         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   February 12, 2003 Session

                  MELVIN E. BEARD v. STATE OF TENNESSEE

                 Direct Appeal from the Circuit Court for Williamson County
                          No. 601-190    Timothy L. Easter, Judge



                       No. M2002-02140-CCA-R3-PC - Filed May 9, 2003


Petitioner, Melvin E. Beard, appeals from the denial of his petition for post-conviction relief. In his
appeal, Petitioner alleges that his trial counsel rendered ineffective assistance of counsel in
connection with the negotiation and entry of Petitioner's best interest plea to the charge of sale and
delivery of cocaine, that his best interest plea was involuntary, and that the factual basis presented
by the State was insufficient to support his plea. After a careful review of the record in this matter,
we conclude that the evidence does not preponderate against the trial court's findings of fact. We
therefore affirm the judgment of the trial court.

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

THOMAS T. WOODA LL, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JOE
G. RILEY, JJ., joined.

George M. Allen, Brentwood, Tennessee, for the appellant, Melvin E. Beard.

Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney
General; Ronald L. Davis, District Attorney General; and Derek K. Smith, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                              OPINION

1. Background

        After his indictment for the sale and delivery of less than .5 grams of cocaine on December
14, 1998, Petitioner entered into a plea agreement with the State. Following a plea submission
hearing, the trial court accepted Petitioner’s best interest plea to the charge and sentenced Petitioner
to ten years as a Range II offender. The trial court also imposed a fine of $2,000. According to the
terms of the plea agreement, Petitioner's sentence for this offense was ordered to run concurrently
with Petitioner's sentences resulting from a previous conviction for the sale of cocaine and a second
conviction for aggravated perjury.
        On June 19, 2001, Petitioner filed a pro se post-conviction petition. As later amended, the
petition alleged that his trial counsel, Eric Davis, rendered ineffective assistance during the
negotiation and entry of Petitioner’s best interest plea, that his plea was unknowing and involuntary,
and that the factual basis presented at the hearing was insufficient to support his best interest plea.

         In order to understand the issues raised in Petitioner’s post-conviction petition, it is necessary
to briefly outline the sequence of events leading up to his best interest plea. In 1997, Petitioner was
placed in the community corrections program following a conviction of driving after being declared
a motor vehicle habitual offender. In 1998, Petitioner tested positive for cocaine, and a hearing was
held to determine whether Petitioner had violated the terms of his program. During the revocation
hearing, Tracy Johnson, a confidential informant for the Williamson County Sheriff’s Department,
testified that she had purchased cocaine from Petitioner on two occasions during Petitioner’s
probationary period while her husband, Mr. Bennett, had made one purchase. At the revocation
hearing, the prosecutor asked Petitioner if he had ever been involved in any way with the sale of
cocaine while he was in the community corrections program. Petitioner testified under oath, “Not
that I know of.”

        At the conclusion of the revocation hearing, the trial court revoked Petitioner’s participation
in the community corrections program. In addition, Petitioner was tried and convicted of aggravated
perjury for which the trial court sentenced Petitioner to five years as a Range II offender. During this
time, Petitioner was tried and convicted of the sale of cocaine based on his first sales transaction with
Ms. Johnson. For this conviction, Petitioner received a sentence of ten years. Petitioner was also
indicted for the second sale of cocaine to Ms. Johnson, and it is this transaction that provides the
basis for his best interest plea before us today. Petitioner was not indicted for the sale of cocaine to
Mr. Bennett.

         Ms. Johnson testified at both of Petitioner’s previous trials, and the evidence that supported
his indictment for the second sale of cocaine to Ms. Johnson was essentially presented at both his
trial for aggravated perjury and his revocation hearing. Mr. Davis, along with co-counsel, Lionel
Barrett, was retained to represent Petitioner on the charges of aggravated perjury and the first sale
of cocaine. Mr. Davis, however, was on vacation at the time the trial for sale of cocaine was
conducted, and Mr. Barrett tried this matter alone. Although Petitioner did not retain Mr. Davis in
connection with his second indictment for the sale of cocaine, the trial court appointed him to
represent Petitioner in the matter.

        The facts surrounding the second sale of cocaine are summarized as follows. Tracy Johnson
arranged to purchase crack cocaine from Petitioner. After being outfitted with a recording device,
Ms. Johnson went to Petitioner’s home. Petitioner directed her to the kitchen where Ms. Johnson
found Stacy Woods. Mr. Woods separated out an amount of crack cocaine from the drugs on the
table in exchange for Ms. Johnson’s money and looked to Petitioner to see if the amount was
appropriate. Petitioner indicated his approval, and the transaction was completed. The substance
purchased by Ms. Johnson tested positive for crack cocaine. The State informed the trial court at the



                                                   -2-
plea submission hearing that both Ms. Johnson and Mr. Woods would testify as to this sequence of
events if the matter was tried.

2. Plea Submission Hearing

        At the plea submission hearing, the trial court methodically questioned Petitioner as required
by Rule 11 of the Tennessee Rules of Criminal Procedure. The trial court reviewed the elements of
the offense of selling a controlled substance, and Petitioner responded that he understood the nature
of the charges against him. Petitioner also said that he had reviewed the petition for waiver of trial
by jury and request for acceptance of a plea of guilty with Mr. Davis. The trial court asked Petitioner
several times if he wanted to plead guilty and whether his plea was voluntary. Petitioner responded
affirmatively to the trial court’s questions. Petitioner also said that he was satisfied with Mr. Davis’
performance noting that Mr. Davis had done a “good job.”
        During the hearing, Petitioner was sometimes inarticulate, and Mr. Davis told the trial court
that years of cocaine abuse had left Petitioner with a diminished capacity for processing information
when he was under stress. It was Mr. Davis’ opinion that Petitioner was evasive not because he did
not understand the nature of the offense but because he did not think the charge was fair or that his
conduct was criminal. Petitioner steadfastly maintained that he was a drug user, not a drug dealer,
and that, at worst, he merely introduced people to those who could sell them drugs.

        The State then recited the factual basis in support of the charge. The trial court asked
Petitioner if he agreed with the facts presented, and, this time, Petitioner responded negatively.
Specifically, he disagreed that the drugs were on his kitchen table when Ms. Johnson arrived and said
that Stacy Woods had the drugs in his possession instead. At this point, Mr. Davis informed the trial
court that Petitioner’s plea was a “best interest plea.”

        The trial court explained the elements necessary to find that Petitioner was criminally
responsible for the sale of cocaine and asked him if he understood. When Petitioner faltered, the trial
court reminded Petitioner that the concept had been thoroughly explained in his first trial for the sale
of cocaine. Petitioner then said that he understood that he could be found criminally responsible for
Mr. Woods’ conduct. The trial court concluded that the factual basis presented by the State was
sufficient to support the plea to the charge of sale of cocaine under a theory of criminal
responsibility. Petitioner indicated that he did not disagree with the trial court’s conclusion.

3. Post-Conviction Hearing

        At the post-conviction hearing, Petitioner testified that he did not remember reviewing the
guilty plea agreement with Mr. Davis. Although he admitted that he agreed with the trial court’s
findings at the plea submission hearing, Petitioner stated in the post-conviction hearing that he does
not understand why he was criminally responsible for Mr. Woods’ conduct. As a result, Petitioner
argues that his best interest plea was neither voluntary nor knowing. Petitioner said that Mr. Davis
never discussed the theory of criminal responsibility with him and had he known that he was going
to be convicted on this basis, he would not have entered a best interest plea. In fact, Petitioner was


                                                  -3-
not sure what a best interest plea meant, and Petitioner was not aware that Mr. Davis was going to
change his guilty plea to a best interest plea in the middle of the proceedings. Petitioner said that
he was in “bad shape” at the time of the plea submission hearing and told Mr. Davis that he was
having trouble understanding the proceedings. Petitioner also said that he was unfamiliar with court
proceedings.

         In addition, Petitioner contends that Mr. Davis did not adequately investigate his case prior
to advising Petitioner to plead guilty. Specifically, Petitioner thought Mr. Davis should have
interviewed the confidential informant, Tracy Johnson, reviewed the tape recording of Petitioner’s
first trial to assess Ms. Johnson’s credibility, and filed various motions on Petitioner’s behalf.
Petitioner said that he told the trial court at the plea submission hearing that he was satisfied with
Mr. Davis’ representation because Petitioner did not fully understand the function of his counsel in
the proceeding until later.

        On cross-examination, Petitioner agreed that he had been tried and convicted of aggravated
perjury and sale of cocaine just six months before the entry of the plea on the second charge of sale
of cocaine. In both of the prior convictions, Tracy Johnson was a witness for the State. Petitioner
said Mr. Davis told him that the trial court would order him to serve his sentences for all three
offenses consecutively if he did not plead guilty. Petitioner also admitted that he had pled guilty to
several charges of driving while under the influence in the past and also to driving with a revoked
license.

        Petitioner’s girlfriend, Jean Crafton, testified that Petitioner asked her to call Mr. Davis
periodically to ascertain the status of his case. On one occasion, Ms. Crafton asked Mr. Davis what
he was doing on Petitioner’s case, and Mr. Davis responded that he was not doing “jack shit.” On
cross-examination, Ms. Crafton said that she frequently called Mr. Davis, and Mr. Davis had never
failed to answer or return her calls.

        Mr. Davis testified that he had participated in more than seventy jury trials and that he had
a perfect grasp of the facts surrounding all of Petitioner’s indictments. In his view, the only issue
was whether Tracy Johnson would testify against Petitioner because she had been known not to
appear in court. When Ms. Johnson did testify in Petitioner’s other proceedings, Mr. Davis felt it
was in Petitioner’s best interest to plead guilty to the second drug charge and secure concurrent
sentencing. Mr. Davis said that Petitioner did not want to testify at a second trial because he was
afraid he would be tried for perjury again.

        Mr. Davis said that he spent more time with Petitioner than he usually did with clients
because of Petitioner’s inability or refusal to understand what was happening to him. Although
Petitioner apparently had trouble digesting information, Mr. Davis believed Petitioner was fully
competent to stand trial. Mr. Davis said that he thoroughly reviewed the plea agreement with
Petitioner, and both Mr. Davis and Mr. Barrett had discussed the concept of criminal responsibility
with Petitioner on numerous occasions.



                                                 -4-
         In response to Ms. Crafton’s complaints, Mr. Davis did not confirm whether or not he used
the term “jack shit” but stated that the gist of that response was correct. At the time Ms. Crafton
called, there was nothing more to do on the second indictment for sale of cocaine. The first case as
well as the aggravated perjury case had been tried, and Mr. Davis knew what the witnesses would
say in the second drug case. At that the time Ms. Crafton called, Mr. Davis was waiting for
Petitioner to decide whether he wanted to plead guilty or proceed to trial. If Petitioner decided he
wanted a trial, Mr. Davis said that he was fully prepared to go forward with the case.

        Although Petitioner faulted Mr. Davis for not filing any motions such as a motion to
suppress, Mr. Davis responded that such motions were not necessary. The case, for example, did
not involve any searches or confessions. As far as failing to review the tape of the first drug case that
was held while he was on vacation, Mr. Davis felt that such activity would be a waste of time. Mr.
Davis had seen Tracy Johnson testify before and had the opportunity at that time to assess her
credibility on the stand, and Mr. Davis was aware of Ms. Johnson’s prior convictions. As appointed
counsel, he felt that watching an eight-hour tape would be “frivolous.”

        Mr. Davis said that his decision not to interview Ms. Johnson prior to trial was a tactical
decision. Mr. Davis did not want Ms. Johnson to refer to any conversation between the two of them
when he cross-examined her. Although he could not remember if he discussed this decision with
Petitioner, he did discuss the strategy with the co-defendant’s counsel.

        At the conclusion of the post-conviction hearing, the trial court found Mr. Davis’ testimony
credible on all conflicting evidence. The trial court further found that Petitioner failed to show by
clear and convincing evidence that his plea was not voluntarily and knowingly made or that the
factual basis presented by the State in support of the charge against Petitioner was insufficient to
support a finding of guilt. Accordingly, the trial court denied Petitioner’s request for relief.

4. Standard of Review

        In his appeal, Petitioner contends that the trial court erroneously found that (1) Mr. Davis
provided effective assistance of counsel in the negotiation and entry of his best interest plea to the
sale and delivery of cocaine; (2) Petitioner’s plea was voluntarily and knowingly made; and (3) the
factual basis presented by the State was sufficient to support a conviction of sale and delivery of
cocaine pursuant to a theory of criminal responsibility.

        A petitioner seeking post-conviction relief must establish his allegations by clear and
convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997). The trial court’s findings of fact in
a post-conviction hearing are afforded the weight of a jury verdict. Black v. State, 794 S.W.2d 752,
755 (Tenn. Crim. App. 1990), perm. to appeal denied (Tenn. 1990). Therefore, this Court may not
re-weigh or re-evaluate these findings nor substitute its inferences for that of the trial judge unless
the evidence in the record preponderates against those findings. State v. Honeycutt, 54 S.W.3d 762,
763 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). In addition, questions
concerning the credibility of witnesses and the weight and value given their testimony is resolved


                                                  -5-
by the post-conviction court, and not this Court. Id. However, the trial court’s application of the law
to the facts is reviewed de novo, without a presumption of correctness. Fields v. State, 40 S.W.3d
450, 458 (Tenn. 2001). A claim that counsel rendered ineffective assistance is a mixed question of
fact and law and therefore also subject to de novo review. Id.; Burns, 6 S.W.3d at 461.

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, he must establish that counsel’s performance fell below “the range of competence
demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). In
addition, he must show that counsel’s ineffective performance actually adversely impacted his
defense. Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 2067, 80 L. Ed. 2d 674
(1984). In other words, a petitioner must show that he or she would not have pleaded guilty and
would have insisted on going to trial had it not been for the deficiencies in counsel’s performance.
Hill v. Lockhart, 474 U.S. 52, 56-57, 106 S. Ct. 366, 369-70, 88 L. Ed. 2d 203 (1985).

        In reviewing counsel’s performance, the distortions of hindsight must be avoided, and this
Court will not second-guess counsel’s decisions regarding trial strategies and tactics. Hellard v.
State, 629 S.W.2d 4, 9 (Tenn. 1982). The reviewing court, therefore, should not conclude that a
particular act or omission by counsel is unreasonable merely because the strategy was unsuccessful.
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Rather, counsel’s alleged errors should be judged
from counsel’s perspective at the point of time they were made in light of all the facts and
circumstances at that time. Id. at 690, 104 S. Ct. at 2066.

        A petitioner must satisfy both prongs of the Strickland test before he or she may prevail on
a claim of ineffective assistance of counsel. See Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997).
That is, a petitioner must not only show that his counsel’s performance fell below acceptable
standards, but that such performance was prejudicial to the petitioner. Id. Failure to satisfy either
prong will result in the denial of relief. Id. Accordingly, this Court need not address one of the
components if the petitioner fails to establish the other. Strickland, 466 U.S. at 697, 104 S. Ct. at
2069.

                               A. Ineffective Assistance of Counsel

        Petitioner alleges that Mr. Davis was deficient for not interviewing the State’s key witness,
Tracy Johnson, prior to trial. Petitioner argues that he was prejudiced by Mr. Davis’ conduct because
he was left without sufficient information with which to make a decision to plead guilty or to
proceed to trial. Further, Mr. Davis’ failure to inform Petitioner of critical decisions during trial
preparation prevented him from making an intelligent assessment of the potential risks if the matter
was tried.

       Mr. Davis’ decision not to interview Ms. Johnson was a matter of trial strategy which this
Court will not, as a general rule, second-guess. Hellard, 629 S.W.2d at 9. Mr. Davis knew what Ms.
Johnson would say in court, and both Mr. Davis and Petitioner had ample opportunity to view Ms.
Johnson’s demeanor in a courtroom setting and assess her credibility during Petitioner’s other


                                                 -6-
proceedings. In fact, the testimony that Ms. Johnson was prepared to offer in Petitioner’s second
drug trial was essentially the same testimony provided at Petitioner’s aggravated perjury trial during
which both he and Mr. Davis were present. The record shows that Mr. Davis frequently
communicated with Petitioner about the details of his case. Although he may not have specifically
discussed his decision not to interview Ms. Johnson with Petitioner, Mr. Davis retained the right to
make tactical and strategic decisions based on his professional judgment. See Leslie v. State, 36
S.W.3d 34 (Tenn. 2000). Petitioner has not shown by clear and convincing evidence that Mr. Davis
was deficient in this regard.

        Petitioner interprets Mr. Davis’ remarks during the post-conviction hearing concerning the
practical differences between the level of service provided by retained as opposed to appointed
counsel to indicate that Mr. Davis would have reviewed the tapes of Petitioner’s first trial if he had
been retained rather than appointed for the second charge. Certainly, we agree with Petitioner’s
larger argument that there is no meaningful distinction between an indigent’s and a non-indigent’s
Sixth Amendment right to counsel once counsel has been appointed. See State v. Huskey, 82 S.W.3d
297 (Tenn. Crim. App. 2002). However, we do not interpret Mr. Davis’ comments in the same
manner as Petitioner. Mr. Davis had already testified that viewing the tape of Petitioner’s first trial
would not have been particularly helpful since he knew what Ms. Johnson would say. Petitioner is
not entitled to relief on this issue.

         Finally, after hearing conflicting versions of the telephone call between Ms. Crafton and Mr.
Davis, the trial court accredited the testimony of Mr. Davis concerning his conversation with Ms.
Crafton. As noted above, factual questions involving the assessment of a witness’s credibility are
left to the responsibility of the trial court who is in the best position to view the demeanor of the
testifying witnesses. See Burns, 6 S.W.3d at 461. The evidence does not preponderate against the
trial court’s findings that Mr. Davis rendered effective assistance to Petitioner, and Petitioner is not
entitled to relief on this issue.

        For the foregoing reasons, we find that the evidence does not preponderate against the trial
court’s finding that Petitioner failed to establish by clear and convincing evidence that Mr. Davis
provided ineffective assistance.

                                        B. Best Interest Plea

       At the plea submission hearing, Mr. Davis expressed his opinion that years of cocaine abuse
had impaired Petitioner’s ability to process information well when he was under stress. Petitioner
argues that his mental state at the time of the submission hearing and his denial of any criminal
responsibility in the matter for which he was indicted rendered his plea involuntary and unknowing.

       When an accused enters a plea of guilty, constitutional considerations mandate that the plea
be voluntarily, understandingly and knowingly entered. See Boykin v. Alabama, 395 U.S. 238, 243,
89 S. Ct. 1709, 1713, 23 L. Ed. 2d 274, 279 (1969); State v. Neal, 810 S.W.2d 131, 134-35 (Tenn.
1991) overruled on other grounds by Blankenship v. State, 858 S.W.2d 897, 902 (Tenn. 1993). By


                                                  -7-
entering a plea, the defendant waives certain constitutional rights including the privilege against self-
incrimination, the right to a trial by jury, and the right to confront witnesses. Boykin, 395 U.S. at
243, 89 S. Ct. at 1714. The defendant’s waiver of these constitutional rights may not be presumed
from a silent record. Id.

        A plea cannot be voluntary if the accused is “incompetent or otherwise not in control of his
mental facilities” at the time the plea is entered. Blankenship v. State, 858 S.W.2d 897, 904-05
(Tenn. 1993) (quoting Brown v. Perini, 718 F. 2d 784, 788 (6th Cir. 1983)). The trial court must
ascertain if the defendant fully understands the significant consequences of his or her plea. State v.
Pettus, 986 S.W.2d 540, 542 (Tenn. 1999). The trial court may consider a number of factors
including the defendant’s relative intelligence, his familiarity with criminal proceedings, whether
he was represented by competent counsel and had the opportunity to confer with counsel about his
options, the advice given by counsel and the trial court about the charges against him and the penalty
to be imposed, and the defendant’s reasons for pleading guilty. Blankenship, 858 S.W.2d at 904.

        Based on a careful review of the record which includes a video recording of Petitioner’s plea
submission, we do not conclude that the evidence preponderates against the post-conviction court’s
finding that Petitioner’s plea was voluntarily and knowingly entered. At the post-conviction hearing,
Petitioner testified that Mr. Davis had not explained the plea submission process to him and he was
unfamiliar with court proceedings notwithstanding his prior trials and conviction. However, Mr.
Davis said that he not only read the plea agreement to Petitioner but explained it, and Petitioner was
clear that he wanted to avoid a trial. Petitioner was not only afraid that he might be charged again
for perjury if he testified, but he was also scared to give any testimony adverse to third parties.
Although Petitioner’s comprehension of legal concepts was sometimes slow, Mr. Davis at no time
doubted that Petitioner was competent to stand trial. Mr. Davis said that Petitioner understood that
a plea would result in no more jail time while a trial would expose Petitioner to the risk of
consecutive sentencing. Both Mr. Davis and Mr. Barrett had thoroughly explained the theory of
criminal responsibility to Petitioner.

        The post-conviction court found that Petitioner did not show by clear and convincing
evidence that his plea was involuntary. As evidenced by the video tape of the plea submission
hearing which the post-conviction court refers to in its order, Petitioner understood the nature of the
crime, the range of the sentence for the offense, the distinction between concurrent and consecutive
sentencing, and the differences between his various indictments. The post-conviction court also
noted that Petitioner assured the plea submission court that his plea was voluntary on numerous
occasions and testified that he was not on any drugs that would affect his ability to make a
meaningful decision. The post-conviction court specifically accredited Mr. Davis’ testimony as to
Petitioner’s comprehension of the consequences of his plea. Petitioner is not entitled to relief on this
issue.




                                                  -8-
                           C. Factual Support for Petitioner’s Conviction

        Relying on this Court’s decision in State v. Lord, 894 S.W.2d 312 (Tenn. Crim. App. 1994),
Petitioner argues that the factual basis presented by the State at the plea submission hearing was
insufficient to support a conviction of sale of cocaine under a theory of criminal responsibility.
Specifically, Petitioner contends that the State offered no facts that Petitioner benefitted from the
sale, had a duty to prevent the sale or acted intentionally to promote or assist in the sale as required
by Tennessee Code Annotated section 39-11-402.

         We note first that a challenge to the sufficiency of the factual basis of the indictment leading
to an accused’s plea does not rise to the level of a constitutional violation and therefore does not
present a ground for relief in a post-conviction proceeding. Powers v. State, 942 S.W.2d 551, 555
(Tenn. Crim. App. 1996); Tenn. Code Ann. § 40-30-203. While the Boykin court concerned itself
with the safeguards necessary to ensure the voluntariness of the waiver of the constitutional rights
inherent in a guilty plea, our supreme court developed stricter standards in State v. Mackey, 553
S.W.2d 337, 340-41 (Tenn. 1977), superseded on other grounds by Tenn. R. Crim. P. 37(b) and
Tenn. R. App. P. 3(b). The Mackey requirements were later adopted into Rule 11 of the Tennessee
Rules of Criminal Procedure. Our courts have consistently held that the Mackey guidelines that
exceed the Boykin standards are supervisory rather than constitutionally based and, therefore, not
cognizable in a petition for post-conviction relief. Powers, 942 S.W.2d at 555; Hicks v. State, 983
S.W.2d 240, 247 n. 10 (Tenn. Crim. App. 1998); Sneed v. State, 942 S.W.2d 567, 568-69 (Tenn.
Crim. App. 1996); Teague v. State, 789 S.W.2d 916, 917 (Tenn. Crim. App. 1990). Therefore, even
if Petitioner was able to establish the insufficiency of the evidence supporting his indictment, he
would not be entitled to relief.

        Nonetheless, we conclude that the trial court made sufficient inquiry into the underlying facts
before accepting Petitioner’s best interest plea. Rule 11 provides that the trial court should not enter
a plea without first ascertaining to its satisfaction that there is a factual basis for the plea. This
guideline exists primarily to ensure “that the defendant’s guilty plea is made with his understanding
that his admitted conduct actually constitutes the offense with which he is charged or a lesser
included one.” Lord, 894 S.W.2d at 316 (citing McCarthy v. United States, 394 U.S. 459, 466-67,
89 S. Ct. 1166, 1171, 22 L. Ed. 2d 418 (1969)).

         The factual basis recited by the State at the plea submission hearing shows that Ms. Johnson
contacted Petitioner in order to purchase cocaine, that Petitioner arranged for Ms. Johnson to make
the purchase at his residence, and that Petitioner approved the amount of drugs provided by Mr.
Woods to Ms. Johnson in exchange for her money. The trial court concluded that both the plea
submission court and Mr. Davis had adequately explained the theory of criminal responsibility for
the conduct of another, and Petitioner affirmatively indicated his understanding as to how the theory
was applicable in his case. From these facts, we find that the evidence does not preponderate against
the trial court’s determination that there was a sufficient factual basis for the Petitioner’s plea.




                                                  -9-
                                        CONCLUSION

        For the foregoing reasons, we find that Petitioner has failed to establish by clear and
convincing evidence that his plea was invalid for any reason or that Mr. Davis rendered ineffective
assistance of counsel. The judgment of the trial court is affirmed.


                                                      ___________________________________
                                                      THOMAS T. WOODALL, JUDGE




                                               -10-
