsel after the
preliminary hearing. Trial counsel stated that he reviewed Petitioner’s mental health records
to ascertain if there was anything that would impact Petitioner’s understanding of his case.
Trial counsel said that Petitioner had previously been diagnosed with paranoid schizophrenia,
and his I.Q. scores ranged from 68 to 72. Petitioner underwent a mental evaluation prior to
the guilty plea submission hearing and was found competent to assist in his defense. Trial
counsel stated that Petitioner understood their discussions although Petitioner had difficulty
comprehending that an altercation with the victim some time prior to the shooting would not
support Petitioner’s claim of self-defense. Trial counsel said that Petitioner “felt deeply
justified in shooting” the victim. Trial counsel stated that he verified that Petitioner had
taken out a warrant against the victim but the warrant had not been executed at the time of
the shooting.

        Trial counsel stated that he explored the possibility of presenting a defense based on
Petitioner’s self-defense claim. Trial counsel said that bullets not matching Petitioner’s
weapon were found at the scene, but there was no way to ascertain whether the bullets had
been fired at Petitioner or were even fired on the night of the incident. Ultimately, however,
the fact that the victim was unarmed when Petitioner shot him weakened Petitioner’s claim
of self-defense.

        Trial counsel recollected discussing with Petitioner that he would have to serve at
least eighty-five percent of his fifteen-year sentence, or twelve and one-half years. However,
trial counsel told Petitioner that there was no guarantee that he would be paroled at that time.
Trial counsel stated that Petitioner was aware that he could receive a life sentence if
convicted of first degree premeditated murder, but Petitioner focused on the possibility of

                                               -4-
being convicted of a lesser included offense such as voluntary manslaughter. Trial counsel
said that the State refused to agree to a sentence involving less than fifteen years. Trial
counsel stated that Petitioner eventually understood the difficulties in presenting a self-
defense claim based on the facts of his case, and agreed to enter a plea of nolo contendere
to second degree murder.

III. Standard of Review

        To succeed on a challenge of ineffective assistance of counsel, the petitioner bears the
burden of establishing the allegations set forth in his petition by clear and convincing
evidence. T.C.A. § 40-30-210(f). However, the trial court’s application of the law to the
facts is reviewed de novo, without a presumption of correctness. Fields v. State, 40 S.W.3d
450, 458 (Tenn. 2001). A claim that counsel rendered ineffective assistance is a mixed
question of fact and law and therefore also subject to de novo review. Id.; State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999).

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, he or she must establish that counsel’s performance fell below “the range of
competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). In addition, he or she must show that counsel’s ineffective performance
actually adversely impacted his defense. Strickland v. Washington, 466 U.S. 668, 693, 104
S. Ct. 2052, 2067 (1984). In reviewing counsel’s performance, the distortions of hindsight
must be avoided, and this Court will not second-guess counsel’s decisions regarding trial
strategies and tactics. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The reviewing court,
therefore, should not conclude that a particular act or omission by counsel is unreasonable
merely because the strategy was unsuccessful. Strickland, 466 U.S. at 689, 104 S. Ct. at
2065. Rather, counsel’s alleged errors should be judged from counsel’s perspective at the
point of time they were made in light of all the facts and circumstances at that time. Id. at
690, 104 S. Ct. at 2066.

        A petitioner must satisfy both prongs of the Strickland test before he or she may
prevail on a claim of ineffective assistance of counsel. See Henley v. State, 960 S.W.2d 572,
580 (Tenn. 1997). That is, a petitioner must not only show that his or her counsel’s
performance fell below acceptable standards, but that such performance was prejudicial to
the petitioner. Id. Failure to satisfy either prong will result in the denial of relief. Id.
Accordingly, this Court need not address one of the components if the petitioner fails to
establish the other. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069. In cases involving a
guilty plea, the petitioner must show prejudice by demonstrating that, but for counsel’s
errors, he or she would not have pleaded guilty but would have insisted on going to trial. See



                                              -5-
Hill v. Lockhart, 474 U.S. 42, 59, 106 S. Ct. 366, 370 (1985); Bankston v. State, 815 S.W.2d
213, 215 (Tenn. Crim. App. 1991).

IV. Ineffective Assistance of Counsel

        On appeal, Petitioner argues that his counsel’s assistance was ineffective because he
did not explain that Petitioner would have to serve one hundred percent of his sentence for
second degree murder. Trial counsel testified at the post-conviction hearing that he
explained to Petitioner that he would be sentenced to fifteen years in exchange for his plea
and that at a minimum, Petitioner would have to serve eight-five percent of his sentence, or
twelve and one-half years. Trial counsel informed Petitioner, however, that there was no
guarantee that Petitioner would not have to serve one hundred percent of his sentence. Trial
counsel said that it was his belief that Petitioner understood. Trial counsel also said that
Petitioner ultimately understood the difficulties in successfully presenting a self-defense
claim, and that Petitioner would be sentenced to life imprisonment if he was convicted of
first degree premeditated murder.

        The post-conviction court accredited the testimony of trial counsel and found that
Petitioner had failed to show that his trial counsel’s assistance was deficient in explaining
to Petitioner the ramifications of the agreed upon fifteen-year sentence. Based on our review,
we conclude that the evidence does not preponderate against the post-conviction court’s
finding that Petitioner failed to establish that trial counsel provided ineffective assistance of
counsel in connection with the negotiation and entry of Petitioner’s plea of nolo contendere.
Petitioner is not entitled to relief on this issue.

V. Entry of Guilty Plea

        Petitioner argues that his plea was unknowing and involuntary because he was
unaware of the consequences of his plea at the time he entered it. Petitioner points out that
he is unable to read or write which interfered with his relationship with trial counsel, and he
contends that trial counsel took no steps to insure that Petitioner understood the plea
negotiation process. Petitioner argues that his misunderstanding of the release eligibility date
for his second degree murder sentence demonstrates that he did not knowingly enter his plea.

       When an accused enters a plea of guilty or nolo contendere, constitutional
considerations mandate that the plea be voluntarily, understandingly and knowingly entered.
See Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1713 (1969); State v. Mackey, 553
S.W.2d 337 (Tenn. 1977), superseded on other grounds by Tenn. R. Crim. P. 37(b), Tenn.
R. App. P. 3(b). By entering a plea, the defendant waives certain constitutional rights
including the privilege against self-incrimination, the right to a trial by jury, and the right to

                                               -6-
confront witnesses. Boykin, 395 U.S. at 243, 89 S. Ct. at 1714. The defendant’s waiver of
these constitutional rights may not be presumed from a silent record. Id. The trial court must
ascertain if the defendant fully understands the significant consequences of his or her plea.
State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999). The trial court may consider a number
of factors including the defendant’s relative intelligence, his or her familiarity with criminal
proceedings, whether the defendant was represented by competent counsel and had the
opportunity to confer with counsel about options, the advice give by counsel and the trial
court about the charges against the defendant and the penalty to be imposed, and the
defendant’s reasons for pleading guilty. Blankenship v. State, 858 S.W.2d 897, 904 (Tenn.
1993).

        Trial counsel testified that he reviewed Petitioner’s mental health records to ascertain
if there were any signs that Petitioner may have trouble comprehending the trial and plea
negotiation process. Trial counsel determined that Petitioner’s IQ score ranged between 68
and 72. Trial counsel had Petitioner undergo a mental evaluation prior to the plea submission
hearing, and Petitioner was found competent to stand trial and participate in his defense.
Trial counsel stated that he explained Petitioner’s options, and Petitioner understood that he
could be sentenced to life if he were convicted of first degree premeditated murder.
Although initially resistant to trial counsel’s explanation, Petitioner eventually understood
that a self-defense claim would likely not be successful in view of the fact that Petitioner shot
the unarmed victim some time after they had engaged in an altercation. Petitioner testified
at the plea submission hearing that he had completed the eleventh grade, that he understood
the consequences of his plea, including the agreed upon sentence of fifteen years, and that
he was voluntarily entering his plea of nolo contendere to the offense of second degree
murder.

       The post-conviction court again accredited trial counsel’s post-conviction testimony
that Petitioner understood his options and that he voluntarily elected to enter a plea of nolo
contendere to the lesser included offense of second degree murder. Based on our review, we
conclude that the evidence does not preponderate against the post-conviction court’s finding
that Petitioner knowingly and voluntarily entered his plea of nolo contendere. Petitioner is
not entitled to relief on this issue.

                                       CONCLUSION

       After a thorough review, we affirm the judgment of the post-conviction court.

                                                     ___________________________________
                                                     THOMAS T. WOODALL, JUDGE



                                               -7-
