Winford Paul Wilhoite v. State of Tennessee ( 2021 )

07/13/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs December 9, 2020
WINFORD PAUL WILHOITE v. STATE OF TENNESSEE
Appeal from the Criminal Court for Maury County
No. 25743 Stella L. Hargrove, Judge
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No. M2019-02198-CCA-R3-PC
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In 2017, the Petitioner, Winford Paul Wilhoite, pleaded guilty as charged in case number
25743 to possession with intent to sell 0.5 grams or more of methamphetamine, simple
possession of Lortab, possession of drug paraphernalia, criminal impersonation, and
driving on a revoked license (second offense).1 See Tenn. Code Ann. §§ 39-17-434, 39-
17-418, 39-17-425, 39-16-301, 55-50-504. Following a sentencing hearing, the trial court
imposed an effective sentence of ten years. Thereafter, the Petitioner filed a petition for
post-conviction relief, alleging, in part, that he received ineffective assistance of counsel.
Counsel for the Petitioner was appointed, and an amended petition was filed. The post-
conviction court denied relief, and the Petitioner appeals. After review, we affirm the post-
conviction court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., joined. ALAN E. GLENN, J., not participating.
John M. Schweri, Columbia, Tennessee, for the Petitioner, Winford Paul Wilhoite.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Brent A. Cooper, District Attorney General; and Adam Davis, Assistant
District Attorney General, for the Appellee, State of Tennessee.
OPINION
1
The same day, the Petitioner also pleaded guilty as charged in case number 26127 to simple
possession of methamphetamine and violation of the seatbelt law. See Tenn. Code Ann. §§ 39-17-434(b),
55-9-603. The trial court ordered the sentences for these misdemeanor convictions served concurrently to
the sentences in case number 25743. This appeal concerns only the convictions in case number 25743.
In May 2017, the Petitioner was indicted by the Maury County Grand Jury in Count
1 for possession with intent to sell 0.5 grams or more of methamphetamine, in Count 2 for
simple possession of Lortab, in Count 3 for possession of drug paraphernalia, in Count 4
for criminal impersonation, and in Count 5 for driving on a revoked license (second
offense).
At the plea submission hearing, the Petitioner indicated his desire to enter “open”
guilty pleas to all five counts as a Range I offender, with the trial court to determine his
sentences following a sentencing hearing. The court informed the Petitioner of the rights
he was waiving by entering his guilty pleas, including his right to a trial by jury, wherein
he could confront and cross-examine the State’s witnesses and call witnesses on his behalf,
and the Petitioner acknowledged the rights he was waiving by pleading guilty. The
Petitioner also stated at this hearing that he was fully satisfied with trial counsel’s
representation of him. The trial court informed the Petitioner that the State had agreed that
he would be sentenced as a Range I offender, despite his prior felony convictions, which
meant that he faced a sentence of eight to twelve years for the count charging him with
possession with intent to sell methamphetamine. At the request of the court, trial counsel
provided the following factual basis for the Petitioner’s guilty plea to Count 1, his only
charged felony:
Your Honor, on March 11th of 2017, [the Petitioner’s] vehicle was
stopped outside his residence by Officer Landon Barber for a traffic offense.
Upon discussions with [the Petitioner] and . . . a search of his person and
vehicle, there was discovered a felony amount of meth[amphetamine], over
point five grams . . . .
The officers had some difficulty in pulling up [the Petitioner’s]
driving record because he did not give them a full and complete name at the
time, which would go to criminal impersonation.
The methamphetamine at the time was packaged in two separate bags
and that would be the basis for the resale charge.
The Petitioner acknowledged that this factual basis was correct. After explaining to the
Petitioner that the felony conviction for possession with intent to sell methamphetamine
could be used to increase punishment for offenses in the future, the trial court determined
that the Petitioner had entered his guilty pleas “freely, voluntarily, knowingly, and
intelligently, upon advice of counsel” before accepting the pleas.
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At the January 19, 2018 sentencing hearing, the trial court specifically referenced
the presentence investigation report, which showed that the Petitioner admitted to the
arresting officer that “he sells meth[amphetamine] to help out with providing for his
family” and that he “buys [the methamphetamine] online and gets it shipped in from
Colorado.” The presentence investigation report also showed that the Petitioner’s criminal
history included felony convictions for aggravated assault and burglary, and two felony
convictions for theft. At the conclusion of this hearing, the trial court sentenced the
Petitioner as a Range I, standard offender to concurrent sentences of ten years for Count 1,
eleven months and twenty-nine days for Counts 2, 3, and 5, and six months for Count 4,
for an effective sentence of ten years in prison at thirty percent release eligibility.
On January 18, 2019, the Petitioner timely filed a pro se petition for post-conviction
relief, asserting a multitude of claims including ineffective assistance of counsel.
Thereafter, the Petitioner was appointed counsel, who filed an amended petition
incorporating the first petition and alleging, in part, that trial counsel provided ineffective
assistance by encouraging the Petitioner plead guilty without conducting an appropriate
investigation.
At the post-conviction hearing, trial counsel, an assistant public defender, testified
that she was appointed to represent the Petitioner in general sessions court. She stated that
just prior to the preliminary hearing, the Petitioner told her he did not want the public
defender’s office to represent him because “he was trying to create a conflict so that he
could get a private attorney.” Trial counsel explained that after she was able to get the
Petitioner’s probation violation, which stemmed from these charges, dismissed in circuit
court, the Petitioner asked her to continue representing him.
Trial counsel asserted that she and the Petitioner discussed the weight of the drugs
that were found in his possession at the time of his arrest, stating:
I remember having a conversation with [the Petitioner] in the
courtroom. I think he may have thought there was something about the
weight, . . . not all of it being methamphetamine. They thought it was all
methamphetamine; some was MDMA. I thought at the time that . . . since
he was charged for [possession of methamphetamine] with resale, that
pursuing the MDMA would have been an exercise in futility because it is a
Schedule I [drug] and not probatable, but I do recall having a conversation
[about] that and [the Petitioner] having concerns about that.
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Trial counsel stated that while she did not have the drugs in this case independently tested,
the lab report from the Tennessee Bureau of Investigation (TBI), which she received
during discovery, included weights for each of the drugs. She said that she routinely
copies all discovery for her clients and that “to the best of [her] knowledge, [the Petitioner]
received a copy [of this lab report] and saw the results[,]” which included a separate
weight for the methamphetamine.
Trial counsel said that she and the Petitioner also discussed his potential sentence
and that the Petitioner knew he could be classified as a Range II offender if he proceeded
to trial. However, she said that during plea negotiations, the State agreed to allow the
Petitioner to enter “open” guilty pleas to the charges as a Range I offender and then be
sentenced by the trial court.
Trial counsel stated that she argued for a ten-year sentence at the sentencing hearing
because that sentence enabled the Petitioner to be eligible for probation. She added:
I think someone with [the Petitioner’s] record, . . . in my opinion and in my
strategy and trying to get him probation, anything less than a full sentence,
that acknowledging the fact that there is a dead horse in the room, you can’t
get around that, acknowledging the fact that he had a record but he helped
the police and he did this and this. If he got some jail time but not [the] full
ten years, to me, that would have been a victory. And I thought it was a little
futile to argue eight years, but that’s . . . my opinion as an attorney.
In addition, trial counsel said the Petitioner’s sentencing hearing transcript showed that she
argued for “a sentence of Community Correction[s] with one year to serve, split
confinement.”
Trial counsel said that she reviewed the video recording of the traffic stop and
determined that the officer had reasonable suspicion to stop the Petitioner. She also
reviewed the TBI Official Forensic Chemistry Report, which was admitted as an exhibit
and provided that the 3,4-Methylenedioxymethamphetamine (MDMA) weighed 0.44
gram, that the methamphetamine weighed 0.63 gram, and that one of the two tablets
recovered from the Petitioner was hydrocodone. She said there was never an issue about
weight of the MDMA being added to the methamphetamine to make the weight of the
methamphetamine more than 0.5 grams. Trial counsel noted that “[the Petitioner] made
some . . . statements to I think Officer Barber that he was selling [methamphetamine]
because he wouldn’t make ends meet and had children to support.” She explained that the
weight of the methamphetamine, along with the Petitioner’s admission to police, was more
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than enough for the State to prove that the Petitioner was guilty of possession with intent
to sell 0.5 grams or more of methamphetamine.
Trial counsel stated that before the Petitioner entered his guilty pleas, she explained
to the Petitioner and his wife that if the Petitioner proceeded to trial, he could receive a
sentence of twelve to twenty years, but if the Petitioner entered guilty pleas as a Range I
offender pursuant to the State’s offer, he would face a sentence of eight to twelve years
and that “[a]nything that was ten years or less was eligible for probation.” She also
informed them that she would argue for some mitigating factors at the sentencing hearing
and that if the Petitioner decided to reject the offer and proceed to trial, he could testify or
choose not to testify. During this discussion, the Petitioner and his wife agreed that “it
would be better to [plead guilty and] set the sentencing hearing off until January.”
The Petitioner also testified at the post-conviction hearing. He said he informed
trial counsel that he wanted a new attorney after she told him that he could not win at trial
and presented him with the State’s offer of ten years. The Petitioner said he only agreed
to allow trial counsel to continue representing him when he was unable to hire a private
attorney and believed he had no other option. He said trial counsel appeared at his home
one week prior to his trial and informed him that she could not “beat” his charges but that
if he entered guilty pleas, he could stay out of jail until after Christmas, and the Petitioner
agreed to plead guilty. The Petitioner acknowledged that trial counsel reviewed the plea
process with him, that she explained the rights he was waiving by entering his guilty pleas,
and that she discussed the fact that he might not receive probation at the sentencing
hearing. He further acknowledged that trial counsel told him he could face Range II
sentencing, which would require him to serve twelve to twenty years, if he proceeded to
trial rather than entering “open” guilty pleas as a Range I offender.
The Petitioner asserted that the weight for the methamphetamine was “wrong”
because “the weight was added together and weighed within the bags on the scene.” He
said he observed the police weighing all the drugs inside the bags on the hood of their
patrol car. At the conclusion of the Petitioner’s testimony, the trial court stated, “[F]or the
past 42 years, it is this Judge’s understanding that TBI always separates the product from
the bag when they weigh it[,]” and then asked, “Do you have any evidence to the
contrary?[,]” and the Petitioner replied, “No, ma’am.”
On June 28, 2019, the post-conviction court entered an order denying relief. In it,
the court made the following findings of fact and conclusions of law:
The Court finds that [trial counsel] fully investigated this case and
shared all discovery with Petitioner prior to him entering his plea. The record
reflects that Petitioner was satisfied with her continuing representation, from
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the time he waived a preliminary hearing to open plea and sentencing. The
Court finds that [trial counsel] advocated for a probatable sentence and/or
split confinement in the face of Petitioner’s felony criminal history.
The Court finds that Petitioner fails to establish a reasonable
probability that, but for the alleged errors of his counsel, he would not have
entered the plea and would have insisted on going to trial. . . .
The Court finds that Petitioner fails to establish a reasonable
probability that, but for counsel’s errors that he alleges, the result of the
proceedings would have been different. Indeed, the outcome could have
been worse, upon a range notice by the State and a conviction by a jury of
the indicted felony charge.
The Court finds that its colloquy with Petitioner substantially
complies with the litany of constitutional rights mandated by Boykin[], and
Johnson v. State, 834 S.W.2d 922 (Tenn. 1922).
The Court finds that Petitioner received effective assistance of
counsel. Petitioner had excellent representation by an experienced and very
thorough and conscientious attorney. [Trial counsel] protected and
safeguarded Petitioner’s rights at every stage.
The Petition has no merit.
The Court finds that Petitioner fails to carry his burden of proof that
he is entitled to Post-Conviction Relief.
On December 17, 2019, this court granted the Petitioner permission to file an untimely
notice of appeal, and considered the Petitioner’s notice of appeal as timely filed on the
same date.
ANALYSIS
The Petitioner argues that trial counsel provided ineffective assistance. Specifically,
he asserts that trial counsel “fail[ed] to properly investigate beyond the facts as presented
to her by law enforcement,” “fail[ed] to prepare any type of defense,” and failed to present
him with “the option to testify and/or call witnesses on his behalf.” He claims that but for
trial counsel’s errors, he would not have entered his guilty pleas and would have proceeded
to trial, where he insists he would have been convicted only of simple possession of
methamphetamine. The State counters that the post-conviction court properly denied
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relief. We conclude that the Petitioner has failed to establish that trial counsel provided
ineffective assistance.
Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction or sentence is void or voidable because of an abridgement of a constitutional
right. Tenn. Code Ann. § 40-30-103. A post-conviction petitioner has the burden of
proving the factual allegations by clear and convincing evidence. Id. § 40-30-110(f); see
Tenn. Sup. Ct. R. 28, § 8(D)(1); Nesbit v. State, 452 S.W.3d 779, 786 (Tenn. 2014).
Evidence is considered clear and convincing when there is no serious or substantial doubt
about the accuracy of the conclusions drawn from it. Lane v. State, 316 S.W.3d 555, 562
(Tenn. 2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009); Hicks v. State, 983
S.W.2d 240, 245 (Tenn. Crim. App. 1998).
A claim for post-conviction relief based on alleged ineffective assistance of counsel
presents a mixed question of law and fact. Mobley v. State, 397 S.W.3d 70, 80 (Tenn.
2013) (citing Calvert v. State, 342 S.W.3d 477, 485 (Tenn. 2011)). This court reviews “a
post-conviction court’s conclusions of law, decisions involving mixed questions of law and
fact, and its application of law to its factual findings de novo without a presumption of
correctness.” Whitehead v. State, 402 S.W.3d 615, 621 (Tenn. 2013) (citing Felts v. State,
354 S.W.3d 266, 276 (Tenn. 2011); Calvert, 342 S.W.3d at 485). However, a post-
conviction court’s findings of fact are conclusive on appeal unless the evidence in the
record preponderates against them. Calvert, 342 S.W.3d at 485 (citing Grindstaff, 297
S.W.3d at 216; State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999)). “Accordingly, appellate
courts are not free to re-weigh or re-evaluate the evidence, nor are they free to substitute
their own inferences for those drawn by the post-conviction court.” Whitehead, 402
S.W.3d at 621 (citing State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn. 2001)). “As a general
matter, appellate courts must defer to a post-conviction court’s findings with regard to
witness credibility, the weight and value of witness testimony, and the resolution of factual
issues presented by the evidence.” Id. (citing Momon v. State, 18 S.W.3d 152, 156 (Tenn.
1999)).
The right to effective assistance of counsel is protected by the United States
Constitution and the Tennessee Constitution. U.S. Const. amend. VI; Tenn. Const. art. I, §
9. 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. Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Strickland v.
Washington, 466 U.S. 668, 687 (1984). A petitioner successfully demonstrates deficient
performance when the petitioner establishes that his attorney’s conduct fell “below an
objective standard of reasonableness under prevailing professional norms.” Goad, 938
S.W.2d at 369 (citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936
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(Tenn. 1975)). To establish prejudice in the context of a guilty plea, a petitioner must show
that, but for counsel’s errors, the petitioner would not have entered his guilty plea and
would have proceeded to trial. Serrano v. State, 133 S.W.3d 599, 605 (Tenn. 2004) (citing
Hill v. Lockhart, 474 U.S. 52, 59 (1985)). “Because a petitioner must establish both prongs
of the test, a failure to prove either deficiency or prejudice provides a sufficient basis to
deny relief on the ineffective assistance claim.” Goad, 938 S.W.2d at 370.
In assessing an attorney’s performance, we “must be highly deferential and should
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Burns, 6 S.W.3d at 462 (citing Strickland, 466 U.S.
at 689). In addition, we must avoid the “distorting effects of hindsight” and must “judge
the reasonableness of counsel’s challenged conduct on the facts of the particular case,
viewed as of the time of counsel’s conduct.” Strickland, 466 U.S. 689-90. “No 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.” Id. at 688-89. However, “‘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).
Here, the Petitioner claims, in part, that although trial counsel reviewed the
lawfulness of his stop, she failed to conduct “any real investigation” beyond the facts as
presented to her by police and failed to prepare any type of defense. He asserts that had
counsel properly prepared a defense, there is a reasonable probability that he would have
been convicted of the lesser included offense of simple possession of methamphetamine,
particularly in light of the “very small amount of controlled substances, the lack of scales
or large amounts of money, and the failure of the police (and defense counsel) to
investigate.” The Petitioner maintains that because of trial counsel’s ineffectiveness, he
entered “open” guilty pleas to all of his charges, even though he could have gone to trial,
where the State would have been required to meet its burden of proof and he would have
had the opportunity to present a defense. He states that “[t]he only small concession trial
counsel procured for [him] in this case was that he would not face a potential multiple
offender (range two) sentence if convicted as charged.”
As support for his ineffective assistance of counsel claim, the Petitioner argues that
the State’s factual basis for Count 1 showed an “overly simplistic approach to the felony
case.” He notes that the prosecutor stated that “a felony amount” of methamphetamine,
more than 0.5 grams, had been recovered from the Petitioner before asserting that “[t]he
methamphetamine at the time was packaged in two separate bags and that would be the
basis for the resale charge.” The Petitioner recognizes, pursuant to Tennessee Code
Annotated section 39-17-419, that “[i]t may be inferred from the amount of a controlled
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substance or substances possessed by an offender, along with other relevant facts
surrounding the arrest, that the controlled substance or substances were possessed with the
purpose of selling or otherwise dispensing.” However, he asserts that this statutory
presumption “does not mean that over .5 gram of methamphetamine is ‘a felony amount’”
and that the charged offense was “possession with the intent to sell, not merely possessing
over 0.5 gram.” Moreover, the Petitioner, while acknowledging that he “allegedly” made
statements admitting that he sold methamphetamine, asserts that the State never
corroborated his alleged statements to police and contends that the “may be inferred”
language in Code section 39-17-419 “is a far cry” from proof beyond a reasonable doubt
that he possessed the methamphetamine with the intent to sell it.
At the post-conviction hearing, trial counsel testified that aside from evidence
regarding the weight of the methamphetamine, there was also evidence that the Petitioner
admitted to police that he sold methamphetamine. The trial court, at the Petitioner’s
sentencing hearing, also noted that the Petitioner had admitted to the arresting officer that
“he sells meth[amphetamine] to help out with providing for his family” and that he “buys
[the methamphetamine] online and gets it shipped in from Colorado.” The record clearly
shows that the Petitioner had more than .5 grams of methamphetamine, that his
methamphetamine was packaged in two different bags, and that he admitted to police that
he regularly sold methamphetamine. Despite the overwhelming evidence of the
Petitioner’s guilt, trial counsel obtained a favorable offer allowing the Petitioner to enter
guilty pleas to the charged offenses as a Range I offender, rather than a Range II offender,
which substantially reduced the sentence he faced and allowed for the possibility of a
probationary sentence. The record also shows that the Petitioner, after being advised by
trial counsel and considering the evidence against him, wisely chose to enter guilty pleas
pursuant to this offer rather than proceed to trial, where he most likely would have been
found guilty and given a greater sentence as a Range II offender. Accordingly, the
Petitioner has failed to prove that trial counsel’s performance was deficient. Moreover, we
agree with the State that the Petitioner has failed to explain what investigation he believes
trial counsel should have conducted or what such an investigation would have revealed and
has failed to identify any legitimate defenses trial counsel could have raised in his case.
Consequently, the Petitioner has also failed to prove that trial counsel’s performance was
prejudicial. Because the Petitioner has failed to establish that that trial counsel provided
ineffective assistance regarding these claims, he is not entitled to relief.
Lastly, as to the Petitioner’s claim that trial counsel failed to present him with “the
option to testify and/or call witnesses on his behalf,” we note that although the Petitioner
generally alleged ineffective assistance of counsel, he failed to specifically raise any claim
in his post-conviction petition or amended petition about counsel’s failure to advise him of
his right to testify or call witnesses. Moreover, the record shows that the Petitioner failed
to raise this claim at the post-conviction hearing, and, consequently, the post-conviction
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court never addressed it in its order denying relief. Accordingly, we conclude that this
issue is waived. See Walsh v. State, 166 S.W.3d 641, 645 (Tenn. 2005) (“Issues not
addressed in the post-conviction court will generally not be addressed on appeal.”);
Cauthern v. State, 145 S.W.3d 571, 599 (Tenn. Crim. App. 2004) (“[A]n issue raised for
the first time on appeal is waived.”).
Waiver notwithstanding, the Petitioner admitted at the post-conviction hearing that
trial counsel explained the guilty plea process to him and reviewed the rights he was
waiving by entering his guilty pleas. Trial counsel testified that she told the Petitioner if
he decided to reject the State’s offer, he could proceed to trial, where he could decide
whether to testify or not testify. At the plea submission hearing, the trial court informed
the Petitioner of the rights he was waiving by entering his guilty pleas, including his right
to a trial by jury, wherein he could confront and cross-examine the State’s witnesses and
call witnesses on his behalf, and the Petitioner acknowledged the rights he was waiving by
pleading guilty to the charged offenses. Because the Petitioner has also failed to establish
that trial counsel was ineffective with regard to this claim, he is not entitled to relief.
CONCLUSION
The judgment of the post-conviction court is affirmed.
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CAMILLE R. MCMULLEN, JUDGE
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