                                                                                          03/02/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                January 3, 2018 Session

                  MICHAEL BELL v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                  No. 14-03437       Carolyn W. Blackett, Judge
                     ___________________________________

                           No. W2017-00915-CCA-R3-PC
                       ___________________________________


The Petitioner, Michael Bell, appeals the denial of his petition for post-conviction relief.
The Petitioner pled guilty to two counts of aggravated rape and two counts of aggravated
robbery and received an effective sentence of twenty-one years with community
supervision for life. The Petitioner sought post-conviction relief, asserting that he
received ineffective assistance of counsel and that his guilty plea was not voluntarily and
knowingly entered. Following a hearing, the post-conviction court denied relief. After
review of the record and applicable law, we affirm the denial of post-conviction relief.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E.
GLENN and CAMILLE R. MCMULLEN, JJ., joined.

Kirk W. Stewart, Memphis, Tennessee, for the appellant, Michael Bell.

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Paul Goodman,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                        OPINION

                     FACTUAL AND PROCEDURAL HISTORY

       The guilty plea agreement at issue involves two separate cases. In case number
14-03437 (“case 37”), the Petitioner was indicted on aggravated rape, aggravated
robbery, aggravated burglary, and aggravated kidnapping. In case number 14-03438
(“case 38”), the Petitioner was indicted on aggravated rape, aggravated robbery, and
possessing a firearm in connection with a dangerous felony.1 The Petitioner entered a
guilty plea to aggravated rape and aggravated robbery in each case. Pursuant to the plea
agreement, the remaining charges were dismissed, and the Petitioner was sentenced to
twenty-one years for each rape charge and eight years for each robbery charge. The
sentences were ordered to run concurrently for an effective sentence of twenty-one years,
and the Petitioner was required to register as a violent sex offender and be placed on
lifetime community supervision upon release from custody.

                                         Guilty Plea Hearing

       On the day the Petitioner’s guilty plea was entered, he was in court for a bond
reduction hearing and not for a plea hearing. The State offered a plea agreement for both
cases wherein the Petitioner would serve an effective sentence of twenty-one years at one
hundred percent. It was made clear during the hearing that if the Petitioner chose to
continue with his bond reduction hearing, then the State would revoke its offer. Trial
counsel told the Petitioner that the likelihood of his bond being reduced was “slim to
none,” and the trial court agreed that there was little likelihood that it would reduce his
bond. The trial court then gave the Petitioner time to speak with his attorney to
determine whether to continue with the bond reduction hearing or whether to accept the
plea offer. After discussing with his attorney, the Petitioner elected to accept the State’s
twenty-one-year offer, and the guilty plea hearing commenced.

       The State offered the factual basis for the Petitioner’s guilty plea in both cases.
The State asserted in case 37 that the sixty-one-year-old victim2 arrived home to find the
Petitioner in her house. As the victim attempted to run away, the Petitioner grabbed her,
demanded money, and threatened to kill her. He held a switchblade knife against her
throat and moved her back and forth between the living room and garage, searching for
money. At some point, the Petitioner punched her in the eye and knocked her down. He
pushed her over the hood of her car and put his hand down her pants. She told him that
she had an infection, and he put his finger in her vagina, pulled it out, smelled it, and said
he “didn’t want it anyway.” The victim was eventually able to open the garage door and
ran outside screaming for help from her neighbors. She positively identified the
Petitioner as her attacker from a photographic lineup. The Petitioner later admitted to
police that he broke into the victim’s home, demanded money, put his hand down her
pants, and stole her cellular phone. He did not admit to the digital penetration of the
victim.



       1
           The indictment and judgments for case 38 are not included in the appellate record.
       2
           It is the policy of this court to protect the identities of the victims of sexual assault.
                                                   -2-
       In case 38, the State asserted that a separate victim was working at a gas station
with the doors locked. She heard glass shatter and saw the Petitioner standing inside with
a gun in the waistband of his pants. He took money from the cash registers, setting off
the “holdup alarm.” The Petitioner then demanded that the victim perform oral
intercourse on him, and she complied. The Petitioner told her to pull down her pants and
lie on her stomach, and she again complied. After unsuccessful attempts to penetrate her
anus with his penis, the Petitioner rubbed his penis on her buttocks. The Petitioner fled
and was later found hiding under a vehicle. He had money from the register in his
pocket, and a gun was also found under the vehicle. The victim identified the Petitioner
as her attacker in a photographic lineup. The Petitioner admitted to robbing the business,
and the entire incident was video recorded.

       The Petitioner testified that he was twenty-two years old at the time of the plea
hearing, that he had graduated from high school, and that he had some college education.
He expressed an interest in “plead[ing] Alford.”3 The trial court explained that the
agreement was for a plea of guilty to the facts as summarized by the State. The Petitioner
also asked what community supervision for life was. The court explained:

       You can ask your attorney to explain it in more detail, but you will be
       supervised for life for these offenses that you’ve committed. You’ll have to
       report. You’ll have to do whatever they say, follow their rules for life.
       You understand that? … This is all part of the sentence.

The Petitioner agreed that he understood. The Petitioner then asked what voluntary
meant, and after the trial court answered his question, the Petitioner asked, “Wouldn’t
that be me being forced if I wanted to plead Alford?” The court asked if he still wanted
to plead guilty, and the Petitioner responded, “I want to plead guilty to one case but not
the other.” The trial court explained that the plea offer does not allow him to plead in
only one of the cases and again asked if he wanted to continue with the plea. The
Petitioner responded affirmatively. The trial court asked the Petitioner twice whether he
was entering his plea voluntarily, to which the Petitioner answered affirmatively. The
Petitioner also agreed that he was not on any drugs or medications that would prohibit or
limit him from making a decision. The Petitioner then asked if he would be considered a
mitigated felon, and the State responded that was not part of the deal. The trial court
asked the Petitioner twice whether he had any questions for trial counsel, and the
Petitioner responded, “No, ma’am.” The court asked again if he wanted to go forward

       3
          In North Carolina v. Alford, the United States Supreme Court held that there was no
constitutional error in accepting a guilty plea where a defendant claimed innocence yet
concluded that entering a guilty plea was in his best interest and where the record contained
strong evidence of guilt. 400 U.S. 25, 91 (1970).
                                            -3-
with the guilty plea, to which the Petitioner responded, “Yes, ma’am.” The trial court
found that the Petitioner was entering his plea knowingly and voluntarily and accepted
his guilty plea.

                                 Post-Conviction Hearing

      The Petitioner filed a post-conviction petition, which was amended following the
appointment of counsel, challenging only his guilty plea to case 37.

        At the post-conviction evidentiary hearing, the Petitioner’s mother, Ms. Melissa
Simmons, testified that she hired trial counsel to represent the Petitioner. She stated that
she attended every court date except the day that he entered his guilty plea. She testified
that trial counsel was only aware of one of the cases against the Petitioner until she
informed trial counsel of the other case. She stated that she noticed the Petitioner had
some mental or psychological difficulties and had discussed with trial counsel the
possibility of having the Petitioner evaluated. She testified that the Petitioner depended
on her, that she was heavily involved in his cases, and that the Petitioner had already
decided to take his cases to trial. She testified that when the Petitioner was considering
the original plea offer of twenty years, she told him that the decision was his to make.
She testified that she received a telephone call from the Petitioner on the day he entered
his guilty plea, during which he told her that he was offered a plea, and she told the
Petitioner, “[D]o what you got to do.”

      On cross examination, Ms. Simmons stated that she was aware of the Petitioner’s
previous charges as both a juvenile and an adult. She was aware that the Petitioner had
been evaluated for a mental impediment, and she agreed that he did not have a history of
mental illness or treatment.

        The Petitioner testified that he told trial counsel of his innocence in case 37 and
that trial counsel “just shook [him] off.” He testified that the State told him its initial plea
offer of twenty years was its final offer and that he decided he wanted a jury trial instead.
He did not learn about the twenty-one-year offer until he arrived at court for his bond
reduction hearing. He explained that he never wanted to plead guilty in case 37 and that
nobody ever explained to him what an Alford plea was. He stated that he believed an
Alford plea “was …that I didn’t want to plead guilty … but I didn’t want to continue
going to trial.” The Petitioner also testified that he had believed the trial court, not the
prosecutor, determined whether he would be sentenced as a mitigated offender. He
testified that he was diagnosed with bipolar disorder and schizophrenia and had been
taking medications throughout his incarceration. He stated that he informed trial counsel
about his medications, that trial counsel “never did anything about it,” and that the only

                                             -4-
help he received from trial counsel was trial counsel’s recommendation to accept a plea
deal.

        The Petitioner testified that he did not know what lifetime community supervision
required and that trial counsel never explained it to him. He stated that he believed the
only thing he had to do after serving his sentence was to register as a violent sex offender.
He did not know he would have to report to anyone or “be on parole or anything.” He
testified that he did not talk to trial counsel after entering the plea agreement.

        On cross examination, the Petitioner maintained that he did not understand the
criminal system even though he had been to court for six different cases as a juvenile and
for three cases as an adult. He acknowledged that he had an attorney for all of his
previous cases. He agreed that he had been to court with trial counsel over twenty times
prior to entering his guilty plea.

       The Petitioner was later recalled to the stand to ensure he understood the
implications of receiving post-conviction relief. Petitioner’s counsel explained that if
relief was granted, the Petitioner would not go free, he would have two separate trials,
and he could receive up to 150 years of incarceration. The Petitioner testified that he
understood and wanted to proceed with his post-conviction petition.

       Trial counsel testified that after reviewing the discovery on case 38 and having
conversations with the State, he could not recommend that the Petitioner go to trial on
that case, especially in light of the video evidence that clearly showed the Petitioner’s
face during the commission of the alleged offenses. Trial counsel stated that he could
have tried case 37 since the Petitioner never confessed to digitally penetrating victim in
that case. However, trial counsel recommended accepting the plea offer resolving both
cases because the sentences were going to run concurrently. He explained that the State’s
offer was a package deal and that the State would not allow the Petitioner to plead guilty
to one case without pleading to the other. He stated that the Petitioner had the option of
entering an open guilty plea to case 38 but explained that he considered that to be “guilty
plea suicide” given the facts of the case and the law on consecutive sentencing.

       Trial counsel stated that the State revoked its original offer of twenty years after
the Petitioner delayed his decision. Trial counsel said that he “begged and begged and
begged” to get the twenty-year offer back on the table and that the State eventually
agreed to a twenty-one-year deal. Trial counsel spent several hours discussing the offer
with the Petitioner on the day he entered his plea. When trial counsel was asked whether
lifetime supervision was discussed as part of the negotiated plea, trial counsel responded:



                                            -5-
       Absolutely. And I advised [the Petitioner] that he would be on the registry
       for life. And I think when he testified a minute ago, he mentioned that he
       would be on the registry but didn’t know it was going to be like having to
       report to anybody, or having to be, like, on parole but he knew that it
       carried a lifetime registration on the sexual offender registry without a
       doubt.

       Following the hearing, the post-conviction court denied the petition for relief,
concluding that the Petitioner failed to show by clear and convincing evidence that trial
counsel’s performance was deficient and prejudicial. The court also determined that the
guilty plea was entered freely, voluntarily, and knowingly.

                                        ANALYSIS

       On appeal, the Petitioner argues that his guilty plea was entered unknowingly and
involuntarily due to ineffective assistance of counsel. The Petitioner maintains that he
never wanted to plead guilty in case 37 and that he did not understand what community
supervision for life entailed. Although the Petitioner fails to specify in his brief the
alleged deficiencies of trial counsel, he challenges trial counsel’s effectiveness only to the
extent that it rendered his guilty plea involuntarily and unknowingly entered.
Nevertheless, the Petitioner is not entitled to relief because we conclude the Petitioner
entered a voluntary and knowing guilty plea.

       To be granted post-conviction relief, a petitioner must establish that his conviction
or sentence is void or voidable due to the abridgement of any constitutional right. T.C.A.
§ 40-30-103. The petitioner has the burden of proving the allegations of fact by clear and
convincing evidence. Id. § 40-30-110(f); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn.
2009). “‘Evidence is clear and convincing when there is no serious or substantial doubt
about the correctness of the conclusions drawn from the evidence.’” Grindstaff, 297
S.W.3d at 216 (quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)).
Factual findings by the post-conviction court are conclusive on appeal unless the
evidence preponderates against them. Ward v. State, 315 S.W.3d 461, 465 (Tenn. 2010).
This court may not substitute its inferences for those drawn by the trial judge, and
“questions concerning the credibility of witnesses, the weight and value to be given their
testimony, and the factual issues raised by the evidence are to be resolved by the trial
judge.” Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997).

       Once a guilty plea has been entered, effectiveness of counsel is relevant only to
the extent that it affects the voluntariness of the plea. Hill v. Lockhart, 474 U.S. 52, 56
(1985) (citing North Carolina v. Alford, 400 U.S. 24, 31 (1970)). To succeed in a
challenge for ineffective assistance of counsel, the petitioner must demonstrate that
                                            -6-
counsel’s representation fell below the range of competence demanded of attorneys in
criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a
claim for ineffective assistance, a petitioner must prove “that counsel’s performance was
deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To
establish prejudice in the context of a guilty plea, a petitioner must show that “there is a
reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Lockhart, 474 U.S. at 59; see also Walton v. State,
966 S.W.2d 54, 55 (Tenn. Crim. App. 1997). On review, counsel’s performance is not to
be measured by “20-20 hindsight.” Felts v. State, 354 S.W.3d 266, 277 (Tenn. 2011).
Instead, there is a “strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance.” Id. (citing State v. Burns, 6 S.W.3d 453, 462
(Tenn. 1999)). A claim of ineffective assistance of counsel is a mixed question of law
and fact that is reviewed de novo with no presumption of correctness. Pylant v. State,
263 S.W.3d 854, 867-68 (Tenn. 2008).

        The United States Supreme Court has held that the Due Process Clause of the
United States Constitution requires a guilty plea to be entered knowingly, voluntarily, and
intelligently. Boykin v. Alabama, 395 U.S. 238, 242-44 (1969). The standard for
evaluating whether a plea was entered into knowingly and voluntarily is “whether the
plea represents a voluntary and intelligent choice among the alternative courses of action
open to the defendant.” Alford, 400 U.S. at 31 (citations omitted). To determine whether
a guilty plea was voluntary and intelligent, the court must look to the totality of the
circumstances. State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995); see
Chamberlain v. State, 815 S.W.2d 534, 542 (Tenn. Crim. App. 1990). In making this
determination, the court looks to various circumstantial factors, such as:

       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) (citation omitted). A plea
resulting from ignorance, misunderstanding, coercion, inducements, or threats is not
“voluntary.” Id. The validity of a guilty plea is a mixed question of law and fact that is
reviewed de novo. Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010).



                                           -7-
      The Petitioner asserts that he did not enter his plea voluntarily because the
statements he made in the plea colloquy show that he never wanted to plead guilty to case
37. He specifically contends that once he stated that he only wanted to plead guilty to
one case and not the other, the trial court should have ended the colloquy. A close review
of the transcript shows that after the Petitioner made this statement, the trial court
responded:

       That’s not the deal and I’m not going to sit here and argue with you. If I
       end up giving these papers back to the State, then the deal is over with….
       My question to you is one and only one question[,] which you’ve already
       discussed with your attorney. Do you want to plead guilty to these four
       [charges] as I’ve gone over them with you?

The Petitioner responded that he did want to plead guilty, and the plea colloquy
continued. The trial court properly handled the Petitioner’s statement by clarifying the
plea offer and asking if the Petitioner still wanted to continue with the plea.

        The fact that the Petitioner exhibited some reservations at the beginning of the
hearing about pleading to both cases does not render his pleas involuntary. The
Petitioner had been given time to discuss the plea with trial counsel, and trial counsel
testified that they spent several hours discussing the offer. The Petitioner asked questions
regarding the terms of the plea agreement and expressed some confusion as to whether he
could enter an Alford plea, but the trial court answered the Petitioner’s questions and
made clear that if he was going to plead guilty, it would be to the facts as asserted by the
State. The Petitioner was asked multiple times whether he wanted to continue with the
plea, to which the Petitioner answered affirmatively. The trial court twice asked the
Petitioner if he was entering his plea voluntarily, and he replied affirmatively. Therefore,
we conclude that the Petitioner was fully aware that the plea agreement applied to both
cases and that he voluntarily entered his plea in accordance with the agreement.
Accordingly, the Petitioner is not entitled to relief on this ground.

        The Petitioner also argues that he did not enter his guilty plea knowingly because
he did not understand what community supervision for life required. “[A] lawyer’s
failure to advise his or her client about the mandatory lifetime community supervision
sentence … is deficient performance.” Calvert v. State, 342 S.W.3d 477, 490 (Tenn.
2011) (concluding counsel was ineffective where both trial counsel and the trial court
failed to inform a defendant of the mandatory community supervision requirement prior
to entering a guilty plea); see also Ward, 315 S.W.3d at 467 (“[T]rial courts have an
affirmative duty to ensure that a defendant is informed and aware of the lifetime
supervision requirement prior to accepting a guilty plea.”). The Petitioner relies on State
v. Nagele, which held that the State has the burden of showing harmless error where a
                                           -8-
trial court has failed to advise a defendant of mandatory lifetime community supervision
prior to accepting a guilty plea. 353 S.W.3d 112, 120-21 (Tenn. 2011). The Petitioner’s
reliance is misplaced because the guilty plea transcript clearly shows that the trial court
did inform the Petitioner of the lifetime supervision requirement. Instead, the Petitioner
essentially argues that, at the time he entered his plea, he was unaware of what lifetime
supervision entailed.

        The Petitioner testified at the post-conviction hearing that he did not understand
what lifetime community supervision required. Trial counsel was never questioned as to
whether he explained what lifetime supervision required to the Petitioner. It is clear,
however, that when the Petitioner asked what lifetime community supervision was during
the plea colloquy, the trial court told the Petitioner he would have to report and follow a
set of rules for life. The trial court also advised the Petitioner to talk to his attorney for
more details and twice asked the Petitioner whether he had any questions for trial counsel
before accepting the guilty plea. In concluding that the Petitioner failed to show that his
plea was entered into involuntary and unknowingly, the post-conviction court noted the
evidence demonstrated that the trial court “ensure[d] that the Petitioner had a full
understanding of the plea and the consequences of it.” By denying the petition for relief
on this ground, the post-conviction court implicitly declined to credit the Petitioner’s
testimony that he was unaware of what lifetime supervision entailed. The evidence does
not preponderate against the post-conviction court’s factual findings. See Ward, 315
S.W.3d at 465. Thus, we conclude that the Petitioner has failed to establish by clear and
convincing evidence that he was not aware of what lifetime community supervision
required and that, had he known, he would not have entered his guilty plea. Compare
Jacob Stephen Love v. State, No. M2012-00135-CCA-R3-PC, 2012 WL 6098318, at *7
(Tenn. Crim. App. Dec. 7, 2012) (declining to hold that trial counsel was ineffective
where counsel testified that he informed petitioner of lifetime supervision term and that
he believed he showed petitioner a copy of the sexual offender probation guidelines);
with Chad Alan Parker v. State, No. M2007-02799-CCA-R3-PC, 2008 WL 2938046, at
*8 (Tenn. Crim. App. July 31, 2008) (concluding defendant’s plea was involuntary where
counsel admitted to misinforming petitioner that lifetime community supervision had the
same requirements as registering as a violent sex offender).

                                      CONCLUSION

       Based on the foregoing, we affirm the post-conviction court’s denial of the
Petitioner’s post-conviction petition.


                                                  _________________________________
                                                   JOHN EVERETT WILLIAMS, JUDGE
                                            -9-
