        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                               February 03, 2015 Session


               DIMITRIE COLBERT v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                   No. 12-00762      J. Robert Carter, Jr., Judge




                No. W2013-02768-CCA-R3-PC - Filed May 13, 2015




The petitioner, Dimitrie Colbert, murdered his girlfriend and was subsequently charged
with one count of first degree (felony) murder, one count of first degree (premeditated)
murder, one count of especially aggravated kidnapping, one count of aggravated rape, one
count of aggravated kidnapping, and one count of evading arrest in a motor vehicle. The
State sought the death penalty. Pursuant to a plea agreement, the petitioner pled guilty to
one count of first degree (felony) murder and one count of evading arrest in a motor
vehicle, a Class D felony. He received an agreed-upon life sentence for the murder
conviction and a consecutive four-year sentence for the evading arrest conviction. The
petitioner filed a timely post-conviction petition, alleging that trial counsel performed
deficiently in investigating his mental health and in advising him to accept the plea offer.
After a thorough review of the record, we conclude that the petitioner has not established
that he received the ineffective assistance of counsel, and we affirm the judgment of the
post-conviction court.


 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 CAMILLE R.
MCMULLEN and ROGER A. PAGE, JJ., joined.

Douglas A. Trant, Knoxville, Tennessee, for the appellant, Dimitrie Colbert.

Herbert H. Slatery III, Attorney General and Reporter; J. Ross Dyer, Senior Counsel;
Amy P. Weirich, District Attorney General; and Josh Corman, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                        OPINION

                     FACTUAL AND PROCEDURAL HISTORY

        The general facts and circumstances surrounding the murder were summarized by
the prosecutor at the hearing on the plea agreement, which was introduced as an exhibit at
the post-conviction hearing. According to the prosecutor, the petitioner killed the victim,
his girlfriend Janette Corria, after abducting her:

              The facts giving rise to the indictment had the matter gone to
              trial would be that on August 28, 2011, at approximately 3:15
              a.m., Memphis police received a call claiming Dimitrie
              Colbert had killed his girlfriend . . . and a body was in the
              back of Dimitrie Colbert=s 2007 Ford 500 located 262 Chelsea
              here in Shelby County, Tennessee. There was a lengthy
              pursuit that ensued. The Ford driven by Dimitrie Colbert
              wrecked at Winchester and North Lauderdale, and after a
              short foot pursuit Colbert was taken into custody. [The
              victim] was found in the rear passenger floorboard.
              Paramedics made the scene and pronounced her dead at 4:20
              a.m. She was taken to the Regional Forensic Center where
              Dr. Funte ruled the death a homicide due to several things [B]
              they couldn=t really decide. Cause of death was determined
              to be homicidal violence. Dimitrie Colbert was taken to
              Homicide Office where he gave a statement admitting to
              having sexual relations, beating, shooting, choking, and
              running over [the victim] with his vehicle before she finally
              died. At one point she escaped and ran to somebody for help.
               The person would not help her. He forced her back into his
              car. It was learned that [the victim] showed up at her home
              at 7285 Holler here in Shelby County, Tennessee, around
              10:30 p.m. on August 27th. The last person she was seen
              with was Dimitrie Colbert. [The victim=s] purse, cell phone
              and a white T-shirt w[ere] found at the side of her house.

       A more detailed account of the events that led to the victim=s death was contained
in the petitioner=s statement to police. The petitioner was apprehended a short distance
from his vehicle, which still contained the victim=s body. He spent the day at the police
station, speaking with investigators and eventually taking them to the crime scenes. The
petitioner then signed a formal statement detailing the victim=s death:
                      About 8 pm I parked about three or four houses down
               from her house but she didn=t get home until around 10:50
               something. She pulled up in a white car with some guy
               driving. I knew that it was a guy from her job, I think his
               name is Vinny. That=s the name that she had in her phone.
               He asked her was she going to be ok because he saw my car
               pull up and he saw me get out and run up to her and give her a
               hug. She told him (Vinny) that she would be ok when he
               asked. We kissed and started talking. We went to the side
               of the house and I was asking where what [sic] was going on
               and she said that the guy was just a friend.

                    We were both telling each other how much we missed
             each other. From that point on we started kissing and that=s
             when she took off her handbag and she had raised my shirt up
             and I think I took it off, or maybe she did it. At some point
             she had my shirt in her hands. We was fixing to have sex on
             the side of her house but she was saying that she didn=t want
             to do it outside. I asked her if she wanted to go to the car
             instead and she said yes.

                     We went to the car and I drove off to another
             neighborhood and we had sex. The neighborhood was
             somewhere off of Riverdale, over by the old Ryans. After
             we finished having sex we started talking some more. I was
             telling her that I wasn=t going to hurt her. She was saying
             that she was scared and she was telling me that I was going to
             get in trouble because she was supposed to have been home
             by 11. But once we got to talking she said that she was going
             to text her dad and say that she was on the way. We just
             started talking and then she said that she was going to just call
             her dad and tell him that she was going to move in with me.

                    After we had sex we got on the interstate and we talked
             some more. I asked her for her phone and she gave it to me
             and said that she had nothing to hide. I seen that some dude
             had texted her and it said something like Ababy, I=m outside.@
             So after that I mugged her a little, not to hard, just a little.
             We were on the expressway and this was somewhere before

                                           3
we got to Getwell. That was the last physical altercation
until we got to Arkansas.

        Once we got to Arkansas I noticed that I was running
low on fuel and that I had to go get some gas. I had asked
her if I could trust her to not try to do something stupid when
we stopped for gas and as soon as I got out of the car at the
gas station, she got out and ran to some guy at the gas pump.
She ran up to him and was asking him for help, saying Ahelp
me, help me@ and they was just looking at her. So I went up
to her from behind and grabbed her around her waist and
picked her up a little and then I set her down and she walked
with me to the car. We got in the car and left out of the gas
station and we just started driving around random
neighborhoods because I felt that someone was following me
from the gas station. While we was driving around I told her
that I was going to have to put her in the trunk and go get
some gas so that she wouldn=t be yelling and try something
stupid.

        I had left and we kept driving and then I ended up on a
very dark road and I pulled over to the side. We just started
talking and she was telling me that she wanted to get married,
that she loved me and that she was sorry for what she did, that
she was just hurt. She said that she only loved me and she
asked about our kids that we were going to have. Then after
that I was telling her to be quiet and then I was telling her that
I was going to kill her and then kill myself. Then I started
smacking her in the face before I started punching her
because I really didn=t want to hit her with my fist, now I only
hit her once with my fist. I remembered that I had a BB gun in
the trunk. I made her come out of the car with me and I
grabbed her by the hand and pulled her out on my side. She
thought that I was going to put her in the trunk to suffocate
her and she started freaking out. I opened and she was telling
me not to put her in the trunk and she calmed down when she
saw that I was only getting the BB gun out. We had got back
in the car and that=s when I pumped my BB gun about 8-10
times and shot her in the neck, on her left side. As soon as I
shot her a big ball came popping out of her skin, it was a little

                               4
knot, a little smaller than a golf ball. It was squirting blood
out of it. I turned the inside car light on to take a picture of
her and I sent it to my mom. During this same time, I ha[d]
told her to look in to the mirror because she looked terrible
and I wanted her to see what was happening to her. Before my
mom called, [the victim] was telling me to shoot myself as
well. She also said that she wanted to die slowly in my arms.
 She said this when she saw me start pumping the BB gun the
second time. She said that she would be dead in ten minutes.
 Right after my mom and everyone else started calling my
phone. I told them that I had done something bad, she wasn=t
dead yet but in my eyes it was still bad. That=s when I hit her
with the laptop in her head maybe twice. I think the bottom
part of it broke on the second hit.

        That=s when I got my BB gun again and I pumped it
about 15 times or so and I shot her on the other side of the
neck I think. I just know that I put it up to her neck and
pulled the trigger. I pumped the BB gun about 8-10 times
again, I was trying to hurry up and get it over with because I
was scared, panicked, and stuff. I didn=t want anyone to pull
up and see what was going on. I shot her in the ear, the right
one. I had tried to put the BB gun in her mouth after I shot her
the second time, but she wouldn=t open her mouth, so that=s
why I shot her in the ear. I was thinking that it would have
killed her faster if I shot her in the mouth. I was going to
stick the BB gun into the back of her throat and hopefully
killed her faster.

       After I shot her in the ear I started hitting her with the
back of the BB gun but it broke so I hit her with the trigger
part of it. It was probably four or five times. I hit her with the
laptop again about three or four more times and after that the
laptop was out of the picture. I got mad because none of this
was working. I looked into my backseat and saw the power
cord from the laptop so I reached back and grabbed. [The
victim] was in the passenger seat and took the cord and
wrapped it around her neck, but it wasn=t on there good. I
noticed that after the first time. I bent her over between the
driver and passenger seat so that the bottom part of her

                               5
stomach was on the middle part and her legs were still in the
front seat, and the rest of her was leaned over into the back
seat. I put a foot on her and tried to strangle her, but it started
hurting my hand, so I only did it for a minute or so. She was
kicking and stuff and the cord was hurting my hand so I let
her up.

        I put her back in the passenger seat and she was up,
like she was sitting in the seat, and her face was slightly
towards the window and that=s when I tried to do it a second
time. I had noticed that the cord was part on her eye instead
of her neck and that was probably why it wasn=t working so I
pulled it down to her neck and I wrapped it around her neck
like twice more and then I put my foot on her again and
started pulling. It was for the same amount of time as the
first time. My hand started hurting so I stopped again and I
saw that she still wasn=t dead.

        So after that when I realized that the second time didn=t
kill her I pushed her out of the car. When I pushed her out, I
backed up and dodged her on purpose but I didn=t see her so I
got out to look for her because I thought she had got up and
ran. After I got out I saw her and that her legs were moving
and so I returned to my vehicle and put it in drive and ran her
over. When I ran her over I put it in reverse and backed over
her. Then I put it in drive and ran over her again and then I
put it in reverse and backed over her again. At some point
when I was running her over, I think that she got stuck under
the car because when I came back for the last time to run her
over and I did run her over, my car got stuck and it was just
burning rubber and it wouldn=t go anywhere. I stopped and
got out and I didn=t see her body at the spot where I was
running her over at. I walked around my car looking for her
and I looked under my car and saw a foot under the front right
side. I saw her white sock and I grabbed her foot and pulled
her from underneath the car. I pulled her right by my car
door and put her in the back seat of my car. I didn=t want to
leave her.

       I drove off and went to a gas station and put a post on

                               6
Facebook, updating my status and it said AIf you are reading
this, it probably means that I am already dead, sorry God.@
At the gas station, I attempted to put on my security shirt and I
saw all the blood on it and I knew that I couldn=t put it on, so I
took it off. I just went in the gas station and decided to go in
fast because I had a lot of blood on my hands, they were both
covered in it, they looked like they were red. I went to the
register and said give me $20 on 17. I hurried and walked
out because I didn=t want them to see the blood on my shorts.
The guy working there looked at my hands and he looked like
he wanted to ask me what happened but I didn=t give him
time. I got the gas and left and headed back to Memphis.
My sister called and said that my mom wanted to see me and I
told her to meet me at my apartment.

        I stopped at McDonald=s on Union, near the Walgreens
and UT, and went through the drive thru and got a large
Powerade and the lady was asking me what happened to my
hands and I told her that I had got to fighting. When she
gave my change back to me she said that I was scaring her
with my hands. She was talking about the blood on my hands.
 It seemed like she was joking because she was smiling and
didn=t look scared.

        I left and went and met my mom at my apartment and
they were already there when I got there. We talked for
about fifteen minutes and they were asking where [the victim]
was and I told them, in my backseat and they told me to let the
window down. My mom didn=t want to see [the victim], but
my brother and sister looked in the back seat and saw her.
[The victim] was actually on the floor. After that I told them
to meet me at the shop on Dunlap because they was talking
to[o] loud and I didn=t want the neighbors hearing what was
going on. I went straight to the shop and my mom was trying
to talk to me and I seen a police car creeping up. The police
car was acting like they was just driving by and when they
went by me, I made a u-turn, and that=s when the chase
started.

       I was just going through street after street. I got on

                               7
              the expressway because I was going to her house and I was
              going to surrender at her house but I changed my mind. I
              was actually going to crash into their house, grab the BB gun,
              and hope that the police would shoot me. But I thought
              about it, I had already killed her and I remembered that she
              was saying that she was sorry that she was leaving her little
              brother Ernesto. She was saying this in the car before she
              died. Instead of that I just kept driving. We just went street
              to street and before I knew it I was over off of Summer and
              then it turned into North Parkway. I sped up to about 105
              and then I seen a police officer trying to put out some spikes
              so what I did was that I seen that he had the spikes out and I
              pretended that I was going to the right and when he moved
              them I went to the left and got around them.

                      That=s when the chase led to Main and I turned on
              some more streets and one of them I turned to[o] fast and I hit
              the water hydrant. I jumped out and took off running and
              while I was running I thought that the police were going to
              taser me or put the dogs on me so I immediately stopped,
              paused, and put my hands in the air. I thought that they
              might want me to get on the ground so I laid down and that=s
              when I looked up and I got hit. Some black officer hit me in
              the nuts and one hit me in the face. I don=t even remember
              getting in the police car. Then they brought me down here.
              The paramedics came out there and he looked at me and said
              that I was going to be fine and walked off.

        The petitioner=s statement also included responses to specific questions asked by
investigators. When asked when he decided to kill the victim, the petitioner stated that
he did so after she tried to run away at the gas station because he Acouldn=t trust her not to
say anything about the situation.@ The petitioner was charged with one count of first
degree (felony) murder, one count of first degree (premeditated) murder, one count of
especially aggravated kidnapping, one count of aggravated rape, one count of aggravated
kidnapping, and one count of evading arrest in a motor vehicle. After the trial court
denied the petitioner=s motion to dismiss based on venue and motion to suppress his
statement to police, the petitioner pled guilty to first degree (felony) murder and evading
arrest in a motor vehicle. He received a negotiated sentence of life and a consecutive
four-year term.


                                             8
       The petitioner filed a timely petition for post-conviction relief, and the petition was
amended by appointed counsel. At the post-conviction hearing, the petitioner introduced
witnesses to testify that he was genetically predisposed toward uncontrollable violence
and that he was incapable of forming the mens rea to commit first degree murder.

        Cindy Vnencak-Jones testified that she was the medical director of molecular
diagnostics at Vanderbilt Medical Center and that she was certified as a clinical molecular
geneticist. Dr. Vnencak-Jones testified that she studied a gene called Monoamine
Oxidase A, which produces enzymes to break down neurotransmitters. This gene
responds to a promoter region. Dr. Vnencak-Jones testified that the petitioner=s gene had
three repeats in the promoter region and that studies have confirmed that individuals who
have three repeats and who suffered from severe child abuse are more at risk for violent
behavior as adults. On cross-examination, she confirmed that both the genetic
predisposition and maltreatment had to be present to make an individual more disposed to
violence. She also acknowledged that an article she had published noted that any
evidence that a defendant was predisposed to be violent could be used by the prosecution
to further its case as well as by the defense in the sentencing phase of a capital case.

       Dr. John McCoy, a clinical and forensic psychologist, testified that he met with the
petitioner for two and one-half hours and reviewed the petitioner=s medical records from
prison. The petitioner was diagnosed by the medical staff of the prison with intermittent
explosive disorder, post-traumatic stress disorder, and depression. Dr. McCoy testified
that he believed that these diagnoses were not correct but that the petitioner=s symptoms
all stemmed from bipolar disorder. The petitioner had told Dr. McCoy that, between the
time he was eight and eleven years old, his stepfather would berate and intimidate him,
telling him things like Ayou=re not my son@ and Ayou are not good enough.@ The
petitioner=s stepfather also shoved him, and the petitioner saw his stepfather hit his
mother.

       Dr. McCoy testified that the petitioner would not be able to plan a homicide
because of his bipolar disorder. Instead, he would become suddenly violent in an
uncontrollable rage that could last for a whole day. Dr. McCoy acknowledged that he
knew of no violent outbursts from the petitioner prior to the crime and that he had been
paid $600 for the evaluation and $1,000 to testify. He testified that he was not familiar
with the petitioner=s statement to police, which described how he lay in wait for the
victim, stopped to get gas during the crime, decided to kill her at the gas station because
she ran away, and killed her with various implements over an extended period of time.
When confronted with the petitioner=s statement that he had been calm during the killing,
Dr. McCoy responded, A[W]e have to keep in mind that he has a severe mental disorder . .
. the lay term is that, you know, sometimes he is crazy.@ He further testified that he

                                             9
Ad[id]n=t believe@ the petitioner=s statement and insisted that the petitioner was Ain a blind
rage.@

        Dr. McCoy gave further testimony on a second hearing date, during which certain
of the petitioner=s mental health records were also admitted into evidence. Dr. McCoy
had again examined the petitioner and had examined certain mental evaluations made
prior to the plea agreement. He testified that the petitioner was psychotic and delusional,
believing, for example, that someone was tampering with his food and that he was
hearing the victim=s voice. He reiterated that the petitioner could not form the requisite
mental state for premeditated murder and testified that he thought the prior mental
evaluations were not relevant. He testified that the petitioner had been prone to anger
and had knocked a hole in a wall when he was twelve years old. Dr. McCoy stated that,
although the petitioner told police he was calm, schizophrenics and manics Aalways say
stuff like that.@ Dr. McCoy insisted that the petitioner was in a violent rage,
disorganized, and psychotic at the time of the murder. He testified that the petitioner=s
rage could affect his ability to deliberately kill or kidnap the victim.

        The petitioner testified that his attorneys did not know and did not advise him that
he was bipolar or that he had a genetic predisposition to violence. If he had known the
proper medical diagnoses, it would have affected his decision to plead guilty, and he
would only have pled guilty to second degree murder. The petitioner testified that he had
feelings of anger that he was unable to control the majority of the time. He confirmed
Dr. McCoy=s testimony regarding his stepfather=s treatment of him and stated that his
stepfather beat his mother. He testified that he did not plan to kill the victim. The
petitioner=s testimony was that he did plan a homicide that night but his plan was to kill
himself and not the victim and that he had tried to kill himself in the past by tying a sheet
around his neck or thinking of running his car into a house. The petitioner went to a
mental health facility when he was seventeen years old due to a misunderstanding
stemming from a teacher=s mistaken belief he had made an obscene gesture at her. The
petitioner testified that trial counsel did not tell him the difference between a sentence of
life without parole and a sentence of life with the possibility of parole. He
acknowledged that the State was seeking the death penalty, that he had confessed to the
crime, and that he had taken police to the crime scenes. He testified that trial counsel did
not discuss the strengths and weaknesses of his case with him and that he did not know
Awhat was going on@ when he entered the plea. He acknowledged that he had not gone
into a rage when he had a misunderstanding with his teacher or when he entered his plea.

       The prosecutor in the petitioner=s case testified that she met with defense counsel
numerous times about the case. She thought the case was very strong, and she had filed
a notice that the State would seek the death penalty. The prosecutor testified that the

                                            10
State intended to go to trial and that she offered the plea agreement Awith some degree of
hesitation.@ Although she would not have agreed to a life sentence, she reluctantly
offered a sentence of life plus four years in order to save the families the stress associated
with trial. She testified that she Awasn=t going to go any lower than that.@ The
prosecutor concluded that the testimony regarding the petitioner=s genetic predisposition
would not have affected her evaluation of the case, and she stated that if the petition were
granted, the State would again seek the death penalty.

       Trial counsel testified that he was the supervisor of the capital defense team at the
public defender=s office and that he had tried over thirty death penalty cases. He testified
that the petitioner=s case was not a good case to take to trial and that his main goal had
been to avoid the death penalty. He stated that he and his team would attempt to meet
with clients weekly. He met with the petitioner=s mother three to five times and with the
petitioner=s father once. Trial counsel testified that he had investigated the defendant=s
medical records and the possibility of child abuse and that the records did not indicate that
the petitioner had been abused or had mental illness. The petitioner=s mother was asked
about abuse, although trial counsel did not recall being present when she was asked.
Trial counsel first heard about the petitioner=s stepfather=s actions at the post-conviction
hearing. The petitioner seemed to be a Agood kid,@ and he had graduated high school.
Trial counsel recalled no evidence that the petitioner was prone to rage and instead noted
that his family described him as Ahappy[-]go[-]lucky@ and that his statement to police
indicated he was not enraged. Trial counsel testified that introducing evidence of the
petitioner=s predisposition to violence was not a good trial strategy.

       Trial counsel testified that he generally obtained a fairly extensive psychiatric
evaluation of his clients, although he did not recall the evaluation in the petitioner=s case.
During a subsequent hearing on the petition, the State introduced two mental health
evaluations which trial counsel had obtained from two different medical professionals.
Both evaluations concluded that the defendant was competent to stand trial, able to
understand the nature and wrongfulness of his actions, and able to form the mens rea
required for premeditated murder.

        Trial counsel testified that he generally went over plea agreements with his clients
several days before the plea date and that the petitioner was emotional at the plea hearing
but appeared to understand what was happening. He testified that he had initially tried to
get a plea agreement for a life sentence but the prosecution would not agree. He
discussed the possible penalties for first degree murder, including a life sentence, with the
petitioner. He told the petitioner that under current law, he would be eligible for parole
in fifty-one years, but he told the petitioner there was some hope that the law regarding
parole might change. He also discussed culpability with the defendant and discussed

                                            11
types of homicides. The petitioner decided to plead guilty to felony murder.

        The post-conviction court denied the petition for post-conviction relief. Finding
that the petitioner did not contest the voluntariness of the plea but alleged only ineffective
assistance of counsel, the post-conviction court nevertheless concluded that the plea was
voluntary.      The court found that trial counsel investigated potential mental health
defenses and obtained evaluations from two psychologists, both of whom concluded that
the petitioner could form the requisite intent for first degree murder. The petitioner pled
guilty to felony murder, which did not require the State to prove premeditation. The
post-conviction court further found that trial counsel was focused on avoiding the death
penalty when negotiating the plea and was successful in doing so. The post-conviction
court concluded that trial counsel=s performance was not deficient.

       The petitioner appeals the denial of the petition, asserting that he was denied the
effective assistance of counsel when trial counsel did not prepare a mental health defense
and when trial counsel advised him to plead guilty to a life sentence during plea
negotiations.1


                                          ANALYSIS

       The findings of fact made by a post-conviction court are conclusive on appeal
unless the evidence preponderates against them. Ward v. State, 315 S.W.3d 461, 465
(Tenn. 2010). AThe appellate court=s review of a legal issue, or of a mixed question of
law or fact such as a claim of ineffective assistance of counsel, is de novo with no
presumption of correctness.@ Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006).

       A post-conviction petitioner must establish that his conviction or sentence is void
or voidable due to the abridgment of any constitutional right. Id. Both the Sixth
Amendment to the United States Constitution and article I, section 9 of the Tennessee
Constitution guarantee the right to counsel, and the denial of the effective assistance of
counsel is a proper ground for post-conviction relief. Id. at 115-16. The petitioner bears
the burden of proving the allegations of fact in a post-conviction petition by clear and
convincing evidence. T.C.A. ' 40-30-110 (2010). AEvidence is clear and convincing
when there is no serious or substantial doubt about the correctness of the conclusions
drawn from the evidence.@ Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009)
(quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)).

       1
         The petitioner=s claims that his pleas were not knowing and voluntary are all premised on
attacks on the performance and advice of counsel.


                                              12
        The right to counsel encompasses Athe right to >reasonably effective= assistance,
that is, assistance >within the range of competence demanded of attorneys in criminal
cases.=@ Pylant v. State, 263 S.W.3d 854, 868 (Tenn. 2008) (quoting Strickland v. Washington, 466
U.S. 668, 687 (1984)). To show that relief is warranted on a claim of ineffective
assistance of counsel, the petitioner must establish both that counsel=s performance was
deficient and that the deficiency prejudiced the defense. Finch v. State, 226 S.W.3d 307,
315 (Tenn. 2007).

         To demonstrate deficiency, the petitioner must show that counsel=s performance
fell below an objective standard of reasonableness under prevailing professional norms.
Pylant, 263 S.W.3d at 868. AIn other words, the services rendered or the advice given must
have been below >the range of competence demanded of attorneys in criminal cases.=@
Grindstaff, 297 S.W.3d at 216 (quoting Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975)). AUpon our review of counsel=s performance, >we must make every effort to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel=s
conduct, and to evaluate the conduct from the perspective of counsel at that time.=@
Finch, 226 S.W.3d at 316 (quoting Howell v. State, 185 S.W.3d 319, 326 (Tenn. 2006)).
In evaluating counsel=s performance, Astrategic choices made after thorough investigation
of law and facts relevant to plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the limitations on investigation.@
Strickland v. Washington, 466 U.S. 668, 690-91 (1984). The defendant=s own statements
or actions may determine or substantially influence the reasonableness of counsel=s
investigation. Felts v. State, 354 S.W.3d 266, 277 (Tenn. 2011).

       When a petitioner challenges his guilty plea on the basis of ineffective assistance
of counsel, the petitioner must prove prejudice by showing that A>there is a reasonable
probability that, but for counsel=s errors, he would not have pled guilty and would have
insisted on going to trial.=@ Grindstaff, 297 S.W.3d at 216-17 (quoting Hill v. Lockhart,
474 U.S. 52, 59 (1985)). A>A reasonable probability is a probability sufficient to undermine confidence in the
outcome.=@ Vaughn, 202 S.W.3d at 116 (quoting Strickland, 466 U.S. at 694). The court must
decide whether any deficiency affected the outcome of the plea process. Grindstaff, 297
S.W.3d at 217. The petitioner is not required to demonstrate that the outcome at trial
would have been preferable to the plea. Id. Failure to show either deficiency or
prejudice precludes relief. Felts, 354 S.W.3d at 277.

        The petitioner contends that trial counsel performed deficiently in not investigating
or presenting a defense based on the petitioner=s genetic predisposition to violence and his
inability to form the correct mens rea. The post-conviction court found that trial counsel

                                                    13
investigated a potential defense based on mental illness or diminished capacity and that
two psychologists concluded the petitioner was competent to stand trial, able to appreciate
the nature and wrongfulness of his actions, and able to form the requisite mens rea.2
Trial counsel spoke with the defendant and his family about his medical history and any
possible child abuse, and he did not uncover anything helpful to the defense. See Felts, 354
S.W.3d at 277 (noting that the reasonableness of trial counsel=s investigation is informed by
information provided by the defendant). Accordingly, trial counsel=s performance in
investigating this defense was not deficient, and the petitioner is not entitled to relief.

        The petitioner next claims that his trial counsel did not explain to him that a life
sentence meant that he would likely never get out of jail, and he concludes that his plea
was not knowing or voluntary as a result. Trial counsel testified that he explained to the
petitioner what a life sentence entailed. He stated that he told the petitioner that under
current law, he would be eligible for parole in fifty-one years but that there was some
possibility that the law would change. At the hearing accepting the guilty plea, the trial
court told the petitioner he was agreeing to a sentence of life with the possibility of parole
and that under current law, he would be eligible for parole on that conviction in about
fifty-one years. The petitioner agreed at the plea hearing that he understood the
agreement was for a life sentence. He agreed that the plea agreement called for him to
serve a four-year sentence consecutively to the life sentence. The trial court found that
the transcript of the plea hearing demonstrated that the petitioner=s plea was knowing and
voluntary, and it concluded that the plea was made with the advice of competent counsel.
In agreeing to be sentenced to life in prison and a consecutive four years, the petitioner
avoided the possibility of the death sentence, which the State was pursuing armed with
the petitioner=s confession and physical evidence including the discovery of the victim=s
body in the petitioner=s vehicle. We conclude that the petitioner has not shown that trial
counsel gave him deficient advice regarding plea negotiations or that his guilty pleas were
as a result not knowing and voluntary.

                                       CONCLUSION



       2
         We accordingly note that the petitioner=s brief is simply incorrect in stating that the
unrebutted proof shows he could not form the requisite mens rea. The record contains two
evaluations by psychologists concluding that the petitioner was able to form the requisite mens
rea for premeditated murder. Further, while Dr. McCoy testified that, in his opinion, the
petitioner was incapable of committing premeditated murder, Dr. McCoy did not testify that the
petitioner could not form the intent for the underlying felony in the felony murder to which he
pled guilty. The petitioner himself testified that he was planning to kill himself that night.



                                              14
Based on the foregoing, we affirm the post-conviction court=s denial of relief.




                                           _________________________________
                                            JOHN EVERETT WILLIAMS, JUDGE




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