                                                                                          02/22/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs June 6, 2017

                 DWIGHT HARRIS v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                Nos. 15-00395, 14-02706 James C. Beasley, Jr., Judge
                      ___________________________________

                           No. W2016-01386-CCA-R3-PC
                       ___________________________________

Petitioner, Dwight Harris, pled guilty in case no. 14-02706 to aggravated burglary. He
received a six-year sentence as a Range II multiple offender. Petitioner pled guilty in
case no. 15-00395 to aggravated burglary and theft of property valued at more than
$1,000. He received an effective sentence of six years as a Range I standard offender to
be served consecutively to the sentence in case no. 14-02706. Petitioner subsequently
filed a post-conviction petition alleging that he received ineffective assistance of counsel
and that his guilty pleas were involuntary. After a hearing on the petition, it was denied
by the post-conviction court. On appeal, Petitioner also asserts that he did not receive the
effective assistance of counsel and that his guilty pleas were not voluntary. Following
our review of the record and the parties’ briefs, we affirm the judgment of the post-
conviction court.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ROBERT W. WEDEMEYER, JJ., joined.

Anna R. Smith, Memphis, Tennessee, for the appellant, Dwight Harris.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
Amy P. Weirich, District Attorney General; and Kenya Smith, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                        OPINION

Guilty Plea Submission Hearings

      At the guilty plea submission hearing on December 16, 2014, in case no. 14-
02706, the State set forth the following set of facts:
        [O]n September the 28th, 2013, Patricia Leachman reported a burglary at
        her residence located at 369 Kerwin. The suspect entered the residence
        by kicking in the rear door. Property was taken. Property was taken
        from the residence. Copper wires hidden (indiscernible) things, heating
        appliances.

        Responding officers processed the scene for prints. Prints were
        unknown at the time and latent print examiner Larry Preston advised that
        the prints lifted from the rear window and the broken glass were
        belonged [sic] to a Dwight Gasper [sic], Shelby County Sheriff’s Office
        R&I 315107. Detective McMinn contacted the victim and she did not
        know the Defendant. It did occur here in Shelby County [.]

       Petitioner told the trial court that trial counsel reviewed the guilty plea petition
with him, and Petitioner understood the charges against him. He did not have any
questions about the charges. The trial court explained all of Petitioner’s rights to him
concerning the guilty plea, and Petitioner said that he understood those rights and that he
wanted to plead guilty. He also said that no one forced him to enter the pleas, and he was
not promised anything. Petitioner told the trial court that he was satisfied with trial
counsel, and he again said that he did not have any questions.

       At the guilty plea submission hearing on June 5, 2015, in case no. 15-00395, the
State set forth the following set of facts:

        That on Thursday, May 8, the victim reported his home at 3395
        Barbwood located here in Shelby County was burglarized. Entry was
        gained through a rear bedroom window. Several rods of copper were
        stolen from the living room and rear bedroom of the house. The copper
        rods were valued at around eighteen hundred dollars.

        On that same day a witness, who was a neighbor, provided a description
        of a suspect whom he observed near the victim’s home. He also gave a
        suspect [sic] of the vehicle - - of the vehicle the suspect was driving with
        a tag number.

        Officers then stopped the defendant driving that same vehicle and
        observed in plain view the rods of copper inside the vehicle. The victim
        [sic] was taken down to the Memphis police department and he gave a
        signed written statement advising how he knew the rods of copper were
        stolen but that he was given the stolen copper from an individual he only
        knows by his first name. He said he was going to sell the stolen rods of


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        copper, and split the proceeds with the unknown individual who he said
        burglarized the victim’s home.

       Petitioner told the trial court that trial counsel reviewed the guilty plea petition
with him and explained it to him. Petitioner also said that he understood the petition and
the charges against him, and he did not have any questions. The trial court explained
Petitioner’s rights to him, and Petitioner said that he understood those rights. Petitioner
told the trial court that he wanted to enter the plea and that no one was forcing him to
plead guilty nor had they promised him anything. He said that he was satisfied with trial
counsel, and he did not have any other questions.

Post-Conviction Hearing

        Trial counsel testified that he did not counsel Petitioner to plead guilty. Rather, he
and Petitioner discussed the facts of the case, and it was Petitioner’s decision whether or
not to plead guilty. Trial counsel agreed that the victim in Petitioner’s first case could not
be found at the address listed on the General Sessions court subpoena. Trial counsel may
have discussed the difficulty in locating the victim with Petitioner but he “seldom” used
that as a defense.

       Trial counsel testified that he was “probably not” aware of Petitioner’s level of
education prior to entry of the guilty pleas. He remembered talking to Petitioner in his
office several times, and he did not “see anything that was unusual about it[.]” Trial
counsel did not recall if Petitioner told him that he was in “remedial school rather than
the regular school system[.]” Trial counsel explained: “Normally what I do I size up my
client by my and his discussion. If I’m discussing things with him, he’s discussing
things, he’s articulating himself fairly well and I don’t see any reason to think that that
[sic] he doesn’t understand, then I just do my usual thing.” Trial counsel testified that he
was aware of the intricacies of sentencing and the difference between consecutive and
concurrent sentencing. Concerning Petitioner’s sentence, trial counsel testified:

        Well if you commit a crime when out on bond it shall be consecutive to
        that sentence, it has to be. And normally the way I explain it to them, I
        don’t necessarily use consecutive or concurrent, I say, I either tell them, I
        say, look, this case is going to run wild. In fact, your sentence really is
        going to be twelve years. I would have told him, your sentence is not
        going to be six years, it’s going to be twelve years because one is going
        to run behind the other and its going to be running wild. They normally
        understand it being running wild.

       Trial counsel testified that he counseled Petitioner prior to Petitioner’s second
guilty plea in case no. 15-00395. He discussed mandatory consecutive sentencing
because Petitioner committed the offenses while on bond in case no. 14-02706. He

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thought that Petitioner had pled guilty in case no. 14-02706 before he was indicted in
case no. 15-00395. Trial counsel advised Petitioner “that it can’t run concurrent.” He
said that Petitioner asked if the sentences in the two cases could be run together, and trial
counsel said, “[Y]ou can’t run them together, that’s not possible.” Trial counsel testified
that Petitioner understood that consecutive sentences were mandatory in his cases. Trial
counsel testified that he and Petitioner reviewed the evidence before Petitioner pled guilty
in the second case. He thought that Petitioner confessed to having possession of the
stolen items but said that he did not “break into the place.” Trial counsel also thought
that Petitioner was arrested a short time after the burglary occurred.

       On cross-examination, trial counsel testified that he had practiced law for thirty-
two years, and he did not think it was a good defense strategy to set cases for trial with
the hope that the victim would not show up for court. He noted that some defendants
thought the strategy would work, but trial counsel testified that “the very time you think
they’re not going to show up, you’ll look in the audience, they’ll be sitting back there.”
Trial counsel did not know whether Petitioner had been in “remedial school” but he knew
that Petitioner had a prior criminal record and a lot of contact with the courts. Petitioner
had also previously entered guilty pleas in other cases. Trial counsel specifically testified
that he did not think that Petitioner was “slow.” He said that it was ultimately
Petitioner’s decision to plead guilty.

       Trial counsel testified that Petitioner “had a concern about whether he could run
those cases together.” Trial counsel stated, “But I told him there’s no way for us to do
it.” Trial counsel testified that if he thought that Petitioner had a “learning problem” or
did not understand what trial counsel was saying, counsel would “probably do a mental
evaluation on him.” Trial counsel agreed that Petitioner signed the judgment sheet in
case no. 15-00395 which stated that the sentences would be consecutive.

       Petitioner testified that he was in “resource” and attended school until the 11th
grade. He did not graduate or receive his GED. When asked what “resource” meant,
Petitioner testified: “They help you, help you, well, my reading is a little bit slower than
others, so I have to get people to help me out a little bit more than the average person.”
Petitioner also said that he had difficulty with “reading comprehension or understanding
material.” Petitioner said that he told trial counsel that he did not graduate from high
school and that he had problems with reading and writing. He did not tell trial counsel
that he was in resource classes in school. They did not discuss whether he needed to have
an evaluation done to determine his ability to stand trial or enter a plea.

        Petitioner testified that when he entered the guilty plea on December 16, 2014, in
case no. 14-02706, he and trial counsel had discussed his other burglary charge. He told
trial counsel that he “already had one case that had been dismissed[.]” He also asked trial
counsel: [C]an they pick it up[?], and trial counsel said, “Yes.” Petitioner did not recall


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trial counsel indicating that the second case would affect how he was sentenced. The
following exchange then took place between post-conviction counsel and Petitioner:

       Q: Do you remember asking him what would happen if I got charged
       for that second robbery [sic]?

       A: My understanding he say [sic] give me one deal, that he can run all
       my charges and make it just one, one sentence.

       Q: Okay. So at the time you entered that first guilty plea did you think
       that that case was covering all of the pending charges that you had?

       A:   Yes, ma’am.

       Q: Okay. Does that include the other robbery [sic] charge that had
       been dismissed downstairs?

       A. Yes, ma’am.

       Q. Okay. When did you find out that that charge was not included in
       that plea agreement?

       A. After, after I signed, when I got ready to sentence but right before I
       went into custody, the last judgment sheet I had signed.

       Q. Okay. When you came back to plead for that second charge in
       June of 2015, about six months after your first plea agreement, do you
       remember talking to [trial counsel] at that point in time about what your
       sentence might look like?

       A. Yeah, we discussed. He said you’re looking at six years on this
       case.

       Q. Okay. When he said that you were looking at six years on that case
       did you understand that to mean six years total for both cases or did you
       understand that to mean six years for that second case?

       A.   Six years altogether.

       Q. Okay. At any point in time did [trial counsel] talk to you about
       spending a total of twelve years incarcerated?

       A.   No, ma’am.

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       On cross-examination, Petitioner testified that trial counsel told him that “he’s
going to get both of my charges and run it altogether, make it one sentence. And it’s
suppose[d] to be six years. That’s what my understanding that I had signed.” Petitioner
indicated that even though the judgment sheet said that the sentence in case no. 15-00395
would be served consecutively to the sentence in case no. 14-02706, he thought that it
was “one sentence[.]” Petitioner claimed that he did not understand the word
“consecutive” when it was mentioned by the trial court and the prosecutor at the guilty
plea submission hearing, and he did not ask what the word meant when the trial court
asked if he had any questions about the plea agreement. Petitioner reiterated that he
thought that he was pleading guilty to an effective six-year sentence rather than a twelve-
year sentence.

      On re-direct examination, Petitioner testified that twelve years was never
mentioned during the guilty plea submission hearing. He also said that no one defined
consecutive or concurrent sentences during the process.

       Analysis

       The post-conviction court’s findings of fact are conclusive on appeal unless the
evidence preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).
During our review of the issues raised, we will afford those findings of fact the weight of
a jury verdict, and this Court is bound by the post-conviction court’s findings unless the
evidence in the record preponderates against those findings. See 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. See 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. See
Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

        When a petitioner seeks post-conviction relief on the basis of ineffective
assistance of counsel, he must first establish that the services rendered or the advice given
were below the standard range of competence. Second, he must show that the
deficiencies “actually had an adverse effect on the defense.” Strickland v. Washington,
466 U.S. 668, 693 (1984). As to guilty pleas, the petitioner must establish a reasonable
probability that, but for the errors of his counsel, he would not have entered the plea. Hill
v. Lockhart, 474 U.S. 52, 59 (1985). 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).


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       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.” Blankenship v. State, 858 S.W.2d 897, 905 (Tenn. 1993). 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).

       At the conclusion of the post-conviction hearing in this case, the post-conviction
court made the following findings:

        I’ve listened to the testimony. I think [trial counsel] is obviously a
        trained criminal trial attorney. I don’t know if much of his practice is
        civil, I suspect a huge majority of his law practice is criminal and he’s
        been practicing criminal law for I think he said thirty years.

        The law is very clear that if you commit a crime while you’re on bond
        that sentence is going to be consecutive. It’s very clear that under that
        law these sentences cannot legally be run concurrent. The State knows
        that. The defense attorneys know that.

        I find it hard to believe that a seasoned, experienced criminal defense
        lawyer would tell his client that he’s going to get concurrent time when
        he’s got a crime that was committed while he was on bond. That pretty
        much defies logic.

        And I have to judge the credibility of [trial counsel], he’s been practicing
        law down here for many, many, many years versus [Petitioner] who has
        been in the system over a number of years. [Petitioner] tells me that his
        lawyer just completely lied about how these negotiations were going
        versus an attorney who, quite frankly, as he put it, just assume [sic] if his
        client doesn’t want to take offers set it for trial and just try it. That if
        [Petitioner] had said he wanted to go to trial on these cases, that [trial
        counsel] would [have] scheduled them for trial and tried them.

        I think more logically it is that [trial counsel] was attempting to negotiate
        some type of a settlement for [Petitioner]. That the sentence had to be
        consecutive. And from standpoint of judging credibility I do not find
        that I believe that [trial counsel] intentionally told [Petitioner] something
        that was not true.

        I think [Petitioner] negotiated a guilty plea through [trial counsel] and
        entered the plea freely, voluntarily and knowingly and then sought

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        probation. And at the probation hearing the request was denied and
        [Petitioner] at that point had to go serve his sentence. And unfortunately
        twelve years is a long time and all of a sudden at that point he decided
        that he didn’t know what he was doing and that his lawyer didn’t advise
        him correctly. I don’t find that testimony to be credible.

        I think the burden is on [Petitioner] to convince me that he didn’t
        understand and I don’t believe from the testimony that he didn’t
        understand that his six[-]year sentence was consecutive to the other six
        year sentence. It was advised by his attorney, in my opinion it was
        advised by the State, it was advised by me.

        And I don’t think [Petitioner] has got any mental issues that would not
        allow him to understand what running wild and what that means that that
        means one going after the other. And I don’t - - if there was any
        misunderstanding [Petitioner] I think is capable of saying I don’t
        understand and we’ve never heard anything until post-conviction and
        post-denial of probation that he didn’t understand that.

        So I’m of the opinion that he has not carried his burden of proof. That
        he had not shown that he did not freely and voluntarily and knowingly
        enter his guilty plea. Likewise, I find that [trial counsel] adequately
        represent[ed] [Petitioner] in handling of these cases. That he did provide
        effective assistance of counsel and that [Petitioner’s] guilty pleas should
        stand and I will deny the petition for post-conviction relief.

       We conclude that the record supports the post-conviction court’s findings that
Petitioner’s guilty pleas were knowingly and voluntarily entered and that Petitioner
received the effective assistance of counsel. The gist of Petitioner’s argument is that he
did not have the mental capacity to understand the guilty pleas or the consequences of the
pleas because he was in resource classes in school and that he did not graduate from high
school or obtain his GED. He further asserts that he did not understand the difference
between concurrent and consecutive sentencing and that trial counsel should have
requested a mental health evaluation of him.

       There is nothing in the record, other than Petitioner’s testimony (which the post-
conviction court found to not be credible), to indicate that Petitioner did not have the
mental capacity to enter his guilty pleas in case nos. 14-02706 and 15-00395 or that he
did not understand the difference between consecutive and concurrent sentencing. The
sole facts that Petitioner may have been in resources classes in school and that he did not
complete high school or obtain his GED does not prove that he lacked the mental
capacity to understand the pleas. Petitioner testified that being in “resource” classes
meant that his reading was a “little bit slower” than others and that he had difficulty with

                                           -8-
“reading comprehension or understanding material.” However, Petitioner presented no
other proof of his mental capacity. He also admitted that he did not tell trial counsel that
he was in resources classes in school. Petitioner testified that he told trial counsel that he
did not graduate from high school and that he had problems with reading and writing.

       Trial counsel testified that he did not notice anything unusual about Petitioner
when they talked in trial counsel’s office. Trial counsel testified that if he had thought
that Petitioner had a “learning problem” or did not understand what trial counsel was
saying, counsel would have probably requested a mental evaluation. Trial counsel
specifically stated that he did not think that Petitioner was “slow.”

        Trial counsel testified that he counseled Petitioner prior to Petitioner’s second
guilty plea in case no. 15-00395. They discussed mandatory consecutive sentencing
because Petitioner committed the offenses while on bond in case no. 14-02706. Trial
counsel advised Petitioner “that it can’t run concurrent.” He said that Petitioner asked if
the sentences in the two cases could be run together, and trial counsel said, “[Y]ou can’t
run them together, that’s not possible.” Trial counsel testified that Petitioner understood
that consecutive sentences were mandatory in his cases. Petitioner signed the judgment
sheet in case no. 15-00395 which stated that the sentences would be consecutive. Trial
counsel also pointed out that Petitioner had a prior criminal record and frequent contact
with the courts. Petitioner had also entered guilty pleas in other cases. At the guilty plea
submission hearings, Petitioner told the trial court that he understood the charges against
him, and he did not have any questions. The post-conviction court specifically stated that
it accredited trial counsel’s testimony.

       We conclude that Petitioner failed to meet his burden of demonstrating by clear
and convincing evidence that he was denied the effective assistance of trial counsel. We
further conclude that Petitioner’s guilty pleas were knowing, intelligent, and voluntary.
Petitioner is not entitled to relief on this issue.

                                      CONCLUSION

       Based on the foregoing, we affirm the judgment of the post-conviction court.


                                    ____________________________________________
                                    THOMAS T. WOODALL, PRESIDING JUDGE




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