Donald J. Vaughn v. State of Tennessee ( 2022 )

07/14/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 21, 2022
DONALD J. VAUGHN v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2009-C-2285 Mark J. Fishburn, Judge
No. M2021-01180-CCA-R3-PC
The petitioner, Donald J. Vaughn, appeals the denial of his petition for post-conviction
relief, which petition challenged his guilty-pleaded convictions of aggravated rape,
alleging that his guilty pleas were invalid because he was deprived of the effective
assistance of counsel. Because the issue was previously determined, we affirm the denial
of post-conviction relief.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER, and J. ROSS DYER, JJ., joined.
Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Donald J. Vaughn.
Herbert H. Slatery III, Attorney General and Reporter; Richard D. Douglas, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Janice Norman, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
In July 2009, the petitioner was charged with one count of aggravated
kidnapping and two counts of aggravated rape of the victim. State v. Donald Vaughn, No.
M2011-00937-CCA-R3-CD, 2013 WL 1461774, at *1 (Tenn. Crim. App., Knoxville, Apr.
11, 2013). The petitioner’s case went to trial, but after jury selection began, the petitioner
“entered into a plea agreement with the State,” and the petitioner pleaded “guilty to two
counts of aggravated rape with his sentence to be determined by the trial court in exchange
for dismissal of the aggravated kidnapping charge.” Id. On direct appeal, this court recited
the facts as presented by the State during the petitioner’s plea submission hearing:
On October 31, 2008, the victim was on her way to a
Halloween party when she noticed the [petitioner] following
her in a white Jeep. The victim repeatedly tried to get away
from the [petitioner], and only left her car after she believed he
was no longer following her. After exiting her car, the victim
saw the [petitioner] standing across the street from her. The
victim demanded to know why the [petitioner] was following
her. The [petitioner] rushed the victim, grabbed her, and drug
her across the road and into some bushes.
According to the State, the [petitioner] then placed his
hand over the victim’s mouth and told her to “shut the f--k up”
or he would kill her. As the victim struggled and attempted to
scream, the [petitioner] licked and kissed her neck and breasts.
The [petitioner] pried the victim’s thighs open, ripped her
underwear off, and digitally penetrated her vagina. After
digitally penetrating the victim, the [petitioner] unbuckled his
pants and penetrated the victim’s vagina with his penis. After
several minutes, the [petitioner] fled, and the victim was able
to flag down a motorist and call 911.
The State further presented that during the rape, the
victim suffered “a busted lip,” a bruise on her arm, and
scratches on her right hip and inner thighs. The [petitioner’s]
DNA was found on the victim’s neck and breasts, as well as on
a semen stain on the victim’s dress. Semen recovered from the
victim’s vagina was also found to be a partial match to the
[petitioner’s] DNA.
Id. at *1-2. Before a sentencing hearing was held, the petitioner “fired his appointed
counsel and retained a different attorney to represent him” and “filed a motion to withdraw
his guilty pleas.” Id. at *2. At the hearing on the petitioner’s motion to withdraw his guilty
pleas:
[T]he [petitioner] testified that his [trial] counsel failed to
me[e]t with him and failed to properly prepare to try his case.
The [petitioner] testified that he repeatedly wrote letters to the
trial court and the Board of Professional Responsibility
complaining about his attorney’s lack of representation. The
[petitioner] claimed that as a result of his actions, his [trial]
counsel repeatedly belittled, ridiculed, mocked, and cursed
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him, and warned him that “when you f--k with an attorney,
you’re going to get hung.”
The [petitioner] claimed that he did not want to plead
guilty but felt he had no choice but to do so after jury selection
had started. According to the [petitioner], his attorney failed
to challenge any of the potential jurors and laughed at him
while pointing out potential jurors who were going to “hang”
him. The [petitioner] claimed that the day jury selection began
in his trial, his [trial] counsel yelled at him and berated him into
accepting the plea agreement. The [petitioner] testified that he
just became “a machine” and signed the plea agreement and
answered “yes” to whatever he was asked in order to “get it
over with.” The [petitioner] claimed that he went into a
“shock” that lasted the next four days and he could not
remember what happened during that time.
The [petitioner] admitted on cross-examination that he
had previously pled guilty to a felony and had gone through the
plea submission process prior to his pleas in this case. The
[petitioner] also admitted that immediately after he entered his
pleas in this case, he called his brother and told him that he had
decided to plead guilty because the Holy Spirit had moved him
and God had told him to plead guilty. The [petitioner] also told
his brother that he decided to plead guilty because there were
too many women in the jury pool and he believed that there
was some sort of conspiracy to place acquaintances of the
victim and people familiar with his case on the jury.
The [petitioner’s] mother testified that she overheard
the [petitioner’s] attorney berate him during jury selection.
She also testified that the [petitioner’s] attorney approached
her and asked her to convince the [petitioner] to plead guilty.
She claimed that after she refused to do so, the [petitioner’s]
attorney locked her in a conference room in the courthouse
while the [petitioner] plead[ed] guilty. The trial court
subsequently denied the [petitioner’s] motion to withdraw his
guilty pleas.
Id. After a sentencing hearing, the trial court sentenced the petitioner to an effective
sentence of 48 years’ incarceration to be served at 100 percent release eligibility. Id. at *4.
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The petitioner appealed the denial of his motion to withdraw his guilty pleas,
arguing that “the State failed to prove that the [petitioner] inflicted a bodily injury to the
victim.” Id. In affirming the validity of the petitioner’s guilty pleas, this court concluded
that “[a] bodily injury was clearly established by the factual basis for the [petitioner’s]
guilty pleas provided by the State and the victim’s testimony at the sentencing hearing.”
Id. at *5.
The petitioner filed a timely pro se petition for post-conviction relief, and
with the assistance of counsel, filed an amended petition, alleging ineffective assistance of
trial and appellate counsel. After the withdrawal of counsel, the post-conviction court
appointed substitute counsel, and the petitioner filed a second amended post-conviction
petition.
At the May 2021 evidentiary hearing, the petitioner testified that trial counsel
represented him for approximately a year and a half leading up to his trial and that he was
in custody during that time. He said that he “filed a complaint” against counsel “because
he wouldn’t respond to my letters or my family’s inquiries,” after which, counsel “arrived
to the facility . . . and told me that he had everything under control.” During counsel’s one
visit to the jail, the petitioner asked him whether the State made a plea offer, and counsel
told him “they were offering two eights,” but the petitioner “didn’t know what for or how
they would be structured.” The petitioner said that trial counsel moved for a reduction in
bond at the petitioner’s request and that, at the motion hearing, counsel told the petitioner,
“I’m going to show you what happens when you f*** with an attorney, . . . you don’t file
complaints against me, . . . I’m going to show you what happens now.” The petitioner said
that “from that point forward, there was no communication regarding my charges, or
strategy, or anything. It was basically him aggressively calling me names, belittling me,
telling me I was going to spend my life in prison and that he was going to make sure I got
[75] years.” The petitioner said that trial counsel failed to explain the elements of
aggravated rape or “anything regarding charges, or sentencing, or anything like that.”
The petitioner denied that trial counsel reviewed any discovery materials
with him but acknowledged that he “received partial discovery” in the mail. He said that
when he was in the “holding area” at the courthouse for status hearings, trial counsel
“would briefly walk through that holding area, and he wouldn’t stop, or talk to me, or
communicate with me.” During one meeting with counsel in “the booth,” approximately
two weeks before the scheduled trial, counsel showed the petitioner “pictures of bite-mark
injuries” to the victim and said, “[T]his is what you did. . . . [W]e’re going to use this,
we’re going to hang your ass.” When the petitioner told counsel “I didn’t do that,” counsel
“snatched [the photographs] away from me and he walked out of the holding cell.”
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The petitioner described trial counsel’s behavior toward him as “absolutely
abusive,” “threatening,” and “very aggressive.” He said that in a hearing on a motion for
new counsel, he told the trial court that counsel had made one 15-minute visit two days
prior to the hearing and “was just yelling at me.” During that hearing, counsel
acknowledged to the trial court that he called the petitioner “a rapist after [h]e called me a
fat slob.” The petitioner said that he filed “several” complaints against trial counsel with
the Board of Professional Responsibility (“the Board”). In one complaint, dated July 11,
2010, the petitioner told the Board that before a July 6, 2010 bond reduction hearing, trial
counsel
“took me into a private visiting booth and told me ‘I’m gonna
show you what happens when you F*** with an attorney.’ He
informed me that I made a big mistake by writing to the Board
. . . . He also told me ‘I’m not interested in representing you
and I really don’t care for you.’ He also informed me that he
would not be working for me. He said he would do whatever
he wanted to do in my case from now on.
Needless to say, my hearing didn’t go well. I am facing
a lot of time and I am honestly afraid of what he’s gonna do. I
need someone who will represent me seriously in this matter.
He has acted very unprofessional and broken several
rules of pro[fessional] conduct. Please advise me on what to
do.”
The petitioner noted that trial counsel had been publicly censured by the Board “for
aggressive and abusive behavior towards another attorney.”
The petitioner said that trial counsel failed to investigate potentially
exculpatory evidence, explaining that the victim’s “medical report says that there were no
injuries . . . that were seen during the examination,” “[t]he witnesses who were there that
night said there were no injuries,” “the police said that there were no injuries,” and
photographs taken by the detectives of the victim’s arms and neck showed that “[t]here
were no injuries” but that “a couple of weeks later, pictures surfaced of bite marks.” The
petitioner said that he “contacted an odontologist in Nashville and one in Birmingham,”
both of whom said “that there’s no way that bite marks appear later, that they would have
been present at the medical examination” but that counsel failed to investigate the matter.
He also said that “on the Thursday status hearing before trial,” counsel “told the [c]ourt
that he was ready for trial. But then the next day, he filed a motion for funds for a DNA
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expert.” “So I don’t know why he would have told the [c]ourt that he was ready for trial
when he wasn’t, obviously.”
The petitioner said that on the day of trial, “[trial counsel] told me that, if I
didn’t plead guilty, he was going to make sure I got [75] years.” The petitioner said that
during jury selection, he became concerned because of “overwhelming statements being
made.” As an example, the petitioner said that the victim’s “college professor was in the
jury pool, and . . . he stood up and said that [the victim] had visited him and told him all
about this rape, which I felt would have tainted the whole jury pool.” Another potential
juror was “a woman who lived in the neighborhood” where the rape occurred and had
“started a neighborhood watch because of this incident.” Also in the jury venire, “was a
lady whose daughter had been raped.” Yet another potential juror “said that she had been
on a jury before for a rape case and that she felt like justice wasn’t served because the rape
victim [sic] got off.” The petitioner said that he tried “to express my concern to [trial
counsel],” but “he just waved me off and was like you have nothing to do with this, this is
my decision, I’m going to do what I want to do.”
At some point during jury selection, trial counsel “leaned over and he said
look, I know we’ve had problems and I apologize for having problems . . . . but the best
thing you could do is just . . . do an open plea.” The petitioner said that trial counsel told
him, “I know this Judge, he’ll give you two [15]-year sentences and he’ll run them
together,” but the petitioner told counsel, “I don’t want to do that right now.” During a
recess, trial counsel “came back there . . . . and he said here, go ahead and sign this open
plea.” When the petitioner again told counsel that he did not want to plead guilty, counsel
“got really aggressive, and mad and started screaming, threw the papers down on the sink
in there and said you sign this or I’m going to hang your f***ing a** . . . when we go back
in [t]here. You’re going to get [75] years.” The petitioner said that he “started crying” and
“said I don’t want to sign this.” The petitioner felt that he “was under a lot of pressure at
that time. . . . [I]t was terrible” and counsel “wasn’t willing to help me. He said that he
signed a plea agreement because “I felt like I had no choice. [Trial counsel] was
threatening me. He was intimidating me, and he coerced me into signing that by telling
me that I would get two [15]-year sentences and they would be run together.” The
petitioner continued, “And I was only doing it because my alternative was to get [75] years
at [100] percent according to my attorney.”
The petitioner said that immediately after he entered his guilty plea, he
“called my mother’s cell phone” and “explained what happened . . . between [trial counsel]
and I, and she was upset about it.” He said that he also called his brother and told him that
he signed the plea agreement because “I was being responsible. I felt like I was culpable
for wrongdoing that night. I was absolutely not culpable for two aggravated rapes, but I
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signed this plea thinking that it was the best alternative because that’s what [trial counsel]
told me to do.”
During cross-examination, the petitioner said that if trial counsel had
investigated the victim’s bite mark injuries, “I would have had a reasonable defense
because the bite mark photograph was “refuted . . . [by] all of the medical, eye-witness and
police reports.” He also said that trial counsel “told me that I had no defense. He told me
that he wouldn’t work on one either. He said he wasn’t going to help me anymore.”
The petitioner explained that when he told his brother that he was “culpable
for wrongdoing,” he “was referring to my lifestyle that was an ongoing conversation that
we had been having for years.” “I never said I was guilty of rape, never.” The petitioner
said that trial counsel originally presented him with a plea offer of two eight-year sentences
and that he asked counsel to “ask about getting those ran together” but that he did not see
counsel again “for about a year,” at which point “it had changed to a [20]-year offer.” He
reiterated that he wanted to go to trial and that if counsel “would have investigated the case,
explained the consequences of pleading guilty and not have coerced me into pleading,” he
would not have pleaded guilty. He said that he felt that he had no choice but to sign the
plea agreement because after he initially “refused to sign it,” counsel “got angry and started
saying all kinds of negative things to me,” including that if he did not sign the plea
agreement, “you’re going to get [75] years.” He insisted that he signed the plea agreement
believing that he would receive two concurrent 15-year sentences. He acknowledged,
however that in one conversation, he told his brother that each conviction carried a 15- to
25-year sentence and that the sentences could be aligned concurrently.
Brandy Vaughn, the petitioner’s brother, testified that he talked with the
petitioner after the plea submission hearing and said that the petitioner “was never happy
with the . . . circumstances of his attorney and all that.” The petitioner complained of
“[b]ad treatment” by trial counsel, and Mr. Vaughn “wasn’t really . . . happy with” trial
counsel either, but “with the cost of attorneys at the time, I wasn’t available to . . . do
anything about it.” Mr. Vaughn acknowledged that he never met trial counsel but said that
the petitioner told him that counsel had repeatedly been verbally abusive both before and
after the plea submission hearing. Mr. Vaughn denied that the petitioner ever admitted to
raping the victim and said that their conversation was “about [the petitioner’s] being in the
wrong place at the wrong time.” He said that he encouraged the petitioner to “take
responsibility” for “whatever your part was” but said that “to this day,” the petitioner never
admitted guilt.
Kathy Clark, the petitioner’s mother, testified that she came to every court
appearance in the petitioner’s case and “spoke with many of the lawyers.” She said,
however, that she “tried and tried to reach [trial counsel] to no avail. [Trial counsel] would
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not call me back.” She said she tried to call trial counsel on the petitioner’s behalf because
the petitioner “wasn’t getting anywhere” and that counsel “would not return calls.” She
recalled that she and the petitioner were particularly concerned about counsel’s
representation “because [the petitioner] had not even spent time with [trial counsel]” and
said that the petitioner asked, “[H]ow can he represent someone if he’s not even talked to
them.”
Ms. Clark said that during jury selection, she was seated in the gallery behind
counsel’s table, and the petitioner “sent me a note saying that [trial counsel] wanted him to
take a plea deal. [The petitioner] did not understand exactly what that was. He was asking
mine and my mother’s opinion. He didn’t know what to do.” Ms. Clark and her mother
“talked for a second. She said absolutely not, let them pick the [j]ury.” Ms. Clark gave a
note to the court officer to deliver to the petitioner, advising him to go forward with trial,
and “when [trial counsel] looked at it, . . . he slammed it down and slung it across the table.”
The court took a recess “within a few minutes of that,” during which time Ms. Clark went
to get a cup of coffee and overheard “some of the [j]urors talking about the case.” She
“rushed back” and told trial counsel, “[T]hey’re talking about my son’s case down in the
cafeteria,” and counsel said “it doesn’t matter anymore, he pled.” Ms. Clark said that she
“was very upset” and that “everyone in the family was upset because this is not what we
had thought was going to happen.” She said that the petitioner called her a short time later
and told her that counsel “took him back, started screaming at him and told him, if he did
not sign a plea agreement, he would see that he got [75] years.”
Ms. Clark also said that after the petitioner entered his plea, she told trial
counsel that she needed to retrieve the petitioner’s suit and tie that he had been wearing
and that trial counsel “showed me and my sister-in-law to a room, told us to wait there.”
“He had us locked in this room. We couldn’t even get out of this room until he came and
let us out of the room with the clothing in hand.” When “I asked him what was going on,”
trial counsel “said it doesn’t matter, and he turns around and walks away.”
During cross-examination, Ms. Clark testified that after the petitioner
pleaded guilty, trial counsel told the media that “the only reason my son did the plea
agreement was because his mother was in the courtroom.” Ms. Clark said that she and the
petitioner “don’t have anything to hide from each other” and that “[h]e did not have to
plead over what I might hear in the courtroom” but that “that’s just the type of thing [trial
counsel] was doing to my son, and to myself and to anyone else involved. He didn’t have
time to do anything for anybody.” Ms. Clark said that during one visit with the petitioner,
she told him, “I’m going to love you no matter what. If you did this, okay, we’ll deal with
it.” The petitioner told Ms. Clark that he and the victim “were having sex” when “her
boyfriend pulled up, and then that’s when she started wanting to holler rape.” She also
said that the victim told a couple who had stopped to help her that her attackers had left in
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a “little dark car” but that the petitioner “was in a huge white Jeep” at the time. She said
that she was unable to relay this information to trial counsel because he “would never call
me back. I couldn’t tell him anything.”
Upon questioning by the court, Ms. Clark said that on the night of the rape,
the petitioner had driven to the Gulch for a party with some friends and that “a couple”
rode with the petitioner. The petitioner told her that he and the victim “started making out,
they were in the car, started making out and . . . one thing led to another until her boyfriend
showed up.” She reiterated that she never got an opportunity to relay this information to
trial counsel because he would not return her telephone calls.
Trial counsel testified that he met with the petitioner leading up to the trial
date but could not remember how many times. He said that they “had a court date usually
every . . . three weeks” and that he “met with [the petitioner] in court. Then, you know, in
jail.” He said that he “briefly” reviewed discovery materials in preparation for trial. He
said that he tried to discuss a defense strategy with the petitioner but that the petitioner was
“insistent that he wanted a particular amount of years,” specifically, “he wanted an eight-
year sentence” with a 30 percent release eligibility and “felt that was a fair resolution to
the matter.” Trial counsel said that he relayed to the State that the petitioner was willing
to plead guilty for an eight-year sentence but that the State refused to negotiate for a
sentence less than 20 years. He said that the State never offered nor entertained an offer
with an eight-year sentence and that the petitioner never indicated prior to trial that he was
willing to plead guilty for a 20-year sentence.
Trial counsel said that he showed the petitioner photographs of the victim’s
injuries and the Tennessee Pattern Jury Instructions and explained to the petitioner that
aggravated rape could be established by the victim’s suffering bruising. He said that the
photographs showed where the victim’s “ribs were all bruised all the way from like her hip
up to her side, up close to her shoulder blade.” He believed that the petitioner had difficulty
understanding that the victim’s suffering a bruise could elevate a rape to aggravated rape.
He acknowledged that the victim testified at a pretrial hearing that the bruising did not
show up immediately but said that it was “like if you were in a car wreck, or you get
punched in the eye, . . . and it doesn’t show up for a day.” In terms of a trial strategy,
counsel said that, based on the evidence, he did not believe the petitioner had a valid alibi
defense. He secured a DNA expert who “found nothing that would indicate [the State’s
DNA analysis] was a mistake or . . . a false positive for [the petitioner’s] DNA” and
determined that calling a DNA expert at trial would bolster the State’s case and harm any
defense. He also said that the victim’s bruising and her “screaming for help on the side of
the road” “would negate that . . . this was a consensual situation.” Counsel said that he
explained all of this to the petitioner.
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Trial counsel said that although he was able to communicate with the
petitioner, the petitioner “wanted what he wanted. And if you were not able to get him the
eight years at [30 percent] offer, he let you know he was not happy about it.” He said that
the petitioner was polite at times and at other times, “we weren’t. It went both ways.” “He
would often tell me that a big fat guy like me wouldn’t know what it was like to have a lot
of women and that I couldn’t understand all this . . . .”
Trial counsel said that he did not remember “at all” one of the victim’s
college professors being on the jury. He recalled that one potential juror said that the
offenses “happened near my neighborhood” and that she had “organized the neighborhood
watch in response to this.” At that point, the petitioner “indicated to me, asked if I could
go take the [20].” Trial counsel said that he asked the prosecutor whether they would allow
the petitioner to plead guilty for a 20-year sentence, but the prosecutor told trial counsel
that the petitioner would have to enter an open guilty plea at that point. Counsel said that
the petitioner “insisted he wanted to plead guilty” that he was surprised by the petitioner’s
decision because “he did not want the aggravated rape charge” and was adamant that “this
wasn’t an aggravated rape,” and “it seemed like he was willing to go to trial.” Counsel
said that during a trial recess, he prepared a plea agreement for two counts of aggravated
rape and reviewed the form with the petitioner.
During cross-examination, trial counsel acknowledged that he and the
petitioner “always didn’t get along” but said, “I’m not a miracle-worker. There’s only so
much you can do.” He acknowledged that on one occasion he told the petitioner, “I might
not get a lot of women, but I don’t have to rape them.” Counsel said that he moved to
withdraw from representation but that the trial court denied the motion. Counsel estimated
that the petitioner filed “[p]robably three, four” complaints against him with the Board.
Counsel said that he “was actually shocked” that the petitioner was considering a guilty
plea and that during a recess from jury voir dire, he explained to the petitioner that he would
strike the potential juror who had indicated that she lived in the neighborhood where the
offenses occurred but that the petitioner believed the entire jury pool to be tainted by the
potential juror’s statement. Counsel said that the petitioner then said, “[L]et me go for an
offer, the twenty-year offer on this case. . . . He wasn’t happy about it obviously.” Counsel
denied that “there was this threatening fight going on” and noted that he wasn’t alone with
the petitioner, “[t]here were court officers.”
In its written order denying post-conviction relief, the post-conviction court
found, among other things, that trial counsel had “met with [the p]etitioner both in jail and
in the holding cell at court, that the petitioner and trial counsel “quarreled and insulted one
another throughout the attorney-client relationship,” that “[t]rial counsel provided [the
p]etitioner a copy of discovery and reviewed it and the photos” with him, that “[t]rial
counsel showed [the p]etitioner photos of the victim’s injuries, including bite marks, prior
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to the morning of trial,” that the “[p]etitioner rejected the State’s pre-trial settlement offer
of 20 years because he did not think it was a fair sentence,” that “[t]rial counsel showed
[the p]etitioner the T.P.I. jury instruction for [a]ggravated [r]ape in an effort to explain why
the rape was considered ‘aggravated’ under the law,” that “[t]he bite mark photos were
previously addressed in two separate hearings held on October 11, 2018, and November
29, 2018,” and that “[t]rial counsel was publicly censured in 2014.” The post-conviction
court concluded that the petitioner “entered his plea[s] knowingly and voluntarily” and that
the petitioner failed to establish that trial counsel performed deficiently.
In this timely appeal, the petitioner argues that trial counsel performed
deficiently rendering his guilty plea unknowing and involuntary. Specifically, the
petitioner asserts that counsel was “abusive,” “failed to communicate” with the petitioner,
and “neglected to obtain all of the photographic evidence.” The State contends that the
petitioner is not entitled to post-conviction relief.
We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence is void or voidable
because of the abridgment of any right guaranteed by the Constitution of Tennessee or the
Constitution of the United States.” T.C.A. § 40-30-103. A post-conviction petitioner bears
the burden of proving his or her factual allegations by clear and convincing evidence. Id.
§ 40-30-110(f). On appeal, the appellate court accords to the post-conviction court’s
findings of fact the weight of a jury verdict, and these findings are conclusive on appeal
unless the evidence preponderates against them. Henley v. State, 960 S.W.2d 572, 578-79
(Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997). By contrast,
the post-conviction court’s conclusions of law receive no deference or presumption of
correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).
Before a petitioner will be granted post-conviction relief based upon a claim
of ineffective assistance of counsel, the record must affirmatively establish, via facts
clearly and convincingly established by the petitioner, that “the advice given, or the
services rendered by the attorney, are [not] within the range of competence demanded of
attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and
that counsel’s deficient performance “actually had an adverse effect on the defense,”
Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, the petitioner “must
show that there is 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 694. Should the
petitioner fail to establish either deficient performance or prejudice, he is not entitled to
relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
. . . that course should be followed.” Strickland, 466 U.S. at 697.
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When considering a claim of ineffective assistance of counsel, a reviewing
court “begins with the strong presumption that counsel provided adequate assistance and
used reasonable professional judgment to make all significant decisions,” Kendrick v.
State, 454 S.W.3d 450, 458 (Tenn. 2015) (citation omitted), and “[t]he petitioner bears the
burden of overcoming this presumption,” id. (citations omitted). We will not grant the
petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or
provide relief on the basis of a sound, but unsuccessful, tactical decision made during the
course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).
Such deference to the tactical decisions of counsel, however, applies only if the choices are
made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).
In the context of a guilty plea, the petitioner must establish that “counsel’s
constitutionally ineffective performance affected the outcome of the plea process” by
establishing “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 Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998).
Apart from whether a guilty plea is the product of ineffective assistance of
counsel, it is invalid if otherwise made unknowingly or involuntarily. “Whether a plea was
knowing and voluntary is an issue of constitutional dimension because ‘[t]he due process
provision of the federal constitution requires that pleas of guilty be knowing and
voluntary.’” State v. Wilson, 31 S.W.3d 189, 194 (Tenn. 2000) (alteration in original)
(quoting Johnson v. State, 834 S.W.2d 922, 923 (Tenn. 1992)). A plea “may not be the
product of ‘[i]gnorance, incomprehension, coercion, terror, inducements, [or] subtle or
blatant threats.” Wilson, 31 S.W.3d at 195 (alterations in original) (quoting Boykin v.
Alabama, 395 U.S. 238, 242-43 (1969)); see also State v. Mellon, 118 S.W.3d 340, 345
(Tenn. 2003) (citing Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993)).
The petitioner is not entitled to post-conviction relief. Whether trial counsel
performed deficiently so as to render the petitioner’s guilty plea unknowing and
involuntarily has already been litigated in the motion to withdraw his guilty pleas, the
denial of which was affirmed by this court on direct appeal.1 See Donald Vaughn, 2013
1
In his initial petition, the petitioner raised a claim of ineffective assistance of his post-plea and
appellate counsel; however, he presented no evidence on this claim at the evidentiary hearing and does not
raise the issue on appeal. Although this issue was not previously determined, the claim is nonetheless
waived. See Horace Johnson v. State, No. 01C01-9404-CR-00138, 1994 WL 630526, at *3 (Tenn. Crim.
App., Nashville, Nov. 10, 1994) (determining post-conviction claims waived because the petitioner “either
did not present evidence to support his claims at the hearing on his petition or he has not argued the claim
on appeal”).
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WL 1461774, at *1. In the context of post-conviction procedures, “[a] ground for relief is
previously determined if a court of competent jurisdiction has ruled on the merits after a
full and fair hearing.” T.C.A. § 40-30-106(h).
Moreover, the petitioner has failed to establish that he entered his guilty pleas
unknowingly or involuntarily. His signed plea agreement clearly states that he was
pleading guilty to two counts of aggravated rape with a sentence range of 15 to 25 years to
be served at 100 percent. It also states that the “length of service [and] consecutive or
concurrent sentencing, T.B.D. [at] later sentencing hearing.” Moreover, during the plea
submission hearing, the trial court recited the sentencing range for aggravated rape as
“between 15 and 60 years” to be served at “100 percent” and told the petitioner that each
conviction carried a separate sentence, and the petitioner indicated that he understood. The
trial court also said, “The length of sentence and whether or not the sentences run
concurrently or consecutively will be determined at a later date at a separate sentencing
hearing,” and the petitioner told the court that he understood. These circumstances
establish that the petitioner knew the potential sentencing range and consequences of his
guilty pleas.
Moreover, during the plea submission hearing, the trial court, noting that the
court had already ruled upon the petitioner’s previously-expressed complaints about trial
counsel, asked the petitioner whether he had any additional complaints about counsel’s
representation, and the petitioner responded, “Nothing additional.” The trial court asked
the petitioner, “Has anyone threatened you with anything or promised you anything in
order to get you to enter these pleas?” The petitioner answered, “No.” Despite more than
one opportunity, the petitioner did not tell the trial court that he felt threatened or coerced
by counsel to plead guilty as he now alleges. Consequently, this issue lacks merit.
Accordingly, the judgment of the post-conviction court is affirmed.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
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