                                                                                          09/06/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs July 9, 2019

           DARION MERRIWEATHER v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                    No. 15-06277 J. Robert Carter, Jr., Judge


                             No. W2018-01373-CCA-R3-PC


The petitioner, Darion Merriweather, appeals the denial of his petition for post-conviction
relief, which petition challenged his guilty-pleaded conviction of carjacking, alleging that
he was deprived of the effective assistance of counsel and that his guilty plea was not
entered into knowingly and voluntarily. Because the record establishes that counsels’
performance was deficient and that the petitioner’s guilty plea was unknowing and
involuntary, we reverse the denial of post-conviction relief, vacate the petitioner’s guilty
plea, and remand for trial.

    Tenn. R. App. P. 3; Judgment of the Criminal Court Reversed; Vacated; and
                                    Remanded.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER, and J. ROSS DYER, JJ., joined.

Benjamin Israel, Memphis, Tennessee, for the appellant, Darion Merriweather.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Glen Baity, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

               The petitioner and two co-defendants were charged with, among other
things, carjacking the victim, Ronald Little. At the petitioner’s plea submission hearing,
the parties stipulated to the following facts:

              [O]n July the 10th, 2015, Ronald Little was driving a 2000
              Daewoo when he approached the stop sign at Palm and
              Marynelle located here in Shelby County, Tennessee. Three
                individuals came to his car, one flashed a silver and black
                handgun [and] demanded that the car be given. The three
                individuals were later identified to be William Farmer,
                Marsh[u]wn Brown and Dari[o]n Merriweather. They were
                caught in the vehicle by the police officers on Old Getwell
                Road.

Pursuant to the plea agreement, the trial court imposed a Range I sentence of 10 years’
incarceration, and the State dismissed the charges of employing a firearm during the
commission of a dangerous felony and evading arrest contained in the original indictment
as well as charges of aggravated robbery and evading arrest contained in a superseding
indictment.

               The petitioner filed a timely pro se petition for post-conviction relief. After
the appointment of counsel, the petitioner filed an amended petition for post-conviction
relief, alleging that “his guilty plea was not given knowingly and voluntarily.”1

               At the evidentiary hearing, trial counsel,2 who was admitted to the practice
of law in June of 2016, testified that he began practicing law and joined co-counsel’s law
firm about six months prior to the petitioner’s December 2016 trial. At the time of the
petitioner’s trial, trial counsel had “sat second chair for [co-counsel] on one trial,” but he
had never cross-examined a witness; the petitioner’s case was the first in which trial
counsel intended to act as first chair counsel. Trial counsel testified that he met the
petitioner for the first time on December 5, 2016, the day of the scheduled trial. Despite
having never previously met with the petitioner, trial counsel contended that he “was
extremely well prepared” for trial and “would have been ready to try th[e] case that day.”

              Trial counsel said that he prepared for trial by reviewing discovery
materials, visiting the crime scene, taking pictures, reviewing statements of the co-
defendants for inconsistencies, and reviewing the recording of the preliminary hearing.
His defense strategy was to call into doubt the eyewitness’ testimony based on the
distance from which she viewed the incident and to attack the testimony of the co-
1
         The amended petition in the record appears to be missing one or more pages. From the argument
provided, it appears that the petitioner also raised a claim of ineffective assistance of counsel although
that claim is not enumerated in the pages provided. Because the post-conviction court specifically
addressed that issue in its order denying relief, we will assume that the issue was properly raised in the
amended petition.
2
          Because the petitioner was represented by two attorneys, we will refer to the first chair attorney
as “trial counsel” and the second chair attorney as “co-counsel.”

                                                    -2-
defendants as being biased due to their having received favorable plea deals in exchange
for their testimony. He recalled that Mr. Little, the victim, and Carolyn Little, an
eyewitness, could identify the petitioner as one of the carjackers. He acknowledged that,
at a preliminary hearing, Mr. Little had misidentified the petitioner but asserted that, at
some point, Mr. Little had identified the petitioner from a photographic line up. Trial
counsel stated that he noted from the transcript of the preliminary hearing that Mr.
Little’s testimony was somewhat inconsistent. Trial counsel stated that the petitioner
asserted that he was not present during the carjacking but “was just in the car” at the time
of the arrests.

              Trial counsel acknowledged that he did not discuss the petitioner’s potential
testimony and the potential testimony of co-defendant William Farmer until his first
meeting with the petitioner on the day of the scheduled trial. Trial counsel explained that
Mr. Farmer had pleaded guilty, that trial counsel “was under the impression that [Mr.
Farmer] was going to be one of the witnesses,” and that, if Mr. Farmer had not testified,
then co-defendant Marshuwn Brown would have. Trial counsel acknowledged that he
did not know for certain whether the State intended to call Mr. Farmer as a witness, but
he assumed that Mr. Farmer would testify because he did not “think that [the State]
would have pled him out if he wasn’t going to testify.” He estimated that he talked with
the petitioner during their first and only trial strategy meeting for what “[c]ould have
been half an hour” about “the pros and cons at trial, the risks of trial, the likeliness that
we would have . . . of winning at trial, and what the sentencing could look like if we
lost.” Trial counsel acknowledged that the petitioner voiced a concern about accepting
the plea offer, but trial counsel asserted that the petitioner “also expressed misgivings
about going to trial.”

                Trial counsel explained that the State’s first plea offer provided for a
sentence of eight years to be served at 85 percent release eligibility but that he negotiated
a new plea agreement that provided for a sentence of 10 years with 30 percent release
eligibility. The State made the new plea offer on the day of the scheduled trial, and trial
counsel relayed the offer to the petitioner, explaining to the petitioner that he would be
able to seek parole after serving three years of his sentence. Trial counsel testified that, at
the time, he had never had a client who had appeared before the Parole Board, but he
nevertheless advised the petitioner to “get in to as many programs as you can” and do
“whatever you can [to] . . . make yourself a better person” and “you should have a good
chance of getting parole.” Trial counsel stated that it was his “understanding at the time”
that the petitioner would be granted parole as long as he avoided disciplinary issues while
incarcerated. Trial counsel acknowledged that he told the petitioner that “it [wa]s very
likely, that he ha[d a] strong possibility” of being granted parole. When asked whether
he guaranteed the petitioner parole, trial counsel responded, “I think what I said is he has
                                              -3-
-- it is very likely, that he has a strong possibility” of being granted parole at his first
parole hearing. He speculated that the petitioner’s being denied parole was “probably
because of things that happened when he’s been in TDOC.” He argued that the petitioner
would receive a second parole hearing “still long before he would have be[e]n looking at
parole on the original” plea offer.

              Trial counsel stated that, “[u]nder the circumstances,” he believed that the
petitioner should have “absolutely” taken the plea offer, explaining that the petitioner’s
case was going to be transferred to a different division of the court. Trial counsel advised
the petitioner that the case’s being transferred to a new division “changed the -- the
picture” because “there was no chance of anything . . . less than the maximum
consecutive” sentence if convicted, despite that the petitioner had no criminal history.

               Trial counsel stated that he did not file any pretrial motions because the
issues “were all jury questions” regarding witness credibility. He suspected that co-
counsel “may have filed a motion to suppress the identifications” made by the State’s
witnesses, but he anticipated that “the Judge probably would have let it . . . go to the
jury.” When asked if he had moved to suppress statements from the co-defendants, trial
counsel responded, “I don’t think that would require a motion. I think that would be a
hearsay objection.” He stated that both co-defendants gave statements identifying the
petitioner as the perpetrator, but, after reviewing his file, he acknowledged that Mr.
Farmer had refused to give a statement. He recalled that he “definitely advised [the
petitioner] that Mr. Farmer was going to testify.”

            Trial counsel stated that he was unaware of whether the petitioner suffered
from any mental health issues or whether the petitioner had undergone a mental
evaluation.

               During cross-examination, trial counsel stated that co-counsel was an
experienced trial attorney and that, although trial counsel was going to be the first chair
attorney in this case, co-counsel “was going to be [at trial] writing notes.” Despite
having never met with the petitioner before the day of the scheduled trial, trial counsel
asserted that he had done the legwork in this case. He contended that this was not a
complicated case, agreeing that the petitioner was in the stolen car when police stopped
it. The State’s original plea offer required the petitioner to plead guilty to the charges in
the superseding indictment in exchange for an eight-year sentence with 85 percent release
eligibility, and trial counsel stated that the petitioner “certainly understood the difference
between [eight] at 85 [percent] and 10 at 30 [percent].” Trial counsel noted that the
petitioner was “especially concerned about the risk of 12 [years] at 85 [percent].”


                                             -4-
               When the petitioner expressed a desire to be incarcerated at the Penal Farm,
trial counsel told the petitioner that he was unsure when the petitioner would be taken to
the Department of Correction (“TDOC”) from the Penal Farm due to the State’s
switching to new computer software. He told the petitioner, “Given the circumstances . .
. , how chaotic everything is in the jail, I have no idea how long it will be, it could be a
while.” Trial counsel also told the petitioner that “there [we]re people also on sentences
longer than six years that for whatever reason get kept in the Penal Farm.” He stated,
however, that the petitioner understood that there was no guarantee that he would be kept
at the Penal Farm for the duration of his sentence.

               Trial counsel stated that the petitioner’s primary concerns were the length
of his sentence and his parole eligibility. He said that he did not think that the petitioner
was concerned about being granted parole at the time he entered his plea because “he was
pretty confident that he was going to get paroled.” Although trial counsel stated that he
did not expressly promise the petitioner that he would be granted parole, he told the
petitioner that “he had a good shot at it, you know, a good likelihood” and that “he was a
good candidate” in part because “he had [n]ever been in trouble before.”

               When asked whether the petitioner had witnesses that he wished trial
counsel to interview, trial counsel stated, “So I think he . . . had some family members
who were going to say that he got in the car later on.” Trial counsel then stated that the
petitioner had no alibi witnesses. Despite having never spoken to the petitioner, trial
counsel testified that he did everything that the petitioner had asked in preparing for trial.

               On redirect examination, trial counsel explained that this was a
straightforward case because the petitioner had been identified by Mr. and Ms. Little and
had been implicated by a co-defendant’s statement. He recalled that he reviewed with the
petitioner Ms. Little’s statement in which she said that she “did not see them actually take
the car,” but “she did see them right beforehand, and saw them -- you know, making eyes
at the car.” Trial counsel estimated that approximately one to two hours passed from the
time of the carjacking to the time of the petitioner’s arrest.

               Co-counsel testified that he was retained to represent the petitioner on the
carjacking charge, but he could not recall specifically when he began working on the
petitioner’s case. Co-counsel was the attorney of record for the duration of the case, but
co-counsel stated that he and trial counsel were law partners and that he would have
discussed the petitioner’s case with trial counsel. In preparing for this case, co-counsel
talked with the petitioner, “got a copy of the indictment,” and “basically explain[ed] . . .
what was involved.” Co-counsel explained that trial counsel “got all of the discovery”
materials because “he was going to b[e] the one that was trying it.” Co-counsel stated
                                             -5-
that he did not prepare the petitioner to testify. It was his and trial counsel’s practice to
“discuss every case before [they] tr[ied] it,” but it was trial counsel’s responsibility to
discuss with the petitioner what evidence was likely to be admitted at trial. Co-counsel
explained that he and trial counsel “would have discussed any legal issues that . . . could
have been raised,” but trial counsel “would have been primarily responsible for pretty
much putting it together, the strategy, and the discovery and everything else like that.”
Co-counsel acknowledged that he was equally responsible for communicating the defense
position to the petitioner.

                Co-counsel recalled visiting the petitioner in jail once but could not
remember whether trial counsel joined him on that visit. He did not file any pretrial
motions. He reiterated that trial counsel would have been the first chair attorney if the
case had gone to trial and that he would have “had to do very little” unless something
arose that he believed needed to be addressed. He testified that, if the State made an
initial offer in this case, he would have discussed it with trial counsel. Co-counsel could
not recall whether he was aware of any mental health issues of the petitioner.

               The petitioner testified that his mother had hired co-counsel to represent
him in this case. He met with co-counsel three times before entering his guilty plea. At
the first meeting, co-counsel did not have any discovery materials or the transcript from a
prior proceeding. Co-counsel likewise did not bring any discovery materials to the
second meeting, which occurred approximately three months after the first meeting.
When the petitioner finally did receive discovery materials, he told co-counsel that he did
not understand co-counsel’s explanation of the discovery materials. The petitioner
asserted that he did not intend to plead guilty although co-counsel had relayed to him a
plea offer for 10 years’ incarceration with 30 percent release eligibility. He stated that he
did not understand the meaning of release eligibility and that trial counsel explained to
him that parole meant he “would be released” to complete “the rest of [his] time in
society.” The petitioner said that he understood this to mean that parole was guaranteed
after serving 30 percent of his sentence.

               The petitioner testified that he thought the December 5 proceeding was to
be an evidentiary hearing to determine “if the State had enough evidence to take the case
to trial”; he did not know that his case was scheduled for trial that day. He testified that
co-counsel told him that if the State did not have enough evidence on which to proceed,
the petitioner would “go home.” The petitioner stated that he had never met trial counsel
before December 5, when trial counsel spoke with him “in the tank back here behind the
court.” On December 5, the petitioner met with both trial counsel and co-counsel, and
both attorneys told him that if the petitioner did not accept the plea offer, his “case would
be moved to a courtroom with . . . harsher sentencing” where he would face a sentence of
                                             -6-
eight to 30 years. He stated that neither attorney explained why his case would be
transferred to a different court, and he believed that if he declined the plea offer, he
would face up to 30 years’ incarceration on the charge of carjacking because he had
“never even received the [i]ndictment for aggravated robbery.” He said that both
attorneys advised him that Mr. Farmer had given a statement implicating the petitioner in
the crime and that both Mr. Farmer and Mr. Brown were going to testify against him;
however, upon his own review of the discovery materials, the petitioner learned that Mr.
Farmer did not give a statement. He asserted that neither trial counsel nor co-counsel
explained to him that Mr. Brown’s statement could be deemed inadmissible.

               The petitioner testified that he had undergone a mental evaluation, which
deemed him “mentally disabled” but otherwise competent to stand trial. He had been
diagnosed with ADHD and ADD as a child, and he was later diagnosed with bipolar and
paranoid schizophrenic disorders. The petitioner took medication for those conditions.
The petitioner acknowledged his responses during the plea colloquy but pointed out that
he had told the judge that he “didn’t want to sign [the plea agreement] if [he] wasn’t
going to the Penal Farm.” He explained that he answered the judge’s questions in the
way that he did because the judge had told him that he would be sentenced to eight to 30
years, which statement led the petitioner to believe that “it was law.” The petitioner
stated that he accepted the plea agreement because he did not feel that he had any other
option. He recalled that on the same day that he entered his guilty plea, he had told his
mother that he intended to reject the plea offer and that he only changed his mind when
his attorneys told him that he was facing 30 years’ incarceration without the possibility of
parole. He stated that they told him that if he was convicted, he “would not get nothing
less than the max” sentence, and he did not have confidence that they would defend him
if he chose to go to trial. The petitioner testified that he had no prior felony convictions
at the time of his plea and contended that, had he known that he was facing only eight to
12 years’ incarceration, he would have rejected the plea offer.

               Upon questioning by the court, the petitioner stated that his attorneys told
him “that an Alford . . . plea was a best interest plea” and “wasn’t a guilty plea” and that,
as a result, he believed that he would still “have my innocence.” He said that he
understood a guilty plea to be an admission to having committed the alleged offense, but
“a best interest plea [wa]s taking the time that you feel like is best for you -- best deal that
you’re going to get.” He acknowledged that he understood that in entering the Alford
plea, he would be accepting a sentence.3

3
         In North Carolina v. Alford, 400 U.S. 25, 37 (1970), the United States Supreme Court held that a
criminal defendant may enter a guilty plea without admitting guilt if the defendant intelligently concludes
that his best interests would be served by a plea of guilty.

                                                   -7-
              During cross-examination, the petitioner reiterated that he thought the
December 5 proceeding was to be an evidentiary hearing and that the trial date would be
set after the hearing. He understood trial counsel’s explanation of parole to be a
guarantee that he would receive parole as long as, during his incarceration, he avoided
disciplinary actions and participated in prison programs.

               The petitioner stated that he reviewed the discovery materials and
understood that the primary issue was the identification of the petitioner. He
acknowledged that the case had previously been dismissed in general sessions court
because no witness was able to identify the petitioner as one of the perpetrators. The
petitioner asserted that he wanted to go to trial.

               The petitioner did not think that he had been indicted for aggravated
robbery, explaining, “I thought you had to receive an Indictment . . . for you to be tried.”
He believed that if he had gone to trial, it would have been for the carjacking charge.
Regarding an aggravated robbery charge, he acknowledged that his attorneys had
“brought it up before,” but he asserted that they did not explain the difference between
carjacking and aggravated robbery in terms of parole eligibility. He said that he recalled
the judge’s “saying there’s a superseding Indictment” at the plea submission hearing and
the judge’s telling him the sentencing differences under the superseding indictment. He
reiterated that he pleaded guilty because he did not feel like he had another option, stating
“I felt like I was going to get the maximum when I got to a different courtroom.” He
stated that the difference in sentencing between the carjacking and aggravated robbery
charges played no part in his deciding to plead guilty. The petitioner recalled telling the
judge at the plea submission hearing that he had taken his medication the night before
and that he understood the proceeding. He acknowledged that he stated that his plea was
voluntary at the plea submission hearing.

              Patricia Merriweather, the petitioner’s mother, testified that she was
unaware that the December 5 proceeding was to be the trial. She stated that when she
spoke with co-counsel, “he said that he had to set a court date for a hearing.” On
December 5, co-counsel told her that he “was ready to set a court date for trial.” She also
stated that because a jury had not yet been selected, she did not think that the trial was
scheduled. She had a doctor’s appointment on December 5, and, after receiving
assurances from co-counsel, she told the petitioner not to sign any paperwork and left for
her appointment. It was her understanding that the petitioner did not intend to sign a plea
agreement that day. She stated that she did not want the petitioner to sign anything
because he “has a lot of mental issues.”


                                             -8-
               Ms. Merriweather said that she retained co-counsel to represent the
petitioner because she believed that co-counsel “was going to be looking out for his best
interest,” but she felt that that was not the case. She recalled that she communicated only
with co-counsel throughout the case and never spoke with trial counsel. She said that if
she had been aware of co-counsel’s faulty memory, she “wouldn’t have put him up over
my son’s case like that.”

                 Ms. Merriweather testified that the petitioner had always had mental health
issues, saying, “[W]hen he was first born he wouldn’t go around people. So they
diagnosed him with . . . a[u]tism.” Later, “they diagnosed him with ADHD and ADD.”
Most recently, the petitioner was diagnosed with “bipolar and paranoid schizophrenic”
disorders. She said that the petitioner did not do well in school, explaining that “[h]e
couldn’t go any further” than the ninth grade “because he couldn’t learn anything. So I
took him out, and we homeschooled him at home. That’s why he never was in the public
or out in . . . the world, because he was always around us.” Ms. Merriweather stated that
the petitioner struggled with comprehension in reading, math, and other subjects. He also
struggled with verbal explanations, but he had gotten “smarter since he’s been
incarcerated” and was “doing a lot better now.” Ms. Merriweather told co-counsel of the
petitioner’s competency issues, relaying to him the petitioner’s “struggles and the things
that he went through in the past, all of that.” She also told co-counsel that a prior mental
evaluation deemed the petitioner to be “mentally unstable or what have you.”

               The transcript of the petitioner’s plea submission hearing was exhibited to
the evidentiary hearing. During the plea hearing, the trial court explained to the
petitioner: “By agreement the State is allowing you to plead to that original carjacking
charge. It carries eight to thirty years.” Later, the petitioner asked the court whether he
would be detained at the Penal Farm, and the court responded that it would sentence the
petitioner to TDOC, but “sometimes they keep people and assign them to the correctional
center on these cases” and “whether they keep you or not, that’s always a possibility.”
The petitioner told the court, “I told my lawyers I didn’t want to sign if I weren’t going to
the penal farm,” to which the court responded, “Well, so are you telling me you would
rather have a jury trial and take a chance on eight to thirty years in the penitentiary at a no
parole?” After a discussion with trial counsel, the court told the petitioner that it could
not guarantee that the petitioner would be housed at the Penal Farm and asked the
petitioner, “Do you want to talk it over? Are you telling me you would rather go to trial
and risk eight to thirty years . . . on a non-parolable offense? You know, that’s the only
other option I have?” After the court concluded the plea colloquy, co-counsel informed
the court that the petitioner was on “some serious medication” but had “been examined”
and was declared competent to stand trial. The trial court then conducted an additional
colloquy regarding the petitioner’s medication and ability to understand the proceedings,
                                              -9-
and the petitioner again said, “I talked to my lawyers, I thought I was going to the penal
farm.” The court told the petitioner that “they may keep you there but I can’t order it”
and that if the petitioner was “thinking that it’s got to be a guarantee, then I can’t accept
the plea. But if you understand that it may very well happen but you want to get this
behind you . . . however you have to do it; is that right?” The petitioner responded, “Yes,
sir.”

              In its written order denying relief, the post-conviction court found that trial
counsel was the lead attorney and co-counsel was the second attorney on the petitioner’s
case and that both “were prepared, informed and had communicated with their client.”
The court concluded that neither attorney had guaranteed that the petitioner would be
granted parole but had instead told him “that his behavior would be his best way of
helping his chances.” The court also found that the petitioner’s plea colloquy
“indicate[d] that [the p]etitioner understood what he was doing, including the effects of
an ‘Alford plea’” and that the petitioner’s primary concern was with where he would
serve his sentence. The court concluded that the petitioner “chose to enter a negotiated
plea that was clearly entered freely and voluntarily with the advice of competent
counsel.”

                 In this appeal, the petitioner argues that his attorneys performed deficiently
by failing to explain the consequences of his guilty plea, failing to prepare the petitioner
for trial, failing to assess what the petitioner’s potential testimony would be, and failing
to familiarize themselves with the evidence. Furthermore, the petitioner asserts that, as a
result of counsels’ deficient performance, his guilty plea was not made knowingly and
voluntarily.

              We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. A post-
conviction petitioner bears the burden of proving his or her factual allegations by clear
and convincing evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to
the post-conviction court’s findings of fact the weight of a jury verdict, and these findings
are conclusive on appeal unless the evidence preponderates against them. Henley v.
State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn.
Crim. App. 1997). By contrast, the post-conviction court’s conclusions of law receive no
deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453
(Tenn. 2001).



                                             -10-
                            I. Ineffective Assistance of Counsel

                Before a petitioner will be granted post-conviction relief based upon a
claim of ineffective assistance of counsel, the record must affirmatively establish, via
facts clearly and convincingly established by the petitioner, that “the advice given, or the
services rendered by the attorney, are [not] within the range of competence demanded of
attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and
that counsel’s deficient performance “actually had an adverse effect on the defense,”
Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, the petitioner “must
show that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694. Should the
petitioner fail to establish either deficient performance or prejudice, he is not entitled to
relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
. . . that course should be followed.” Strickland, 466 U.S. at 697.

              When considering a claim of ineffective assistance of counsel, a reviewing
court “begins with the strong presumption that counsel provided adequate assistance and
used reasonable professional judgment to make all significant decisions,” Kendrick v.
State, 454 S.W.3d 450, 458 (Tenn. 2015) (citation omitted), and “[t]he petitioner bears
the burden of overcoming this presumption,” id. (citations omitted). We will not grant
the petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or
provide relief on the basis of a sound, but unsuccessful, tactical decision made during the
course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.
1994). Such deference to the tactical decisions of counsel, however, applies only if the
choices are made after adequate preparation for the case. Cooper v. State, 847 S.W.2d
521, 528 (Tenn. Crim. App. 1992).

              In the context of a guilty plea, the petitioner must establish that “counsel’s
constitutionally ineffective performance affected the outcome of the plea process” by
establishing “a reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52,
59 (1985); see Hicks v. State, 983 S .W.2d 240, 246 (Tenn. Crim. App. 1998).

               Here, the petitioner alleges that his attorneys failed to explain the
consequences of his guilty plea, failed to prepare him for trial, failed to assess what his
potential testimony would be, and failed to familiarize themselves with the evidence.
The post-conviction court found that both attorneys “were prepared, informed and had
communicated with” the petitioner. The record, however, preponderates against the
                                            -11-
findings of the post-conviction court. Trial counsel testified that the first and only time
he met with the petitioner was on the day of the scheduled trial for what “[c]ould have
been half an hour.” Regardless of trial counsel’s other preparations in this case, we
cannot say that trial counsel was adequately prepared for trial having never spoken with
the petitioner before the day of trial. See Tenn. R. Sup. Ct. 8, RPC 1.4(a)(2)-(3); -(b)
(requiring a lawyer to “reasonably consult with the client about the means by which the
client’s objectives are to be accomplished,” to “keep the client reasonably informed about
the status of the matter,” and to “explain a matter to the extent reasonably necessary to
permit the client to make informed decisions regarding the representation”). Trial
counsel testified that he negotiated the final plea offer with the State; however,
considering that trial counsel had never spoken to the petitioner, trial counsel could not
have told him about the State’s first plea offer. Additionally, considering that the
petitioner did not know that trial counsel was one of his attorneys, the petitioner could not
have consented to trial counsel’s negotiating a plea agreement on his behalf. The record
established that co-counsel had little to no involvement in the negotiations with the State
and engaged in no trial preparation.

               Furthermore, trial counsel testified that, although he did not “know for
sure” whether co-counsel had moved to suppress the victim’s identification of the
petitioner, he suspected that co-counsel may have done so because that was his usual
practice. Trial counsel also testified that he thought the petitioner “had some family
members who were going to say that he got in the car later on,” but trial counsel did not
indicate whether he actually interviewed any of those potential witnesses. We cannot say
that trial counsel’s dismissal of the petitioner’s alibi defense was a strategic decision
because counsel did not investigate the potential alibi. In fact, trial counsel testified that
the petitioner had no alibi witnesses, despite having also testified that he thought some of
the petitioner’s family members would have testified that the petitioner was not present
during the carjacking. We conclude that trial counsel was not adequately prepared for
trial; he had no knowledge of whether the trial court had already ruled on the
admissibility of certain evidence, he did not know what pretrial motions had been filed,
and he made no effort to investigate the petitioner’s alibi. Moreover, trial counsel
testified that he did everything that the petitioner had asked in preparing for trial;
however, he admitted that he had never even met the petitioner before the day the
petitioner pleaded guilty. Based on trial counsel’s own testimony, we conclude that trial
counsel failed to adequately prepare for the petitioner’s scheduled trial.

              Moreover, the record reveals that the divided labors between attorneys
created gaps in performance. Trial counsel’s testimony established that co-counsel failed
to disclose the petitioner’s mental health issues to trial counsel and suggests that trial
counsel was not completely familiar with the petitioner’s case. Trial counsel testified that
                                            -12-
he did not know about the petitioner’s prior mental health evaluation or the petitioner’s
mental health issues. Ms. Merriweather testified, however, that she alerted co-counsel to
the petitioner’s mental health diagnoses, and co-counsel claimed to have relayed all
relevant information to trial counsel. Ms. Merriweather’s testimony is corroborated by
the fact that, at the preliminary hearing, co-counsel informed the court that the petitioner
had undergone a mental evaluation and that he took medication for mental health issues.
The petitioner and Ms. Merriweather testified consistently that the petitioner had
undergone a mental health evaluation that deemed him “mentally disabled” but otherwise
competent to stand trial. Importantly, the post-conviction court found that “[t]here’s a
competency letter in the file that’s copied to [co-counsel].4

               Given that neither the petitioner nor his mother knew that trial counsel
would represent the petitioner at trial, they had no opportunity to apprise trial counsel of
the petitioner’s mental health issues. Trial counsel’s testimony that he did not know
about the petitioner’s mental health issues indicates a lack of familiarity with the case,
particularly given the evidence in the record that co-counsel had been informed of the
results of the petitioner’s competency evaluation.

                In addition to his lack of awareness of the petitioner’s mental health
evaluation, trial counsel was unaware that co-defendant Farmer had failed to implicate
the petitioner in the offenses. Instead, he erroneously informed the petitioner that Mr.
Farmer had not only implicated the petitioner but that he would testify against the
petitioner at trial.

               We conclude that the failure to inform the petitioner that trial counsel was
joining the defense team and would be the lead attorney at trial constitutes deficient
performance. This conduct evidences an utter lack of communication with the petitioner
to the extent that the petitioner did not even know that trial counsel was his attorney. The
petitioner asserted that he did not want to enter a guilty plea, but he felt that he had no
other option because both attorneys told him that he would receive the maximum
sentence if convicted at trial, a sentence that he erroneously believed to be as much as 30
years, and because he did not believe that they would defend him if he elected to go to
trial. The petitioner testified that he would have declined the plea offer had he
understood the consequences of his plea and the risks of trial. We conclude that
counsels’ performance was deficient. In effect, in this case, the performance of two
attorneys equaled less than one. The issue of prejudice is intertwined with the issue of
whether the plea was knowingly and voluntarily made, and we move on to view the case
via that lens.
4
       This letter is not included in the record on appeal.

                                                   -13-
                                II. Validity of Guilty Plea

             Additionally, the petitioner contends that he pleaded guilty unknowingly
and involuntarily. Specifically, the petitioner alleges that his attorneys’ errors combined
with the trial judge’s misstating his sentencing exposure resulted in “coercive
circumstances” that “overwhelmed him.”

               Apart from whether a guilty plea is the product of ineffective assistance of
counsel, it is invalid if otherwise made unknowingly or involuntarily. “Whether a plea
was knowing and voluntary is an issue of constitutional dimension because ‘the due
process provision of the federal constitution requires that pleas of guilty be knowing and
voluntary.’” State v. Wilson, 31 S.W.3d 189, 194 (Tenn. 2000) (quoting Johnson v. State,
834 S.W.2d 922, 923 (Tenn. 1992)). A plea “may not be the product of ‘[i]gnorance,
incomprehension, coercion, terror, inducements, [or] subtle or blatant threats.” Wilson,
31 S.W.3d at 195 (quoting Boykin v. Alabama, 395 U.S. 238, 242-43 (1969)); see also
State v. Mellon, 118 S.W.3d 340, 345 (Tenn. 2003) (citing Blankenship v. State, 858
S.W.2d 897, 904 (Tenn.1993)).

              Like a claim of ineffective assistance of counsel, a claim of involuntary
guilty plea is a mixed question of law and fact. Lane v. State, 316 S.W.3d 555, 562
(Tenn. 2010); State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999). When reviewing the application of law to the post-
conviction court’s factual findings, our review is de novo, and the post-conviction court’s
conclusions of law are given no presumption of correctness. Fields, 40 S.W.3d at 457-
58; see also State v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

              As stated above, both of the petitioner’s attorneys performed deficiently by
failing to adequately communicate with the petitioner that trial counsel would be
handling the petitioner’s case and failing to adequately communicate with each other all
the pertinent information about the case. To compound these errors, the trial court
misstated the petitioner’s sentencing exposure during the plea colloquy, stating that the
petitioner faced up to 30 years’ incarceration if convicted at trial. To be sure, aggravated
robbery, a Class B felony, see T.C.A. § 49-13-402(b), carries a sentence of eight to 30
years, see id. § 40-35-111(b)(1), but our legislature has delineated sentencing ranges
narrowing the potential sentence for each class of offender. See id. § 40-35-112. The
petitioner’s uncontroverted testimony established that he had no prior felonies, which
qualified him as a Range I offender, see id. § 40-35-105(a)-(b), and, as a Range I
offender, he faced a potential sentence of only eight to 12 years, see id. § 40-35-
112(a)(2). The trial court, however, incorrectly told the petitioner three times that he was
                                           -14-
facing a 30-year sentence – once at the beginning of the hearing and twice in response to
the petitioner’s telling the court that he did not want to plead guilty if he would not be
permitted to serve his sentence at the Penal Farm.

              The trial court also misstated that aggravated robbery was “a non-parolable
offense”; however, by statute, aggravated robbery carries a release eligibility percentage
of 85 percent. See T.C.A. § 40-35-501(k)(1). The court’s misstatements coupled with
trial counsel’s assuring the petitioner that he would receive the maximum sentence if
convicted at trial led the petitioner to believe that he would be sentenced to 30 years’
incarceration without the possibility of parole if convicted of aggravated robbery at trial.
These errors are sufficient to render the guilty plea unknowing and involuntary.

              We conclude that the combined effect of the deficient representation
provided by the petitioner’s attorneys and the misinformation provided by the trial court
rendered the petitioner’s guilty plea unknowing and involuntary.

              Accordingly, the judgment of the post-conviction court is reversed, the
petitioner’s guilty-pleaded conviction of carjacking is vacated, and the case is remanded
for trial.


                                                    _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




                                            -15-
