        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs November 04, 2014

                WILLIAM NEWSON v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Madison County
                      No. C13358     Roy B. Morgan, Jr., Judge




                 No. W2014-00867-CCA-R3-PC - Filed March 4, 2015


Petitioner, William Newson, pleaded guilty to driving under the influence of an intoxicant
(DUI) with an agreed sentence of eleven months twenty nine days, with forty-eight hours to
serve and the remainder on probation. The sentence was to be served concurrently with a
parole violation and a violation of an order of protection in unrelated cases. Petitioner filed
a timely petition for post-conviction relief alleging that trial counsel promised him that his
DUI guilty plea would result in his release from jail after serving the forty-eight hours as
described in the guilty plea agreement and that he would return to probation. Petitioner now
appeals the trial court’s denial of his petition for post-conviction relief, in which he alleged
that his guilty plea was not knowingly, voluntarily, and intelligently entered due to the
ineffective assistance of trial counsel. Having reviewed the record before us, we affirm the
judgment of trial court.

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

T HOMAS T. W OODALL, P.J., delivered the opinion of the Court, in which A LAN E. G LENN and
R OBERT L. H OLLOWAY, J R., JJ., joined.

Joshua B. Dougan, Jackson, Tennessee, for the appellant, William Newson.

Herbert H. Slatery, III, Attorney General and Reporter; David H. Findley, Senior Counsel;
Jerry Woodall, District Attorney General; and Matthew Floyd, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                          OPINION

Background

       The transcript of the guilty plea submission hearing was not introduced at the post-
conviction hearing and was not included in the record on appeal. Also, the judgment of the
DUI conviction is not in the record. The guilty plea agreement was the only exhibit entered
at the post-conviction hearing. Therefore, we rely on the guilty plea agreement, the
testimony presented at the post-conviction hearing, the trial court’s findings at the post-
conviction hearing, and trial court’s order denying post-conviction relief for the relevant
facts.

Post-conviction hearing

        Petitioner testified that he met with trial counsel, and they discussed the charges
against him of DUI and driving on a suspended license. They met and prepared for the case
and then proceeded to trial. The result was an acquittal on the suspended license charge and
a hung jury on the DUI charge. Petitioner testified that he and trial counsel then prepared for
a second trial on the DUI charge. On the day of the second trial, Petitioner decided to enter
a plea of guilty to DUI. When asked why he accepted the plea agreement, Petitioner
testified:

       Because I was told that it was gonna be ran [sic] in [sic] concurrent with my
       parole, and after I do 48 hours in jail, that I was gonna be released on 11/29
       probation suspended. The 11/29 was suspended and the rest was gonna be on
       probation, and then I was gonna have a parole officer and a probation officer.

       Petitioner completed a “Request for Acceptance of Plea of Guilty and Petition to
Waive Trial by Jury and to Waive Appeal” form. The “Other Conditions” portion of the
agreement contained the following handwritten notation: “1 year loss of license, concurrent
[with] parole violation [and] violation of order of protection.” Petitioner testified that he was
“under the impression,” based on trial counsel’s assertions, that he had an additional twelve
hours to serve of the forty-eight hour sentence for DUI, and he would then be released on
probation. However, he was instead sent to the West Tennessee State Penitentiary.
Petitioner testified that he would not have entered the plea agreement if he had known that
he would be sent back to the Department of Correction after serving the remainder of the
forty-eight hour period of incarceration. Petitioner claimed that at the guilty plea acceptance
hearing he asked “all kinds of questions” to make sure that he would “be released in 48
hours.” He said: “See, I didn’t know if I could be on parole and be on probation at the same



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time, and I asked Your Honor and I asked my lawyer, and the understanding that I received
is that I could be on parole and probation at the same time.”

       On cross-examination, Petitioner agreed that at the time of the plea agreement he was
already in custody for violating his parole in another case and for violating an order of
protection. He admitted that the parole violation resulted from the order of protection charge,
but he asserted that he had not been found guilty of the charge. Petitioner claimed that the
parole violation was also based on the DUI charge. However, Petitioner admitted that the
plea agreement form specified that his DUI sentence would run concurrent with his parole
violation on a thirty-year sentence and therefore, the plea agreement form showed that
Petitioner’s parole violation sentence had already begun prior to the plea to DUI. Petitioner
asserted that he was informed that he could simultaneously be on probation and parole.
Petitioner denied that trial counsel told him that trial counsel had no control over the parole
board’s decision with regard to Petitioner’s existing sentence.

       Trial counsel testified that after Petitioner’s first trial that ended in a hung jury for the
DUI charge, he later learned that the jury was hung 10-2 for conviction. At the time,
Petitioner was already in custody for a pending parole violation on a thirty-year sentence for
multiple aggravated robbery convictions and for violating an order of protection. The parole
violation was a result of the pending violation of an order of protection.

        Trial counsel testified that on the day of Petitioner’s second trial, the State agreed to
a plea offer of “[e]ssentially, the mandatory minimum and fines and jail time and community
service.” Trial counsel explained the offer to Petitioner and told him that the charge would
“run concurrent with the parole violation as well as the violation of [the] order of protection.”
Trial counsel advised Petitioner that trial counsel had “no control or no say-so over what the
parole board may do” with respect to the parole violation. Trial counsel testified: “Only
thing I could say is this case would be run concurrent with that.”

       On cross-examination, trial counsel testified that the plea agreement in Petitioner’s
case occurred after the jury was excused on the day of Petitioner’s trial. He testified that he
had also discussed the proposal with Petitioner “fairly soon after the first jury trial.”
Concerning Petitioner’s sentence, trial counsel testified:

       I explained what this case - - how it would be run, that it could be run
       concurrent or consecutive to his parole violation. I couldn’t tell him what the
       outcome of the parole violation was going to be, but I could tell him what the
       outcome of this case was going to be, and that’s what I did.




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Analysis

        Petitioner argues that his guilty plea was not knowingly or intelligently entered
because he was told and understood that he would be released from custody after serving the
agreed upon forty-eight hours in jail for his DUI sentence. He claims that “trial counsel did
not adequately explain the relationship between this plea agreement and the parole violation.”
Petitioner contends that Trial Counsel’s failure to explain the relationship resulted in
Petitioner’s “entrance into a plea bargain on a charge that he otherwise would have taken to
a jury trial for a second time.” Additionally, Petitioner asserts that he was prejudiced by trial
counsel’s deficient performance because of “the fact that the first trial on this charge resulted
in a hung jury demonstrates a reasonable probability that [Petitioner] may have been
acquitted had this case proceeded to a second trial.” We disagree.

       The post-conviction petitioner bears the burden of proving his allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-110(f). On appeal, the appellate court
accords to the trial 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 trial 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, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (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. Should the petitioner fail to establish either deficient
performance or prejudice, he is not entitled to relief. Id. 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 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

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after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.
App. 1992).

        Claims of ineffective assistance of counsel are mixed questions of law and fact. 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 trial court’s factual findings, our review
is de novo, and the trial 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).

        As to guilty pleas, the petitioner must establish a reasonable probability that, but for
the errors of his counsel, he would not have entered the guilty plea. Hill v. Lockhart, 474
U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). When determining the knowing and
voluntary nature of a 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, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); see also State v.
Pettis, 986 S.W.2d 540, 542 (Tenn. 1999).

        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 a result of his guilty plea and conviction.” Blankenship v.
State, 858 S.W.2d 897, 905 (Tenn. 1993). 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, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977).

       Concerning Petitioner’s guilty plea, the trial court made the following extensive
findings at the post-conviction hearing:

       When I look at the plea form, [Petitioner], the Court so notes, got what he
       bargained for. He got 11/29, 48 hours to serve, and he got it along with other
       things, concurrent with parole violation and violation of order of protection.
       So whatever happened on those, this was to be concurrent with it. That’s clear
       in the plea form from the completed signed document that I went over that day
       in open court with the Petitioner, [ ], under oath.

       [Trial counsel has] testified today that he had discussed the plea offer after the
       first jury trial. [Trial counsel] on his own investigation evidently had found
       out the status of the 12 jurors, 10 to 2 in favor of the State on the first trial.
       [Trial counsel has] testified that he explained to Defendant what concurrent
       sentencing meant in this case, and I’m sure the Defendant already knew based

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       on his substantial criminal history of aggravated robberies. But he also said
       he did not at any point make any promises as to an outcome of a parole
       violation. And [trial counsel] has given sworn testimony, and it certainly does
       not show in the plea form as to any promises being made. The only thing that
       was promised was that the case that I had, that [Petitioner] pled to, would be
       concurrent with that violation, whatever it ended up being, and the order of
       protection violation, and [trial counsel] is very clear in his testimony. The
       written documentation backs up [trial counsel’s] position on the case.

       And then I’ve got to point out that I tried to be very thorough. [Petitioner]
       ultimately has to make the decision whether he wants to plead guilty or not, but
       this Court would not tell a defendant anything about a parole violation because
       that’s not in my jurisdiction. I have no idea what’s going to happen on a
       parole violation, and there’s no way I could have promised anything to the
       Defendant at the time of his plea regarding a parole violation that I have no
       control over. I don’t have the written verbatim transcript in front of me, but
       I know the Court’s normal procedure and policy. I don’t even promise
       defendants anything on federal pending charges when they’re pleading here
       because I cannot. Those are not the cases that I control. So the Court notes
       that for the record, too. It’s not certainly been established that the Court would
       have in any way misled this Defendant as to what would happen on a parole
       violation.

       The bottom line is, the Court finds that based on all the sworn testimony and
       the documentation today, that the Petitioner has not carried by clear and
       convincing evidence the burden of proof as to the claim of ineffective
       assistance of counsel, and the Court specifically finds that this Defendant did
       knowingly, voluntarily, personally and intelligently make the decision to enter
       his plea that day. It was his own personal decision of his own violation, and
       he got everything he bargained for in the plea agreement. It’s just a personal
       problem that he’s got that he got violated, and again, nobody in this room
       could control what the parole board would do.

        We conclude that the evidence does not preponderate against the trial court’s findings.
The trial court accredited trial counsel’s testimony that he made no promises to petitioner
with regard to the actions of the parole board or that Petitioner would be released from
custody after serving his forty-eight hour sentence for DUI. At the post-conviction hearing
trial counsel testified that he explained the offer to Petitioner and told him that the charge
would “run concurrent with the parole violation as well as the violation of [the] order of
protection.” Trial counsel advised Petitioner that trial counsel had “no control or no say-so

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over what the parole board may do” with respect to the parole violation. Trial counsel
testified: “Only thing I could say is this case would be run concurrent with that.” The guilty
plea agreement clearly stated that Petitioner would serve his DUI sentence concurrently with
“parole violation [and] violation of order of protection.” Based upon what is included in the
appellate record submitted by Petitioner, with no other evidence to the contrary, we find that
Petitioner’s guilty plea was knowingly, voluntarily, and intelligently made with the effective
assistance of trial counsel.

       For the reasons stated above, we affirm the judgment of the trial court.


                                           _______________________________________
                                           THOMAS T. WOODALL, PRESIDING JUDGE




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