         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                    August 19, 2003 Session

                 BOBBY D. CANADA v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Campbell County
                            No. 11078    E. Shayne Sexton, Judge



                                  No. E2003-00804-CCA-R3-PC
                                       December 11, 2003

The petitioner was indicted for first degree murder and aggravated arson. Pursuant to a plea
agreement, he pled guilty to second degree murder and setting fire to personal property. The
petitioner filed for post-conviction relief, contending that he received ineffective assistance of
counsel and that his guilty plea was not knowing and voluntary. The post-conviction court denied
the petitioner relief. The judgment of the post-conviction court is affirmed.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
ALAN E. GLENN, JJ., joined.

Robert S. Asbury, Jacksboro, Tennessee, for the appellant, Bobby D. Canada.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
William Paul Phillips, District Attorney General; and Michael O. Ripley, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

         The petitioner, Bobby D. Canada, was indicted for first degree murder and aggravated arson.
Pursuant to an agreement, he pled guilty to second degree murder (Class A felony) and setting fire
to personal property (Class E felony) and agreed to a sentence of twenty years and five years
respectively, to be served consecutively for an effective sentence of twenty-five years. The petitioner
filed for post-conviction relief, contending that he received ineffective assistance of counsel and that
his guilty plea was not knowing and voluntary. The post-conviction court denied the petitioner relief.
He now appeals the denial of relief. The judgment of the post-conviction court is affirmed.
                                                Facts

       At the plea hearing, the State and the petitioner stipulated and agreed to the following factual
account:

        That in Campbell County, Tennessee, on or about the 15th of December of 1998, that
        the [petitioner], did aid and abet Joseph Prewitt in the unlawful, felonious, and
        intentional killing of Charles Wayne Bryant.

        Furthermore, that on the same date in Campbell County, Tennessee, that [petitioner]
        did aid and abet Joseph Prewitt in the unlawful, felonious, and knowingly damaging
        of personal property, an automobile, by fire, with the intent to destroy the property
        for an unlawful purpose.

                                               Analysis

         The petitioner contends on appeal that he received ineffective assistance of counsel. This
Court reviews a claim of ineffective assistance of counsel under the standards of Baxter v. Rose, 523
S.W.2d 930 (Tenn. 1975), and Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). The
petitioner has the burden to prove that (1) the attorney’s performance was deficient, and (2) the
deficient performance resulted in prejudice to the defendant so as to deprive him of a fair trial.
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996);
Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). The failure to prove either deficiency or
prejudice justifies denial of relief; therefore, the court need not address the components in any
particular order or even address both, if one is insufficient. Goad, 938 S.W.2d at 370. In order to
establish prejudice, the petitioner must establish 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.” Strickland, 466 U.S.
at 694, 104 S. Ct. at 2068. When a petitioner claims ineffective assistance of counsel in relation to
a guilty plea, the petitioner must prove that counsel performed deficiently, and, but for counsel’s
errors, the petitioner would not have pled guilty but would have, instead, insisted upon going to trial.
Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985).

        The test in Tennessee to determine whether counsel provided effective assistance is whether
his or her performance was within the range of competence demanded of attorneys in criminal cases.
Baxter, 523 S.W.2d at 936. The petitioner must overcome the presumption that counsel’s conduct
falls within the wide range of acceptable professional assistance. Strickland, 466 U.S. at 689, 104
S. Ct. at 2065; State v. Honeycutt, 54 S.W.3d 762, 769 (Tenn. 2001). Therefore, in order to prove
a deficiency, a petitioner must show “that 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, 104 S. Ct. at 2065).




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         In reviewing counsel’s conduct, a “fair assessment . . . requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at the time.” Nichols v. State, 90
S.W.3d 576, 587 (Tenn. 2002) (citing Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). The fact that
a particular strategy or tactic failed or hurt the defense does not, standing alone, establish
unreasonable representation. However, deference to matters of strategy and tactical choices applies
only if the choices are informed ones based upon adequate preparation. Henley v. State, 960 S.W.2d
572, 579 (Tenn. 1997); Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

        The petitioner bears the burden of proving by clear and convincing evidence the factual
allegations that would entitle petitioner to relief. Tenn. Code Ann. § 40-30-210(f). This Court is
bound by the post-conviction court’s findings of fact unless the evidence preponderates against those
findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001).

         The petitioner first argues that his counsel was ineffective by failing to pursue a motion that
was filed alleging lack of jurisdiction because the murder occurred in Kentucky. A motion to
dismiss the murder charge was filed by defense counsel on February 4, 2000. Apparently, the motion
was never ruled on. Counsel has failed to show how he was prejudiced by the lack of a ruling on the
motion. The record contains no evidence that the petitioner would have prevailed on the motion.
In fact, it is likely that the motion would have been denied, and the State would have been allowed
to prove the location of the murder at trial. Counsel informed the petitioner that if they did not
prevail on the jurisdiction issue, he might be convicted of first degree murder and sentenced to death.
The plea agreement would no longer be available at that point.

        Additionally, the petitioner agreed to a stipulation at the plea hearing that the murder
occurred in Tennessee. A forensic examination of the site where the petitioner claims the murder
occurred did not reveal any evidence that the murder occurred in Kentucky. The only indication that
the murder did not occur in Tennessee is the denial by the defendant. Counsel made a tactical
decision based on the slight likelihood that they would prevail on the motion and the possible severe
consequences if they did not. The denial by the petitioner that the murder occurred in Tennessee will
not suffice as clear and convincing evidence that the petitioner was prejudiced by the lack of a ruling
on the motion to dismiss.

        The petitioner also argues that his counsel was deficient by failing to procure the services of
an independent forensic expert. The forensic expert relied on by counsel was actually hired by the
petitioner’s co-defendant. The petitioner claims that the co-defendant’s interests were antagonistic
to his interests. While this may be true, he has failed to show that the tests by the independent
forensic expert were in any way deficient. The petitioner has failed to show that he was prejudiced
by counsel’s reliance on an independent forensic expert obtained by the co-defendant.

        The petitioner next argues that his guilty plea was not knowing and voluntary. Specifically,
he argues that he is entitled to relief because counsel did not remember reviewing the plea form with
the petitioner and counsel impermissibly coerced the petitioner to plead guilty. In order for a


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conviction based upon a guilty plea to comport with due process, the plea must be voluntarily,
knowingly, and understandingly entered. Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S. Ct. 1709,
1712 (1969). A guilty plea is not voluntary “if it is the product of ‘ignorance, incomprehension,
coercion, terror, inducements, [or] subtle or blatant threats . . . .’” Blankenship v. State, 858 S.W.2d
897, 904 (Tenn. 1993) (quoting Boykin, 395 U.S. at 242-43, 89 S. Ct. at 1712). Furthermore, if an
accused is incompetent, then the guilty plea is involuntary. Blankenship, 858 S.W.2d at 904. The
standard for assessing the validity of a guilty plea is “whether the plea represents a voluntary and
intelligent choice among the alternative courses of action open to the defendant.” North Carolina
v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164 (1970). To assess whether a guilty plea was voluntary,
we must “consider all of the relevant circumstances that existed when the plea was entered.” State
v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995). These circumstances include the relative
intelligence of the defendant; the degree of his familiarity with criminal proceedings; whether he was
represented by competent counsel and had the opportunity to confer with counsel about the options
available to him; the extent of advice from counsel and the court concerning the charges against him;
and the reasons for his decision to plead guilty, including a desire to avoid a greater penalty that
might result from a jury trial. Blankenship, 858 S.W.2d at 904.

        As the United States Supreme Court has noted, a petitioner’s testimony at a guilty plea
hearing “constitutes a formidable barrier” in any subsequent collateral proceeding because “solemn
declarations in open court carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S.
63, 73, 97 S. Ct. 1621, 1629 (1977). The plea agreement was executed on January 5, 2001. The
post-conviction hearing was held on March 7, 2003. During the plea hearing, the petitioner agreed
that counsel had reviewed the plea agreement with him. Counsel’s failure to remember specifically
reviewing the plea form with the petitioner over two years later does not prove by clear and
convincing evidence that the petitioner is entitled to relief.

        During the plea hearing, the petitioner stated that he could read and write. He further
indicated that he had read and understood the plea agreement. The record reflects that the petitioner
was thoroughly questioned during the entry of his guilty plea and answered in a fashion that left no
questions as to his knowing and voluntary act. The answers given by the petitioner in the entry of
his guilty plea are incompatible with his post-conviction claim. The petitioner voluntarily pled guilty
and denied any coercion. He acknowledged that he understood the terms of the plea bargain and
desired to plead guilty. The petitioner also expressed his satisfaction with trial counsel. The trial
court credited the petitioner’s testimony at his guilty plea hearing over his post-conviction testimony.
Nothing in the record before us dispels the reliability of the petitioner’s testimony at his guilty plea
hearing. The petitioner has failed to prove by clear and convincing evidence that his guilty pleas
were not knowing or voluntary.




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                                          Conclusion

       The petitioner has failed to prove by clear and convincing evidence that he was prejudiced
by any alleged deficiencies or that his guilty plea was not knowing and voluntary. Based on the
foregoing and the record as a whole, the judgment of the post-conviction court is affirmed.




                                                     ___________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE




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