                                                                                         07/02/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                              February 27, 2018 Session

               JENNIFER WOMAC v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Meigs County
                     No. 2009-CR-55A       Jeffrey Wicks, Judge


                             No. E2017-00660-CCA-R3-PC


The petitioner, Jennifer Womac, appeals the denial of her petition for post-conviction
relief, which petition challenged her 2012 guilty-pleaded conviction of second degree
murder. In this appeal, the petitioner contends that her guilty plea was not knowingly and
voluntarily entered, pointing to deficiencies in the plea colloquy, and that she was denied
the effective assistance of counsel. Discerning no error, we affirm the denial of post-
conviction relief.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Jonathan S. Edwards, Oak Ridge, Tennessee, for the appellant, Jennifer Womac.

Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Assistant
Attorney General; Russell Johnson, District Attorney General; and Lauren Bennett,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

               In 2009, the Meigs County Grand Jury charged the petitioner with one
count of first degree premeditated murder for her role in the death of her father, Grady
Nichols, Jr. In February 2010, the State filed notice pursuant to Tennessee Rule of
Criminal Procedure 12.3 that it intended to seek the death penalty, specifically alleging
that the petitioner employed co-defendant “James L. Landers to commit the murder for
remuneration or the promise of remuneration.”

               On February 2, 2012, the petitioner executed a written waiver of her right
to trial by jury and a request that the trial court accept her plea of guilty to the lesser
included offense of second degree murder. Pursuant to a plea agreement with the State,
the petitioner received a Range II sentence of 40 years’ incarceration. During the guilty
plea submission hearing, the State provided the following summary of the circumstances
of the offense:

              [I]n Meigs County, during the days leading up to September
              19th of 2009, [the petitioner] approached James Landers and
              solicited and inquired of him, of his willingness to kill Grady
              Nichols, Jr., [the petitioner’s] father.

                     They did in fact reach an agreement for the killing of
              Mr. Grady Nichols, Jr., and Mr. Landers did in fact shoot and
              kill him. Intentionally causing his death on September the
              19th of 2009 in Meigs County.

              On January 28, 2013, the petitioner filed a timely petition for post-
conviction relief, which petition alleged that the petitioner was deprived of the effective
assistance of counsel and that her conviction was based upon the use of a coerced
confession. The post-conviction court appointed counsel on November 7, 2013. Original
post-conviction counsel moved to withdraw in December 2014, and the post-conviction
court appointed current post-conviction counsel to represent the petitioner on December
19, 2014.

                On September 8, 2016, the petitioner filed an amended petition for post-
conviction relief and a memorandum of law in support of her claims for post-conviction
relief. The petitioner argued that her guilty plea was not knowingly and voluntarily
entered because she was deprived of the effective assistance of counsel and because the
trial court failed to follow the requirements of Tennessee Rule of Criminal Procedure 11
and State v. Mackey, 553 S.W.2d 337 (Tenn. 1977), when accepting the petitioner’s
guilty plea. Specifically, the petitioner claimed that lead trial counsel “made threats and
derogatory comments” to her in the months leading up to her guilty plea, that lead trial
counsel improperly recruited the petitioner’s mother to pressure her into accepting the
plea offer, that lead trial counsel failed to adequately explain the terms of the plea offer,
and that lead trial counsel intimidated and coerced the petitioner into pleading guilty.
The petitioner claimed that the trial court failed to ensure that her guilty plea was
knowingly and voluntarily entered by failing to follow the Rule 11 colloquy exactly.

              At the January 13, 2017 evidentiary hearing, the petitioner testified that she
pleaded guilty only because she “felt like [she] didn’t have a choice.” She claimed,
“[M]y attorney . . . told me that if I took it to trial that I would get the death penalty, and
that at the very least I would get life without parole.” She said that her counsel also
                                              -2-
“described in vivid detail what death row was like.” She claimed that her trial counsel
had called her “a whore once” and “a liar” when she tried to tell him something her
previous counsel had told her. The petitioner said that counsel “never had . . . a nice
word to say to” her and that he appeared “repulsed by being in the same room with” her.
She claimed, “[H]e told me that my children hated me, that my family hated me, and that
they would never want anything to do with me. And that the only reason my mother
cared anything about me was because I shared D.N.A. with her.” According to the
petitioner, she chose to plead guilty instead of going to trial because she did not think that
counsel “would have been for” her or that “he would have represented [her] the way [she]
should have been represented.” When confronted with the fact that the petitioner stated
during the plea colloquy that she was satisfied with the representation offered by her
attorneys, the petitioner said,

                     To be honest I don’t remember saying that but I know
              the record shows that and I know that I said that. And that
              whole day was just kind of like a fog, like I was on auto-pilot.
              I don’t even remember saying that – most of what happened
              that day I don’t even remember.

               The petitioner claimed that lead trial counsel “was very happy about” the
State’s offer of a 40-year sentence in exchange for a plea of guilty to second degree
murder. She insisted that she was less than thrilled with the offer because she “would
rather to just have life than the 40 years because it would be more human[e] to [her] than
for [her] to try to find somewhere to go at 76.” She said that, at that point, counsel told
her that that was not “his problem or the State’s problem.” The petitioner testified that
lead trial counsel told her that the plea offer would not “be on the table forever” and that
she “needed to act fast.”

               The petitioner said that she did not read the plea documents and that neither
lead trial counsel nor associate trial counsel read the documents to her. She said that
neither attorney discussed the documents with her, saying that “the only thing that was
discussed . . . was that in order for [her] to take 40 years at second degree, that they had
to have [her] permission.” She insisted that no one told her about her right to appeal her
conviction should she be convicted at trial. She also claimed that neither her attorneys
nor the trial court inquired into the voluntariness of her plea. Had they done so, she
claimed, she “would have told them no” because “it was not voluntary.”

             During cross-examination, the petitioner acknowledged that she had
graduated high school and had no difficulty reading and writing. She said that the trial
court had appointed two attorneys to represent her and that both attorneys had met with
her on more than five occasions prior to the entry of her plea. The petitioner admitted
                                             -3-
that the attorneys discussed the charged offense and the potential punishments for that
offense. She denied speaking to either attorney about any possible defenses in the case.
She could not recall whether her attorneys had discussed “all the evidence” with her but
stated that “they had went over the recording” wherein her co-defendant had worn a
recording device while discussing the details of the victim’s murder with the petitioner.
The petitioner said that she was aware that the co-defendant had confessed to the victim’s
murder and that he had told investigators that the petitioner “actually . . . had planned for
him . . . to kill” the victim and “had promised him 30 percent of [the] take.” The
petitioner could not recall whether her attorneys had told her that the co-defendant told
investigators that the petitioner told him where and when to find the victim and that the
petitioner told him she would inherit one million dollars from the victim’s estate.

              The petitioner acknowledged that her attorneys provided her with “a big
stack of papers, which was discovery,” and asked her “to read through ever[y] page” and
mark any inconsistencies. She could not recall, however, whether the discovery materials
included the information that she had dropped the co-defendant off to shoot the victim
and had picked him up after he completed the job or that she had disposed of the murder
weapon. The petitioner admitted that her attorneys went over the transcript of the audio
recording of her conversation with the co-defendant but claimed that she could not recall
hearing that portion of the recording where she told the co-defendant that she would pay
any amount necessary to create a fake alibi for the co-defendant. The petitioner insisted
that she had reviewed all the discovery materials provided to her and admitted that the
contents of those materials would have been fresh in her mind when she entered her plea.

              The petitioner identified her signature on the plea documents filed on
February 2, 2012, but she said that she did not “recall it being read to” her and that she
did not “recall reading it” before signing it. She agreed, however, that she typically did
not “sign random things.” She said that it was possible that she had read the documents
or that they had been read to her but that she did not recall their contents. Later, she
claimed she had no recollection of ever having seen the plea documents. She claimed
that although she recalled coming to court on the day she entered her plea and having a
discussion with her attorneys before pleading guilty, she could not recall the substance of
their conversation. Of the plea process, the petitioner said that she “kn[e]w there was a
judge” and that he asked her questions, but she had no specific recollection of the
questions or her answers.

              The petitioner said that she understood that by pleading guilty to second
degree murder, she “was going to prison for 40 years.” The petitioner stated that she
knew that the State was seeking the death penalty in her case. The petitioner conceded
that the transcript of the guilty plea submission hearing established that the trial court
informed her of her right to a jury trial, compulsory process, the right to confront the
                                             -4-
witnesses against her, and the privilege against self-incrimination and that she had agreed
to the State’s stipulation of facts, but she insisted that she had no independent recollection
of the colloquy.

             The petitioner insisted that she did not plead guilty because of the weight of
the evidence against her, explaining, “I was thinking that my attorney told me that I
needed to take that or I was going to get the death penalty.”

              During redirect-examination, the petitioner said that she could not recall
whether she was sworn prior to entering her plea, whether the trial court had inquired of
her education level, whether there was anything in the plea documents she did not
understand, or whether she realized that by signing the plea documents she was certifying
that she had read them. She said that lead trial counsel often indicated to her that he did
not believe things she told him about the case, saying, “He just called me a liar all the
time. And uh, yeah, he’d just call me a liar.” She insisted that her plea was not freely
and voluntarily entered because she “was scared of the death penalty.”

               Associate trial counsel testified that he was appointed second chair after the
State filed notice of its intent to seek the death penalty. Lead trial counsel was appointed
after the attorney originally appointed as first chair in the petitioner’s case took a position
as an assistant district attorney. Associate counsel recalled that he went to most court
appearances and that he and lead counsel primarily visited the petitioner together,
although he remembered two occasions when lead trial counsel had visited the petitioner
without him. Lead counsel handled most of the correspondence.

              Associate trial counsel testified that he and lead trial counsel “discussed at
length” with the petitioner “the particulars . . . that are required to be proved by the
State.” He said they also discussed with the petitioner the three possible punishments for
a conviction of first degree murder and “any possible potential punishment, range of
punishments that might come if there were a finding of guilt for a lesser included offense
and what went with that.” They also told the petitioner “the difference between
sentencing for a capital murder case . . . as opposed to say second degree murder . . . and
all the ranges that came with those and on down the line.” He said that they had lengthy
discussions during which they explained release eligibility percentages.

               Associate trial counsel testified that on the day of the petitioner’s plea, he
and lead counsel “had some further discussions” with the petitioner “which were
basically a reiteration of the same things that we had previously discussed in January
when she had advised that she was willing to take the plea agreement with the State.” He
said that he specifically recalled both attorneys’ going “over the same things as far as the
rights and things like that again. We went over range of punishment.” He recalled that in
                                              -5-
the months leading up to the plea, the petitioner had asked a lot of questions about
sentence length and release eligibility. Associate counsel recalled that he and lead
counsel told the petitioner about her potential to earn up to a 15 percent reduction in her
sentence but warned that when she calculated the number of years she would have to
serve, she “better go ahead and just do them year for year as opposed to trying to give
any sort of credit because” it was better to think about “the worst case scenario” before
accepting the plea. Associate counsel said that he did not “remember her being
particularly shaken” on the day she entered the plea.

              Associate trial counsel acknowledged that the trial court did not place the
petitioner under oath before accepting her plea and that the court did not follow exactly
the requirements of Tennessee Rule of Criminal Procedure 11.

               Associate trial counsel testified that he and lead trial counsel reviewed the
discovery materials with the petitioner and that they focused particularly on “some of the
tape recordings” because those recordings were the “cause for concern” in his opinion.
He said that he had “a concern at that particular time about the likelihood of success at
suppressing those” recordings and, if those recordings were deemed admissible, “how it
would impact not just trial strategy but also the [e]ffect it might have on a potential jury.”
Of particular concern for trial counsel “was some of the recording[s] that had been made
of [the petitioner] that she was not aware of at the time.” He said that he “talked at
length” about “[t]he nitty gritty about the content of those recordings” with the petitioner
and warned her about their potentially damaging impact.

               Associate trial counsel said that the petitioner never indicated that she did
not understand what was happening in her case. He said that it was his practice to “take
it very slow” with all of his clients when explaining the law and the criminal trial process.
Associate counsel said that he and lead trial counsel had repeatedly discussed with the
petitioner the difference between a Range I and a Range II sentence and that she was
pleading outside of her range. He said that the plea documents were discussed with the
petitioner, explaining that it was his practice to read the plea documents “to the clients”
because he “wanted them to quite frankly to always know that [he] read everything to
them verbatim as far as any plea papers.” He added, “[T]hese matters were gone over
with [the petitioner], in fact, there was a different pack of materials . . . that were . . . gone
over with her not just on the day of and the ones that were ultimately entered with the
court but had been discussed with her previously.” He said that “there wasn’t anything
that cause[d]” him “to question whether she understood what she was doing at that time,
based on our discussions.”

               Associate trial counsel said that he did not recall any meetings wherein lead
trial counsel behaved unprofessionally toward the petitioner. He said that neither he nor
                                               -6-
lead trial counsel threatened the petitioner or forced her to accept the plea offer. He
stated that they had frank discussions with the petitioner about “the nature of the facts
that . . . may have been presented at trial,” but “nothing that would have indicated . . .
there was any effort to overcome her will or voluntariness of anything.” He added, “And
quite frankly, as counsel for any defendant, I wouldn’t have gone along with it myself if I
thought that were the case.” He said that he would not have allowed the plea submission
hearing to proceed if he had believed the petitioner’s plea was not knowing and
voluntary.

               Lead trial counsel testified that he was appointed first chair in the
petitioner’s case on July 6, 2011, and that he met with the petitioner nine times between
the day he was appointed and the day she pleaded guilty. He said that immediately after
his appointment, he met with associate trial counsel to review the discovery materials.
He then met with the petitioner at the jail and “took a detailed history, a personal history
of her, family members, medical histories, those kinds of things.” He obtained medical
records for the petitioner and the co-defendant, who “had attempted suicide.” He
contacted the Chattanooga attorney who opened the victim’s estate. Lead counsel
obtained funds to hire a mitigation specialist from Nashville, a general investigator from
Nashville, and a former FBI agent to assist in examining the financial records in this case.

               Lead trial counsel said that he “would have explained” the discovery
materials to the petitioner and “would have gone through the records and explained to her
the different reports.” He said that he would have played the audio recordings for the
petitioner on his laptop computer. With regard to the recorded conversation between the
petitioner and the co-defendant, lead trial counsel said that he would have found “every
statement she made in that recording” that he believed to be incriminating and would
have asked the petitioner specifically to explain those statements. He recalled that “this
statement was what was the sticking point for several meetings, her inability to be able to
explain its contents.” He said that his purpose in focusing on the statement was not to
place the petitioner under duress but to prepare her for trial.

              Lead counsel testified that as soon as he was up to speed on the case, he
began plea negotiations with the State. He recalled that the initial offer required the
petitioner to plead guilty to first degree murder in exchange for a life sentence. Two
weeks later, the State presented an offer that required the petitioner to plead guilty to
second degree murder in exchange for a Range II sentence of 40 years. He said that he
discussed the latter offer with the petitioner on three separate occasions before she
entered her plea. He said that he told the petitioner that the agreement called for an out-
of-range sentence and explained to her the difference between a Range I sentence and a
Range II sentence. He also told her “that she would have to consent and agree to receive
a 40 year sentence for us to plead her guilty to second degree murder.” He added, “And
                                            -7-
so she knew the ranges, she knew what she faced if she went to trial. What was pressing
for us obviously was the death penalty notice.”

               Lead trial counsel testified that “as our representation of her progressed, she
conveyed to us several times about not wanting a trial.” He said that he had “several
documents” establishing that he had “set forth her options” for obtaining a plea
agreement. He said that he discussed the elements of the charged offense with the
petitioner as well as “the bifurcated nature of a death penalty trial” “early on” in the case.
He said that he would have revisited those issues “when she decided to plead.” He said
that he “would have read the paperwork to her” and noted that the petitioner “actually
signed two plea agreements,” one on the day of her plea and one on January 13, 2012,
when he and associate trial counsel met with the petitioner at the jail. He said that he
“would not have read it verbatim” to the petitioner because she “could read or write, she
was intelligent.” He testified that the petitioner “would have had plenty of time” to read
the plea paperwork and to ask him any questions about it during the January meeting.
Lead counsel said that he repeated the entire process on the day the petitioner entered her
plea. When asked whether the petitioner gave any indication that she did not understand
the plea or its implications, lead counsel responded, “Absolutely not, she understood
what she was doing that day. She was competent on what she was doing that day.” Lead
counsel recalled that following the entry of the petitioner’s plea, the mitigation specialist,
who “had spent some time with” the petitioner after the plea agreement was signed but
before the trial court started the plea hearing, wrote counsel a letter wherein she indicated
that the petitioner was “confident in her decisions.” He said that based on this letter and
the petitioner’s behavior on the day of her plea, he believed that pleading guilty “was
something that she wanted to do, she wanted to get it behind her.”

              Lead trial counsel vehemently denied coercing the petitioner to plead
guilty, saying that the petitioner’s pleading guilty would have had no benefit for him. He
acknowledged having had several frank conversations with the petitioner “because she
could not provide satisfactory answers to the things that she said in that 45 minute tape
with” the co-defendant. He said that the petitioner was evasive when they discussed the
recorded conversation, often claiming that she did not even remember it. Lead trial
counsel stated that he wanted the petitioner to be able to answer “the hard questions”
should she be called to testify at trial.

               He also acknowledged that he discussed with the petitioner in great detail
the reality of life on death row. Lead counsel said that he felt that it was important that
the petitioner understand the “quality of life” on death row because “it’s different than if
you’re” not on death row. He added that he believed it was “ineffective if you don’t tell
the defendant what they’re . . . potentially looking at and their quality of life if they are in
that situation.” He recalled that the petitioner expressed concern about being released
                                              -8-
from prison when she was in her seventies, so the mitigation specialist went to the prison
to interview employees to determine the answers to the petitioner’s questions. She then
wrote a three-page letter to the petitioner that “answered those questions as best she could
for her.” He also recalled that he asked the district attorney to hold the plea offer open
while the petitioner considered these issues.

             Lead counsel described the petitioner’s demeanor on the day of the plea
submission hearing as “calm as a cucumber” and said that if he believed the petitioner did
not understand the terms of the plea agreement and the rights she was waiving, he “would
have stopped the proceeding.”

               During cross-examination, lead trial counsel acknowledged having had a
heated discussion with the petitioner on November 8, 2011, explaining that “that was due
to” the petitioner’s “inability if you will, to explain to us her statements in that 45 minute
tape with” the co-defendant. He added that “after those heated conversations we had a lot
of constructive conversations with one another about how to end this case and bring it to
a conclusion.” Lead counsel said that he encouraged the petitioner to accept the plea
offer “because of the overwhelming evidence that they had against her,” adding, “I felt
like the State had evidence of first degree murder and that it would be fairly easy to
convict her of first degree murder.” He said that the recorded conversation between the
petitioner and the co-defendant was “worse than a confession to law enforcement.” He
added, “All the State would have to do is hit play [on the recordings] to convict her of
first degree murder.” Given this overwhelming evidence, he told her that “[i]t would be
very difficult to refute what’s on that tape” if she took the stand. Lead counsel said that
he “told her that the chance of her being convicted and given the death penalty was
substantial.”

               Lead trial counsel testified that after obtaining the petitioner’s permission to
do so, he spoke to the petitioner’s mother about the case. He told her the poor odds of the
petitioner’s being acquitted and that he thought the petitioner should accept the plea offer.
He said that he did not “recall telling [the petitioner’s mother] you need to convince your
daughter to take this offer,” but he did not “necessarily dispute that either.” He stated
that he wanted the petitioner’s mother to help her “make good decisions,” explaining that
in a death penalty case the goal was “trying to save someone’s life.”

             At the conclusion of the hearing, the post-conviction court took the matter
under advisement.

             In the written order denying post-conviction relief, the post-conviction
court observed that the petitioner “appeared to have a good memory to any fact or
circumstance that tended to support her argument that her plea was not knowing and
                                              -9-
voluntary or that her trial counsel was ineffective. However, her favorite answer to any
question that was incriminating or did not support her argument was ‘don’t recall.’” The
court added that “[b]ased upon the court’s observations of [the] [p]etitioner’s demeanor
and her answers to the questions asked of her, the court does not find [the] [p]etitioner’s
testimony to be the least bit credible.” The post-conviction court accredited the
testimony of associate trial counsel that he “had lengthy discussions with” the petitioner
regarding “her constitutional rights, the elements of proof required and the range of
punishment for both first degree murder and second degree murder, lesser included
offenses, and the difference between a Range I and Range II offender.” The court
accredited the testimony of lead trial counsel that he had discussed these same things with
the petitioner. With regard to the petitioner’s claim that the trial court failed to follow
exactly the Rule 11 colloquy, the post-conviction court found that the petitioner’s
allegation “is not constitutionally based” and “is not cognizable under the Post-
Conviction Procedure Act.” As to the petitioner’s claim that her guilty plea was the
product of ineffective assistance of counsel, the post-conviction court specifically found
the testimony offered by lead trial counsel and associate trial counsel “to be substantially
more credible than [the] [p]etitioner’s” and that the petitioner had “failed to prove that
[lead trial counsel] made any threats to her, blatant or otherwise, which would force her
to accept the guilty plea against her will.”

              In this timely appeal, the petitioner reiterates her claims that she was
deprived of the effective assistance of counsel and that, because the trial court failed to
satisfy the Rule 11 requirements during her plea colloquy, her guilty plea was not
knowingly and voluntarily entered. The State asserts that the post-conviction court did
not err by denying relief.

              We view the petitioner’s claim with a few well-settled principles in mind.
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. A post-
conviction petitioner bears the burden of proving his or her factual 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).

             Before a petitioner will be granted post-conviction relief based upon a
claim of ineffective assistance of counsel, the record must affirmatively establish, via
                                            -10-
facts clearly and convincingly established by the petitioner, 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
that 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. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. 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 considering a claim of ineffective assistance of counsel, a reviewing
court “begins with the strong presumption that counsel provided adequate assistance and
used reasonable professional judgment to make all significant decisions,” Kendrick v.
State, 454 S.W.3d 450, 458 (Tenn. 2015) (citing Strickland, 466 U.S. at 689), and “[t]he
petitioner bears the burden of overcoming this presumption,” id. (citations omitted). 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 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 ‘[t]he 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 a claim of ineffective assistance of counsel and a claim of involuntary
guilty plea are mixed questions of law and fact. Kendrick, 454 S.W.3d at 457; 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,
                                            -11-
and the post-conviction court’s conclusions of law are given no presumption of
correctness. Kendrick, 454 S.W.3d at 457; Fields, 40 S.W.3d at 457-58; see also State v.
England, 19 S.W.3d 762, 766 (Tenn. 2000).

             In our view, the record fully supports the denial of relief in this case.

                                          Rule 11

              Without question, the trial court in this case did not follow exactly the
litany required by Tennessee Rule of Criminal Procedure 11, which provides:

             (1) ADVISING AND QUESTIONING THE DEFENDANT. - Before
             accepting a guilty or nolo contendere plea, the court shall
             address the defendant personally in open court and inform the
             defendant of, and determine that he or she understands, the
             following:
             (A) The nature of the charge to which the plea is offered;
             (B) the maximum possible penalty and any mandatory
             minimum penalty;
             (C) if the defendant is not represented by an attorney, the
             right to be represented by counsel--and if necessary have the
             court appoint counsel--at trial and every other stage of the
             proceeding;
             (D) the right to plead not guilty or, having already so pleaded,
             to persist in that plea;
             (E) the right to a jury trial;
             (F) the right to confront and cross-examine adverse witnesses;
             (G) the right to be protected from compelled self-
             incrimination;
             (H) if the defendant pleads guilty or nolo contendere, the
             defendant waives the right to a trial and there will not be a
             further trial of any kind except as to sentence;
             (I) if the defendant pleads guilty or nolo contendere, the court
             may ask the defendant questions about the offence to which
             he or she has pleaded. If the defendant answers these
             questions under oath, on the record, and in the presence of
             counsel, the answers may later be used against the defendant
             in a prosecution for perjury or aggravated perjury;
             (J) if the defendant pleads guilty or nolo contendere, it may
             have an effect upon the defendant's immigration or
             naturalization status, and, if the defendant is represented by
                                            -12-
              counsel, the court shall determine that the defendant has been
              advised by counsel of the immigration consequences of a
              plea; and
              (K) if the defendant pleads guilty or nolo contendere to an
              offense for which he or she will receive an additional
              sentence of community supervision for life, the fact that he or
              she will receive the additional sentence, and, if the defendant
              is represented by counsel, the court shall determine that the
              defendant has been advised by counsel of the community
              supervision for life sentence and its consequences.
              (2) INSURING THAT PLEA IS VOLUNTARY. - Before accepting
              a plea of guilty or nolo contendere, the court shall address the
              defendant personally in open court and determine that the
              plea is voluntary and is not the result of force, threats, or
              promises (other than promises in a plea agreement). The
              court shall also inquire whether the defendant’s willingness to
              plead guilty or nolo contendere results from prior discussions
              between the district attorney general and the defendant or the
              defendant’s attorney.
              (3) DETERMINING FACTUAL BASIS FOR PLEA. - Before
              entering judgment on a guilty plea, the court shall determine
              that there is a factual basis for the plea.

Tenn. R. Crim. P. 11. That being said, because “the additional processes for accepting a
guilty plea that [State v. Mackey, 553 S.W.2d 337, 340 (Tenn. 1977)] and Rule 11 require
are not necessarily constitutionally based,” “an allegation that a trial court failed to follow
. . . Rule 11 does not necessarily establish a cognizable post-conviction claim because
post-conviction relief is only available to remedy an abridgement of a state or federal
constitutional right.” Garcia v. State, 425 S.W.3d 248, 263-64 (Tenn. 2013); see also
Johnson v. State, 834 S.W.2d 922, 925 (Tenn. 1992) (“Whether the additional
requirements of Mackey were met is not a constitutional issue and cannot be asserted
collaterally.”); Rigger v. State, 341 S.W.3d 299, 308 (Tenn. Crim. App. 2010)
(recognizing that the procedures embodied in Rule 11 and Mackey are not
constitutionally based and stating that “the claim of a lack of information about these
rights is not, apart from a claim of involuntary and unknowing guilty plea, per se
cognizable in a post-conviction proceeding”). Instead, “the three rights specified in
Boykin form the constitutional touchstone for post-conviction relief purposes.” Rigger,
341 S.W.3d at 308 (citing Howell v. State, 185 S.W.3d 319, 331 (Tenn. 2006)); see also
State v. Prince, 781 S.W.2d 846, 853 (Tenn. 1989) (“Mackey mandated advice by the
trial judge about the consequences of a guilty plea that went beyond the requirements of

                                             -13-
Boykin. . . . That advice and any other requirement of Mackey in excess of Boykin is not
based upon any constitutional provision, federal or state.”).

               Although it is the better practice for the trial court to substantially comply
with Rule 11 because “a trial court’s failure to comply with the non-constitutional
provisions of Rule 11(c)(1)-(5) ‘may contribute to the totality of the circumstances’ that
reflects an unknowing or unintelligent guilty plea,” Rigger, 341 S.W.3d at 309 (quoting
Powers v. State, 942 S.W.2d 551, 555 (Tenn. Crim. App. 1996)), “in many cases it may
be possible to determine that a defendant entered a plea with knowledge and
understanding of the nature of the plea offense, even when a trial court fails to conduct
the Rule 11(c)(1) inquiry,” State v. Crowe, 168 S.W.3d 731, 749 (Tenn. 2005). In this
case, the accredited testimony of lead and associate trial counsel established that both
attorneys repeatedly advised the petitioner of the nature of the charge, the weight of the
State’s evidence, the potential punishments, and the consequences of pleading guilty.
Both attorneys testified that the petitioner was fully aware of the rights she was waiving
by pleading guilty and that her plea was knowingly and voluntarily made. The petitioner
signed the plea documents, which included a written waiver of her constitutional rights,
on two separate occasions, and associate trial counsel testified that it was his regular
practice to read plea documents to his clients. The transcript of the plea submission
hearing establishes that the trial court informed the petitioner of her core constitutional
rights, that the petitioner acknowledged having gone over the plea documents and terms
of the plea agreement with her attorneys, and that she understood the consequences of
pleading guilty. Under these circumstances, the petitioner has failed to establish by clear
and convincing evidence any facts to support her claim that the trial court’s failure to
follow the Rule 11 litany in this case rendered her guilty plea unknowing and
involuntary.

                             Ineffective Assistance of Counsel

               The petitioner also contends that her guilty plea was unknowing and
involuntary because it was the product of the ineffective assistance provided by her
attorneys. Again, it is our view that the petitioner has failed to establish by clear and
convincing evidence any support for her claim. Lead trial counsel admitted that he asked
the petitioner hard questions about the case and that he informed the petitioner of the
realities of life on death row, but he adamantly denied threatening the petitioner or
coercing her to plead guilty. The post-conviction court declared the petitioner’s
testimony “not the least bit credible.” The record belies the petitioner’s testimony that
counsel pressured her into accepting the plea agreement and pleading guilty in this case.
Although the petitioner insisted that she pleaded guilty to avoid the death penalty, “[t]he
entry of a plea of guilty to avoid a death sentence or risk greater punishment does not,
standing alone, make the plea involuntary.” Parham v. State, 885 S.W.2d 375, 381
                                            -14-
(Tenn. Crim. App. 1994); see also Bratton v. State, 477 S.W.2d 754, 757 (Tenn. Crim.
App. 1971) (“The law is also settled and is no longer open to question that a guilty plea is
not rendered involuntary by the fact that the accused is faced with an election between a
possible death sentence on a plea of not guilty and a lesser sentence upon a guilty plea.”).
No evidence supports a finding that the petitioner’s plea was “the product of ‘[i]gnorance,
incomprehension, coercion, terror, inducements, [or] subtle or blatant threats.’” Wilson,
31 S.W.3d at 195 (quoting Boykin, 395 U.S. at 242-43).

              Accordingly, the judgment of the post-conviction court is affirmed.


                                                    _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




                                            -15-
