        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs May 4, 2010

               FREDERICK CAREY v. STATE OF TENNESSEE

              Direct Appeal from the Criminal Court for Shelby County
                     No. 07-05894 - 96   W. Mark Ward, Judge




                 No. W2009-01646-CCA-R3-PC - Filed June 14, 2010


The petitioner, Frederick Carey, pled guilty pursuant to a negotiated plea agreement to three
counts of the sale of cocaine, Class B felonies, two counts of assault, Class A misdemeanors,
and one count of resisting official detention, a Class B misdemeanor. The petitioner agreed
to a sentence of ten years in the Tennessee Department of Correction for each Class B felony,
to be served concurrently, and to time served for the misdemeanor convictions. On appeal
from the post-conviction court’s denial of relief, the petitioner argues that he received
ineffective assistance of counsel because his trial counsel presented an unenforceable plea
agreement upon which he relied in choosing to plead guilty. Following our review, 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 A LAN E. G LENN and D. K ELLY
T HOMAS, J R., JJ., joined.

Terita M. Hewlett, Memphis, Tennessee, for the appellant, Frederick Carey.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney
General; and William L. Gibbons, District Attorney General, for the appellee, State of
Tennessee.

                                        OPINION

                                       Background
        In July 2007, a Shelby County grand jury indicted the petitioner, Frederick Carey,1 in
case number 07-05894 for the sale of cocaine, possession with intent to sell cocaine, and
possession with intent to deliver cocaine, Class B felonies. The grand jury indicted him on
identical charges in case numbers 07-05895 and 07-05896. In case number 07-05897, the
grand jury indicted him on two counts of assault, Class A misdemeanors, and one count of
resisting official detention, a Class B misdemeanor. Pursuant to a negotiated plea agreement,
the petitioner pled guilty on May 1, 2008, to three counts of the sale of cocaine and to case
number 07-05897 as charged. The state dismissed the six possession counts. The petitioner
agreed to serve ten years as a Range I standard offender for each sale of cocaine conviction,
to be served concurrently in the Tennessee Department of Correction. He agreed to serve
thirty days in the workhouse for each of the misdemeanor convictions, which amounted to
time served.

       At his plea acceptance hearing, the petitioner stipulated to the following facts
presented by the state:

               The facts giv[ing] rise to 07-05897 are on June 1, 2007[,] officers were
       attempting to locate [the petitioner] who had three outstanding warrants for his
       arrest. Upon making entry into the home to search the residence to find [the
       petitioner][,] the officers located him in a southwest bedroom closet under
       clothing. Officers ordered [the petitioner] to exit the closet, at which time he
       refused. They were physically removing him from the closet when he began
       to fight with the officers. During the fight [the petitioner] kicked Officer
       Gonzales several times and Officer Hinson was struck on the right leg and then
       Officer Gonzales was struck on the right cheek.

       ....

              The facts giving rise to [the] indictment 07-05894 are on May 17, 2007,
       a confidential informant working with the Shelby County Sheriff’s Office
       Street Crimes Unit did make a narcotics transaction with [the petitioner] in
       which he exchanged $40.00 with marked narcotics funds for suspected crack
       cocaine. This occurred in front of 5201 Breckinwood [Drive], here in Shelby
       County.

              The cocaine that the confidential informant was able to purchase from
       [the petitioner] did test positive and weighed .7 grams.



       1
           The petitioner is also known as Frederick Caery.

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              The facts giving rise to indictment ending in 95, are on [May 18, 2007,]
       a confidential informant working with the Shelby County Sheriff’s Office
       Narcotics Unit made a phone call to [the petitioner] in regards to purchasing
       some crack cocaine from him. The confidential informant met with [the
       petitioner] and gave [him] $40.00 of narcotic funds for the crack cocaine.

              [The petitioner] was then picked up by a male white, occupying a white
       truck. That truck left the scene. [The petitioner] was followed and observed
       to go into a store at Woodstock-Cuba [Road] and Rust Road. He exited the
       store, got back in the truck, returned to Breckinwood [Drive], exited the
       vehicle and handed the confidential informant, approximately, .86 grams of
       crack cocaine and that substance did test positive.

              The facts giving rise to indictment 07-05896 are on May 21, 2007[,] an
       undercover officer with the Shelby County Sheriff’s Office met with [the
       petitioner] in front of 5201 Breckinwood Drive and advised [the petitioner]
       that he would like to buy $50.00 worth of crack cocaine.

              The undercover officer left the area to get the money. [The petitioner]
       was observed by the surveillance unit to make a hand to hand transaction with
       a male black known as Damian Tate.

              The undercover officer returned, gave [the petitioner] $50.00 of
       narcotic funds and was given approximately 1.22 grams of crack cocaine by
       [the petitioner]. This occurred in Shelby County, Tennessee.

        The petitioner requested a community corrections sentence, and the court held a
hearing on the matter on May 30, 2008. Following the hearing, the court denied any form
of alternative sentencing. On November 5, 2008, the petitioner, pro se, filed a petition for
writ of error coram nobis, and the court appointed counsel on November 19, 2008. Through
counsel, the petitioner filed an amended petition for post-conviction relief on March 11,
2009. The petitioner alleged that he received ineffective assistance of counsel because
counsel failed to prepare and investigate his case and that he entered his guilty pleas
unknowingly and involuntarily. The post-conviction court held a hearing on July 16, 2009,
at which the parties presented the following testimony.

       Trial counsel testified that she had worked for the Public Defender’s Office for
twenty-five years. She took over the petitioner’s case when his original attorney was on
medical leave. She spoke with the petitioner and suggested that she would try to procure a
better offer for him from the state. Counsel said his original offer was for fifteen years.

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Subsequently, the state agreed to ten-year sentences for the three cocaine sale charges, to run
concurrently, and to allow the petitioner to apply for probation. She said, “I told [the
petitioner] that we would try to see if we could get probation and that based on his record
Community Corrections would probably be the only shot he had at it.” Counsel testified that
she did not guarantee that the petitioner would be placed on community corrections and that
she told him it would be “a long shot” because of his record. After discussing the state’s plea
offer, the petitioner decided to plead guilty. Counsel testified that her normal procedure with
clients who are pleading guilty is to “go over the plea agreement paragraph by paragraph and
go over the judgment sheet . . . then [she has] them sign it, after they tell [her] they
understand everything.” Counsel recalled that the petitioner told her that he had received a
head injury that caused him to reevaluate his life. She did not believe the injury affected his
reasoning ability. Counsel said that the petitioner said that he understood his rights, and she
had no reason to doubt him. She testified that the petitioner maintained his innocence, but
there was video placing him in the locations of the drug sales, and he was facing a much
longer sentence if he went to trial.

       On cross-examination, counsel testified that she reviews the state’s proof with each
of her clients and advises them of the sentencing possibilities. She said that she would not
have allowed the petitioner to plead guilty if he did not understand what he was doing.
Counsel could not recall whether the petitioner’s insistence that he was innocent was an issue
regarding his plea acceptance. Counsel said that she knew the petitioner before she began
working on his case. She believed that she had represented him in a prior matter.

        The petitioner testified that counsel told him the state was offering ten-year sentences
and that he would get probation, but she was not sure what kind of probation he would
receive. He testified that he signed papers without reading them, believing them to be
probation papers. He did not know that he was agreeing to serve ten years. The petitioner
said that he would not have accepted the offer if counsel had not promised that he would get
probation. He recalled that the trial judge told him, during the plea acceptance hearing, that
no one could guarantee that he would receive community corrections. He did not speak up
at the time because he “was trying to find out how things were going to work out for [him]”
and “was kind of stunned . . . .” When the judge asked him whether he was satisfied with his
representation, he replied “huh-uh,” meaning that he was not because he was not satisfied
with his original attorney and trial counsel had only represented him one day.

        On cross-examination, the petitioner admitted that he was familiar with the criminal
justice system and that he was normally willing to advocate for his rights, as evidenced by
the letters he wrote to his attorney and to the Board of Professional Responsibility. He said
that he did not answer the judge as he should have when the judge asked about his
understanding that he may or may not receive a community corrections sentence. The

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petitioner claimed that he told the judge that counsel promised that he would receive
community corrections, despite the absence of such a comment on the record.

       The post-conviction court entered a written order denying relief on July 16, 2009. The
court found that the petitioner presented no evidence that counsel failed to prepare and
investigate his case and that counsel’s testimony that she did not promise the petitioner that
he would receive a community corrections sentence was credible . The post-conviction court
ruled that the petitioner did not carry his burden of proving his claims. The petitioner filed
a timely notice of appeal.

                                           Analysis

        On appeal, the petitioner contends that he received ineffective assistance of counsel
when counsel presented the state’s plea agreement, which he claims was unenforceable
because he was not eligible to receive a community corrections sentence. The state responds
that the petitioner waived his argument by not presenting it in his petition for post-conviction
relief nor arguing his claim at the post-conviction hearing. Alternatively, the state argues that
counsel provided effective assistance and did not guarantee the petitioner that he would
receive a community corrections sentence. We agree with the state’s alternative argument.

        The burden in a post-conviction proceeding is on the petitioner to prove his grounds
for relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f). On appeal,
this court is bound to the post-conviction court’s findings of fact unless 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 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.

       When determining the knowing and voluntary nature of the 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:

       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



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       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).

       To establish the ineffective assistance of counsel, the petitioner bears the burden of
proving 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). 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).
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). The fact that a
particular strategy or tactical decision failed does not by itself establish ineffective assistance
of counsel. Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996). Once the petitioner proves
that counsel’s representation fell below a reasonable standard, the petitioner must also prove
prejudice. Strickland, 466 U.S. at 694. In relation to a guilty plea, the petitioner must show
a reasonable probability that, but for the errors of his counsel, he would not have pled guilty
and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 59 (1985);
Adkins v. State, 911 S.W.2d 334, 349 (Tenn. Crim. App. 1994).

       Initially, we note that the state contends that the petitioner waived his argument on
appeal by not including it in his petition for post-conviction relief nor arguing his claim at
the post-conviction hearing. In his petition, the petitioner claims that he

       was misled and thereby induced into believing that he was eligible for
       Community Corrections. However, after the acceptance of the guilty plea,
       Counsel acknowledged during the sentencing hearing that Petitioner was not

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       one who would normally be considered for Community Corrections . . . . Had
       Petitioner known that it was possible he would not be eligible for Community
       Corrections, he would not have pled guilty but would have insisted on going
       to trial.

In his appellate brief, the petitioner states that counsel “communicated to [the petitioner] that
Community Corrections was a possibility and upon further discussion with [the petitioner],
he waived his right to trial and chose to plead guilty.” He further states that counsel “owed
a duty to [the petitioner] to determine whether the [Community Corrections terms] of the
[p]lea could be implemented before rendering advice on whether to accept the plea bargain.”
While expressed differently on appeal, the argument is sufficiently similar to his petition
because he argues in both that he relied on his alleged eligibility to receive a community
corrections sentence when he pled guilty. We conclude that the petitioner has not waived his
argument.

       As for the merits of the petitioner’s argument, in our view, the petitioner has not
carried his burden of showing a reasonable probability that he would have proceeded to trial
but for counsel’s error. Counsel’s testimony, accredited by the trial court, reveals that she
did not promise that he would receive a community corrections sentence. Additionally, the
guilty plea hearing transcript demonstrates that the trial court advised the petitioner that no
one could guarantee that he would receive community corrections and that the petitioner
indicated that he understood. The negotiated plea agreement allowed him to apply for an
alternative sentence, and the trial court held a hearing to determine whether to grant
alternative sentencing. The trial court denied alternative sentencing, not because the
petitioner was statutorily ineligible as the petitioner contends on appeal, but because, in its
discretion, the court found that he was not a suitable candidate for any form of alternative
sentencing based on his criminal record and history of probation violations. The petitioner
has not shown that counsel provided ineffective assistance by inducing him to plead guilty
based on an unenforceable plea agreement. Trial counsel made no guarantee that he would
receive community corrections and the plea agreement, which he indicated at the time that
he understood, merely allowed him to apply for alternative sentencing. We conclude that the
petitioner’s claim is without merit.

                                          Conclusion

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


                                                 ___________________________________
                                                 J.C. McLIN, JUDGE

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