         IN THE COURT OF CRIMINAL APPEALS OFTENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs October 9, 2012

               EVETTA MAI MCGEE v. STATE OF TENNESSEE

               Direct Appeal from the Circuit Court for Bedford County
                         No. 17221     Robert Crigler, Judge




               No. M2012-00343-CCA-R3-PC - Filed February 15, 2013


The petitioner, Evetta Mai McGee, appeals the denial of her petition for post-conviction
relief. The petitioner entered an open plea to one count of rape and was subsequently
sentenced to a term of eleven years in the Department of Correction. On appeal, she
contends that her plea was not entered knowingly and voluntarily because she did not
comprehend that a “best interest” plea was actually a plea of guilty. She further contends that
her plea was not proper because trial counsel was ineffective in failing to adequately prepare
and interview witnesses. Following review of the record, the denial of post-conviction relief
is affirmed.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J ERRY L. S MITH
and N ORMA M CG EE O GLE, JJ., joined.

Forest Durard, Jr. (on post-conviction) Shelbyville, Tennessee, for the appellant, Evetta Mai
McGee.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Robert Carter, District Attorney General; and Michael Randles, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION




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

               [I]n August 2008 [the petitioner], Brooke Whitaker, Kelly Dodson,
       Brandy Holden, [the victim] and Kim O’Neal were all housed in the same cell
       at the Bedford County Jail.

               On the night of August 20 after lockdown, the lights are cut off by the
       facility and the door to the cell is locked. [The victim] was in her bunk when
       she was approached by [the petitioner] and Brooke Whitaker. They held her
       down and they began sexually assaulting penetration of her vagina digitally.
       Also included oral sex in the form of cunnilingus performed on her.

             At one point Brooke Whitaker yelled for other girls to help hold her
       down. Kelly Dodson and Brandy Holden came over and assisted in holding
       down [the victim] while the sexual assault continued.

              They did ultimately let go. Essentially everyone let go.

              [The victim] checked herself that night. Basically had to cry herself to
       sleep. She is in the same room with these persons.

              The next day after many hours, ultimately she did report it to the
       authorities.

              Investigation was then done, led by Capt. Becky Hord of the sheriff’s
       department in which statements were obtained from numerous individuals.
       Virtually everyone in the cell gave a statement including Kim O’Neal who was
       not a participant. She was the only one that was not a participant as a victim
       or perpetrator. Also girls in other cells who heard [the victim] screaming no,
       stop and things like that while the assault went on.

       When the petitioner committed the above actions, she was serving a nine-year
sentence for possession, sale, or manufacture of drugs. Following the incident, a Bedford
County grand jury indicted her for aggravated rape. After negotiations, the petitioner entered
an open best interest plea of guilty to one count of rape. The trial court, based heavily upon
the petitioner’s prior convictions, sentenced her to a term of eleven years in the Department
of Correction, which was to be served consecutively to the prior nine-year sentence. The
petitioner filed a direct appeal challenging the enhancement of her sentence, but this court
affirmed. State v. Evetta Mai McGee, M2009-02266-CCA-R3-CD (Tenn. Crim. App., at

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Nashville, Jan. 13, 2011).

        Thereafter, the petitioner filed a pro se petition for post-conviction relief alleging that
her plea was not entered knowingly and voluntarily and that she had been denied her right
to the effective assistance of counsel. Counsel was appointed, and an evidentiary hearing
was held at which the petitioner, trial counsel, a detective involved in the case, a witness to
the crime, and an attorney who represented a co-defendant testified.

         The petitioner testified that her family retained trial counsel to represent her prior to
the preliminary hearing in the case. For the entire course of her case, until two days before
trial, the petitioner, along with her co-defendants, intended for the case to be tried. The
petitioner testified, however, that two days before her scheduled trial, trial counsel
approached her regarding a best interest plea agreement because two of the co-defendants
would now be testifying against her. According to the petitioner, he explained to her that she
would not be admitting guilt. She testified that he also told her that if she went to trial, he
believed she would be convicted and would receive a twenty-five year sentence at 100%.

        The petitioner stated that she did not understand that she was actually entering a guilty
plea. She thought a best interest plea was distinguishable from an actual guilty plea. She
stated that she did not understand that a best interest plea and a guilty plea produced the same
end result, and, further, she thought she would be sentenced differently. On cross-
examination, the petitioner admitted that the distinction between the two types of pleas was
in her mind- she did not want “guilty.” She stated she entered a “best interest plea” not a
“best interest plea of guilty.”

        The petitioner acknowledged that during the plea colloquy the court continually used
the word “guilty,” and she was concerned. But she maintained that she looked to trial
counsel for guidance, and he reassured her it was a best interest plea. She also acknowledged
that the plea form stated that it was a “best interest petition to enter plea of guilty.” She
testified that she also received letters from trial counsel which also referred to her plea in the
same manner. She stated that she was aware that she was going to be sentenced to a term
between eight and twelve years to be served at 85% and that the sentence would be served
consecutively to her drug sentence. However, she maintained that she did not think that she
was pleading “guilty.” The petitioner pointed to the plea transcript where she herself did not
answer the question, “what is your plea to the amended charge of rape?” Trial counsel was
the one who actually answered.

       The petitioner testified that she felt that trial counsel also failed to properly investigate
the case, contending that he did not fight for her. The petitioner recalled that trial counsel
did not visit her from February to June after she had been transferred to the Department of

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Correction pending trial. She testified that, as of three days prior to trial, he had not
interviewed witnesses and was not prepared for trial. She stated that she had provided names
of witnesses who had been incarcerated at the jail at the time of the incident who could have
testified that on the morning following the incident, the petitioner and the victim ate
breakfast together, and the victim let the defendant fix her hair. The petitioner contended
that trial counsel never spoke to these witnesses.

       The petitioner testified further that when she was visited by trial counsel two days
before her scheduled trial, he provided her with copies of the statements the co-defendants
had given. He also detailed an interview he had had with Ms. O’Neal which was not
favorable for a possible trial for her or Brooke Whitaker. She also acknowledged that trial
counsel hand-delivered a letter to her which detailed the plea agreement and its terms. After
reading and reviewing that letter, the petitioner indicated her desire to accept the agreement.

       The next witness called was Detective Becky Hord, who was the investigator in the
case. She stated that she spoke with trial counsel on multiple occasions regarding the
incident and discussed the evidence available in the case. When asked, Detective Hord could
not recall any witnesses who saw the petitioner and the victim eating breakfast together on
the morning following the incident.

       Thereafter, Kim O’Neal was called to the stand. She testified that she had been in the
cell where the incident occurred on the night in question. While she was not involved, she
did witness part of what had occurred. Ms. O’Neal stated that she was interviewed by
investigators after the incident, and she spoke with trial counsel a few days before the plea.
She recalled relating to him that while the incident may have started as horseplay, it went too
far. Ms. O’Neal then related the circumstances of the rape, which included holding the
victim down while she was yelling “no.”

        Trial counsel testified that he was retained by the petitioner’s family, and he
investigated the facts and circumstances of the crime. He stated that he spoke with Detective
Hord and received a large amount of information regarding the evidence. Trial counsel
testified that in the beginning, the four co-defendants had an unofficial joint defense,
although each was separately represented. During this period, discovery was shared among
all. Nonetheless, trial counsel had researched the other co-defendants and was prepared to
discredit them if they chose to testify against the petitioner. Shortly before the trial was to
have occurred, two of the co-defendants entered into plea agreements and gave statements
which strongly implicated the petitioner and Brooke Whitaker. At this point, trial counsel
and Ms. Whitaker’s attorney decided to interview Ms. O’Neal. Based upon her statements
to them, it became clear to trial counsel that success at trial was not likely to occur, and the
prior strategy was substantially impacted.

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        At this point, trial counsel and Mr. Parker went to the jail and met with the petitioner
and Ms. Whitaker. They shared all the statements with them and told them that they would
likely be convicted at trial of the indicted offense of aggravated rape. Trial counsel also
informed the petitioner that, because of her prior convictions, she was likely to be sentenced
at the top of the range and could spend well over twenty years in jail.

        Trial counsel was able to negotiate a plea agreement with the State whereby she
entered a best interest plea to rape, with the trial court to determine sentence length between
eight and twelve years. Trial counsel testified that he thoroughly explained this agreement
to the petitioner. Trial counsel did explain to the petitioner that she would not have to admit
her guilt in order to accept the agreement. After a discussion of the offer, the petitioner
decided to accept it. Trial counsel later hand delivered a letter detailing the agreement to the
petitioner and gave her the option to accept or reject the offer by checking a box and signing
her name. The petitioner accepted and signed.

        Also called to testify at the post-conviction hearing was Clay Parker, who had been
appointed to represent Brooke Whitaker He verified that the defense strategy had initially
been one of collaboration between the co-defendants and that, until just the week before trial,
they intended to go to trial. Upon learning that two of the co-defendants were implicating
the petitioner and Brooke Whitaker, the strategy was changed. Although having originally
been told that Ms. O’Neal had not witnessed anything, they decided to speak with her and
verify the information. At that point, they learned that she too had witnessed the rape.
Afterwards, he and trial counsel met with their clients and reviewed all the evidence with
them. While not telling their clients that they could not proceed to trial if they wished, he and
trial counsel both informed them that the chances of success were slim.

        After hearing the evidence presented in the case, the post-conviction court determined
that the petition was not meritorious and denied relief. This timely appealed followed.

                                           Analysis

        On appeal, the petitioner contends that she was denied the effective assistance of
counsel and that her plea was not entered knowingly and voluntarily. 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

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       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).

        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.



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I. Ineffective Assistance of Counsel

       The petitioner asserts that the post-conviction court erred in denying her petition
because she was denied her right to the effective assistance of counsel. Specifically, she
contends that trial counsel failed to adequately prepare and interview all the witnesses
suggested by the petitioner. She asserts that “[h]ad trial counsel spent adequate time trying
to interview witnesses before the eve of trial, there would have been opportunities to
discredit their testimony.” She also faults trial counsel for relying upon information received
from Investigator Hord and written witness statements rather than doing his own
investigation. In denying relief on this ground, the post-conviction court held:

              There [are] two issues raised in the post conviction petition: Whether
       the plea was voluntarily, intelligently and understandingly entered; and
       whether [trial counsel] was ineffective by failing to do an adequate
       investigation or ineffective in any respect.

               The contrary is true. The whole entirety of the proof is that [trial
       counsel] did a thorough investigation; negotiated a favorable settlement, where
       he got the rape - - the aggravated rape charge, 15 to 25, got a plea down to
       rape, instead of aggravated rape, in a B range of 8 to 12.

              And the petitioner, in a post conviction case, has to prove her
       allegations by clear and convincing evidence.

               And as far as the . . . issue of effective assistance of counsel, the proof
       is that [trial counsel] provided not only adequate assistance, but excellent
       assistance. I can’t think of anything they have shown that he did wrong, to be
       honest with you.

       We find nothing in the record which preponderates against those findings. Trial
counsel testified specifically that he had investigated the facts and circumstances of the case
and that he was prepared for trial. The post-conviction court accredited the testimony and,
as has been repeatedly held, it is not the province of this court to reweigh or reevaluate
credibility determinations made by the trier of facts. See Henley v. State, 960 S.W.2d 572,
578-79 (Tenn. 1997).

       The record indicates that trial counsel spoke at length to Detective Hord, which her
testimony and that of Mr. Parker also verified, and obtained information about the
investigation. Trial counsel obtained discovery from the State and reviewed that evidence
with the petitioner. He agreed with the petitioner that until just prior to trial, the strategy had

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been to proceed to trial. Trial counsel indicated that, despite the united front of the co-
defendants, he was prepared to try and discredit them if they chose to testify against his
client. However, upon learning that two co-defendants had entered plea agreements and
learning how damaging Ms. O’Neal’s testimony would be, trial counsel then gave the
petitioner an honest assessment of the effect on her case. Nonetheless, had she insisted upon
going to trial, trial counsel was prepared.

        Trial counsel throughly explained the best interest plea agreement to the petitioner and
made her aware of the terms she was facing, even reducing it to writing and reviewing it with
her. It was because of his efforts in her case that the petitioner was able to avoid a Class A
felony conviction and a fifteen to twenty-five year sentence, receiving instead only an eleven-
year sentence. Trial counsel cannot be faulted for his actions in light of the fact that two co-
defendants chose suddenly to implicate the petitioner.

        With regard to the petitioner’s assertions that trial counsel failed to interview
witnesses, she has simply failed to establish her claim. The petitioner did not present
testimony from any of the alleged witnesses at the post-conviction hearing. Thus, she
presented no evidence, other than bare allegations, as to what trial counsel would have
actually discovered had these alleged witnesses been interviewed. This court has continually
held that in order to establish entitlement to post-conviction relief when making an allegation
that trial counsel failed to discover, interview, or present witnesses in support of the defense,
a petitioner must present such a witness at the post-conviction hearing. Black v. State, 794
S.W.2d 752, 757 (Tenn. Crim. App. 1990). The post-conviction court could not assume what
a possible witness’s testimony would have been and, further, that it would have aided the
petitioner’s case. By failing to present the witnesses at the hearing, the petitioner has failed
to establish her claim and is entitled to no relief.

II. Knowing and Voluntary Plea

        The petitioner also contends that her plea was not entered knowingly and voluntarily
because she did not believe that a best interest plea was a “guilty plea.” On appeal, she
references her “earnest belief [that] her best interest plea was not an admission of guilt,” that
she believed she would be punished differently under a best interest plea, and that she did not
directly answer the court as to what her plea was.

        In its findings denying the petitioner relief on this issue, the post-conviction court,
referencing the transcript of the plea hearing, makes note of how the court explained in great
detail to the petitioner the plea she was entering:

              As to the voluntary, intelligently and understandingness [sic] of the

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plea, [post-conviction counsel] has done an excellent job of picking one line
out of the transcript, but the transcript is replete with explanations about what
this means.

       For instance, on page 14, I say, “This has been stated to me this is a best
interest plea, which means you are not admitting your guilt. However, I must
inform you that it will have the same effect as if you plead guilty. You don’t
have to actually admit your guilt. It is still a conviction of rape, just as if you
said you were guilty. Do you understand that . . .?”

       [The petitioner replied,] “Yes.”

       That is just one part.

       Then we turn at the very outset, I was asking [the petitioner] about
Exhibit 1, I guess: “Can you recognize the petition to enter a plea of guilty in
your case?”

       [Trial counsel] said, “It is best interest.”

      I said: “It is still a plea of guilty. Do you recognize this document I am
holding up. If you can’t see if from the distance we are apart, I will have
Captain Hord take it to you.”

        [Trial counsel] said, “She is comfortable entering a best interest. It will
result in a guilty plea. She is entering it because it is best interest.”

       I say, “I will talk to her a little bit about that.”

        And then I asked her, “Did you sign this document? Did you read it in
its entirely before you signed it? Was there anything in it you did not
understand?”

       [The petitioner] said she read it, she signed it, and she understood
everything. She didn’t want anything else explained to her. There was
nothing interfering with her ability to understand what you are doing.

       Then if you turn to page - - I think it was - - [post-conviction counsel]
took out from page 18, where [trial counsel] said, “Guilty,” when I said, “What
is you plea to the amended charged of rape?”

                                         -9-
         But if you back up to page 16, I asked for the proposed resolution in the
case.

       And [the State] said, “The same for each defendant. They will each be
pleading guilty as a best interest plea to the amended charge of rape. This is
an open plea, and that you will determine the length of the sentence, I suppose
the manner of service, although I don’t think alternative sentencing. They are
both already in the Department of Corrections [sic], serving other sentences.
We have already agreed that it will be consecutive or in addition to the
sentences they are currently serving, so the length of the sentence will be the
only real issue the Court will have to determine.

       Then I say, “Are you moving to amend the aggravated rape to rape in
order to accomplish this settlement?”

         Everybody says, yes, that they agree to that.

         I say, “[petitioner], did you listen to the proposed settlement in this
case?”

         And she answers, “Yes.”

         Then I ask her, “Is that what you have agreed to?”

         And [trial counsel] said, “Yes.”

         And then I said, “She is looking at 8 to 12.”

         Then you all told me she had one prior felony conviction.

         Then again, I went back to it.

         Question: “[Petitioner], is that what you have agreed to?”

         And her answer was, “Yes.”

         Then I asked her, “Did you hear the proposed settlement?”

         Her answer is, “Yes.”



                                          -10-
               I asked her, “Did that settlement come about from negotiations between
       [trial counsel] and the District Attorney’s office, and did [trial counsel] explain
       this to you before you signed this petition I asked you about a minute ago?”

              And the answer is, “Yes.”

              I asked her, “Do you want me to accept you plea of guilty to the
       amended charge of rape, pursuant to what had been announced as being in
       your best interest?”

              And her answer is, “Yes.”

              ....

               Then I took the other defendant’s plea after that and reiterated that a
       best interest plea had the same effect as a conviction, and I find [the transcript
       of the plea hearing] persuasive; [and] don’t find her credible when she says she
       didn’t understand what she was doing when she pled guilty.

              I [found the petitioner] voluntarily, intelligently and understandingly
       pled guilty at that time, and I still think she did.

       Again, we conclude that nothing in the record preponderates against these findings.
Trial counsel testified that he explained the agreement to the petitioner on multiple occasions,
even detailing it in a letter which he reviewed with the petitioner. The petitioner signed the
agreement indicating that she understood it. She failed to express any misunderstanding of
the agreement at the plea hearing when she was given the opportunity. Indeed, her own
testimony at the post-conviction hearing was that she understood she was pleading guilty to
rape and would receive a sentence of eight to twelve years.

        Her only assertion was that she did not understand that a best interest plea was an
actual guilty plea. However, what her argument fails to account for is that she did not admit
guilt. By entering a best interest plea, she did not acknowledge that she committed the crime,
i.e, was guilty, rather she admitted only that she accepted what the State’s evidence would
be and that it was in her best interest to accept the plea. Her argument appears to be one of
semantics and titles rather than one regarding her understanding of the plea. The petitioner
even acknowledged at the hearing that the distinction was in her mind. She was aware of the
charge and the possible resulting sentence. Moreover, as referenced by the post-conviction
court, the transcript of the plea hearing is strong evidence against and belies the petitioner’s
contentions that she did not understand the distinction. Following review of the record, we

                                              -11-
conclude that the petitioner has failed to establish that the proof preponderates against the
findings made by the post-conviction court that she received the effective assistance of
counsel and that her plea was entered knowingly and voluntarily. See State v. Mackey, 553
S.W.2d 337, 340 (Tenn. 1977).

                                     CONCLUSION

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




                                                   _________________________________
                                                   JOHN EVERETT WILLIAMS, JUDGE




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