        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs March 29, 2011

                     CARL BOST v. STATE OF TENNESSEE

               Direct Appeal from the Criminal Court for Knox County
                         No. 91672    Bob R. McGee, Judge




                   No. E2010-01725-CCA-R3-PC - Filed June 7, 2011


The petitioner, Carl Bost, pleaded guilty to possession with intent to sell cocaine, a Class C
felony, and attempted aggravated burglary, a Class D felony, in exchange for a cumulative
sentence of six years, to be served in the Tennessee Department of Correction as a Range I,
standard offender. He filed for post-conviction relief, which was denied by the post-
conviction court. On appeal, he argues that he entered his plea unknowingly, involuntarily,
and unintelligently due to ineffective assistance of counsel. Following our 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 Criminal Court Affirmed

J.C. M CL IN , J., delivered the opinion of the court, in which J ERRY L. S MITH and J AMES
C URWOOD W ITT, J R., JJ., joined.

Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant, Carl Bost.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and Deborah Malone, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                        Background
       The petitioner, Carl Bost, entered guilty pleas to possession with intent to sell cocaine,
a Class C felony, and attempted aggravated burglary, a Class D felony, on May 12, 2008, in
Knox County. The state averred that if the matter had gone to trial, the state would have
presented the following factual basis for the pleas:
       Officer [Benjamin] McVey [of the Knoxville Police Department] would testify
       that he received a call from the victim, [Boise] Robinson, stating that he
       returned from a month long stay out of town to find that the screen door was
       locked. [Mr. Robinson] said that he had never locked the screen door.

              It was an apartment of KCDC property. The maintenance person there
       opened the apartment with the consent of the victim. They found [the
       petitioner] asleep inside the apartment. It had been described as – what the
       witness described as ransacked. They also found some items that were
       missing[:] a washer and dryer and a bedroom set.

              The victim says he knows the [petitioner] in this case, but he never gave
       [the petitioner] permission to be in his apartment. There would be further
       proof that all of these events occurred here in Knox County.

              As to count two of this information, Officers Joe Essensio (sic) and
       Tony Hall would testify that on March the 11th of 2008 that . . . [at] about 1:30
       in the morning[,] they were in the area of Virginia Avenue in an unmarked
       police car and working in an undercover fashion. They would testify that the
       defendant approached them and stated that a rock would be $20.00 [and] [t]hat
       he began to walk around the car to the passenger side. Officer Hall took him
       into custody [and performed a] search incident to arrest. They understood [the
       petitioner’s statement to refer to] a rock of cocaine for $20.00, which is
       typically what a rock sells for.

               When they took him into custody, [pursuant to a] search incident to
       arrest they found two clear baggies with crack cocaine in it, and two rocks of
       crack cocaine in his right front pocket.

               There would be further proof that they also found a metal crack pipe on
       him as well. Their testimony would be the conversation they had with [the
       petitioner] was for the sale of this crack cocaine. There would be further proof
       that all of this happened here in Knox County.

        The state told the court that the petitioner was entering the guilty pleas in exchange
for two years for the burglary charge and four years for the drug charge and that the
agreement was that he would serve the sentences consecutively. The petitioner agreed that
this represented his understanding of the agreement. He stated before the court that counsel
reviewed the plea agreement with him and that he understood it. He acknowledged his rights
as the court explained them and waived them. The petitioner twice more acknowledged that

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his sentence under the plea agreement would total six years. The petitioner stated that he was
satisfied with counsel’s services and that counsel had explained the punishment that the
petitioner faced by pleading guilty. The petitioner testified that he could read and write and
did not have any trouble hearing what was being said in the courtroom.

       On September 5, 2008, the trial court heard the petitioner’s request for enhanced
probation. The trial court placed the petitioner on enhanced probation for the two-year
sentence for attempted aggravated burglary.

       On May 15, 2009, the petitioner filed for post-conviction relief from his four-year
sentence for the possession of cocaine with intent to sell, alleging that he was denied the
effective assistance of counsel, that he entered the guilty plea involuntarily, and that the
prosecution did not disclose favorable evidence to the petitioner. On June 1, 2009, the post-
conviction court appointed an attorney to represent the petitioner, and appointed counsel
subsequently filed an amended petition for post-conviction relief on June 22, 2009.

        The post-conviction court held a hearing on the petition on July 29, 2010. The
petitioner testified that the court appointed counsel to represent him approximately two
months prior to the date he entered his pleas. He testified that counsel met with him three
or four times during those two months. The petitioner said that counsel explained to him that
he was indicted for “violating a drug-free school zone with schedule II crack cocaine, and
aggravated burglary,” and also explained the range of punishment possible for each. He
testified that he told counsel that his defense for the drug charge was that the drugs were
fake. He said that counsel never showed him a toxicology report. The petitioner stated that
he assumed that the sentences would run concurrently. He testified that if he had known that
he would serve six years, he would have gone to trial.

       On cross-examination, the petitioner testified that he recognized the plea form he
signed and acknowledged that the plea form stated that the sentences were consecutive. The
petitioner agreed that counsel’s negotiations with the state resulted in reduced charges with
sentence recommendations in the lower end of the range and in the dismissal of seven
pending charges. The petitioner agreed that he incurred nine new misdemeanor charges
between the plea hearing and the hearing on his application for enhanced probation, as well
as two additional charges after that hearing.

       Counsel testified that he was licensed to practice law in 2007. He stated that he met
with the petitioner four times at the detention center. Counsel testified that he reads plea
agreements word for word for every client, including the petitioner, and he believed that the
petitioner understood that he was agreeing to serve six years. Counsel testified that he had



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no recollection of the petitioner’s telling him that he had a valid defense to the drug charge.

       On cross-examination, counsel testified that he discussed possible defenses with the
petitioner. He said that he was able to negotiate down the petitioner’s burglary charge
because he canvassed the neighborhood around the victim’s apartment, took photographs,
and spoke with the director of the property. He was able to negotiate down the drug charge
because he interviewed the reverend at the ministry center, who acknowledged that there was
not a daycare center on the premises. Counsel said that he would not have allowed the
petitioner to plead to a drug charge if he thought that the petitioner had a defense that the
drugs were fake.

       On re-direct examination, counsel testified that he could not recall whether the state
had a toxicology report on the drugs seized in this case.

       The post-conviction court denied relief, finding that counsel provided “very effective”
assistance.

                                           Analysis

       On appeal, the petitioner argues that he entered his plea unknowingly, involuntarily,
and unintelligently due to ineffective assistance of counsel. Specifically, the petitioner states
that he did not know he was agreeing to serve six years and that counsel did not pursue the
defense that the items seized by the police were not narcotics.

       The post-conviction judge’s findings of fact on post-conviction hearings are
conclusive on appeal unless the evidence preponderates otherwise. State v. Burns, 6 S.W.3d
453, 461 (Tenn. 1999). Those findings of fact are afforded the weight of a jury verdict, and
this court is bound by the findings unless the evidence in the record preponderates against
those findings. Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State, 958
S.W.2d 138, 147 (Tenn. Crim. App. 1997). This court may not reweigh or reevaluate the
evidence, nor substitute its inferences for those drawn by the post-conviction court. State v.
Honeycutt, 54 S.W.3d 762, 766 (Tenn. 2001). However, the post-conviction court’s
conclusions of law are reviewed under a purely de novo standard with no presumption of
correctness. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

       In order for a petitioner to succeed on a post-conviction claim, the petitioner must
prove the allegations set forth in his petition by clear and convincing evidence. Tenn. Code
Ann. § 40-30-110(f). On appeal, this court is required to affirm the post-conviction court’s
findings unless the petitioner proves that the evidence preponderates against those findings.
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). Our review of the post-conviction court’s

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factual findings is de novo with a presumption that the findings are correct. Fields v. State,
40 S.W.3d 450, 457-58 (Tenn. 2001). Our review of the post-conviction court’s legal
conclusions and application of law to facts is de novo without a presumption of correctness.
Id.

        To establish ineffective assistance of counsel, the petitioner must show that (1)
counsel’s performance was deficient and (2) the deficient performance prejudiced the
defense rendering the outcome unreliable or fundamentally unfair. Strickland v. Washington,
466 U.S. 668, 687 (1984); see also Arnold v. State, 143 S.W.3d 784, 787 (Tenn. 2004).
Deficient performance is shown if counsel’s conduct fell below an objective standard of
reasonableness under prevailing professional standards. Strickland, 466 U.S. at 688; see also
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975) (establishing that representation should
be within the range of competence demanded of attorneys in criminal cases). Prejudice is
shown if, but for counsel’s unprofessional errors, there is a reasonable probability that the
outcome of the proceeding would have been different. Strickland, 466 U.S. at 694. If either
element of ineffective assistance of counsel has not been established, a court need not
address the other element. Id. at 697; see also Goad v. State, 938 S.W.2d 363, 370 (Tenn.
1996). Also, a fair assessment of counsel’s performance, “requires that every effort be made
to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”
Strickland, 466 U.S. at 689; see also Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). The
fact that a particular strategy or tactical decision failed does not by itself establish ineffective
assistance of counsel. Goad, 938 S.W.2d at 369. However, deference is given to strategy
and tactical decisions only if the decisions are informed ones based upon adequate
preparation. Id. (citations omitted).

        In Hill v. Lockhart, 474 U.S. 52 (1985), the Supreme Court applied the two-part
Strickland standard to ineffective assistance of counsel claims arising out of a guilty plea.
The court in Hill modified the prejudice requirement by requiring a petitioner to show that
there is a reasonable probability that, but for counsel’s errors, he would not have pled guilty
and would have insisted on going to trial. 474 U.S. at 59; Nichols v. State, 90 S.W.3d 576,
587 (Tenn. 2002).

        When determining the knowing and voluntary nature of a guilty plea, the standard is
“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); see also
State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999). The reviewing court must look to various
circumstantial factors, including:




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       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). In order for a guilty plea to be
voluntary, the petitioner must have an understanding of the charges against him and the
consequences of pleading guilty, including “the sentence that he will be forced to serve as
the result of his guilty plea and conviction.” Id. at 905. A petitioner’s solemn declaration
in open court that his or her plea is knowing and voluntary creates a formidable barrier in any
subsequent collateral proceeding because these declarations “carry a strong presumption of
verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977).

        Based on counsel’s testimony, as accredited by the post-conviction court, his
representation of the petitioner was effective. He thoroughly investigated the petitioner’s
case, negotiated a reduction in the petitioner’s charges, and achieved the dismissal of seven
pending charges against the petitioner. While the petitioner testified that he told counsel that
the items seized by the police were not narcotics, the post-conviction court accredited
counsel’s testimony that the petitioner did not inform him of this potential defense. As for
the petitioner’s belief that he was agreeing to serve four years, the transcript of the plea
hearing reveals that the petitioner acknowledged three times that the agreed-upon sentence
was six years. Nothing in the record indicates that the petitioner entered his plea
unknowingly or involuntarily. We conclude that the petitioner has not proven the allegations
of his petition by clear and convincing evidence; therefore, he is without relief in this matter.

                                          Conclusion

       Based on the foregoing reasons, we affirm the denial of post-conviction relief.




                                                     ___________________________________
                                                     J.C. McLIN, JUDGE




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