                                                                                        08/21/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs June 26, 2018

              LARRY CARPENTER v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Hawkins County
                   No. CC-17-CR-33       John F. Dugger, Judge


                             No. E2017-00589-CCA-R3-PC


The Petitioner, Larry Carpenter, appeals from the Hawkins County Criminal Court’s
denial of his petition for post-conviction relief from his 2015 guilty pleas to attempted
second degree murder and especially aggravated robbery, for which he is serving an
effective twenty-year sentence. The Petitioner contends that (1) he received the
ineffective assistance of counsel and (2) his guilty pleas were involuntary. We affirm the
judgment of the post-conviction court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS, P.J., and CAMILLE R. MCMULLEN, J., joined.

Whitney Bailey, Rogersville, Tennessee, for the appellant, Larry Carpenter.

Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Senior
Counsel; Dan E. Armstrong, District Attorney General; and Akiah Highsmith, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

       This case arises from the Petitioner’s June 12, 2015 negotiated guilty pleas to
attempted second degree murder and to especially aggravated robbery in exchange for an
effective twenty-year sentence at 100% service. Two misdemeanor counts of fraudulent
use of a credit card were dismissed pursuant to the plea agreement.

                                Guilty Plea Proceedings

      At the guilty plea hearing, the State’s recitation of the facts was as follows:
              On December 6th Larry and Amanda Carpenter went to their former
       neighbor’s house, Robert Williams, under the pretense of selling Mr.
       Williams some oil. . . . Mr. and Mrs. Carpenter went into Mr. Williams’
       home and they began to talk. At some point the conversation turned from
       cordial to violent. Mr. Carpenter grabbed a wrench and struck Mr.
       Williams in the face. The violence then escalated when Carpenter grabbed
       a knife and slit Mr. Williams’ throat in an apparent attempt on his life.
       While Mr. Williams lay in his home bleeding profusely, Mr. and Mrs.
       Carpenter began taking his property including his debit card, money and
       some medication. Mr. and Mrs. Carpenter exited the residence leaving Mr.
       Williams alone struggling to keep consciousness. The Carpenters then
       went to two separate businesses and used Mr. Williams’ debit card at each
       location. Mr. Williams was unable to find his phone at his house so he
       eventually hobbled to a nearby neighbor’s house. Once there, emergency
       medical personnel was notified and Mr. Williams was taken by ambulance
       to Morristown-Hamblen Healthcare System. . . . At the hospital, Mr.
       Williams’ injuries were treated and he was eventually discharged.

         At the guilty plea hearing, the Petitioner stated that he was age thirty-four, had
obtained a GED, could read and write without difficulty, had no health conditions that
would cause him not to understand the proceedings, and had not consumed alcohol or
drugs within the previous twenty-four hours. The trial court reviewed the plea agreement
with the Petitioner, including the charged offenses, the offenses to which he was pleading
guilty, and the possible sentences he could receive. The Petitioner told the court that he
understood the agreement. The court informed the Petitioner of the State’s burden of
proof at a trial and of the elements of the offenses to which he was pleading guilty, and
the Petitioner stated he understood. The court reviewed the signed waiver of rights form
with the Petitioner, and the Petitioner said that he had read it and had reviewed it with
counsel. The Petitioner said he understood he had the rights to plead not guilty, to a jury
trial, to have appointed counsel during the trial court proceedings, to confront and cross-
examine witnesses, to present defense witnesses, and to remain silent. The Petitioner said
that he understood the contents of the waiver of rights form and that he was pleading
guilty because he was guilty. The Petitioner said that he was pleading guilty freely,
voluntarily, and without force, threats, or pressure of any type.

        The Petitioner told the trial court that he was satisfied with counsel’s
representation and had no complaints because counsel had done everything the Petitioner
wanted. The Petitioner stated that he reviewed the discovery materials with counsel and
felt comfortable entering his guilty pleas. The Petitioner stated that the State’s factual
recitation was “close enough” to what occurred during the offenses. Counsel stated that
although the defense “would have differences on some of the finer points, . . . we would
stipulate that would be the [State’s] proof and that is essentially what happened.”


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       On May 3, 2016, the Petitioner filed a post-conviction petition, alleging that he
received the ineffective assistance of counsel and that his guilty pleas were involuntarily
entered.

                              Post-Conviction Proceedings

       The Petitioner testified that he met with counsel three or four times before entering
his guilty pleas and that they discussed the State’s plea offer and the possible sentences if
the Petitioner were convicted after a trial. The Petitioner said that he and counsel
“skimmed through” the State’s evidence and that counsel stated the forensic analysis of
the kitchen knife used during the offenses revealed the victim’s DNA and the Petitioner’s
fingerprints. The Petitioner said that after he pleaded guilty, he learned the knife did not
contain his fingerprints. The Petitioner said that he was “spaced out” and “high” at the
time of the offenses and that he was unsure what evidence the knife might have
contained. The Petitioner stated that counsel gave him a copy of the discovery materials
on the day of the guilty plea hearing and that he did not have time to review the materials
before entering his guilty pleas.

       The Petitioner testified that he and counsel initially reviewed the discovery
materials in the jail visitation room and that they were separated by glass. The Petitioner
denied reviewing the materials personally before the guilty plea hearing. The Petitioner
said that counsel provided him copies of the Petitioner’s and the Petitioner’s wife’s police
statements but that nothing else from the discovery materials was provided to him until
the day of the guilty plea hearing. The Petitioner stated that he vaguely remembered
giving a police statement because he was intoxicated at the time of his arrest. The
Petitioner stated that he did not request counsel file a motion to suppress his police
statement and that he did not recall counsel’s filing a motion to reduce bail.

       The Petitioner testified that on the day of the guilty plea hearing, he and counsel
met in the courtroom for two minutes before he “signed the paper” and the hearing began.
The Petitioner said that at the time of the hearing, he believed he understood the evidence
against him but that after his personal review of the discovery materials, he determined,
without specification, that the materials and counsel’s discussion of the materials were
inconsistent. The Petitioner said that he pleaded guilty based upon counsel’s explanation
of the discovery materials and that if he had known all of the information contained in the
discovery, he would not have pleaded guilty. He said his decision to plead guilty was not
informed because he lacked information contained in the discovery materials.

       On cross-examination, the Petitioner testified that he was not intoxicated at the
guilty plea hearing and that he understood the charges, the terms of the plea agreement,
and the possible sentences of the offenses to which he pleaded guilty. The Petitioner said
that he understood he did not receive the maximum sentence for especially aggravated
robbery, a Class A felony, and that the plea agreement resulted in the dismissal of two

                                            -3-
misdemeanor charges. The Petitioner disputed that he had fifteen previous felony
convictions but agreed that he had at least six previous felony convictions. He said that if
he had been convicted after a trial, the sentence for especially aggravated robbery would
have been Range II, which was between twenty-five and forty years at 100% service. He
agreed that his sentence for the especially aggravated robbery conviction was twenty-
years. He agreed the possible sentence after a trial was twice as much as the negotiated
twenty-year sentence and said counsel explained the sentencing ranges and possible
sentencing outcomes. The Petitioner said that counsel also explained that the trial court
might impose consecutive service, resulting in an estimated sentence of sixty years.

       The Petitioner testified that he and counsel discussed his rights to a trial, to
subpoena witnesses, and to testify, and the Petitioner noted that he knew his rights
because he had “a pretty extensive record” and had “heard them all” previously. He said
that he was familiar with the criminal justice system and understood everything counsel
explained to him. The Petitioner said that although he understood the plea agreement, he
had not seen all of the evidence before the guilty plea hearing. He agreed he told the trial
court that he had reviewed all the evidence but said counsel “leafed through” counsel’s
file when they discussed the discovery materials at the jail. The Petitioner said that he
relied on counsel and assumed he had seen the relevant evidence. When questioned
about the Petitioner’s statement to the trial court that he and counsel had reviewed all of
the discovery materials, the Petitioner said, “That would have [taken] two days.” The
Petitioner said that counsel reviewed the materials and showed some things to the
Petitioner but that they did not review “every little detail.” The Petitioner said that after
he personally reviewed the discovery materials, he realized counsel had not discussed
everything with him.

       The Petitioner testified that at the time of the guilty plea hearing, he had no
complaints about counsel and that he thought he was satisfied with counsel’s work. The
Petitioner said that the State’s plea offer was always twenty years at 100% service. He
said that if he had reviewed the discovery materials personally, he would have rejected
the plea offer and gone to trial. He agreed he attempted to negotiate a beneficial plea
offer for his wife.

       The Petitioner testified that he did not commit especially aggravated robbery and
that he committed perjury when he said he was guilty of especially aggravated robbery at
the guilty plea hearing. He said that the State was not going to extend a more favorable
plea offer and that he accepted it because he faced forty to sixty years if he did not plead
guilty to an offense he did not commit. He said he accepted twenty years rather than
face forty to sixty years because he mistakenly thought the State possessed fingerprint
evidence. He said he did not understand the evidence against him.




                                            -4-
       The Petitioner said that although counsel reviewed the Petitioner’s, the victim’s,
and the Petitioner’s wife’s police statements, counsel did not provide him photographs of
the crime scene. The prosecutor confirmed the State provided the defense with forty to
fifty photographs of the scene and of the victim. When asked if the Petitioner told the
police that he threw the victim’s wallet in a dumpster at a Morristown Weigel’s
convenience store, the Petitioner conceded he threw the wallet in the dumpster but denied
taking it from the victim. The Petitioner alleged his wife took the victim’s wallet.

       On redirect examination, the Petitioner testified that he reviewed his wife’s first
police statement but that, at the time of the guilty plea hearing, he had not reviewed his
wife’s second police statement, which she provided about three weeks after their arrests.
He said that after reading her second statement, his understanding of the facts changed.

       Counsel testified that he had practiced criminal law for twenty-eight years, that his
representation in this case began around April 30, 2015, that he first met the Petitioner on
May 1, and that he would have asked for the Petitioner’s version of events, inquired
about the Petitioner’s criminal history, and advised the Petitioner about the possible
sentence within each sentencing range. Counsel said that during the May 1 meeting, he
had neither the discovery materials nor the Petitioner’s official criminal history and that
the Petitioner advised his sentence for a previous conviction had been Range II. Counsel
said that based upon this information, counsel assumed during the meeting that the
Petitioner would receive a Range II sentence in this case.

        Counsel testified that on May 13, 2015, he received the discovery materials and
that he and the Petitioner reviewed the materials on May 18. Counsel said that generally,
his meetings with a client who was in jail occurred in a visitation booth in which he and
the client were separated by glass. He said that he read verbatim the discovery materials
to the client, including the client’s and the witnesses’ statements, any waiver of rights
form, and the accusations against the client. He said that he might not read background
and physical description information but that he read each page contained in the
materials. He said that, relative to a waiver of Miranda rights form, he read the form to
the client, showed the form to the client, and asked if the form reflected the client’s
signature. Counsel said that he followed this procedure in the Petitioner’s case and that
although he did not recall the Petitioner’s asking specific questions, they would have
discussed the contents of the discovery materials. Counsel did not recall whether he and
the Petitioner reviewed photograph evidence and said that if the materials contained a
disc, the Petitioner’s ability to view it would have depended on whether counsel brought
his laptop to the jail. Counsel said that he did not recall anything significant in the
photographs.

       Counsel testified that he and the Petitioner discussed the Petitioner’s rights to
remain silent, to a jury trial, and to subpoena and to confront witnesses and that they
discussed the Petitioner’s privilege against self-incrimination. Counsel did not recall

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filing a motion to reduce the Petitioner’s bond. Although counsel did not recall the
amount of the Petitioner’s bond, he said the general sessions court judge generally set the
amount “pretty low.” Counsel did not recall the Petitioner’s requesting a lower bond.
Counsel said that if he had addressed the Petitioner’s bond, the trial court judge might
have increased it.

       Counsel testified that he and the Petitioner reviewed the State’s potential
witnesses, that counsel did not interview the Petitioner’s wife because she was
represented by counsel, and that counsel did not interview the victim because the victim
provided a detailed police statement. Counsel did not recall the Petitioner’s identifying
anyone who counsel might interview or who might have been a potential defense witness.
Counsel said the Petitioner, the Petitioner’s wife, and the victim were the only people
present during the offenses. Counsel said that he and the Petitioner would have discussed
potential defenses and that counsel did not recall the Petitioner’s stating he was
intoxicated at the time of his police interview. Counsel said that after his initial meeting
with the Petitioner, their discussions focused on the Petitioner’s desire for his wife to
receive probation for a reduced charge. Counsel noted that the Petitioner appeared more
interested in the outcome of the Petitioner’s wife’s case than discussing the facts or
circumstances of the offenses.

       Counsel testified that the State’s initial plea offer was twenty years as a Range I,
standard offender, which was below the Petitioner’s sentencing range. Counsel said that
the Petitioner wanted counsel to attempt to negotiate a fifteen-year plea agreement, that
counsel negotiated with the prosecutor, and that the prosecutor would not agree to a
sentence that was less than twenty years because the prosecutor had agreed to a Range I
sentence. Counsel said that the Petitioner’s misdemeanor charges were dismissed.
Counsel said that the Petitioner’s wife’s charges were reduced and that she received a
three-year sentence in confinement. Counsel recalled that the prosecutor was unwilling
to accept an offer in which the Petitioner’s wife received probation.

        On cross-examination, counsel testified that he reviewed discovery materials with
all his clients in the same manner and recalled that he followed his usual practice in the
Petitioner’s case. Counsel said that the Petitioner’s discovery materials were about one
inch thick, that the materials included the victim’s medical records, and that although he
did not recall the amount of time he spent reviewing the materials with the Petitioner, the
review “takes as long as it takes.” Counsel did not dispute that the jail visitation log
showed he visited the Petitioner three times. Counsel said that during the May 18 visit,
he and the Petitioner discussed the discovery materials. Counsel said that although he did
not recall the number of witness statements contained in the discovery materials, he read
every statement to the Petitioner during the May 18 meeting.




                                            -6-
       After receiving the proof, the post-conviction court denied relief. The court
discredited the Petitioner’s testimony, after determining that the Petitioner admitted
committing perjury at the guilty plea hearing. The court found that the Petitioner’s
testimony relative to counsel’s misleading the Petitioner about the evidence in the
discovery materials was not credible. The court determined that the guilty plea hearing
transcript reflected that counsel reviewed the discovery materials with the Petitioner, that
the Petitioner understood the evidence, and that the State’s recitation of the facts was
“close enough to be a fair statement.” The court determined that counsel investigated the
case, reviewed all of the discovery materials with the Petitioner, and explained the
possible defenses and the Petitioner’s rights. The court found that counsel negotiated the
best possible plea agreement and that the Petitioner admitted at the post-conviction
hearing that he could have received a forty-year sentence after a trial. The court
determined that the Petitioner received the effective assistance of counsel and that the
Petitioner’s guilty pleas were voluntarily and knowingly entered. This appeal followed.

       Post-conviction relief is available “when the conviction or sentence is void or
voidable because of the abridgement of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103 (2012). A
petitioner has the burden of proving his factual allegations by clear and convincing
evidence. Id. § 40-30-110(f) (2012). A post-conviction court’s findings of fact are
binding on appeal, and this court must defer to them “unless the evidence in the record
preponderates against those findings.” Henley v. State, 960 S.W.2d 572, 578 (Tenn.
1997); see Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction
court’s application of law to its factual findings is subject to a de novo standard of review
without a presumption of correctness. Fields, 40 S.W.3d at 457-58.

                        I.      Ineffective Assistance of Counsel

       The Petitioner contends that he received the ineffective assistance of counsel. He
argues that counsel’s failure to provide him with a complete copy of the discovery
materials and with sufficient time to review the materials was deficient performance and
that counsel’s deficiency resulted in his pleading guilty without understanding the
evidence against him. The State responds that the post-conviction court did not err by
denying relief. We agree with the State.

       To establish a post-conviction claim of the ineffective assistance of counsel in
violation of the Sixth Amendment of the United States Constitution, a petitioner has the
burden of proving that (1) counsel’s performance was deficient and (2) the deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687
(1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). The Tennessee Supreme
Court has applied the Strickland standard to an accused’s right to counsel under article I,
section 9 of the Tennessee Constitution. See State v. Melson, 772 S.W.2d 417, 419 n.2
(Tenn. 1989).

                                            -7-
       A petitioner must satisfy both prongs of the Strickland test in order to prevail in an
ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To establish the
performance prong, a petitioner must show that “the advice given, or the services
rendered . . . , are [not] within the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S. at
690. The post-conviction court must determine if these acts or omissions, viewed in light
of all of the circumstances, fell “outside the wide range of professionally competent
assistance.” Strickland, 466 U.S. at 690. A petitioner “is not entitled to the benefit of
hindsight, may not second-guess a reasonably based trial strategy by his counsel, and
cannot criticize a sound, but unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d
334, 347 (Tenn. Crim. App. 1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn.
2008). This deference, however, only applies “if the choices are informed . . . based upon
adequate preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
To establish the prejudice prong, a 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.” Strickland, 466 U.S. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.

       Counsel’s credited testimony at the post-conviction hearing reflects that he
reviewed all of the discovery materials with the Petitioner. Counsel testified that he read
verbatim the discovery materials to the Petitioner at the jail three days after counsel
received the materials. The Petitioner testified that during counsel’s review of the
discovery materials, counsel stated a forensic analysis showed the Petitioner’s
fingerprints on the knife used against the victim but that the Petitioner learned after the
guilty plea hearing that the weapon did not contain the Petitioner’s fingerprints. The
Petitioner also testified, generally, that his review of the materials after pleading guilty
showed “inconsistencies” from what counsel had explained previously. However, the
post-conviction court discredited the Petitioner’s testimony. Furthermore, counsel was
not questioned at the evidentiary hearing about any forensic evidence contained in the
discovery materials, and the Petitioner did not present any forensic evidence allegedly
contained in the materials. The guilty plea hearing transcript reflects that the Petitioner
stated he had reviewed the discovery materials with counsel and that the State’s recitation
of the facts was “close enough” to what occurred during the offenses. The record
supports the post-conviction court’s determination that the Petitioner did not receive the
ineffective assistance of counsel. The Petitioner is not entitled to relief on this basis.

                             II.    Involuntary Guilty Plea

       The Petitioner contends that his guilty pleas were involuntarily and unknowingly
entered because counsel failed to provide him with all of the discovery materials. The
Petitioner has not identified the evidence which was allegedly excluded from the

                                            -8-
materials reviewed at the jail. However, based upon the Petitioner’s focusing on
fingerprint evidence at the evidentiary hearing, we presume the relevant evidence relates
to fingerprints on the knife used during the offenses. The State responds that the post-
conviction court did not err by denying relief. We agree with the State.

       The Supreme Court has concluded that a guilty plea must represent a “voluntary
and intelligent choice among the alternative courses of action open to the defendant.”
Alford, 400 U.S. at 31. A trial court must examine in detail “the matter with the accused
to make sure he has a full understanding of what the plea connotes and of its
consequence.” Boykin v. Alabama, 395 U.S. 238, 243-44 (1969); see Blankenship v.
State, 858 S.W.2d 897, 904 (Tenn. 1993). Appellate courts examine the totality of
circumstances when determining whether a guilty plea was voluntarily and knowingly
entered. State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995). A guilty plea is
not voluntary if it is the result of “[i]gnorance, incomprehension, coercion, terror,
inducements, [or] subtle or blatant threats.” Boykin, 395 U.S. at 242-43; see Blankenship,
858 S.W.2d at 904. A petitioner’s representations and statements under oath that his
guilty plea is knowing and voluntary create “a formidable barrier in any subsequent
collateral proceedings [because] [s]olemn declarations . . . carry a strong presumption of
verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977).

       The record reflects that the Petitioner entered knowing, intelligent, and voluntary
guilty pleas. The Petitioner’s post-conviction testimony is the only evidence in the record
related to forensic evidence of the knife. The discovery materials are not included in the
appellate record, and counsel was not questioned at the evidentiary hearing about any
forensic evidence implicating the Petitioner. The post-conviction court discredited the
Petitioner’s testimony.

        The guilty plea hearing transcript reflects that, upon questioning by the trial court,
the Petitioner did not express concern about counsel’s competence and did not inform the
court that he felt coerced into pleading guilty because he had not reviewed all of the
State’s evidence. The Petitioner told the court that he understood the plea agreement and
the rights he waived by pleading guilty, that he was satisfied with counsel’s performance,
that he had reviewed the discovery materials with counsel, and that he felt comfortable
entering his guilty pleas. The Petitioner, likewise, told the court that the State’s factual
recitation was “close enough” to what occurred during the offenses. We conclude that
the record supports the post-conviction court’s determination that the Petitioner entered
knowing, intelligent, and voluntary guilty pleas. The Petitioner failed to prove he is
entitled to relief on this basis.




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The judgment of the post-conviction court is affirmed.



                              ____________________________________
                              ROBERT H. MONTGOMERY, JR., JUDGE




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