        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs May 13, 2014

           JAMES RICHARD BLUE, JR. V. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Davidson County
                      No. 2011-A-960    Mark Fishburn, Judge


                  No. M2013-02251-CCA-R3-PC - Filed June 10, 2014


The petitioner, James Richard Blue, Jr., appeals the denial of his petition for post-conviction
relief. The petitioner pled guilty to sale of a Schedule II controlled substance over .5 grams
and received an agreed-to sentence of twenty years in confinement as a Range III persistent
offender. On appeal, he contends that his guilty plea was not entered knowingly and
voluntarily due to the ineffective assistance of counsel. Specifically, he contends that trial
counsel was ineffective for allowing him to plead as a Range III offender when, because of
a failure to enter corrected judgments following a remand, he was in fact only a Range II
offender. Following review of the record, we affirm the denial of post-conviction relief.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J AMES C URWOOD
W ITT, J R. and R OGER A. P AGE, JJ., joined.

Kyle Mothershead, Nashville, Tennessee, for the appellant, James Richard Blue, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Dina Shabayek, Assistant
District Attorney General, for the appellee, State of Tennessee.




                                         OPINION




                                    Procedural History
        The brief factual basis for the petitioner’s conviction, as stated at the guilty plea
hearing, is “this matter took place here in Davidson County on November 4th of 2010 where
the [petitioner] sold a quantity of cocaine over .5 grams to an undercover police officer inside
Club Traks.” In a multi-count, multi-defendant indictment, the petitioner was originally
charged with the sale of .5 grams or more of a Schedule II controlled substance, possession
of .5 grams or more of a Schedule II controlled substance with the intent to sell in a drug-free
school zone, and possession of drug paraphernalia. The State filed a Notice of Enhanced
Punishment in the case, which established the petitioner’s status as a Range III persistent
offender. The State relied upon five prior convictions which arose from two separate cases:
96-C-1691 and 96-C-1373. Case 96-C-1691 involved two felony convictions, and Case 96-
C-1373 involved three felony convictions. The State subsequently offered and the petitioner
accepted a plea agreement in which the petitioner pled guilty to the sale of .5 grams or more
of a Schedule II controlled substance, and the remaining charges were dismissed. The
agreement also provided for a sentence of twenty years in confinement as a Range III
offender.

       At the guilty plea hearing, the trial court extensively covered the rights which the
petitioner would be waiving should he choose to enter the guilty plea. Under oath, the
petitioner acknowledged that he had read the plea petition and reviewed it with trial counsel,
stating that he fully understood the contents of the agreement. The court reviewed the
charges against the petitioner and noted the possible ranges of punishment for each crime
should the petitioner choose to proceed to trial. The petitioner again acknowledged that he
understood the charges and the possible sentences related to each of the separate charges.
He testified that he understood that he was pleading guilty to one offense, with the others
being dismissed, and that he understood the sentence which would be imposed pursuant to
the plea agreement.

        The petitioner stated on the record in the plea admission hearing that he had no
complaints whatsoever with trial counsel’s representation of him during the case. He related
that he had an opportunity to discuss with trial counsel the facts and circumstances of the
case, the applicable law, and the State’s evidence against him. The petitioner testified that
trial counsel had answered any questions he had concerning the case. The trial court
accepted the guilty plea, and the petitioner began serving his sentence.

       Thereafter, the petitioner filed a timely pro se petition for post-conviction relief
alleging that his plea was not entered knowingly and voluntarily based upon the ineffective
assistance of counsel. Following the appointment of counsel, an amended petition was filed.
The main allegation of ineffective assistance of counsel, although others were mentioned in
the petition, was that trial counsel failed to discover that the three convictions in Case 96-C-

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1373 were in “limbo” and therefore could not be used to enhance the petitioner’s range. The
petitioner contends that he, on the advice of trial counsel, actually accepted a plea agreement
as a Range III offender when in reality, he only qualified as a Range II offender.

       At the post-conviction hearing, the petitioner and trial counsel both offered testimony.
The petitioner testified that trial counsel was appointed to represent him in the case. The
petitioner was on bond, and he met with trial counsel three times in the six to nine months
the case was pending. The petitioner acknowledged that he and trial counsel did discuss the
case. During one of these meetings, trial counsel informed the petitioner that the State had
extended a plea offer which included a twenty-year sentence at 35%. The petitioner was
confused as to why the other co-defendants listed in the indictment had been offered
agreements with probation. When the petitioner questioned trial counsel, trial counsel
replied that “the D.A. was not going to come up off of . . . twenty years at 35 percent.”

         According to the petitioner, he asked trial counsel about going to trial and was told
that if he chose to go to trial, it would be a “short trial.” The petitioner also testified that trial
counsel failed to tell him possible punishment ranges if he chose to go to trial. The petitioner
stated that “[i]t’s not that I really wanted to go to trial, it’s just I would have got a better order
[than twenty years in confinement.]” Although he could not posit any possible defense
strategies to combat the State’s evidence, the petitioner insisted that he believed he would
have been successful if he had proceeded to trial. He stated that he basically felt that trial
counsel had not really represented him.

        The petitioner testified that he did not understand the ranges of punishment he faced
for the various charges for which he was indicted. He acknowledged that he stated that he
did understand at the guilty plea hearing. He also asserted that he lied at the guilty plea
hearing when he said that he had no problems with trial counsel’s performance. According
to him, he had earlier told trial counsel that he planned to tell the court about the issues with
his representation, and trial counsel responded, “You better not.” Trial counsel vehemently
denied making the comment. The petitioner further testified that, in spite of what he said at
the guilty plea hearing, he actually did not want to enter the plea but wanted to go to trial.

        The petitioner testified that trial counsel brought him some of the discovery materials
later in the representation. He claimed that he did not receive all of them until after he was
in the Department of Correction. After he was incarcerated, the petitioner claimed that he
hired a private investigator to work on his case. At some point following his conviction, the
petitioner did receive all of the discovery materials, including the State’s Notice of Enhanced
Punishment. The notice listed a prior conviction in 2005 in Case 96-C-1691 for which the
petitioner was not convicted. However, the petitioner was convicted in 1998 in that case of
the charges listed. The State erred by listing the date of conviction of a co-defendant in the

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case. Regardless of that error, the petitioner did acknowledge that he had five prior
convictions in two cases. However, he testified that, because of a technicality, he now
believed that only two were valid convictions. Accordingly, he felt that trial counsel was
ineffective for allowing him to accept a plea agreement as a Range III offender.

       Trial counsel also testified at the hearing that he represented the petitioner from
general sessions court until the completion of the case. In contradiction to the petitioner’s
testimony, trial counsel testified that they met fifteen to twenty times, as well as
communicated during approximately twenty to thirty phone calls. Trial counsel informed the
petitioner that it was a very serious case and that it would be very difficult to formulate a
defense because the petitioner had sold the drugs to an undercover policeman, whom the
State planned to have testify at trial.

        Trial counsel testified that he met with the detective in the case multiple times during
the representation to try and get “some type of clemency” for the petitioner. Trial counsel
testified he also took other steps to try and shorten the petitioner’s sentence. However, the
district attorney was not receptive.

        Trial counsel stated that he verbally shared discovery with the petitioner. He noted
that it was a massive file, including all the documentation for all co-defendants in the case,
and trial counsel acknowledged that it was not until late in the representation that he actually
gave the petitioner physical copies of the materials. He believed he gave the copies to the
petitioner in December, prior to the February guilty plea. Trial counsel related that he “may
have taken a little bit long to [give the petitioner a physical copy of discovery] than possibly
can be considered proper” but noted that he had already verbally discussed the discovery with
the petitioner. Trial counsel felt that there was nothing of great importance contained in the
file. Most of the information related to the petitioner’s prior arrest record and was in no way
useful in formulating a defense strategy.

        Trial counsel testified that the petitioner’s case was set for March 2012. He clarified
that the petitioner never conveyed to him that he wanted to go to trial. Rather, trial counsel
simply set the case to gain the petitioner as much time as possible before going to jail. He
related that, had the petitioner actually wished to proceed to trial, he would have hired an
investigator and done more preparation on the case. Trial counsel related that he and the
petitioner discussed his options, and he told the petitioner that he did not believe it was a
good idea to go to trial. Trial counsel testified that the petitioner rejected the State’s original
plea offer. He then had more discussion with the State and was able to negotiate the offer
which the petitioner eventually accepted.

       During the argument portion of the hearing, the State conceded that the petitioner was

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correct in that the enumerated 2005 conviction on the notice of enhancement was in error.
However, it was not disputed that the petitioner did have five prior convictions in two
separate cases. Counsel for the petitioner argued that only two of those convictions were
valid and could be considered for range determination purposes.

        To support his argument, the petitioner relied upon this court’s opinion in his prior
post-conviction case. In James R. Blue v. State, No. M2002-00383-CCA-R3-PC, 2003 Tenn.
Crim. App. LEXIS 289, at *1 (Tenn. Crim. App. Apr. 1, 2003), this court noted that in Case
96-C-1373, the petitioner pled guilty to three Class B felony drug offenses. Pursuant to the
agreement, the petitioner received three ten-year sentences, which were to be served
concurrently. At the hearing, the petitioner requested that he be allowed to begin serving his
sentence the following day. The trial court allowed this with the specific condition that, if
the petitioner failed to report the following day, the trial court would run the sentences
consecutively instead of currently as the plea agreement specified. The petitioner failed to
report, and the trial court entered judgments of conviction reflecting consecutive sentencing.1
Id. at *3-4.

        Afterwards, the petitioner filed a petition for post-conviction relief challenging the
decision, but the post-conviction court denied relief. The petitioner then appealed to this
court, and it was concluded that the change in the sentencing was erroneous. Id. at *17. This
court reversed the change in sentences and remanded the case for entry of corrected
judgments which reflected concurrent sentencing. Id. at *22. Apparently, the trial court
failed to enter any corrected judgment forms. The petitioner contended, therefore, that the
judgments, as entered, were invalid because they were in violation of this court’s findings
and, accordingly, could not be used to enhance his range. If those convictions are not
considered, the petitioner actually qualifies only as a Range II offender.

       After hearing the evidence presented and arguments of the parties, the post-conviction
court entered a written order denying the petitioner relief. The petitioner has timely appealed
that decision.

                                                  Analysis



        1
         There is some confusion in the record over what sentences the trial court imposed. The record is
clear from the hearing that the trial court intended to make two of the three sentences consecutive if the
petitioner failed to return to court the following day, which would result in an effective twenty-year sentence.
However, the judgments in the record indicate that the three sentences were all ordered to be served
consecutively, which results in a thirty-year sentence. Regardless, a determination of which sentences
actually were entered is not relevant to our review, as this court in its earlier review ordered that the three
sentences be served concurrently.

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       On appeal, the petitioner frames his two issues for review as follows: (1) whether he
qualifies as Range II or Range III offender and (2) whether trial counsel was ineffective for
allowing the petitioner to accept a Range III plea agreement. The petitioner argues that he
qualifies only as a Range II offender and that trial counsel should have advised him of this
fact. Because trial counsel did not, the petitioner contends that his guilty plea was not
entered knowingly and voluntarily.

       In evaluating the knowing and voluntary nature of a guilty plea, the United States
Supreme Court has held that “[t]he standard was and remains whether the plea represents a
voluntary and intelligent choice among the alternative courses of action open to the
defendant.” North Carolina v. Alford, 400 U.S. 25, 31 (1970). In making this determination,
the reviewing court must look to the totality of the circumstances. State v. Turner, 919
S.W.2d 346, 353 (Tenn. Crim. App. 1995); see also Chamberlain v. State, 815 S.W.2d 534,
542 (Tenn. Crim. App. 1990). Indeed, a

       court charged with determining whether . . . pleas were “voluntary” and
       “intelligent” must look 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). Once a guilty plea has been
entered, effectiveness of counsel is relevant only to the extent that it affects the voluntariness
of the plea. In this respect, such claims of ineffective assistance necessarily implicate that
guilty pleas be voluntarily and intelligently made. Hill v. Lockhart, 474 U.S. 52, 56 (1985)
(citing Alford, 400 U.S. at 31).

        To succeed in a challenge for ineffective assistance of counsel, a petitioner must
demonstrate that 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). Under
Strickland v. Washington, 466 U.S. 668, 687 (1984), the petitioner must establish (1)
deficient representation and (2) prejudice resulting from the deficiency. In the context of a
guilty plea, to satisfy the second prong of Strickland, the 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). The petitioner is not entitled to the benefit of
hindsight, may not second-guess a reasonably-based trial strategy, and cannot criticize a

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sound, but unsuccessful, tactical decision made during the course of the proceeding. Adkins
v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). This deference to the tactical
decisions of trial counsel, however, is dependent upon a showing that the decisions were
made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App.
1992).

        The issues of deficient performance by counsel and possible prejudice to the defense
are mixed questions of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). “A
trial court’s findings of fact underlying a claim of ineffective assistance of counsel are
reviewed on appeal under a de novo standard, accompanied with a presumption that those
findings are correct unless the preponderance of the evidence is otherwise.” Fields v. State,
40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13(d)). However, conclusions of
law are reviewed under a purely de novo standard, with no presumption of correctness. Id.
at 458.

       In its order denying relief, the post-conviction court found that:

               Petitioner’s main argument that he had ineffective assistance of counsel
       is that he was incorrectly advised that he was a Range III offender with five
       prior felony convictions. . . .

              However, the Court of Criminal Appeals has ruled that a court’s failure
       to enter a final order is harmless if there is an oral pronouncement of the order
       from the bench. . . . In Case 96-C-1373, the Court of Criminal Appeals issued
       a ruling remanding the case to the trial court for entry of the amended
       judgments making the sentences run concurrently instead of two running
       consecutively. . . .

               Additionally, inferior courts must abide by orders made from a superior
       court. . . . A trial court has no authority to refuse to obey an order by the
       appellate court on remand. The slightest deviation from this rigid rule would
       disrupt and destroy the sanctity of the judicial process. . . . There would be no
       finality or stability in the law and the court system would be chaotic in its
       operation and unstable and inconsistent in its decision. . . . The trial court in
       Case 96-C-1373 ha[d] no authority to ignore the order from the Court of
       Criminal Appeals ordering the entry of amended judgments in the case.

             Since the Court of Criminal Appeals merely remanded the case for entry
       of the amended judgment[s] instead of reversing the convictions, the
       convictions are valid and are not affected by the trial court’s failure to enter the

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       amended judgments.       Consequently, Petitioner has five prior felony
       convictions, thus, making him a Range III offender for sentencing purposes.

        Again, on appeal, the petitioner limits his argument regarding ineffective assistance
of counsel and the voluntariness of his guilty plea to his challenge of his status as a Range
III offender. However, after reviewing the record, we find nothing in the record which
preponderates against the post-conviction court’s findings. The petitioner’s attempt to
circumvent his guilty plea by asserting a technical argument such as this is not well taken.
The petitioner was well aware of the number of prior convictions that he had amassed when
he stood before the court and entered the plea of guilty.

       Initially, we note that the petitioner has actually failed to establish that the amended
judgments of conviction were never entered. The exhibits portion of the record contains six
judgments of conviction in Case number 96-C-1373. Three of those reflect concurrent
sentences, the others reflect consecutive sentences. Each of the six judgments is dated
September 24, 1998. We have no way of knowing which set of judgments were entered first.
Specifically, with nothing more to go on than these forms, it is not sufficiently clear to
establish that amended judgments of convictions were not entered and back-dated to the
original entry date. It is the petitioner’s burden to establish his entitlement to relief.
Moreover, we would note that clearly the petitioner was not required to serve his three ten-
year sentences in that case consecutively.

        We agree with the post-conviction court’s conclusion that the petitioner is in fact a
Range III offender. We also agree that if the judgments in question were not actually valid,
he would qualify only as a Range II offender. However, that is not the case before us
presently. This court, in Case number 96-C-1373, did not invalidate the convictions, it
merely remanded for a change in sentencing, a change which incidently benefitted the
petitioner greatly. The convictions themselves were never reversed. Basically, this court’s
ruling served only to reinstate the petitioner’s original concurrent sentences. And while the
trial court may have neglected to ensure that the amended judgments were entered, that in no
way affects the validity of the actual convictions. Those convictions being valid mean that
the petitioner is a Range III offender because he has five prior felony convictions on his
record. Based upon that finding, there was no deficiency in trial counsel’s performance for
advising the petitioner to accept the agreement.

       The record establishes that trial counsel represented the petitioner in an effective
manner. Trial counsel met with the petitioner multiple times and discussed the case and
possible defenses. Trial counsel advised the petitioner accurately of his choices and chances
of success with each option. According to his testimony, trial counsel went above and
beyond in order to ensure that the petitioner received the lowest possible sentence that could

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be obtained.

        Even had we found that deficiency was established, the petitioner would be challenged
to establish the prejudice prong of his claim. Here, the petitioner was facing two serious
felony charges, as well as a misdemeanor. In addition to the possible misdemeanor sentence,
the petitioner faced two possible convictions and sentences of eight to thirty years each. The
transcript of the plea hearing and trial counsel’s testimony at the post-conviction hearing
establish that the petitioner wanted to enter the plea. He was aware of the consequences and
the possible sentences. Based upon the record and trial counsel’s testimony relating to the
State’s case against the petitioner, it appears that if the petitioner had chosen to go to trial,
he faced an almost certain conviction of the multiple charges. The petitioner in fact
acknowledged that he did not really want to proceed to trial, he just wanted a shorter sentence
than he agreed to accept. That does not entitle him to post-conviction relief.

       On the record before us, we can reach no other conclusion than that the petitioner
entered his guilty plea knowingly and voluntarily. He stood before the trial court and stated
his understanding of the agreement and his desire to enter the plea. The petitioner may not
now disavow his sworn testimony.

                                       CONCLUSION

       Based upon the foregoing, the denial of post-conviction relief is affirmed.




                                                     _________________________________

                                                     JOHN EVERETT WILLIAMS, JUDGE




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