                                                                                        06/19/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs January 4, 2018

                  BOBBY CHISM v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                     No. 15-00016       Paula Skahan, Judge
                     ___________________________________

                           No. W2017-01016-CCA-R3-PC
                       ___________________________________

The Petitioner, Bobby Chism, appeals the Shelby County Criminal Court’s denial of post-
conviction relief from his guilty plea to two counts of aggravated robbery, one count of
aggravated burglary, and one count of employment of a firearm during the commission of
a dangerous felony. The Petitioner argues that his guilty plea was involuntary and that he
received ineffective assistance of counsel. We affirm the judgment of the post-conviction
court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ALAN E. GLENN, JJ., joined.

Robert Brooks, Memphis, Tennessee, for the appellant, Bobby Chism.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Pam Stark, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

       Plea Submission Hearing. At this hearing, the State provided a recitation of the
facts supporting entry of the Petitioner’s guilty plea:

      [H]ad [this case] gone to trial [the] State would have shown on July 22[],
      2014[,] officers in the Memphis Police Department responded to a robbery
      called at [the victims’ apartment].
              The victim, [V.P.] . . . indicated she was sleeping in her bedroom, a
       male woke her up pointing a handgun at her face, made her stay in bed and
       exited the bedroom.

              Another victim [D.B.], . . . indicated another male woke her up,
       slapped her in the face, took her phone. So there were two people involved,
       one was caught, identified as [the Petitioner]. He gained entry to their
       residence without permission.

               It was the [accomplice] that had a gun who pointed [it] at the
       victims, not [the Petitioner]. Our Tennessee case law indicated that under
       criminal responsibility [the Petitioner] could be found guilty of that
       employing a firearm during the commission of a felony, and he’s pleading
       guilty [to] that.

              [The Petitioner] was identified as the person who came into this
       residence and stole property from the victims. The two victims, I believe,
       were mother and daughter.

              That event occurred in Shelby County, Tennessee.

        After trial counsel stipulated that there was a factual basis for the Petitioner’s
guilty plea, the trial court reviewed the plea agreement with the Petitioner, explaining the
offenses to which the Petitioner was pleading guilty and the sentence ranges for each
offense. The court advised the Petitioner of his right to a jury trial, his right to cross-
examine witnesses, his right to subpoena and present witnesses in his own behalf, his
right to testify, and his right to remain silent. The court explained that if the Petitioner
proceeded to trial and was convicted, he would have the right to appeal and to appointed
counsel; however, if the Petitioner chose to enter a guilty plea, he would be convicted of
those offenses and would not have the right to appeal. The trial court informed the
Petitioner that if he entered this guilty plea, the felonies would be convictions on his
criminal record and would be used to enhance punishment for any future offenses.
During this hearing, the Petitioner asserted that no one was forcing or pressuring him into
pleading guilty and that he was satisfied with the services provided by trial counsel. He
also confirmed that he wished to waive his rights and enter a guilty plea. The trial court,
after finding that the plea was knowingly and voluntarily entered, accepted the
Petitioner’s guilty plea to two counts of aggravated robbery, one count of aggravated
burglary, and one count of employment of a firearm during the commission of a
dangerous felony and sentenced him, pursuant to the plea agreement, to an effective
sentence of nine years.

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       Post-Conviction Hearing. The Petitioner timely filed a petition for post-
conviction relief, alleging that trial counsel had provided ineffective assistance by failing
to show adequate preparation throughout the preliminary proceedings and by allowing
him to enter an involuntary and unknowing plea to “a possibl[y] illegal sentence.”
Following the appointment of counsel, the Petitioner filed an amended post-conviction
petition, alleging the additional claims that he was coerced into pleading guilty and that
trial counsel was ineffective in failing to raise a statutory claim regarding the
employment of a firearm charge and in failing to obtain a reduced sentence for him.

       At the ensuing hearing, post-conviction counsel initially informed the court that
they were not going to proceed with the hearing because, after talking with the Petitioner
at length, he felt there were no grounds on which to proceed. Post-conviction counsel
asserted that although he had thoroughly researched the issues, he had found nothing to
support the Petitioner’s allegations and that the Petitioner had no evidence to present in
support of his petition. The State noted that one of the Petitioner’s issues concerned his
convictions for both employment of a firearm and aggravated robbery; however, it
explained that the aggravated burglary was the predicate felony for the employment of a
firearm count, not the two aggravated robberies.

       The post-conviction court questioned the Petitioner under oath about post-
conviction counsel’s assertion that there was no evidence to support the Petitioner’s
claims. The Petitioner claimed that he could not be guilty of employment of a firearm
because the State, in its recitation of the factual basis supporting his guilty plea,
acknowledged that the Petitioner had not possessed the gun during the incident. He also
claimed that he could not be guilty of the employment of a firearm charge because his
aggravated robberies, which he claimed were the predicate felonies for the firearm count,
required proof that he possessed a deadly weapon. The Petitioner asserted that he would
not have been found guilty at trial under the theory of criminal responsibility because he
did not know his accomplice had a gun. At the conclusion of this questioning, the court
decided to move forward with the post-conviction hearing because the Petitioner was
essentially arguing that he should have proceeded to trial.

       During the hearing, the Petitioner claimed that he entered his guilty plea because
he was “ignorant of the law” and had received ineffective assistance from trial counsel.
He asserted that he had wanted to proceed to trial and had informed trial counsel of this
decision. However, whenever he told trial counsel that he wanted a trial, trial counsel
had tried to persuade him to enter a guilty plea.

      Although the Petitioner admitted that he had entered a guilty plea and had
acknowledged the rights he was waiving prior to doing so, he claimed that he was
nervous and incompetent at the time of his plea and that trial counsel had coerced him
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into signing the plea agreement. The Petitioner said he felt pressured to enter his guilty
plea because trial counsel informed him that if he did not “sign [the plea agreement]
today[,]” then he would receive the maximum sentence on each charge, according to the
trial judge. He said that at the time of his plea, he had different attorneys in his different
cases, and they all talked to him at the same time, which further pressured him. The
Petitioner also claimed that trial counsel told him he had gone to school with the
prosecutor and they were “good friends” and that he did not want to try a case against
her. The Petitioner acknowledged that he received the minimum sentence for all of his
charges pursuant to his plea agreement.

       The Petitioner claimed he urged trial counsel to file pre-trial motions, but trial
counsel told him he would not file any motions until the day of trial. Specifically, the
Petitioner wanted trial counsel to file a motion to suppress the gun used during the
incident; however, he never identified a legal basis for the suppression. He said he
wanted trial counsel to file a motion to suppress the gun in order to confirm whether the
State had the gun in its possession.

        The Petitioner claimed he never received the preliminary hearing transcript or an
“unredacted” discovery packet. He said the transcript of the preliminary hearing would
have shown that he did not possess the gun during the offense. However, the State
explained that preliminary hearings were not transcribed until a case was set for trial.
The Petitioner also claimed that the “unredacted” discovery packet would have detailed
all the evidence the State had against him. He asserted, and the State confirmed, that the
victim statements had been redacted from his discovery packet. The Petitioner admitted
he was unaware that witness statements were not required to be disclosed until after they
testified at trial and that there was no legal basis for trial counsel to demand the redacted
information. The Petitioner later conceded that he had received the unredacted witness
statements. He insisted that these statements would have been helpful to his case because
they showed that he did not possess the gun during the incident.

        Finally, the Petitioner argued that trial counsel was ineffective for failing to argue
that the Petitioner should not have been charged with or convicted of aggravated robbery
and employment of a firearm because he did not possess the gun during the offense. He
claimed he would not have been found guilty under the theory of criminal responsibility
because he never knew there was a gun involved in the offense and never possessed a
gun, which was consistent with the victims’ testimony at the preliminary hearing. The
Petitioner asserted that he should have been charged with simple robbery and assault
because he slapped one of the victims and took her phone.




                                            -4-
       Trial counsel testified that the Petitioner was in control of whether his case
proceeded to trial and that whenever his clients requested a trial, he ensured that they
received a trial. Trial counsel asserted that the Petitioner never asked him for a trial.

       He said he informed the Petitioner the day of the plea hearing that he did not have
to plead guilty and that it was his decision whether to enter the plea or proceed to trial.
Despite the Petitioner’s claims to the contrary, trial counsel said that he and the
prosecutor were not friends and that he had gone to school in Arkansas while the
prosecutor had gone to school in Memphis. Trial counsel recalled that there was some
evidence of an attempted sexual assault during the incident, which the prosecutor had
agreed not to pursue in exchange for the Petitioner entering his guilty plea.

        Trial counsel stated that although he reviewed the State’s discovery with the
Petitioner several times, there were no valid motions to file, which he explained to the
Petitioner. He said the Petitioner never asked him to file a motion to suppress evidence
of the gun. Trial counsel asserted that there was never an indication that the State
recovered the gun used during the incident. Instead, he believed the State’s knowledge of
a gun came from the victims’ statements. Trial counsel said he knew of no grounds for a
motion to suppress evidence of the gun that was based on statements from witnesses. He
also said it was the policy of the district attorney’s office that once a motion to suppress
was filed, the defendant would not receive a plea offer, which prevented attorneys from
filing frivolous suppression motions. Trial counsel opined that the State would not have
had trouble convincing a jury that the Petitioner knew his accomplice had a gun during
the home invasion.

       Trial counsel said he attempted to get a transcript of the preliminary hearing, but it
had not been transcribed. He also tried to get a copy of the tape recording of the
preliminary hearing several times but was unable to obtain it. He said that he spoke with
the attorney who had represented the Petitioner at the preliminary hearing to ensure that
there was nothing he should know when preparing the Petitioner’s defense and that the
attorney’s responses corresponded with the information he had already received from the
State. During the hearing, post-conviction counsel said that he had listened to the
recording of the preliminary hearing, and there was nothing in it that would have been
helpful to the Petitioner’s post-conviction case.

       On May 9, 2017, the post-conviction court entered its order denying relief.
Regarding the Petitioner’s claim that his guilty plea was coerced, the court found that the
Petitioner “ha[d] failed to show that the Court did not ensure his understanding of the
plea and its consequences or that Petitioner did not enter into the plea freely and
voluntarily.” As to the claim that trial counsel was ineffective in failing to provide
competent representation throughout the preliminary proceedings, the post-conviction
                                            -5-
court determined that because the Petitioner had “not shown by clear and convincing
evidence that trial counsel’s performance was below the objective standard of
reasonableness under prevailing professional norms,” the Petitioner had failed to
establish “a reasonable probability that[,] but for trial counsel’s performance, the case
would have resulted in a different outcome or that he would not have accepted the plea.”
In addition, regarding the Petitioner’s claim that trial counsel provided ineffective
assistance in failing to object to his employment of a firearm charge, the court noted that
the firearm charge, as well as the other charges, had resulted from a grand jury indictment
and that the “Petitioner ha[d] failed[to] state a valid claim.” Finally, as to the claim that
trial counsel’s ineffectiveness prevented him from receiving a reduced sentence, the post-
conviction court recognized that the Petitioner “receiv[ed] the minimum sentence on all
charges” and had failed to present any evidence to support this claim. Following entry of
the order denying post-conviction relief, the Petitioner filed a timely notice of appeal.

                                       ANALYSIS

       On appeal, the Petitioner argues that the trial court erred in denying post-
conviction relief. He asserts that his guilty plea was not knowing and voluntary because
it was coerced. He also contends that trial counsel was ineffective by failing to provide
competent representation throughout the preliminary proceedings, by failing to object to
his employment of a firearm charge, and by failing to obtain a reduced sentence for him.
We conclude that the post-conviction court properly denied relief.

        Post-conviction relief is only warranted when a petitioner establishes that his or
her conviction or sentence is void or voidable because of an abridgement of a
constitutional right. T.C.A. § 40-30-103. We are bound by the factual findings of the
post-conviction court unless the preponderance of the evidence is otherwise. Felts v.
State, 354 S.W.3d 266, 276 (Tenn. 2011) (citing Tenn. R. App. P. 13(d); Dellinger v.
State, 279 S.W.3d 282, 294 (Tenn. 2009); Vaughn v. State, 202 S.W.3d 106, 115 (Tenn.
2006); Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001)). However, our review of mixed
questions of law and fact, such as the validity of a guilty plea or a claim of ineffective
assistance of counsel, is de novo with no presumption of correctness. Felts, 354 S.W.3d
at 276; Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010).

        A post-conviction petitioner has the burden of proving the factual allegations by
clear and convincing evidence. T.C.A. § 40-30-110(f); Tenn. Sup. Ct. R. 28, § 8(D)(1);
Dellinger, 279 S.W.3d at 293-94. Evidence is considered clear and convincing when
there is no serious or substantial doubt about the accuracy of the conclusions drawn from
it. Lane, 316 S.W.3d at 562; Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009);
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).

                                            -6-
        To be valid, a guilty plea must be entered knowingly, voluntarily, and
intelligently. Lane, 316 S.W.3d at 562 (citing State v. Mackey, 553 S.W.2d 337, 340
(Tenn. 1977); North Carolina v. Alford, 400 U.S. 25, 31 (1970); Brady v. United States,
397 U.S. 742, 747 (1970); Boykin v. Alabama, 395 U.S. 238, 242-44 (1969)). When
determining whether a guilty plea was knowingly, voluntarily, and intelligently entered,
the court must consider “‘whether the plea represents a voluntary and intelligent choice
among the alternative courses of action open to the defendant.’” Id. (quoting Grindstaff,
297 S.W.3d at 218). In making this determination, a trial court may consider a number of
factors, including:

       1) the defendant’s relative intelligence; 2) the defendant’s familiarity with
       criminal proceedings; 3) the competency of counsel and the defendant’s
       opportunity to confer with counsel about alternatives; 4) the advice of
       counsel and the court about the charges 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.

Howell v. State, 185 S.W.3d 319, 330-31 (Tenn. 2006) (citing Blankenship v. State, 858
S.W.2d 897, 904 (Tenn. 1993)). A plea is not voluntary if it is the result of “‘[i]gnorance,
incomprehension, coercion, terror, inducements, [or] subtle or blatant threats . . . .’”
Blankenship, 858 S.W.2d at 904 (quoting Boykin, 395 U.S. at 242-43).

       In order to prevail on an ineffective assistance of counsel claim, the petitioner
must establish that (1) his lawyer’s performance was deficient and (2) the deficient
performance prejudiced the defense. Vaughn, 202 S.W.3d at 116 (citing Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975); Strickland v. Washington, 466 U.S. 668, 687 (1984)).
A petitioner successfully demonstrates deficient performance when the petitioner
establishes that his attorney’s conduct fell “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, 523 S.W.2d at 936). Prejudice arising
therefrom is demonstrated once the petitioner establishes “‘a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.’” Id. at 370 (quoting Strickland, 466 U.S. at 694). “Because a petitioner
must establish both prongs of the test, a failure to prove either deficiency or prejudice
provides a sufficient basis to deny relief on the ineffective assistance claim.” Id. (citing
Strickland, 466 U.S. at 697).

      After reciting the post-conviction court’s findings, the Petitioner limits his entire
argument in this case to a single sentence: “Petitioner would respectfully disagree with
the conclusions of the Court based on the grounds set forth in his Pro Se Petition, his
                                           -7-
Amended Petition, and his testimony at his Post-Conviction hearing.” The plea
agreement, the plea submission hearing transcript, and trial counsel’s testimony at the
post-conviction hearing refute the claims made by the Petitioner. Moreover, the record
fully supports the post-conviction court’s determinations that the Petitioner knowingly
and voluntarily entered his guilty plea and that trial counsel provided effective assistance.
Because the Petitioner has failed to prove his factual allegations by clear and convincing
evidence, we affirm the post-conviction court’s denial of relief.


                                              ____________________________________
                                              CAMILLE R. MCMULLEN, JUDGE




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