                                                                                           07/14/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs June 9, 2020

                JARRETT A. JONES v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                     No. 2017-A-392    Steve R. Dozier, Judge
                     ___________________________________

                           No. M2019-01601-CCA-R3-PC
                       ___________________________________


The Davidson County Grand Jury indicted Petitioner, Jarrett A. Jones, on one count of
sexual exploitation of a minor (over 100 images) and thirty-four counts of especially
aggravated sexual exploitation of a minor, all Class B felonies. Petitioner pled guilty as a
Range I offender to one count of sexual exploitation of a minor (over 100 images) and
two counts of especially aggravated sexual exploitation of a minor. All other counts were
dismissed based upon his guilty plea. The trial court sentenced Petitioner, pursuant to the
plea agreement, to eight years at 100% on each count and ordered the sentences to run
consecutively, for a total effective sentence of twenty-four years’ incarceration.
Petitioner timely filed a pro se petition for post-conviction relief, and the post-conviction
court appointed counsel, who filed an amended petition. After a hearing, the post-
conviction court denied relief in a written order. On appeal, Petitioner argues that he was
denied the effective assistance of counsel and that his guilty plea was not entered into
knowingly, voluntarily, and intelligently. Following a thorough review, we affirm the
judgment of the post-conviction court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL and TIMOTHY L. EASTER, JJ., joined.

Manuel B. Russ, Nashville, Tennessee, for the appellant, Jarrett A Jones.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Senior Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Tammy Meade,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                        OPINION

                                  Factual Background

                            Guilty Plea Submission Hearing

       At Petitioner’s guilty plea submission hearing, the State provided the following
factual recitation as the basis for his plea:

               Had this matter gone to trial, the State’s witnesses would testify that
      in beginning of September of 2016, [Petitioner], who at that point was a
      teacher at Antioch High School enlisted the help of a colleague to try and
      fix [Petitioner’s] computer. While working on the computer, his colleague
      accessed the computer recycle bin and found a title -- a file that was entitled
      Nudist Junior Miss Pageant. The file did not contain images or videos but
      it just contained that.

             As the colleague continued to try to fix the computer, he noticed a
      video file on the computer desktop. He played that video. The video
      started by showing a male, [Petitioner], setting up a camera in what
      appeared to be a bathroom. Then showed a female who appeared to be a
      minor come into the room and start changing clothes. At that point, the
      colleague contacted the school’s SRO who then notified Metro Police.

             Metro Police Detective, Michael Adkins who is with the Internet
      Crimes Against Children Unit responded, spoke to the colleague and
      recovered the computer in this matter. A search warrant for the computer
      was obtained that same day. It was turned over to Metro police detective
      Chad Gish, who was an expert in computer forensics. He examined and
      analyzed that computer. Detective Gish was able to locate the files that the
      colleague had indicated were there.

              Upon finding those files, Detective Adkins contacted the Metro
      school security and informed the head of that unit, Jimmy Wheeler, that
      [Petitioner], who had been an employee with Metro school since 2011 and
      was working as a substitute and then was given full-time status with the
      Metro school, had -- what they had found on this computer of this particular
      employee. It was learned that between 2011 and 2015, that [Petitioner] was
      an employee at Napier Elementary School here in Davidson County.
      August 1st, 2015, he transferred over to Antioch High School.

                                           -2-
              Detective Adkins went to Napier Elementary, spoke to the principal
      of that school who confirmed that [Petitioner] during that period of time
      did, in fact, work at Napier Elementary School. She was shown the videos
      that were found of the children. She recognized the location of those
      videos, which w[as] a closet inside that school. The detectives also were
      able to recover pictures from the -- several videos of minor girls on this
      computer. The principal was able to identify many of those children as
      former students. These pictures had been taken a few years ago, so those
      children were now in other schools within Metro schools.

             Detective Gish continued to look at that computer and found other --
      several hundred images of child pornography that did not involve these
      children in addition to the [fifty-three] pictures or videos that they found of
      the children that at the time were attending Napier Elementary School.

              Detective Adkins went to Antioch High School, spoke to
      [Petitioner]. [Petitioner] did admit to secretly recording the videos of the
      students undressing during his tenure at Napier Elementary School.

             At that point, he had said he only [made] ten of those videos;
      however, the computer forensics found [fifty-three]. He admitted to using a
      thumb drive recording device he would place in the closet prior to the
      students going in the closet and undressing. And he confessed that the
      thumb drive was still in his home. He further admitted to secretly recording
      others including his wife, his sister-in-law[,] and minor nieces. Those
      videos were made in another state and were unable to be dealt with in
      Tennessee. He admitted to downloading and looking at child pornography
      from the internet. He did admit he would have child pornography on an
      external drive which was in fact found.

             On September 12th, 2016, Detective Gish gave his final report,
      which he indicated he found over [fifty] videos of minor students
      undressing in that classroom closet. They were in a folder entitled Napier
      Elementary and those children were in various stages of undress including
      some that were totally nude. There [was] a further analysis of other
      electronics found in the home including external hard drives, computers,
      memory cards, and more child pornography was found on those the
      devices.

       The trial court conducted a plea colloquy with Petitioner. The court advised
Petitioner of his rights, including his right to a trial by jury, his right to confront the
                                           -3-
State’s witnesses or to call witnesses, and his right to remain silent or to testify. The trial
court also explained the State’s burden of proof at trial and that there was no right to
appeal from a guilty plea. The trial court detailed the charges against Petitioner and
stated the minimum and maximum possible sentence for each charge. When asked by the
court, Petitioner denied that he was under the influence of alcohol or drugs and denied
that he was suffering from any mental health problems. Petitioner also denied that he
was being forced to enter the guilty plea. At the conclusion of the hearing, the trial court
found that there was a factual basis for the plea and that it was knowingly and voluntarily
entered and sentenced Petitioner according to the plea agreement.

                                  Post-Conviction Hearing

       At a hearing on his post-conviction petition, Petitioner testified that trial counsel
began representing him prior to his indictment. He said that trial counsel visited him in
jail several times before the grand jury issued the indictment and that the visits were
usually ten to fifteen minutes long. Petitioner stated that, after his arraignment, trial
counsel met with him for fifteen to thirty minutes at a time before his discussion dates in
criminal court. Petitioner estimated that he met with trial counsel between eight and ten
times during the year and a half that trial counsel represented him.

       Petitioner recalled that, during discussions with trial counsel, they talked about
what would happen if Petitioner went to trial. Trial counsel related to Petitioner how the
prosecutor said she was going to approach the trial. Trial counsel told Petitioner how the
State would present the evidence and its witnesses, and trial counsel warned that “[i]t
would be a media circus.” Petitioner said that it was “very intimidating.”

       Petitioner stated that, after he was arrested and incarcerated, he was diagnosed
with depression and anxiety and that doctors at the jail prescribed him medication to treat
the conditions. Petitioner recalled that he took Celexa for depression and Remeron for
anxiety, but he could not recall the dosage. When asked about the effects of the
medication, Petitioner testified:

               I noticed after a while that nothing seemed to really bother me as
       much. Like, I wouldn’t get as emotional about things. Because at first, I
       was obviously very emotional. My life was turned upside down and
       everything was just chaotic and then after they prescribed me the
       medication, I noticed that things just started to just mellow out but it was
       more in a way of I just didn’t really have a feeling one way or the other
       about something. It was almost like -- I don’t want to say I didn’t care, but
       that’s just how my demeanor was, I was very flat.

                                             -4-
        When asked how the medication affected his communication with trial counsel
and his understanding of “what was going on in the case and things like that[,]” Petitioner
responded, “Ultimately, I didn’t understand the grand scope of things.” He said that,
after his guilty plea, he stopped taking the medications and his mind became clearer. He
explained that he was able to “actually look and understand exactly what I was charged
with compared to . . . the facts of the case[.]” Petitioner said that the doctors at the jail
never asked if he wanted to stop taking the medication, and he never asked to be taken off
them based on how they made him feel.

       Petitioner denied that trial counsel explained to him what the State would have to
prove to convict him of especially aggravated sexual exploitation of a minor in counts
two through thirty-five. He said, however, that prior to being placed on medication and
prior to his plea, he read the especially aggravated sexual exploitation of a minor statute
and told trial counsel that he did not believe what he did constituted especially aggravated
sexual exploitation of a minor. According to Petitioner, trial counsel responded that he
would “look into it.” Petitioner did not recall talking to trial counsel about the meaning
of the word “lascivious,” which appeared in the statute. Petitioner said that, after his
plea, he looked up the definition of lascivious and found that the definition was “very
vague as well, very broad.” He stated that, once transferred to the Department of
Correction, he familiarized himself with case law surrounding the especially aggravated
sexual exploitation of a minor statute. He said that trial counsel never discussed any
Tennessee case law relating to the statute.

        Petitioner recalled that trial counsel discussed his possible sentence if the case
went to trial and that trial counsel advised him it was going to be “very bad.” Trial
counsel explained to Petitioner that his sentence could be essentially a life sentence, if the
trial court imposed consecutive sentencing. Petitioner testified, “[T]here was no defense.
There was no, well, we could do this, we could do that, it was just this is what I believe is
going to happen.” Petitioner stated that, if he had known about the case law on the
especially aggravated sexual exploitation of a minor statute and that he had a defense
based on the cases, he would have gone to trial. Petitioner testified that, based on the
content of the videos he created, he believed that a jury would conclude they were not
lascivious. Petitioner recalled that he and trial counsel discussed unlawful photography
as being an appropriate charge based on his conduct. Trial counsel discussed the
unlawful photography with the prosecutor, but she “came back saying no.”

       On cross-examination, Petitioner acknowledged that the charge in count one of the
indictment, sexual exploitation of a minor, was based on over 100 images of child
pornography that he downloaded from the internet. Petitioner admitted that he set up the
camera used to videotape the children in the closet. He explained that the closet was
attached to his classroom and the music room at the school and that the closet was
                                            -5-
designated as a changing room for the school play because his classroom “joined up to
the stage[.]” When asked why he had recorded the children changing clothes, Petitioner
said that it was “just an impulsive thing to do at the time.” Petitioner acknowledged that
he watched the videotapes after making the recordings “[j]ust to see them.” Petitioner
stated that he recorded children inside the closet over the course of two years. Petitioner
acknowledged that he had a folder on his computer entitled “Napier” that contained
videos named for each child that he had recorded. Petitioner said that the videos of his
family members were taken after the videos of the children at his school. He claimed that
he had not seen the videos provided by the State in discovery.

       Petitioner acknowledged that the definition of “sexual activity” in the especially
aggravated sexual exploitation of a minor statute, included “lascivious exhibition of the
female breast or the genitals or pubic area of any person[.]” Petitioner stated that, in his
research, he found several cases in which convictions were overturned because the
defendants’ acts did not “fit . . . sexual activity because they d[id] not go anything beyond
mere nudity[.]” Petitioner agreed that he told trial counsel during their discussions that
he did not believe he violated the statute, and he said that he was an active participant in
his case “[f]rom the very beginning[.]”

       Petitioner agreed that trial counsel discussed the possible maximum sentence he
could receive. He recalled that the State’s first plea offer was for a forty-year sentence.
Regarding his plea colloquy, Petitioner explained that he “said what [he] thought was
needed to be said in order to go through a plea deal” but stated that he did not really
understand what would happen after his guilty plea.

       On redirect, Petitioner stated that the children he recorded were changing into
costumes for play performances, choir, or musicals to see if the costumes fit. He said that
it was not his idea to have the children change into costumes or to have them do so in the
closet attached to his classroom.

        Trial counsel testified that he had practiced criminal law for twenty-eight years.
He stated that he began representing Petitioner after Petitioner’s arrest but before the
grand jury’s indictment. During his representation of Petitioner, trial counsel was
assisted by associate counsel, who practiced in trial counsel’s office. Trial counsel
testified, however, that all legal decisions and trial tactics were determined between
himself and Petitioner.

       Regarding Petitioner’s mental health at the time of the guilty plea, trial counsel
explained:



                                            -6-
               I was not aware of any mental health issues that prevented
       [Petitioner] from interacting with me. I think it’s pretty obvious
       [Petitioner] was depressed and upset like he probably should have been.

Trial counsel stated that he talked to Petitioner about Petitioner’s anxiety and depression
and about the fact that Petitioner received medication. Petitioner never indicated that he
“couldn’t go forward or interact with [trial counsel].” Petitioner never indicated that he
did not understand what was happening or that he could not understand the discussions
with trial counsel. Trial counsel said that he never sought a psychiatric assessment of
Petitioner because “[i]t never got to the point where [he] felt like [Petitioner] could not
assist [counsel] or understand his defense.” Rather, trial counsel explained that Petitioner
became “resigned” to the fact that he was facing serious charges.

       Trial counsel recalled that he met with Petitioner both at court and at the jail. He
estimated that he met with Petitioner ten to twelve times at the jail for about thirty to
forty minutes at a time. Trial counsel stated that he and Petitioner discussed, in detail,
alternate charges and whether Petitioner’s conduct constituted a violation of the
especially aggravated sexual exploitation of a minor statute. Trial counsel testified:

              And lot of times the discussions were in [l]ayman’s terms. . . .
       [Y]ou know, as far as going over Whited and Grisham and reading the case
       law and, you know, really having him read and study, I didn’t do that. I
       have those cases in my file. I reviewed those when we were going through
       the case.

              ....

               And at the end of the day, the bottom line question came whether or
       not it was lascivious or not. Okay? Because even early on [Petitioner] said
       [he] just sat up a camera and they dressed or undressed in front of the
       camera. And I remember talking with [the prosecutor] . . . from the get go
       about, you know, hey, is this possibly unlawful photography or, you know,
       just pictures without any sexualization or sexual poses or any of the things
       that are the criteria that you’re talking about in [the aggravated sexual
       exploitation of a minor statute]. Of course, you know, the State’s response
       . . . was well, just wait until you get discovery. It’s more than just, you
       know, a camera and pictures being made. And so we had to go through a
       process where we talked about elements what it could or may not be.




                                           -7-
Trial counsel stated that he discussed with Petitioner “what the State would have to
show” and that the key issue was whether the State would be able to establish that the
videos amounted to “lascivious exhibition.”

      Trial counsel testified that he reviewed discovery with Petitioner, and they viewed
each of the videos at the prosecutor’s office. Regarding the contents of the videos, trial
counsel recalled:

             But the videos in discovery are detailed about how they occurred at
      school and in a school setting, in the closet that was adjacent to his room.
      And the problem and the concerns that I had was that it was orchestrated
      and there were times when [Petitioner] guided and positioned, interacted
      with the girls and, you know, nude photography or nude shots were then
      gained in the closet on multiple occasions.

             ....

             [O]nce we got discovery, it was obvious that there was quite a bit of
      nudity on different occasions and you heard through discovery, a large
      number of young girls. And his voice is on it, [Petitioner’s] directing them.
      And in different occasions he’s actually telling girls to go back in, pulling
      the, you know, the training bra strap and guiding them back in, saying . . . it
      all has to come off. After seeing that, I was very concerned. You know,
      and what you got to the look as at an attorney is one, you know, the trier of
      fact being a jury, what they would consider as lascivious and what I found
      out in case law is that it’s . . . intensely fact bound on each case.

             ....

               But there were a number of [the videos] where . . . there were some
      real manipulation where [Petitioner] told them to move up, move forward,
      get in a better position. Those are real problematic. And there are quite a
      few of those[,] don’t remember the exact number. But also the general
      premise that you know, he’s a teacher, they were at school. You know,
      they can go home and change and see if they fit, let their mom bring them
      back. I knew that would be coming in later in front of the jury. And at
      trial, the State would be going there is no rule that says you’ve got to try on
      uniforms, you know, directed by a male in the closet adjacent to the room.
      The fact that it was set up and done at a school setting by a teacher, is
      again, problematic.

                                           -8-
       Trial counsel said that he discussed with Petitioner some factors that would
support a claim that the videos were not lascivious, but he stressed that “some other
factors . . . would be real problematic,” both at trial and at sentencing. Trial counsel
explained that he was concerned that the trial court would impose consecutive sentences
based upon Petitioner’s recording of his niece and “some other matters” contained in
discovery. Trial counsel noted that the definition of “lascivious” was “broad and vague.”
Trial counsel said that Petitioner never told him that there was a school rule that children
had to change in the closet where Petitioner set up his camera.

        Trial counsel stated that he had multiple discussions with Petitioner prior to his
plea about “what the possibilities could be if he got convicted” on all charges. He
recalled that the State’s initial offer was for Petitioner to serve forty years; however, he
was able to convince the prosecutor that it would be better for the children not to testify
at trial. Trial counsel recalled that he discussed the case multiple times with the
prosecutor and argued that the children did not know they had been recorded until years
later. He argued mitigating factors to the prosecutor, including that Petitioner had no
prior record, that Petitioner was an accomplished musician, and that he was married and
came from a good family. Trial counsel also tried to convince the prosecutor that
Petitioner’s actions were “something lesser than aggravated sexual exploitation of a
minor[.]” Trial counsel said he was concerned that, even if Petitioner were convicted of
lesser-included offenses, Petitioner “was still looking at a long time of consecutive
sentencing based on what was found in his computer and his prior behavior.” He recalled
that the prosecutor eventually reduced the plea offer to twenty-four years’ incarceration.
Trial counsel said that he felt strongly that twenty-four years was “a safe and proper
disposition” of Petitioner’s charges.

       Trial counsel stated that he met with Petitioner the day before his guilty plea and
“went over the plea and . . . what the final offer was.” Trial counsel testified that he
believed Petitioner understood the plea petition and understood what he was doing at the
guilty plea submission hearing.

       At the conclusion of trial counsel’s testimony, the State entered a copy of the
transcript of the guilty plea submission hearing and placed under seal, as an exhibit, a
copy of some of the videos from Napier Elementary School made by Petitioner. The
post-conviction court took the matter under advisement and subsequently entered a
written order denying relief.

       Regarding Petitioner’s claim of ineffective assistance of counsel based on trial
counsel’s failure to properly advise Petitioner about possible defenses to the charge of
especially aggravated sexual exploitation of a minor, the post-conviction court found that
counsel’s performance was not deficient. The post-conviction court reasoned:
                                           -9-
             [Trial counsel] is an attorney who has maintained a criminal defense
      practice since 1991 and has handled hundreds, if not thousands, of criminal
      cases. [Trial counsel] had numerous discussions with the State which
      produced several offers and counter-offers during the course of the plea
      negotiations. With all due respect to [Petitioner], the Court accredits [trial
      counsel’s] testimony that [trial counsel] had multiple conversations in
      layman[’s] terms with [Petitioner] about the specific statute [Petitioner]
      allegedly violated, the possible length of the potential sentence, and
      whether or not the images the State produced during discovery would be
      considered lascivious. Furthermore, the Court accredits [trial counsel’s]
      testimony that these conversations were informed by his understanding of
      the case law surrounding the definition of lascivious and his opinion that
      the videos “orchestrated” and “produced” by [Petitioner] were likely to be
      found by a jury to be lascivious. Without going into an in-depth analysis of
      the lasciviousness of each video, the Court finds that [trial counsel’s]
      assessment of the State’s case was reasonable and well within the range of
      competence required.

              The Court also finds that [trial counsel] informed [Petitioner] that he
      was highly concerned about the potential for consecutive sentencing given
      [Petitioner’s] position of power, and that [trial counsel’s] concern was
      reasonable.      Accordingly, the Court finds that [trial counsel’s]
      representation of [Petitioner] was not deficient. Thus, the Court finds
      [Petitioner] is not entitled to relief on this ground.

        Regarding Petitioner’s claim that trial counsel failed to ensure that he was fully
aware of the ramifications of his plea due to Petitioner’s psychological medication
resulting in an unknowing guilty plea, the post-conviction court concluded that
Petitioner’s plea was entered into knowingly and voluntarily. The post-conviction court
found:

              After considering the testimony and evidence offered at the instant
      hearing, the Court does not find any merit to [Petitioner’s] contention that
      the guilty plea was not entered into knowingly, voluntarily, and
      intelligently. [Petitioner] claims that he was medicated at the time of the
      plea and that these medications had detrimental effects on his ability to
      make rational and informed decisions about entering his plea. However,
      the Court accredits the testimony of [trial counsel] over that of [Petitioner]
      in this matter. The Court fully accredits [trial counsel’s] testimony that he
      believed [Petitioner] understood the plea petition and the event of pleading.
                                          - 10 -
       [Trial counsel] testified that although he was aware of [Petitioner’s] anxiety
       and depression, he did not think this prevented him from knowingly
       entering the plea. [Petitioner] did acknowledge during the plea colloquy
       that he was not under the influence of any alcohol or drugs, nor suffering
       from any mental health problems. Ultimately, while [Petitioner] clearly
       was not pleased and perhaps was resigned as to the disposition of his case,
       the Court still finds that the proof establishes by clear and convincing
       evidence that [Petitioner’s] plea was entered into knowingly and
       voluntarily. Accordingly, [Petitioner] is not entitled to relief on this
       ground.

       This timely appeal follows.

                                          Analysis

        On appeal, Petitioner asserts that he received ineffective assistance of counsel
because trial counsel failed to advise Petitioner of “the relevant case law and
interpretation of language in his conviction offense so as to permit a knowing waiver of
his right to trial” and failed to ensure that Petitioner was “fully aware of the ramifications
of his plea” while taking medication for depression and anxiety.

                                     Standard of Review

        In order to prevail on a petition for post-conviction relief, a petitioner must prove
all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828,
830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and
fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Appellate courts are bound
by the post-conviction court’s factual findings unless the evidence preponderates against
such findings. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015). When reviewing
the post-conviction court’s factual findings, this court does not reweigh the evidence or
substitute its own inferences for those drawn by the post-conviction court. Id.; Fields, 40
S.W.3d at 456 (citing Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). Additionally,
“questions concerning the credibility of the 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 court].” Fields, 40 S.W.3d at 456 (citing Henley, 960 S.W.2d at 579);
see also Kendrick, 454 S.W.3d at 457. The post-conviction court’s conclusions of law
and application of the law to factual findings are reviewed de novo with no presumption
of correctness. Kendrick, 454 S.W.3d at 457.




                                            - 11 -
                             Ineffective Assistance of Counsel

         The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.
art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel,
a petitioner must prove: (1) that counsel’s performance was deficient; and (2) that the
deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);
see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same
standard for ineffective assistance of counsel applies in both federal and Tennessee
cases). Both factors must be proven in order for the court to grant post-conviction relief.
Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State, 938 S.W.2d 363,
370 (Tenn. 1996). Accordingly, if we determine that either factor is not satisfied, there is
no need to consider the other factor. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007)
(citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)). Additionally, review of
counsel’s performance “requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S.
at 689; see also Henley, 960 S.W.2d at 579. We will not second-guess a reasonable trial
strategy, and we will not grant relief based on a sound, yet ultimately unsuccessful,
tactical decision. Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).

        As to the first prong of the Strickland analysis, “counsel’s performance is effective
if the advice given or the services rendered are within the range of competence demanded
of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that
counsel was deficient, the petitioner must demonstrate “that counsel’s acts or omissions
were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see
also Baxter, 523 S.W.2d at 936.

        Even if counsel’s performance is deficient, the deficiency must have resulted in
prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong
of the Strickland analysis, 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.” Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks
omitted).

      A substantially similar two-prong standard applies when the petitioner challenges
counsel’s performance in the context of a guilty plea. Hill v. Lockhart, 474 U.S. 52, 58
(1985); Don Allen Rodgers v. State, No. W2011-00632-CCA-R3-PC, 2012 WL 1478764,
                                            - 12 -
at *4 (Tenn. Ct. Crim. App. April 26, 2012). First, the petitioner must show that his
counsel’s performance fell below the objective standards of reasonableness and
professional norms. See Hill, 474 U.S. at 58. Second, “in order to satisfy the ‘prejudice’
requirement, the [petitioner] must show that there is a reasonable probability that, but for
counsel’s errors, he would have not have pleaded guilty and would have insisted on going
to trial.” Id. at 59.

                     Failure to Advise Petitioner of Relevant Case Law

       Petitioner contends that he received ineffective assistance of counsel based on trial
counsel’s failure “to advise [Petitioner] of the relevant case law and interpretation of
language” pertaining to his charges of especially aggravated sexual exploitation of a
minor “so as to permit a knowing waiver of his right to trial.” He argues that the videos
he created do not meet the definition of “lascivious exhibition” of private areas of the
body under State v. Whited, 506 S.W. 3d 416 (Tenn. 2016), and United States v. Dost,
636 F. Supp. 828 (S.D. Ca1. 1986).1 Rather, he asserts that the videos depict “mere
nudity of the minors,” which is insufficient to support convictions for especially
aggravated sexual exploitation of a minor. Petitioner asserts that, had trial counsel
adequately advised him based on Whited, he would not have entered his guilty plea and
would have proceeded to trial, during which he would have premised his defense on the
assertion that the State did not have sufficient evidence to establish the element of
lascivious exhibition.

      As relevant to the charges of especially aggravated sexual exploitation of a minor
in counts two through thirty-five of the indictment, Tennessee Code Annotated section
39-17-1005 provides:

               It is unlawful for a person to knowingly promote, employ, use,
       assist, transport or permit a minor to participate in the performance of, or in
       the production of, acts or material that includes the minor engaging in:

               (1) Sexual activity; or

               (2) Simulated sexual activity that is patently offensive.




       1
           Petitioner additionally cites to State v. David Scott Hall, --- S.W.3d ---, 2019 WL 117580
M2015-02402-SC-R11-CD, at *1 (Tenn. Jan. 7, 2019), but acknowledges that the case was decided after
the entry of his guilty plea and, thus, trial counsel could not have discussed the case with him.
                                               - 13 -
Tenn. Code Ann. § 39-17-1005(a) (2016). “Sexual activity” includes the “[l]ascivious
exhibition of the female breast or the genitals, buttocks, anus or pubic or rectal area of
any person.” Tenn. Code Ann. § 39-17-1002(8)(G) (2016).

        In Whited, the Tennessee Supreme Court addressed whether hidden-camera videos
depicted minors engaging in a “lascivious exhibition” within the meaning of Tennessee
Code Annotated section 39-17-1002(8)(G). Whited, 506 S.W. 3d at 419. The defendant
in that case secretly recorded minors doing ordinary, daily activities such as entering and
exiting the shower, using a towel to dry off, changing clothes, and self-grooming. Id. at
442. The videos recorded by the defendant “depict[ed] nudity of a minor or minors to
varying degrees,” but the camera never focused exclusively on the minors’ private areas.
Id. Moreover, “nothing in the videos indicate[d] that the victims were posed or coached;
they [were] not in any unnatural or overtly sexual poses and appear[ed] unaware of the
camera.” Id. at 446. The supreme court found the “question [to be] close” but held that
the videos of the minors did not rise to the level of “lascivious exhibition.” Id. at 447. In
reaching this conclusion, the supreme court stated that “determining whether certain
material depicts a minor engaging in the lascivious exhibition of their private body areas
within the meaning of the sexual exploitation statutes is . . . ‘an intensely fact-bound
question.’” Id. at 431 (quoting United States v. Schuster, 706 F.3d 800, 806 (7th Cir.
2013)). The court observed that the term “lascivious” meant “tending to [incite] lust;
lewd; indecent; obscene” and noted that it had a “sexual connotation.” Id. at 430
(citations omitted).     It further noted that, with regard to the “lasciviousness”
determination, “the language chosen by the General Assembly [in the child exploitation
statutes] [did] not include any reference to the defendant’s subjective purpose of sexual
arousal or gratification.” Id. at 439. Rather, the determination of whether material
depicts a minor engaging in lascivious exhibition of their private body areas should be
based on an objective consideration of the features of the material. Id. The court stated
that “mere nudity, without more, is insufficient to establish a lascivious exhibition of
private body areas.” Id. at 431. However, nudity combined with other factors—such as
the nature of the nudity depicted, emphasis or focus on private body areas, posing or
coaching of the minor by the defendant, sound effects or commentary, or the defendant’s
presence in the depiction in a way that suggests a voyeuristic perspective—could be
sufficient to make the depiction a lascivious exhibition. Id. at 447.

       In Dost, the United States District Court for the Southern District of California
held that, in determining whether a visual depiction of a minor constituted a “lascivious
exhibition of the genitals or pubic area” under a federal statute, the trier of fact should
look to a set of six factors. Dost, 636 F. Supp. at 832. The factors set out by the district
court in Dost were discussed by the Tennessee Supreme Court in Whited, but the supreme
court ultimately rejected the Dost factors as a test or analytical framework for

                                           - 14 -
determining whether material is prohibited under Tennessee’s child sexual exploitation
statutes. Whited, 506 S.W. 3d at 438.

       Initially, we note that much of Petitioner’s argument on appeal is focused on his
assertion that the videos he created depict “mere nudity of the minors” and, therefore,
would not support convictions for especially aggravated sexual exploitation of a minor.
However, when Petitioner accepted the plea agreement and entered a plea of guilty, he
waived both his right to force the State to prove he was guilty and his right to appeal a
guilty verdict. It is well-settled that a petitioner may not litigate his guilt or innocence in
a post-conviction proceeding. See Workman v. State, 868 S.W.2d 705, 711 (Tenn. Crim.
App. 1993). Accordingly, to the extent Petitioner is arguing that there was insufficient
evidence to sustain his convictions for especially aggravated sexual exploitation of a
minor, we conclude that he has waived the issue, and it is not a proper issue for a post-
conviction proceeding. See e.g., Reese L. Smith v. State, No. M2005-00402-CCA-R3-PC,
2006 WL 643545, at *5 (Tenn. Crim. App. Mar. 10, 2006).

        Regarding Petitioner’s claim of ineffective assistance of counsel, trial counsel
testified that he had practiced criminal law for twenty-eight years. He said that, prior to
Petitioner’s plea, he met with Petitioner ten to twelve times at the jail for about thirty to
forty minutes at a time. Trial counsel stated that he discussed with Petitioner the
potential for essentially a life sentence if Petitioner were convicted on all counts at trial.
Trial counsel testified that he and Petitioner discussed, in detail, alternate charges and
whether Petitioner’s conduct constituted a violation of the especially aggravated sexual
exploitation of a minor statute. He said that he reviewed the elements of the statute with
Petitioner and explained that the key issue was whether the videos were lascivious. Trial
counsel testified that, although he spoke in “[l]ayman’s terms” with Petitioner, he
reviewed the Whited opinion and that a copy of it was in his file. Trial counsel explained
that he believed the facts of Petitioner’s case were worse than in Whited and advised
Petitioner accordingly. Trial counsel testified that he reviewed discovery with Petitioner,
and they viewed each of the videos at the prosecutor’s office. Regarding the contents of
the videos, trial counsel explained, “[T]he problem and the concerns that I had was that it
was orchestrated and there were times when [Petitioner] guided and positioned, interacted
with the girls and, you know, nude photography or nude shots were then gained in the
closet on multiple occasions.”

       In denying relief, the post-conviction court accredited trial counsel’s testimony
over that of Petitioner’s and found that trial counsel had multiple conversations in
layman’s terms with Petitioner about the specific statute Petitioner allegedly violated, the
possible length of the potential sentence, and whether or not the videos the State
produced during discovery would be considered lascivious. The post-conviction court
found that trial counsel’s conversations with Petitioner were informed by “trial counsel’s
                                            - 15 -
understanding of the case law surrounding the definition of lascivious and his opinion
that the videos ‘orchestrated’ and ‘produced’ by [Petitioner] were likely to be found by a
jury to be lascivious.” Following a review of some of the videos included in the State’s
exhibit, we agree with the post-conviction court that trial counsel’s assessment of the
State’s case was reasonable, and it was well within the range of competence required for
trial counsel to advise Petitioner to accept the plea offer, especially with thirty-four
counts and the possibility of consecutive sentencing had Petitioner been convicted at trial.
Petitioner has failed to establish deficient performance based on this claim, and he is not
entitled to relief.

              Failure to Ensure that Petitioner Understood the Guilty Plea

        Petitioner also asserts that he received ineffective assistance of counsel based on
trial counsel’s failure to ensure that Petitioner was “fully aware of the ramifications of his
plea due to [Petitioner’s] psychological medication.”

       At the post-conviction hearing, Petitioner testified that, after he was arrested and
incarcerated, he was diagnosed with depression and anxiety and that doctors at the jail
prescribed him medication to treat the conditions. Petitioner stated that the medication
caused him to become less emotional and to have a “flat” demeanor. He testified,
however, that he never asked to be taken off the medication based on how it made him
feel. When asked how the medication affected his communication with trial counsel and
his understanding of what trial counsel explained to him, Petitioner said that he “didn’t
understand the grand scope of things” or what would happen after his guilty plea.

        Trial counsel, however, testified that he talked to Petitioner about Petitioner’s
anxiety and depression and about the fact that Petitioner received medication. Trial
counsel said that Petitioner never indicated that he “couldn’t go forward or interact with
[trial counsel].” Moreover, Petitioner never indicated that he did not understand what
was happening or that he could not understand the discussions with trial counsel. Trial
counsel said that he did not seek a psychiatric assessment of Petitioner because “[i]t never
got to the point where [he] felt like [Petitioner] could not assist [counsel] or understand
his defense.” Rather, trial counsel explained that Petitioner became “resigned” to the fact
that he was facing serious charges. Trial counsel stated that he met with Petitioner the
day before his guilty plea and “went over the plea and . . . what the final offer was.” Trial
counsel testified that he believed Petitioner understood the plea petition and understood
what he was doing at the guilty plea submission hearing.

        In finding that this issue was without merit, the post-conviction court accredited
the testimony of trial counsel that Petitioner understood the plea petition and the event of
pleading despite his taking medication for depression and anxiety. As noted by the post-
                                            - 16 -
conviction court, trial counsel was aware of Petitioner’s anxiety and depression, but trial
counsel did not think that this prevented Petitioner from knowingly entering the plea.
During his plea colloquy, Petitioner testified that he was not under the influence of
alcohol or drugs or suffering from any mental health problems, and statements made in
open court carry a strong presumption of truth. Blackledge v. Allison, 431 U.S. 63, 74
(1977). To overcome such a presumption, a petitioner must present more than
“conclusory allegations unsupported by specifics.” Id. Based on the foregoing, we
conclude that Petitioner has failed to establish deficient performance or resulting
prejudice based on his claim that trial counsel failed to ensure that Petitioner was “fully
aware of the ramifications of his plea due to [Petitioner’s] psychological medication.”

                                 Unknowing Guilty Plea

       Although it is unclear from Petitioner’s brief if he intends to raise a stand-alone
claim that his guilty plea was not knowingly and voluntarily entered, we will briefly
address the issue. Whether a guilty plea is knowing and voluntary is a mixed question of
law and fact. Jaco, 120 S.W.3d at 830-31. Therefore, in such cases we review the post-
conviction court’s findings of fact de novo with a presumption of correctness. Id. The
post-conviction court’s findings of law are reviewed purely de novo. Id.

       When reviewing a guilty plea, this court looks to both the federal standard as
announced in the landmark case Boykin v. Alabama, 395 U.S. 238 (1969), and the state
standard as announced in State v. Mackey, 553 S.W.2d 337 (Tenn. 1977), superseded on
other grounds by Tenn. R. Crim. P. 37(b) and Tenn. R. App. P. 3(b). Don Allen Rodgers,
2012 WL 1478764, at *5. Under the federal standard, there must be an affirmative
showing that the plea was “intelligent and voluntary.” Boykin, 395 U.S. at 242.
Likewise, the Tennessee Supreme Court has held that “the record of acceptance of a
defendant’s plea of guilty must affirmatively demonstrate that his decision was both
voluntary and knowledgeable, i.e.[,] that he has been made aware of the significant
consequences of such a plea . . . .” Mackey, 553 S.W.2d at 340. “[A] plea is not
‘voluntary’ if it is the product of ‘[i]gnorance, incomprehension, coercion, terror,
inducements, [or] subtle or blatant threats . . . .” Blankenship v. State, 858 S.W.2d 897,
904 (Tenn. 1993) (quoting Boykin, 395 U.S. at 242-43).

       In order to determine whether a plea is intelligent and voluntary, the trial court
must “canvass[ ] the matter with the accused to make sure he has a full understanding of
what the plea connotes and of its consequence.” Boykin, 395 U.S. at 244. The trial court
looks to several factors before accepting a plea, including:

      [T]he relative intelligence of the defendant; degree of his familiarity with
      criminal proceedings; whether he was represented by competent counsel
                                          - 17 -
         and had the opportunity to confer with counsel about the options available
         to him; the extent of advice from counsel and the court concerning the
         charges against him; and the reasons for his decision to plead guilty,
         including a desire to avoid a greater penalty that might result from a jury
         trial.

Blankenship, 858 S.W.2d at 904; Howell v. State, 185 S.W.3d 319, 330-31 (Tenn. 2006).
Once the trial court has conducted a proper plea colloquy, it discharges its duty to assess
the voluntary and intelligent nature of the plea and creates an adequate record for any
subsequent review. Boykin, 395 U.S. at 244. Statements made by a petitioner, his
attorney, and the prosecutor during the plea colloquy, as well as any findings made by the
trial court in accepting the plea, “constitute a formidable barrier in any subsequent
collateral proceedings.” Blackledge, 431 U.S. at 73-74.

       It is clear from both the plea colloquy and the post-conviction court’s findings of
fact that Petitioner made a knowing plea. During Petitioner’s guilty plea submission
hearing, the trial court explained the charges against Petitioner and the possible sentences
stemming from it. The trial court also explained the State’s burden of proof at trial and
that there was no right to appeal from a guilty plea. When asked by the court, Petitioner
denied that he was under the influence of alcohol or drugs and denied that he was
suffering from any mental health problems. Petitioner also denied that he was being
forced to enter the guilty plea. Petitioner acknowledged that he understood his rights and
that he was waiving his right to a jury trial and his right to an appeal. Such statements
made in open court carry a strong presumption of truth, and Petitioner has offered
nothing to indicate that his plea was unknowing except to say that, at the time, he did not
understand. Petitioner had the opportunity to confer with competent counsel about the
options available to him, and by entering his plea, Petitioner avoided a potentially greater
penalty that might have resulted from a jury trial. The post-conviction court determined
that Petitioner did not prove by clear and convincing evidence that his plea was
unknowing, and we agree. Therefore, Petitioner is not entitled to relief.

                                        Conclusion

         For the aforementioned reasons, we affirm the judgment of the post-conviction
court.


                                              ____________________________________
                                              ROBERT L. HOLLOWAY, JR., JUDGE



                                           - 18 -
