Brandon Nathaniel Merritt v. State of Tennessee ( 2022 )

11/18/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs October 4, 2022
BRANDON NATHANIEL MERRITT v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
Nos. C1704303, 17 02688 Lee V. Coffee, Judge
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No. W2021-01448-CCA-R3-PC
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The Petitioner, Brandon Nathaniel Merritt, pled guilty to attempted rape and sexual battery
and agreed to an effective sentence of six years. Pursuant to the plea agreement, the trial
court was to determine how the sentence would be served. After the trial court imposed a
sentence of full confinement, the Petitioner timely filed a petition for post-conviction relief
asserting that he received the ineffective assistance of counsel regarding his guilty pleas
and at his sentencing hearing. He also asserted that his guilty pleas were not knowingly
and voluntarily entered. After an evidentiary hearing, the post-conviction court denied the
petition for post-conviction relief. On appeal, we affirm the judgment of the post-
conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
TOM GREENHOLTZ, J., delivered the opinion of the Court, in which ROBERT H.
MONTGOMERY, JR., and J. ROSS DYER, JJ., joined.
Shae Atkinson, Memphis, Tennessee, for the appellant, Brandon Nathaniel Merritt.
Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Senior
Assistant Attorney General; Amy P. Weirich, District Attorney General; and Leslie
Fouche, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
A. GUILTY PLEAS
In May 2017, the Shelby County Grand Jury indicted the Petitioner for two counts
of sexual battery and one count of attempted rape. On March 2, 2018, the Petitioner pled
guilty to the offenses of sexual battery and attempted rape, with the other charge being
dismissed pursuant to a plea agreement.
At the guilty plea hearing, the State discussed the basic terms of the proposed
agreement. First, the State recommended that the Petitioner be sentenced as a Range I,
standard offender and receive concurrent sentences of two years for the sexual battery
conviction and six years for the attempted rape conviction. Next, the State noted that the
parties asked for a separate sentencing hearing for the trial court to decide the manner in
which the sentence would be served. Finally, the State affirmed that the Petitioner would
be required to register as a violent sex offender and would be subject to community
supervision for life.
Upon questioning by the trial court, the Petitioner agreed that he had graduated from
college and that he could read and write. He also agreed he had signed the written plea
agreement. The Petitioner said that he had no complaints about plea counsel and that plea
counsel reviewed discovery with him and went “over those things that the State would try
to prove” if the case went to trial.
As relevant to this appeal, the trial court informed the Petitioner that the offense of
attempted rape was a violent sexual offense and that he would be required to register as a
violent sex offender due to that conviction. The trial court also informed the Petitioner that
he would be placed on community supervision for life after serving his sentences. The
Petitioner acknowledged he understood the terms of the plea agreement and the rights he
was waiving by entering his guilty pleas.
B. SENTENCING HEARING
The trial court held a sentencing hearing on June 1, 2018, to determine the manner
in which the six-year sentence would be served. At the hearing, the State called the victim
of the attempted rape. She testified that on the morning of January 6, 2017, she returned
home from driving her son to work. While getting out of her car, she noticed a white truck
stopped in the middle of the street in front of her house. After she went inside the house
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with her dog, she saw the Petitioner get out of the truck and start “messing . . . under the
hood.” The Petitioner then walked up her driveway.
The victim opened her door to ask if she could help, and the Petitioner asked her for
booster cables. She could not find booster cables, and the Petitioner thanked her for trying
to help. He started walking back down her driveway.
However, upon nearly reaching the sidewalk, the Petitioner turned around and
walked back to the house. Because her dog was trying to get outside, the victim stepped
onto the front porch and asked if she could do something else to help. The Petitioner
offered to pay her a couple of dollars for gas if she agreed to drive him to the store, saying
that he did not know what was wrong with his truck. She “started feeling a little weird”
and said she would call her neighbor to help. The Petitioner agreed, and she made the call.
The Petitioner repeatedly thanked her for her help and said he would wait in his
truck so she could go inside. As she turned to go inside the house, he grabbed her around
the throat and pulled her behind her car, “trying to get [her] to the passenger side of [her]
car.” Additionally, he was “pulling [her] pants down, and grabbing at [her].”
Eventually, the victim managed to escape and ran inside her house. She called her
neighbor and told him to follow the Petitioner. She opened her door and yelled to the
Petitioner that he was going to jail. The Petitioner responded either, “‘You white b***h,’
or ‘You crazy b***h.’” He then walked down the driveway as if nothing had happened,
started his truck, and left. The victim said that she had been “scared to death” ever since
the offense, noting that “[h]e had no remorse, no anything.” She asked the court to “please
lock him up.”
On the Petitioner’s behalf, plea counsel submitted letters from Samantha
Hammonds and Amanda Young, counselors with Professional Care Services of West
Tennessee who had been working with the Petitioner; Caleb Hollingsworth, who had
worked with the Petitioner in the insurance business and vouched for the Petitioner’s
character; and a letter from David Leavell, a senior pastor at Millington First Baptist
Church, who stated that the Petitioner had been assigned to power wash exterior walkways
and entrances at the church and that he “provided exceptional services” to the church.
Brad Merritt, the Petitioner’s father, testified that the charges against the Petitioner
shocked him. Mr. Merritt said that the Petitioner was “driven and disciplined,” that he had
been “raised in church,” and that he had “a heart for service.” Despite having a “small
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frame,” the Petitioner had excelled in sports in school. The Petitioner was deeply affected
when his parents divorced in his late teenage years.
The Petitioner also testified at the sentencing hearing. He stated that he was twenty-
nine years old. Although he had been married for six years, the Petitioner noted that his
wife was in Puerto Rico because of a “career opportunity.” He testified that he was self-
employed in a concrete business and that he worked to “resurface pool decks, stain
concrete, epoxy coating, [and] things of that nature.”
To seek help for his “psychological issues,” the Petitioner stated that he met
periodically with his pastor, Mr. Leavell and that he received treatment at Professional Care
Services. He said that the treatment was helping and that he was also attending “sex and
love addiction” meetings.
The Petitioner apologized to the victim of the attempted rape, believing that she and
her family felt anger and fear. He also apologized to the court “for adding to the problems.”
On cross-examination, the Petitioner acknowledged that “[t]his isn’t the first time
[he had] done this” and mentioned “another instance” of “[j]ust flirting with a female.” He
explained that due to his “heavy pornography addiction,” he “got into this habit of flirting
with random women at gas stations or stores” and convincing them to take a “selfie” with
him. As he was “flirting,” he would touch the woman’s “rear end” without her permission.
During his psychosexual evaluation, he said that he had performed the “selfie routine” with
women at least ten times. He admitted that he pled guilty to a simple assault after
purposefully bumping into a woman “with [his] groin area” in a Kroger grocery store.
The Petitioner acknowledged that he had been arrested previously for marijuana
possession, public intoxication, disorderly conduct, and driving under the influence. The
Petitioner conceded that it would be difficult for him to continue being in his “decorative
concrete” business once he was on the sex offender registry and that he would probably
have to find a new job.
The Petitioner conceded that on the same day of the attempted rape, “[t]here was a
woman walking down the street that I stopped and talked to and was flirting with.” The
woman who was the victim of the sexual battery conviction screamed and ran away.
Thereafter, the Petitioner “started to head home,” but he saw the victim of the attempted
rape leaving Walgreens, and he followed her home. He agreed with her version of events,
saying that he had “no desire to go against anything that she said[.]”
Upon questioning by the trial court, the Petitioner acknowledged that his prior
assault conviction was originally charged as sexual battery and that he was placed on
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probation for that conviction. The Petitioner said that he successfully completed the
probationary sentence.
In sentencing the Petitioner, the trial court found that the Petitioner had committed
the two offenses on the same day while on probation for similar conduct, namely the sexual
battery charge that was reduced to an assault conviction. The trial court noted that the
Petitioner testified at the sentencing hearing “that there [was] only one other instance in
which he has engaged in molesting women[.]” However, the Petitioner acknowledged
during his psychosexual evaluation that “he’s basically a serial molester of women.” The
trial court found the inconsistency to be indicative of the Petitioner’s lack of truthfulness.
While the trial court acknowledged that the Petitioner was considered a suitable
candidate for probation, the court found that the suitability was outweighed by the
Petitioner’s committing the two offenses while on probation for a similar offense, his
history of misdemeanor convictions, and his history of criminal behavior by molesting
women. The court also found a need to deter the Petitioner from continuing to commit
similar offenses. The court noted that the Petitioner failed to report to Pretrial Services
several times and that he tested positive for alcohol on at least two occasions, indicating he
would be unable to abide by the terms of release. Accordingly, the trial court ordered the
Petitioner to serve the balance of his six-year sentence in confinement. The Petitioner did
not appeal his sentence.
C. POST-CONVICTION PROCEEDINGS
On March 31, 2019, the Petitioner timely filed a pro se petition for post-conviction
relief. After counsel was appointed, the Petitioner filed an amended petition alleging, in
relevant part,1 that his plea counsel was ineffective by (1) failing to explain the difference
between community supervision for life, the sex offender registry, and the violent sex
offender registry, including that he could not be “removed from community supervision”;
(2) failing to explain the elements of the offenses that the State was required to prove at
trial to obtain a conviction such that, consequently, he was unable to make an informed
decision as to whether to plead guilty or proceed to trial; and (3) by misrepresenting the
maximum possible sentence of confinement that he would receive as a result of his plea.
The Petitioner also asserted that plea counsel was ineffective during the sentencing hearing
by (1) failing to introduce a character reference letter from his pastor and (2) failing to
clarify to the trial court that he had attended all required drug screens. Finally, the
1
Because any additional issues originally raised in the petitions have not been raised on
appeal, we do not address those additional issues further. See Lewis v. State, No. W2020-00653-CCA-R3-
PC, 2021 WL 3140352, at *5 (Tenn. Crim. App. July 26, 2021).
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Petitioner contended that due to the ineffectiveness of counsel, his guilty pleas were not
knowingly and voluntarily entered.
1. Plea Counsel’s Testimony
At the post-conviction hearing, plea counsel testified that he had practiced law for
thirty-eight years and that he had a “general practice with the emphasis on criminal
defense.” Plea counsel began representing the Petitioner in general sessions court and
continued to represent him after the case was bound over to the criminal court. Counsel
noted that the Petitioner was originally charged with aggravated kidnapping, attempted
rape, and sexual battery, and he was later also charged with a second count of sexual
battery.
According to plea counsel, the Petitioner initially denied any involvement in the
offenses. However, after plea counsel obtained information from the State that was
inconsistent with the Petitioner’s version of events, the Petitioner admitted to plea counsel
that he had committed the offenses. The Petitioner also explained that he had lied to
prevent his family from learning about his guilt.
While the case was pending in the general sessions court, plea counsel and the State
discussed possible resolutions to the case. According to plea counsel, the Petitioner wanted
to avoid incarceration because he was self-employed and needed to provide for his wife.
The State proposed that the Petitioner accept a plea of guilty to the offenses of attempted
rape and sexual battery. The State further proposed that the Petitioner receive concurrent
sentences of six years for the attempted rape conviction and two years for the sexual battery
conviction. As plea counsel noted, if the Petitioner accepted this plea, then the State would
not seek a separate indictment for the offense of aggravated kidnapping, which would have
exposed the Petitioner to a minimum sentence of eight years’ incarceration without the
possibility of parole.
Plea counsel told the Petitioner that the State’s offer would permit the Petitioner to
“petition the Court for extraordinary relief, probation, whatever the case may be.” Plea
counsel explained to the Petitioner the factors the trial court would consider when deciding
whether to grant an alternative sentence to incarceration, such as the nature of the offense,
the prior history of similar conduct, whether steps had been taken to address the issues that
led to the charges, employment history, criminal history, and truthfulness.
Plea counsel further advised the Petitioner that it was “very difficult” to get
probation “any time you’ve got multiple victims and you’ve got some history.” Plea
counsel thought it was more likely the Petitioner would get split confinement than full
probation. Plea counsel cautioned the Petitioner, “[E]ven with that, if the Judge doesn’t
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believe you’re sincere, if the Judge doesn’t believe your testimony, if you’re not credible,
then you’re not going to get the relief. And my recollection of the hearing, [the Petitioner]
did not present himself particularly credible.” Plea counsel explained to the Petitioner that
he was not guaranteed to receive probation or split confinement.
Plea counsel testified that he also explained the elements of attempted rape and
sexual battery to the Petitioner. Plea counsel also explained to the Petitioner that the State
had evidence to support the charges against him, including the aggravated kidnapping
charge. Plea counsel never thought the Petitioner misunderstood his options or what he
was facing.
Plea counsel also advised the Petitioner that attempted rape was “categorized as a
violent sexual offense because rape is a violent sexual offense . . . , [and that it] requires
lifetime registry if convicted.” He explained that sexual battery was a sexual offense that
required the Petitioner to register as a sexual offender but that the Petitioner could “get off
after 10 years.” Plea counsel advised the Petitioner what the sexual offender “registry
required and what offenses were required to be registered” and “told him that upon
conviction of a rape or an attempted rape, that he would be supervised for life under current
Tennessee law.”
Plea counsel further advised the Petitioner that, if he were convicted of a violent
sexual offense, then his community supervision was “going to be for life” and that he would
not be able to “get off of it after some period of time.” Plea counsel said that it was never
an option to remove the requirement of community supervision for life from the guilty
pleas.
Plea counsel acknowledged that he had received two letters from David Leavell, the
pastor at Millington First Baptist Church: one dated July 12, 2017, and the other dated July
18, 2017. Plea counsel submitted the July 12 letter at the Petitioner’s sentencing hearing
because it reflected Mr. Leavell had known the Petitioner for eight years and had
“counseled him in the Challenging Seasons of Life.” Although the second letter referred
to the Petitioner’s having volunteered to perform community service work at church, plea
counsel did not submit this letter because he thought it was “superfluous.” Plea counsel
did not recall anything regarding the Petitioner’s failure to report for drug screens or failing
drug screens being used against him at the sentencing hearing.
2. Petitioner’s Testimony
The Petitioner also testified at his post-conviction hearing. As to the issues arising
from his original plea, the Petitioner testified that he told plea counsel that he was
“struggling” with pleading guilty to attempted rape because he did not try to rape anyone.
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The Petitioner also said that plea counsel never discussed the elements that the State needed
to prove in order to convict the Petitioner of the charges at trial. The Petitioner did not
recall meeting with plea counsel on multiple occasions. The Petitioner said that the only
time he and plea counsel spoke “was on the phone right before court or out in the hallway
right before court, other than the two times when I met in his office with my wife.”
The Petitioner also denied that plea counsel explained the possible charge of
aggravated kidnapping to him. He agreed, though, that plea counsel informed him that the
aggravated kidnapping would be dismissed if he pled guilty to the other charges and that
probation could be considered.
According to the Petitioner, plea counsel advised the Petitioner that a trial would
not end in the Petitioner’s favor. Plea counsel said, “[I]f you do go to trial, you have two
victims in your case, it’s not going to go in your favor, this is the deal.”
The Petitioner testified that when his case was in the general sessions court, plea
counsel told him about the terms of the plea proposed by the State, including that he would
receive a six-year sentence and be permitted to argue for probation. According to the
Petitioner, plea counsel “initially told [him] that worst case, you’ll get six months split
confinement[.]” After several court dates, however, plea counsel began to say that “six
months split confinement would be a best-case scenario.”
The Petitioner confirmed that the trial court told him at the guilty plea hearing that
there was no guarantee the Petitioner would receive probation. The Petitioner also agreed
that he understood he was not guaranteed to receive probation.
The Petitioner also testified that plea counsel told him that “certain charges classify
as the . . . non-violent sex offender, and that this criminal attempt rape charge is a violent
sex offense.” After the Petitioner asked plea counsel to explain the difference, plea counsel
said, “[T]hey’re the same thing. The only thing is you have to wait 15 years to get off
instead of 10. . . . [I]t’s called for life, but you can petition to get off in 15 years[.]”
According to the Petitioner, plea counsel explained the difference between the types
of sex offender registries and said that the Petitioner could petition to be removed from the
violent sex offender registry and community supervision for life after fifteen years. As a
result, the Petitioner believed that supervision on the sex offender registry was the “same
thing” as community supervision for life.
However, the Petitioner testified that, after he was sent to the Penal Farm, he learned
that the sex offender registry and community supervision for life were “two separate
things” with their own agencies, fees, and rules. He also learned for the first time that he
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could not be removed from the violent sex offender registry. The Petitioner testified that
had he known this information before pleading guilty, he would not have chosen “to sign
up for the rest of my life[.]”
The Petitioner acknowledged that the trial court informed him at the guilty plea
hearing of the differences between community supervision for life and the sex offender
registry, that the Petitioner had to register as a violent sex offender, and that it never told
the Petitioner that supervision could be ended at any point. However, the Petitioner
testified that “[a]t that time, all I had was [plea counsel’s] voice in my head saying, it’s
called for life but you can petition to get off in 15 years, you know.”
Finally, the Petitioner acknowledged that he told the trial court that he did not have
any problems with plea counsel but explained that his dissatisfaction with plea counsel
developed “[w]hen I was incarcerated and I started doing some reading.” The Petitioner
also confirmed that plea counsel told him that it was the Petitioner’s decision whether to
plead guilty, and plea counsel did not force him to plead guilty.
As to the issues arising from the sentencing hearing, the Petitioner identified two
letters from his pastor, David Leavell. According to the Petitioner, plea counsel submitted
the letter “about pressure-washing [at the sentencing hearing], but not the one about getting
treatment.” When the Petitioner asked why he did not submit the second letter, plea
counsel responded that “it wouldn’t have mattered.”
The Petitioner also testified that the State argued at the sentencing hearing that the
Petitioner did not report for drug screening as he should have done. The Petitioner
explained that he was required to take a random screening once a month and that he was
supposed to call in every day. On two occasions, though, he was randomly selected to have
two drug screens in the same month. According to the Petitioner, he called “Pre-trial
Services” and asked if he needed to take the second test, and he was told, “[N]o, as long as
you’ve been once that month, you don’t have to go a second time.”
The Petitioner further testified that he “had all the receipts” showing that he
appeared for the drug screens, but that plea counsel told him “that wouldn’t have made a
difference.” According to the Petitioner, however, he believed that the trial court “weighed
heavily” its belief that it could not “trust [the Petitioner] to follow the rules of probation.”
3. Post-Conviction Court’s Denial of the Petition
Following the hearing, the post-conviction court denied the petition for post-
conviction relief. The post-conviction court found that the Petitioner “is not a truthful
person,” and the court specifically credited the testimony of plea counsel and resolved “all
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credibility issues against the petitioner.” The post-conviction court also noted that the
Petitioner “had not been truthful[ and] that he had not told the [trial court] the truth” at the
sentencing hearing.
The post-conviction court recognized that plea counsel “represented [the Petitioner],
not only well, but [that] he did an exceptional job . . . .” The court did not believe that the
Petitioner met with plea counsel “only a handful of times.” Instead, the court noted that
plea counsel convinced the State not to indict the Petitioner for aggravated kidnapping,
which permitted the Petitioner an opportunity to argue for probation with a lesser sentence.
Specifically with respect to issues of punishment, the post-conviction court
discredited the Petitioner’s statement that plea counsel promised “a six month split
confinement at wors[t].” Instead, the post-conviction court noted that the Petitioner had
been advised by the trial court that he would be required to register as a violent sex offender
and that he would be subject to lifetime supervision as a result of the plea. The court also
observed that the Petitioner was told by the trial court that “there were no guarantees” that
the Petitioner “would receive a sentence of probation or split confinement.” The court also
identified the reasons for the sentence of confinement as including that the offenses
involved multiple victims, that the Petitioner was then on probation, and that he had a
history of sexually assaulting women.
Finally, with respect to the Petitioner’s claim that his plea was unknowing and
involuntary, the post-conviction found that the Petitioner failed to prove his claim by clear
and convincing evidence. The court observed that, during the original plea hearing, the
Petitioner affirmed that he read the plea agreement and that plea counsel explained both
the nature of the charges and the ranges of punishment. The post-conviction court also
recognized that the Petitioner was advised by the trial court of the constitutional rights he
was waiving by entering into a plea, including the right to a trial by jury, the right to
confront witnesses, and the privilege against self-incrimination. The court found that the
Petitioner “repeatedly assured the trial court that he understood his rights and the
consequences of the plea.”
The post-conviction court also found that the Petitioner “repeatedly answered that
he understood his rights and the proceedings, acknowledged that he wanted to go forward,
and confirmed that his pleas were knowingly and voluntarily entered.” The post-conviction
court found that the Petitioner “admitted that he chose to enter a guilty plea” and that he
“indicated that he answered truthfully at the guilty plea submission hearing.” The
Petitioner told the trial court “that the decision to enter this guilty plea was made without
any threats, force, promises, or coercion.”
For those reasons, the post-conviction court denied the post-conviction petition,
finding that plea counsel was not deficient and that the Petitioner was not prejudiced by
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any alleged deficiency. After a written order was entered on November 9, 2021, the
Petitioner filed a timely notice of appeal on December 8, 2021. We affirm the judgment
of the post-conviction court.
ANALYSIS
The Tennessee Post-Conviction Procedure Act provides an avenue for relief “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.”
Tenn. Code Ann. § 40-30-103. A post-conviction petitioner has the burden of proving his
or her allegations of fact by clear and convincing evidence. Tenn. Code Ann. § 40-30-
110(f). For evidence to be clear and convincing, “it must eliminate any ‘serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.’”
Arroyo v. State, 434 S.W.3d 555, 559 (Tenn. 2014) (quoting State v. Sexton, 368 S.W.3d
371, 404 (Tenn. 2012)).
A. INEFFECTIVE ASSISTANCE OF COUNSEL
Our supreme court has recognized that “the first question for a reviewing court on
any issue is ‘what is the appropriate standard of review?’” State v. Enix, 653 S.W.3d 692,
698 (Tenn. 2022). As our supreme court has made clear,
Appellate review of an ineffective assistance of counsel claim is a mixed
question of law and fact that this Court reviews de novo. Witness credibility,
the weight and value of witness testimony, and the resolution of other factual
issues brought about by the evidence are entitled to a presumption of
correctness, which is overcome only when the preponderance of the evidence
is otherwise. On the other hand, we accord no presumption of correctness to
the post-conviction court’s conclusions of law, which are subject to purely
de novo review.
Phillips v. State, 647 S.W.3d 389, 400 (Tenn. 2022) (citations omitted).
Article I, section 9 of the Tennessee Constitution establishes that every criminal
defendant has “the right to be heard by himself and his counsel.” Similarly, the Sixth
Amendment to the United States Constitution, made applicable to the states by the
Fourteenth Amendment, guarantees that all criminal defendants “shall enjoy the right . . .
to have the [a]ssistance of [c]ounsel.” “These constitutional provisions guarantee not
simply the assistance of counsel, but rather the reasonably effective assistance of counsel.”
Nesbit v. State, 452 S.W.3d 779, 786 (Tenn. 2014). A petitioner’s claim that he or she has
been deprived “of effective assistance of counsel is a constitutional claim cognizable under
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the Post-Conviction Procedure Act.” Moore v. State, 485 S.W.3d 411, 418 (Tenn. 2016);
see Howard v. State, 604 S.W.3d 53, 57 (Tenn. 2020).
“To prevail on a claim of ineffective assistance of counsel, a petitioner must
establish both that counsel’s performance was deficient and that counsel’s deficiency
prejudiced the defense.” Moore, 485 S.W.3d at 418-19 (citing Strickland v. Washington,
466 U.S. 668, 687 (1984); Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)). A petitioner
may establish that counsel’s performance was deficient by showing that “‘counsel’s
representation fell below an objective standard of reasonableness.’” Garcia v. State, 425
S.W.3d 248, 256 (Tenn. 2013) (quoting Strickland, 466 U.S. at 688). As our supreme court
has also recognized, this Court must look to “‘all the circumstances’” to determine whether
counsel’s performance was reasonable and then objectively measure this performance
against “the professional norms prevailing at the time of the representation.” Kendrick v.
State, 454 S.W.3d 450, 458 (Tenn. 2015) (quoting Strickland, 466 U.S. at 688).
“If the advice given or services rendered by counsel are ‘within the range of
competence demanded of attorneys in criminal cases,’ counsel’s performance is not
deficient.” Phillips, 647 S.W.3d at 407 (quoting Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975)). Notably, because this inquiry is highly dependent on the facts of the
individual case, “[c]onduct that is unreasonable under the facts of one case may be perfectly
reasonable under the facts of another.” State v. Burns, 6 S.W.3d 453, 462 (Tenn. 1999).
In addition, a petitioner must establish that he or she has been prejudiced by
counsel’s deficient performance such that counsel’s performance “‘render[ed] the result of
the trial unreliable or the proceeding fundamentally unfair.’” Kendrick, 454 S.W.3d at 458
(quoting Lockhart v. Fretwell, 506 U.S. 364, 372 (1993)). In other words, the petitioner
“must establish ‘a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.’” Davidson v. State, 453 S.W.3d 386,
393-94 (Tenn. 2014) (quoting Strickland, 466 U.S. at 694). “‘A reasonable probability is
a probability sufficient to undermine confidence in the outcome.’” Howard, 604 S.W.3d
at 58 (quoting Strickland, 466 U.S. at 694). “In order to establish prejudice in the context
of a guilty plea, a petitioner must show by a reasonable probability that, but for counsel’s
errors, he or she would not have pled guilty and would have insisted upon going to trial.”
Taylor v. State, 443 S.W.3d 80, 84-85 (Tenn. 2014) (citing Hill v. Lockhart, 474 U.S. 52,
59 (1985)).
Because a post-conviction petitioner bears the burden of establishing both deficient
performance and resulting prejudice, “a court need not address both concepts if the
petitioner fails to demonstrate either one of them.” Garcia, 425 S.W.3d at 257. Indeed,
“[a] court need not first determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged deficiencies.
If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
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prejudice, that course should be followed.” Strickland, 466 U.S. at 697; see Phillips, 647
S.W.3d at 401 (“The petitioner must prove sufficient facts to support both the deficiency
and prejudice prongs of the Strickland inquiry—or, stated another way, the post-conviction
court need only determine the petitioner’s proof is insufficient to support one of the two
prongs to deny the claim.”).
Importantly, when considering a claim of ineffective assistance of counsel, this
Court begins with “the strong presumption that counsel provided adequate assistance and
used reasonable professional judgment to make all strategic and tactical significant
decisions,” Davidson, 453 S.W.3d at 393, and “[t]he petitioner bears the burden of
overcoming this presumption,” Kendrick, 454 S.W.3d at 458. This Court 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.” Berry v. State, 366 S.W.3d 160, 172 (Tenn. Crim. App. 2011)
(citation omitted). Of course, “the fact that a particular strategy or tactic failed or hurt the
defense, does not, standing alone, establish unreasonable representation.” Goad, 938
S.W.2d at 369. However, this Court will give deference to the tactical decisions of counsel
only if counsel’s choices were made after adequate preparation of the case. Moore, 485
S.W.3d at 419.
As we have noted, the Petitioner alleges that his plea counsel was ineffective by (1)
failing to explain the difference between community supervision for life, the sex offender
registry, and the violent sex offender registry, including that he could not be “removed
from community supervision”; (2) failing to explain the elements of the offenses that the
State was required to prove at trial to obtain a conviction such that, consequently, he was
unable to make an informed decision as to whether to plead guilty or proceed to trial; (3)
misrepresenting the maximum possible sentence of confinement that he would receive as
a result of his plea; (4) failing to introduce a character reference letter from his pastor at
his sentencing hearing; and (5) failing to clarify to the sentencing court that he had attended
all required drug screens. The State argues that the Petitioner has failed to show that he
received the ineffective assistance of counsel. For the reasons given below, we agree with
the State.
1. Plea Counsel’s Advice as to Lifetime Supervision
The Petitioner first argues that plea counsel rendered ineffective assistance by
failing to give accurate advice as to the sex offender registry and community supervision
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for life requirements of his guilty plea. He maintains that if he had known the details about
the registry and community supervision for life, he would not have pled guilty.
“The Tennessee sexual offender registration act requires persons convicted of a
sexual offense or violent sexual offense to provide to law enforcement officials certain
regularly updated information, including the offender’s residence, employment, electronic
mail or other internet identification, and other personal information.” Ward v. State, 315
S.W.3d 461, 468 (Tenn. 2010) (footnote omitted). Our supreme court has held that the
plain language of the statute “expresses a nonpunitive intent to protect the public” and that,
according to “the General Assembly, the registration requirement does not inflict additional
punishment . . . nor does it alter the range of punishment.” Id. at 470.
Importantly, the registration requirements are a collateral consequence of a guilty
plea. Id. at 472. As such, a trial court’s failure to advise regarding the sex offender
registration requirement does not render a guilty plea constitutionally invalid, although,
clearly, the better practice is for a trial court to advise a defendant “that a consequence of
pleading guilty to an offense requiring sex offender registration is that the defendant must
register as a sex offender[.]” Id. However, “an additional sentence of lifetime community
supervision is a direct and punitive consequence of which a defendant must be informed in
order to enter a knowing and voluntary guilty plea.” Id. at 475.
The Petitioner specifically argues that, if his post-conviction testimony were taken
as true, then it would establish that he misunderstood the requirements of the sex offender
registry and community supervision for life. He states that he thought he could be removed
from the sex offender registry after ten years and the violent sex offender registry after
fifteen years. He further states that he did not know community supervision for life was a
separate requirement because he thought it was “the same thing” as the sex offender
registry until after he was “incarcerated at the [P]enal [F]arm.” However, the post-
conviction court explicitly discredited the testimony of the Petitioner and accredited the
testimony of plea counsel. Plea counsel testified that he advised the Petitioner of the
requirements of the sex offender registry and community supervision for life.
Additionally, the post-conviction court observed that the trial court ensured that the
Petitioner was aware of the requirements of the sex offender registry and community
supervision for life prior to the entry of the guilty plea. We are bound by the post-
conviction court’s determinations of credibility unless the preponderance of the evidence
is to the contrary. We may neither “re-weigh or re-evaluate the evidence,” nor “substitute
[our] own inferences for those drawn by the post-conviction court.” Whitehead v. State,
402 S.W.3d 615, 621 (Tenn. 2013). Upon our review of the record, the evidence does not
preponderate against the credibility findings made by the post-conviction court.
Accordingly, the Petitioner has failed to establish either that plea counsel was deficient or
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that he was prejudiced by any alleged deficiency. The Petitioner has failed to prove
ineffective assistance of counsel in this regard.
2. Plea Counsel’s Advice as to Offense Elements
The Petitioner next argues that his plea counsel was ineffective by failing to advise
him of what the State must prove at trial to obtain a conviction. According to the Petitioner,
he “struggle[ed]” with pleading guilty to the offense of attempted rape because he “didn’t
try to rape anybody.” The Petitioner argues that, without information about what the State
would be required to prove at a trial, he did not understand what options were available to
him.
The post-conviction court discredited the Petitioner’s testimony that plea counsel
did not explain the elements of the offenses to him, finding that plea counsel adequately
explained the elements of the offenses and the proof the State had against the Petitioner.
The post-conviction court observed that the Petitioner’s main concern was the possibility
of probation and the avoidance of a sentence of incarceration and that had the Petitioner
proceeded to trial, he would have faced an additional charge of aggravated kidnapping, a
conviction of which would have foreclosed any opportunity for probation. Plea counsel
testified that the Petitioner understood the charges he was facing and his options. The
evidence does not preponderate against the post-conviction court’s findings that plea
counsel was not deficient and that the Petitioner was not prejudiced by any alleged
deficiency. The Petitioner is not entitled to relief in this regard.
3. Plea Counsel’s Advice as to the Sentence
The Petitioner next argues that plea counsel was ineffective by advising him that, in
a “wors[t] case scenario,” he would have to serve a maximum of six months in confinement
as a result of his guilty pleas. He argues that if his post-conviction testimony were taken
as true, then the difference between a six-year sentence and a six-month, split confinement
sentence would itself show he would not have pled guilty had he “been aware of what he
was realistically looking at in his case with sentencing[.]”
However, three issues exist with the Petitioner’s argument. First, the Petitioner
himself acknowledged at the post-conviction hearing that he knew he was accepting a
sentence of six years and that, while he would be able to petition the trial court for
probation, an alternative sentence was not guaranteed. Second, plea counsel’s credited
testimony showed that he did not guarantee that the Petitioner would be granted probation,
especially given the Petitioner’s credibility issues. Finally, the transcript from the plea
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hearing shows that the trial court specifically warned the Petitioner prior to the plea that
probation was not guaranteed.
The evidence does not preponderate against the post-conviction court’s findings that
plea counsel did not perform deficiently and that the Petitioner was not prejudiced by plea
counsel’s performance. The record also supports the post-conviction court’s determination
that the Petitioner failed to prove that counsel was ineffective in his advice about the
sentence. The Petitioner is not entitled to relief in this regard.
4. Character Reference Letter
The Petitioner also contends that plea counsel was ineffective at his sentencing
hearing by failing to introduce a character reference letter written by his pastor. We
acknowledge that the letter is in the record; however, the Petitioner’s brief contains no
argument on this issue. He does not argue, for example, how he believes that the letter was
relevant to sentencing, nor does he identify how the outcome of his sentencing hearing
would have been different had this letter been introduced as an exhibit. Under these
circumstances, we conclude that this issue is waived. See Tenn. Ct. Crim. App. R. 10(b)
(“Issues unsupported by argument . . . or appropriate references to the record will be treated
as waived in this court.”).
5. Petitioner’s Reporting for Pretrial Supervision
Finally, the Petitioner argues that plea counsel was ineffective by failing to clarify
for the trial court that he had reported for all required drug screens. The Petitioner argues
that the trial court found that while under the supervision of Pretrial Services, the Petitioner
failed to report several times and that this finding influenced the trial court’s decision to
deny alternative sentencing.
However, the post-conviction court found that the Petitioner was “not a truthful
person” either at the post-conviction hearing or at the sentencing hearing. Specifically, the
post-conviction court observed that the Petitioner told conflicting stories to the trial court
and to the person conducting the psychosexual evaluation regarding how many women he
had previously molested.
The post-conviction court also noted that the Petitioner had violated his pretrial
release by testing positive for alcohol. Plea counsel had cautioned the Petitioner that his
truthfulness with the trial court was a crucial factor in the court’s deciding whether to grant
the Petitioner probation. The post-conviction court found that even if the Petitioner had
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offered this “clarifying information,” it would not have caused the trial court to look more
favorably on the Petitioner.
To bolster his argument, the Petitioner argues on appeal that he had “receipts”
showing that he reported for all drug screens. However, the Petitioner did not offer these
receipts as an exhibit for the post-conviction court’s consideration. This Court has
specifically cautioned that
[i]f a petitioner argues that trial counsel rendered ineffective assistance of
counsel by failing to argue a legal issue or present certain evidence, either
testimony or exhibits, a repeat of such failure at the post-conviction hearing
will most likely result in the failure to succeed on a claim of ineffective
assistance of counsel.
Grimes v. State, No. W2018-01665-CCA-R3-PC, 2020 WL 249228, at *13 (Tenn. Crim.
App. Jan. 16, 2020), perm. app. denied (Tenn. Aug. 5, 2020); see Pilate v. State, No.
W2017-02060-CCA-R3-PC, 2018 WL 3868484, at *5 (Tenn. Crim. App. Aug. 14, 2018)
(“Failure to present the documents at the post-conviction hearing makes it nearly
impossible for Petitioner to show that trial counsel’s deficient performance in failing to
obtain or introduce the document at trial prejudiced the defense.”). The post-conviction
court found that the Petitioner failed to prove that plea counsel performed deficiently and
that he failed to prove prejudice from any alleged deficiency. The evidence does not
preponderate against the post-conviction court’s findings. The post-conviction court did
not err in denying the Petitioner’s ineffective assistance of counsel claim based upon plea
counsel’s failure to clarify to the trial court that the Petitioner reported for drug screens.
B. KNOWING AND VOLUNTARY GUILTY PLEA
The Petitioner next argues that he did not plead guilty knowingly and voluntarily.
Our supreme court has recognized that “[t]he validity of a guilty plea is a mixed question
of law and fact.” Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010). As such, our review
of whether the Petitioner entered valid guilty pleas in this case is also de novo, applying a
presumption of correctness only to the post-conviction court’s findings of fact. Holland v.
State, 610 S.W.3d 450, 455 (Tenn. 2020).
When a defendant enters a guilty plea, he or she “waives several constitutional
rights, including the privilege against self-incrimination, the right to a trial by jury, and the
right to confront his accusers.” State v. Mellon, 118 S.W.3d 340, 345 (Tenn. 2003). As
such, the Due Process Clause of the Fourteenth Amendment requires that “a guilty plea
must be entered knowingly, voluntarily, and intelligently.” Ward, 315 S.W.3d at 465; see
Frazier v. State, 495 S.W.3d 246, 253 (Tenn. 2016). Where a defendant’s guilty plea “‘is
not equally voluntary and knowing, it has been obtained in violation of due process’ and
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must be set aside.” State v. Nagele, 353 S.W.3d 112, 118 (Tenn. 2011) (quoting
Blankenship v. State, 858 S.W.2d 897, 905 (Tenn. 1993)). Thus, a post-conviction
petitioner’s claim “which asserts that a plea was not voluntarily and knowingly entered,
implicates his due process rights and therefore falls squarely within the ambit of issues
appropriately addressed in a post-conviction petition.” State v. Wilson, 31 S.W.3d 189,
194 (Tenn. 2000).
To determine whether a guilty plea was knowingly, voluntarily, and intelligently
entered, a court must look to “‘whether the plea represents a voluntary and intelligent
choice among the alternative courses of action open to the defendant.’” Jaco v. State, 120
S.W.3d 828, 831 (Tenn. 2003) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)).
A defendant cannot make this voluntary and intelligent choice if the decision “results from,
among other things, ignorance or misunderstanding.” Nagele, 353 S.W.3d at 118. Thus,
before a trial court may accept a guilty plea, it must canvass “‘the matter with the accused
to make sure he has a full understanding of what the plea connotes and of its consequence.’”
Garcia, 425 S.W.3d at 262 (quoting Brady v. United States, 397 U.S. 742, 755 (1970)).
Ultimately, the issue of “whether an accused’s plea of guilty was voluntarily,
understandingly, and knowingly entered is to be determined based upon the totality of the
circumstances.” State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995); see Rigger
v. State, 341 S.W.3d 299, 308-09 (Tenn. Crim. App. 2010). Our supreme court has
recognized several factors that may inform this analysis, including the following:
(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 trial 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).
The Petitioner argues that because of the ineffective assistance of counsel, he did
not understand the differences between the sex offender registry and community
supervision for life; that he did not know what elements the State would have needed to
prove to sustain convictions of the charged offenses at trial; and that he thought he would
have to serve six months in confinement at most if he pled guilty. The Petitioner maintains
that, absent the ineffective assistance of counsel, he would not have pled guilty.
“[D]uring the plea bargain process, as at all critical stages of the criminal process,
counsel has the responsibility to render effective assistance as required by the Sixth
Amendment.” Nesbit, 452 S.W.3d 787. Thus, plea counsel’s “effectiveness may implicate
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the requirement that a plea must be entered knowingly and voluntarily, i.e., that the
petitioner made the choice to plead guilty after being made aware of the significant
consequences of such a plea.” Johnson v. State, No. W2015-02498-CCA-R3-PC, 2017
WL 192710, at *4 (Tenn. Crim. App. Jan. 17, 2017).
Earlier in this opinion, we held that the Petitioner failed to establish that he received
the ineffective assistance of counsel. Accordingly, we conclude that the record does not
preponderate against the post-conviction court’s findings that the Petitioner’s guilty pleas
were not rendered unknowing or involuntary due to any alleged ineffective assistance by
counsel. Payne v. State, No. E2021-01017-CCA-R3-PC, 2022 WL 3683793, at *8 (Tenn.
Crim. App. Aug. 25, 2022).
The Petitioner does not allege that any other factor impeded the knowing and
voluntary nature of his guilty plea. The post-conviction court found that during the guilty
plea, the trial court thoroughly questioned the Petitioner to ensure he understood his rights
and that he was waiving those rights by pleading guilty. The post-conviction court also
found that the trial court and plea counsel advised the Petitioner of his options and that the
Petitioner assured the trial court that he had not been forced or coerced and had chosen to
plead guilty. This court has noted that “[a] petitioner’s solemn declaration in open court
that his plea is knowing and voluntary creates a formidable barrier in any subsequent
collateral proceeding because these declarations ‘carry a strong presumption of verity.’”
Wilbanks v. State, No. E2014-00229-CCA-R3-PC, 2015 WL 354773, at *10 (Tenn. Crim.
App. Jan. 28, 2015) (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)). Based upon
the foregoing, the post-conviction court found that the Petitioner’s guilty pleas were
knowingly and voluntarily entered. The record does not preponderate against this finding.
CONCLUSION
In summary, the Petitioner has failed to show that the post-conviction court erred in
determining that he did not receive the ineffective assistance of counsel or that his guilty
pleas were knowingly and voluntarily entered. Accordingly, we affirm the denial of post-
conviction relief.
____________________________________
TOM GREENHOLTZ, JUDGE
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