        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                March 11, 2014 Session

              STEVEN AARON PAGE v. STATE OF TENNESSEE

              Appeal from the Criminal Court for Davidson County
                   No. 2010-A-458    Monte Watkins, Judge



               No. M2013-01267-CCA-R3-PC- Filed April 23, 2014


Petitioner, Steven Aaron Page, pled guilty in Davidson County to one count of aggravated
child abuse. Pursuant to the plea, Petitioner was sentenced to fifteen years to be served at
100 percent. Petitioner subsequently filed a petition for post-conviction relief arguing that
he was afforded ineffective assistance of counsel and that he entered his guilty plea
unknowingly and involuntarily. The post-conviction court denied the petition. Petitioner
appealed. After a thorough review of the record, we conclude that the post-conviction court
did not err in denying the petition. Therefore, we affirm the denial of the petition.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J OHN E VERETT W ILLIAMS,
and N ORMA M CG EE O GLE, JJ., joined.

L. Willis Jones, Nashville, Tennessee, for the appellant, Steven Aaron Page.

Robert E. Cooper, Jr., Attorney General and Reporter; Michelle L. Consiglio-Young,
Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Brian
Holmgren, Assistant District Attorney General, for the appellee, State of Tennessee.
                                       OPINION

                                  Factual Background

        In 2010, Appellant was indicted by the Davidson County Grand Jury for one count of
aggravated child abuse and one count of aggravated child neglect. The following facts were
set out in Appellant’s guilty plea hearing:


      [The victim] was one month of age at the time of this offense that occurred on
      December 15 th , 2009.

             Her mother, [ ], left the baby in the defendant’s exclusive care at a
      residence here in Nashville, Davidson County. Approximately a half hour
      after that the defendant contacted a neighbor who then initiated a 911
      response.

            The victim was brought over to the neighbor’s residence by the
      defendant because she was limp and having difficulty in breathing.

             The child was transported to the hospital and was diagnosed with severe
      head trauma from abusive natures involving – abusive acts involving either
      shaking, or shaking plus impact; that involved sub-dural bleeds as well as rib
      fractures.

             The defendant made some admissions to having shaken the child, but
      alleged that he did so to try and revive the baby; however, our medical proof
      would have established that that explanation was insufficient.

             The defendant was the exclusive caretaker for the child when the child
      became symptomatic, and the symptoms are associated with the type of severe
      head trauma that she had sustained.

            The defendant, also, made statements attempting to implicate both the
      neighbor as well as a sibling in causing the injuries to the baby.




                                           -2-
        On January 5, 2011, Petitioner pled guilty to one count of aggravated child abuse. The
aggravated child neglect count was dismissed. Pursuant to the plea, Petitioner was sentenced
to fifteen years as a Range I, standard offender, to be served at 100 percent.

        On December 8, 2011, Petitioner filed a pro se petition for post-conviction relief. In
the petition, he argued that he received ineffective assistance of counsel and that his plea was
entered unknowingly and involuntarily. Counsel was appointed, and an amended petition
was filed. On September 4, 2012, the post-conviction court held an evidentiary hearing.

        Petitioner was the first witness at the evidentiary hearing. He stated the trial counsel
met with him monthly. Petitioner testified that trial counsel did not explain any possible
defenses to Petitioner. According to Petitioner, trial counsel discussed Dr. Edward Willey
as an expert witness. However, trial counsel stated that Dr. Willey would not be a good
witness for Petitioner. Petitioner did not see any information regarding Dr. Willey until after
the guilty plea was entered. Petitioner stated that if he had seen the information about Dr.
Willey, he would not have pled guilty. Petitioner complained that trial counsel spoke with
only a few other doctors and that trial counsel never shared any information with him. Once
again, Petitioner stated that he would have gone to trial instead of pleading guilty if he had
this information.

       Petitioner also stated that trial counsel did not explain the elements of aggravated
child abuse and aggravated child neglect to him before his guilty plea. He stated that he only
signed the plea agreement because trial counsel promised him “a sentence reduction after
being sentenced.” Petitioner claimed that he did not know that he would not be able to get
a sentence reduction after he pled guilty. Petitioner stated that trial counsel told him he
would be convicted for attempted murder if he did not accept the plea bargain. He stated that
his plea was involuntary because he did not have the information from the doctor or
knowledge about criminal proceedings and, in fact, he did not want to plead guilty because
he did not commit the crime.

       On cross-examination, Petitioner agreed that he had agreed to everything at the guilty
plea hearing and that he told the trial court he was entering his plea freely and voluntarily.
He stated that he knew of Dr. Willey’s report before entering his plea, but he had not seen
the report. Petitioner agreed that trial counsel told him that presenting Dr. Willey as a
witness could do more harm than good for his case. Petitioner stated that trial counsel told
him that each charge carried a sentence of fifteen to twenty-five years to be served at 100
percent.

       Trial counsel also testified at the hearing. Trial counsel stated that he received a
report from a doctor who was not Dr. Willey and reviewed the report with Petitioner. He


                                              -3-
stated that he did not leave it with Petitioner at jail because Petitioner did not want the report
left with him at the jail. Trial counsel stated that it was common for defendants who had
charges involving the harming of children not to keep such information in their cell. Trial
counsel stated that he offered to return to the jail and review the report with Petitioner again.

        Trial counsel stated that he also received a report from Dr. Willey. Trial counsel
stated that he reviewed this report with Petitioner. Trial counsel stated that he was concerned
that Dr. Willey would not be a credible witness at trial because Dr. Willey did not believe in
shaken baby syndrome and did not believe that certain symptoms were evidence of shaken
baby syndrome. Because Dr. Willey’s belief was not consistent with the general medical
community, trial counsel did not want him as a witness.

         Trial counsel denied Petitioner’s claim that trial counsel had told him he could receive
a sentence reduction after entering his guilty plea. Trial counsel testified that Petitioner did
not tell him that he did not want to enter the plea, and trial counsel did not force Petitioner
to accept the plea. Trial counsel testified that he went over the process if Petitioner went to
trial, the elements of the offenses, the indictment, the pertinent law, and potential sentences.
Trial counsel went over the plea agreement with Petitioner line-by-line as Petitioner initialed
each line.

       Trial counsel stated that Petitioner had admitted to shaking the victim. For this
reason, trial counsel did not believe that witnesses, aside from medical professionals, would
be helpful for Petitioner’s defense. Trial counsel admitted that he told Petitioner that the plea
offer was the best deal he was going to get and that the outcome would not be better if he
went to trial. Trial counsel also told Petitioner that the decision to accept the plea was the
Petitioner’s decision alone.

      Trial counsel stated that he did not think that the theory that the injuries were an
accident would work because the victim’s sibling had similar injuries. Trial counsel was
concerned that evidence would be presented regarding the sibling’s injuries.

      On September 12, 2012, the post-conviction court denied the petition. The post-
conviction court made the following findings:


              A close review of the record and testimony presented, reveals that
       counsel [met] with defendant and informed him of the nature of the charges
       against him, the likelihood of and range of punishment, and the nature and
       consequences of the plea agreement to the petitioner.



                                               -4-
              Therefore, Petitioner has failed to demonstrate by clear and convincing
       evidence ineffective assistance of counsel and that the plea was a violation of
       due process rights in violation of a constitutional right to render his conviction
       and sentence void or voidable under the Post Conviction Relief Act. The
       Court does not find the petitioner’s testimony to be credible. Accordingly, the
       Court finds that Petitioner has failed to show that he was prejudice[d] by
       counsel’s allegedly deficient conduct. Strickland, 466 U.S. at 694.


On May 22, 2013, Petitioner filed an untimely Notice of Appeal.

                                         ANALYSIS

        Initially, we address the fact that Petitioner’s notice of appeal was untimely. “In an
appeal as of right to the . . . Court of Criminal Appeals, the notice of appeal required by Rule
3 shall be filed with and received by the clerk of the trial court within 30 days after the date
of entry of the judgment appealed from . . . .” Tenn. R. App. P. 4(a). The post-conviction
court filed its dismissal of the petition on September 12, 2012. Petitioner filed his notice of
appeal on May 22, 2013, roughly eight months after the post-conviction court’s final action.
This is well outside the thirty days called for in the statute. In criminal cases, however, “the
‘notice of appeal’ document is not jurisdictional and the filing of such document may be
waived in the interest of justice.” See id.

         In the case at hand, Petitioner filed a “Motion to Waive Filing of Notice of Appeal.”
Attached to this motion was an affidavit from Petitioner’s post-conviction counsel. In that
affidavit, post-conviction counsel set out convoluted facts connected to his change of office
and loss of the post-conviction court’s denial of the petition. At the conclusion of the
affidavit, post-conviction counsel states that the failure to file the notice of appeal within
thirty days was in no way the fault of Petitioner. Therefore, we have decided in this case that
it is in the interest of justice to waive the timely filing of the notice of appeal. We now turn
to the merits of this case.

                           Post-conviction Standard of Review

       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


                                              -5-
Court may not re-weigh or re-evaluate 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).

                              Ineffective Assistance of Counsel

      Petitioner argues that he was afforded ineffective assistance of counsel because trial
counsel “failed to properly prepare the case.” The State disagrees.

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, the petitioner bears the burden of showing by clear and convincing evidence that
“(a) the services rendered by trial counsel were deficient and (b) that the deficient
performance was prejudicial.” See Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App.
1996); see also T.C.A. § 40-30-110(f). In order to demonstrate deficient performance, the
petitioner must show that the services rendered or the advice given was below “the range of
competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). “Because a petitioner must establish both prongs of the test to prevail on a
claim of ineffective assistance of counsel, failure to prove either deficient performance or
resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley, 960
S.W.2d at 580.

      As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record
preponderates against the court’s findings. See id. at 578. However, our supreme court has
“determined that the issues of deficient performance by counsel and possible prejudice to the
defense are mixed questions of law and fact . . .; thus, [appellate] review of [these issues] is
de novo” with no presumption of correctness. Burns, 6 S.W.3d at 461.

        Furthermore, on claims of ineffective assistance of counsel, Petitioner is not entitled
to the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.
1994). This Court may not second-guess a reasonably-based trial strategy, and we cannot
grant relief based on a sound, but unsuccessful, tactical decision made during the course of
the proceedings. See id. However, such deference to the tactical decisions of counsel applies
only if counsel makes those decisions after adequate preparation for the case. See Cooper
v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

       Once a guilty plea has been entered, effectiveness of counsel is relevant only to the
extent that it affects the voluntariness of the plea. In this respect, such claims of ineffective


                                               -6-
assistance necessarily implicate the principle that guilty pleas be voluntarily and intelligently
made. See Hill v. Lockhart, 474 U.S. 52, 56 (1985) (citing North Carolina v. Alford, 400
U.S. 25, 31 (1970)). As stated above, in order to successfully challenge the effectiveness of
counsel, Petitioner must demonstrate that counsel’s representation fell below the range of
competence demanded of attorneys in criminal cases. See Baxter, 523 S.W.2d at 936. Under
Strickland v. Washington, Petitioner must establish: (1) deficient representation; and (2)
prejudice resulting from the deficiency. 466 U.S. 668, 694 (1984). However, in the context
of a guilty plea, to satisfy the second prong of Strickland, Petitioner must show that “there
is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty
and would have insisted on going to trial.” Hill, 474 U.S. at 59; see also Walton v. State, 966
S.W.2d 54, 55 (Tenn. Crim. App. 1997).

         Petitioner has not proven that trial counsel’s representation was deficient or that he
would not have pled guilty without the alleged errors and would have gone to trial. It is up
to the trial court to determine credibility of witnesses and the post-conviction court’s findings
have the weight of a jury verdict. Momon v. State, 18 S.W.3d 152, 156 (Tenn.1999). The
post-conviction court specifically found that the testimony of trial counsel was credible. This
testimony demonstrated a well-thought out and planned investigation of the situation at hand.
Therefore, Petitioner has not met either prong under Strickland.

                                          Guilty Plea

      Petitioner also argues that the post-conviction court erred in dismissing his petition
because he entered his plea unknowingly and involuntarily. The State disagrees.

        When analyzing a guilty plea, we look to the federal standard announced in Boykin
v. Alabama, 395 U.S. 238 (1969), and the State standard set out in State v. Mackey, 553
S.W.2d 337 (Tenn. 1977), superceded on other grounds by Tenn. R. Crim. P. 37(b) and
Tenn. R. App. P. 3(b). State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999). In Boykin, the
United States Supreme Court held that there must be an affirmative showing in the trial court
that a guilty plea was voluntarily and knowingly given before it can be accepted. 395 U.S.
at 242; see Pettus, 986 S.W.2d at 542. Similarly, our Tennessee Supreme Court in Mackey
required an affirmative showing of a voluntary and knowing guilty plea, namely, that the
defendant has been made aware of the significant consequences of such a plea. 553 S.W.2d
at 340; see Pettus, 986 S.W.2d at 542. The standard is the same for a “best interest” or
Alford plea, that is, “whether the plea represents a voluntary and intelligent choice among the
alternative courses of action open to the defendant.” Alford, 400 U.S. at 31.

      A plea is not “voluntary” if it results from ignorance, misunderstanding, coercion,
inducements, or threats. Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The trial


                                               -7-
court must determine if the guilty plea is “knowing” by questioning the defendant to make
sure he fully understands the plea and its consequences. Pettus, 986 S.W.2d at 542;
Blankenship, 858 S.W.2d at 904.

       As stated above, post-conviction court’s factual findings are given a presumption of
correctness, rendering them conclusive on appeal unless the record preponderates against the
court’s findings. We have found nothing in the record to preponderate against the
post-conviction court’s findings.

        The transcript of the guilty plea hearing as well as the post-conviction hearing reflects
that the trial court discussed the ramifications of the guilty plea with Petitioner. He was
thoroughly questioned by the trial court to ascertain whether he understood the effects of the
plea. The plea hearing also indicates that Petitioner knew what he was doing, understood the
plea, and agreed that it was what he wanted to do to resolve the case. Petitioner has failed
to show by clear and convincing evidence that he received ineffective assistance of counsel
or that his guilty plea was involuntary. Moreover, Petitioner has failed to prove he did not
understand the consequences of his plea.

                                       CONCLUSION

       For the foregoing reasons, we affirm the post-conviction court’s denial of the petition
for post-conviction relief.




                                            ___________________________________
                                            JERRY L. SMITH, JUDGE




                                               -8-
