              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                AT JACKSON
                                  Assigned on Briefs April 12, 2016

                         TIFFANY AMOS v. STATE OF TENNESSEE

                          Appeal from the Circuit Court for Madison County
                            No. C-15-187    Roy B. Morgan, Jr., Judge


                      No. W2015-01727-CCA-R3-PC - Filed April 28, 2016



The petitioner, Tiffany Amos, appeals the post-conviction court’s denial of relief from
her theft and criminal impersonation convictions, arguing that she received ineffective
assistance of counsel and that her guilty pleas were unknowingly and involuntarily
entered. After review, we affirm the denial of the petition.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which THOMAS T. WOODALL,
P.J., and ROBERT H. MONTGOMERY, JR., J., joined.

William J. Milam, Jackson, Tennessee, for the appellant, Tiffany Amos.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; James G. (Jerry) Woodall, District Attorney General; and Alfred L.
Earls, Assistant District Attorney General, for the appellee, State of Tennessee.

                                                 OPINION

                                                   FACTS

       The petitioner pled guilty in the Madison County Circuit Court to theft of property
and criminal impersonation and received an effective sentence of four years.1 Thereafter,
she filed a timely pro se petition for post-conviction relief, arguing that her guilty plea
was involuntary and that counsel was ineffective in advising her to plead guilty although


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              A transcript of the guilty plea hearing and judgment sheets were not included in the record on
appeal.
he knew someone else had confessed to the crimes. The post-conviction court appointed
counsel and conducted an evidentiary hearing on the matter.

        At the evidentiary hearing, the petitioner testified that she met with counsel twice
before the entry of her guilty plea. She said that she has always maintained her
innocence, even at the plea hearing. She claimed that she did not receive discovery until
after she had pled guilty. The petitioner stated that counsel mentioned that he had a letter
from another person confessing to the crimes but that he thought it would be in her best
interest to plead guilty because her criminal record was extensive. She said that she pled
guilty to crimes she did not commit because she was scared due to her having an
extensive record.

       The petitioner admitted that she previously made her living by shoplifting,
although she claimed to have stopped a few months before the theft in this case. The
petitioner acknowledged that the author of the letter confessing to the crimes was her
romantic partner, with whom she arrived to the department store in the same vehicle on
the day of the theft. However, she claimed that they did not enter the store together and
were not working together. The petitioner also acknowledged that, when she was
arrested, she had someone else’s identification on her, she refused to tell the police her
true identity, and she refused to identify her co-defendant for the police.

        The petitioner claimed that she did not understand that she had the right to go to
trial because she “thought that right was out the door when my attorney was telling me it
was in my best interest to take the plea because of my criminal history.” However, she
admitted that the trial court told her at the plea colloquy that she could go to trial if she
preferred and that she decided to plead guilty based on counsel’s advice. Nevertheless,
the petitioner claimed that she did not knowingly plead guilty because she did not know
that she could have possibly had a different outcome despite her criminal history.

         Counsel testified that he obtained and reviewed discovery from the State pursuant
to an open file policy, and he discussed the discovery with the petitioner. In the
discovery documents was a letter from the petitioner’s co-defendant, Ms. Pinkerton,
essentially stating that Ms. Pinkerton was guilty of the crimes and not the petitioner. He
told the petitioner that Ms. Pinkerton’s letter was something that could be brought out at a
trial, if the petitioner chose to go to trial, but that the letter would not ensure an acquittal.
Counsel discussed with the petitioner that the State had testimony from the store clerk
and security camera footage that showed the petitioner picking up items and giving them
to Ms. Pinkerton. Counsel also discussed the petitioner’s lengthy criminal history with
her and how the State could use that history to impeach her.



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       Counsel testified that the ultimate decision to plead guilty was the petitioner’s, and
he did not force her to take a plea. The petitioner was advised of all of her constitutional
rights prior to making the decision, and counsel thoroughly reviewed the plea with her.
At the plea hearing, the trial court confirmed with the petitioner that counsel had gone
over the plea with her and that she understood her rights. Counsel stated that the plea
agreement he negotiated with the State provided for the petitioner to be sentenced as a
Range III offender instead of a career offender. He further negotiated the sentence down
from six years to four years.

       On cross-examination, counsel recalled that, on the morning of the guilty plea, the
petitioner “indicated . . . concern that she felt that only Ms. Pinkerton should be convicted
of the offense.”

        After the hearing, the post-conviction court made oral findings, followed by a
written order, denying the petition. The post-conviction court found that the petitioner
was not credible compared to counsel. The court also found that the petitioner had “vast
experience” and knowledge about the criminal justice system. The court recalled that the
petitioner “very specifically” stated under oath that she was aware of what she was doing
in pleading guilty. Accordingly, the court determined that the petitioner’s decision to
accept a negotiated plea agreement was “freely, voluntarily, knowingly, [and]
intelligently” made and that the petitioner did not receive ineffective assistance of
counsel.

                                       ANALYSIS

       On appeal, the petitioner argues that she received ineffective assistance of counsel
and that her guilty pleas were unknowingly and involuntarily entered.

       The post-conviction petitioner bears the burden of proving his allegations by clear
and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). When an evidentiary
hearing is held in the post-conviction setting, the findings of fact made by the court are
conclusive on appeal unless the evidence preponderates against them. See Tidwell v.
State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely
factual issues, the appellate court should not reweigh or reevaluate the evidence. See
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, review of a trial court’s
application of the law to the facts of the case is de novo, with no presumption of
correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective
assistance of counsel, which presents mixed questions of fact and law, is reviewed de
novo, with a presumption of correctness given only to the post-conviction court’s
findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6
S.W.3d 453, 461 (Tenn. 1999).
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        To establish a claim of ineffective assistance of counsel, the petitioner has the
burden to show both that trial counsel’s performance was deficient and that counsel’s
deficient performance prejudiced the outcome of the proceeding. Strickland v.
Washington, 466 U.S. 668, 687 (1984). The deficient performance prong of the test is
satisfied by showing that “counsel’s acts or omissions were so serious as to fall below an
objective standard of reasonableness under prevailing professional norms.” Goad v.
State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland, 466 U.S. at 688; Baxter v.
Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong of the test is satisfied by
showing a reasonable probability, i.e., a “probability sufficient to undermine confidence
in the outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. In the context of a guilty plea,
the petitioner must show a reasonable probability that were it not for the deficiencies in
counsel’s representation, he or she would not have pled guilty but would instead have
insisted on proceeding to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985); House v. State,
44 S.W.3d 508, 516 (Tenn. 2001).

        Before a guilty plea may be accepted, there must be an affirmative showing in the
trial court that it was voluntarily and knowingly entered. Boykin v. Alabama, 395 U.S.
238, 242 (1969); State v. Mackey, 553 S.W.2d 337, 340 (Tenn. 1977). This requires a
showing that the defendant was made aware of the significant consequences of the plea.
State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999) (citing Mackey, 553 S.W.2d at 340).
A plea is not “voluntary” if it results from ignorance, misunderstanding, coercion,
inducements, or threats. Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The
trial court must determine if the guilty plea is “knowing” by questioning the defendant to
make sure he or she fully understands the plea and its consequences. Pettus, 986 S.W.2d
at 542; Blankenship, 858 S.W.2d at 904.

        Because the plea must represent a voluntary and intelligent choice among the
alternatives available to the defendant, the trial court may look at a number of
circumstantial factors in making this determination. Blankenship, 858 S.W.2d at 904.
These factors include: (1) the defendant’s relative intelligence; (2) the defendant’s
familiarity with criminal proceedings; (3) whether the defendant was represented by
competent counsel and had the opportunity to confer with counsel about alternatives; (4)
the advice of counsel and the court about the charges against the defendant 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. Id. at 904-05.

      The petitioner asserts that she received ineffective assistance of counsel because
counsel insisted that it was in her best interest to plead guilty despite that she maintained
she was innocent and counsel was aware that another person had admitted to committing
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the crimes. As a corollary to the issue, the petitioner also asserts that her guilty plea was
unknowingly and involuntarily entered because she was scared and nervous due to her
lengthy criminal record, and she “thought that her right to trial went away after [counsel]
told her that it was in her best interests to plea [sic] because of her criminal history.” She
claimed that she was not aware that she “could have possibly had a different outcome
despite having a bad criminal history.”

       We initially note that our review is somewhat hindered because a transcript of the
guilty plea hearing and judgment sheets were not included in the record on appeal.
However, from the record available, we are able to determine that the petitioner has not
established a claim for post-conviction relief.

        At the evidentiary hearing, counsel testified that he discussed with the petitioner
the State’s evidence against her and explained to her that the defense could use Ms.
Pinkerton’s letter at trial but that the letter would not ensure an acquittal. Counsel also
discussed the petitioner’s lengthy criminal history with her and how the State could use
that history at trial to impeach her. Counsel stated that the petitioner was advised of all of
her rights prior to making the decision and that the ultimate decision to plead guilty was
the petitioner’s. The petitioner claimed that she did not understand that she had the right
to go to trial because she “thought that right was out the door when my attorney was
telling me it was in my best interest to take the plea because of my criminal history.”
However, she admitted that the trial court told her at the plea colloquy that she could go
to trial if she preferred and that she decided to plead guilty based on counsel’s advice.
The post-conviction court found counsel’s testimony to be more credible than the
petitioner’s.

        The petitioner’s criminal record consists of twenty-six prior convictions, many of
which involved crimes of dishonesty that could have been used to impeach her testimony
at trial. There was also evidence in the form of testimony from the store clerk and
security camera footage that the petitioner passed items to her co-defendant in the store
where the theft occurred. There was further evidence that the petitioner lied to the police
about her identity and refused to help the police identify the person who actually took the
items out of the store. Counsel was not ineffective simply because he warned the
petitioner that Ms. Pinkerton’s letter claiming responsibility might not necessarily equate
to an acquittal.

       The evidence shows that the petitioner was very familiar with                 criminal
proceedings, was represented and advised by competent counsel, and avoided          a greater
penalty that could have resulted from a jury trial. We conclude that the proof      indicates
that the petitioner’s plea was knowingly and intelligently entered with the         effective
assistance of counsel.
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                                  CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the denial of the
petition.


                                             ________________________________
                                             ALAN E. GLENN, JUDGE




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