        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs February 14, 2012

                   CHRIS BROWN v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                 No. 05-05633, 06-02283   W. Otis Higgs, Jr., Judge




                No. W2011-01084-CCA-R3-PC - Filed August 24, 2012


The Petitioner, Chris Brown, appeals from the Shelby County Criminal Court’s denial of
post-conviction relief from his convictions for attempted first degree murder, especially
aggravated robbery, aggravated robbery, attempted aggravated robbery, two counts of
aggravated assault, and being a felon in possession of a handgun, for which he is serving an
effective twenty-year sentence. On appeal, the Petitioner contends that his guilty pleas were
not knowingly, voluntarily, and understandingly made. We affirm the judgment of the trial
court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which JOHN E VERETT
W ILLIAMS and C AMILLE R. M CM ULLEN, JJ., joined.

Sean H. Muizers (on appeal) and Eran E. Julian (at post-conviction hearing), Memphis,
Tennessee, for the appellant, Chris Brown.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy P. Weirich, District Attorney General; and Steve Jones, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                  OPINION

According to the State’s recitation of the facts at the guilty plea hearing:

               Under the [05-05633] indictment, had the defendant gone
       to trial the State would [have] shown that on May the 15th of
       2005, Fred Brown pulled up to 704 Marble which is located in
       Memphis, Shelby County. He spoke with the victim . . . ,
       Charles Mitchell. He asked the whereabouts of another
       individual and Mr. Mitchell told him that that individual he
       believed was around back at which time Mr. Brown went around
       back and disappeared. Mr. Mitchell went back in the house. A
       few minutes later Mr. Mitchell heard another knock on his door.
       He returned to his door. Mr. Brown was standing there again.
       He asked Mr. Mitchell to step outside to talk to him for a
       minute. When Mr. Mitchell did, Mr. Brown pulled a sawed-off
       410 pump-action shotgun from behind his back and immediately
       shot Mr. Mitchell before taking off in a 1980 model red Grand
       Am at which time he apparently drove approximately one half
       of a mile to 707 North Fifth Street where Mr. Fred Taylor was
       sitting and talking to a Leo Beasley at a picnic table in a yard
       near an abandoned house.

              When Mr. Taylor saw Mr. Brown pull up, he believed
       that he was on drugs as he had seen him in the neighborhood
       and he decided to leave and advised Mr. Beasley that he should
       leave as well. As he was about to turn and part from Mr.
       Beasley’s company, Mr. Brown approached Mr. Taylor and said
       hi. Mr. Taylor and Mr. Brown shook hands. Mr. Taylor turned
       around, started to leave, at which time Mr. Brown pulled a
       sawed-off 410 pump action shotgun out and said something to
       Mr. Taylor about that was not right what you did. Mr. Taylor
       turned around, put his hands up in the air and said I don’t know
       what you’re talking about. He looked at Mr. Brown’s eyes and
       was convinced that Mr. Brown was about to shoot him. He
       made an attempt to grab the weapon at which time there was a
       struggle. The gun did fire. Mr. Taylor’s thumb got caught in the
       lever action and was injured at that time. Mr. Taylor then let go
       of the gun thinking that he was no longer in danger, at which
       time Mr. Brown apparently had a pump action and attempted to

                                      -2-
       reload the weapon. Mr. Taylor saw the shell jam in the lever
       action and ran and was not shot at again.

               In the [06-00283] indictment, had Mr. Brown gone to
       trial in that matter, the State would [have] shown that on May
       the 2nd of 2005, Mr. Brown along with a Fredrick Manuel who
       apparently is his cousin or some relative of his, did go to a set of
       apartments located in Memphis, Shelby County and approach a
       Reginald Walker. Mr. Walker was told to get on the ground.
       He was robbed of jewelry and some money at which time
       apparently some dispute arose and the co-defendant, Mr.
       Manuel, did shoot Mr. Walker several times as he lay on the
       ground.

              Mr. Manuel and Mr. Brown then left the area and as they
       were walking through the apartment complex did run into two
       teenage boys . . . . I believe their ages were 14 and 15 at the
       time. Mr. Brown approached these two boys, demanded money
       from them. Only [one of the boys] had any money. He gave .
       . . Mr. Brown his cell phone and the $2 that he had on his
       person. The other young man didn’t have any money. Both
       boys were pistol whipped. They were taken up to the top of a
       hill where Mr. Brown’s vehicle was but Mr. Brown did go to
       leave without putting them in the vehicle though he threatened
       to kidnap both boys.

              The police arrived on the scene. Mr. Manuel and Mr.
       Brown both took off running. Mr. Manuel was captured,
       throwing the gun away. Mr. Brown was not but information
       was obtained from Mr. Manuel and evidence at the scene . . .
       implicated Mr. Brown and he was identified by the victims as
       the individual who had participated in all these offense[s].

With regard to the plea agreement, trial counsel commented at the guilty plea hearing:

               Your Honor, . . . there are some issues that could [have]
       possibly been raised individually, however, these cases being
       tried together in my professional opinion would have almost
       assuredly resulted in my client’s conviction. And as I explained
       to him and as I’ve told him, we would [have] had two courses of

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defense in this particular case. It would [have] either been he
didn’t do it which would [have] been difficult without any proof
and given the fact that three witnesses, possibly four but three
that I know of for sure, who were going to place Mr. Brown at
the scene and two of whom knew him from the neighborhood.
The other one as we stated in the motion, did not identify my
client at the [preliminary hearing] but he [picked] him out of a
photo lineup and as I voir dired him I fully expected him to
point him out here today in light of the fact he was the only one
here, would be the only one seated here. I would [have] made
those arguments however.

        And also either argued it wasn’t him or argued that if it
was him it wasn’t an attempted murder one. In my opinion that
would [have] been really hard given the fact that one of the
persons [was] shot, given the fact that Mr. Taylor is going to
testify that not only the fight with him over the gun struggle and
the gun went off, it appears slightly – injuring his thumb. We do
have a picture of a slightly blood covered thumb. But also given
the fact that he would testify, and again, we would have nothing
to contradict this.

        That he was going to testify that he took a shotgun and
attempted to shoot him, pulled the pump rather or whatever
[sic]. He was trying to shoot him and the gun jammed. That
would [have] been the testimony that he said both at the
preliminary hearing and his prior statement that we would
[have] expected to be heard here today. . . . I think [that would
have] been strong proof of premeditated murder or murder
second in the very least. And given the fact that two people are
shot 10 minutes apart I think goes . . . heavily to premeditation.
So we would [have] been in a case where we would [have] been
arguing that my client was either not guilty, didn’t do this, or
that he did do it but they were simply agg[ravated] assaults. If
they were agg[ravated] assaults, then my client would have been
facing 20 years just on this case alone in my opinion with him
being Range II and having four prior felonies. I think it’s pretty
clear that these being two separate [incidents] that they almost
certainly would have run consecutively.



                               -4-
             [T]hat would have been considered a win to get 20 years on an
             agg[ravated] assault. If we had failed, . . . he would [have] been
             facing either attempt[ed] murder one or one count of attempt[ed]
             murder one and agg[ravated] assault or . . . two counts of
             attempt[ed] murder one, however the jury wanted to come down
             with it. If convicted of that, he was looking at as much as 50
             years and whatever sentence he would [have] received they
             would have surely . . . run consecutively and also in my opinion
             based on his prior record and history and being a Range II on
             offenses below a Class A.

                     And also given that fact with that sentence that he would
             [have] still been facing some rather horrific charges in our
             second trial. . . . [E]ven if . . . he only got 20 years on those two
             counts of aggravated assault or if we got 50 years on murder one
             or anything in between then we’d still be facing this other trial.
             However it would [have] come out, I think clearly this in my
             opinion and I advised Mr. Brown of this, regardless of the offer,
             it’s not the offer that we had and regardless of the fact that it’s
             not what he may have wanted, it clearly is in his best interest
             given the facts and the position that he’s in. And I frankly
             cannot see an outcome better than what he’s pleading today if
             we were to go forward given these two cases and the case
             coming up and, frankly, just on this case alone what his potential
             is and what he’s looking at.

                     Also my client brought up the issue and I think I’ve
             explained this to him, wanting to know why he couldn’t plead
             to the five years on the aggravated assault since he’s pleading to
             aggravated assault on this case and just go to trial on the other
             case. Well, as I’ve explained to him that the State is not the
             offer. [sic] The only way that’s an offer is if we plead to
             everything and we’re getting rid of everything and otherwise
             that would be revoked. And he cannot plead piecemeal to these
             charges and I’ve explained that to him as well. And if he has
             any other questions I would defer to the Court on those.

      At the guilty plea hearing, the trial court questioned the Petitioner about his
understanding of the charges, the terms of the plea agreement, his rights, the ranges of
punishment for the offenses, concurrent versus consecutive sentences, his desire to plead

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guilty, any threats or promises to induce the pleas, and his satisfaction with trial counsel’s
services. The Petitioner indicated his understanding, the lack of any threats or promises, his
satisfaction with counsel, and his desire to enter the pleas. The court accepted the pleas and
judgments were entered.

       The Petitioner filed a timely post-conviction petition alleging that his guilty pleas were
not voluntary because the trial court had information that the Petitioner’s co-defendant made
a statement claiming sole responsibility for shooting the victim, that the State failed to
disclose the favorable evidence of the co-defendant’s statement, and that he was not afforded
the effective assistance of counsel in the conviction proceedings. Counsel was appointed,
who filed an amended petition that incorporated the existing allegations but made no
additional allegations.

        At the post-conviction hearing, the Petitioner testified that trial counsel briefly visited
him at the jail three times in one and one-half years, although counsel also met with him
about three times on court dates. He said he wrote to counsel about filing motions but that
counsel never responded. He said he never received a discovery package. He said he did not
want to plead guilty and wanted to prove his innocence at a trial. He said that he told counsel
of his desire but that counsel wanted him to accept the plea offer. He said counsel always
encouraged him to accept the offers that were made. He said that he had some papers from
his cousin, who was his co-defendant, and that he tried to talk to counsel about the case.
Counsel said, however, that he had no defense and might receive consecutive sentences if
he went to trial. He said that counsel had no interest in his case and that they argued when
they met. He said that he asked counsel to have an investigator talk to the victim but that to
his knowledge, it was never done. He read something stating the victim claimed he was shot
but not robbed. He said that due to counsel’s attitude, he felt like he had no choice but to
plead guilty. He stated that he was pressured, that he had no knowledge of the law, and that
he did what counsel told him to do after becoming emotionally and physically exhausted.
He never considered accepting the State’s thirteen and one-half year offer because he was
not guilty and knew he could have prevailed at a trial.

        On cross-examination, the Petitioner testified that he pled guilty on the trial date. He
agreed trial counsel filed and argued a motion to sever the offenses. He acknowledged his
answers to the trial court’s questions at the plea hearing, as reflected in the transcript of that
hearing. He said it was true on paper but not in his head that he told the court he was
satisfied with counsel. On redirect examination, he said he told the court he was satisfied
because he was going along with what counsel told him to do.

      Trial counsel testified that he had requested the Petitioner’s file through the public
defender’s office but that he did not have it and did not know its whereabouts. He could not

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recall whether the Petitioner’s case was set for trial. He said the Petitioner had two cases.
The first involved an aggravated assault charge, and the second involved an attempted first
degree murder charge. He said the incidents were alleged to have occurred minutes apart.
He thought an aggravated assault charge was dismissed at the preliminary hearing after the
victim failed to identify the Petitioner.

       Trial counsel testified that he received witnesses’ statements from the State early in
the case. He did not recall if he interviewed the witnesses. He did not recall how many
times he met with the Petitioner at the jail and had no basis to question the Petitioner’s
testimony about three meetings. He said he may have proposed an offer of thirteen and one-
half years to the State but doubted that the State made an offer that low. He knew that
thirteen and one-half years was the best offer he could obtain for the charges. He thought
the victims opposed the plea agreement that was ultimately reached.

       Trial counsel thought he received letters from the Petitioner. He said he filed the
motions he thought were appropriate. He said that by the day of the guilty plea, he and the
Petitioner had discussed “many times” the facts, the evidence, and the problems of the case.
He said that there was no issue regarding identity in the attempted murder case and that this
was a serious problem.

        On cross-examination, trial counsel testified that he had represented defendants in
seventy-five to eighty or more major felony cases. He said it was a defendant’s choice to
plead guilty. He said that based upon his experience, he thought the trial judge would have
imposed lengthy, consecutive sentences. He agreed that the Petitioner faced a possible
sentence of at least twenty years on one of the cases. He said that with regard to the case that
was set for trial on the day the Petitioner pled guilty, the Petitioner would not be eligible for
parole if he were convicted of especially aggravated robbery. He thought the Petitioner
understood the motion to sever and knew which case was going to trial that day. He said that
he filed motions based upon his professional judgment, not merely a client’s wishes. He said
he discussed the motions with his clients, but on redirect examination, he said it was possible
he did not speak with the Petitioner about the motions.

       The trial court found that the Petitioner failed to present any proof that the trial court
knew about the co-defendant’s being solely responsible for the crimes and that he failed to
identify any evidence that was not disclosed by the State or to prove that it was not disclosed.
The court concluded that the Petitioner received the effective assistance of counsel in the
conviction proceedings. The court found that the guilty pleas were not unlawfully induced
and denied relief. This appeal followed.




                                               -7-
       The Petitioner contends that he did not knowingly, voluntarily, and understandingly
enter his guilty pleas. He argues that trial counsel pressured him to plead guilty and that he
did not understand the charges for which he was to be tried on the day of the plea. The State
contends that the Petitioner waived the issue of whether counsel coerced him because he
never specifically raised it in the trial court, and that in any event, he failed to carry his
burden of proving his claim. We conclude that the Petitioner is not entitled to relief.

        We begin by addressing the State’s argument that the Petitioner did not raise in the
trial court the issue of whether trial counsel coerced him into accepting the plea. The pro se
petition alleged that the Petitioner’s guilty pleas were unlawfully induced because the trial
court knew the Petitioner’s co-defendant admitted sole responsibility for shooting the victim
and as such, the court had no factual basis for accepting the plea. The pro se petition also
alleged that “the Petitioner was induced to enter an unlawful ‘guilty plea’ despite his repeated
attempts to aid and assist counsel with facts relevant to his case that would change the
outcome, if presented in a timely fashion[.]” The petition alleged various shortcomings of
counsel in failing to prepare the case for trial, although it did not specifically allege that
counsel pressured or coerced him to plead guilty. We note that post-conviction counsel
elected not to clarify the pro se allegations in the amended petition. We conclude that the
petition sufficiently raised an issue of whether the pleas were induced by the ineffective
assistance of counsel.

        The burden in a post-conviction proceeding is on the petitioner to prove his grounds
for relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006). On appeal, we
are bound by the trial court’s findings of fact unless we conclude that the evidence in the
record preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn.
2001). Because they relate to mixed questions of law and fact, we review the trial court’s
conclusions as to whether counsel’s performance was deficient and whether that deficiency
was prejudicial under a de novo standard with no presumption of correctness. Id. at 457.
Post-conviction relief may only be given if a conviction or sentence is void or voidable
because of a violation of a constitutional right. T.C.A. § 40-30-103 (2006).

      If a petitioner establishes the fact of counsel’s errors, the trial court must determine
whether those errors resulted in the ineffective assistance of counsel. Dellinger v. State, 279
S.W.3d 282, 293 (Tenn. 2009); see Strickland v. Washington, 466 U.S. 668, 687-88, 694
(1984). Because they relate to mixed questions of law and fact, we review the trial court’s
conclusions as to whether counsel’s performance was deficient and whether that deficiency
was prejudicial under a de novo standard with no presumption of correctness. Fields, 40
S.W.3d at 457.




                                              -8-
       Under the Sixth Amendment to the United States Constitution, when a claim of
ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that
counsel’s performance was deficient and (2) that the deficiency was prejudicial. Strickland,
466 U.S. at 687; see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). A petitioner will
only prevail on a claim of ineffective assistance of counsel after satisfying both prongs of the
Strickland test. See Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). The performance
prong requires a petitioner raising a claim of ineffectiveness to show that counsel’s
representation fell below an objective standard of reasonableness or “outside the wide range
of professionally competent assistance.” Strickland, 466 U.S. at 690. The prejudice prong
requires a petitioner to demonstrate that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.
at 694. When a petitioner pleads guilty, he must show a reasonable probability that, but for
the errors of his counsel, he would not have pled guilty. See Hill v. Lockhart, 474 U.S. 52,
59 (1985); Adkins v. State, 911 S.W.2d 334, 349 (Tenn. Crim. App. 1994).

        Our supreme court has held that attorneys should be held to the general standard of
whether the services rendered were within the range of competence demanded of attorneys
in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Further, the court
stated that the range of competence was to be measured by the duties and criteria set forth
in Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974), and United States v.
DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). See id. Also, in reviewing counsel’s
conduct, a “fair assessment of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”
Strickland, 466 U.S. at 689. “Thus, the fact that a particular strategy or tactic failed or even
hurt the defense does not, alone, support a claim of ineffective assistance.” Cooper v. State,
847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). Deference is made to trial strategy or tactical
choices if they are informed ones based upon adequate preparation. Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982); see DeCoster, 487 F.2d at 1201.

       When 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). The court reviewing the
voluntariness of a guilty plea must look to the totality of the circumstances. See State v.
Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995). The circumstances include:

              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

                                              -9-
              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); see also Caudill v. Jago, 747 F.2d
1046, 1050-52 (6th Cir. 1984). A plea resulting from ignorance, misunderstanding, coercion,
inducement, or threats is not “voluntary.” Blankenship, 858 S.W.2d at 904 (citing Boykin
v. Alabama, 395 U.S. 238, 242-43 (1969)).

        The trial court is charged with determining if the guilty plea is “knowing” by
questioning the defendant to ensure that he or she fully understands the plea and its
consequences. State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999) (citing Boykin, 395 U.S.
at 243-44). In Boykin, the United States Supreme Court stated that certain constitutional
rights are implicated in a plea of guilty, namely, the right to a trial by jury, the right to
confront witnesses, and the privilege against compelled self-incrimination, and that it would
not presume a waiver of these three important rights from a silent record. 395 U.S. 238, 243
(1969). Rule 11(b) of the Tennessee Rules of Criminal Procedure outlines advice to be given
to a defendant entering a plea and explicit procedures for ensuring on the record that guilty
pleas are voluntarily and understandingly made. However, only the constitutionally grounded
rights stated in Boykin are addressable, per se, under the Post-Conviction Procedure Act. See
State v. Prince, 781 S.W.2d 846, 853 (Tenn. 1989).

        The trial court found that the Petitioner failed to prove that trial counsel provided
ineffective assistance. Counsel testified that he reviewed the facts and the evidence with the
Petitioner, that he pursued the motion to sever, and that the Petitioner was in a very bad
situation and was best served by accepting the plea offer, rather than by going to trial. He
said it was likely the Petitioner would receive a more lengthy sentence if he did not accept
the plea offer. The court also found that the transcript of the guilty plea hearing
demonstrated that the pleas were not unlawfully induced. The transcript of the guilty plea
hearing reflects that the Petitioner indicated his understanding of the charges, the plea
agreement, and his rights. He confirmed that he was satisfied with counsel’s representation,
that there were no threats or promises involved in his acceptance of the plea, and that it was
his decision and desire to plead guilty. We conclude that the record supports the trial court’s
denial of relief.




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        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.

                                           ___________________________________
                                           JOSEPH M. TIPTON, PRESIDING JUDGE




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