        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs May 15, 2012

              THANATH SAYADETH v. STATE OF TENNESSEE

            Direct Appeal from the Circuit Court for Rutherford County
                        No. F-64667     Don R. Ash, Judge




                No. M2011-00957-CCA-R3-PC - Filed August 24, 2012


Petitioner, Thanath Sayadeth, appeals from the post-conviction court’s dismissal of his
petition for post-conviction relief following an evidentiary hearing. After a thorough review
of the record, we affirm the judgment of the post-conviction court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
PJ., and N ORMA M CG EE O GLE, J., joined.

James R. Smith, Murfreesboro, Tennessee, for the appellant Thanath Sayadeth.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Assistant Attorney
General; William C. Whitesell, Jr., District Attorney General, and J. Paul Newman, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

       Petitioner was indicted by the Rutherford County Grand Jury in a three-count
indictment charging Class B felony sale of a Schedule I controlled substance, Class B felony
possession of a Schedule II controlled substance, and Class A misdemeanor possession of
drug paraphernalia. Pursuant to a negotiated plea agreement, the count charging sale of a
Schedule I controlled substance and the count charging possession of drug paraphernalia
were dismissed. Defendant pled guilty to a lesser included offense of the remaining charge.
Specifically, Petitioner pled guilty to attempted possession of a Schedule II controlled
substance, a Class D felony, and received a sentence of two years to serve consecutively to
the sentence for a federal conviction he was then serving. The sentence’s consecutive
requirement was also part of the negotiated plea agreement.
        Petitioner subsequently filed, pro se, a “Motion to Amend Original Judgement [sic]”
which the post-conviction court treated as a petition for post-conviction relief. Counsel was
appointed to represent Petitioner and an “Amended Petition for Post-Conviction Relief” was
filed. At the time of the post-conviction hearing, Petitioner was in federal custody in Texas,
and waived his right to be present at the post-conviction hearing and submitted his testimony
by affidavit pursuant to Tennessee Code Annotated section 40-30-110(a) and Rule 28 section
8(C)(2) of the Rules of the Supreme Court of the State of Tennessee. The extent of his post-
conviction hearing testimony by affidavit is the following sentence in the affidavit: “I hereby
ratify and reaffirm the facts stated in the Amended Petition for Post-Conviction Relief and
the prayer for relief contained therein.” The amended petition alleged that trial counsel
rendered ineffective assistance of counsel by telling Petitioner that “they will not run your
state time concurrent with your federal time, they are not allowed to do that and will not do
it.”

        Petitioner further alleged that trial counsel lead him to believe that the trial court “did
not have the authority to run the state sentence concurrent with his federal sentence.”
Petitioner asserts that he later discovered that he could have, in fact, received concurrent
sentencing and that trial counsel thus misled Petitioner with false statements that the trial
court had no legal authority to order consecutive sentencing and “thereby persuaded
Petitioner to accept the ‘quick plea.’” Petitioner also made the allegation that trial counsel
failed to make sure Petitioner received his jail credit in the judgment. However, Petitioner
made no factual allegations of how much jail credit he was entitled to, if any, for pre-
conviction time spent in custody solely on the Rutherford County charges awaiting
disposition of those charges.

        Trial counsel testified that he never told Petitioner that the law prohibited concurrent
sentencing in his case and that he never told Petitioner that the trial court would never allow
concurrent sentencing. Trial counsel did inform Petitioner that the prosecutor would not
agree to concurrent sentencing in the negotiated plea agreement. Trial counsel was asked
about Petitioner’s failure to get jail credit, and trial counsel testified that he discussed with
Petitioner how long Petitioner had been in jail, but trial counsel did not know what Petitioner
was alluding to in his assertion of failure to get appropriate jail credit. Petitioner’s post-
conviction counsel did not present any proof from the records keeper at the jail as to how
many days of jail credit Petitioner was entitled to receive. However, as pointed out by
Petitioner in his brief, the transcript of the guilty plea hearing shows the following exchange
at the conclusion of the guilty plea hearing:

         THE COURT:             Okay. Thank you. It doesn’t show that he’s got any
                                jail credit.



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        [PROSECUTOR]: I think he’s serving a five[-]year sentencing on
                      something else.

        THE COURT:            Okay.

      The post-conviction court accredited the testimony of trial counsel. The post-
conviction court found that the claims made by Petitioner were not clear and convincing
evidence that trial counsel rendered ineffective assistance of counsel.

        To sustain a petition for post-conviction relief, a petitioner must prove his or her
factual allegations by clear and convincing evidence at an evidentiary hearing. See Tenn.
Code Ann. § 40-30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon review,
this Court will not reweigh or re-evaluate the evidence below; all questions concerning the
credibility of witnesses, the weight and value to be given their testimony, and the factual
issues raised by the evidence are to be resolved by the post-conviction judge, not the
appellate courts. See Momon, 18 S.W.3d at 156; Henley v. State, 960 S.W.2d 572, 578-79
(Tenn. 1997). The post-conviction judge’s findings of fact on a petition for post-conviction
relief are afforded the weight of a jury verdict and are conclusive on appeal unless the
evidence preponderates against those findings. See Momon, 18 S.W.3d at 156; Henley, 960
S.W.2d at 578.

        The Sixth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution guarantee a criminal petitioner the right to representation by counsel.
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). Both the United States Supreme Court and the Tennessee Supreme Court have
recognized that the right to such representation includes the right to “reasonably effective”
assistance, that is, within the range of competence demanded of attorneys in criminal cases.
Strickland v. Washington, 466 U.S. 668, 687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523
S.W.2d at 936.

       A lawyer’s assistance to his or her client is ineffective if the lawyer’s conduct “so
undermined the proper functioning of the adversarial process that the trial cannot be relied
on as having produced a just result.” Strickland, 466 U.S. at 686. This overall standard is
comprised of two components: deficient performance by the petitioner’s lawyer and actual
prejudice to the defense caused by the deficient performance. Id. at 687; Burns, 6 S.W.3d
at 461. To demonstrate prejudice, a petitioner must show “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. The petitioner bears the burden of establishing both of these
components by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f); Burns, 6
S.W.3d at 461. The petitioner’s failure to prove either deficiency or prejudice is a sufficient

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basis upon which to deny relief on an ineffective assistance of counsel claim. Burns, 6
S.W.3d at 461; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

       This two-part standard of measuring ineffective assistance of counsel also applies to
claims arising out of a guilty plea. Hill v. Lockhart, 474 U.S. 52, 58 (1985). The prejudice
component is modified such that the defendant “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.” Id. at 59; see also Hicks v. State, 983 S.W.2d 240, 246 (Tenn.
Crim. App. 1998).

       In evaluating a lawyer’s performance, the reviewing court uses an objective standard
of “reasonableness.” Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The reviewing
court must be highly deferential to counsel’s choices “and should indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Burns, 6 S.W.3d at 462; see also Strickland, 466 U.S. at 689. The court should
not use the benefit of hindsight to second-guess trial strategy or to criticize counsel’s tactics,
see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982), and counsel’s alleged errors should be
judged in light of all the facts and circumstances as of the time they were made, see
Strickland, 466 U.S. at 690; Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998).

       A trial court’s determination of an ineffective assistance of counsel claim presents a
mixed question of law and fact on appeal. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
This Court reviews the trial court’s findings of fact with regard to the effectiveness of
counsel under a de novo standard, accompanied with a presumption that those findings are
correct unless the preponderance of the evidence is otherwise. Id. “However, a trial court’s
conclusions of law—such as whether counsel’s performance was deficient or whether that
deficiency was prejudicial—are reviewed under a purely de novo standard, with no
presumption of correctness given to the trial court’s conclusions.” Id. (emphasis in original).

        Under the standards set forth above, we conclude that the post-conviction court did
not err by denying post-conviction relief.

                                       CONCLUSION

       The judgment of the post-conviction court is affirmed.

                                             _________________________________________
                                             THOMAS T. WOODALL, JUDGE




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