        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs June 23, 2015

      STATE OF TENNESSEE v. ALLEN ANTHONY HAMMETT
                   Appeal from the Circuit Court for Sevier County
                     No. 18648, 18930 Rex Henry Ogle, Judge



                No. E2014-01947-CCA-R3-CD – Filed August 25, 2015


The Defendant, Allen Anthony Hammett, entered best interest guilty pleas in case number
18648 to aggravated sexual battery, a Class B felony, and in case number 18930 to violating
the sex offender registry, a Class E felony. See T.C.A. §§ 39-13-504 (2014), 40-39-208
(2014). The trial court sentenced the Defendant as a Range I, standard offender to concurrent
terms of ten years for the aggravated sexual battery conviction and two years for the registry
violation. Following the guilty plea hearing, the Defendant sought to withdraw his pleas
alleging that they were involuntarily and unknowingly entered and that he received the
ineffective assistance of counsel. The trial court denied relief. On appeal, the Defendant
contends that the trial court erred by denying his motion to withdraw his best interest guilty
pleas. We affirm the judgment of the trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which ALAN E.
GLENN and TIMOTHY L. EASTER, JJ., joined.

Carolyn A. Linge, Knoxville, Tennessee, for the appellant, Allen Anthony Hammett.

Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
Attorney General; James B. Dunn, District Attorney General; and Timothy C. Norris,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

       On June 5, 2013, the Defendant was arrested in case number 18930 for allegedly
violating the sex offender registry by not notifying the proper authorities of his change of
address. The Defendant was released on bond, and he was indicted on November 5, 2013.
While case number 18930 was pending, the Defendant was charged by presentment in case
number 18648 for two counts of aggravated sexual battery and was taken into custody on
July 11, 2013. The trial court ordered that the Defendant would be required to post a
$250,000 bond and that he undergo human immunodeficiency virus (HIV) testing pursuant to
T.C.A. § 39-13-521. The order required the Defendant to have the test performed, the
Defendant to pay the costs, and the results be provided to the minor victim, the police
department, and the district attorney‟s office.

        On July 29, 2013, the Defendant filed a pro se petition for a writ of habeas corpus,
alleging that the jail had denied him medications crucial to the treatment of HIV and had
denied his requests to meet with a physician. He asserted that cumulative missed doses might
result in the development of acquired immunodeficiency syndrome (AIDS) and ultimately
death. The Defendant stated that he was held in solitary confinement for twenty-three hours
per day. He also alleged that he had been deprived of medications related to his pancreatitis,
high blood pressure, and cholesterol. He contended that the denial of his medications and
treatment and his solitary confinement resulted in cruel and unusual punishment and
violations of due process and equal protection. The Defendant requested a bond reduction,
release on his own recognizance, or any other relief the court deemed proper for him to
obtain the necessary medical treatment. The record does not reflect that the trial court ruled
on the petition.

       On September 10, 2013, defense counsel filed a motion in case number 18648 to
dismiss the indictment, release the Defendant on his own recognizance, or to order the Sevier
County Sheriff‟s Office to provide all necessary medical treatment to the Defendant,
including treatment for HIV. The record does not reflect that the trial court ruled on the
motion.

        On October 9, 2013, defense counsel filed a motion for a speedy trial on the ground
that the Defendant could not post bond and that the Defendant had severe medical conditions
that required treatment. The record does not reflect that the trial court ruled on the motion.

        On February 25, 2014, a guilty plea hearing was held relative to both cases. The trial
court advised the Defendant of his right to a jury trial, the burden of proof at a trial, the
presumption of innocence, the rights to confront and cross-examine witnesses, the right to
testify in his own defense, and the right to appeal. The court advised the Defendant that he
should consider his attorney‟s opinion relative to the State‟s plea offer but that the “ultimate
decision on pleading guilty” belonged to the Defendant. The court advised the Defendant to
ask questions during the proceedings if he did not understand. The court advised that nobody
would “jump on” him for asking questions and stated that it wanted to provide the Defendant
with the opportunity to ask questions or to say anything relative to his case. The court noted

                                              -2-
that it did not want the Defendant returning to court claiming he did not understand the
proceedings. The court advised the Defendant that he had the absolute right to reject a plea
offer and to proceed to a trial. The court also advised that the Defendant would not be
punished for rejecting a plea offer.

       The Defendant told the trial court that he understood his constitutional rights and that
he had been previously advised of those rights. The court explained that a best interest plea
was entered when a defendant denied guilt but agreed that the facts and circumstances
suggested it was in his best interest to accept a plea offer. The Defendant said he understood
he was entering best interest guilty pleas and that he would serve 100% of the ten-year
aggravated sexual battery sentence. The court explained the terms of the plea agreement,
including community supervision for life, and the Defendant said he understood. Relative to
the sex offender registry violation, the Defendant understood that he was receiving a two-
year concurrent sentence, for an effective ten-year sentence at 100% service. The Defendant
told the court that he accepted the offer of his own free will and that he was only relying on
the written plea agreement in deciding to plead guilty. The Defendant did not have any
questions for the court and said that he freely and voluntarily waived his right to a jury trial
and that he was pleading guilty to the offenses.

       The State‟s recitation of the facts show that

       through the testimony of Detective Tim Williams and the victim and also
       members of the Department of Children‟s Services, . . . on June 5th, 2013, the
       Department of Children‟s services received an anonymous referral that a girl
       was being allowed to hang out with a registered sex offender. Upon their
       investigation, . . . they went to her home, her reported address, and found that
       she was not there. Her mom reported that she was with Mr. Hammett across
       the way. They went to that home and found this defendant with that victim.
       Your Honor, she was less than thirteen years of age, and after further
       investigation it did reveal that he had touched her genitals, Your Honor. Those
       events happened in Sevier County. The address that they found him at was not
       his stated address and that violated the sex offender registry.

        Defense counsel informed the trial court that the guilty pleas were in the Defendant‟s
best interest under all the circumstances, although “proof point[ed] in a different direction.”
Counsel stated that he advised the Defendant of the community supervision for life, although
counsel could not know all the rules the Defendant would be required to follow upon his
release from confinement. The Defendant told the court that he understood violating any of
the rules might result in criminal charges. Counsel requested and the court agreed to note on
the judgments a “recommendation for special needs” because of the Defendant‟s HIV status.

                                              -3-
The court noted, though, that the Tennessee Department of Correction had discretion to
provide accommodations.

        On March 3, 2014, the Defendant filed a pro se emergency motion to withdraw his
guilty pleas because defense counsel failed to advise him of exculpatory evidence possessed
by the Defendant‟s fiancée. The Defendant alleged that his fiancée provided counsel with
the exculpatory evidence on February 21, 2014, before he entered his best interest guilty
pleas. The Defendant asserted that he would not have entered guilty pleas had the
exculpatory evidence been disclosed to him. He did not learn of the evidence until he spoke
with his fiancée after the guilty plea hearing.

        The amended motion to withdraw the Defendant‟s best interest pleas was submitted by
subsequent counsel on May 19, 2014. The motion alleged that the Defendant‟s guilty pleas
were involuntary and unknowing because he was denied medical treatment for a significant
period of time while in confinement, which resulted in his developing symptoms of “full-
blown” AIDS. He also alleged he had been placed in solitary confinement and had been
refused access to nitroglycerin medication for his heart condition. The Defendant alleged he
lived in constant fear of dying of AIDS or a heart attack while awaiting trial. He asserted
that after his medical treatment resumed, his HIV medications were not provided consistently
because the jail ran out of the medications. The Defendant also claimed he was told that he
and his fiancée would face perjury charges if he insisted upon going to trial. Therefore, the
Defendant argued that his declining health, his isolation in solitary confinement, and his
continuing fear that his medical treatment would cease and result in his death rendered him
incapable of entering voluntary and intelligent guilty pleas. He also argued that he was
pressured to accept a plea offer in order to secure continued medical treatment outside of
solitary confinement and to avoid additional criminal charges against himself and his fiancée.

       The Defendant also alleged that he received the ineffective assistance of counsel on
the grounds that defense counsel did not investigate the facts and circumstances of his case or
interview witnesses before recommending he accept the plea offer, did not communicate
adequately with him during the course of the proceedings, failed to provide him with the
State‟s discovery materials, failed to keep him informed of various motions and notices filed
by counsel and the prosecutor, unduly pressured him to accept the plea offer when counsel
knew he wanted a trial, and failed to assist him in obtaining necessary medical treatment for
HIV.

       At the motion hearing, defense counsel testified that he met the Defendant during the
arraignment on the aggravated sexual battery charges and that he learned the Defendant “had
some sort of writ” regarding his medical condition. He knew the Defendant was HIV
positive, and he brought the matter to the trial court‟s attention during the arraignment.

                                              -4-
Counsel said he met with the Defendant five to ten times and talked to him on the telephone
numerous times.

         Defense counsel testified that although the Defendant expressed a preference for a
trial, the Defendant always said he would not rule out a plea agreement. Relative to his
investigation, counsel said he received discovery and reviewed records placed under seal
from the Department of Children‟s Services (DCS) and Safe Harbor. He said the Defendant
thought the Defendant‟s girlfriend was a crucial witness and recalled she was supposed to
give counsel a cell phone containing “certain valuable information.” Counsel met with the
Defendant‟s girlfriend, who said she could not find the phone. Counsel also discussed the
statement she provided to the police. He noted the police had evidence that the Defendant
rented a motel room with the victim. When counsel told the Defendant‟s girlfriend that she
would be confronted with her statement to the police relative to her saying she was always
with the Defendant when he stayed at a motel, the girlfriend said, “I love [the Defendant],
would do anything for him but I‟m not going to lie for him.”

        Defense counsel testified that he provided the Defendant with the State‟s initial
discovery materials. He recalled, though, receiving late-filed discovery on Friday before the
trial date and said he discussed the materials with the Defendant but might not have provided
him copies of the documents. He thought the materials were mostly related to the notice of
witnesses. Counsel and the Defendant discussed obtaining a continuance because of the late
notice, but counsel did not believe the trial court would exclude the witnesses. Counsel said
the Defendant understood that counsel was ready for trial when they received the
supplemental witness list. Counsel said the only favorable evidence was the victim‟s first
forensic interview in which the victim identified another person as the perpetrator. Counsel
noted potential problems with the admissibility of the recording and said the victim‟s second
forensic interview inculpated the Defendant because she stated the Defendant told her to
identify another person as the person who touched her. Counsel was unable to locate the
other person for an interview. Counsel said the State intended to call witnesses who would
testify that the Defendant reported examining the victim‟s vagina at the victim‟s mother‟s
request. Counsel noted the victim‟s mother would have refuted the claim. Counsel said his
investigator interviewed the victim‟s mother and father.

        Defense counsel testified that the Defendant reviewed the recording of the victim‟s
first forensic interview and that counsel reviewed the recording of the second forensic
interview while in the prosecutor‟s office. Counsel told the Defendant the substance of the
second recording. Counsel did not depose any witnesses, did not attempt to interview the
victim, and noted that in his experience, interviewing child victims in sexual offense cases
was difficult and only “facilitated” by the police. In counsel‟s review of the sealed records,
he learned damaging information and became concerned the Defendant might face child rape

                                             -5-
charges. Counsel and the Defendant discussed his findings and the potential for additional
charges. Counsel told the Defendant that the plea agreement contained a provision
prohibiting any additional charges relative to the victim.

        Defense counsel testified that he told the Defendant‟s girlfriend that she might face
perjury charges if she testified contrary to the statement she provided the police officers.
Counsel recalled receiving a notice of enhanced punishment and the Defendant‟s criminal
history. Although he did not recall discussing the specific documents with the Petitioner,
counsel recalled discussing the Defendant‟s previous convictions and his career offender
status. Counsel told the Defendant that he faced a potential sentence of thirty years for each
aggravated sexual battery charge.

        Defense counsel testified that he initially asked the sheriff‟s department to provide the
Defendant proper medical care. He said that after the sheriff‟s office failed to provide the
proper care, he contacted the American Civil Liberties Union. He filed a motion, requested a
hearing, and subpoenaed the sheriff, county mayor, and the county attorney for the hearing.
Counsel said that the day before the hearing was scheduled, “they” scheduled an appointment
for the Defendant to meet with the “HIV specialist.” The hearing was never held. The trial
court noted that an agreed order was entered satisfying the concerns raised in counsel‟s
motion and that “things got moving” after the order was entered. Although counsel did not
recall when the Defendant began receiving the proper care, he agreed it was several months
after the Defendant‟s arrest. Counsel agreed that the Defendant was focused on his lack of
medical care and noted that the Defendant was “obsessed” with getting his previous Florida
conviction overturned because the Defendant claimed he was innocent.

       Defense counsel testified that he and the Defendant discussed a plea agreement early
in the case because of the Defendant‟s exposure as a convicted sexual offender. Counsel
thought the Defendant would be convicted at a trial unless the victim did not testify. At a
meeting on the Friday before the Defendant pleaded guilty, counsel said he and his
investigator talked to the Defendant about the evidence. Counsel said that although the
Defendant was unenthusiastic about pleading guilty, the Defendant agreed it was in his best
interest. Counsel acknowledged he told the Defendant that the Defendant was either guilty or
the unluckiest person in the world. Counsel said he told the Defendant that he would be
placed on community supervision for life and that he would serve 100% of the ten-year
sentence.

       Defense counsel testified that at the guilty plea hearing, the Defendant made a
statement that was not transcribed by the court reporter. Counsel said that in retrospect he
should have brought the matter to the trial court‟s attention. He recalled that the court asked
the Defendant if he was knowingly and voluntarily pleading guilty and in his best interest and

                                               -6-
that the Defendant said, “[Y]es, sir,” and “sort of stuck his head down . . . and said, „[N]ot
really.‟” Counsel received a telephone call from the Defendant‟s fiancée about thirty minutes
after the Defendant entered his guilty pleas. The Defendant‟s fiancée told counsel the
Defendant wanted to set aside his guilty pleas. Although counsel did not file a motion to set
aside the guilty pleas, he wrote the Defendant stating that the Defendant would have to allege
counsel‟s incompetence and that he needed another attorney for the task.

        Defense counsel testified that he was confused regarding the evidentiary value of the
cell phone the Defendant‟s fiancée could not locate. He understood that the phone contained
photographs of the victim taken by the other person the victim identified as the perpetrator
during her first forensic interview and that the photographs were posted on Facebook. He
thought he attempted to find the photographs on Facebook but was uncertain. Counsel did
not file a motion to suppress the Defendant‟s statement made after his arrest relative to the
sex offender registry violation.

       On cross-examination, defense counsel testified that on January 8, 2014, he filed a
notice relative to a motion for an in-camera inspection and discovery of the DCS records, a
motion for discovery relative to the forensic interview, and a motion to publish any records
and compel case workers to testify about any relevant DCS records. Counsel recalled that
DCS agreed to provide its records and that Safe Harbor filed its records under seal. Relative
to the Defendant‟s medical care, counsel agreed a subsequent order was entered on
September 30, 2013, requiring the sheriff‟s office to continue the Defendant‟s medical
treatment.

        Defense counsel testified that the Defendant had above-average intelligence and that
the Defendant discussed his legal research abilities and his providing legal services while in a
Florida prison. Counsel thought it was in the Defendant‟s best interest to accept the plea
offer and said the Defendant agreed. Counsel recalled the Defendant faced a six-year
sentence for the sex offender registry violation even if the Defendant were acquitted of the
sexual battery charges. Counsel agreed he requested during a bench conference after the
Defendant entered his guilty plea that the Defendant serve his sentence in a special needs
facility because of the Defendant‟s medical condition. Counsel said the trial court agreed to
place the request in the judgments.

       On redirect examination, defense counsel testified that he reviewed all of the records
submitted by DCS and Safe Harbor. He recalled the records reflected that the victim had a
“reassuringly normal” medical exam. Although he did not discuss the matter with the
Defendant, he said that generally medical experts would testify that such findings were
expected with the vaginal touching allegation against the Defendant.


                                              -7-
        The Defendant testified that he was arrested on July 11, 2013, and that he had filed a
petition for a writ of habeas corpus before his arraignment because he was not receiving
medication and treatment for his numerous medical conditions. He requested medical
treatment but did not receive it. He was housed in solitary confinement. The Defendant
discussed his petition with defense counsel at the arraignment. The Defendant said that the
trial judge treated his petition as a motion for bond. The Defendant recalled that his petition
was denied and that the court did not lower his bond.

       The Defendant was not treated by an infectious disease specialist until October 2,
2013. The medical records reflect that on October 2, the Defendant underwent laboratory
analysis of his blood and that on October 18, the Defendant resumed his HIV treatment. The
physician recommended that the Defendant keep his nitroglycerin tablets with him at all
times for his frequent chest pains. The records reflect the physician concluded that the
Defendant had poor insight and judgment, memory impairment, seizure tremors, anxiety, and
depression and that his poor mental health was the result of solitary confinement and the
denial of medical treatment.

       The Defendant testified that as a result of not receiving his medication, he began to
develop AIDS. He began to suffer from headaches, nausea, vomiting, and weight loss. He
was never permitted to keep his nitroglycerin tablets with him in solitary confinement. He
recalled the correction officers‟ taking his prescribed medication from him during “shake . . .
down[s]” at the jail.

        Upon questioning by the trial court, the Defendant testified that at the relevant time,
the correction officers did not routinely monitor the solitary confinement area at the jail. The
Defendant said that when the trial judge asked him if he was freely and voluntarily pleading
guilty, he mumbled under his breath “not really” because he did not want to “take” the plea
offer. He agreed, though, he did not bring the matter to the judge‟s attention. He said that
although the judge told him to ask questions and raise any concerns, the Defendant said he
did not understand he could tell the judge that he did not want to plead guilty. The Defendant
said he had pleaded guilty twenty years previously. The court reviewed the guilty plea
hearing transcript, and the Defendant recalled the judge‟s stating that the Defendant had an
absolute right to reject the plea offer and proceed to a trial and that the Defendant would not
be punished for rejecting a plea offer. The Defendant also recalled that he told the judge that
he was entering his guilty pleas of his own free will and that he told the judge that he did not
have any questions. The Defendant said, though, that he did not want to enter his guilty
pleas. He said that he did not say anything to the judge because he did not know what would
happen with his medications and because he was scared he was going to die.



                                              -8-
       The Defendant testified that while he was deprived of his medications, he maintained
records of when he was denied his nitroglycerin medication and his inhaler. He said that
after his physician began treating him for HIV, he did not receive his medications
consistently. He recalled that he was denied his medications on at least three occasions and
that he was denied his medications about one week before he entered his guilty pleas. He
said he was preoccupied about his medications while preparing for the trial and while
deciding whether to accept the plea offer.

        The Defendant testified that his medication concerns affected his decision to plead
guilty because a fellow inmate and a couple of jail correction officers told him that he would
receive better treatment in the Tennessee Department of Correction. Upon questioning by the
trial court, the Defendant agreed he told the judge at the guilty plea hearing that he was only
relying upon the plea agreement when he pleaded guilty.

       The Defendant testified that he and defense counsel did not discuss the potential child
rape charges and that counsel only said that if he rejected the plea offer, the State would
probably file additional charges. The Defendant admitted reviewing the recording of
victim‟s first forensic interview but denied reviewing the recording of the second interview.
He said he did not know that the child rape charges would be dismissed and that the State
would not seek any additional charges if he pleaded guilty.

       The Defendant testified that he and defense counsel met four or five times before he
entered his guilty pleas. He said that during those meetings, he told counsel that he did not
want to plead guilty and that he wanted a trial. He said that until the Friday before the trial
date, counsel said he was ready for trial and was optimistic about the outcome. He said
counsel‟s opinion changed after counsel spoke to the Defendant‟s fiancée that day. The
Defendant said counsel told him that he always reached a plea agreement in these types of
cases and that he never took them to trial. The Defendant recalled counsel told him that he
was either guilty or the unluckiest person in the world.

        The Defendant testified that defense counsel never played the recordings of his
statements to the police and that they did not discuss them. He said they discussed his
previous convictions, although counsel told him that his innocence in the Florida conviction
was irrelevant. He said counsel did not appear concerned about his previous convictions.
The Defendant learned after he pleaded guilty that his fiancée spoke with the police. He said
that his fiancée recanted her statements to the police and to counsel and that she told counsel
on the day of the guilty plea hearing she was recanting her statements.




                                              -9-
       The Defendant testified that he never reviewed the recording of the second forensic
interview due to technical difficulties and that defense counsel never discussed whether the
recording was exculpatory or inculpatory. The Defendant likewise did not review the notices
for enhanced punishment and said he received them after he pleaded guilty. Relative to the
plea agreement, the Defendant said counsel told him the terms of the agreement in the
courtroom on the day he pleaded guilty. He clarified for the trial court, though, that counsel
recommended that he plead guilty on the Friday before he entered his best interest guilty
pleas and that the recommendation was made without knowing the terms of the agreement.
He said that on Friday, counsel said the offer would be for twelve years, although he denied
agreeing to serve twelve years.

       The Defendant testified that on the day of the guilty plea hearing, he wanted to discuss
the plea offer with his fiancée but that he was told there was not enough time and that he
needed to decide if he wanted to accept the ten-year offer. He said that he did not know until
the day he pleaded guilty that he was a violent offender and that he would serve 100% of the
aggravated sexual battery sentence.

       The Defendant testified that he pleaded guilty because he thought he would receive
better medical care. He felt that defense counsel forced him to plead guilty and that nobody
was “in [his] corner” after counsel said he was guilty or the unluckiest person. The
Defendant said he would not have pleaded guilty had it not been for the lack of medical care
and counsel‟s poor handling of his case.

        On cross-examination, the Defendant testified that he only spoke to defense counsel
by telephone once and that their in-person meetings at the jail were five to six to minutes.
The Defendant said the only lengthy meeting was when he reviewed the recording of the
victim‟s first forensic interview. He admitted he had previous convictions for burglary and
accessory before the fact in a burglary-related case. He identified the motion he filed with
the trial court requesting a hearing regarding his emergency motion to withdraw his guilty
pleas. The motion was filed February 28, 2014. He said that he drafted his emergency
motion on February 25, the day he entered his guilty pleas, and that he mailed it on February
28. He agreed the date on the motion was February 25.

        The Defendant testified that his motion to withdraw his best interest guilty pleas was
based upon the evidence on the cell phone. He told defense counsel about the phone.
Although he denied stating that the phone contained photographs of the victim, he admitted
he told counsel that the other alleged perpetrator‟s “accounts” were on the phone. The
Defendant wanted counsel to know the type of person the other alleged perpetrator was and
to use the phone to identify the true perpetrator. The Defendant said counsel never called his
fiancée about the phone. He denied telling the police that he touched the victim‟s vagina.

                                             -10-
He said he told the police that the victim‟s mother requested he look at the victim‟s vagina
and that he looked while in the victim‟s mother‟s presence. He denied touching the victim.
He denied he and counsel discussed the potential punishments he faced if convicted. The
Defendant admitted counsel told him that the Defendant‟s previous convictions would affect
any sentence he received. He said he understood he pleaded guilty as a Range I offender,
although his previous convictions resulted in a Range II classification. He said neither
counsel nor anyone at the jail threatened him to plead guilty. He agreed, though, he felt
pressured by his circumstances to plead guilty. On redirect examination, he testified that he
felt physically threatened because he had been denied medical treatment for HIV for five
months.

       The trial court discussed the Defendant‟s fiancée‟s inconsistent statements relative to
the Defendant‟s asking her to tell the police that she was always with the Defendant when he
rented a motel room and whether she was with the Defendant when the incident in the
present case occurred. The court found that defense counsel talked to the Defendant about
“those things.” The court found that the Defendant knew his sentencing range and that the
plea offer was for ten years, although it was originally twelve years. The court noted the
strong evidence against the Defendant.

        The trial court concluded that no manifest injustice had occurred because the
Defendant was advised of his rights, was provided the opportunity to ask questions at the
guilty plea hearing, and told the court that he understood what he was doing by pleading
guilty. The court noted that although the Defendant allegedly said under his breath at the
guilty plea hearing “not really,” the Defendant knew enough to ask the court questions. The
court found that the Defendant said he was pleading guilty because it was in his best
interests. The court found that the Defendant had “buyer‟s remorse.”

       The trial court found that although it was concerned about the Defendant‟s not
receiving medical treatment in the earlier stages of the proceedings, the Defendant‟s actions
during the guilty plea hearing and afterward indicated that the Defendant entered his pleas
knowingly. The court credited defense counsel‟s testimony that on Friday before the guilty
plea hearing, counsel and the Defendant discussed the Defendant‟s pleading guilty and that
counsel continued to negotiate, ultimately reaching an agreement for ten years‟ confinement.
 The court found that the Defendant signed the plea agreement and told the court that he was
not being forced to plead guilty. The court noted it told the Defendant that counsel could not
make him plead guilty. The court found that counsel provided proper representation
“exceeding” the constitutional standards for effective presentation and that the Defendant
entered free and voluntary best interest guilty pleas. Relative to counsel‟s efforts to obtain
the Defendant proper medical care, the court found that counsel went “above and beyond”
and was able to secure the proper care. The court found that counsel properly communicated

                                            -11-
with the Defendant about the evidence against him and the range of penalties. This appeal
followed.

       The Defendant contends that the trial court erred by denying his motion to withdraw
his guilty pleas. He argues that his pretrial incarceration without proper medical care
rendered his best interest guilty pleas involuntary and that defense counsel provided the
ineffective assistance of counsel. The State responds that the trial court properly denied the
motion. We agree with the State.

        Tennessee Criminal Procedure Rule 32(f) permits a defendant to withdraw a guilty
plea after a sentence is imposed but before a judgment becomes final only to “correct [a]
manifest injustice.” Tenn. R. Crim. P. 32(f)(2). A defendant has the burden of establishing a
guilty plea should be withdrawn to correct a manifest injustice. State v. Turner, 919 S.W.2d
346, 355 (Tenn. Crim. App. 1995). The standard of review on appeal relative to a trial
court‟s decision whether to grant a motion to withdraw is abuse of discretion. State v. Drake,
720 S.W.2d 798, 799 (Tenn. Crim. App. 1986); see Henning v. State, 201 S.W.2d 669, 671
(Tenn. 1947). Although manifest injustice is not defined by procedural rules or statute, this
court has stated it must be determined on a case-by-case basis. Turner, 919 S.W.2d at 355.
A trial court may permit a defendant to withdraw his guilty plea to prevent a manifest
injustice, in relevant part, when a guilty plea was involuntarily and unknowingly entered and
when a defendant received the ineffective assistance of counsel in connection with the entry
of the plea. State v. Crowe, 168 S.W.3d 731, 742 (Tenn. 2005). A defendant, though, is not
permitted to withdraw a guilty plea simply because he has a change of heart or is dissatisfied
with the sentence imposed. Turner, 919 S.W.2d at 355.

                                 Involuntary Guilty Plea

        The Supreme Court has concluded that a guilty plea must represent 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). A trial court must examine in detail “the matter
with the accused to make sure he has a full understanding of what the plea connotes and of its
consequence.” Boykin v. Alabama, 395 U.S. 238, 243-44 (1969); see Blankenship v. State,
858 S.W.2d 897, 904 (Tenn. 1993). Appellate courts examine the totality of circumstances
when determining whether a guilty plea was voluntarily and knowingly entered. State v.
Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995). A guilty plea is not voluntary if it is
the result of “[i]gnorance, incomprehension, coercion, terror, inducements, [or] subtle or
blatant threats.” Boykin, 395 U.S. at 242-43; see Blankenship, 858 S.W.2d at 904. A
petitioner‟s representations and statements under oath that his guilty plea is knowing and
voluntary create “a formidable barrier in any subsequent collateral proceedings [because]


                                             -12-
[s]olemn declarations . . . carry a strong presumption of verity.” Blackledge v. Allison, 431
U.S. 63, 74 (1977).

        Although the Defendant argues that his best interest guilty pleas were entered under
duress and fear of death because of the lack of proper medical care during his pretrial
confinement, the record reflects that the Defendant entered knowing, voluntary, and
intelligent guilty pleas. At the guilty plea hearing, the trial court advised the Defendant of his
right to a jury trial, the burden of proof at a trial, the presumption of innocence, the rights to
confront and to cross-examine witnesses at a trial, the right to testify in his defense, and the
right to an appeal. The Defendant told the court that he understood his rights and that
defense counsel had advised him of those rights before the hearing. The court told the
Defendant that the decision to accept a plea offer was his alone and that he should ask the
court questions if he did not understand the proceedings. Furthermore, the court told the
Defendant that nobody would be angry with him for asking questions and advised the
Defendant that he had an absolute right to reject a plea offer and to proceed to a trial. The
Defendant had no questions for the court and expressed no reservations about entering his
pleas or wanting a trial.

        The Defendant told the trial court that he understood the terms of the plea agreement,
understood he would serve 100% of the effective ten-year sentence, and understood he was
subject to community supervision for life upon release. The Defendant stated that he was
accepting the plea offer of his own free will and that he was relying only upon the terms of
the agreement in deciding to enter best interest guilty pleas. The Defendant, likewise, told
the court that he was freely and voluntarily waiving his right to a trial and wanted to plead
guilty.

        We note that when the Defendant was asked if he was freely and voluntarily pleading
guilty, he told the trial court, “[Y]es, sir.” Although the Defendant then stated “not really” in
a voice inaudible to the trial court and the court reporter, the Defendant was provided ample
opportunity to inform the court that he wanted to reject the plea offer and proceed to a trial.
To the contrary, the record reflects that the Defendant voluntarily, knowingly, and
intelligently pleaded guilty.

        Relative to the Defendant‟s poor medical care before he entered his best interest guilty
pleas, the record reflects that defense counsel was concerned the Defendant was being denied
proper medical treatment for his numerous medical conditions, including HIV. Counsel‟s
credited testimony shows that he requested the sheriff‟s department provide the Defendant
with treatment, that the sheriff‟s department failed to provide it, and that counsel contacted
the American Civil Liberties Union. Upon counsel‟s filing his September 10, 2013 motion
addressing the lack of jail medical care, his requesting a hearing, and his issuing subpoenas

                                              -13-
for the sheriff, county mayor, and county attorney, an agreed order was entered satisfying
counsel‟s concerns in the motion. On October 2, the Defendant began receiving treatment
from an infectious disease specialist, and on October 18, he resumed his medications.
Although the Defendant testified that his treatment was inconsistent, we note that the
Defendant did not inform the trial court at the guilty plea hearing of his concerns relative to
his medical treatment, although the court provided him the opportunity to address any matters
related to his case. The record does not reflect that the Defendant raised concerns about his
treatment with anyone after October 2. We note the Defendant entered his guilty pleas on
February 25, 2014, more than four months after his treatment resumed. The record does not
support a conclusion that the Defendant feared a deprivation of proper medical care at the
time he entered guilty pleas. The trial court did not abuse its discretion by concluding that
the Defendant entered knowing, intelligent, and voluntary guilty pleas, and he is not entitled
to relief on this basis.

                             Ineffective Assistance of Counsel

       To establish a claim of the ineffective assistance of counsel in violation of the Sixth
Amendment, a petitioner has the burden of proving that (1) counsel‟s performance was
deficient and (2) the deficient performance prejudiced the defense. Strickland v. Washington,
466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). The
Tennessee Supreme Court has applied the Strickland standard to an accused‟s right to
counsel under article I, section 9 of the Tennessee Constitution. See State v. Melson, 772
S.W.2d 417, 419 n.2 (Tenn. 1989).

         A petitioner must satisfy both prongs of the Strickland test in order to prevail in an
ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To establish the
performance prong, a petitioner must show that “the advice given, or the services rendered . .
. , are [not] within the range of competence demanded of attorneys in criminal cases.” Baxter
v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S. at 690. The post-
conviction court must determine if these acts or omissions, viewed in light of all of the
circumstances, fell “outside the wide range of professionally competent assistance.”
Strickland, 466 U.S. at 690. A petitioner “is not entitled to the benefit of hindsight, may not
second-guess a reasonably based trial strategy by his counsel, and cannot criticize a sound,
but unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.
1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn. 2008). This deference, however,
only applies “if the choices are informed . . . based upon adequate preparation.” Cooper v.
State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). To establish the prejudice prong, a
petitioner must show that “there is a reasonable probability that, but for counsel‟s

                                             -14-
unprofessional errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id.

        The Defendant argues that defense counsel provided ineffective assistance by not
bringing to the trial court‟s attention at the guilty plea hearing that the Defendant stated under
his breath that he did not want to plead guilty. He argues counsel should have told the court
and should have requested time to discuss the matter further to determine if the Defendant
truly wanted to plead guilty. The record reflects that counsel admitted he should have
brought the matter to the court‟s attention, and we agree that counsel‟s failure constituted
deficient performance. However, counsel‟s credited testimony reflects that although the
Defendant was unenthusiastic about entering guilty pleas, the Defendant agreed it was in his
best interest based on the State‟s witnesses, the victim‟s second recorded forensic interview,
the potential for child rape charges, and his previous convictions. At the guilty plea hearing,
the court provided the Defendant the opportunity to ask questions and to reject the plea offer.
Instead, the Defendant told the court that he was freely and voluntarily entering guilty pleas
because it was in his best interest to plead guilty. Counsel‟s deficient performance in this
regard did not result in prejudice. The record does not reflect that the Defendant would have
requested a trial had counsel informed the court of the Defendant‟s statement. To the
contrary, the Defendant was provided ample opportunity to inform the court of his wishes if
he wanted to proceed to a trial. The Defendant is not entitled to relief on this basis.

       The Defendant also argues that defense counsel failed to communicate adequately
with him before the guilty plea hearing relative to the evidence against him and the
consequences of entering guilty pleas. He also asserts that he never reviewed the recording
of the victim‟s second forensic interview in which she stated that the Defendant told her to
identify another perpetrator, that he never reviewed the discovery materials, and that he was
not afforded a reasonable opportunity to consider the plea offer.

        Defense counsel‟s credited testimony reflects that counsel and the Defendant met four
or five times and that they talked on the telephone numerous times. Counsel provided the
Defendant with the State‟s initial discovery materials. Counsel received additional materials
relative to the State‟s trial witnesses on the Friday before the scheduled trial date. Although
counsel might not have provided the Defendant copies of the additional materials, counsel
and the Defendant discussed them and whether to obtain a continuance because counsel did
not believe the trial court would prohibit the witnesses from testifying. After discussing the
additional materials, counsel concluded that the only favorable evidence was the victim‟s
first forensic video, although counsel believed admissibility of the recording might have been
problematic. The State intended to present witnesses who would have testified that the
Defendant reported examining the victim‟s vagina at her mother‟s request. Counsel knew the

                                              -15-
victim‟s mother would have refuted the allegation because the defense investigator
interviewed the victim‟s mother and father during the course of the pretrial investigation.
Counsel believed the Defendant would have been convicted at a trial unless the victim did
not testify. At the conclusion of the Friday meeting, counsel advised that a plea agreement
was in the Defendant‟s best interest, and the Defendant agreed.

       Relative to the recording of the victim‟s second forensic interview in which she
inculpated the Defendant, defense counsel reviewed it in the prosecutor‟s office because of
technical difficulties when counsel and the Defendant attempted to review it at the jail.
Counsel told the Defendant the substance of the victim‟s interview statements. After counsel
reviewed the DCS and Safe Harbor records, he concluded that the Defendant could have
been charged with child rape. Counsel and the Defendant discussed the contents of the
records and counsel‟s fear of additional charges. Counsel told the Defendant a plea
agreement would include a prohibition against additional charges relative to the victim.
Counsel and the Defendant discussed the Defendant‟s career offender classification and the
potential punishment of thirty years for each aggravated sexual battery charge. Counsel and
the Defendant discussed a plea agreement early in the case because of the Defendant‟s being
a convicted sex offender. We conclude that the trial court did not abuse its discretion by
determining that counsel provided effective assistance and by denying the Defendant‟s
motion to withdraw his guilty pleas. The Defendant is not entitled to relief on this basis.

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


                                          ____________________________________
                                          ROBERT H. MONTGOMERY, JR., JUDGE




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