                                                                                            08/30/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs August 8, 2017

          ELBERT BRYANT GLEAVES v. STATE OF TENNESSEE

              Appeal from the Criminal Court for Davidson County
     No. 2012-B-1296, 2012-B-1275, 2012-C-2534 J. Randall Wyatt, Jr., Judge
                    ___________________________________

                            No. M2016-02371-CCA-R3-PC
                        ___________________________________


The petitioner, Elbert Bryant Gleaves, appeals the denial of his post-conviction petition.
The petitioner argues he received ineffective assistance of counsel prior to trial forcing
him to accept the State’s plea offer. Following our review, we affirm the denial of the
petition.

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

J. ROSS DYER, J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER,
and D. KELLY THOMAS, JR., JJ., joined.

Susan L. Kay, Nashville, Tennessee, for the appellant, Elbert Bryant Gleaves.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Amy M. Hunter,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                              Facts and Procedural History

        This petition for post-conviction relief is based upon the petitioner’s claim that his
trial counsel did not adequately investigate the case against the petitioner and this failure
deprived the petitioner of constitutionally effective assistance of counsel. Furthermore,
the petitioner claims that this alleged deficiency resulted in a false impression that he
would only serve four years in prison; therefore, he did not knowingly, voluntarily, and
intelligently enter the plea agreement with the State of Tennessee.
       The petitioner was initially charged as a juvenile with misdemeanor theft and
attempted murder. Subsequently, on May 14, 2012, the petitioner was indicted by a
Davidson County grand jury for theft of under $500 in case number 2012-B-1275 and
aggravated assault in case number 2012-B-1296. In addition, the petitioner faced
indictments for aggravated robbery, carjacking, employing a firearm during a dangerous
felony, evading arrest, aggravated assault, and two counts of leaving the scene of an
accident in case number 2012-C-2534. The petitioner was dissatisfied with counsel who
had represented him in juvenile court and petitioned for replacement counsel.1 The court
granted the request and appointed trial counsel to represent the petitioner.

        Based upon testimony from the petitioner and trial counsel the representation
proceeded along the following lines. Trial counsel spoke briefly with the petitioner after
initial assignment, after which trial counsel met with the petitioner in prison to discuss
the petitioner’s options. Trial counsel encouraged the petitioner to plead guilty in order
to avoid the likely outcome of a significantly longer prison term. The petitioner’s
primary concern was to minimize time spent in prison in order to return to his family as
soon as possible. Trial counsel spoke with the petitioner at least once more by phone
prior to the plea hearing. Prior to entering his plea, the petitioner met with both trial
counsel and members of his family to discuss the State’s offer of a maximum sentence of
ten years. After a discussion with trial counsel, the petitioner’s family asked to speak
with the petitioner alone. After a few minutes, the family informed trial counsel that the
petitioner would accept the plea agreement.

        During the plea colloquy, the State announced that the petitioner would plead
guilty to the following: theft of property under $500 and receive a sentence of eleven
months and twenty-nine days; two counts of aggravated assault and receive a sentence of
three years as a Range I offender for each; and aggravated robbery and receive a ten year
sentence. All the sentences would run concurrently for a total effective sentence of ten
years. Per the plea agreement, the other counts of the indictment would be dismissed.
After the State announced the terms of the plea, the trial court explained the sentence in
detail to the petitioner, after which, the petitioner and trial counsel had a brief discussion
off the record. Once back on the record, the trial court again reiterated that the petitioner
would be receiving a ten-year sentence at eighty-five percent release eligibility.

        The trial court then informed the petitioner of his rights, including his right to a
jury trial and the presumption of innocence. The petitioner said he understood the terms
of the plea and trial counsel confirmed this. The State proceeded to announce its proof,

       1
         While the petitioner’s cases were still pending in juvenile court, he was represented by
another attorney. The petitioner’s juvenile court counsel did not testify during the post-
conviction hearing.
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after which, the petitioner plead guilty to one count of theft under $500, one count of
aggravated robbery, and two counts of aggravated assault. The trial court accepted the
recommendation of the district attorney general and sentenced the petitioner to an
effective ten-year sentence.

        On March 11, 2009, the petitioner filed a pro se petition for post-conviction relief
arguing ineffective assistance of counsel and that his guilty plea was not knowingly,
voluntarily, and intelligently entered. After the appointment of counsel, the petitioner
filed an amended petition for post-conviction relief. The post-conviction court conducted
a hearing to determine the validity of the claims. After the hearing, the post-conviction
court denied the petition finding that trial counsel’s representation did not fall below the
constitutional standard to warrant a finding of ineffective assistance of counsel.
Additionally, the post-conviction court found that while the petitioner may have been
unhappy with the plea he entered, the record supported the finding that the plea was
knowing and voluntary. The petitioner subsequently appealed the post-conviction court’s
ruling to this Court.

                                         Analysis

       On appeal, the petitioner argues the post-conviction court erred in denying his
petition, alleging trial counsel’s ineffectiveness forced him to plead guilty. In support of
his claim, the petitioner contends trial counsel only met with him once and spoke with
him only one or two times prior to his decision to plead guilty. Similarly, the petitioner
asserts his guilty plea was not knowingly and voluntarily entered as a result of trial
counsel’s deficiencies. In contrast, the State contends that based upon the finding of fact
by the post-conviction court and strength of the State’s case, the petitioner is not entitled
to post-conviction relief. Upon our review, we agree with the State.

       The petitioner bears the burden of proving his factual allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-110(f). The findings of fact
established at a post-conviction evidentiary hearing are conclusive on appeal unless the
evidence preponderates against them. See Tidwell v. State, 922 S.W.2d 497, 500 (Tenn.
1996). This Court will not reweigh or reevaluate evidence of purely factual issues. See
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, appellate review of a trial
court’s application of the law to the facts is de novo, with no presumption of correctness.
See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of
counsel presents mixed questions of fact and law. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001). Thus, this Court reviews the petitioner’s post-conviction allegations
de novo, affording a presumption of correctness only to the post-conviction court’s
findings of fact. See id.; see also Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

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       To establish a claim of ineffective assistance of counsel, the petitioner must show
both that counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the outcome of the proceedings. Strickland v. Washington, 466 U.S. 668, 687
(1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting the
standard for determining ineffective assistance of counsel applied in federal cases is also
applied in Tennessee). The Strickland standard is a two-prong test:

       First, the defendant must show that counsel’s performance was deficient.
       This requires showing that counsel made errors so serious that counsel was
       not functioning as the “counsel” guaranteed the defendant by the Sixth
       Amendment. Second, the defendant must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the defendant of a fair trial, a trial
       whose result is reliable.

466 U.S. at 687. In order for the petitioner to succeed, both prongs of the Strickland test
must be satisfied. Id. Thus, courts are not required to even “address both components of
the inquiry if the defendant makes an insufficient showing on one.” Id.; see also Goad v.
State, 938 S.W.2d 363, 370 (Tenn. 1996) (stating “a failure to prove either deficiency or
prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”).

       A petitioner proves a deficiency by showing “counsel’s acts or omissions were so
serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688;
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong of the
Strickland test is satisfied when the petitioner shows there is a reasonable probability, or
“a probability sufficient to undermine confidence in the outcome,” that “but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. However, “[b]ecause of the difficulties inherent in making
the evaluation, a court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91,
101 (1955)).

       A guilty plea must be knowingly, voluntarily, and intelligently entered in order to
be valid. Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010). The court must determine
whether the guilty plea evidences a voluntary and informed decision to pursue a guilty
plea in light of the alternative options available to the defendant. Id. In the context of a
post-conviction challenge to a guilty plea, both prongs of the Strickland test must be met.
Garcia v. State, 425 S.W.3d 248, 256 (Tenn. 2013). Thus, to successfully challenge his
                                           -4-
guilty plea, the petitioner must show counsel’s performance was deficient, and he “must
establish a reasonable probability that, but for the errors of his counsel, he would not
have entered the plea.” Adkins v. State, 911 S.W.2d 334, 349 (Tenn. Crim. App. 1994)
(citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)); Garcia, 425 at 257 (Tenn. 2013).

        The petitioner argues that trial counsel’s failure to investigate the case amounted
to ineffective assistance of counsel, rendering his plea involuntary. The petitioner alleges
that trial counsel contacted the petitioner “only once or twice prior to the plea hearing,
and did not contact the witnesses [whom] the State intended to call at trial.” We do not
find this claim compelling.

      In response to the petitioner’s cross-examination about his preparation, trial
counsel stated:

       Well, given the facts as they were in that case . . . I talked to two of the
       officers involved and their statements to me were the same as what was in
       their reports as far as what they would testify to. The victim refused to talk
       to me so . . . you are stuck with the facts. No amount of preparation can
       change the facts.

Taken at face value, this statement appears to be in direct contravention of the
petitioner’s claim. The petitioner’s argument rests upon the assertion that trial counsel
made no effort to investigate petitioner’s case. However, speaking to material witnesses
to determine the strength of a case is adequate investigation. Moreover, the post-
conviction court “fully accredit[ted]” trial counsel’s testimony, and we see no reason to
disturb its findings. See Henley, 960 S.W.2d at 578. We will not second guess a post-
conviction court’s credibility determination; therefore, we find that trial counsel did
adequately investigate and prepare the petitioner’s case. Id.

        Furthermore, the petitioner has failed to show that but for trial counsel’s
performance he suffered prejudice that changed the outcome of his case. In analyzing
prejudice, this Court applies an objective standard. Strickland, 466 U.S. at 695. This
case, to use the words of the post-conviction court, was a “slam dunk” for the State. Trial
counsel used this language in describing his decision to encourage the petitioner to accept
the ten-year plea agreement, and the post-conviction court adopted trial counsel’s
evaluation of the petitioner’s case. Based on our reading of the record, the post-
conviction court correctly determined that trial counsel’s performance, even if it was
deficient, did not prejudice the petitioner. We agree with the post-conviction court that
had this case gone to trial, the petitioner would have faced a longer prison term. Thus,
the petitioner cannot satisfy the second prong of the Strickland test.

                                           -5-
       Turning to the guilty plea itself, nothing in the record indicates the plea was
coerced or entered into involuntarily. The evidence produced during the hearing supports
the finding that the petitioner was fully aware of the nature of the guilty plea. The post-
conviction court succinctly described the guilty plea hearing, as follows:

       After considering the testimony, the [c]ourt does not find any merit to the
       [p]etitioner’s contention that the guilty plea was not entered into voluntarily
       and intelligently. The [c]ourt finds that the [p]etitioner was represented by
       an experienced, competent attorney who adequately explained the criminal
       proceedings that the [p]etitioner was facing and the possible alternatives.
       The [c]ourt further takes note that although this was the petitioner’s first
       guilty plea in [c]riminal [c]ourt, the petitioner had an extensive juvenile
       record that had familiarized him with the concept and consequences of
       pleading guilty. The [c]ourt fully accredits [trial counsel’s] testimony that
       he walked through the plea petition with the [p]etitioner, and that the
       [p]etitioner understood what he was doing in pleading guilty, even if he
       was not pleased with the consequences of his plea. The [c]ourt finds a lack
       of any evidence indicating coercion, threats, or any other sign that the
       [p]etitioner’s will was overborne by an outside influence. The [c]ourt notes
       that there is a significant legal difference between whether the [p]etitioner
       understood what he was doing and did it of his own volition and whether he
       liked what he was doing. Had the [p]etitioner’s cases gone to trial, the
       [p]etitioner could have faced a sentence of up to several decades, which is
       precisely what [trial counsel] testified he explained to the [p]etitioner.
       Although the [c]ourt fully recognizes that the [p]etitioner almost certainly
       did not like what he was doing, and may have felt some level of pressure to
       accept the plea agreement as a result of [trial counsel’s] explanation that he
       faced a much lengthier sentence if he did not accept the plea deal, the
       [c]ourt is not of the opinion that this type of pressure was such that it
       overbore the [p]etitioner’s ability to enter into the plea agreement of his
       own volition. Thus, the [c]ourt finds that the [p]etitioner entered into the
       plea of guilty knowingly, intelligently, and voluntarily, and that this
       contention is without merit.

       Our review of the transcript of the guilty plea hearing echoes the finding of the
post-conviction court. The trial court properly and thoroughly explained the nature and
consequences of the petitioner’s guilty plea, including the charges against the petitioner,
the penalties he faced as a result of the plea, and the consequences that such a plea could
have on the petitioner in future criminal proceedings. Throughout the hearing, the
petitioner repeatedly affirmed that he understood his rights and wished to proceed with
the guilty plea. The petitioner has failed to offer any evidence that preponderates against
                                            -6-
the post-conviction court’s characterization of the knowing and voluntary nature of the
petitioner’s guilty plea. See Tidwell, 922 S.W.2d at 500. As such, the record makes clear
that the submission of the guilty plea was absent coercion and was performed thoroughly
and properly by the trial court.

        As explained above, the post-conviction court found that the petitioner knowingly,
intelligently, and voluntarily entered his guilty plea. Once a guilty plea is knowingly,
voluntarily, and intelligently entered it is not void simply because the petitioner is no
longer happy with his decision. Robert L. Freeman v. State, No. M2000-00904-CCA-
R3-PC, 2002 WL 970439, at *2 (Tenn. Crim. App. May 10, 2002), no perm. app. filed.
After reviewing the record and the determinations by the post-conviction court as to the
credibility of the petitioner and trial counsel, the petitioner has failed to show that he
received ineffective assistance of trial counsel or that his guilty plea was not knowingly,
voluntarily, and intelligently entered. No evidence exists in the record to support his
attack on trial counsel’s performance or how the alleged deficient performance affected
the outcome of his guilty plea. See Strickland, 466 U.S. at 687. Accordingly, the
petitioner is not entitled to post-conviction relief.

                                    CONCLUSION

      Based upon the foregoing authorities and reasoning, the judgment of the post-
conviction court is affirmed.



                                             ____________________________________
                                             J. ROSS DYER, JUDGE




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