        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs October 4, 2011

              WALTER LEON CROSS v. STATE OF TENNESSEE

               Direct Appeal from the Circuit Court for Tipton County
                       No. 6343     Joseph H. Walker, Judge




               No. W2011-00833-CCA-R3-PC - Filed December 6, 2011


The petitioner, Walter Leon Cross, pled guilty in the Tipton County Circuit Court to felony
failure to appear, eleven counts of forgery, three counts of theft over $1,000, and two counts
of identity theft. Pursuant to the plea agreement, he received an effective sentence of twenty
years. Thereafter, the petitioner filed a petition for post-conviction relief, alleging that his
trial counsel was ineffective and that his pleas were not knowingly and voluntarily entered.
The post-conviction court denied the petition, and the petitioner now appeals. Upon review,
we affirm the judgment of the post-conviction court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and A LAN E. G LENN, JJ., joined.

George D. Norton, Jr., Ripley, Tennessee, for appellant, Walter Leon Cross.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney
General; D. Michael Dunavant, District Attorney General; and Jason Poyner and Billy G.
Burk, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                          OPINION

                                   I. Factual Background
       This case involves five Tipton County Grand Jury indictments filed against the
petitioner.1 He agreed to plead guilty and receive a mix of concurrent and consecutive
sentences, outlined below, for a total effective sentence of twenty years in the Tennessee
Department of Correction:


 Case Number           Charge                          Range                   Length

 6343                  Felony failure to appear        Range I, standard       2 years

 6344                  Forgery (two counts)            Range I, standard       2 years total

 6345                  Forgery (five counts)           Range I, standard       2 years total

                       Theft over $1,000

 6346                  Forgery (four counts)           Range I, standard       2 years total

                       Identity Theft (two
                       counts)

 6375                  Theft over $10,000              Career offender         12 years total
                       (dismissed pursuant to
                       plea agreement)

                       Theft over $1,000 (two
                       counts)

        Thereafter, the petitioner filed a petition for post-conviction relief, asserting that his
trial counsel was ineffective and that his guilty pleas were not knowingly and voluntarily
entered. Specifically, he alleged that counsel misadvised him regarding the length of the
effective sentence he could expect to receive and failed to file a motion for sentence
reduction despite a promise to do so. He further alleged that he would not have pled guilty
but for counsel’s ineffectiveness.

        At the post-conviction hearing, the petitioner testified that he was twenty-seven years
old and obtained his GED. The only time he met with trial counsel was the day he pled
guilty. Prior to that date, trial counsel telephoned him once and sent him a letter detailing the


        1
          The information regarding the charges and plea agreement are gleaned from the plea acceptance
hearing transcript and the post-conviction court’s order as the indictments, judgment sheets, and plea
agreement forms are not in the appellate record.

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charges and the State’s offer. The petitioner testified as follows regarding his understanding
of trial counsel’s letter:

               What I thought it explained was that I would be [pleading] out
               to a two, a two, a two, a two, plus a 12, but I thought that when
               we got to court that it would be reduced down to a 12 at 60
               [percent release eligibility]. I mean, that’s what -- at the very
               worst he said that I’d be getting a 12 at 60.

The petitioner said he believed trial counsel because “[h]e’s never lied to me” in previous
representations. Counsel never reviewed discovery with the petitioner or discussed potential
defenses. The petitioner said that he thought he had defenses to three or four of the charges
and that if he had known he was going to receive more than twelve years with a release
eligibility of sixty percent, he would have gone to trial. He said he understood that as part
of the plea agreement, he would have a sentence reduction hearing. The petitioner said that
he went to court for the sentence reduction hearing but that the State informed him that “it
was too late, the 120 days limitation had expired.”

       On cross-examination, the petitioner acknowledged that he had prior experience with
the criminal justice system and that he had pled guilty to ten felonies prior to the instant case.
He said that if he had not pled guilty in this case, he could have received a total sentence of
159 years. The petitioner acknowledged that the letter from trial counsel stated that trial
counsel could not guarantee the trial court would reduce or suspend the sentence. He also
acknowledged that the trial court stated during the guilty plea hearing that there was no
guarantee the court would provide any relief from his sentence. The petitioner said that he
had a hearing to request relief from his sentence and that he testified at the hearing. He
maintained that “at that hearing they told me it was too late, it was past the 120-day
deadline.”

        Trial counsel testified that he met with the petitioner once and corresponded with him.
He said he “actually put most of [his] efforts in trying to sort through the possibilities and
what the possible outcomes would be with regard to current charges.” Based on the
petitioner’s background and prior convictions, counsel did not think that he needed to explain
the elements of the charged offenses to the petitioner. Trial counsel stated that he did not
interview witnesses in this case because the only witnesses were the victims, who would have
testified that they did not write the forged checks, and the co-defendant. Counsel heard the
co-defendant’s tape-recorded statement. Trial counsel testified that, as he explained in his
letter to the petitioner, there were no guarantees the trial court would grant any type of
sentence relief but that counsel thought the court would suspend part of the sentence because
the offenses were not violent crimes. Counsel was surprised when the trial court refused to

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grant any type of relief based on the petitioner’s lengthy prior record and probation violation.
Counsel said that he thought the petitioner “understood the situation” but that the petitioner
was “very hopeful he’d get some relief.” Trial counsel testified that the State may have
mentioned the 120-day limitation on the trial court’s jurisdiction to hear the sentence
reduction matter but that “we had timely done everything we could do from our end.”
Therefore, any untimeliness was caused by the State. The post-conviction court stated for
the record, in its capacity as the court that had accepted the petitioner’s guilty plea, that the
request for relief from sentencing had been timely and that timeliness had not factored into
the court’s decision to deny relief.

        In a written order, the post-conviction court denied the petition for post-conviction
relief. The court found that trial counsel was not deficient because counsel, in his letter to
the petitioner, clearly delineated the State’s twenty-year offer and made no guarantees the
trial court would provide any type of sentence relief. The court found that the sentence
reduction hearing occurred and that the trial court denied relief. The court further found that
the petitioner “actually understood the significance and consequences of the particular
decision to plea guilty.”

                                         II. Analysis

       To be successful in his claim for post-conviction relief, the petitioner must prove all
factual allegations contained in his post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40–30–110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.
App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).
Issues regarding the credibility of witnesses, the weight and value to be accorded their
testimony, and the factual questions raised by the evidence adduced at trial are to be resolved
by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997). Therefore, the post-conviction court’s findings of fact are entitled to
substantial deference on appeal unless the evidence preponderates against those findings.
See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

       A claim of ineffective assistance of counsel is a mixed question of law and fact. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s
findings of fact de novo with a presumption that those findings are correct. See Fields, 40
S.W.3d at 458. However, we will review the post-conviction court’s conclusions of law
purely de novo. Id.




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       When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, “the petitioner bears the burden of proving both that counsel’s performance was
deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish
deficient performance, the petitioner must show that counsel’s performance was below “the
range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). To establish prejudice, the petitioner must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Notably,

              [b]ecause a petitioner must establish both prongs of the test, a
              failure to prove either deficiency or prejudice provides a
              sufficient basis to deny relief on the ineffective assistance claim.
              Indeed, a court need not address the components in any
              particular order or even address both if the [petitioner] makes an
              insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697). Moreover, in the context of
a guilty plea, “the petitioner must show ‘prejudice’ by demonstrating that, but for counsel’s
errors, he would not have pleaded guilty but would have insisted upon going to trial.” Hicks
v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998); see also Hill v. Lockhart, 474 U.S.
52, 59 (1985).

        When a defendant enters a guilty plea, certain constitutional rights are waived,
including the privilege against self-incrimination, the right to confront witnesses, and the
right to a trial by jury. Boykin v. Alabama, 395 U.S. 238, 243 (1969). Therefore, in order
to comply with constitutional requirements a guilty plea must be 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 order to ensure that a defendant understands the
constitutional rights being relinquished, the trial court must advise the defendant of the
consequences of a guilty plea, and determine whether the defendant understands those
consequences. Boykin, 395 U.S. at 244.

       In determining whether the petitioner’s guilty pleas were knowing and voluntary, this
court looks to the following factors:

              the relative intelligence of the [petitioner]; the degree of his
              familiarity with criminal proceedings; whether he was
              represented by competent counsel and had the opportunity to

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               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).

        The petitioner argues that trial counsel led him to believe that he would receive a
sentence of twelve years with a release eligibility of sixty percent and that trial counsel failed
to pursue a request for relief from sentencing. The post-conviction court found that, based
on trial counsel’s letter and the plea acceptance hearing transcript, trial counsel made clear
that the State’s offer was twenty years. Furthermore, the post-conviction court accredited
trial counsel’s testimony that he pursued a request that the petitioner’s sentence be reduced
or suspended and that the trial court denied the request due to the petitioner’s prior record.

       Trial counsel’s letter, entered as Exhibit 1 at the post-conviction hearing, delineated
the State’s offer and stated the following regarding counsel’s expectation as to how the trial
court would rule:

                      The bottom line is that I have been able to negotiate
               something that I believe will meet with your approval regarding
               settlement of all the indictments that are pending. These pleas
               will essentially be [a] 2+2+2+2+12 for a total of 20 years. We
               would still have to have the court grant probation or suspend the
               sentences or portions of them and we would be asking the court
               to find that you are a “special needs” offender qualifying for
               alternative sentencing as to these sentences. It is possible that
               the court would rule that you would commence CMC after
               release on parole and later be transferred to supervision under
               parole or probation after a period of time on house arrest.

                      The reasons for accepting this offer are listed below. I
               think this is the best shot at getting you out of incarceration at
               the soonest possible date. At best, if the court orders CMC and
               suspended sentences or split confinement, you might be released
               to house arrest following your parole. There is no guarantee at
               all and we can expect the state to contest such an outcome but
               I sincerely do not think the Court will fail to give some relief if
               not as much as we hope for. At the very worst, I think the

                                               -6-
              court would suspend the sentences in the four indictments we
              are pleading to which total 8 years, leaving the sentence of 12 @
              60% sentence to serve. In our worst case scenario I think the
              court would run this concurrent resulting in about a 7 year
              sentence before being eligible for parole. This is still much,
              much better than going to trial.

(Emphasis in original.)

        At the guilty plea hearing, the trial court informed the petitioner that the agreed-upon
sentence was twenty years, that trial counsel would request relief from the sentence, and that
there was no guarantee of any relief. The petitioner stated that he understood. He further
stated that he was satisfied with counsel’s representation.

       Based on the foregoing, we conclude that the post-conviction court did not err by
finding that trial counsel did not perform deficiently. In his letter to the petitioner, trial
counsel made clear that there were no guarantees of a sentence reduction. The trial court also
informed the petitioner during the guilty plea hearing that there were no guarantees his
effective sentence would be reduced. Moreover, based on the appellate record, which does
not include documentation of a request for sentence reduction or the hearing referred to by
the parties, we defer to the post-conviction court’s finding that trial counsel pursued the
sentence reduction and that the trial court denied any reduction. Finally, considering the
petitioner’s age, education, and familiarity with the criminal justice system as well as
counsel’s effective representation, we conclude that the trial court did not err by finding that
the petitioner entered his guilty pleas knowingly and voluntarily.

                                       III. Conclusion

       Based upon the record and the parties’ briefs, we affirm the judgment of the
post-conviction court.


                                                    ___________________________________
                                                    NORMA MCGEE OGLE, JUDGE




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