        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               September 18, 2013 Session

      YOVONDA SHERITH CHAMBERS v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Rutherford County
                       No. F-68165     David M. Bragg, Judge


                No. M2013-00766-CCA-R3-PC            Filed October 18, 2013


The petitioner, Yovonda Sherith Chambers, appeals the denial of her petition for post-
conviction relief, arguing that she received ineffective assistance of counsel and that her
guilty pleas were unknowing and involuntary. Following our review, we affirm the denial
of the petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P.J., and
J EFFREY S. B IVINS, J., joined.

Thomas S. Santel, Jr. and Blake A. Garner, Murfreesboro, Tennessee, for the appellant,
Yovonda Sherith Chambers.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; William C. Whitesell, Jr., District Attorney General; and Trevor H. Lynch, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                           FACTS

        In August 2010, the petitioner was indicted by the Rutherford County Grand Jury with
four counts of identity theft and one count of forgery. On September 28, 2010, she pled
guilty to the four counts of identity theft under a plea agreement for judicial diversion in
exchange for concurrent sentences of three years on probation and the dismissal of the
forgery count of the indictment. On July 29, 2011, the petitioner pled guilty to a violation
of probation. She was returned to three years of probation, and her guilty pleas to the four
counts of identity theft were entered as final judgments of conviction.
        The petitioner filed her initial pro se petition for post-conviction relief on May 15,
2012, which she followed by additional pro se petitions. A series of counsel were appointed
and on November 19, 2012, the petitioner, with the assistance of post-conviction counsel,
filed an amended petition in which she raised claims of ineffective assistance of trial counsel
and involuntary and unknowing guilty pleas. Specifically, she alleged that her trial counsel
was deficient for not explaining to her the difference between judicial and pretrial diversion.
She further alleged that she was prejudiced by counsel’s deficiency in representation and that
her guilty pleas were therefore unknowing and involuntary because she would not have pled
guilty had she not mistakenly believed that she would be receiving pretrial, rather than
judicial, diversion.

        The only witness at the evidentiary hearing was the petitioner, who testified that she
was forty-one years old, a high school graduate, had completed three years of college but did
not have a degree, and worked in the mail room at Vanderbilt University. She said trial
counsel, a pubic defender who was appointed to represent her, met with her one time at his
office, where he discussed the facts of the case and potential means of resolving it, including
pretrial diversion. The petitioner explained that she had researched pretrial diversion before
her meeting and brought it up to counsel during their discussion about the case. Following
their conversation, she completed in counsel’s back office an application for pretrial
diversion. She did not keep a copy of that paperwork, and she never heard back from counsel
about it.

       The petitioner testified that the next time she met with counsel was in the courtroom
on the day that she entered her pleas. She said her understanding was that she had applied
for pretrial diversion and that she was present in the courtroom that day “to get the pretrial
diversion.” The petitioner claimed that she knew nothing about judicial diversion and had
no intention of pleading guilty and being placed on judicial diversion. She acknowledged
that she signed a document entitled “Probation Conditions Pursuant to Judicial Diversion,”
but she insisted that she nonetheless believed that she was being placed on pretrial diversion
and thought that the word “judicial” simply meant that it was an official document. She said
she answered “no contest” when the trial court asked her how she wanted to plead because
her understanding was that she was receiving pretrial diversion, for which she did not have
to enter a guilty plea. She stated that she answered “guilty by best interest” later in the
proceedings because trial counsel advised her to do so. However, she never intended to
plead guilty to the offenses and had she known there was a difference between pretrial and
judicial diversion, she would not have entered her pleas.

       On cross-examination, the petitioner testified that her understanding from her research
was that if she received pretrial diversion she would not have to enter a guilty plea, the court
would place her on probation for a period of up to two years, and the case “pretty much

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would start all over” if she violated the terms of her probation. She acknowledged that,
despite that understanding, she said nothing to the trial judge when he told her she was being
placed on three years probation. She further acknowledged that she told the trial judge that
she understood that if she violated her probation, her diversion would be set aside and the
convictions would be entered and would go on her record. Finally, she acknowledged that
after she pled guilty and was placed on diversion in the instant case, she was convicted of
identity theft in Williamson County based on a later-occurring offense.

        At the conclusion of the hearing, the post-conviction court found that the petitioner
failed to prove by clear and convincing evidence that trial counsel’s performance was
deficient or that she was prejudiced as a result. The post-conviction court further found that
the petitioner entered knowing and voluntary guilty pleas pursuant to judicial diversion.
Among other things, the court noted that the petitioner was actively listening and
participating during the plea submission hearing and that there was no record of her having
filed any application for pretrial diversion. The post-conviction court, therefore, denied the
petition. This appeal followed.

                                        ANALYSIS

        Post-conviction relief “shall be granted when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee
or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103 (2012). The
petitioner bears the burden of proving factual allegations by clear and convincing evidence.
Id. § 40-30-110(f). When an evidentiary hearing is held in the post-conviction setting, the
findings of fact made by the court are conclusive on appeal unless the evidence
preponderates against them. See Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006). When
reviewing factual issues, the appellate court will not reweigh the evidence and will instead
defer to the post-conviction court’s findings as to the credibility of witnesses or the weight
of their testimony. Id. However, review of a post-conviction court’s application of the law
to the facts of the case is de novo, with no presumption of correctness. See Ruff v. State, 978
S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel, which presents
mixed questions of fact and law, is reviewed de novo, with a presumption of correctness
given only to the post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

       To establish a claim of ineffective assistance of counsel, the petitioner has the burden
to show both that trial counsel’s performance was deficient and that counsel’s deficient
performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S.
668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting
that same standard for determining ineffective assistance of counsel that is applied in federal

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cases also applies in Tennessee). The Strickland standard is a two-prong test:

       First, the defendant must show that counsel’s performance was deficient. This
       requires showing that counsel made errors so serious that counsel was not
       functioning as the “counsel” guaranteed the defendant by the Sixth
       Amendment. Second, the defendant must show that the deficient performance
       prejudiced the defense. This requires showing that counsel’s errors were so
       serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The
prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a “probability
sufficient to undermine confidence in the outcome,” that “but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
In the context of a guilty plea, the petitioner must show a reasonable probability that were
it not for the deficiencies in counsel’s representation, he or she would not have pled guilty
but would instead have insisted on proceeding to trial. Hill v. Lockhart, 474 U.S. 52, 59
(1985); House v. State, 44 S.W.3d 508, 516 (Tenn. 2001).

       Before a guilty plea may be accepted, there must be an affirmative showing in the trial
court that it was voluntarily and knowingly entered. Boykin v. Alabama, 395 U.S. 238, 242
(1969); State v. Mackey, 553 S.W.2d 337, 340 (Tenn. 1977). This requires a showing that
the defendant was made aware of the significant consequences of the plea. State v. Pettus,
986 S.W.2d 540, 542 (Tenn. 1999) (citing Mackey, 533 S.W.2d at 340). A plea is not
“voluntary” if it results from ignorance, misunderstanding, coercion, inducements, or threats.
Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The trial court must determine if
the guilty plea is “knowing” by questioning the defendant to make sure he or she fully
understands the plea and its consequences. Pettus, 986 S.W.2d at 542; Blankenship, 858
S.W.2d at 904.

       Because the plea must represent a voluntary and intelligent choice among the
alternatives available to the defendant, the trial court may look at a number of circumstantial
factors in making this determination. Blankenship, 858 S.W.2d at 904. These factors
include: (1) the defendant’s relative intelligence; (2) the defendant’s familiarity with criminal
proceedings; (3) whether the defendant was represented by competent counsel and had the
opportunity to confer with counsel about alternatives; (4) the advice of counsel and the court

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about the charges against the defendant and the penalty to be imposed; and (5) the
defendant’s reasons for pleading guilty, including the desire to avoid a greater penalty in a
jury trial. Id. at 904-05.

        In support of her argument that her guilty pleas were involuntary and unknowing due
to counsel’s alleged failure to discuss judicial diversion with her and her mistaken belief that
she was receiving pretrial, rather than judicial, diversion, the petitioner cites her initial
response to the trial court at the plea submission hearing that she was pleading “no contest”
to the charges, as well as her testimony at the evidentiary hearing that the only type of
diversion counsel discussed was pretrial, which was why she believed she would be receiving
pretrial diversion at the time she entered her pleas.

        The record, however, fully supports the post-conviction court’s findings that the
petitioner received effective assistance of counsel and entered her pleas knowingly and
voluntarily. As the State points out, the post-conviction court, in rejecting the petitioner’s
claims, demonstrated that it did not believe her testimony that trial counsel failed to explain
the plea to her or that she did not understand that she was receiving judicial diversion.
Furthermore, the transcript of the guilty plea hearing reveals that the petitioner, a relatively
well-educated and intelligent woman who, by her own testimony, acted on her own initiative
to research the law on pretrial diversion, answered appropriately to the trial court when
questioned, among other things, about whether she understood her plea agreement and the
fact that her judgments would be entered and become part of her permanent record should
she fail to comply with the conditions of her diversion. We conclude, therefore, that the
evidence does not preponderate against the post-conviction court’s findings that the
petitioner received effective assistance of counsel and that her guilty pleas were knowingly
and voluntarily entered.

                                       CONCLUSION

      Based on our review, we conclude that the petitioner has failed to meet her burden of
showing that she received ineffective assistance of counsel or that her guilty pleas were
unknowing and involuntary. Accordingly, we affirm the denial of the petition for post-
conviction relief.


                                                    _________________________________
                                                    ALAN E. GLENN, JUDGE




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