         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs December 3, 2002

                 CLEOPHIS KING, III v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                          No. P-22969    John P. Colton, Jr., Judge



                     No. W2001-01151-CCA-R3-PC - Filed April 29, 2003


The petitioner appeals the denial of his petition for post-conviction relief, arguing that the post-
conviction court erred in finding that his guilty pleas were knowing and voluntary and that he
received the effective assistance of counsel. Following our 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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOE G. RILEY and THOMAS T.
WOODALL, JJ., joined.

Robert B. Gaia, Memphis, Tennessee, for the appellant, Cleophis King, III.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Thomas Hoover, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

                                              FACTS

         On April 26, 1999, the petitioner, Cleophis King, III, pled guilty in the Shelby County
Criminal Court to one count of especially aggravated robbery, a Class A felony; one count of
especially aggravated kidnapping, a Class A felony; and two counts of aggravated robbery, Class B
felonies. Pursuant to his plea agreement, he was sentenced by the trial court to fifteen years at 100%
for the especially aggravated robbery conviction; fifteen years at 100% for the especially aggravated
kidnapping conviction; and eight years at 30% for each of the aggravated robbery convictions, with
the sentences to be served concurrently, for an effective sentence of fifteen years at 100% in the
Department of Correction. The record reflects that the petitioner ’s convictions were based on his
participation with a codefendant in three separate incidents: a March 25, 1998, robbery at club and
gunpoint of an elderly man in his home; a March 27, 1998, robbery of a pizza delivery driver which
ended with the petitioner’s throwing a beer bottle at the victim’s head, resulting in serious injury to
the victim; and a March 11, 1998, robbery and kidnapping at knifepoint of another pizza delivery
driver. The petitioner gave detailed confessions to the crimes.

        On March 29, 2000, the petitioner filed a pro se petition for post-conviction relief, alleging
that he received ineffective assistance of counsel and that his guilty pleas were unknowing and
involuntary. Post-conviction counsel was appointed, and an evidentiary hearing was held on January
11, 2001. Although the petitioner made a number of different allegations of ineffective assistance
in his petition and at the evidentiary hearing, he confines himself on appeal to arguing that trial
counsel was ineffective for erroneously informing him that he would be sentenced as a standard
offender at 30% release eligibility, and that his guilty pleas were involuntary because he was not
adequately informed of the sentencing aspects of his case.

       The petitioner testified that two weeks before his scheduled trial date his mother retained trial
counsel to substitute for the attorney who had originally been appointed to represent him by the trial
court. He claimed trial counsel did not tell him until the day of his trial that especially aggravated
robbery was an offense that had to be served at 100%, and did not review his judgment sheet with
him before he signed it. He testified the 30% box had been checked in blue ink on his judgment
sheet for especially aggravated robbery, but then crossed out in black ink and the 100% violent
offender box checked. The petitioner said he did not check the percentage when he signed the sheet,
and thus did not know which box had been checked at that time.

        The petitioner acknowledged on cross-examination that his plea offer was reduced from
eighteen to fifteen years on the day his case was scheduled to go to trial. He insisted trial counsel
told him the eighteen-year offer was at 30%, but admitted he had known at the time he entered his
guilty pleas that the fifteen-year offer was at 100%. The petitioner said he did not think he had any
choice other than to accept the plea offer at the time. Trial counsel had been working on his case
only two weeks, and the petitioner knew it would take longer than two weeks to prepare for the
serious charges he was facing. He conceded, however, that he did not know trial counsel had not
been prepared for trial. He said he thought trial counsel was incompetent, but acknowledged he
failed to tell the trial court that he was dissatisfied with counsel’s representation when the trial court
gave him an opportunity to do so at his guilty plea hearing.

        Trial counsel testified he was retained by the petitioner’s mother and possibly his grandfather
to substitute for the petitioner’s original counsel, Steffen Schreiner. He and Schreiner discussed the
posture of the case when he took over, and Schreiner provided him with copies of his file. Trial
counsel identified handwriting in blue ink on the petitioner’s especially aggravated kidnapping
judgment sheet as his, and said he was the one who prepared the original judgment sheets. He
thought it likely he had checked the 30% standard offender box and then given the judgment sheets
to the prosecutor to review, who had then corrected his mistake by crossing out the standard offender
box and marking the 100% violent offender box in black ink. He believed the judgment sheet had
been corrected before the petitioner signed it but, regardless, was confident he had covered



                                                   -2-
everything in the judgment sheet, including the percentage of the sentence the petitioner had to serve,
before the petitioner entered his guilty pleas.

         Trial counsel testified on cross-examination that he had been licensed and practicing criminal
law for thirty-three and one-half years. He said he had participated in thousands of criminal trials
during his career, which had included a sixteen-year stint working as a part-time assistant public
defender at the same time he maintained a private law practice. He testified that he knew the
petitioner’s trial date was only two weeks away at the time he was retained, and that he was as
prepared as anyone could possibly be to try his case on that date. Trial counsel explained that, in
light of the petitioner’s three written confessions and the eyewitnesses the State had, “it was one of
these cases where there really wasn’t much of a defense.” Although he had been prepared to present
witnesses and argue motions to suppress the petitioner’s statements at the beginning of the trial, he
had not seen any real hope of suppressing the confessions1 and was confident he had advised the
petitioner of that fact.

        Trial counsel testified that he and the prosecutor engaged in negotiations on the morning of
the scheduled trial date, which resulted in the State’s fifteen-year offer. His recollection was that the
prosecutor also made one of her witnesses, the pizza delivery driver who had been seriously injured
by the beer bottle, available for him to talk to that same morning and that he may have talked to other
State witnesses as well. He said he was prepared to go to trial that morning to defend the case as best
he could, but that the petitioner decided to accept the State’s plea offer after he had outlined the
State’s case against him. Trial counsel described the evidence the State was prepared to present
against the petitioner, and at what point the petitioner made his decision to plead guilty:

                   A.      I’m sure it came up in me telling him what I probably
                   discovered from talking to the witnesses. It didn’t look good for him
                   because here we’ve got a guy who was severely injured. We
                   discussed the pros and cons of how a jury is going to view that. And
                   also I may have told him that I may have been more concerned about
                   the old man that they went into his house and robbed him. That that
                   wasn’t - - because there was an - - and I don’t remember his name.

                   Q.       Mr. Morris.

                   A.      Morris, okay. He’s about 73 or so years or in that
                   neighborhood. An older gentleman. That they went in, and they put
                   a gun - - they found a gun and put it to his - - I think Mr. King [the
                   petitioner’s codefendant] was the one who put the gun to him while


         1
            The petitioner’s original appointed attorney testified that the petitioner was given a Miranda warning before
each of the co nfession s and, thus, his only avenue of attacking the confessions was based on the fact that the petitioner
was seventeen years old and his father was not present for each of the statements. He appeared to concede, however,
that he p robably wo uld no t have b een successful with that argume nt.

                                                           -3-
               they robbed him. And I may have even talked to that gentleman. I
               probably thought that that wasn’t a type of case that has to be tried,
               but I think they were consolidated. I mean it wasn’t the kind of case
               you - - the situation is you had two pizza guys who were delivering
               pizzas who were called to the house and they robbed them, and then
               the old man’s house they went into on Baltic and robbed him.

        Trial counsel testified that the prosecutor made it clear that a fifteen-year sentence at 100%
was the best offer she was prepared to make. He said his standard procedure was to review with
clients the law regarding sentencing of violent crimes, using a sheet he carried with him which set
out the maximum and minimum sentences, and he was certain he informed the petitioner that his
fifteen-year sentence would have to be served at 100%. He stated that the trial court additionally
informed the petitioner of the 100% aspect of his sentencing, and he was confident the petitioner
understood the sentence to which he was agreeing.

        Steffen Schreiner, the attorney originally appointed to represent the petitioner, testified that
he turned over the petitioner’s file to trial counsel and also shared with him his legal thoughts and
opinions regarding the case. Schreiner said he thought it was a terrible case and had tried numerous
times to negotiate a better deal from the prosecutor, to no avail. He believed the minimum fifteen-
year sentence for especially aggravated kidnapping that the petitioner ultimately received was, in the
context of the case, a good offer.

         Rosemary Andrews, the assistant district attorney general who prosecuted the crimes,
testified that she was assigned to handle the case sometime after the original charges had been filed.
After reviewing the record, she concluded that the robbery of one of the pizza delivery drivers
involved an especially aggravated kidnapping, and therefore caused the petitioner to be indicted on
that offense as well. She said her original offer, from which she would not budge, was for eighteen
years. However, on the morning of the trial, she talked to the two pizza delivery drivers, who both
agreed that a fifteen-year sentence at 100% would be acceptable to them. Thereafter, she and trial
counsel engaged in negotiations that went “back and forth” before ultimately settling on the fifteen-
year sentence. Andrews testified the fifteen-year sentence at 100% was mentioned five or six times
throughout the guilty plea, and that she detected nothing in the petitioner’s demeanor or actions that
indicated he did not understand the sentence.

        On cross-examination, Andrews identified the handwriting in black ink on the petitioner’s
especially aggravated kidnapping judgment sheet as hers. She said trial counsel brought the sheet
to her with the standard, 30% box checked and, in addition to correcting the mistake, she wrote
across the bottom, “A felony, no parole, at 100 percent, possibility of 15 percent good-time credit
if earned.” She could not recall if the petitioner had already signed the paperwork at the time she
made her revisions. She was certain, however, that she handed the judgment sheet back to trial
counsel after correcting it and that she announced the correct sentence as part of the guilty plea.




                                                  -4-
        On April 30, 2001, the post-conviction court entered an order denying the petitioner relief
on his claims. Among other things, the court accredited the testimony of Andrews and trial counsel
that the petitioner had been informed that his fifteen-year sentence was to be served at 100%, and
concluded that he had failed to demonstrate he had been denied the effective assistance of counsel.
The post-conviction court further found that the petitioner had been aware of the full ramifications
of his guilty pleas, including the release eligibility date, and that his guilty pleas, therefore, had been
entered knowingly and voluntarily.

                                              ANALYSIS

                              I. Post-Conviction Standard of Review

        The petitioner argues the post-conviction court erred in finding that he received the effective
assistance of counsel and that his guilty pleas were knowing and voluntary. The post-conviction
petitioner bears the burden of proving his or her allegations by clear and convincing evidence. See
Tenn. Code Ann. § 40-30-210(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 State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Tidwell v. State, 922 S.W.2d
497, 500 (Tenn. 1996). Where appellate review involves purely factual issues, the appellate court
should not reweigh or reevaluate the evidence. See Henley v. State, 960 S.W.2d 572, 578 (Tenn.
1997). However, review of a trial 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, 6 S.W.3d at 461.

                                II. Ineffective Assistance of Counsel

        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, 104 S. Ct.
2052, 2064, 80 L. Ed. 2d 674 (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 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.



                                                   -5-
466 U.S. at 687, 104 S. Ct. at 2064.

         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, 104 S. Ct. at 2065; 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, 104 S. Ct. at 2068. When a petitioner’s
ineffective assistance claim is made in the context of a conviction stemming from a guilty plea, he
must prove a reasonable probability that were it not for deficiencies in his counsel’s performance,
he would not have pled guilty, but instead would have insisted on going to trial. See Shazel v. State,
966 S.W.2d 414, 416 (Tenn.1998). “In cases involving a guilty plea or plea of nolo contendere, the
petitioner must show ‘prejudice’ by demonstrating that, but for counsel’s errors, he would not have
pleaded guilty but would have insisted upon going to trial.” Hicks v. State, 983 S.W.2d 240, 246
(Tenn. Crim. App.), perm. to appeal denied (Tenn. 1998).

        Because both prongs of the test must be satisfied, a failure to show either deficient
performance or resulting prejudice results in a failure to establish the claim. See Henley, 960 S.W.2d
at 580. For this reason, courts need not approach the Strickland test in a specific order or even
“address both components of the inquiry if the defendant makes an insufficient showing on one.”
466 U.S. at 697, 104 S. Ct. at 2069; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective assistance
claim”).

        The petitioner contends trial counsel provided ineffective assistance by erroneously
informing him that he would be sentenced as a standard offender at 30% release eligibility, and
asserts that “[e]xhibits to the evidentiary hearing and the testimony of all witnesses bears that out.”
On this issue, however, the post-conviction court accredited the testimony of trial counsel and
Andrews that the petitioner was informed that his sentence was to be served at 100 %, and that the
judgment sheet had been corrected and handed back to trial counsel to explain to the petitioner
before the petitioner entered his guilty pleas. Thus, the post-conviction court concluded that the
petitioner had failed to meet his burden of demonstrating he was denied the effective assistance of
counsel.

        The record fully supports the findings and conclusions of the post-conviction court.
Although the petitioner testified trial counsel told him he was to be sentenced as a Range I, standard
offender at 30% and that he did not learn differently until the day of his scheduled trial, trial counsel
expressed confidence that he reviewed with the petitioner the violent acts statute, covering offenses
which must be served at 100%, and that he informed the petitioner that his sentence would be fifteen
years at 100%. Trial counsel thought the prosecutor corrected the petitioner’s especially aggravated
kidnapping judgment sheet to reflect that the sentence was at 100% before the petitioner signed it
but, regardless, was certain he covered every aspect of the sentence and the plea agreement with the


                                                   -6-
petitioner before he entered his guilty pleas. Trial counsel said he was fully prepared to go to trial
on the scheduled trial date, but that the petitioner made the decision to plead guilty after he had
outlined the State’s case against him and informed him of the offer the State made on the day of trial.
 Andrews testified she handed the judgment sheet back to trial counsel after correcting trial counsel’s
mistake and, in addition, announced the correct sentence in the guilty plea hearing, at which the
petitioner was informed several times that his sentence was fifteen years at 100%. Thus, we agree
with the post-conviction court that the petitioner has failed to show that trial counsel provided
ineffective assistance; therefore, he is not entitled to relief on this claim.

                                 III. Voluntariness of Guilty Plea

        The petitioner also contends that his guilty pleas were not knowing or voluntary because he
“was not adequately informed of the sentencing aspects of the case.” However, the record supports
the post-conviction court’s finding that the petitioner was informed that his fifteen-year sentence was
at 100%, and that his pleas were knowing and voluntary.

         When analyzing a guilty plea, we look to the federal standard announced in Boykin v.
Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), and the state standard set out in
State v. Mackey, 553 S.W.2d 337 (Tenn. 1977). State v. Pettus, 986 S.W.2d 540, 542 (Tenn.1999).
In Boykin, the United States Supreme Court held that there must be an affirmative showing in the
trial court that a guilty plea was voluntarily and knowingly given before it can be accepted. 395 U.S.
at 242, 89 S. Ct. at 1711. Similarly, our Tennessee Supreme Court in Mackey required an
affirmative showing of a voluntary and knowledgeable guilty plea, namely, that the defendant has
been made aware of the significant consequences of such a plea. Pettus, 986 S.W.2d at 542. 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 fully understands the plea and its
consequences. Pettus, 986 S.W.2d at 542; Blankenship, 858 S.W.2d at 904.

         Since 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) his familiarity with criminal proceedings; (3) whether he was represented
by competent counsel and had the opportunity to confer with counsel about alternatives; (4) the
advice of counsel and the court about the charges against him 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.

       The transcript of the petitioner’s guilty plea hearing reflects that in announcing the pleas the
prosecutor stated that the sentences for the violent offenses of especially aggravated kidnapping and
especially aggravated robbery were “fifteen years, no parole, at one hundred percent. This is a one
hundred percent offense. With the possibility of fifteen percent good-time credit, if earned in this
matter.” After the trial court carefully informed the petitioner at great length of the rights he was


                                                 -7-
waiving by pleading guilty, and had received his repeated assurances that he understood the offenses,
wished to plead guilty, and was entering his pleas freely and voluntarily, the following colloquy
occurred:

               Q.      Any questions about anything I’ve just gone over?

               A.     Yes, your Honor. About the possibility of parole, is that what
               you said is at fifteen percent?

               Q.      No, sir. What it says is you have - - there is no parole.

               A.      Okay.

               Q.      A hundred percent.

               A.      Okay.

               Q.      But there’s a possibility that - -

               A.      Right.

               Q.     - - that you can earn credits up to fifteen percent, where you
               have to serve eighty-five percent of the sentence?

               A.      Uh-huh.

               Q.      Now, that’s whether they, you know, it is a matter for the
               corrections, department of corrections to determine whether you’ve
               earned any credits or not?

               A.      Okay.

               Q.    You may or may not. If not, you have to serve the whole
               hundred percent. Do you understand that?

               A.      Yes, your Honor.

               Q.      Any questions about that?

               A.      No, your Honor.

               Q.      And with all that in mind, do you still want to plead guilty?



                                                  -8-
A.     Yes, your Honor.

Q.       Do you understand that you are pleading guilty in Indictment
Number 98-11612 to especially aggravated robbery, to fifteen years
in the state penitentiary at one hundred percent? Do you understand
that?

A.     Yes, your Honor.

Q.      And you’re pleading guilty in 98-11614 to aggravated robbery
to eight years in the state penitentiary?

A.     Yes, your Honor.

Q.     And in 98-11616, you’re pleading guilty to eight years to
aggravated robbery in the state penitentiary?

A.     Yes, your Honor.

Q.    In 99-03272 you’re pleading guilty to especially aggravated
kidnapping to fifteen years?

A.      Yes, your Honor.

Q.     And all those sentences would run concurrently or at the same
time. Do you understand that?

A.     Yes.

Q.     They would all run together.

A.      Okay. Yes.

Q.     Now other than that amount of time has there been any other
promises made to get you to plead guilty or threats made to make you
plead guilty?

A.     Promises, threats, no, your Honor.

Q      Are you pleading guilty then freely and voluntarily?

A.     Yes, your Honor.



                                -9-
        In addition, the petitioner told the trial court that he had no complaints about the
representation provided by trial counsel and that he understood the consequences of entering his
pleas, including that he would have to serve the time which had been previously outlined by the
court. Thus, we agree with the post-conviction court that the record demonstrates that the petitioner
entered his pleas knowingly and voluntarily after being fully informed of his rights and the
sentencing aspects of his pleas.

                                         CONCLUSION

        We conclude that the petitioner failed to meet his burden of demonstrating he was denied the
effective assistance of trial counsel, or that his guilty pleas were unknowing and involuntary.
Accordingly, we affirm the post-conviction court’s denial of the petition for post-conviction relief.



                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




                                                -10-
