        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs August 18, 2015

                   MALIK JONES v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Knox County
                    No. 102940     Steven Wayne Sword, Judge




              No. E2015-00106-CCA-R3-PC – Filed September 24, 2015
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Petitioner, Malik Jones, entered guilty pleas in three separate cases, resulting in a total
effective sentence of thirty-one years. Petitioner then sought post-conviction relief on the
basis of an involuntary guilty plea and ineffective assistance of counsel. After a hearing,
the post-conviction court denied relief. Because Petitioner has failed to provide clear and
convincing evidence that he received ineffective assistance of counsel or that his plea was
involuntary, we affirm the judgment of the post-conviction court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which JAMES CURWOOD
WITT, JR., and JOHN EVERETT WILLIAMS, JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee for the petitioner, Malik Jones.

Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Phil Morton,
Assistant District Attorney General, for the respondent, State of Tennessee.


                                        OPINION

       On July 31, 2013, Petitioner entered guilty pleas in Knox County in case numbers
100466, 100949, and 101032. As a result of the guilty pleas, Petitioner received a total
effective sentence of thirty-one years, to be served consecutively to the sentence for
Petitioner‟s prior aggravated assault conviction, for which he was on probation at the
time of these offenses.
       In case number 10046, Petitioner was indicted for two counts of aggravated
burglary, five counts of especially aggravated kidnapping, two counts of aggravated
robbery, two counts of attempted aggravated robbery, three counts of felon in possession
of a weapon, one count of employing a firearm during the commission of a dangerous
felony, and one count of evading arrest.1 The charges stemmed from Petitioner‟s
involvement in a home invasion and robbery where children were present. He then
evaded arrest after the crime. Petitioner pled guilty to two counts of especially
aggravated kidnapping, one count of aggravated robbery, one count of attempted
aggravated robbery, one count of aggravated burglary, one count of employing a firearm
during the commission of a dangerous felony, one count of felon in possession of a
firearm, and one count of misdemeanor evading arrest in exchange for a total effective
sentence of twenty years. The remaining counts were merged into Petitioner‟s guilty-
pleaded convictions.

       In case number 100949, Petitioner was indicted on five counts of possession of
more than .5 grams of cocaine with intent to sell within a Drug Free School Zone, two
counts of criminal trespass, and one count of public intoxication.2 The charges arose
after Petitioner was arrested on the grounds of Knoxville Community Development
Corporation (“KCDC”) for criminal trespass. A search incident to arrest revealed
cocaine packaged for resale in his pocket. Petitioner entered a guilty plea to one count of
possession of more than .5 grams of cocaine with the intent to sell, a Class B felony. In
exchange for the guilty plea, the state agreed to drop the Drug Free Zone enhancement
and all other counts of the indictment. Petitioner received a sentence of eight years as a
Range I, standard offender to be served consecutively to the twenty-year sentence in case
number 100466.

       In case number 101032, Petitioner was indicted on one count of simple possession
of a Schedule III controlled substance, third or subsequent offense; three counts of felon
in possession of a weapon; evading arrest; and criminal trespass. Petitioner was
discovered on KCDC property after having been placed on the trespass list, ran when
approached by police, and was discovered in possession of a handgun. Petitioner entered
a guilty plea to one count of felon in possession of a firearm with a sentence of three
years as a Range I, standard offender to be served consecutively to the eight-year
sentence in case number 100949. The remaining charges were dismissed.

       Petitioner filed a timely pro se petition for post-conviction relief in which he
alleged that he received ineffective assistance of counsel and that his guilty plea was

        1
        This information is gleaned from the transcript of the plea hearing and the plea submission form.
The judgments and the indictments do not appear in the record on appeal.
        2
            Again, this information is taken from the transcript of the plea hearing and plea submission
form.
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unknowingly and involuntarily entered. Counsel was appointed and an amended petition
was filed. In the amended petition, Petitioner additionally asserted that trial counsel
failed to fully explain his sentences and that his guilty plea was the “result of coercion by
the insistence of his trial counsel that he plead guilty and the emotional pressure applied
to him by his . . . mother‟s concern.”

        At the post-conviction hearing, Petitioner testified that he was originally
represented by a court-appointed attorney other than trial counsel. Petitioner had
difficulty communicating with this attorney so the trial court removed him from the case
and replaced him with trial counsel. Once Petitioner met with trial counsel, he requested
that trial counsel subpoena one of the accomplices, reschedule the trial date, and file a
motion to set aside his conviction in the kidnapping case. He was disappointed that trial
counsel failed to comply with these requests. Trial counsel instead filed a motion to
suppress the evidence in Petitioner‟s drug-related arrest. There was a suppression
hearing held on the motion, but Petitioner did not recall the result of the hearing.

       Petitioner admitted that trial counsel discussed the kidnapping related charges and
possible sentences. Additionally, trial counsel provided him with statements from
victims and accomplices. From the statements, trial counsel opined that the victims
would identify Petitioner as the perpetrator who possessed the gun during the robbery and
kidnapping. Trial counsel explained that even if Petitioner was not found to be in
possession of the gun, he could still be convicted under a theory of criminal
responsibility.

       Petitioner claimed that trial counsel only discussed the kidnapping and robbery
case with him prior to the plea and did not discuss the other charges. However, on cross
examination, Petitioner acknowledged that trial counsel informed him in detail about the
elements of the drug-related offenses and the possible punishment if he chose not to
accept the guilty plea. Petitioner also claimed trial counsel did not explain the plea
agreement in full. Specifically, he complained that trial counsel failed to explain the
difference between concurrent and consecutive sentences. Despite this complaint,
Petitioner acknowledged that he understood the definition of the term consecutive.
Petitioner admitted that he was serving a sentence for aggravated assault at the time of
the plea hearing but that he was not aware that this sentence would be required to be
served consecutively to the sentence he received as a result of the plea.

       Petitioner claimed trial counsel wanted him to accept the plea offer because there
was no trial strategy. To support his argument, Petitioner pointed to a discussion he had
with trial counsel wherein trial counsel told him if he lost at the kidnapping trial he would
receive fifteen to twenty years on each count and “the best thing [he could] do [wa]s to
plea out and take the twenty years.” Petitioner sought a new attorney, but the trial court
denied his request.
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        Petitioner explained that he discussed the case and the plea agreement with both
trial counsel and his mother at the plea hearing. Petitioner‟s mother told him to take the
plea agreement if he wanted to spend time with her outside of an institution. This made
Petitioner feel “forced” to accept the plea agreement.

        Petitioner admitted that he signed and received the rights waiver form and that
trial counsel attempted to explain the “complicated” form. However, again Petitioner
insisted that trial counsel did not go over each individual count or explain the entire plea
agreement. Petitioner testified that he responded to the questions from the trial court
during the plea agreement in order to avoid rejection of the agreement by the trial court.
Petitioner admitted that he had familiarity with the criminal justice system from his
juvenile weapon and drug charges. Petitioner had previously pled guilty to aggravated
assault. He maintained, however, that he did not commit the offense but pled guilty only
because he was identified as the shooter.

       Trial counsel testified that he met with Petitioner on numerous occasions prior to
the plea, reviewed the court file and discovery, and hired a private investigator. Trial
counsel informed Petitioner as to the length of each possible sentence. Trial counsel
explained to Petitioner that he would most likely be a Range I offender. Trial counsel
discussed the possible enhancement and mitigating factors and distinguished concurrent
versus consecutive sentences. Trial counsel testified that he thought Petitioner
understood everything they discussed.

       Trial counsel noted the severity of the charges faced by Petitioner prior to the plea,
including the federal implications of Petitioner‟s charges. Trial counsel was also aware
of the fact that Petitioner was on probation for aggravated assault at the time of the drug-
related offenses and was on bond for the drug-related offenses when he committed the
kidnapping crimes.

        Trial counsel attempted to negotiate a plea agreement while preparing for trial.
Trial counsel admitted that he was prepared for the kidnapping trial but that the drug-
related case had several unresolved pretrial issues. Trial counsel believed that Petitioner
would be convicted of all the counts in each case but wanted to try to prove that the
kidnapping was incidental to the robbery. Despite this theory, trial counsel recognized
that the minor victims could identify Petitioner. Additionally, one of the accomplices had
already pled guilty to charges relating to the incident, and his statements could have been
used against Petitioner at trial.

       Trial counsel recalled that Petitioner‟s family came to court on the day of the trial.
Trial counsel was surprised because Petitioner‟s family had not been very supportive up
to that time. Petitioner met with his family who encouraged him to take the plea
                                            -4-
agreement. Petitioner accepted the agreement after trial counsel wrote it out and
explained it in detail.

      At the conclusion of the hearing, the post-conviction court took the matter under
advisement. Later, in a written order, the post-conviction court denied relief. Petitioner
now appeals.

                                          Analysis

       Post-conviction relief is available for any conviction or sentence that 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. In order to
prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations
by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d
152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.”
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).

       Both the Sixth Amendment to the Constitution of the United States and Article I,
section 9 of the Tennessee Constitution guarantee the right of an accused to the effective
assistance of counsel. In order to sustain a claim of 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 the two prong test established by Strickland v. Washington, 466
U.S. 668, 687 (1984), a petitioner must prove that counsel‟s performance was deficient
and that the deficiency prejudiced the defense. See Burnett v. State, 92 S.W.3d 403, 408
(Tenn. 2002). Because a petitioner must establish both elements in order to prevail on a
claim of ineffective assistance of counsel, “failure to prove either deficient performance
or resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley,
960 S.W.2d at 580. “Indeed, a court need not address the components in any particular
order or even address both if the [petitioner] makes an insufficient showing of one
component.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466
U.S. at 697).

       The test for deficient performance is whether counsel‟s acts or omissions fell
below an objective standard of reasonableness under prevailing professional norms.
Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the
questionable conduct from the attorney‟s perspective at the time, Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and “should indulge a strong presumption that counsel‟s
conduct falls within the wide range of reasonable professional assistance.” State v.
Burns, 6 S.W.3d 453, 462 (Tenn. 1999). A defendant in a criminal case is not entitled to
perfect representation, only constitutionally adequate representation. Denton v. State,
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945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of
ineffective assistance of counsel, „we address not what is prudent or appropriate, but only
what is constitutionally compelled.‟” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting
United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)). This Court will not use
hindsight to second-guess a reasonable trial strategy, Adkins v. State, 911 S.W.2d 334,
347 (Tenn. Crim. App. 1994), even if a different procedure or strategy might have
produced a different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim.
App. 1980). “The fact that a particular strategy or tactic failed or hurt the defense does
not, standing alone, establish unreasonable representation.” House v. State, 44 S.W.3d
508, 515 (Tenn. 2001) (quoting Goad, 938 S.W.2d at 369). However, this deference to
the tactical decisions of trial counsel is dependent upon a showing that the decisions were
made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.
App. 1992).

        Even if a petitioner shows that counsel‟s representation was deficient, the
petitioner must also satisfy the prejudice prong of the Strickland test in order to obtain
relief. Prejudice is shown where “there is a reasonable probability that, but for counsel‟s
unprofessional errors, the result of the proceeding would have been different.” Burns, 6
S.W.3d at 463 (quoting Strickland, 466 U.S. at 694). This reasonable probability must be
“sufficient to undermine confidence in the outcome.” Id. In the context of a guilty plea,
the specific inquiry is whether “there is a reasonable probability that, but for counsel‟s
errors, [the petitioner] would not have pleaded guilty and would have insisted on going to
trial.” Calvert v. State, 342 S.W.3d 477, 486 (Tenn. 2011) (quoting Hill v. Lockhart, 474
U.S. 52, 59 (1985)).

        Whether a petitioner has been denied the effective assistance of counsel presents a
mixed question of law and fact. Burns, 6 S.W.3d at 461. This Court will review the
post-conviction court‟s findings of fact “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); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). This Court will not re-weigh
or re-evaluate the evidence presented or substitute our own inferences for those drawn by
the trial court. Henley, 960 S.W.2d at 579. Questions concerning witness credibility, the
weight and value to be given to testimony, and the factual issues raised by the evidence
are to be resolved by the post-conviction court. Momon, 18 S.W.3d at 156 (citing
Henley, 960 S.W.2d at 578). However, the post-conviction court‟s conclusions of law
and application of the law to the facts are reviewed under a purely de novo standard, with
no presumption of correctness. Fields, 40 S.W.3d at 458.

        Once a defendant enters a guilty plea, the effectiveness of counsel is only relevant
to the extent that it affects the voluntariness of the plea. Hill v. Lockhart, 474 U.S. 52, 56
(1985). “To pass constitutional muster . . . a guilty plea must be entered knowingly,
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voluntarily, and intelligently.” Ward v. State, 315 S.W.3d 461, 465 (Tenn. 2010)
(citations omitted). “[A] plea is not „voluntary‟ if it is the product of „[i]gnorance,
incomprehension, coercion, terror, inducements, [or] subtle or blatant threats.‟”
Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Boykin v. Alabama,
395 U.S. 238, 242-43 (1969)). “[T]he standard of inquiry is whether the plea represents a
voluntary and intelligent choice among the alternative courses of action open to the
defendant.” Ward, 315 S.W.3d at 465 (citation and internal quotation marks omitted).
“If the accused is to make a „voluntary and intelligent choice among the alternative
courses of action‟ available to him, counsel must advise the accused, among other things,
of the choices that are available to him as well as the probable outcome of these choices.”
Parham v. State, 885 S.W.2d 375, 384 (Tenn. Crim. App. 1994) (footnotes omitted).
When assessing the validity of a guilty plea, a court must look at the totality of the
circumstances, including such factors 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.

Powers v. State, 942 S.W.2d 551, 556 (Tenn. 1996) (quoting Blankenship, 858 S.W.2d at
904).

        The record presented on appeal supports a determination that Petitioner failed to
demonstrate that, but for the alleged deficiencies of counsel, he would have rejected the
plea agreement and insisted upon a trial. Petitioner did not present sufficient testimony at
the hearing to show that he would have insisted upon proceeding to trial or that he did not
understand that some of his convictions would be served consecutively. Moreover, the
post-conviction court found Petitioner‟s testimony at both the plea hearing and the post-
conviction hearing belied this claim, noting that the “transcript of the plea hearing clearly
indicates that the consequences of the plea were explained in detail to the Petitioner.”
Petitioner conceded that he had prior experience with the criminal justice system.
Additionally, although he claimed he was not apprised of the contents and effect of the
plea agreement, Petitioner agreed to enter the plea after extensive questioning from the
trial court with regard to his understanding of the agreement and his satisfaction with
counsel‟s representation. Finally, Petitioner conceded at the post-conviction hearing that
trial counsel had discussed the facts of the case with him. Petitioner failed to show that
the plea was unknowing and involuntary. Petitioner failed to show by clear and
convincing evidence that trial counsel‟s performance in association with the guilty plea
was deficient or that he was prejudiced by the alleged deficiencies.
                                            -7-
       Likewise, with regard to trial counsel‟s alleged ineffectiveness, Petitioner admitted
that he informed the trial court during the plea acceptance hearing that he was satisfied
with trial counsel‟s representation. Trial counsel testified that he had a trial strategy, was
prepared for trial despite several unresolved pretrial issues, and that he had discussed the
merits of the case with Petitioner. The post-conviction court accredited this testimony,
noting that Petitioner “may not be happy with the lengthy sentence he faces, [but] the
court finds the Petitioner fully knew what he was doing when he pled guilty and that he
entered the agreement voluntarily.” The record supports this finding, and the post-
conviction court‟s credibility determinations cannot be reviewed on appeal by this Court.
Momon, 18 S.W.3d at 156 (citing Henley, 960 S.W.2d at 578).

                                         Conclusion

              Based on the foregoing, we affirm the judgment of the post-conviction
court.


                                                         ___________________________
                                                         TIMOTHY L. EASTER, JUDGE




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