        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                       Assigned on Briefs, May 8, 2012 Session

                    DARRYL THOMPSON v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                     No. 2008-A-88    Cheryl Blackburn, Judge


                 No. M2011-02139-CCA-R3-PC - Filed August 1, 2012


The petitioner, Darryl Thompson, appeals the Davidson County Criminal Court’s denial of
his petition for post-conviction relief. The petitioner, pursuant to a negotiated plea
agreement, pled guilty to second degree murder, a Class A felony, and was sentenced as a
Range II offender to a term of forty years. On appeal, he contends that his guilty plea was
not knowingly and voluntarily entered due to the ineffective assistance of counsel.
Specifically, the petitioner contends that trial counsel was ineffective by failing to properly
advise him of the consequences of pleading outside his range. Following careful review of
the record, we affirm the judgment of the post-conviction court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J AMES C URWOOD
W ITT, JR. and J EFFREY S. B IVINS, JJ., joined.

James O. Martin, III, Nashville, Tennessee, for the appellant, Darryl Thompson.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
Tory Johnson, District Attorney General; and Bret Gunn, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                         OPINION




                                    Procedural History
       The relevant facts underlying the petitioner’s conviction, as recited by the State at the
guilty plea hearing, are as follows:

               [T]his case . . . involves the homicide of Mr. Jared Collins who was
       killed during the course of a robbery . . . in the parking lot of . . . a market.

              Witnesses’ accounts would have two young men approaching Mr.
       Collins. . . . Mr. Collins was out of his vehicle. One of them went to Mr.
       Collins’ vehicle and kind of rummaged around in the vehicle initially. It’s the
       State’s position that was [the petitioner] because [his] fingerprints were
       recovered from Mr. Collins’ vehicle. A second person, a Mr. Reginald
       Adkins, was there. Eventually the two men confront Mr. Collins directly. Mr.
       Adkins had the weapon. They took money from the person of Mr. Collins, and
       then Mr. Collins tried to run into the market. As he was running into the
       market and about the time he got to the door, Mr. Adkins fired a shot and
       struck Mr. Collins in his back and he died from that wound. The police
       eventually - - and the two men got into a vehicle that was driven by Ms.
       Brandy Birdwell, . . . and fled the scene.

               Ultimately Detective Harris talked with Ms. Birdwell and then talked
       to [the petitioner]. [The petitioner] admitted to his role in this. He admitted
       that Mr. Collins had been at a location earlier that afternoon where he had
       purchased some drugs and led people there to believe that he had other money
       on him, that Mr. Adkins decided to follow Mr. Collins and try to take that
       money. He had a gun. . . . [The petitioner] admitted that he was in on the
       robbery and that he actually did put his hands on Mr. Collins and assisted in
       taking the money. . . . .

        Based upon these actions, the petitioner, along with Ms. Birdwell and Mr. Adkins,
was indicted by a Davidson County grand jury for first degree felony murder and especially
aggravated robbery. Ms. Birdwell was tried and found guilty as charged. Thereafter, the
defendant chose to enter into a negotiated plea agreement with the State. The defendant pled
guilty to the lesser offense of second degree murder, and the especially aggravated robbery
charge was dismissed. The agreement further provided that the defendant would be
sentenced to a term of forty years as a Range II offender, despite the fact that he actually
qualified as a Range I offender. At the guilty plea hearing, the trial court extensively
explained the agreement to the petitioner and questioned him with regard to his
understanding of the agreement and his rights. The court specifically discussed with the
petitioner that he was pleading outside his range and noted that, if convicted as a Range I
offender, the sentence maximum for second degree murder was twenty-five years. However,

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the court also informed the defendant on the record that if he proceeded to trial and was
convicted of felony murder, he faced a possible life sentence. The petitioner verbally
acknowledged that he understood the plea agreement and his sentence, and he expressed no
dissatisfaction with trial counsel’s representation in response to the court’s questioning.

       Nonetheless, the defendant timely filed a pro se petition for post conviction relief
alleging that his plea was not knowingly and voluntarily entered because trial counsel had
been ineffective. Following the appointment of counsel, an amended petition was filed with
the court, and a hearing was held on the matter.

        The petitioner testified at the post-conviction hearing and stated that he only accepted
the plea agreement because trial counsel told him that a forty-year sentence was “the right
thing” for a second degree murder conviction. He continued and stated that, since he had
been incarcerated, he had done his own research and learned for the first time that he should
have received a sentence of only fifteen to twenty-five years if he was a Range I offender.
He stated that, despite the evidence to the contrary from the guilty plea hearing, he did not
understand that he was pleading outside his range because trial counsel had never explained
the possible ranges of punishment. Had he understood, he would have gone to trial and
attempted to show that he was not the actual shooter in hopes of not being convicted of
felony murder. According to the petitioner, trial counsel advised him that if he proceeded
to trial, he would lose. The petitioner could not recall trial counsel explaining the law of
felony murder to him. However, he did testify that he was aware that Ms. Birdwell, also not
the shooter, had already been tried and found guilty of felony murder and especially
aggravated robbery. The petitioner actually acknowledged that Ms. Birdwell’s conviction
was a factor in his accepting the plea agreement.

        Trial counsel also testified. He stated that he had reviewed and discussed all the proof
with the petitioner prior to the entry of the plea. Trial counsel also indicated that he had
thoroughly discussed the law of criminal responsibility with the petitioner, as well as various
outcomes for the petitioner and possible punishment, and felt that the petitioner understood
the information. Trial counsel testified that he had discussed Ms. Birdwell’s conviction with
the petitioner and that he did advise the petitioner that if he went to trial, he would most
likely be convicted as charged based upon the evidence. Trial counsel stated that he
specifically discussed the fact that the petitioner would be pleading outside his range and
asserted that he still believed it was the right decision for the petitioner to accept the
agreement. He testified that the petitioner understood the compromise and made the decision
to plead out of range in order to plead to the lesser offense.

       After hearing the evidence presented, the post-conviction court concluded that the
petitioner had not received ineffective assistance of counsel and that the plea had been

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entered knowingly and voluntarily. The court denied relief, and the petitioner has now timely
appealed that decision.

                                           Analysis

        On appeal, the petitioner claims that the post-conviction court erred by denying his
petition because the record establishes that his plea was not knowingly and voluntarily
entered because trial counsel failed to properly inform him that he was pleading outside his
sentencing range and of the resulting consequences. The petitioner contends “but for the
error of counsel in advising the Petitioner that ‘forty years was the right thing for second
degree murder,’ [he] would not have entered a plea of guilt.” He goes on to state in his brief
that his “complaint can be summarized as due to trial counsel’s failure to explain that, if
convicted of second degree murder at trial, his range of punishment was only 15-25 years,
he entered a plea that was not knowing and voluntary.”

       In evaluating the knowing and voluntary nature of a guilty plea, the United States
Supreme Court has held that, “[t]he standard was and remains 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 (1970). In making this determination,
the reviewing court must look to the totality of the circumstances. State v. Turner, 919
S.W.2d 346, 353 (Tenn. Crim. App. 1995); see also Chamberlain v. State, 815 S.W.2d 534,
542 (Tenn. Crim. App. 1990). Indeed, a

   court charged with determining whether . . . pleas were ‘voluntary’ and ‘intelligent’
   must look to various circumstantial factors, such as 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 v. State, 858 S.W.2d 897, 904 (Tenn. 1993).

       Once a guilty plea has been entered, effectiveness of counsel is relevant only to the
extent that it affects the voluntariness of the plea. In this respect, such claims of ineffective
assistance necessarily implicate that guilty pleas be voluntarily and intelligently made. Hill
v. Lockhart, 474 U.S. 52, 56 (1985) (citing Alford, 400 U.S. at 31).



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       To succeed in a challenge for ineffective assistance of counsel, a petitioner must
demonstrate that counsel’s representation fell below the range of competence demanded of
attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under
Strickland v. Washington, 466 U.S. 668, 687 (1984), the petitioner must establish (1)
deficient representation and (2) prejudice resulting from the deficiency. In the context of a
guilty plea, to satisfy the second prong of Strickland, the petitioner must show that “there is
a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Lockhart, 474 U.S. at 59; see also Walton v. State,
966 S.W.2d 54, 55 (Tenn. Crim. App. 1997). The petitioner is not entitled to the benefit of
hindsight, may not second-guess a reasonably based trial strategy, and cannot criticize a
sound, but unsuccessful, tactical decision made during the course of the proceeding. Adkins
v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). This deference to the tactical
decisions of trial counsel, however, is dependant upon a showing that the decisions were
made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App.
1992).

        The issues of deficient performance by counsel and possible prejudice to the defense
are mixed questions of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). “A
trial court’s findings of fact underlying a claim of ineffective assistance of counsel are
reviewed on appeal under a de novo standard, accompanied with a presumption that those
findings are correct unless the preponderance of the evidence is otherwise.” Fields v. State,
40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13(d). However, conclusions of
law are reviewed under a purely de novo standard, with no presumption of correctness. Id.
at 458. Questions concerning the credibility of witnesses and the weight to be given their
testimony are for resolution by the post-conviction court. Black v. State, 794 S.W.2d 752,
755 (Tenn. Crim. App. 1990).

       In a very extensive order denying relief, the post-conviction court made the following
findings:

               Petitioner alleges that his trial counsel was ineffective for failing to
       advise him of the nature and consequences of the plea and that his plea was not
       made knowingly and voluntarily since he did not fully understand the
       consequences. Petitioner conceded during this testimony that he discussed his
       case, including his police confession and the video surveillance, with counsel;
       thus, Petitioner was aware of the State’s evidence against him. Petitioner,
       however, testified that he did not discuss a defense and that in retrospect he
       believes his sentence was excessive now that he has been able to perform his
       own legal research.



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              Trial counsel testified that he had discussed with Petitioner the concepts
       of felony murder and criminal responsibility, and that based on the evidence,
       he advised Petitioner the plea offer was his better option; however, trial
       counsel maintained that Petitioner made the ultimate decision of whether to
       accept the plea or go to trial. Additionally, trial counsel testified that he had
       explained to Petitioner that in order to plead to the lesser included offense of
       second degree murder, the plea agreement required Petitioner to plead out of
       range to a 40 year sentence. The Court credits trial counsel’s testimony.

              Further, the transcript of the guilty plea hearing belies Petitioner’s
       claims that he was not aware of the nature and consequences of his plea.
       During the plea colloquy, the Court explained to Petitioner that he was waiving
       his range as part of the plea agreement. The Court noted that second degree
       murder is a lesser offense of first degree murder with a full range of
       punishment of 15-60 years, but that if Petitioner proceeded to trial and was
       convicted of the lesser included offense of second degree murder, his range of
       punishment would have been 15-25 years as a Range 1 offender. But, in order
       to plead guilty to second degree murder, the plea agreement required Petitioner
       to plead out of range to 40 years. After explaining the range of punishments,
       Petitioner affirmed that he understood he was pleading out of range in order
       to have a lesser conviction.

       The petitioner now contends that the post-conviction’s courts conclusions of law in
this case were erroneous because the petitioner’s testimony established that he did not
knowingly and voluntarily enter the plea. Specifically, he refers to his testimony that trial
counsel “rather than telling him his sentences would be 15 to 25 years if convicted of second
degree murder at trial, [trial] counsel advised him that ‘forty years was the right thing for
second degree murder.’” We cannot conclude that the petitioner is correct.

       After review, we find nothing in the record which would preponderate against the
post-conviction court’s findings. The order is abundantly clear that the court did not find the
petitioner to be a credible witness, instead accrediting the testimony of trial counsel. As we
have previously noted on multiple occasions, it is not the province of this court to reevaluate
or disturb such credibility determinations. Trial counsel specifically testified that he
informed the petitioner regarding the sentencing ranges at issue in the plea agreement. The
petitioner was properly advised by trial counsel, and a claim of deficient performance simply
cannot be established on these facts.

       Moreover, as noted by the post-conviction court, the transcript of the guilty plea
hearing completely belies the petitioner’s argument. The petitioner was advised at length by

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the court prior to acceptance of the plea. The court specifically stated that the petitioner was
pleading outside his range and informed him what Range I punishment was. The petitioner
stated on the record that he understood the plea and his resulting sentence. “A petitioner’s
sworn responses to the litany of questions posed by the trial judge at the plea submission
hearing represent more than lip service.” Alfonso Camacho v. State, No. M2008-00410-
CCA-R3-PC (Tenn. Crim. App., at Nashville, Aug. 18, 2009). A petitioner’s sworn
statements and admission of guilt stand as a witness against the petitioner at the post-
conviction hearing when the petitioner disavows those statements. Id.

        The petitioner has failed to put forth any showing of an entitlement to relief. It
appears from the record that he was appropriately advised of the nature of the consequences
of his acceptance of the plea. The petitioner was aware of the conviction of his co-defendant,
Ms. Birdwell, for felony murder and especially aggravated robbery based upon an
involvement in the crime even less than the petitioner’s. He testified at the hearing that this
was in fact a factor in his decision to accept the plea. It seems that the petitioner, likely
facing a life sentence for felony murder, chose to accept the plea agreement, which
represented the best possible choice among the alternatives. He cannot now negate the
decision he made in order to attempt to seek a lesser conviction. The post-conviction court
appropriately determined that trial counsel was not ineffective and that the plea was entered
knowingly and voluntarily.

                                       CONCLUSION

       Based upon the foregoing, the denial of post-conviction relief is affirmed.




                                                    _________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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