       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on Briefs August 5, 2008

              ALLAN JOSEPH ROBLES v. STATE OF TENNESSEE

                   Direct Appeal from the Circuit Court for Henry County
                           Nos. 13673 Donald E. Parish, Judge




                  No. W2008-00038-CCA-R3-PC - Filed November 10, 2008



The petitioner, Allan Joseph Robles, appeals the Henry County Circuit Court’s denial of his petition
for post-conviction relief from his conviction for aggravated sexual battery and resulting twelve-year
sentence. On appeal, he contends that he received the ineffective assistance of counsel because his
trial attorney failed to file a motion to suppress his confession to police. Upon review of the record
and the parties’ briefs, we affirm the judgment of the post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which THOMAS T. WOODALL and D.
KELLY THOMAS, JR., JJ., joined.

Jim L. Fields, Paris, Tennessee, for the appellant, Allan Joseph Robles.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General;
Hansel Jay McCadams, District Attorney General; and Beth Boswell-Hall, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                      I. Factual Background

        We glean the following facts from this court’s opinion in the petitioner’s direct appeal: On
February 7, 2004, the petitioner was at home alone with his girlfriend’s eleven-year-old daughter and
touched the victim over her jeans in her groin area. State v. Allan Joseph Robles, No.
W2005-00516-CCA-R3-CD, 2006 Tenn. Crim. App. LEXIS 296, at *2 (Jackson, Apr. 10, 2006),
perm. to appeal denied, (Tenn. 2006). The victim later told her mother, and her mother confronted
the petitioner. Id. at *4. According to the victim’s mother, the petitioner admitted to her that he
touched the victim between her legs. Id. at *5. On February 10, 2004, Detective William Gary
Vandiver of the Henry County Sheriff's Department interviewed the petitioner. Id. at *10. During
the interview, the petitioner gave a written statement in which he said he got an “urge” and “put my
hand between her legs, over her pants but on her private.” Id. at *11.

        After this court affirmed the petitioner’s conviction and our supreme court denied his
application for permission to appeal, the petitioner filed a timely petition for post-conviction relief.
The petitioner claimed, in pertinent part, that he received the ineffective assistance of counsel
because his trial attorney failed to file a motion to suppress his confession. According to the petition,
Detective Vandiver interrogated the petitioner and “repeatedly question[ed] the Petitioner until he
elicited an answer he deemed appropriately disparaging.” The petition also claimed that Detective
Vandiver told the petitioner that the petitioner “would be at risk to be deported back to the
Philippines” if he did not cooperate. In the petition, the petitioner said he admitted to touching the
victim because he feared deportation. The post-conviction court appointed counsel to represent the
petitioner.

         At the evidentiary hearing, the petitioner testified that he was born in the Philippines and that
he came to the United States in 1987. The petitioner said he did not know how to speak English at
that time but learned to speak English “gradually . . . through the years.” He stated that he “went to
school as soon as [he] came here from the Philippines and . . . was in high school in Chicago.”
Although he did not graduate from high school, he obtained his GED in 2000. He acknowledged
that in his petition for post-conviction relief, he claimed that his confession was coerced and that he
received the ineffective assistance of counsel. He stated that Detective Vandiver read him Miranda
warnings before his interview. After he gave his statement, Detective Vandiver asked him to sign
some papers. The petitioner stated that he was “a little intimidated” and that he signed his statement.
Detective Vandiver did not threaten the petitioner but told the petitioner he knew the petitioner “had
done this before.” Detective Vandiver also told the petitioner that he would get help for the
petitioner from the district attorney if the petitioner cooperated. Regarding the petitioner’s claim in
his petition that Detective Vandiver threatened him with deportation, the petitioner said, “I kinda
made that up.” The petitioner said he did not believe his mind was clear when he gave his
confession because he had smoked three or four marijuana cigarettes the previous night. Detective
Vandiver did not ask the petitioner before the interview if the petitioner had used drugs or alcohol.

        The petitioner testified that he met with trial counsel three or four times and that counsel
spent no more than one hour talking with him. Counsel advised the petitioner to waive his
preliminary hearing, and the State offered to let the petitioner plead guilty in return for an eight-year
sentence to be served at eighty-five percent. The petitioner did not want to plead guilty, but counsel
told the petitioner that a jury would convict him if he went to trial. Nevertheless, the petitioner
decided to go to trial “to prove that I’m innocent.” The petitioner thought that counsel did a good
job during the trial and that counsel was going to be able to prove the victim was lying. However,
after the jury convicted the petitioner, the petitioner “realized that a lot of things went wrong.” He
said counsel did not discuss filing pretrial motions, such as a motion to suppress, with him.

        On cross-examination, the petitioner acknowledged that he could read English but testified


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that he still had problems with his vocabulary. When asked if he understood everything trial counsel
said to him, he stated, “Yes, pretty clearly, this time.” Although Detective Vandiver wrote out the
petitioner’s statement, the petitioner initialed the end of every line and signed the bottom of each
page. The petitioner acknowledged that counsel filed a motion for discovery prior to trial and that
counsel provided him with a copy of all discovery materials. Counsel advised the petitioner not to
testify at trial, and the petitioner followed counsel’s advice. However, the petitioner had wanted to
testify.

         Detective Vandiver testified that he told the petitioner that if the petitioner gave a statement,
it would be provided to the district attorney’s office and the court. Detective Vandiver interviewed
the petitioner and wrote the petitioner’s statement. In addition to the district attorney’s office, the
petitioner’s statement was provided to trial counsel. On cross-examination, Detective Vandiver
testified that he went over the petitioner’s rights with him and that the petitioner signed a waiver of
rights form. The petitioner initialed each line of the written statement and signed the bottom of each
page. The petitioner did not appear to be under an altered mental state at the time of the confession.
On redirect examination, Detective Vandiver testified that he did not know the petitioner was not
a United States citizen at the time of the petitioner’s interview and that he did not threaten to have
the petitioner deported.

        The petitioner’s trial attorney testified that he had been a public defender since 1987. He
received a copy of the petitioner’s statement and went over the statement with the petitioner. He
questioned the petitioner about whether Detective Vandiver had made any threats or promises and
asked the petitioner about the petitioner’s having signed the written statement. Based upon his
discussions with the petitioner, he saw no grounds to support a motion to suppress. The petitioner
originally had agreed to accept the State’s eight-year plea offer but decided after “Motions Day” that
he was going to trial. Even though “Motions Day” had passed, counsel would have filed a motion
to suppress if he had thought grounds existed for it. The petitioner told counsel that he had a GED,
and counsel saw no indication that the petitioner did not understand what was going on. Counsel
told the petitioner that he had a right to testify but that the State would be able to question him about
some of his prior convictions. The petitioner decided not to testify.

        On cross-examination, counsel testified that he met with the petitioner eight to ten times.
Counsel had a forensic evaluation performed on the petitioner, and the evaluation concluded the
petitioner was competent and sane at the time of the crime. Counsel acknowledged that on the day
of the petitioner’s preliminary hearing, the petitioner waived the hearing because he planned to
accept the State’s plea offer. After “Motions Day,” the petitioner told counsel he wanted to go to
trial. Counsel acknowledged that prior to trial, he filed a motion for discovery and a motion in
limine regarding the State’s being able to impeach the petitioner with his prior convictions. On
redirect examination, counsel testified that he did not remember the petitioner telling him that the
petitioner had smoked marijuana the night before his confession to Detective Vandiver.

        In the post-conviction court’s written order, it noted that Detective Vandiver testified the
petitioner did not appear to be under an altered mental state when he gave his confession and that


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Detective Vandiver gave the petitioner Miranda warnings prior to the interview. The court
concluded that no credible evidence supported the petitioner’s claim that his confession was coerced.
Regarding the petitioner’s claim that counsel should have filed a motion to suppress his confession,
the court noted that counsel testified he did not file the motion because no grounds existed to support
it. The post-conviction court agreed with counsel’s conclusion and held that “counsel cannot be
inadequate for failing to file a baseless motion.” The court denied the petition for post-conviction
relief.

                                            II. Analysis

       The petitioner claims that he received the ineffective assistance of counsel because his trial
attorney failed to file a “routine” motion to suppress in order to determine “whether or not this
Defendant from the Phillippines understood what he was signing.” The State contends that no
grounds existed to support a motion to suppress and, therefore, that counsel did not render deficient
performance for failing to file the motion. Based upon the record and the parties’ briefs, we
conclude that the post-conviction court properly denied the petition.

        To be successful in a claim for post-conviction relief, the petitioner must prove all factual
allegations contained in the post-conviction petition by clear and convincing evidence. See Tenn.
Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means evidence in which there is no
serious or substantial doubt about the correctness of the conclusions drawn from the evidence.’”
State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co.,
833 S.W.2d 896, 901 n.2 (Tenn. 1992)). Issues regarding the credibility of witnesses, the weight and
value to be accorded their testimony, and the factual questions raised by the evidence adduced at trial
are to be resolved by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d
572, 579 (Tenn. 1997). Therefore, we afford the post-conviction court’s findings of fact the weight
of a jury verdict, with such findings being conclusive on appeal absent a showing that the evidence
in the record preponderates against those findings. Id. at 578.

        A claim of ineffective assistance of counsel is a mixed question of law and fact. See State
v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s findings of
fact de novo with a presumption that those findings are correct. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001). However, we will review the post-conviction court’s conclusions of law purely
de novo. Id.

        “To establish ineffective assistance of counsel, the petitioner bears the burden of proving
both that counsel’s performance was deficient and that the deficiency prejudiced the defense.” Goad
v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064 (1984)). In evaluating whether the petitioner has met this burden, this court
must determine whether counsel’s performance was within the range of competence required of
attorneys in criminal cases. See Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).

       The petitioner testified at the evidentiary hearing that he was “a little intimidated” by
Detective Vandiver but that the detective did not threaten him and that Detective Vandiver gave him

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Miranda warnings before the interview. Although Detective Vandiver wrote out the petitioner’s
statement, the petitioner initialed each line and signed the bottom of each page. The petitioner
testified that he smoked marijuana the night before his confession. However, Detective Vandiver
testified that he saw nothing to indicate the petitioner was in an altered mental state at the time of
the interview, and the post-conviction court obviously accredited the detective’s testimony over that
of the petitioner. Finally, although English is not the petitioner’s native language, the petitioner
never said he was unable to communicate adequately with Detective Vandiver or his attorney. Trial
counsel testified that he saw no grounds to support a motion to suppress, and the post-conviction
court agreed. We also conclude that the petitioner has failed to show that his attorney rendered
deficient performance by failing to file a motion to suppress. Therefore, he is not entitled to post-
conviction relief.

                                          III. Conclusion

         Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction
court.

                                                       ___________________________________
                                                       NORMA McGEE OGLE, JUDGE




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