        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs October 27, 2009

         RENWICK ANDRE EARLS, JR. v. STATE OF TENNESSEE

               Direct Appeal from the Circuit Court for Blount County
                      No. C-17181    Michael H. Meares, Judge




               No. E2008-02565-CCA-R3-PC - Filed February 22, 2010


The petitioner, Renwick Andre Earls, Jr., appeals the denial of his petition for post-
conviction relief. He entered a plea of guilty to the offense of second degree murder, a Class
A felony, in exchange for a sentence of forty-years to be served as a Range II, multiple
offender. On appeal, he argues that he received ineffective assistance of counsel which
resulted in him entering an involuntary and unknowing guilty plea. After careful review, we
affirm the denial of post-conviction relief.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and J AMES C URWOOD W ITT, J R., J., joined.

Charles A. Carpenter, Maryville, Tennessee, for the appellant, Renwick Andre Earls, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; Michael L. Flynn, District Attorney General; and Tammy M. Harrington,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

       This case involves the shooting death of sixteen-year-old Tamir Shareef after the
petitioner was told by his girlfriend that the victim had “hit on her.” The petitioner, who was
detained in the Blount County Juvenile Detention Center when he received this information,
became upset and decided to kill the victim.

       The State offered the following as proof during the guilty plea hearing. After school
on the evening of his release, the petitioner, accompanied by Dorian Johnson, an eighteen-
year-old male, ran into the victim. The victim and Mr. Johnson spoke, but the victim did not
speak to the petitioner. The petitioner perceived this as proof that what his girlfriend told
him was true. Later that evening, the petitioner, the victim, and Mr. Johnson were at a home
in Alcoa, Tennessee. Several witnesses gave statements to police that, in their presence, the
petitioner and the victim had no direct confrontation about the situation regarding the
petitioner’s girlfriend. The petitioner did express his anger toward the victim to others, and
they provided statements to the State. At some point in the evening, the petitioner woke the
victim and Mr. Johnson and told them he wanted to go to a different house. The trio began
walking down the street, and the petitioner cut through a back yard with the victim following
him. Mr. Johnson said he heard gunshots and ran to the corner of the house where he
observed the petitioner standing over the victim with a firearm. The victim died as a result
of multiple gunshot wounds, including one to the head and two to the chest. Both the
petitioner and Mr. Johnson fled the scene.

       During the post-conviction hearing, the petitioner and his trial counsel testified. The
State did not call any witnesses. First, trial counsel testified that he was appointed to
represent the petitioner prior to the charges underlying this case. Trial counsel said that he
arranged for the petitioner to undergo a psychological examination to determine whether the
petitioner was competent to stand trial. He testified that he explained to the petitioner how
he should conduct himself during the evaluation. He specifically told the petitioner that he
was not to discuss the allegations regarding the murder charge. Trial counsel instructed the
petitioner to say “no comment” or “I’m not going to talk about it” if asked about the charges.
Trial counsel said that he repeatedly told the petitioner not to discuss the case and also visited
him in the hospital before the examination to reaffirm his advice.

       Trial counsel discussed the difference between first and second degree murder with
the petitioner and provided him with copies of the law for each crime. He believed the
petitioner understood the difference between the offenses. Trial counsel testified that Mr.
Johnson hedged the truth during the transfer hearing and discussed his testimony with the
petitioner. Trial counsel testified that the petitioner told him Mr. Johnson provided the
murder weapon and that Mr. Johnson knew what was going to happen. He testified that the
State did not know that information, but he did. He explained to the petitioner that, due to
the overwhelming amount of information available to the State, it would be better to take the
plea offer of forty years than to face the potential exposure at trial, which would be at least
sixty years.

       Trial counsel testified that he did not want to pursue the line of questioning too far
with Mr. Johnson during the transfer hearing because he knew it would further implicate the
petitioner. He said that if he forced Mr. Johnson to tell everything he knew, it would
“implicate [the petitioner] perfectly and there [is] no way of escaping it.” Trial counsel said

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that he thought the petitioner would be convicted of first degree murder if they proceeded to
trial. He testified that because the petitioner had a felony conviction on his record, he was
facing life without the possibility of parole. Before they ever discussed the case, the
petitioner told him that he was willing to plead to twenty-five years.

       Trial counsel denied that he did not want to proceed to trial against the district
attorney who handled the case because they were friends. He said that he tried many cases
against that district attorney and considered all of the district attorneys as friends. He also
denied telling the petitioner that his release eligibility would be eighty-five percent of his
sentence.

        Trial counsel testified that he did not hire an investigator because any facts that would
be found would further inculpate the petitioner. Trial counsel testified that he believed he
did a very good job of representing the petitioner and that he saved him a lot of years in
prison.

       Trial counsel recalled that the petitioner had between a month and six weeks to decide
to accept the plea offer and that the petitioner talked to his parents on a regular basis.

       On cross-examination, trial counsel testified that, during the mental evaluation, the
petitioner confessed to planning the murder and told how he carried it out. He filed a motion
to suppress the statement but never argued it because the petitioner entered a plea of guilty.

       The petitioner testified that he was sixteen years old at the time of the commission of
the offense. He said that even though he was smart, he did not apply himself in high school
and graduated as a C or D grade student. He had no prior charges in “adult court” but had
been involved in cases in juvenile court.

       The petitioner testified that his chief complaint against trial counsel was that he did
not inform him that statements he made during his mental evaluation could be used against
him. He recalled that trial counsel told him they would ask him questions about his
background in preparation for his mental evaluations. He further testified that counsel only
told him not to talk about the case prior to the second of the two evaluations.

        The petitioner also said that he did not understand the difference between first degree
murder and second degree murder. He said that he did not grasp the concepts even though
trial counsel tried to explain it to him. The petitioner said that, since his conviction, he had
done a lot of research about his case in the law library and believed that trial counsel did not
properly inform him about his case. He testified that he did not complain about trial
counsel’s representation at the time because he did not know any better.

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       The petitioner testified that he discussed Mr. Johnson’s testimony during the transfer
hearing. He also testified that he now knew Mr. Johnson was not a credible witness who
could have been used to his benefit. Based upon trial counsel’s statements to him, the
petitioner believed that the State had a strong first degree murder case against him. The
petitioner’s law library research changed his mind, and he feels that trial counsel gave him
incorrect advice. He also said that trial counsel told him that he was good friends with the
Assistant District Attorney General and did not want to proceed to trial against her.

       The petitioner testified that he wanted more time to discuss his plea agreement with
his parents because he had only three days from the time of the transfer hearing until the day
the plea was entered. He testified that his mother did not want him to take the plea offer and
that she wanted him to be advised by other counsel.

       The petitioner also said that he was under the impression that his release eligibility
would be eighty-five percent with the possibility of reduction for good behavior. He testified
that he believed an investigator would have been helpful to his case. He testified that he
would not have entered the guilty plea if the things he testified about had been different. He
opined that the State had a weaker case for first degree murder than he had initially believed.
He testified that he was intoxicated at the time he shot the victim and that he now believed
self-defense could have been raised because Mr. Johnson made a statement that the petitioner
and the victim struggled over a pistol.

        On cross-examination, the petitioner acknowledged that self-defense was not really
an option because, during an evaluation, he provided a statement acknowledging that he
cleaned the bullets so there would be no fingerprints on them and that he took the safety off
the gun before he took it out of his shirt. The petitioner also agreed that he told the examiner
the victim did not know what was coming. He also acknowledged that the judge advised him
that his sentence would be at one hundred percent when he entered his plea.

        The post-conviction court concluded that trial counsel was a credible witness and
specifically accredited his testimony with regard to advising the petitioner to remain silent
regarding his case during his mental health evaluations. The post-conviction court concluded
that there was no credible proof that defense counsel was unwilling to go to trial because of
an alleged friendship with the prosecutor and that the petitioner offered no proof other than
his own testimony that trial counsel failed to explore or present other evidence. Finally, the
post-conviction court determined that trial counsel and the trial court explained to the
petitioner his release eligibility prior to entry of his plea.

                                           Analysis

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        Initially, we note that a notice of appeal must be filed within thirty days after the date
of entry of the appealed judgment. Tenn. R. App. P. 4(a). Here, the post-conviction court
entered its written order denying relief on August 28, 2008. The petitioner filed his notice
of appeal on October 29, 2008, beyond the thirty-day filing deadline. The State
acknowledged that the notice of appeal is not jurisdictional and that the filing of the
document may be waived in the interest of justice. Tenn. R. App. P. 4(a). The State argues
that the “interest of justice” does not weigh in favor of waiving the timeliness requirement
in this case. The petitioner does not offer an explanation for his late-filed notice of appeal,
and the record does not appear to contain a motion to waive an untimely appeal. However,
we will consider the appeal in the interest of justice.

       The petitioner contends that he was denied the effective assistance of counsel.
Specifically, he alleges that trial counsel failed to: inform him that statements made during
his mental evaluation could be used against him; explain the difference between first degree
murder and second degree murder; investigate thoroughly or hire an investigator; obtain
additional time for him to consider the State’s plea offer; and advise him that the poor
testimony of one of the State’s witnesses at the transfer hearing would be beneficial to his
case at trial. In addition, he states that trial counsel did not want to try his case because
counsel and the prosecutor were friends and that counsel improperly advised him that his
release eligibility was eighty-five percent. The post-conviction court concluded that the
petitioner failed to show by clear and convincing evidence that he had received ineffective
assistance of counsel on these issues.

        For a petitioner to successfully overturn a conviction based on ineffective assistance
of counsel, the petitioner must first establish that the services rendered or the advice given
was below “the range of competence demanded of attorneys in criminal cases.” Baxter v.
Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Second, the petitioner must show that the
deficiencies “actually had an adverse effect on the defense.” Strickland v. Washington, 466
U.S. 668, 693 (1984). As to guilty pleas, the petitioner must establish that, but for counsel’s
errors, the petitioner would not have entered the plea and would have insisted on going to
trial. See Hill v. Lockhart, 474 U.S. 52, 59 (1985). This court will not disturb the findings
of fact entered by the post-conviction court unless the evidence preponderates against them.
Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001).

       Here, the petitioner failed to show that trial counsel’s performance was deficient.
Trial counsel testified that he repeatedly warned the petitioner that the statements made
during his mental evaluation could be used against him. Trial counsel advised the petitioner
to be forthcoming in talking about his background because that could be helpful in his
defense, but he specifically advised him to answer “no comment” or state “I’m not going to

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talk about it” when asked about the case. The post-conviction court specifically accredited
the testimony of trial counsel, in part, because counsel recalled specific conversations with
the petitioner and because trial counsel visited the petitioner in the hospital prior to his first
mental evaluation and told him not to discuss the case.

        The record also shows that trial counsel explained to the petitioner the difference in
proof between first degree and second degree murder. Trial counsel testified that he
provided the petitioner with the pertinent homicide statutes dealing with the degrees involved
and reviewed with him the necessary proof that the State would have to demonstrate for each
degree. The petitioner acknowledged that trial counsel reviewed this material with him and
said that he did not really understand. The petitioner testified that trial counsel explained
that first degree murder required the State to show premeditation. Because this reflects that
trial counsel did review the material with the petitioner and that the petitioner understood the
material, this issue is without merit.

       Next, the petitioner contends that trial counsel’s failure to hire an investigator was
deficient performance. During the post-conviction hearing, trial counsel testified that he did
not hire an investigator because “an investigator would find facts that would simply further
inculpate [the petitioner].” The post-conviction court found that the petitioner offered “no
proof” that the hiring of an investigator would have been of any assistance to trial counsel.
The petitioner admitted he was not sure what information an investigator could have
discovered. The petitioner has failed to demonstrate that he was prejudiced by trial counsel’s
decision not to hire an investigator.

        Next, the petitioner contends that he was prejudiced by not having enough time to
consider the plea offer. Trial counsel testified that the petitioner had between a month and
six weeks to consider the State’s offer and to discuss it with his parents. Trial counsel further
testified that the petitioner never indicated that he needed or wanted more time to consider
the offer. During the plea hearing, the petitioner told the court that he had been able to
discuss the plea with his family. The petitioner has failed to demonstrate that trial counsel’s
performance was deficient.

         The petitioner also argues that trial counsel was deficient for failing to utilize the poor
performance of Mr. Johnson as a witness during the transfer hearing. Specifically, the
petitioner contends that the poor testimony of Mr. Johnson would have strengthened his case
at trial and argues that trial counsel did not adequately inform him about the change. The
petitioner suggests that he was under the impression that the State had a very strong case and
that he had to accept the plea offer. However, the petitioner has failed to demonstrate that
trial counsel was deficient in this area. The petitioner told trial counsel that Mr. Johnson
provided the gun he used in the murder. Trial counsel chose not to force Mr. Johnson to tell

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“everything that he knew” because it would further implicate the petitioner and bolster the
State’s case that the murder was premeditated. The petitioner testified during the post-
conviction hearing that trial counsel discussed with him Mr. Johnson’s poor performance as
a witness. However, the record reflects that trial counsel could not exploit the poor
performance without the possibility of causing damage to the defense. The petitioner has
failed to show deficient performance or prejudice with regard to this issue.

        Next, the petitioner argues that trial counsel was ineffective because he allegedly told
the petitioner that he did not want to try the case against the prosecutor assigned to the case
because she was his friend. The post-conviction court found there was no credible proof that
trial counsel was unwilling to go to trial because of an alleged friendship, and this finding
is supported by the record. Trial counsel denied telling the petitioner that he did not want to
try the case against the prosecutor because she was a friend. The record shows that trial
counsel conducted a lengthy transfer hearing against the prosecutor on the petitioner’s behalf.
This issue has no merit

        Next, the petitioner argues that trial counsel rendered deficient performance as it
relates to his explanation of release eligibility. The post-conviction court found that both trial
counsel and the trial court explained to the petitioner the percentage of service required on
his forty-year sentence before sentence reduction credits could be earned. Trial counsel told
the petitioner that the offer was for him to serve forty years and that there was only “a
potential of getting a fifteen percent reduction” for good behavior. The petitioner
acknowledged during his guilty plea submission hearing that the trial court repeatedly told
him, “[Y]ou must serve 100 percent before you’re eligible for release,” and that he stated
several times that he understood his release eligibility. Based on the foregoing, the petitioner
failed to establish that trial counsel was deficient in this area.

       The petitioner claims that he would have insisted upon going to trial but for these
alleged deficiencies. The petitioner’s own statements made the case against him and
significantly limited his possible defenses. He testified that he accepted the plea offer
because he believed that the case against him was strong. The case against the petitioner was
strong, especially considering that the petitioner confessed to first degree premeditated
murder during his mental health evaluation. The petitioner has not presented anything on
appeal to reduce the strength of the State’s case. The petitioner has failed to show that the
services rendered or the advice given was below the range of competence demanded of
attorneys in criminal cases.

        Next, the petitioner claims that his guilty plea was unknowing and involuntary. The
post-conviction court denied this claim for relief because the petitioner failed to show that
his guilty plea was unknowing and involuntary. Our supreme court has stated the following:

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                The cases of Boykin v. Alabama and State v. Mackey are the landmark
       constitutional cases for analyses of guilty pleas. Boykin v. Alabama, 395 U.S.
       238 (1969) (federal standard); State v. Mackey, 553 S.W.2d 337 (Tenn. 1977)
       (state standard). In Boykin, the United States Supreme Court held that before
       a trial judge can accept a guilty plea, there must be an affirmative showing that
       it was given intelligently and voluntarily. Id. at 242. In order to find that the
       plea was entered “intelligently” or “voluntarily,” the court must “canvass[ ] the
       matter with the accused to make sure he has a full understanding of what the
       plea connotes and of its consequences.” Id. at 244 (emphasis added).

              Likewise, in Mackey, this Court 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. . . .” 553 S.W.2d at 340.

State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999).

       To pass constitutional muster, a guilty plea must be made voluntarily, understandingly,
and knowingly. Hicks v. State, 983 S.W.2d. 240, 246 (Tenn. Crim. App. 1998) (citing
Boykin, 395 U.S. at 244); see also Mackey, 553 S.W.2d at 341. To determine the
voluntariness and intelligence behind a guilty plea, the court must look to various
circumstantial factors, including: the relative intelligence of the defendant; the degree of his
familiarity with criminal proceedings; whether he was represented by competent counsel 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 v. State, 858 S.W.2d 897, 904 (Tenn. 1993).

        When looking at the totality of the circumstances surrounding the petitioner’s plea,
the record reflects that the plea was entered voluntarily and knowingly. The familiarity of
the petitioner with criminal proceedings, albeit in juvenile court, supports a finding that he
was aware of the significance of his plea. Before he entered the plea, the petitioner had
obtained his high school diploma and had previous experience in the criminal justice system.
The petitioner was also found to be competent to stand trial after two separate mental
evaluations. Trial counsel was able to communicate with the petitioner and testified that the
petitioner was able to assist in his defense and understood their discussions. Trial counsel
explained the State’s offer to the petitioner, including the provisions concerning his release
eligibility. The transcript of the guilty plea hearing is included in the record and reflects that
the trial court went over the plea carefully with the petitioner and specifically questioned him

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several times about the release eligibility provision. The petitioner told the court that he
understood his rights and the State’s offer. The petitioner’s reasons for his decision to plead
guilty supports a finding that the plea was voluntary and knowing. He testified that he
accepted the State’s offer and pleaded guilty to second degree murder because he felt the
State had a strong first degree murder case against him. These were decisions based on
reason because the petitioner was aware that the case against him was strong. The petitioner
is not entitled to relief on this issue.

                                         Conclusion

       Based on the foregoing and the record as a whole, we affirm the denial of relief from
the post-conviction court.




                                                    ___________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE




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