        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               November 9, 2011 Session

                JACOB L. PEACHY v. STATE OF TENNESSEE

            Direct Appeal from the Circuit Court for Rutherford County
                        No. F65827      Don R. Ash, Judge


                No. M2011-01133-CCA-R3-PC - Filed March 30, 2012


The petitioner, Jacob L. Peachy, appeals the Rutherford County Circuit Court’s denial of his
petition for post-conviction relief. The petitioner, pursuant to a negotiated plea agreement,
pled guilty to attempted aggravated burglary, a Class D felony, in exchange for a sentence
of two years in confinement. On appeal, he contends that his guilty plea was not knowingly
and voluntarily entered due to the ineffective assistance of counsel. Specifically, the
petitioner contends that trial counsel was ineffective by improperly advising him that his
sentence was to be served on probation. Following careful 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 Circuit Court Affirmed

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and R OBERT W. W EDEMEYER, JJ., joined.

Luke A. Evans and Caleb B. McCain, Murfreesboro, Tennessee, for the appellant, Jacob L.
Peachy.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; William C. Whitesell, Jr., District Attorney General; and Jude P. Santana,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION




                                   Procedural History
        The facts underlying the petitioner’s conviction for attempted aggravated burglary,
as recited at the guilty plea hearing, are as follows:

       Had this matter gone to trial, the State would have introduced witnesses to
       include Officer Ed Gorham of the Murfreesboro Police Department who the
       State believes would testify as follows.

              That on or about the 9th day December, 2009, that an investigation into
       a burglary at 222 Glenview Drive here in Rutherford County, State of
       Tennessee, did occur. And there were two juveniles that were involved that
       have already pled guilty and were taken into custody.

              Also, [the petitioner] was determined to have been involved in the
       burglary as well. All of these events did occur here in Rutherford County,
       State of Tennessee, and prior to the return of this indictment. The juveniles
       did admit to breaking in the house and did involve [the petitioner.]

               He would plead guilty to attempted agg[ravated] burglary. It would be
       two years to serve. No further petitions or applications. Restitution of $480.
       It will be consecutive to his present sentence. I understand he is serving a
       sentence of five years.

        The petitioner had originally been indicted for one count of aggravated burglary by
a Rutherford County grand jury. As noted by the State in its recitation, pursuant to the plea
agreement, the petitioner was allowed to plead guilty to the lesser offense of attempted
aggravated burglary and was sentenced to the minimum sentence of two years. The
negotiated plea agreement, which was admitted into evidence at the plea hearing, reflects just
that sentence. The agreement clearly reflects a sentence of two years, as a Range I offender,
and states that the “place of confinement” is to be “TDOC.”

        Following the State’s recitation of the underlying facts at the plea hearing, the trial
court then admonished the petitioner of all the applicable rights he was waiving and
questioned the petitioner to ensure his understanding of the plea agreement. The petitioner
replied in the affirmative that he had heard the facts announced by the District Attorney and
agreed that those facts were basically correct. The petitioner also affirmatively answered that
trial counsel had explained the range of punishment to him. Finally, the petitioner
affirmatively replied that he had reviewed the plea agreement with trial counsel, that he
understood the agreement, and that he had no questions. After questioning the petitioner, the
trial court stated on the record:



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              Sir, I’m going to find you guilty of [attempted aggravated robbery].
       Sentence you to two years as a Range I, [thirty] Percent Offender. You’ll have
       to pay court costs. You will be rendered infamous, be required to give a
       D.N.A. specimen.

              This will be two years to serve. . . .

        Thereafter, on January 12, 2011, the petitioner filed a pro se petition for post-
conviction relief, alleging that his plea was not knowingly and voluntarily entered because
trial counsel misled him about the manner of service of the two-year sentence. Following
the appointment of counsel, an amended petition was filed with the court, and a hearing was
held on the matter.

        The first witness called to the stand was the petitioner. He stated that, on the day he
pled guilty, trial counsel had specifically advised him that his two-year sentence would be
suspended to probation. According to the petitioner, “I asked him this three times before I
signed the deal if [] I was correct on thinking that and he said yes all three times.” The
petitioner continued and stated that, had he known the agreement called for the sentence to
be served in incarceration, he would not have entered the plea. He acknowledged that the
plea transcript reflected that the sentence was to be served. At various points in his
testimony, the petitioner first stated that he was confused, then that he did not hear, then that
he had merely trusted his attorney and had not read the agreement, and then that he “didn’t
catch the to serve whenever [the trial court] explained that.” He maintained that he had
relied upon trial counsel’s statements that the sentence would be suspended.

        The petitioner also called his mother and stepfather to testify. Both stated that trial
counsel told them that the petitioner would receive a two-year suspended sentence and would
serve no jail time. Both witnesses indicated that trial counsel made these statements to them
three or four times. The petitioner also called his friend, Gina Bryant, who testified that she
was in court on the day of the plea and overheard trial counsel telling the petitioner’s mother
that the petitioner would not serve any jail time.

       Trial counsel then took the stand and testified that he had negotiated the petitioner’s
plea with the State. He also stated that he had advised the petitioner of the agreement and
explained that he would receive a sentence of two years to be served at thirty percent. Trial
counsel indicated that he reviewed the plea petition with the petitioner, which stated that he
was to serve the sentence in the Department of Correction. He further stated that the
petitioner did not appear confused on the issue of whether his sentence would be served or
suspended.



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       Trial counsel also testified that he was visited in his office several months later by the
petitioner’s mother and stepfather. He indicated that he did not recall their questioning him
as to whether the petitioner had a suspended sentence, only that they “had some issues with
his time.”

        After hearing the evidence presented, the post-conviction court found that the
defendant and his witnesses were not credible and denied relief. The petitioner subsequently
filed a notice of appeal with this court.

                                           Analysis

        On appeal, the petitioner contends that the post-conviction court erroneously denied
his post-conviction petition for relief because the petitioner claims he showed by clear and
convincing evidence that his plea was not knowingly and voluntarily entered based upon
misrepresentations by trial counsel. In 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). In
making this determination, the reviewing court must look to the totality of the circumstances.
State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995); see also Chamberlain v.
State, 815 S.W.2d 534, 542 (Tenn. Crim. App. 1990). Indeed, a

       court charged with determining whether . . . pleas were ‘voluntary’ and
       ‘intelligent’ must look to various circumstantial factors, such as 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 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).

       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 that guilty pleas be voluntarily and intelligently made. Hill
v. Lockhart, 474 U.S. 52, 56 (1985) (citing Alford, 400 U.S. at 31).

       To succeed in a challenge for ineffective assistance of counsel, a petitioner must

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demonstrate that counsel’s representation fell below the range of competence demanded of
attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under
Strickland v. Washington, 466 U.S. 668, 687 (1984), the petitioner must establish (1)
deficient representation and (2) prejudice resulting from the deficiency. 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.” Lockhart, 474 U.S. at 59; see also Walton v. State,
966 S.W.2d 54, 55 (Tenn. Crim. App. 1997). The petitioner is not entitled to the benefit of
hindsight, may not second-guess a reasonably based trial strategy, and cannot criticize a
sound, but unsuccessful, tactical decision made during the course of the proceeding. Adkins
v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). This deference to the tactical
decisions of trial counsel, however, is dependant upon a showing that the decisions were
made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App.
1992).

        The issues of deficient performance by counsel and possible prejudice to the defense
are mixed questions of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). “A
trial court’s findings of fact underlying a claim of ineffective assistance of counsel are
reviewed on appeal under a de novo standard, accompanied with a presumption that those
findings are correct unless the preponderance of the evidence is otherwise.” Fields v. State,
40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13(d)). However, conclusions of
law are reviewed under a purely de novo standard, with no presumption of correctness. Id.
at 458.

        As an initial matter, the State has pointed out that the notice of appeal document in
this case was not timely filed. The record indicates that, following the denial of the petition
on March, 29, 2011, the petitioner attempted to file a notice of appeal on April 26, 2011.
However, it was erroneously filed with the appellate court clerk rather than the trial court
clerk. Upon realizing this, the petitioner filed a motion to late-file notice of appeal in the trial
court. While the record indicates no disposition with regard to the motion, it does indicate
a late-filed notice of appeal in the trial court on May 11, 2011.

         “In an appeal as of right to the . . . Court of Criminal Appeals, the notice of appeal
required by Rule 3 shall be filed with and received by the clerk of the trial court within
[thirty] days after the date of entry of the judgment appealed from. . . .” Tenn. R. App. P.
4(a). It is not disputed that this did not occur in this case. However, “[i]n criminal cases, .
. . the ‘notice of appeal’ document is not jurisdictional and the filing of such document may
be waived in the interest of justice.” Id. Based upon the explanation given, we conclude
that, in this case, the interest of justice deems that the untimely filing of the notice of appeal
be waived.

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       In the written order denying relief in this case, the post-conviction court stated:

               The Petitioner claims he was told by [trial counsel] this sentence was
       suspended. However, the record (judgment sheet, transcript, and all other
       documents) reflects everything describes this as a two (2) year sentence to
       serve. The Court does not find [the petitioner] or his witnesses credible. The
       [Petitioner] has not met his burden. . . .

       According to the petitioner, the post-conviction court erred in denying him relief
because he “put on a clear and convincing case arguing that he was simply confused when
he entered his plea because he relied on the assurances of his attorney.” The petitioner
acknowledges that all documentation in the record indicates that this was a two-year sentence
of incarceration; however, he maintains that he, along with this witnesses, were told by trial
counsel that no jail service would be required. The petitioner further finds fault with the
court’s credibility determinations of himself and his witnesses, asserting that the court gave
“no reasons for such a finding and there was little, if any impeachment of [the petitioner’s]
witnesses.” He claims “[t]he testimony of [the petitioner’s] witnesses was simple,
straightforward and consistent . . . [while] the testimony of . . . [trial counsel] is subject to
much more scrutiny than that of [the petitioner’s] witnesses . . . because [he] could not
remember whether the plea petition contained crucial information regarding whether the
sentence was to be suspended . . . or whether he spoke in the hall with [the petitioner’s]
mother and step-father on the day of the plea.”

       The petitioner’s argument is essentially nothing more than a challenge to findings of
credibility made by the post-conviction court. It has been repeatedly held that this court is
bound by the post-conviction court’s factual findings, including the findings on credibility
of witnesses and the weight and value of their testimony, unless the record preponderates
against those findings. Burns, 6 S.W.3d at 461. It is the lower court that is best situated to
make these credibility determinations based upon demeanor, genuineness, and the testimony
offered. Following a review of the record before us, we finding nothing in the record which
would remotely preponderate against the findings made by the post-conviction court.

       There is no question that this case turns on the issue of credibility, as the only support
for the petitioner’s argument relies upon his assertion that trial counsel told him and his
witnesses that it would be a suspended sentence. However, while the petitioner and his
family witnesses testified to this, trial counsel affirmatively stated that he never informed the
petitioner that he would not serve time. Trial counsel indicated that he reviewed the
agreement, which referred to service in the TDOC, and stated that the petitioner appeared to
understand. Again, it is the lower court that is best suited to weigh the testimony of the
witnesses for credibility. The post-conviction court’s findings here are supported by the

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record. Indeed, every document in this case belies the fact that trial counsel and the
petitioner were both aware of the fact that the sentence was to be served. The transcript
reflects that the petitioner was advised in open court, on at least two occasions, that this
sentence was “to serve.” Thus, even if trial counsel had misinformed him, he was given the
opportunity by the trial court, prior to the acceptance of the plea, to address any questions or
concerns with the agreement. We would note that this was not the petitioner’s first
appearance before the judicial system, lending credence to the post-conviction court’s
findings of credibility with regard to the assertion that he was confused.

        The record before us establishes that there no ineffective assistance of counsel and,
further, that the petitioner entered this plea knowingly, understandingly, and voluntarily. The
petitioner has simply failed to carry his burden in this case and is, accordingly, entitled to no
relief.

                                       CONCLUSION

       Based upon the foregoing, the denial of post-conviction relief is affirmed.

                                                     _________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE




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