                                                                                            07/16/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs April 8, 2020

                  KENNETH COLE v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Tipton County
                      No. R.D. 9284 Joe H. Walker III, Judge


                             No. W2019-01620-CCA-R3-PC


The Petitioner, Kenneth Cole, appeals from the Tipton County Circuit Court’s denial of his
petition for post-conviction relief from his guilty plea conviction for violation of the sex
offender registry and his six-year, Range III sentence. He contends that the post-conviction
court erred in denying his claim that he received the ineffective assistance of counsel in the
conviction proceedings. We affirm the judgment of the post-conviction court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and ROBERT L. HOLLOWAY, JR., JJ., joined.

William Henry Clower, Atoka, Tennessee, for the Appellant, Kenneth Cole.

Herbert H. Slatery III, Attorney General and Reporter; Samantha L. Simpson, Assistant
Attorney General; Mark E. Davidson, District Attorney General; Erik Haas, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

        The Petitioner’s post-conviction petition attacked his convictions in two cases:
R.D. 9129 and R.D. 9284. Although the judgments for these cases are not in the record,
the preliminary order of the post-conviction court reflects the following procedural history:

              The petitioner entered a plea of guilty in R.D. 9129 on August 15,
       2017, to a C felony as a Multiple Offender, for an agreed sentence of 6 years
       consecutive to RD 8992.

       ....
              In RD 9284 the defendant entered a plea of guilty on March 15, 2018
       to an E felony for sentencing. . . . He was sentenced on April 4, 2018 as a
       Career Offender to 6 years. On that same date, probation was revoked in RD
       9129 and RD 8992. . . .

              On June 6, 2018, petitioner filed to reinstate probation. After a
       hearing on July 9, 2018 the petition was granted on the assurance that the
       defendant had been admitted to Warrior Center rehab. On July 12, 2018 the
       attorney for defendant was in court and indicated that the defendant was not
       admitted to Warrior Center, which had rescinded the acceptance of the
       defendant. The release of the defendant was based on acceptance into rehab.
       Since the rehab would not accept the defendant, the order to release the
       defendant was rescinded. No appeal was taken from this order.

              On September 14, 2018 the petitioner filed an amended motion to
       reinstate probation. However the Court had lost jurisdiction.

        In the preliminary order, the post-conviction court found that the post-conviction
petition was untimely as to case R.D. 9129, and the case proceeded based upon the claims
related to case R.D. 9284. In an amended petition, the Petitioner alleged that his trial
counsel had not fully explained the requirements of probation, had not informed him that
a guilty plea might adversely affect his current probation sentence, and did not sufficiently
review his rights and his criminal history with him in order to ensure his understanding of
the consequences of a guilty plea.

       At the post-conviction hearing, the Petitioner testified that he did not have a high
school diploma and that he read and wrote on a third-grade level. He said he was in jail
when he pleaded guilty in the underlying case. He said trial counsel visited him once for
a few minutes at the jail. He said counsel “just basically told me that it’s not going to be a
big deal, that he would see me on that day.” The Petitioner said he “had no idea” what
counsel meant. The Petitioner said they did not talk much about potential defense
evidence. He said counsel did not explain the charges but that the Petitioner asked
questions about the probation violation charge. The Petitioner said that he did not have a
way to call counsel’s office but that he wrote letters to counsel and a woman in counsel’s
office. He said he sent three letters requesting more information because he did not know
how the legal system worked.

       The Petitioner testified that the State offered a “blind plea,” which did not include
an agreement about the sentence. He had understood that community corrections “was part
of the plan.” The Petitioner said counsel told him “they had a deal that was made and that
I shouldn’t worry about it.” When asked why he did not tell the trial court at the guilty
plea hearing that he did not understand everything, the Petitioner said he had trusted trial

                                             -2-
counsel. When asked about the trial court’s advice of the rights to plead guilty or not plead
guilty, to have his attorney cross-examine witnesses, to present evidence, and to remain
silent, the Petitioner said he pleaded guilty because he did not know he could “take back”
his agreement to plead guilty.

       The Petitioner acknowledged that he “might have said” at the guilty plea hearing
that he had a GED, even though he did not. He also acknowledged that “it’s possible” he
said at the hearing that he felt like he understood what was happening. He thought he
remembered the trial court’s advising him that he was not guaranteed probation or a
community corrections sentence. He agreed he had not expressed dissatisfaction with trial
counsel or a lack of understanding during the guilty plea hearing.

         The Petitioner testified that he had talked to a detective who worked for the State
about receiving probation. The Petitioner said the State wanted him to testify and that if
he did, “they would not argue the fact of probation” and would not seek an incarcerative
sentence. The Petitioner said the State could not promise him anything “because if they
did . . . it would mess up their other case.”

        The Petitioner acknowledged that he was a career offender. He said his guilty plea
in the present case “was supposed to [have] been part of [his] probation deal and somehow
that charge had got lost in the indictment process.” He said he felt like he had been
“cheated.”

       Trial counsel testified that he explained the violation of the sex offender registry
charge to the Petitioner. Counsel said the Petitioner was on probation for two other
offenses. Counsel said that the Petitioner’s probation violation charges involved drug use
and that he realized the Petitioner had a drug problem. Counsel said the Petitioner advised
him that the Petitioner had information which would assist the State in another case and
that the Petitioner expected “they might help out some.” Counsel said he advised the
Petitioner that he had not received an offer from the State. Counsel said he thought the
Petitioner had been advised that law enforcement would talk to the prosecutor “and they
won’t argue a whole lot against it, but they were in no position to guarantee what might
happen after he entered the plea.” Counsel said that he thought law enforcement officers
“may have made those representations to” the Petitioner but that no one had advised
counsel that the State would not object to an alternative sentence.

       Trial counsel testified that the Petitioner was interested in enrolling in a long-term
drug rehabilitation program. Counsel said that because the Petitioner was a convicted sex
offender, placement in a program was difficult. Counsel said he had contacted Harbor
House about a possible placement.



                                            -3-
        Trial counsel testified that he knew the Petitioner’s educational background and
ability to read and write were limited. Counsel said, however, that he thought the Petitioner
understood when counsel explained that the State was “not making any specific offer.” He
said he probably advised the Petitioner that he would have to serve a ninety-day minimum
sentence. Counsel said he probably advised the Petitioner that, due to the drug use
allegations involved in the probation revocation warrants, it “would look bad as far as
trying to get [the Petitioner] straight out back on the street.” He said he would have told
the Petitioner that the next step might involve house arrest, furlough for inpatient drug
treatment, additional house arrest, and reinstatement of probation. Counsel thought the
Petitioner understood that these details were not part of the plea agreement and would be
considered at a later date. He thought the Petitioner understood that they “really don’t have
a defense to the charge itself.”

        After receiving the evidence, the post-conviction court found that the Petitioner
understood the significance and consequences of his decision to plead guilty and that he
was not coerced into pleading guilty. The court found that the Petitioner “was fully aware
of the direct consequences of the plea, including the sentence actually received.” The court
found that the Petitioner had failed to show that he had been promised anything or induced
to enter the guilty plea. The court also found that the Petitioner was advised at the guilty
plea hearing that trial counsel would seek an alternative sentence but that one was not
guaranteed. The court found that counsel had been involved in the Petitioner’s sentencing
hearing but that a different attorney represented the Petitioner in a later motion to reinstate
probation. The court also found that the trial court had ordered the Petitioner’s release in
order to participate in a rehabilitation program but later rescinded that order when the
rehabilitation program rescinded its acceptance of the Petitioner. The post-conviction court
found that entry into the rehabilitation program had not been part of the plea agreement.

       The post-conviction court concluded that the Petitioner had failed to prove he had
received the ineffective assistance of counsel. This appeal followed.

        The Petitioner contends that the post-conviction court erred in denying his
ineffective assistance of counsel claim. He argues that trial counsel failed to meet with
him adequately to ensure that he understood the plea agreement. The State counters that
the Petitioner has waived appellate review of his claim by failing to prepare an adequate
record and that, in any event, the court did not err in denying relief. We conclude that the
record, though incomplete, is sufficient for review and that the Petitioner is not entitled to
relief.

       Post-conviction relief is available “when the conviction or sentence is void or
voidable because of the abridgement of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103 (2018). A
petitioner has the burden of proving his factual allegations by clear and convincing

                                             -4-
evidence. Id. § 40-30-110(f) (2018). A post-conviction court’s findings of fact are binding
on appeal, and this court must defer to them “unless the evidence in the record
preponderates against those findings.” Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997);
see Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction court’s
application of law to its factual findings is subject to a de novo standard of review without
a presumption of correctness. Fields, 40 S.W.3d at 457-58.

       To establish a post-conviction claim of the ineffective assistance of counsel in
violation of the Sixth Amendment, a petitioner has the burden of proving that (1) counsel’s
performance was deficient and (2) the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 506 U.S.
364, 368-72 (1993). The Tennessee Supreme Court has applied the Strickland standard to
an accused’s right to counsel under article I, section 9 of the Tennessee Constitution. See
State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

         A petitioner must satisfy both prongs of the Strickland test in order to prevail in an
ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To establish the
performance prong, a petitioner must show that “the advice given, or the services rendered
. . . are [not] within the range of competence demanded of attorneys in criminal cases.”
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S. at 690. The
post-conviction court must determine if these acts or omissions, viewed in light of all of
the circumstances, fell “outside the wide range of professionally competent assistance.”
Strickland, 466 U.S. at 690. A petitioner “is not entitled to the benefit of hindsight, may
not second-guess a reasonably based trial strategy by his counsel, and cannot criticize a
sound, but unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d 334, 347 (Tenn.
Crim. App. 1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn. 2008). This deference,
however, only applies “if the choices are informed . . . based upon adequate preparation.”
Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). To establish the prejudice
prong, a 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.” Strickland,
466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id.

       We begin with the State’s argument that the Petitioner has waived appellate review
because the record does not contain the plea petition, the transcript of the guilty plea
hearing, the transcript of the sentencing hearing, and the judgment. As the appellant, the
Petitioner had the burden of preparing a fair, accurate, and complete account of what
transpired in the trial court relative to the issues raised on appeal. See, e.g., State v. Bunch,
646 S.W.2d 158, 160 (Tenn. 1983). This included the obligation to have a transcript of the
evidence or proceedings prepared. See T.R.A.P. 24(b). “When the record is incomplete,

                                              -5-
or does not contain the proceedings relevant to an issue, this [c]ourt is precluded from
considering the issue.” State v. Miller, 737 S.W.2d 556, 558 (Tenn. Crim. App. 1987).
The record is deficient in the absence of the specified documents and transcripts. However,
the post-conviction court’s preliminary order and order denying relief summarize the
procedural history, including relevant portions of the guilty plea hearing. The parties have
not disputed the post-conviction court’s summary of these facts. We conclude that the
record in this case is sufficient for review. We caution that the better course generally,
however, is to include the relevant documents and transcripts in the appellate record.

        Turning to the merits, the Petitioner argues that he had a limited ability to read and
write, that he thought a law enforcement officer had guaranteed him probation in exchange
for his assistance, and that trial counsel did not communicate with him sufficiently to
ensure that he understood the plea agreement. The post-conviction court found that the
Petitioner understood the guilty plea and its consequences, including the lack of a
guaranteed sentence of probation. In making this determination, the court relied, in part,
upon its review of the transcript of the guilty plea hearing. In addition, counsel testified at
the hearing that he thought the Petitioner understood the plea and its consequences.
Counsel testified that the Petitioner had conversations with a law enforcement officer about
providing information in exchange for possible consideration of leniency in sentencing in
the present case, but that counsel had not been a party to the discussions and that the plea
agreement did not contain any guaranteed sentence. Counsel said he advised the Petitioner
that he faced a mandatory ninety-day period of incarceration and that a sentence involving
immediate release thereafter was unlikely due to the drug use allegations involved in the
Petitioner’s probation violation warrants. The court’s findings and conclusions reflect that
it credited counsel’s testimony over that of the Petitioner. The evidence does not
preponderate against the court’s findings, and its findings support its conclusions. The
Petitioner failed to show that counsel performed deficiently and that he was prejudiced by
counsel’s alleged deficient performance. The post-conviction court did not err in denying
relief on this basis.

       In consideration of the foregoing and the record as a whole, the judgment of the
post-conviction court is affirmed.

                                             _____________________________________
                                              ROBERT H. MONTGOMERY, JR., JUDGE




                                             -6-
