        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs April 12, 2011

                   KEITH EZELL v. STATE OF TENNESSEE

                    Appeal from the Shelby County Criminal Court
                    No. 01-08323-34   John T. Fowlkes, Jr., Judge


                 No. W2010-00698-CCA-R3-PC - Filed June 30, 2011


The Petitioner, Keith Ezell, appeals from the Shelby County Criminal Court’s denial of his
petition for post-conviction relief from his convictions for seven counts of especially
aggravated kidnapping and four counts of aggravated robbery, for which he is serving an
effective 198-year sentence. He contends that his trial attorney failed to provide effective
assistance because counsel did not advise him that accepting a guilty plea offer was in his
best interest and did not accurately advise him of the likelihood he would receive a greater
sentence after a trial than if he accepted the plea offer. Upon review, we affirm the judgment
of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,
J R. and R OBERT W. W EDEMEYER., JJ., joined.

Mary Peterson Kleinman (on appeal) and Matthew Ian John (at hearing), Memphis,
Tennessee, for the appellant, Keith Ezell.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Rachel Newton, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                       OPINION

The facts of the Defendant’s convictions were stated by this court on direct appeal:

              [Torrez Talley, Jevon Bryant, and the Petitioner’s]
       convictions in this case originate from the commission of
       especially aggravated kidnapping and aggravated robbery
       offenses against victims Kimberly Hancock, Omar Coleman,
       Divin Wright, Oliver Wright, Jerome Carpenter, Tonyell
       Somerville, and Jodeci Somerville.1

               The proof presented at trial reflects that Kimberly
       Hancock was at her home on January 11, 2001, when she
       received a phone call from a friend requesting she come by and
       pick up some clothes. After receiving the call, she asked Divin
       Wright (her boyfriend), and Omar Coleman to accompany her.
       The group took Omar’s white Ford Focus. Upon arrival at the
       house, Kimberly and Divin went inside to pick up the clothes
       while Omar waited outside in the car. Inside the house,
       Kimberly saw Defendant Talley, Thaddeus Brown, John
       Williams, and Jarvis Williams. As Kimberly proceeded upstairs,
       John Williams grabbed her by the neck and threw her down the
       stairs. He then picked her up from the floor, placed her on the
       couch, and proceeded to question her about her boyfriend’s
       brother, Oliver Wright, whom John Williams believed
       orchestrated a break-in of his home. Divin was also forced to sit
       on the couch and questioned about the break-in. The group of
       men including Defendant Talley threatened to kill Kimberly and
       Divin if they did not tell them what they wanted to know. Divin
       was also told to remove his clothes. At this time, Kimberly saw
       that Defendant Talley and the Williams brothers had guns.

              After Kimberly and Divin were questioned for a few
       minutes, Thaddeus Brown and Defendant Talley went outside.
       According to Omar Coleman, he was approached by three armed
       men and brought into the house under the pretense that he was
       under arrest. He was then forced to take off his clothes, and his


               1
                 In order to differentiate between the victims in this case, we
       refer to them by their first names.

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checkbook, credit cards, and drivers license were taken. At this
time, Defendant Bryant arrived at the house armed with two
guns. Upon arrival, Defendant Bryant brandished his guns and
exclaimed, “I want the bitch who set it up.” Jarvis Williams told
Kimberly that she was going to help find Oliver Wright. Jarvis
Williams and Defendant Bryant then forced Kimberly into a
black Ford Probe and left. After Jarvis Williams and Defendant
Bryant left with Kimberly, Defendant Ezell entered the house
wielding a shotgun. Defendants Ezell and Talley then
proceeded to beat Divin with their fists and guns.

        After Oliver Wright was located, Jarvis Williams called
him on the phone and asked if he would pick him up and take
him to Auto Zone to get a battery. Oliver agreed. Thereafter,
Jarvis Williams and Defendant Bryant met up with Thaddeus
Brown and Defendant Ezell. At this time, Kimberly was moved
to the backseat of a purple Dodge Intrepid. Defendant Ezell also
sat in the backseat, armed with a shotgun. Later, Oliver arrived
in a Dodge Neon accompanied by Jerome Carpenter, Tonyell
Somerville (Oliver’s girlfriend), and Jodeci Somerville
(Tonyell’s seven-year-old son). When Oliver and company
arrived, Oliver got out of the car. Immediately, Defendants
Bryant and Ezell, armed with guns, walked to Oliver’s car and
told him “[d]on’t move. You niggers gonna die tonight.”

        Both Oliver and Jerome were forced to take off their
clothes. Defendant Bryant hit Oliver in the head with a gun
after Oliver asked what was going on. Oliver was forced into
the trunk of the Intrepid, and Jerome was forced into the trunk
of the Neon. In an attempt to get out of the trunk, Oliver put his
leg out. While his leg was hanging out, Defendant Bryant
closed the trunk on Oliver’s leg, breaking it. With Defendant
Ezell driving the Neon, the group left the area and drove to a
different area of town. Here, Defendant Ezell took Tonyell
Somerville’s jewelry, cash, and purse. Defendant Ezell then
ordered Tonyell and her son, Jodeci, out of the Neon. Before
Tonyell left the car, however, Defendant Ezell told her to
handover her identification. After Tonyell complied, Defendant
Ezell told her that “we’ve got your ID, we have your address, we
know where you live, we know what you look like. If we get

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              caught, if we go to jail, if you call the police, we’ll come back
              and kill you and your son.” In the meantime, Jerome was taken
              out of the Neon’s trunk and placed in the Intrepid’s trunk with
              Oliver. A short time later, Kimberly was dropped off near her
              mother’s house. Before being released, she was threatened with
              death if she called the police. However, both Kimberly and
              Tonyell called the police after being released.

                      Meanwhile, the defendants returned to the house with
              Jerome and Oliver. The defendants, along with the other
              assailants, placed Oliver and Divin in the middle of the floor and
              beat them with their fists and guns. Defendant Ezell also struck
              Omar in the back of the head with his shotgun. In addition to
              being beaten, Oliver was burned with cigarettes and Divin was
              burned after being tossed headfirst into a fireplace. The
              defendants then poured bleach on Oliver, Divin, Omar, and
              Jerome. The defendants informed these men that they would be
              taken to Mississippi and killed; whereupon, the defendants
              forced the men once again into the trunks of their vehicles and
              started driving toward Mississippi. However, shortly after
              leaving the house, police officers initiated pursuit, which led to
              the release of the four men from the confines of the trunks and
              the eventual arrest of the defendants.

State v. Torrez Talley, Jevon Bryant, and Keith Ezell, No. W2003-02237-CCA-R3-CD,
Shelby County (Tenn. Crim. App. Oct. 16, 2006), app. denied (Tenn. Mar. 19, 2007).

        On direct appeal, the Petitioner’s attorney raised the following issues: (1) whether the
trial court erred in denying the request for a mistrial after a prospective juror made statements
about his sister-in-law’s kidnapping and murder; (2) whether the trial court erred in allowing
the State to present the Petitioner’s twin brother to the jury in order to rehabilitate a State’s
witness who initially identified the Petitioner’s brother in a lineup as one of the perpetrators;
(3) whether the trial court failed to properly instruct the jury about reasonable doubt; and (4)
whether the trial court violated the Sixth Amendment and the holding of Blakely v.
Washington, 542 U.S. 296 (2004), in imposing consecutive sentences. The Petitioner’s co-
defendants raised additional issues regarding: (1) denial of a motion to suppress; (2)
violations of the proper use of peremptory challenges pursuant to Batson v. Kentucky, 476
U.S. 79 (1986); (3) election of offenses related to co-defendant Bryant’s handgun possession
charge; (4) rehabilitation of two State’s witnesses using an uncertified transcript of the
preliminary hearing; (5) a police officer’s statement of opinion about the guilt of co-

                                               -4-
defendant Bryant; (6) prosecutorial misconduct during closing argument; (7) the amount of
time afforded trial counsel for co-defendant Bryant to review the jury instructions; (8) the
jury instruction regarding a defendant’s right not to testify; (9) the lack of an instruction on
false imprisonment as a lesser included offense of especially aggravated kidnapping; and (10)
the sentences imposed on the Petitioner’s co-defendants. This court denied relief on all of
these issues and affirmed the convictions, but it remanded the case for merger of the
defendants’ fourteen kidnapping convictions into seven offenses. As noted, the Tennessee
Supreme Court denied the defendants’ applications for permission to appeal. Id.

       The Petitioner filed a pro se post-conviction petition. The trial court appointed
counsel, who filed an amended petition. The pro se petition and the amended petition raised
several alleged factual instances of ineffective assistance of counsel, as well as other issues.
The trial court denied relief on all of the Petitioner’s issues. In this appeal, the Petitioner has
pursued only his claim that counsel was ineffective for not giving him complete advice about
the State’s plea offer.

        Pertinent to the issue raised on appeal, the Petitioner testified at the post-conviction
hearing that he was serving an effective sentence of 198 years but was offered a plea bargain
for forty years during the trial. He said he met with his attorney twice before the trial and had
no other form of communication with counsel. He said that his attorney gave him the
discovery materials but that his attorney never reviewed the material with him. He said his
attorney did not discuss his charges or his co-defendants’ charges with him. He said his trial
counsel did not discuss the evidence as it developed during the trial. He denied that trial
counsel ever discussed evidence that could have been favorable to the defense.

        The Petitioner denied that his trial attorney ever advised him regarding the range of
punishment for the charged offenses. He said trial counsel never told him that his sentences
could be increased based upon enhancement factors. He said that if he understood at the time
the type of sentences he might receive, he would have “sign[ed] up for something less than
a hundred years.” When asked whether he “would have been willing to entertain a plea
option possibly,” he replied, “Right.” He said there was no discussion of a plea agreement
until the trial. He said that trial counsel told him the State had offered a forty-year plea
agreement but that he rejected it. He said he viewed it as a life sentence. He said that had
trial counsel advised him that he was facing a possible 198-year or higher sentence if he went
to trial instead of accepting the forty-year plea offer, “I probably wouldn’t have went to
trial.” He said that the State offered him a forty-year plea agreement almost every day of trial
and that the sentence in the offer never decreased.

        The Petitioner denied that trial counsel explained the proof required to convict him
of the charged offenses or the lesser included offenses. He said that he now understood the

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State “probably” had sufficient evidence to convict him and that had he understood this at
the time, it would have affected his decision to go to trial.

       On cross-examination, the Petitioner acknowledged that the forty years in the plea
offer was a long time but said he was unaware that he could receive 190 years if convicted.
He said he “might” have agreed to the forty-year sentence if he understood that the sentence
could have been much longer. The Petitioner acknowledged that he received a shorter
sentence than two of his co-defendants.

       On examination by the court, the Petitioner testified that had he known he might
receive consecutive sentences, “I’d gave it [the forty-year plea offer] some thought, then.”
He said no one, including the judge who arraigned him, advised him on the range of
punishment.

        Trial counsel testified that there were five or six individuals charged and that there
were two trials. He said the Petitioner was tried with two of his co-defendants after the trial
for the other co-defendants. Trial counsel testified that he met with the Petitioner at the jail
and on the days of court hearings. He said his defense of the Petitioner was based upon the
misidentification of the Petitioner’s twin brother as the perpetrator.

        Trial counsel testified that he explained consecutive sentencing to the Petitioner. He
recalled that one of the co-defendants received a 634-year sentence in the earlier trial. He
said he remembered discussing consecutive sentencing with the Petitioner in reference to the
634-year sentence. He said the Petitioner was offered a forty-year plea offer, that he thought
the Petitioner was questioned about rejecting it, and that the Petitioner was later offered a
thirty-year plea offer. He said that he and trial counsel for the co-defendants discussed the
thirty-year offer with the Petitioner. He recalled stressing that the judge had already shown
a willingness to use consecutive sentences by giving one of the co-defendants 634 years. He
said, “I remember saying thirty years, I know that’s a hard pill to swallow.” He said he
thought the Petitioner’s potential sentence was as much as 210 years. He said he did not
know how he could have made it clearer to the Petitioner.

       On examination by the court, trial counsel testified that he was sure he discussed the
Petitioner’s sentencing exposure with him. He said, “[T]he reason I remember that was his
co-defendant in particular got so many years. I wanted to make sure he understood it would
be consecutive, and I’m almost positive we voir dired him on it with the Judge before when
we set it for trial.” He estimated that he met with the Petitioner three or four times at the jail
and every time there was a court date. He said he thought there were more than ten court
dates. He acknowledged discussing trial strategy and the State’s theories with the Petitioner.



                                               -6-
        The trial court made findings of fact at the conclusion of the hearing. With respect
to the issue raised in this appeal, the court found:

              [Trial counsel] met with [the Petitioner] at least a couple of
              times prior to trial in the jail, and sometimes on the court dates
              he went into more detail about [the information he obtained
              during trial preparation] . . . . [H]e met with [the Petitioner] and
              thoroughly discussed . . . the issues, the strategies that were to
              be presented different from what [the Petitioner said] about the
              offers that were made during trial.

                     [Trial counsel] seems to remember very well the fact that
              there was a forty year offer initially but then during trial they
              even cut the offer to thirty years and he explained [it] to [the
              Petitioner]. And the reason he remembers it is because someone
              else got consecutive sentencing, a 600 year sentence, and he
              spoke with [the Petitioner] about the exposure [the Petitioner]
              could receive. And so I’ll have to credit his testimony in that
              regard.

The court found that the Petitioner failed to carry his burden of establishing his claims by
clear and convincing evidence and denied relief. The court later filed a written order denying
relief, in which the court made the additional finding, “Petitioner’s testimony regarding his
numerous complaints is self-serving and not credible.”

       On appeal, the Petitioner contends that he demonstrated by clear and convincing
evidence that trial counsel was ineffective because counsel did not advise him he should
accept the State’s plea offer. The State contends that the trial court properly denied relief.
We hold that the Petitioner has not shown that he is entitled to relief.

        The burden in a post-conviction proceeding is on the Petitioner to prove his
allegations of fact by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006);
Dellinger v. State, 279 S.W.3d 282, 294 (Tenn. 2009). On appeal, we are bound by the trial
court’s findings of fact unless we conclude that the evidence in the record preponderates
against those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). Post-conviction
relief may only be given if a conviction or sentence is void or voidable because of a violation
of a constitutional right. T.C.A. § 40-30-103 (2006). Because they relate to mixed questions
of law and fact, we review the trial court’s conclusions as to whether counsel’s performance
was deficient and whether that deficiency was prejudicial under a de novo standard with no
presumption of correctness. Fields, 40 S.W.3d at 457.

                                              -7-
        Under the Sixth Amendment to the United States Constitution, when a claim of
ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that
counsel’s performance was deficient and (2) that the deficiency was prejudicial. Strickland
v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72
(1993). A petitioner will only prevail on a claim of ineffective assistance of counsel after
satisfying both prongs of the Strickland test. See Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997). The performance prong requires a petitioner raising a claim of ineffectiveness
to show that counsel’s representation fell below an objective standard of reasonableness or
“outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690.
The prejudice prong requires a petitioner to demonstrate that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. In the context of a guilty plea, in order to prove prejudice,
a petitioner “‘must show that there is a reasonable probability that, but for counsel’s error,
he would not have pleaded guilty and would have insisted on going to trial.’” House v. State,
44 S.W.3d 508, 516 (Tenn. 2001) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

        Our supreme court has held that attorneys should be held to the general standard of
whether the services rendered were within the range of competence demanded of attorneys
in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Further, the court
stated that the range of competence was to be measured by the duties and criteria set forth
in Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974), and United States v.
DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). See id. Also, in reviewing counsel’s
conduct, a “fair assessment of attorney 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. “Thus, the fact that a particular strategy or tactic failed or even
hurt the defense does not, alone, support a claim of ineffective assistance.” Cooper v. State,
847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). Deference is made to trial strategy or tactical
choices if they are informed ones based upon adequate preparation. Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982); see DeCoster, 487 F.2d at 1201.

        To support his claim that trial counsel did not advise him adequately because he did
not understand the likelihood that he would be convicted or that he faced consecutive
sentences, the Petitioner relies on the transcript of the voir dire hearing regarding the plea
offer that took place before the trial. After appealing to this court, the Petitioner filed a
motion to supplement the record in this case with the record from his direct appeal. A judge
of this court denied the motion, noting that the policy of this court was not to supplement the
record of a pending appeal with the record of a closed, archived case. The order stated,
however, that the court would take judicial notice of the earlier record and that the parties



                                              -8-
could cite to the earlier record in their briefs. Keith Ezell v. State, No. W2010-00698-CCA-
R3-PC, Shelby County (Tenn. Crim. App. Nov. 8, 2010) (order).

       The record of the Petitioner’s conviction proceedings reflects that at the voir dire
hearing on the plea offer, the following took place:

              [Trial counsel] Q:    All right. State your name for the court,
              please.

              A:     Keith Ezell.

              Q:     Okay. Mr. Ezell, we’ve discussed all the charges against
              you, and we’ve gone over the discovery in this matter so far,
              have we not?

              A:     Right.

              Q:      Okay. And in fact the last time we set this matter for
              trial, do you remember receiving an offer of forty years?

              A:     Right.

              Q:      And we discussed that; we discussed your case again; and
              I’ve told you that you have, basically seven cases that could
              carry fifteen – in your range, fifteen to twenty-five years.

              A:     Right.

              Q:     And then you have several others that carry eight to thirty
              – eight to twelve in your range because you’re Range I. We’ve
              discussed that, have we not?

              A:     Right.

              Q:    And after doing that and going over the facts of this case
              and whatever, and again today, you were given that offer, were
              you not?

              A:     Right.



                                             -9-
              Q:    And we sat around, and all of us discussed it, and we
              came to the same conclusion that you wanted to reject that offer.

              A:      Right.

              Q:      Is that still the way you feel about it as of right now?

              A:      Right.

              Trial counsel:     That’s all I have, your honor.

The Petitioner also notes that the trial record does not contain any further voir dire of the
Petitioner once the offer was reduced to thirty years and that the trial record contains only
trial counsel’s reference to a discussion of the offer that included trial counsel, the co-
defendants’ attorneys, and the Petitioner.

        At the post-conviction hearing, the Petitioner testified that trial counsel never advised
him that he faced the possibility of consecutive sentences far exceeding the sentences
associated with the plea offers. He said that trial counsel never explained the State’s theory
of the case, the evidence, or the elements of the offenses. Trial counsel contradicted the
Petitioner’s testimony, stating that he explained the Petitioner’s sentencing exposure. He
recalled discussing a co-defendant’s 634-year sentence with the Petitioner. Trial counsel said
he met with the Petitioner and explained the State’s theory, the elements of the charged
offenses, and the evidence he gained in trial preparation. The trial court’s findings accredited
the testimony of counsel and discredited the Petitioner’s testimony.

       Upon review, we conclude that the evidence does not preponderate against the trial
court’s factual findings. The court accredited the testimony of trial counsel that he explained
the Petitioner’s sentencing exposure, the elements of the offenses, the State’s theory, and the
possible defenses, over the contrary testimony of the Petitioner. We note that the transcript
of the voir dire hearing of the Petitioner from the direct appeal record reflects that the
Petitioner acknowledged that trial counsel explained the charges, the evidence, and the
sentences the Petitioner faced. Although the trial record does not specifically address
whether the Petitioner recalled trial counsel’s explaining consecutive sentences to him,
nothing in the trial record calls into question the trial court’s finding at the post-conviction
hearing that trial counsel’s testimony that he did so was credible. The Petitioner has not
shown that trial counsel’s performance was deficient.

      Likewise, we conclude that the Petitioner failed to establish that trial counsel’s
performance was prejudicial. We note that the Petitioner’s testimony at the post-conviction

                                              -10-
hearing was equivocal when he was asked whether he would have pled guilty if he
understood the likelihood of conviction and the lengthy sentence he faced. The Petitioner
said that he “probably” would not have gone to trial and that he would have “[given] it [the
plea agreement] some thought.” Given the trial court’s finding that the Petitioner’s testimony
was not credible and the Petitioner’s failure to state unequivocally that he would have
accepted the plea agreement had he understood the likelihood of conviction and a lengthy
sentence if he went to trial, we conclude from the proof that the Petitioner did not show
prejudice.

       The Petitioner failed to establish that trial counsel performed deficiently and that he
was prejudiced by the performance. The trial court properly denied the Petitioner’s claim for
post-conviction relief based upon ineffective assistance of counsel. In consideration of the
foregoing and the record as a whole, the judgment of the trial court is affirmed.




                                             _____________________________________
                                             JOSEPH M. TIPTON, PRESIDING JUDGE




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