         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                          Assigned on Briefs September 11, 2001

              THOMAS T. CUMMINGS v. STATE OF TENNESSEE

               Appeal as of Right from the Criminal Court for Shelby County
                       No. P-22250 James C. Beasley, Sr., Judge



                   No. W2000-02813-CCA-R3-PC - Filed November 9, 2001


The petitioner, Thomas T. Cummings, pled guilty in the Shelby County Criminal Court to second
degree murder. Pursuant to a negotiated plea agreement, he was sentenced as a violent offender to
twenty-five years incarceration, to be served at one hundred percent (100%), in the Tennessee
Department of Correction. The petitioner timely filed for post-conviction relief, alleging that he
received ineffective assistance of counsel and that his plea was not knowing and voluntary because
his attorney erroneously advised him that he would be required to serve only eighty-five percent
(85%) of his sentence before becoming eligible for parole and that his sentence could be reduced an
additional fifteen percent (15%) for “good behavior.” On appeal, the petitioner challenges the post-
conviction court’s conclusion that he received effective assistance of counsel. After a 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 Criminal Court is Affirmed.

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which THOMAS T. WOODALL and
ROBERT W. WEDEMEYER , JJ., joined.

Alicia A. Howard, Memphis, Tennessee, for the appellant, Thomas T. Cummings.

Paul G. Summers, Attorney General and Reporter; Laura McMullen Ford, Assistant Attorney
General; John W. Pierotti, District Attorney General; and Dan Woody, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

                                     I. Factual Background
                On December 2, 1998, the petitioner was indicted on a charge of first degree murder
following the shooting death of a deputy jailer in Shelby County. The victim was shot in the front
yard of his home as the result of an alleged “hit” placed on him by a street gang known as the
Traveling Vice Lords. The petitioner made several statements to law enforcement authorities
outlining his involvement in the offense. Three of the petitioner’s co-defendants were convicted by
a jury of first degree murder and sentenced to life imprisonment without the possibility of parole.
A fourth co-defendant pled guilty to a lesser offense and received a fifteen-year sentence. The
petitioner ultimately pled guilty to second degree murder and was sentenced to serve one hundred
percent (100%) of his twenty-five year sentence in confinement.

                 The evidence presented at the post-conviction hearing consisted of the testimony of
the petitioner and his trial counsel. The petitioner testified that he would not have pled guilty if he
had understood the terms of the plea agreement. He insists that his attorney advised him that he
would be eligible for parole after serving eighty-five percent (85%) of his sentence and that his
sentence could be reduced an additional fifteen percent (15%) for “good days.” However, he
discovered after his incarceration that he was not eligible for parole and that he would not be eligible
for sentence reduction credits until after he had served eighty-five percent (85%) of his sentence.
The petitioner acknowledged that the trial court advised him at the guilty plea hearing “that I would
get credit for good behavior, but he said that it’s going to be at one[]hundred percent and that I would
not get parole.” He also conceded that he understood what the trial judge told him regarding his
sentence. Moreover, the petitioner testified that his trial counsel read the plea documents to him
“front and back” before he signed them.

                 The petitioner admitted that he never told the trial court or his attorney that he did not
understand the terms of his plea agreement. However, he contends that the proceedings were moving
so quickly that he did not have the opportunity to express his concerns. Additionally, the petitioner
alleges that he was pressured to plead guilty because his attorney and the trial court advised him that
the plea offer was only available that day. He admitted that, at the time of his guilty plea hearing,
his trial date had not been set and he knew that his attorney had time to investigate and develop his
case.

                As further support for his claim of ineffective assistance, the petitioner alleges that
his trial counsel should have scheduled a psychological evaluation for him. The petitioner testified
that he is unable to read or write and that he did not attend school regularly after the seventh or
eighth grade. He contends that a psychological evaluation would have provided sufficient evidence
to suppress his confession. However, the petitioner also admitted that he was aware that the three
co-defendants who had gone to trial had received a sentence of life without the possibility of parole.
He was concerned that he would receive a life sentence and, at the time, believed that the plea was
in his best interest. He thought that the plea was his only chance of ever getting out of the
penitentiary.

                 In response to the petitioner’s testimony, the State offered the testimony of
petitioner’s trial counsel. Counsel testified that he had practiced law for eight years and that
approximately eighty or ninety percent (80 or 90%) of his practice was in the area of criminal law.
He was also certified to handle capital cases. Counsel testified that he was aware that the petitioner
is illiterate; therefore, he very carefully explained the plea documents to the petitioner. He
emphasized that he read all of the documents to the petitioner “line by line” and specifically
explained to the petitioner that he would have to serve eighty-five percent (85%) of his sentence


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before he would be eligible for “good credit time.” Counsel explained to the petitioner that he did
not have to accept the proposed plea agreement and reminded him that they would have time to
prepare for trial. Counsel recalled that the trial court had advised him that he would be given all the
time necessary to prepare for trial. Counsel also remembered that the petitioner had several days to
consider the agreement and discuss it with his family.

                Counsel admitted that he erroneously advised the petitioner that he would be eligible
for parole after serving eighty-five percent (85%) of his sentence. Counsel observed that, at the
guilty plea hearing, the trial court corrected counsel’s error and explained to the petitioner before his
plea was entered that the petitioner would never be eligible for parole and would be required to serve
one hundred percent (100%) of his sentence in confinement. Counsel stated that the petitioner did
not appear surprised by the trial court’s comments because “everybody kept reiterating that it was
at a hundred percent.” He said that the petitioner was repeatedly told that he would never be released
prior to serving eighty-five percent (85%) of his sentence.

                Counsel testified that, when he became aware of petitioner’s illiteracy, he asked that
the petitioner be evaluated. The trial court approved funds for the evaluation, and a psychologist was
retained; however, the petitioner had not been evaluated at the time he pled guilty. Counsel
explained that, even if the petitioner’s statements had been suppressed, the State had witnesses who
could place the petitioner at the scene of the murder with a gun in his hand. Counsel believed that
the plea was in the petitioner’s best interest. He stated that the petitioner was aware that three of his
co-defendants had been convicted by a jury and sentenced to life imprisonment without the
possibility of parole. Petitioner thought that accepting the proposed plea would be the only chance
he had to ever get out of the penitentiary.

                Following the post-conviction hearing, the post-conviction court made detailed
findings of fact and conclusions of law, concluding that the petitioner had failed to establish by clear
and convincing proof that he had been denied effective assistance of counsel or that his guilty plea
was not knowingly and voluntarily entered.

                                              II. Analysis
                 The sole issue on appeal is whether the post-conviction court erred in finding that the
petitioner received effective assistance of counsel. In post-conviction proceedings, the petitioner has
the burden of proving the grounds raised in the petition by clear and convincing evidence. Tenn.
Code Ann. § 40-30-210(f) (1997). A post-conviction court’s factual findings are subject to a de
novo review by this court; however, we must accord these factual findings a presumption of
correctness that may be overcome only if the evidence preponderates against those findings. See
Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).
A post-conviction court’s conclusions of law, such as whether counsel’s performance was deficient
or whether that deficiency was prejudicial, are subject to a purely de novo review by this court, with
no presumption of correctness. Fields, 40 S.W.3d at 458.




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                In order to prove ineffective assistance of counsel, the petitioner bears the burden of
showing both that his counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the outcome of the case. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984). This is a two-pronged test:
                First, the defendant must show that counsel’s performance was
                deficient. This requires showing that counsel made errors so serious
                that counsel was not functioning as the “counsel” guaranteed the
                defendant by the Sixth Amendment. Second, the defendant must
                show that the deficient performance prejudiced the defense. This
                requires showing that counsel’s errors were so serious as to deprive
                the defendant of a fair trial, a trial whose result is reliable.
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. Moreover, when a petitioner’s ineffective assistance
claim is made in the context of a conviction stemming from a guilty plea, he must prove a reasonable
probability that, were it not for deficiencies in his counsel’s performance, he would not have pled
guilty but instead would have insisted on going to trial. See Shazel v. State, 966 S.W.2d 414, 416
(Tenn. 1998) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370-71 (1985)).

                  The deficiency prong of the test is satisfied by showing that counsel’s actions or
decisions “f[e]ll below an objective standard of reasonableness under prevailing professional
norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland, 466 U.S. at 688, 104
S. Ct. at 2065, and Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong of the
test is satisfied by showing a “reasonable probability” that the outcome of the proceeding would have
been different had it not been for counsel’s deficiencies in performance. Strickland, 466 U.S. at 694,
104 S. Ct. at 2068. When analyzing a petitioner’s allegations of ineffective assistance of counsel,
this court must indulge a strong presumption that the conduct of counsel fell within the range of
reasonable professional assistance, see Strickland, 466 U.S. at 690, 104 S. Ct. at 2066, and may not
second-guess the tactical and strategic choices made by trial counsel unless those choices were
uninformed because of inadequate preparation. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

                 The post-conviction court concluded in its detailed findings of fact and conclusions
of law that the petitioner failed to establish by clear and convincing proof that his counsel was
ineffective or that he had suffered prejudice as a result of ineffective assistance of counsel. The court
noted that the petitioner’s testimony at the post-conviction hearing differed little from that of his trial
counsel. The primary difference related to the claim that petitioner did not understand that he would
be required to serve eighty-five percent (85%) of his sentence before he became eligible for sentence
reduction credits. The record reflects that petitioner’s counsel advised the trial court that petitioner
was illiterate and that counsel had carefully reviewed the plea documents with the petitioner.
Although the post-conviction court noted that trial counsel had incorrectly advised petitioner that he
would be eligible for parole after serving eighty-five percent (85%) of his sentence, the post-
conviction court concluded that the trial court thoroughly advised the petitioner regarding the
requirements of his sentence. The post-conviction court further noted the following colloquy
between the trial court and the petitioner:



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                The Court: All right, now, there is no parole for Murder, there is no
                parole for Murder in the Second Degree or First Degree and the
                Parole Board will never meet to discuss your case, they’ll never
                consider your case. The law says, though, that after you’ve served
                eighty-five [percent] of this sentence, they can consider you, the
                Department of Correction, not the Parole Board, can consider you, for
                giving you credits for being, good behavior and good time, so that
                you may not have to serve the entire twenty-five years if you are on
                good behavior then you will get credits. But, they may decide not to
                give you any credit at all and you will have to do the twenty-five
                years day for day. Do you understand that?

                Petitioner: Yes, sir.

                 The petitioner acknowledged, and the transcript of the guilty plea hearing reflects, that
petitioner was informed several times by the trial court that he would never be eligible for parole and
would be required to serve one hundred percent (100%) of the sentence in confinement. Each time,
the petitioner responded that he understood. In summary, the evidence at the post-conviction hearing
supports the findings and conclusions reached by the post-conviction court.

                                          III. Conclusion
                After a careful review of the record, we affirm the judgment of the post-conviction
court.




                                                         ___________________________________
                                                         NORMA McGEE OGLE, JUDGE




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