        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                  April 17, 2012 Session

        NATHAN CORDELL BURKEEN v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Maury County
                      No. 16485     Robert L. Holloway, Judge


                  No. M2010-02302-CCA-R3-PC - Filed June 21, 2012


The petitioner, Nathan Cordell Burkeen, appeals the denial of his petition for post-conviction
relief, arguing that he received ineffective assistance of trial counsel, which rendered his
guilty plea unknowing and involuntary. Following our review, we affirm the denial of the
petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which N ORMA M CG EE O GLE and
R OGER A. P AGE, JJ., joined.

Matthew H. Dunkin, Lawrenceburg, Tennessee, for the appellant, Nathan Cordell Burkeen.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Mike Bottoms, District Attorney General; and Dan Runde, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                          FACTS

        On August 23, 2006, the petitioner was indicted by the Maury County Grand Jury for
first degree premeditated murder, first degree felony murder, and aggravated robbery based
on his having shot and killed a store clerk, Veda White, during his March 20, 2006 armed
robbery of a Columbia business, the “Spur Market.” On January 25, 2008, the petitioner pled
guilty in count two of the indictment to second degree murder in exchange for a sentence of
forty-two years at 100 percent in the Department of Correction. In accordance with the plea
agreement, counts one and three of the indictment were nolle prosequied.
        On February 5, 2009, the petitioner filed a pro se petition for post-conviction relief
in which he claimed, among other things, that he received ineffective assistance of counsel,
which led to his entry of an unknowing and involuntary guilty plea. In an amended petition
filed after the appointment of post-conviction counsel, the petitioner alleged that counsel
failed to adequately meet with him, failed to adequately prepare for trial, and failed to explain
that the deal offered by the State was a “hybrid plea” involving sentencing outside the
petitioner’s ordinary range. The petitioner asserted that, due to counsel’s deficiencies in
representation, at the time he entered his plea he lacked an understanding of, among other
things, the extent and nature of the sentence involved in his plea, his options were he to
proceed to trial, and the nature of the evidence against him, including the testimony his co-
defendant intended to offer against him in exchange for the co-defendant’s plea bargain
agreement with the State.

       At the evidentiary hearing, Sergeant Joey Gideon of the Columbia Police Department
described his investigation of the crime and the evidence that led to the development of the
petitioner and his co-defendant, Ricardo Walker, as suspects. This included the store’s
videotape showing that the shooter was wearing a camouflage jacket with fur on it; a
statement by Deonte Brantley that the petitioner, who was dressed in a jacket like that worn
by the shooter on the surveillance tape, called Brantley to come pick him and Walker up
immediately after the shooting, telling him that they had just “hit a lick,”or committed a
robbery; and the statement of Walker detailing the crime. Sergeant Gideon testified that both
Brantley and Walker testified at the petitioner’s juvenile transfer hearing. He said that the
petitioner was present for the hearing and, thus, would have heard Walker’s testimony about
the petitioner’s role in the crime.

        The District Public Defender for the 22nd Judicial District, Claudia Jack,1 testified
that because the petitioner was facing th-e most serious punishment available for a juvenile,
her office treated the case as seriously as they would have treated a death penalty case.
Among other things, she contracted with a mitigation specialist; provided the petitioner with
at least three complete copies of discovery; and gave the petitioner copies of the statutes
describing the crimes and the range of punishment for each offense. Jack testified that she
explained to the petitioner the seriousness of the case and the penalty he potentially faced.
She said she was not personally involved in explaining the hybrid plea offer that the
petitioner ultimately accepted, but her assistant public defenders would have been very


        1
          It is the policy of the author of this opinion not to name counsel who have represented a petitioner
in a post-conviction case when the claims have been determined to be without merit. We have deviated from
that policy in this matter because of the confusion which might result if we referred, instead, to lawyers one
through five. Additionally, we note that the claims against defense counsel have been determined to be
baseless, both by the post-conviction court and this court.

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careful to explain the plea to him. In addition, she made sure that the mitigation specialist
“visited with him at length” before he accepted the offer to ensure that he understood his
options, the plea deal, and its consequences. She later explained that none of the attorneys
in her office would have used the term “hybrid plea” in talking with the petitioner about the
deal but, instead, would have referred to it as pleading outside his range.

        Jack further testified that just before the transfer hearing the State offered a plea deal
of thirty-five years to whichever one of the defendants volunteered first to testify against the
other. However, by the time the petitioner decided he wanted to accept that plea, it was too
late because Walker had already taken the offer. Jack agreed that Walker testified at length
at the transfer hearing about the crime and the petitioner’s role in it. She said that Walker
was ultimately given a twenty-year sentence at thirty-five percent for his testimony and that
the petitioner was present in the courtroom when that fact was elicited at the transfer hearing.

       Bob Stovall, an assistant public defender with over twenty years of experience in
criminal defense, testified that he vigorously cross-examined Walker at the petitioner’s
lengthy juvenile transfer hearing in an attempt to make the State think twice about presenting
him to the jury at trial. His hope, which was ultimately borne out, was that the State would
consider making the petitioner some sort of plea offer.

        Michelle Vandere, who had been licensed for almost twenty years by the time of the
hearing, testified that she was co-counsel in the petitioner’s case. She said her involvement
began in juvenile court where she drafted three motions, including a motion for a mental
evaluation. She also hired the mitigation expert and a forensic psychiatrist to perform an
additional evaluation of the petitioner to see if they could obtain any useful information for
trial or sentencing. During her meetings with the petitioner, she provided him with a
complete duplicate copy of the discovery he had already been given, reviewed the evidence
with him, and discussed the elements of the offenses and the possible punishments. She said
that about a week before the trial was scheduled to begin the petitioner inquired if the thirty-
five-year offer was still available. She, therefore, contacted the prosecutor, who responded
with the settlement offer that the petitioner ultimately accepted.

        Vandere testified that she met with the petitioner on three separate occasions to
discuss the plea offer in great detail with him. On the first two occasions, the mitigation
expert accompanied her, and on the third occasion, she was accompanied by Assistant Public
Defender Robin Farber. In addition, the mitigation expert also met with the petitioner to
discuss the plea deal on at least one occasion by herself. Vandere described the detailed and
lengthy discussions they had with the petitioner about the nature of the offer and the fact that
it involved a hybrid plea with a forty-two-year sentence at 100 percent, which was outside
his normal range. She said that the trial court also went into great detail with the petitioner

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during the plea colloquy to ensure that he understood the plea. Finally, she testified that the
defense team continued to prepare for trial during the period in which the petitioner was
deciding whether he wanted to accept the plea.

        Shipp Weems, an assistant public defender who was licensed to practice law in 1976,
testified that he became involved as co-counsel in the petitioner’s case after it had been
transferred to circuit court. He recalled that he met with the petitioner on at least three or
four different occasions, during which times he reviewed with the petitioner the charges
against him, the ranges of punishments, the State’s evidence, and the discovery materials.
He said he continued to work on the case during the week that preceded the trial date and
would have been fully prepared to try the case had the petitioner decided to reject the plea
deal. There was no alibi or any other affirmative defense and their defense strategy would
have consisted of trying to create reasonable doubt by vigorous cross-examination of the
State’s witnesses, especially Walker. He was not present when the petitioner entered his
guilty plea.

       Ricardo Walker testified that he was offered a plea bargain in the case if he would
agree to testify that the petitioner was the shooter. In his opinion, the prosecutor and his
defense attorney did not care about the truth but, instead, were only interested in getting him
to point the finger at the petitioner.

        The petitioner, who said he had completed the tenth grade, testified that during the
two years before he entered his guilty plea, he was visited twice by Ms. Jack, twice by Mr.
Weems, and twice by Ms. Vandere. He could not recall any of those attorneys having
discussed range of punishment or hybrid plea agreements with him and said that none of
them ever reviewed with him the complete evidence in the case. The petitioner complained
that all of his attorneys painted a negative picture of his chances at trial and said that he felt
he never “had a fair chance from the start” and had no real choice other than to plead guilty.
He acknowledged, however, that he understood at the time he pled guilty that he was
pleading to second degree murder in exchange for a forty-two-year sentence at 100 percent,
which was outside his ordinary range of fifteen to twenty-five years.

       Attorney John Colley, who represented Ricardo Walker, testified that the deal Walker
accepted from the State was based on his giving truthful testimony in the case, which
included revealing the name of the shooter rather than referring to him as “the shooter,” as
Walker wanted to do. He said no one told Walker whom to identify as the shooter.

       On September 21, 2010, the post-conviction court entered a detailed written order
denying the petition in which it found, among other things, that the petitioner received
effective assistance of counsel and that he was fully aware of the nature and consequences

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of his plea, including that it involved sentencing outside his range. This appeal followed.

                                          ANALYSIS

        Post-conviction relief “shall be granted when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee
or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103 (2006). The
petitioner bears the burden of proving factual allegations by clear and convincing evidence.
Id. § 40-30-110(f). When an evidentiary hearing is held in the post-conviction setting, the
findings of fact made by the court are conclusive on appeal unless the evidence
preponderates against them. See Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006). When
reviewing factual issues, the appellate court will not reweigh the evidence and will instead
defer to the post-conviction court’s findings as to the credibility of witnesses or the weight
of their testimony. Id. However, review of a post-conviction court’s application of the law
to the facts of the case 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, which presents
mixed questions of fact and law, is reviewed de novo, with a presumption of correctness
given only to the post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

       To establish a claim of ineffective assistance of counsel, the petitioner has the burden
to show both that trial counsel’s performance was deficient and that counsel’s deficient
performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S.
668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App.1997) (noting
that same standard for determining ineffective assistance of counsel that is applied in federal
cases also applies 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.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The

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prejudice prong of the test is satisfied by showing a reasonable probability, i.e., 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.
In the context of a guilty plea, the petitioner must show a reasonable probability that were
it not for the deficiencies in counsel’s representation, he would not have pled guilty but
would instead have insisted on proceeding to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985);
House v. State, 44 S.W.3d 508, 516 (Tenn. 2001).

       Before a guilty plea may be accepted, there must be an affirmative showing in the trial
court that it was voluntarily and knowingly entered. Boykin v. Alabama, 395 U.S. 238, 242
(1969); State v. Mackey, 553 S.W.2d 337, 340 (Tenn. 1977). This requires a showing that
the defendant was made aware of the significant consequences of the plea. State v. Pettus,
986 S.W.2d 540, 542 (Tenn. 1999) (citing Mackey, 533 S.W.2d at 340). A plea is not
“voluntary” if it results from ignorance, misunderstanding, coercion, inducements, or threats.
Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The trial court must determine if
the guilty plea is “knowing” by questioning the defendant to make sure he or she fully
understands the plea and its consequences. Pettus, 986 S.W.2d at 542; Blankenship, 858
S.W.2d at 904.

       Because the plea must represent a voluntary and intelligent choice among the
alternatives available to the defendant, the trial court may look at a number of circumstantial
factors in making this determination. Blankenship, 858 S.W.2d at 904. These factors
include: (1) the defendant’s relative intelligence; (2) his familiarity with criminal
proceedings; (3) whether he was represented by competent counsel and had the opportunity
to confer with counsel about alternatives; (4) the advice of counsel and the court about the
charges against him and the penalty to be imposed; and (5) the defendant’s reasons for
pleading guilty, including the desire to avoid a greater penalty in a jury trial. Id. at 904-05.

       The petitioner argues that trial counsel were deficient by their failure to adequately
meet with him, to adequately prepare for trial, and to explain the nature of the hybrid plea to
him. He further argues that these alleged deficiencies in counsel’s performance resulted in
his entering an unknowing and involuntary guilty plea because he felt he had no other choice
than to accept the plea offer. However, the testimony of the public defenders who worked
on the petitioner’s case established that they met with the petitioner on multiple occasions,
provided him with three complete copies of discovery, reviewed the evidence against him
and the charges and sentencing ranges, prepared extensively for trial, and went to great
lengths to explain the plea bargain agreement to him and to ensure that he understood its
consequences. We also note that the petitioner acknowledged at the evidentiary hearing that
he understood, at the time he entered his plea, that he was pleading guilty to second degree
murder in exchange for a sentence of forty-two years at 100 percent, which was outside his

                                               -6-
normal range. His understanding of the plea agreement is also revealed by his responses at
the guilty plea hearing, where the trial court questioned him at length about whether he
understood the nature and consequences of the plea, and he assured the trial court that he did.
We conclude, therefore, that the evidence does not preponderate against the post-conviction
court’s findings that the petitioner received effective assistance of counsel and that his guilty
plea was knowingly and voluntarily entered.

                                       CONCLUSION

      Based on our review, we conclude that the petitioner has failed to meet his burden of
showing that he received ineffective assistance of counsel or that his guilty plea was
unknowing and involuntary. Accordingly, we affirm the denial of the petition for post-
conviction relief.


                                                     _________________________________
                                                     ALAN E. GLENN, JUDGE




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