         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs October 15, 2003

                  ANDREW MOORE v. STATE OF TENNESSEE

             Post-Conviction Appeal from the Circuit Court for Bedford County
                              No. 9038 Lee Russell, Judge



                   No. M2003-00332-CCA-R3-PC - Filed February 17, 2004


        The petitioner, Andrew Eakin Moore, entered an open plea of guilty to three counts of
attempted aggravated robbery, two counts of aggravated assault, and one count of resisting arrest.
As a result of the guilty pleas, the petitioner received an effective sentence of ten years on all six
counts, but the petitioner was ordered to serve 365 days in jail and then be placed on community
corrections for the balance of the sentence. Following his release from the jail sentence, the
petitioner violated his community corrections sentence and was ordered to serve the balance of the
sentence. In this post-conviction proceeding, the petitioner attacks his conviction on the basis of
ineffective assistance of counsel. We affirm the post-conviction court’s dismissal of the petition.



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

JERRY L. SMITH , J., delivered the opinion of the court, in which DAVID G. HAYES and THOMAS T.
WOODALL, JJ., joined.

N. Andy Myrick, Jr., Fayetteville, Tennessee for the appellant, Andrew Moore.

Paul G. Summers, Attorney General & Reporter; Renee W. Turner, Assistant Attorney General;
Mike McCown, District Attorney General; and Michael Randles, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                                     OPINION


                                              Factual Background


        In November of 2000, the petitioner was indicted by the Bedford County Grand Jury on three
counts of attempted aggravated robbery, two counts of aggravated assault, and one count of resisting
arrest. Pursuant to settlement with the State, the petitioner entered an open plea of guilty to the
indictment. During the plea hearing, the prosecutor stated that if the case had gone to trial, the State
would have proven that the petitioner attempted to rob a Food Lion grocery store in Shelbyville,
Tennessee, by entering the store, brandishing a razor blade, and demanding money from two women
working behind a counter. When the clerks did not comply with the petitioner’s request, he ran from
the store. The police responded shortly thereafter and witnessed the petitioner leaving a tanning
salon located in the same shopping mall as the Food Lion store. It was later discovered that the
petitioner had also unsuccessfully attempted to rob the clerk in the tanning salon. After a brief
pursuit, the petitioner was apprehended. During the arrest, the petitioner struggled with the police.
The petitioner agreed that these were the facts that the State would attempt to prove at trial.

          On March 1, 2001, following a sentencing hearing, the petitioner was sentenced to: (1) five
years for the attempted aggravated robbery and five years for aggravated assault, both of which were
based on conduct which occurred at the tanning salon, to be served concurrently; (2) eleven months
and twenty-nine days at seventy-five percent for resisting arrest, to be served concurrently to the
charges stemming from the conduct at the tanning salon; and (3) five years for the attempted
aggravated robbery and five years for the aggravated assault, both of which were based on conduct
that occurred at Food Lion, to be served concurrently. The judge ordered the petitioner to serve the
two effective five year sentences consecutively, for a total effective sentence of ten years on all
counts contained in the indictment. However, the trial court allowed the petitioner to serve 365 days
in jail, rather than the Department of Correction, and then provided for the petitioner’s release on
community corrections for the balance of the sentence.1

        The petitioner did not appeal the sentencing hearing. The petitioner served his jail time and
was released on community corrections. Several hours after his release from jail, however, the
petitioner was involved in an altercation with a drug dealer in Knoxville after attempting to purchase
illegal drugs. A revocation warrant was issued, and the petitioner pled guilty to violation of his
community corrections. By agreement, the petitioner received no time in addition to his original ten-
year sentence.


         1
          It is questionable as to whether the petitioner was ever eligible for community corrections in the first place.
His convictions for crimes of violence using a weapon would ordinarily disqualify him from such a program unless his
mental health problems and substance abuse might make him otherwise eligible. Tenn. Code Ann. § 40-36-106.
However, since the community corrections sentence has been revoked and the post-conviction petition addresses the
original guilty plea, this potential issue is moot.

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        The petitioner subsequently filed a pro se petition for post-conviction relief, primarily on the
basis of ineffective assistance of counsel. Counsel was appointed, the petition was amended, and,
following an evidentiary hearing, the petition was dismissed by the trial court.



                                       Post-Conviction Hearing

        An evidentiary hearing was held on the post-conviction petition on February 7, 2002. The
petition was dismissed after the post-conviction court heard testimony from the petitioner and trial
counsel. The evidence at the hearing consisted of the following.

       The petitioner testified that, at the time of the hearing, he was incarcerated in the Tennessee
Department of Correction. He recounted his original charges and sentencing, and reported that he
was serving the balance of his effective ten year sentence as a result of violating the terms of his
community corrections.

        The petitioner testified that he met with trial counsel only once for about “twenty to thirty
minutes” prior to the entry of the guilty plea. The petitioner expressed to trial counsel that he felt
that it would be a good idea to allow the trial court to sentence him so that he could appeal his
sentence. He also felt that it might be possible to get the aggravated assault counts dismissed
because aggravated robbery “already had . . . an element of aggravated, . . . assault in it.” According
to the petitioner, trial counsel “basically said that there’s nothing we can do about that. It’s just the
way it was and you’re going to have to go ahead and plead to it.” As a result of the conversation
with his trial counsel, the petitioner agreed to proceed to plead guilty to the open indictment.
However, the petitioner stated that had he known at the time that he could not have been convicted
of both attempted aggravated robbery and aggravated assault, he would not have pled guilty to all
the charges.

         The petitioner met with trial counsel again after the plea acceptance hearing and before his
sentencing hearing. At this meeting, the two discussed the possibility of a community corrections
sentence as well as the state of the petitioner’s mental health. The petitioner told trial counsel that
he had a history of mental and emotional problems and that he was diagnosed with bipolar disorder
and anxiety disorder two years prior to the offense. During his lifetime, the petitioner was
hospitalized at least two times for mental and emotional problems, once when he was fourteen years
old and once when he was eighteen years old. The petitioner also suffered from alcohol abuse and
was spending time in a treatment center in Shelbyville prior to the offenses which are the subject of
the petition. At the sentencing hearing, trial counsel called the petitioner’s mother and girlfriend to
testify regarding his mental condition at the sentencing hearing, but no doctors were called to testify.
After the sentencing hearing, the petitioner claims that trial counsel did not tell him that he could
appeal the sentence.




                                                  -3-
        On cross-examination, the petitioner admitted that prior to the entry of the guilty plea, he was
aware that the State’s offer was to plead to the open indictment and that the State would not accept
trial counsel’s request to dismiss the aggravated assault charges. The petitioner also agreed that the
aggravated assault convictions did not add any additional time to his sentence and that he was happy
with the community corrections sentence he received, but that he felt like the ten year sentence was
excessive because the trial court improperly applied enhancement factors. Further, the petitioner
admitted that when the trial judge asked the petitioner at the sentencing hearing if he had any
questions, he did not ask any questions because he did not have any.

        Trial counsel testified regarding his experience as an assistant public defender. At the time
of the plea and sentencing, trial counsel had been licensed to practice law for approximately thirteen
or fourteen years, had an extensive background in criminal law, and had conducted over 200 jury
trials.

       Trial counsel testified that he discussed the case with the petitioner prior to the entry of the
open plea. When asked if he and the petitioner discussed the issue of whether the petitioner could
be convicted of both the attempted aggravated robbery and the aggravated assault, trial counsel
explained that:

       I know we discussed it. But before - - the State made an offer. . ., which was a to-
       serve sentence, that . . . [the petitioner] was not willing to accept. . . . [The
       petitioner] thought he should be given some type of split sentence or some type of
       community release. I explained to . . . [the petitioner] that the point had come in his
       case to where we could either do actually one of three things. One is to accept the
       state’s offer which means it would be a to-serve sentence and no application for
       alternative sentencing. The second option would be to plead open to the indictment.
       And in that case, he’d have to plead guilty to all counts in the indictment. And the
       other option was to set the case for trial which was . . . [the petitioner] didn’t want
       to do.

         Prior to the plea, trial counsel tried unsuccessfully to negotiate a sentence with the State in
which the petitioner would not have to plead to all counts in the indictment. Trial counsel further
testified that the petitioner then made the decision to plead to the open indictment after his advice.
Trial counsel did not feel that the petitioner received any additional jail time for the aggravated
assault convictions because those sentences were to run concurrently with the sentences for the
attempted aggravated robbery convictions. Although trial counsel was displeased with the trial
court’s application of several enhancement factors, he did not recommend appealing the sentence
because of the generally favorable outcome. Trial counsel felt that he was successful in introducing
a significant amount of evidence regarding the petitioner’s mental health history and that he felt the
trial court took this evidence into consideration during sentencing. Trial counsel was under the
impression that both the petitioner and his family were happy with the outcome of the sentencing
hearing and that the petitioner did not express any desire to appeal his sentence. Further, trial
counsel testified that the petitioner understood if he challenged the application of the enhancement


                                                  -4-
factors on appeal and the court of criminal appeals agreed with his position, he risked the possibility
of receiving a sentence in the penitentiary.

       At the conclusion of the testimony, the post-conviction court made the following statement:

       I do not believe that anything was done by . . . [trial counsel] to discourage this
       defendant from asking any questions. I do believe during the plea acceptance hearing
       and I certainly believe that there was a consideration of the possibility of an appeal
       and that the reason there wasn’t an appeal was the result was so good from the
       defendant’s point of view. I mean, I don’t think the defendant or anybody else at that
       point expected, and, certainly, I did not expect the defendant to do what he did
       immediately or almost immediately upon being released from jail. I think probably
       everybody in the courtroom was surprised that he wasn’t going to do any penitentiary
       time at all for what he had done.

        The post-conviction court subsequently denied the petition for post-conviction relief. On
appeal, the petitioner seeks a determination as to whether he was denied effective assistance of
counsel because counsel: (1) allowed the petitioner to plead guilty to both attempted aggravated
robbery and aggravated assault, two offenses that should have merged, which resulted in an
involuntary guilty plea; (2) failed to object to the court’s application of several enhancement factors;
and (3) failed to adequately investigate the petitioner’s mental condition.

                                Post-Conviction Standard of Review

         The post-conviction court’s findings of fact are conclusive on appeal unless the evidence
preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). During our review
of the issues raised, we will afford those findings of fact the weight of a jury verdict, and this Court
is bound by the post-conviction court’s findings unless the evidence in the record preponderates
against those findings. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State, 958
S.W.2d 138, 147 (Tenn. Crim. App. 1997). This Court may not re-weigh or re-evaluate the evidence,
nor substitute its inferences for those drawn by the post-conviction court. See State v. Honeycutt,
54 S.W.3d 762, 766 (Tenn. 2001). However, the post-conviction court’s conclusions of law are
reviewed under a purely de novo standard with no presumption of correctness. See Fields v. State,
40 S.W.3d 450, 458 (Tenn. 2001).


                                  Ineffective Assistance of Counsel

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, the petitioner bears the burden of showing that (a) the services rendered by trial counsel
were deficient and (b) that the deficient performance was prejudicial. See Powers v. State, 942
S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient performance, the
petitioner must show that the services rendered or the advice given was below “the range of


                                                  -5-
competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). In order to demonstrate prejudice, the petitioner must show that there is a reasonable
probability that, but for counsel’s deficient performance, the result of the proceeding would have
been different. See Strickland v. Washington, 466 U.S. 668, 694 (1984). “Because a petitioner must
establish both prongs of the test to prevail on a claim of ineffective assistance of counsel, failure to
prove either deficient performance or resulting prejudice provides a sufficient basis to deny relief
on the claim.” Henley, 960 S.W.2d at 580.

        As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record preponderates
against the court’s findings. See id. at 578. However, our supreme court has “determined that issues
of deficient performance by counsel and possible prejudice to the defense are mixed questions of law
and fact . . . ; thus, [appellate] review of [these issues] is de novo” with no presumption of
correctness. Burns, 6 S.W.3d at 461.

       Furthermore, on claims of ineffective assistance of counsel, the petitioner is not entitled to
the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. 1994). This Court may
not second-guess a reasonably-based trial strategy, and we cannot grant relief based on a sound, but
unsuccessful, tactical decision made during the course of the proceedings. See id. However, such
deference to the tactical decisions of counsel applies only if counsel makes those decisions after
adequate preparation for the case. See Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App.
1992).

                                            A. Guilty Plea

        The petitioner complains that trial counsel was ineffective “in allowing him to receive
separate convictions for aggravated assault and attempted aggravated robbery” because aggravated
assault is a lesser-included offense of attempted aggravated robbery. As a result, the petitioner
claims that his guilty plea was not knowingly and intelligently entered. The State acknowledges that
the post-conviction court concluded that convictions could not be entered on both attempted
aggravated robbery and aggravated assault if the assault was incidental to the robbery. However, the
State argues that the petitioner suffered no prejudice as a result of the guilty plea because “even if
the aggravated assault cases were all dismissed because of the double jeopardy issue, the sentence
of ten years would have been the same because of the way in which the sentences for each indictment
were run concurrently with one another.”

        At the outset, we agree that aggravated assault is a lesser-included offense of aggravated
robbery under part (a) of the test announced in State v. Burns, 6 S.W.3d 453 (Tenn.1999). See State
v. Joel Christian Parker, No. M2001-00773-CCA-R3-CD, 2002 WL 31852850 (Tenn. Crim. App.
at Nashville, Dec. 18, 2002), perm. to appeal denied,(Tenn. May 5, 2003); State v. James Eric Alder,
No. M1999-02544-CCA-R3-CD, 2000 WL 1606588 (Tenn. Crim. App. at Nashville, Oct. 27, 2000);
State v. Jason Carter, No. M1998-00789-CCA-R3-CD, 2000 WL 515930 (Tenn. Crim. App. at
Nashville, Apr. 27, 2000), perm. to appeal denied, (Tenn. Nov. 20, 2000). However, the record does


                                                  -6-
not preponderate against the trial court’s finding that trial counsel was effective. Implicit in the post-
conviction court’s findings and conclusions was that the court accredited the testimony of trial
counsel rather than that of the petitioner. The trial court accepted as true the testimony of trial
counsel concerning the circumstances of the plea and the conversations leading up to that decision.
It is apparent that the motivating factor in the petitioner’s having pled guilty to an open indictment
was the possibility of a sentence to community corrections or some other alternative sentence.
Further, the testimony showed that trial counsel never discouraged the petitioner from asking
questions at the guilty plea hearing.

        We conclude therefore that the record supports the post-conviction court’s finding that the
petitioner entered his guilty plea voluntarily and knowingly. A claim of ineffective assistance of
counsel in the context of a guilty plea conviction is “only relevant to the degree that it shows that
[the] plea of guilty was not knowing and voluntary.” Housler v. State, 749 S.W.2d 758, 760 (Tenn.
Crim. App. 1988) (citing Sherrod v. State, 567 S.W.2d 482 (Tenn. Crim. App. 1978)). When
analyzing a guilty plea, we look to the federal standard announced in Boykin v. Alabama, 395 U.S.
238 (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. Boykin, 395 U.S. at 242. 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.

        The transcript of the guilty plea hearing reveals that the trial court carefully and correctly
informed the petitioner regarding his constitutional rights, and specifically asked if he understood
that he was waiving those rights by pleading guilty. The petitioner responded in the affirmative.
Further, he stated that he understood the plea agreement and the significance of the guilty plea
hearing, and was entering his guilty plea voluntarily. The trial court obviously believed that counsel
and the petitioner, as counsel testified, discussed the propriety of convictions for both attempted
aggravated robbery and aggravated assault arising out of the same incident and involving the same
victims. The trial judge’s comments reflect that he believed counsel’s testimony that the petitioner
pled guilty to all counts in the indictment to avoid trial and to avoid accepting the State’s plea
bargain offer that any guilty plea would include a totally incarcerative sentence. As a result the trial
court found, and we agree, that the petitioner knowingly and voluntarily entered his guilty plea.
Having done so the petitioner has waived any double jeopardy or due process claims arising from
his convictions. See, State v. McKinney, 74 S.W.3d 291 (Tenn. 2002); State v. Pendergrass, 937
S.W.2d 834 (Tenn. 1996); both holding that entry of a valid guilty plea waives any constitutional


                                                   -7-
inequalities except jurisdictional defects. We conclude, therefore, that the evidence shows that the
petitioner’s guilty plea was knowing and voluntary and that trial counsel was not ineffective in
counseling the petitioner to enter a guilty plea in order to receive the benefit of a possible community
corrections sentence. As a result of the entry of such a plea the petitioner has waived all non-
jurisdictional constitutional defects such as the identity of offenses issue he raises here. See State
v. McKinney, 74 S.W.3d 291 (Tenn. 2002) (holding entry of valid guilty plea waives all non-
jurisdictional constitutional inequalities .



                 B. Application of Enhancement Factors/Right to Appeal the Sentence

         The petitioner also argues on appeal that trial counsel was ineffective for failing to object to
the trial court’s application of several enhancement factors and failing to notify the petitioner that
he had a right to appeal the sentence. Specifically, the petitioner argues that trial counsel should
have objected to or appealed from the trial court’s application of the following enhancement factors:
(1) the petitioner’s history of previous convictions, Tenn. Code Ann. § 40-35-114(1);2 (2) the offense
involved more than one victim, Tenn. Code Ann. § 40-35-114(3); and (3) the petitioner had no
hesitation about committing a crime involving high risk to human life, Tenn. Code Ann. § 40-35-
114(10). The State counters, arguing that the record does not preponderate against the post-
conviction court’s determination that trial counsel’s representation of the petitioner was within the
range of competence demanded and that there was no prejudice to the petitioner because the sentence
would be the same whether or not the trial court improperly applied the enhancement factors.

        In order to determine the existence of prejudice in the sentencing process, we must logically
review the enhancement factors applied by the trial court in order to determine whether failure to
challenge them on appeal prejudiced the appellant. Under this review, the findings of fact of the
post-conviction court are conclusive unless the evidence preponderates against them. Tidwell v.
State, 922 S.W.2d 497, 499 (Tenn. 1996).

         The post-conviction court acknowledged that while the trial court probably improperly
applied enhancement factors (3) and (10), “the possible misapplication of the enhancing factors and
the failure to challenge the misapplication on appeal” did not result in any prejudice to the petitioner
because the effective sentence would be the same even without the application of enhancement
factors (3) and (10). The post-conviction court also concluded that the petitioner waived his right
to appeal the sentence directly. The record does not preponderate against these findings.



         2
            2002 Tennessee Public Acts, Chapter 849, section 2(c), which became effective after the petitioner’s
sentencing in this matter added a new subsection (1) to Tennessee Code Annotated section 40-35-114, relating to acts
of terrorism, and redesignated former subsections (1) to (22) as (2) to (23). Therefore, the petitioner’s complaints as to
the trial court’s application of enhancement factors (1), (3) and (10) correspond to the redesignated subsections of (2),
(4), and (11). However, because the application of the enhancement factors in this case occurred prior to the addition
of the new subsection (1), we will refer to the enhancement factors by their old designations.

                                                           -8-
        We acknowledge that the trial court improperly applied enhancement factors (3) and (10).
See State v. Makoka, 885 S.W.2d 366, 373 (Tenn. Crim. App. 1995) (holding that enhancement
factor (3) may not be applied to enhance a sentence when the defendant is separately convicted of
the offenses committed against each victim); State v. Hill, 885 S.W.2d 357, 363 (Tenn. Crim. App.
1994) (holding that high risk to human life is inherent in an aggravated assault). However, even in
light of the erroneous application of two enhancement factors, we cannot conclude that the court
erred in imposing the sentence it ordered for each offense or that the effective sentence would have
been different had the trial court not applied those enhancement factors. The trial court began with
a sentence of three years and enhanced that sentence to five years based on the application of
enhancement factors (1), (3), and (10). The petitioner and trial counsel acknowledged at the post-
conviction hearing that although trial counsel was not happy with the trial court’s application of
enhancement factors, he was delighted that the primary goal of keeping the petitioner out of the
penitentiary was accomplished. The petitioner did not appeal the sentence directly. We cannot
conclude that the record preponderates against the post-conviction court’s determination that the
misapplication of enhancement factors had no prejudice on the petitioner or that the petitioner was
deprived of his right to appeal the sentence. This issue has no merit.


                           C. Investigation of Petitioner’s Mental Health

        Finally, the petitioner argues that he received ineffective assistance of counsel because trial
counsel failed to adequately investigate the petitioner’s mental condition as a possible defense or
mitigating factor. The State disagrees, arguing that the post-conviction court accredited the
testimony of trial counsel and that “nothing the . . . [petitioner] claims on appeal in any way
undermines the correctness of the post-conviction court’s finding.”

         We must note at the outset that the petitioner’s brief cites no authority whatsoever in support
of this claim. Tennessee Court of Criminal Appeals Rule 10(b) states that “[i]ssues which are not
supported by argument, citation to authorities, or appropriate references to the record will be treated
as waived in this court.” Tenn. Ct. Crim. App. R 10(b). The petitioner, therefore, has waived this
assertion. Even if not waived by the petitioner’s failure to cite to authority, this issue has no merit.
Trial counsel elicited testimony from the petitioner, his mother, and his girlfriend. The trial court
heard the testimony and found that the petitioner’s mental health was a mitigating factor. There was
also evidence of the petitioner’s mental health contained in the pre-sentence report. Despite the
evidence, the trial court did not give great weight to the mental health of the petitioner as a
mitigating factor. The post-conviction court found that the petitioner’s mental health history was
provided in the pre-sentence report and was presented through testimony at the sentencing hearing.
The post-conviction court also found there was no proof at the evidentiary hearing as to what
evidence a mental health expert would have presented at sentencing which would have changed the
outcome of the sentencing hearing. The record does not preponderate against the post-conviction
court’s findings. Further, the petitioner has failed to establish that he suffered any prejudice as a
result of trial counsel’s representation.



                                                  -9-
                                             Conclusion


        After a thorough review of the record, we affirm the decision of the post-conviction court
dismissing the petition for post-conviction relief. The record supports this conclusion as well as the
concomitant determination that the petitioner failed to establish either that trial counsel was
ineffective or that he was prejudiced by counsel’s actions.



                                               ________________________________________
                                               JERRY L. SMITH




                                                -10-
