           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                             Assigned on Briefs June 3, 2014

           CHARLIE LOVELL LEAVY, III v. STATE OF TENNESSEE

                    Appeal from the Circuit Court for Tipton County
                    No. 7058   Honorable Joe H. Walker, III, Judge


                  No. W2013-00719-CCA-R3-PC - Filed July 16, 2014


The Petitioner, Charlie Lovell Leavy, III, appeals the post-conviction court’s denial of relief
from his convictions for aggravated burglary, burglary of a building, theft over $1,000,
felony evading arrest, and simple assault. On appeal, the Petitioner argues that he received
ineffective assistance of counsel. Upon our review, we affirm the judgment of the post-
conviction court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which A LAN E. G LENN and
J EFFREY S. B IVINS, JJ., joined.

Charles F. Brasfield, Covington, Tennnessee, for the Defendant-Appellant, Charlie Lovell
Leavy, III.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Mike Dunavant, District Attorney General; and Jason Poyner, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                           OPINION

       On February 28, 2012, the Petitioner entered guilty pleas to aggravated burglary,
burglary of a building, theft over $1,000, and felony evading arrest in case number 7058 and
the reduced charge of simple assault in case number 7057.1 He received an effective
sentence of six years at 35% to be served concurrently with a four-year sentence in
Lauderdale County.


       1
          The indictment and judgment forms are not included in the record on appeal. We glean the
information about the Petitioner’s guilty pleas from the February 28, 2012 guilty plea hearing.
       At the guilty plea hearing, the State summarized the underlying facts of the
Petitioner’s convictions as follows:

Case Number 7058:

             [O]n November 19, 2010, Deputy Green arrived at a . . . Canaan Grove
      address in Mason, in Tipton County, regarding an aggravated burglary
      complaint. He observed the back door to Mr. [Terry] Twisdale’s house had
      been kicked in. The shop door behind the residence was kicked in.

             Wayne Green and Tony Byrd, who were there, stated that they had
      observed two male blacks driving at a high rate of speed on a camouflage 4-
      wheeler near the residence, and Mr. Bryd stated he was almost struck by the
      4-wheeler, and also that there was a blue passenger car with a back glass
      completely missing which was traveling behind the 4-wheeler. The registered
      owner of that vehicle was the co-defendant in the other case, Mr. [Henry]
      Olden.

            Detectives Rodriquez and Wassel made the scene and spoke with the
      homeowner, Mr. Twisdale, who stated that his flat-screen television and
      Nintendo Wii were missing from the residence, and a camouflage Honda 4-
      wheeler was also missing from the shop. That’s what had earlier been
      observed being driven with the two male blacks.

             The estimated damage to the doors was over [$]500 and the damage to
      the items – or the value of the items missing was [$]5,000. Deputies with the
      sheriff’s office located the blue passenger car, and at that time Mr. Olden and
      Mr. Goodwin were taken into custody. And there would be some testimony
      [the Petitioner] fled from the deputies, and [the Petitioner] was unable to be
      apprehended at that time. That was part of the State’s thinking in proceeding
      by warrant against Mr. Olden and Mr. Goodwin, in seeing what the proof
      developed on [the Petitioner]. And, in fact, he was indicted in a matter that
      went straight to the Grand Jury in 2011.

              Mr. Olden and Mr. Goodwin were questioned, and they confessed to the
      aggravated burglary and also to a residence which was in Fayette County, all
      part of the same transaction.

            There were three male blacks that were observed during the process.
      Mr. Henry [Olden] gave a statement and Mr. Oscar Goodwin gave a statement

                                            -2-
     that . . . [the Petitioner] was the one that got away[.] . . . Mr. [Olden] has
     always maintained that [the Petitioner] was the third individual who got away.

             Sometime during the course of these proceedings I got a letter, and
     [defense counsel] is aware of it. Mr. Goodwin, from the penitentiary, wrote
     a letter that [the Petitioner] had nothing to do with the burglary, that he lied
     about him being there, that he, Mr. Goodwin, was high off pills, weed, and
     more.

             [I]f [Mr. Goodwin] were to testify about that, I think under all the facts
     it would not be true. [Defense counsel] knows about this. It would be
     obviously exculpatory if it were to be believed, but we think that Mr. [Olden]’s
     testimony would be enough, and in fact Mr. Goodwin had earlier maintained
     that [the Petitioner] was the third individual. So we believe we can carry our
     burden.

Case Number 7057:

            That is an unrelated case for which . . . [the Petitioner] was indicted
     again . . . for aggravated assault on a John Richard Gemesis, be [sic] the
     causing of serious bodily injury.

             At that time of the event, which was February 3, 2011, both individuals
     were in the Tipton County Jail. There was a fight in C pod. Mr. Gemesis was
     found with injuries to his face, hand, neck and hands. Investigation revealed
     that there had been - - a preacher had been - - the person described as the jail
     preacher the evening before had been in the jail, and he was met with cursing
     and yelling during his sermon, and Mr. Gemesis who told [the Petitioner] he
     shouldn’t be disrespectful to the preacher.

             And according to Mr. Gemesis, [the Petitioner] became irate, made
     threats, went back to his cell, came back with a tray, which was the issue tray
     there in the jail, a thick, plastic food tray. According to Mr. Gemesis[, the
     Petitioner] grabbed him and pulled him to the floor and hit him in the face with
     his fist, kicked him, and bit him on the arm, and spit on his face.

             Several inmates gave statements. Unfortunately, as these things often
     are, the statements were more or less divided among racial – between racial
     lines. Mr. Gemesis is white and [the Petitioner] is African-American.



                                            -3-
       However, there is no doubt that Mr. Gemesis was hit. There might be some
       doubt – we think there is less doubt that the tray could be a deadly weapon.

              There is an issue as to the serious bodily injury, whether the injuries
       sustained rose to the level of serious bodily injury. The State is willing to
       reduce that charge to a simple assault and recommend a sentence of 11 months
       and 29 days concurrent with [Case Number] 7058.

Defense counsel stipulated that there was a factual basis for the Petitioner’s guilty plea and
asked the trial court to accept the State’s recommendation.

       The trial court then engaged in a dialogue with the Petitioner regarding his desire to
plead guilty. The court explained to the Petitioner his rights and the rights he would be
giving up by pleading guilty. The Petitioner indicated that he understood his rights and had
discussed the plea agreement with his attorney. The court told the Petitioner he was charged
with felony offenses in two separate cases and then reviewed the terms of the plea agreement
with the Petitioner:

       COURT:               In Docket 7057 you are charged with a C felony of
                            aggravated assault. A C felony for a multiple offender
                            carries not less than six and up to 10 years. In that case
                            you’re entering a plea to a misdemeanor assault that
                            carries 11 months and 29 days.             Is that your
                            understanding of the plea arrangement?

       PETITIONER:          Yes, sir.

       COURT:               In Docket Number 7058 you are charged in Count 1 with
                            a C felony. A C felony for a multiple offender carries six
                            to 10 years. The State is recommending the minimum
                            sentence of six years;

                            In Count 2 with a D felony that carries four to eight, and
                            the State is recommending the minimum sentence of four
                            [years];

                            In Count 3 with a D felony, again the State is
                            recommending a four-year sentence;




                                             -4-
                             And in Count 4 an E felony that carries two to four years,
                             all to run concurrent so there will be a six-year sentence
                             in 7058.

                             Is that your understanding of the plea arrangement in that
                             case?

       PETITIONER:           Yes, sir.

       COURT:                The State is further recommending that these all run
                             concurrent and concurrent with the sentence you’re
                             currently serving.


The Petitioner indicated that he was satisfied with his counsel’s representation and that no
one had forced him to enter a plea of guilty. The court then accepted the Petitioner’s guilty
pleas and sentenced the Petitioner in accordance with the plea agreement to an effective six-
year sentence to run concurrently with the sentence the Petitioner was already serving.

        On November 13, 2012, the Petitioner filed a timely pro se petition for post-conviction
relief. He was subsequently appointed counsel and an amended petition was filed on his
behalf on March 4, 2013, raising, inter alia, claims of ineffective assistance of counsel.

       At the March 6, 2013 post-conviction hearing, counsel testified that the Petitioner was
already serving a four-year sentence in the Department of Correction for an offense
committed in Lauderdale County when counsel negotiated the package plea deal in Tipton
County case numbers 7057 and 7058. Counsel communicated with the Petitioner “multiple
times” during the negotiation process before the Petitioner accepted the plea agreement from
the State. The Petitioner rejected an earlier offer from the State because he wanted to see if
the State would consider “a better deal” in which the Tipton County sentences would run
concurrent with the Lauderdale county.

        Counsel received a letter from the Petitioner with three plea agreement proposals to
submit to the State: (1) a six-year sentence at 35% for time already served on the Lauderdale
County case; (2) a four-year sentence at 30% to run concurrent with the Lauderdale County
sentence; or (3) a dismissal of the Tipton County charges. Counsel was unable to obtain any
of these plea deals from the State. Counsel received another letter from the Petitioner stating,
“I’ll take [the State’s plea offer] only if I get it on parole with no prison time, because the
period of incarceration I already have will be served. I will take house arrest and parole,



                                              -5-
because I don’t need alot [sic] of time a wild.” Counsel stated that based upon conversations
with the Petitioner, she understood “a wild” to mean consecutive sentences.

        The Petitioner told counsel that there was insufficient evidence in case number 7058;
however, through counsel’s own investigation, including speaking with one of the
investigators, counsel learned that the Petitioner was identified as one of the occupants of the
four-wheeler. Counsel acknowledged that she received a letter from co-defendant Oscar
Goodwin in which he denied that he identified the Petitioner as the other perpetrator.
Counsel listened to audio recordings of the statements given to the police by the co-
defendants and allowed the Petitioner to listen to the recordings. According to counsel, there
“wasn’t any real dispute about what had happened or what the testimony would be.” She
testified that the “best offer [she] felt that [she] could obtain” was a concurrent six-year
sentence at 35% based on the evidence in the case.

       Counsel testified that she told the Petitioner “very clearly” that she could not obtain
the plea deals that he had outlined in his letters. She reviewed the State’s evidence and
discussed the terms of the package plea deal offered by the State and the Petitioner’s other
options with the Petitioner for “several hours.” She “made it clear” to the Petitioner that she
was prepared to go to trial if he chose to reject the State’s offer and proceed to trial. The
Petitioner made the decision to accept the State’s package plea offer.

       After making the decision to accept the State’s offer but before entering his plea, the
Petitioner signed another acknowledgment form prepared by counsel. The form, which was
admitted into evidence, outlined the terms of the plea offer as follows:

       I wish to accept the State’s offer to plead guilty to the indicted charges in
       #7058 (Aggravated Burglary, Burglary, Theft, and Evading Arrest) and a
       reduced charge in #7057 (from Aggravated Assault to Misdemeanor Simple
       Assault).

       If I accept this offer, I will receive an effective 6 year sentence at 35%, which
       means that I will have to serve at least 35% of 6 years before I will be eligible
       for parole.

       I further understand that if I accept this offer, it will be up to the Judge
       whether to grant me the time I have spent in jail . . . and whether to run the
       sentences concurrent with the sentences I am already serving in TDOC[.]




                                              -6-
       I understand that there is nothing to guarantee that the parole board will grant
       parole at any time during my 6 year sentence; therefore, I could be required to
       serve the entire 6 years.

The form also indicated that the Petitioner was afforded an opportunity to listen to the audio
recordings of the statements made by co-defendants Goodwin and Olden and to read the
letter from co-defendant Goodwin in which he denies that he gave the Petitioner’s name as
an accomplice to the police. Counsel testified that she went through the form with the
Petitioner and had him repeat back all of the information in the acknowledgment, including
“whether or not he understood that this . . . six-year sentence was what he was going to get,
in effect.” When asked whether she believed that the Petitioner understood that his sentence
would run longer than the four-year sentence he was serving in Lauderdale County, counsel
responded, “Absolutely. That was made very clear to him. Six years is longer than four.”

        After the Petitioner’s guilty plea hearing, counsel received another letter from the
Petitioner, in which he expressed his belief that he had been misled about the terms of the
plea agreement. The letter stated that the Petitioner believed he “was getting the sentence
on probation” and reminded counsel that the Petitioner “told [counsel] [he] would go to trial
before [he] took a wild sentence.” Counsel testified that she still did not have any concerns
about whether the Petitioner understood the terms of his plea agreement after receiving this
letter and stated that she “felt like this was an attempt of another inmate to mislead” the
Petitioner. She reiterated that she had “[n]o doubt in [her] mind that she was clear” with the
Petitioner about his plea agreement and the difference in a concurrent and consecutive
sentence. Counsel testified that the Petitioner received a concurrent sentence and did not
receive a “wild” or consecutive sentence.

        Counsel acknowledged that she had concerns about the Petitioner’s mental capacity
during her representation and took steps to have him evaluated. He was found to be
competent to stand trial. Counsel testified that the Petitioner seemed to understand the terms
of the plea agreement “quite well at the time,” and opined that additional time to explain the
agreement would not have improved his understanding. She stated that she made it very
clear to the Petitioner that “no probation or alternative sentences could be had. [The
Petitioner] would have to go through the parole procedures.” She confirmed that there was
no mention of probation during the Petitioner’s guilty plea hearing. She knew of no
circumstances in which the State would agree to, and the trial court would approve of,
probation or an alternative sentence for a defendant who was already serving a sentence in
the penitentiary.

       The Petitioner testified that counsel represented him in the instant case and that he
sent her several letters about possible plea options he would consider. In his initial letter, the

                                               -7-
Petitioner outlined three plea options, none of which were agreed to by the State. He sent
counsel a second letter in which he told counsel that he would accept a package plea deal if
he received credit for time already served for his Lauderdale County conviction and parole
or house arrest. The Petitioner explained that a “wild” sentence refers to a consecutive
sentence. The Petitioner described a concurrent sentence as “just a straight sentence” and
a consecutive sentence as “just one after the other.” The State did not accept any of the
Petitioner’s proposed plea offers.

        The Petitioner recalled that on the day of the plea, he listened to the audio recordings
of statements made by co-defendants Olden and Goodwin and discussed the State’s plea offer
with counsel. He told counsel he would accept the offer “if it was on probation and it [ran]
concurrent with [his] Lauderdale case[.] If not, [he] wanted to proceed to trial.” Counsel
spoke with the prosecutor and then informed the Petitioner that she had obtained “the deal
[he] wanted this time.” The Petitioner believed that under the terms of the agreement he
would be released on probation after he completed service of his Lauderdale County
sentence. He learned from a counselor at the penitentiary that his sentence had been
“extended” and that he would have to serve the remainder of his Tipton County sentence in
confinement. The Petitioner testified that he would not have accepted the plea offer and
would have proceeded to trial had he known that he would have to serve his six-year
sentence in confinement.

        On cross-examination, the Petitioner testified that he personally wrote the letters to
counsel but stated that he has difficulty reading. He confirmed that he signed the
acknowledgment form that outlined the terms of his plea agreement prior to pleading guilty
but denied that he read or reviewed the document with counsel before signing it. He
explained that he did not believe he needed to review the document because he “was just
trusting [counsel’s] word” that she had obtained the deal he wanted. He recalled the trial
court asking him multiple questions at the guilty plea hearing and confirmed that there was
no mention of probation during the hearing. According to the Petitioner, the trial court asked
him whether he understood the charges but did not ask him whether he understood the
manner of his sentence.

        Following the hearing, the trial court took the matter under advisement and denied
relief in a written order on March 6, 2013. In relevant part, the order states:

              [The] Petitioner was sentenced in RD 5881 and RD 6380 to suspended
       sentences. The suspended sentences were revoked after a hearing on January
       18, 2011. In this case (RD 7058) [the] [P]etitioner entered a guilty plea to
       felony offenses which occurred while on probation. He received agreed



                                              -8-
sentences of an effective 6 years concurrent. He was transported to TDOC to
enter the pleas. He was in custody of TDOC since before October 2011.

        In August 2012, the [P]etitioner sent a letter requesting a suspended
sentence. He requested to “serve the balance of his sentence on parole.” The
court entered an order in August 2012 in response to that letter that the court
lost jurisdiction, and relief was up to the parole board.

        The court finds that the [P]etitioner understood his plea and sentence,
but is not happy that he has not received parole. He accepted the plea deal, but
now maintains he did not understand. He has failed to show counsel was
deficient.

        [Counsel] testified with regard to the meetings and discussions with
[the] [P]etitioner. She testified that the [P]etitioner understood the terms of the
plea, and that the 6 year sentence would be served in TDOC, where he was
currently incarcerated. She discussed the facts with [the] [P]etitioner and the
possible defenses.

        Sentencing is not a proper subject for post-conviction relief. [T.C.A.
§§] 40-35-106 and 40-25-401. The plea was explained to [the] Petitioner in
detail. Upon his plea, other charges were reduced to a misdemeanor. The plea
agreement ran this case concurrent with Lauderdale County convictions, and
with the convictions he was currently serving in TDOC. The range of
punishment was explained to him[] as being 6 to 10 years as a multiple
offender, with the state recommending the minimum sentence.

       It was explained to [the] [P]etitioner at the plea hearing that the
sentences would run concurrent and that he would have 6 years.

       He stated he understood this.

       The Court finds that the [P]etitioner knowingly and voluntarily entered
a plea of guilty.

       The Court finds that [the] [P]etitioner has failed to establish the factual
allegations contained in his petition by clear and convincing evidence.
[T.C.A.] § 40-30-210. The [P]etitioner has not shown that (a) the services
rendered by trial counsel were deficient and (b) the deficient performance was
prejudicial. The [P]etitioner has not shown that the services rendered or the

                                        -9-
        advice given was below the range of competence demanded of attorneys in
        criminal cases. The [P]etitioner has not shown that there is a reasonable
        probability that, but for counsel’s deficient performance, the result of the
        proceeding would have been different.

        [T]he petition for post[-]conviction relief is denied and dismissed.

It is from this order that the Petitioner appeals.

                                                ANALYSIS

        On appeal, the Petitioner argues that he received ineffective assistance of counsel,
based on counsel’s representation of him during the plea negotiation stage.2 The State
responds that the Petitioner failed to establish that counsel’s performance was deficient or
that the Petitioner was prejudiced as a result of any deficiency, and therefore, he is not
entitled to relief. We agree with the State.

      Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction is void or voidable because of an abridgement of a constitutional right. T.C.A.
§ 40-30-103 (2006). The Tennessee Supreme Court has held:

               A post-conviction court’s findings of fact are conclusive on appeal
        unless the evidence preponderates otherwise. When reviewing factual issues,
        the appellate court will not re-weigh or re-evaluate the evidence; moreover,
        factual questions involving the credibility of witnesses or the weight of their
        testimony are matters for the trial court to resolve. The appellate court’s
        review of a legal issue, or of a mixed question of law or fact such as a claim
        of ineffective assistance of counsel, is de novo with no presumption of
        correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal quotation and citations
omitted). “The petitioner bears the burden of proving factual allegations in the petition for
post-conviction relief by clear and convincing evidence.” Id. (citing T.C.A. § 40-30-110(f);
Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006)). Evidence is considered clear and
convincing when there is no serious or substantial doubt about the accuracy of the



        2
           In his petition for post-conviction relief, the Petitioner also alleged that his guilty pleas were not
knowing and voluntary. The trial court denied relief on this ground, and the Petitioner did not raise it in his
brief to this court. Accordingly, we do not address it on appeal.

                                                      -10-
conclusions drawn from it. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)
(citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).

       Vaughn further repeated well-settled principles applicable to claims of ineffective
assistance of counsel:

              The right of a person accused of a crime to representation by counsel
       is guaranteed by both the Sixth Amendment to the United States Constitution
       and article I, section 9, of the Tennessee Constitution. Both the United States
       Supreme Court and this Court have recognized that this right to representation
       encompasses the right to reasonably effective assistance, that is, within the
       range of competence demanded of attorneys in criminal cases.

Vaughn, 202 S.W.3d at 116 (internal quotations and citations omitted).

        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. Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984);
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[A] failure to prove either deficiency
or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim.
Indeed, a court need not address the components in any particular order or even address both
if the [petitioner] makes an insufficient showing of one component.” Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697).

        A petitioner successfully demonstrates deficient performance when the clear and
convincing evidence proves that his attorney’s conduct fell below “an objective standard of
reasonableness under prevailing professional norms.” Id. at 369 (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). In order to satisfy the “prejudice” requirement in the context
of a guilty plea, a 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.”
Hill v. Lockhart, 474 U.S. 52, 59 (1985); see Serrano v. State, 133 S.W.3d 599, 605 (Tenn.
2004).

       We note that “[i]n evaluating an attorney’s performance, a reviewing court must be
highly deferential and should indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” State v. Burns, 6 S.W.3d 453,

                                              -11-
462 (Tenn. 1999) (citing Strickland, 466 U.S. at 689). Moreover, “[n]o particular set of
detailed rules for counsel’s conduct can satisfactorily take account of the variety of
circumstances faced by defense counsel or the range of legitimate decisions regarding how
best to represent a criminal defendant.” Strickland, 466 U.S. at 688-89. However, we note
that this “‘deference to matters of strategy and tactical choices applies only if the choices are
informed ones based upon adequate preparation.’” House v. State, 44 S.W.3d 508, 515
(Tenn. 2001) (quoting Goad, 938 S.W.2d at 369).

        In the case sub judice, the Petitioner argues that counsel provided ineffective
assistance of counsel by failing to adequately advise him of the terms of his package plea
agreement or to ensure that he read and understood the plea agreement prior to pleading
guilty. The Petitioner asserts that counsel knew the Petitioner would only accept a plea offer
“if probation was part of the deal” but she “clearly negotiated additional time . . . without the
availability of probation or alternative sentencing.” The Petitioner maintains that counsel’s
knowledge of the Petitioner’s specific requests for a plea agreement and counsel’s
contradictory actions constituted deficient performance, which prejudiced the Petitioner
because had he known or understood that he would be serving his six-year sentence in
confinement, he would not have pleaded guilty and would have proceeded to trial.

        In denying relief on this claim, the post-conviction court accredited the testimony of
counsel over that of the Petitioner and found that counsel adequately informed the Petitioner
of the terms of his plea agreement, including the sentence he would be facing. In addition,
the court emphasized that the terms of the plea agreement were also explained to the
Petitioner at the guilty plea hearing and the Petitioner stated that he understood those terms.
Based on these findings, the court concluded that the Petitioner decided to plead guilty after
discussing the matter with counsel and considering his options; therefore, the Petitioner
failed to establish ineffective assistance of counsel. Upon review, we conclude that the
record supports the findings and conclusions of the post-conviction court.

        At the post-conviction hearing, counsel testified that she communicated with the
Petitioner multiple times during the plea negotiation process and obtained the “best offer”
she felt could be obtained in the Petitioner’s case. She confirmed that the Petitioner gave her
several plea offers to take to the State but the State rejected all of them, which she “very
clearly” explained to the Petitioner. When the State made the package plea offer, which was
ultimately accepted by the Petitioner, counsel spent several hours discussing the terms of the
agreement and the Petitioner’s other options with the Petitioner. Counsel testified that she
was prepared to go to trial, but the Petitioner decided to accept the plea agreement after
considering the State’s evidence. The Petitioner’s decision was memorialized in an
acknowledgment form prepared by counsel and signed by the Petitioner prior to the guilty
plea hearing. The form sets out the terms of the plea agreement and specifically states that

                                              -12-
the Petitioner would serve six years’ confinement with “nothing to guarantee” that he would
be granted parole during that time. Although the Petitioner maintained that he did not read
the form nor understand its terms, counsel testified that she reviewed the form with the
Petitioner and had him repeat back all of the information before he signed it. She testified
that it was “made very clear to [the Petitioner]” that his six-year sentence would run longer
than the four-year sentence he was already serving and he “absolutely” understood those
terms. The post-conviction court accredited counsel’s testimony, and we will not re-weigh
or re-evaluate this evidence on appeal. See Vaughn, 202 S.W.3d at 115. Accordingly, the
Petitioner has failed to establish ineffective assistance of counsel.

                                         CONCLUSION

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

                                           ___________________________________
                                            CAMILLE R. McMULLEN, JUDGE




                                            -13-
