        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                     Assigned on Briefs May 22, 2013 at Knoxville

         JIOVANI CASTILLO GALEANA v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                   No. 2010-D-3295    Cheryl A. Blackburn, Judge


                    No. M2012-01571-CCA-R3-PC Filed 06/13/2013


The petitioner, Jiovani Castillo Galeana, petitioned the Davidson County Criminal Court for
post-conviction relief from his 2011 guilty-pleaded conviction of possession with intent to
sell 300 grams or more of cocaine. The conviction resulted in a Range I sentence of 18 years
to serve in the Department of Correction. Following an evidentiary hearing, the post-
conviction court denied relief, and following our review, we affirm the order of the post-
conviction court.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J OSEPH M.
T IPTON, P.J., and C AMILLE R. M CM ULLEN, J., joined.

Leah R. Wilson, Nashville, Tennessee, for the appellant, Jiovani Castillo Galeana.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and Robert T. Homlar, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

               The transcript of the petitioner’s guilty plea hearing included a statement of the
basis for the guilty plea and conviction:

              On August 16th , 2010, a confidential informant called a phone
              number and ordered one kilogram of cocaine from the
              [petitioner]. The Defendant Sandoval interpreted for [the
              petitioner] who could not speak English. The confidential
              informant was instructed to go to the parking lot at 462 Flintlock
                Court here in Davidson County. He was told the cocaine would
                be delivered in a silver dodge. The Dodge arrived driven by [the
                petitioner] and Defendant Sandoval in the passenger’s seat.
                Two children were in the back of the car. The confidential
                informant parked next to the defendants’ vehicle and discussed
                the cocaine and verified over a wire that the cocaine was in the
                car. And the takedown officers recovered a one kilogram green
                brick powder cocaine. It field test[ed] positive. They also
                recovered a cell phone number – the phone was the cell phone
                that the CI had called. All these events occurred in Davidson
                County.

               In the evidentiary hearing, the Spanish-speaking petitioner testified through an
interpreter that, during his guilty plea submission hearing, he did not understand his
interpreter well. He testified that he thought the sentence of 18 years was the State’s first
offer and did not know it was the actual sentence. He thought, “[T]hat’s a long time for me.”
He affirmed to his post-conviction counsel that he did not understand that he was pleading
guilty.

              The petitioner testified that his trial attorney did not speak Spanish and that he
could not understand counsel even though an interpreter was used. The petitioner said that
on one of his lawyer’s visits to the jail to confer with him, counsel did not bring an
interpreter. The petitioner testified that counsel provided no discovery materials to him.

              The petitioner testified that he signed the plea papers “for my love to that other
person and to my children.”1 He said that the plea papers were written in English and that
he could neither read them nor understand the interpreter’s recitation. He affirmed that, had
he understood what was happening, he would not have entered into an agreement that
included an 18-year prison sentence.

               On cross-examination, the petitioner reiterated that he thought the 18-year
sentence was merely a plea offer. He testified, “That’s what I understood from the person
that was translating. I thought that there would be another day in court.” He admitted that
he received discovery materials from the “other person that [he] was detained with, Louisa.”
He testified that he thought the plea submission hearing was a proceeding to “sav[e] that
other person so she would not be in jail.”



        1
         The petitioner explained on cross-examination that he pleaded guilty because he did not want his
children’s mother “to spend time in jail because of my kids.”

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                The petitioner’s trial counsel, a lawyer with more than 22 years’ experience,
testified that he had been retained by the petitioner’s family to represent him in the general
sessions court and the trial court. Counsel testified that he obtained “a complete rundown
on the case” from the detective, whom he had known for 20 years. Counsel detailed the
proceedings of the case in the general sessions court and stated that most of his interactions
with the petitioner were aided by the use of an interpreter even though counsel spoke “some
Spanish.”

               Counsel testified in detail about the specific dates on which he appeared in the
trial court on the case and on which he conferred with the petitioner. Counsel recalled,
“[E]ach time [the petitioner] had many questions and, again, we answered all of them and,
again, I would apologize to the translator because I knew they were going to other
courtrooms.”

               Counsel testified that he received discovery materials from the State pursuant
to his request and that the charged offenses involved the use of a confidential informant.

                Counsel testified that Louisa Sandoval was the petitioner’s wife, that the State
considered her guilty of the drug offenses because she served as interpreter during the drug
deal, and that she was at large at the time of the several settlement conferences although she
had visited counsel in his office several times. He testified that the petitioner wanted counsel
to try to help Ms. Sandoval even though he did not represent her. The petitioner did not want
his wife to go to jail.

              Counsel stated that the State rejected his offer of 15 years but ultimately agreed
to an 18-year sentence and to recommend Ms. Sandoval’s placement on community
corrections when she came into custody. Counsel’s notes reflected that this offer was
discussed with the petitioner at the settlement conference on March 10, 2011, and that the
petitioner “wants to do this.” The case was continued until March 24, 2011. Ms. Sandoval
had surrendered on March 22. She was appointed an attorney and appeared in court on
March 24. Her attorney succeeded in arranging an agreement that included, rather than 12
years on community corrections, 10 years on probation.

                Counsel testified that all of his meetings with the petitioner involved the use
of an interpreter except for one visit to the jail and that during that visit, he and the petitioner
were “still able to converse.”2 On March 24, 2011, counsel had the interpreter read the
entirety of the plea documents to the petitioner. He added, “And I tell my clients if they have


        2
         On cross-examination, counsel testified that the interpreter-less jail visit occurred because he had
gone to the jail to see other clients and visited the petitioner while he was there.

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any question at any time, to stop at that point. And one of the things I always say is, this is
it today, no more court, no appeals.”

             Counsel explained that the petitioner was originally charged with two counts,
one being a conspiracy count that was dismissed as a result of the approval of the plea
agreement. Counsel opined that the petitioner was fortunate not to have been charged with
drug dealing in a school zone. Based upon counsel’s thorough knowledge of the
neighborhood in which the offense was committed, he believed that the location may well
have been within the drug-free zone for Una Elementary School.

               Counsel testified that he had no doubts about the petitioner’s comprehension
of the plea arrangement. The petitioner “knew what he was doing,” counsel said. “He was
happy that he was able to spare his wife jail time.”

              On cross-examination, counsel testified that the offense was a “buy bust” and
that the State believed that Ms. Sandoval interpreted between the informant and the
petitioner.

              Counsel reiterated that the petitioner “knew exactly what he was doing.”
Counsel had recorded the computations he made to show the petitioner when his first
opportunity for parole would arise. He said that he informed the petitioner that his
opportunity for parole on the 18-year sentence would be six to nine months after such an
opportunity would arise for a sentence of 15 years – the minimum sentence for the Class A
felony.

              In response to the court’s questioning, counsel testified that he had never
experienced any problems with his Hispanic clients’ understanding the interpreter who
served during the plea negotiations and plea submission. The petitioner never indicated that
he did not understand the interpreter. Counsel testified that he has spoken Spanish fluently
enough to “[get] around Mexico for 28 years.”

               The guilty plea hearing transcript was exhibited to the evidentiary hearing. It
evinces that the trial court conducted a thorough Tennessee Rule of Criminal Procedure 11(b)
colloquy with the defendant. In the colloquy, the trial judge informed the petitioner of the
18-year sentence to be served in the department of correction, and the petitioner indicated
that he understood the terms of his agreement. The court asked the petitioner whether he had
“any difficulty understanding what [he’s] doing,” and the petitioner replied, “No.” The trial
court then examined Ms. Sandoval concerning the terms of her charges and her guilty plea.
The petitioner responded, “Yes,” to the trial court’s query whether the statement of the
factual basis was “generally true.”

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               In the post-conviction court’s extensive and thorough order denying post-
conviction relief, the court affirmatively accredited trial counsel’s testimony. It further stated
that “the transcript of the guilty plea hearing belies Petitioner’s claims.” The court said that
the transcript showed that the petitioner understood the proceedings, the nature of the
charges, the terms of the plea agreement, and the effects of pleading guilty. The court
concluded that the petitioner’s guilty plea was “made with an awareness of the consequences,
and, as such, the guilty plea was voluntarily and knowingly entered.”

               Following the entry of this order, the petitioner effected a timely appeal.

              Post-conviction relief is available only “when the conviction or sentence is void
or voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103 (2006). A
post-conviction petitioner bears the burden of proving his or her allegations by clear and
convincing evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to the
post-conviction court’s findings of fact the weight of a jury verdict, and these findings are
conclusive on appeal unless the evidence preponderates against them. Henley v. State, 960
S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App.
1997). By contrast, the post-conviction court’s conclusions of law receive no deference or
presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn.2001).

               To establish entitlement to post-conviction relief via a claim of ineffective
assistance of counsel, the post-conviction petitioner must affirmatively establish first that
“the advice given, or the services rendered by the attorney, are [not] within the range of
competence demanded of attorneys in criminal cases,” see Baxter v.. Rose, 523 S.W.2d 930,
936 (Tenn. 1975), and second that his counsel’s deficient performance “actually had an
adverse effect on the defense,” Strickland v. Washington, 466 U.S. 668, 693 (1984). In other
words, the petitioner “must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
In the context of a guilty plea, the petitioner must establish that “counsel’s constitutionally
ineffective performance affected the outcome of the plea process” by establishing “a
reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); see Hicks
v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998). Should the petitioner fail to
establish either deficient performance or prejudice, he is not entitled to relief. Strickland,
466 U.S. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f it is easier
to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that
course should be followed.” Strickland, 466 U.S. at 697.

               When reviewing a claim of ineffective assistance of counsel, we will not grant

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the petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or
provide relief on the basis of a sound, but unsuccessful, tactical decision made during the
course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).
Such deference to the tactical decisions of counsel, however, applies only if the choices are
made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).

                Apart from whether a guilty plea is the product of ineffective assistance of
counsel, it is invalid if otherwise made unknowingly or involuntarily. “Whether a plea was
knowing and voluntary is an issue of constitutional dimension because ‘the due process
provision of the federal constitution requires that pleas of guilty be knowing and voluntary.’”
State v. Wilson, 31 S.W.3d 189, 194 (Tenn. 2000) (quoting Johnson v. State, 834 S.W.2d
922, 923 (Tenn. 1992)). A plea “may not be the product of ‘[i]gnorance, incomprehension,
coercion, terror, inducements, [or] subtle or blatant threats.’” Wilson, 31 S.W.3d at 195
(quoting Boykin v. Alabama, 395 U.S. 238, 242-43 (1969)); see also State v. Mellon, 118
S.W.3d 340, 345 (Tenn. 2003) (citing Blankenship v. State, 858 S.W.2d 897, 904 (Tenn.
1993)).

             Both claims of ineffective assistance of counsel and involuntary guilty plea are
mixed questions of law and fact. Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010); State v.
Honeycutt, 54 S.W.3d 762, 766-67 (Tenn.2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn.
1999). When reviewing the application of law to the post-conviction court’s factual findings,
our review is de novo, and the post-conviction court’s conclusions of law are given no
presumption of correctness. Fields, 40 S.W.3d at 457-58; see also State v. England, 19
S.W.3d 762, 766 (Tenn. 2000).

              In the present case, the record fully supports the post-conviction court’s
findings and holdings. The record of the guilty-plea submission hearing and the accredited
testimony of the petitioner’s trial counsel evince the petitioner’s understanding of the
proceedings and his willingness to enter into the plea.

               The record also fully demonstrates that trial counsel rendered effective
assistance in representing the petitioner. Indeed, rarely in a post-conviction record has this
court seen a more comprehensive and detailed account of a trial attorney’s conduct during
his representation of a client. Counsel was apparently able to render specific and cogent
testimony because he took copious notes of his actions and the petitioner’s responses during
the pendency of the case in both the general sessions court and the criminal court. Such
testimony was indeed worthy of being accredited

              Accordingly, the order of the criminal court is affirmed.

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      _________________________________
      JAMES CURWOOD WITT, JR., JUDGE




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