         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs November 12, 2008

                 WILLIE L. WATKINS v. STATE OF TENNESSEE

                      Appeal from the Circuit Court for Madison County
                            No. C-08-14    Roger A. Page, Judge



                  No. W2008-00852-CCA-R3-PC - Filed December 8, 2008


The petitioner, Willie L. Watkins, appeals from the Madison County Circuit Court’s denial of his
petition for post-conviction relief from his guilty-plea convictions of three counts of sale of one-half
gram or less of cocaine and resulting eight-year sentence. The petitioner contends that he received
the ineffective assistance of counsel and that he did not knowingly and voluntarily enter into the
guilty pleas. We affirm the judgment of the trial court.

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

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which ALAN E. GLENN and D. KELLY
THOMAS, JR., JJ., joined.

Joseph R. Taggart, Jackson, Tennessee, for the appellant, Willie L. Watkins.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney
General; James G. Woodall, District Attorney General; and Alfred Lynn Earls, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                              OPINION

        The record does not contain transcripts or judgments of the conviction proceedings, aside
from a copy of the plea agreement, which was an exhibit at the post-conviction hearing. However,
the following information about the procedural history of the conviction case appears in the
transcript of the post-conviction hearing. The petitioner entered guilty pleas to three counts of
selling one-half gram or less of cocaine on February 7, 2007. The plea agreement specified a
sentence of eight years of Community Corrections, with the issues whether the petitioner would
serve a period of shock incarceration and whether the petitioner would receive judicial diversion
reserved for the trial court. At the sentencing hearing, the trial court ordered six months of shock
incarceration and granted the petitioner’s request for judicial diversion. The petitioner later escaped
from custody. His probation was revoked, and the trial court ordered him to serve his eight-year
sentence in the Department of Correction.
        Following his incarceration, the petitioner filed this petition for post-conviction relief
claiming that he received the ineffective assistance of counsel. He asserted in his petition and
amended petition allegations of ineffective assistance of counsel and an unknowing and involuntary
guilty plea. The trial court appointed counsel and conducted a hearing on the allegations.

       At the post-conviction hearing, the petitioner testified that he retained trial counsel to
represent him and that he met with her one time before his plea hearing. He said that two months
passed between the time he met with trial counsel in her office and his court appearance.

        The petitioner testified that he thought he would only receive eight years of supervised
probation under the plea agreement because he had no prior record. He testified that he did not know
he would be incarcerated. He asked his attorney about a motion for discovery the same day he pled
guilty but never saw the motion. He said he never discussed the State’s evidence against him with
his attorney.

        On cross-examination, the petitioner was questioned whether a motion for continuance was
filed because he missed appointments with his trial attorney. He testified that he had asked trial
counsel to get a continuance of his case and that the only way she could do that was to say he had
missed appointments with her. He said he agreed in order to get the continuance. He acknowledged
he was jailed for missing appointments but said he went along with what his attorney said to get his
case continued.

        The petitioner acknowledged that he remembered reading and signing the plea agreement.
He acknowledged that on the bottom of the form was a statement that said that a sentencing hearing
to determine whether he would serve any shock incarceration time would be set at a later date. The
petitioner said that he did not remember reading the statement and that the only thing he saw on the
form was eight years of Community Corrections.

        The petitioner was further questioned on cross-examination whether he remembered the
judge questioning him at the plea hearing on whether the petitioner understood the plea and if this
was what the petitioner wanted to do. The petitioner testified that he told the judge that he
understood what he was doing and that it was what he wanted to do. The petitioner said that the
judge told him that he would bring him back “to see whether I get any shock treatment” but that this
was after he had entered his plea. He acknowledged that trial counsel was able to obtain judicial
diversion for him, even though he wanted probation. He said he did not understand that judicial
diversion meant he would have his record expunged.

         Trial counsel testified that she was retained by the petitioner to represent him for charges
involving sale and delivery of cocaine. She testified that she met with the petitioner approximately
four times in her office. She said that she filed a motion for discovery on or about November 13,
2006. She testified that she copied the material she received from the motion for discovery for the
petitioner and that he picked up the information. She said she knew he had picked up the
information because he was upset that the information did not reveal the identity of the confidential
informant. She said that she explained to the petitioner that if he wanted a plea agreement, the
district attorney general probably would not reveal the informant’s identity unless they went to trial.

                                                 -2-
She said the petitioner’s main concern was getting probation. She testified that she told the
petitioner that it was his decision whether he went to trial or agreed to enter the guilty plea.

        Trial counsel testified that she went over every item on the plea agreement with the
petitioner. She said the handwritten note regarding sentencing was on the form when she reviewed
it with the petitioner and when the petitioner signed it. She testified that the judge advised the
petitioner at the plea hearing about the rights he was giving up and made sure that the petitioner
understood he would be sentenced at a later date.

        Trial counsel testified that it was her idea to seek diversion once she looked at the petitioner’s
prior history. She testified that she explained to the petitioner that she would do her best to get the
result he wanted but that she made no guarantees. She said that once she discovered the petitioner
was eligible for diversion she tried to get it and did.

        On cross-examination, trial counsel testified that she filed a motion for a continuance in the
petitioner’s case because he had missed appointments with her. She said that she filed the motion
because she had received the presentence report but that the petitioner missed his appointments and
she had not been able to review the report with him. She testified that no appeal was filed in the
petitioner’s case. She said that she thought the petitioner was satisfied with the result reached.

       The trial court found that based on the record, the credibility of the witnesses, and the
evidence presented, the petitioner had not met the burden of proof required to establish his claims
and denied relief. The petitioner filed this appeal.

        The petitioner argues on appeal that trial counsel failed to provide the effective assistance
of counsel and that as a result, his pleas were not knowingly and voluntarily entered. The burden
in a post-conviction proceeding is on the petitioner to prove his grounds for relief by clear and
convincing evidence. T.C.A. § 40-30-110(f). On appeal, we are bound by the trial court’s findings
of fact unless we conclude that the evidence in the record preponderates against those findings.
Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001). Because they relate to mixed questions of law and
fact, we review the trial court’s conclusions as to whether counsel’s performance was deficient and
whether that deficiency was prejudicial under a de novo standard with no presumption of correctness.
Id. at 457.

        Under the Sixth Amendment, when a claim of ineffective assistance of counsel is made, the
burden is on the petitioner to show (1) that counsel’s performance was deficient and (2) that the
deficiency was prejudicial. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; see Lockhart v. Fretwell,
506 U.S. 364, 368-72, 113 S. Ct. 838, 842-44 (1993). In other words, a showing that counsel’s
performance falls below a reasonable standard is not enough; rather, the petitioner must also show
that but for the substandard performance, “the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. When a petitioner pleads guilty, he must show a
reasonable probability that, but for the errors of his counsel, he would not have pled guilty. See Hill
v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985); Adkins v. State, 911 S.W.2d 334, 349
(Tenn. Crim. App. 1994).

                                                   -3-
        The petitioner contends that he received the ineffective assistance of counsel because his
attorney did not effectively explain the guilty plea, that he did not understand the guilty plea included
the possibility of a period of incarceration, and that the plea agreement is ambiguous. The State
argues that trial counsel and the trial court reviewed the guilty plea form with the petitioner, showing
that the guilty plea could include a period of incarceration and that the petitioner knowingly and
voluntarily entered into the guilty plea.

         At the post-conviction hearing, trial counsel testified that she went over every item on the
guilty plea form. The form includes a statement, “Sentencing hearing as to ‘shock’ incarceration
amount, if any, and the issue of jud. diversion.” Counsel and the petitioner both testified that the
trial court questioned the petitioner about the guilty plea and whether the petitioner understood what
he was entering into and if that was what the petitioner wanted. The petitioner testified that when
the trial court asked him whether his attorney had reviewed the guilty plea with him and whether he
had read the document, he testified in the affirmative to both questions. The petitioner further
testified that the trial court told him he would have a future hearing on the issue of “shock
treatment.”

        In its order denying relief, the trial court accredited the testimony of trial counsel over that
of the petitioner and held that the petitioner had failed to establish his claims by clear and convincing
evidence. Upon review, we conclude that the evidence does not preponderate against the trial court’s
determination that the petitioner failed to establish that counsel’s performance was ineffective and
that the petitioner’s guilty pleas were unknowing and involuntary as a result.

        Based on the foregoing and the record as a whole, the judgment of the trial court is affirmed.



                                                        ___________________________________
                                                        JOSEPH M. TIPTON, PRESIDING JUDGE




                                                  -4-
