         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                          Assigned on Briefs November 15, 2005

                 BYAS WOFFORD, IV v. STATE OF TENNESSEE

                     Appeal from the Circuit Court for Madison County
                          No. C-04-22    Donald H. Allen, Judge



                   No. W2005-00116-CCA-R3-PC - Filed December 8, 2005


The petitioner, Byas Wofford, IV, stands convicted of five counts of identity theft, one count of
forgery in an amount over $1,000, and one count of forgery. Pursuant to his plea agreement, the
petitioner pleaded guilty to these seven offenses and received an effective 12-year sentence to be
served as a Range III persistent offender. In the instant appeal, the petitioner challenges the post-
conviction court’s denial of his post-conviction petition, alleging that he received ineffective
assistance of counsel and that as a result, his guilty pleas were involuntarily and unknowingly made.
After a thorough review of the record and applicable law, we affirm the judgment of the post-
conviction court.

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

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which NORMA MCGEE OGLE
and J.C. MCLIN , JJ., joined.

J. Colin Morris, Jackson, Tennessee, for the Appellant, Byas Wofford, IV.

Paul G. Summers, Attorney General & Reporter; Sophia S. Lee, Assistant Attorney General; James
G. Woodall, District Attorney General; and Al Earls, Assistant District Attorney General, for the
Appellee, State of Tennessee.

                                            OPINION

               At the petitioner’s plea submission hearing, the state offered the following factual
basis in support of the petitioner’s convictions:

               [I]n the fall of 2002[,] Mr. Wofford was working at the Amoco on Oilwell
       Road. An individual came in the store, and they kind of got to know each other,
       although he didn’t know his name – just as – by the name of “Ice.” And that
       individual offered to buy credit card numbers from Mr. Wofford who was working
       at the store. Mr. Wofford gave him two numbers, one for a woman [whose credit
        card number] he did not want to use [himself] because it was a woman’s number, and
        then one from a man, Mr. Larry Coker, which that individual did buy from Mr.
        Wofford for $250.00. This is all according to Mr. Wofford’s statement that he gave
        to the Sheriff’s Department.

                Mr. Wofford used that credit card number on five different occasions. Count
        1, September 12; Count 2, September 6; Count 3, October 9; Count 4, October 17;
        and Count 5, October 15, 2002. He used those to make long distance calls, to buy
        merchandise. I think it was used at Outback and various places here in town, the
        total amount being $860.58, and he used those – that credit card number which is an
        identification of Mr. Coker and he did transfer that without lawful authority and with
        the intent to commit or otherwise facilitate the unlawful activity he was carrying on.
        All of these offenses occurred in Madison County, Tennessee.

               As I stated, Mr. Wofford was developed as a suspect and did give a statement
        in November of last year to the Madison County Sheriff’s Department in which he
        admitted to doing these things and how he had come in contact with the number
        because Mr. Coker had been a customer of Amoco. And he obtained the number
        while employed there.

                The petitioner was represented by appointed counsel from the Madison County Public
Defender’s Office during the course of his trial preparations and plea negotiations. However,
petitioner’s counsel was unable to attend his plea submission hearing, and therefore another attorney
from the Madison County Public Defender’s Office appeared with the petitioner during his plea
submission hearing.

                 During the hearing, the court advised the petitioner of all applicable rights that he was
waiving by choosing to enter a guilty plea, as well as the nature of the sentences the petitioner could
receive if convicted at trial. The petitioner responded affirmatively that he was aware of the nature
of the rights that he was waiving and the nature of his possible aggregate sentence. Additionally, the
petitioner affirmed that he was satisfied with his counsel’s performance and that he had no objection
to the substitution of counsel during his plea submission hearing.

                 The petitioner was then convicted of six Class D felonies and one Class E felony,
specifically, five counts of identity theft, one count of forgery in an amount over $1,000, and one
count of forgery. After approving his plea agreement, the court ordered the petitioner to serve
concurrent sentences of 12 years for each of his six Class D felonies and six years for his Class E
felony, rendering an effective 12-year sentence to be served as a Range III persistent offender.

                Thereafter, the petitioner sought post-conviction relief, and after finding that the
petitioner had alleged a colorable claim, the post-conviction court conducted an evidentiary hearing.
At the hearing, the petitioner and his former counsel testified. Counsel testified that she represented
the petitioner on the instant charges and successfully negotiated a plea agreement on his behalf.


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Counsel testified that the petitioner was initially reluctant to accept the state’s plea agreement offer
and that in her experience, most defendants registered a similar amount of initial reluctance.
However, the petitioner voluntarily and knowingly accepted the plea offer, which counsel believed
to be a good offer because the offer would allow the petitioner to serve a lesser sentence as a lower
classification of offender than he could face if he was tried and subsequently sentenced by the trial
court. Counsel also testified that she fully advised the petitioner of the terms and conditions of the
plea agreement offer. However, she could not recall why she was unable to attend the petitioner’s
plea submission hearing.1

                The petitioner testified that he expected his counsel to appear at his plea submission
hearing and that he was surprised and upset by the appearance of substitute counsel. He further
testified that he pleaded guilty because he was apprehensive about proceeding to trial when
represented by unfamiliar counsel.

                 The post-conviction court then made its findings of fact and conclusions of law. The
court accredited counsel’s testimony and found that counsel had met with the petitioner during the
course of her representation, had brokered a plea agreement offer favorable to the petitioner, and had
reviewed the terms and conditions of that offer with the petitioner prior to his decision to accept the
offer. Furthermore, after reviewing the transcript of the petitioner’s plea submission hearing, the
court found that the petitioner understood the nature of his plea agreement and that he pleaded guilty
to the instant offenses knowingly, intelligently, and voluntarily. Accordingly, the court determined
that the petitioner had failed to demonstrate that he received ineffective assistance of counsel and
that his guilty pleas were not knowingly, intelligently, and voluntarily made.

                The post-conviction petitioner bears the burden of establishing, at the evidentiary
hearing, his allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (2003).
Evidence is clear and convincing when there is no serious or substantial doubt about the correctness
of the conclusions drawn from the evidence. Hodges v. S. C. Toof & Co., 833 S.W.2d 896, 901 n.3
(Tenn. 1992). An appellate court is bound by the trial court’s findings of fact unless we conclude
that the evidence in the record preponderates against those findings. Hicks v. State, 983 S.W.2d 240,
245 (Tenn. Crim. App. 1998).

                The Sixth Amendment of the United States Constitution and Article I, section 9 of
the Tennessee Constitution both require that a defendant in a criminal case receive effective
assistance of counsel. Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). When a defendant claims
ineffective assistance of counsel, the standard applied by the courts of Tennessee is “whether the
advice given or the service rendered by the attorney is within the range of competence demanded by
attorneys in criminal cases.” Hicks, 983 S.W.2d at 245.



         1
                 At the time of the post-conviction hearing, counsel was no longer an employee of the Madison County
Public Defender’s Office, where the petitioner’s file was located. She was unable to retrieve and review the file prior
to the hearing.

                                                         -3-
               In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), the United States
Supreme Court defined the Sixth Amendment right to effective assistance of counsel. First, the
defendant must show that counsel’s performance fell below an objective standard of reasonableness
under prevailing professional norms and must demonstrate that counsel made errors so serious that
he or she was not functioning as “counsel” guaranteed by the Constitution. Id. at 687, 104 S. Ct. at
2064. Second, the petitioner must show that counsel’s performance prejudiced him and that the
errors were so serious as to deprive the defendant of a fair trial and call into question the reliability
of the outcome. Id., 104 S. Ct. at 2064.

                A reviewing court must indulge a strong presumption that counsel’s conduct falls
within the range of reasonable professional assistance and must evaluate counsel’s performance from
counsel’s perspective at the time of the alleged error and in light of the totality of the evidence. Id.
at 695, 104 S. Ct. at 2070. The petitioner must demonstrate that there is a reasonable probability that
but for counsel’s deficient performance, the result of the proceeding would have been different. Id.,
104 S. Ct. at 2070.

                On appeal, the petitioner merely alleges that his counsel was ineffective by failing to
adequately investigate the facts of his case, an allegation unsupported by any testimony or evidence
introduced at his post-conviction evidentiary hearing. Furthermore, the petitioner fails to cite to the
record when making his argument, and accordingly has waived his argument for consideration. See
R. Ct. Crim. App. Tenn. 10(b) (“Issues which are not supported by . . . appropriate references to the
record will be treated as waived by this court.”).

                We nevertheless hold that the petitioner is not entitled to relief. As noted above, the
post-conviction court accredited counsel’s evidentiary hearing testimony and determined that counsel
adequately advised the petitioner of the terms and conditions of his plea agreement offer, and we
conclude that the evidence does not preponderate against the court’s findings. Furthermore, we note
that the evidence reflects that the state could have sought to have the petitioner classified as a Range
IV career offender, rather than his agreed status as a Range III persistent offender. Moreover, if the
petitioner had elected to proceed with his trial, had been convicted of his indicted offenses, and had
been classified as a Range III persistent offender, the petitioner nevertheless could have received an
effective 78-year sentence if the sentencing court elected to run the petitioner’s six Class D felonies
and one Class E felony sentences consecutively, a potential outcome when considering the
petitioner’s extensive criminal history. Accordingly, we conclude that counsel offered competent
advice when advising the petitioner to accept the state’s plea offer.

               In conclusion, the petitioner has not demonstrated that he received ineffective
assistance of counsel or that his guilty pleas were involuntarily made.



                                                        ___________________________________
                                                        JAMES CURWOOD WITT, JR., JUDGE


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