         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT JACKSON          FILED
                       JULY 1997 SESSION         July 16, 1997

                                              Cecil Crowson, Jr.
                                              Appellate C ourt Clerk
CLAUDE LEE TODD,               )
                               )     NO. 02C01-9609-CR-00295
      Appellant,               )
                               )     SHELBY COUNTY
VS.                            )
                               )     Hon. Carolyn Wade Blackett,
STATE OF TENNESSEE,            )     Judge
                               )
      Appellee.                )     (Post-Conviction)



FOR THE APPELLANT:                   FOR THE APPELLEE:

ARCH B. BOYD, III              JOHN KNOX WALKUP
217 Exchange Avenue                 Attorney General and Reporter
Memphis, TN 38105
                                     CLINTON J. MORGAN
                                     Assistant Attorney General
                                     450 James Robertson Parkway
                                     Nashville, TN 37243-0493

                                     WILLIAM L. GIBBONS
                                     District Attorney General

                                     JAMES J. CHALLEN, III
                                     Assistant District Attorney General
                                     Criminal Justice Complex, Suite 301
                                     201 Poplar Avenue
                                     Memphis, TN 38103



OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                       OPINION



        The petitioner, Claude Lee Todd, appeals an order of the Criminal Court of

Shelby County denying his petition for post-conviction relief. On appeal, petitioner

challenges the validity of guilty pleas entered in 1973 alleging he was not advised

(1) of his right against self-incrimination, and (2) that the guilty pleas could be used

to enhance punishment on subsequent convictions. We affirm the judgment of the

trial court.



                                   CASE HISTORY



        In 1968, petitioner pled guilty to grand larceny and third degree burglary. He

pled guilty to numerous other offenses in 1973. In 1980, petitioner was convicted

by a jury of armed robbery and habitual criminality.

        Subsequently, he filed a petition for post-conviction relief within the statutory

period challenging the validity of the guilty pleas entered in 1968 and 1973, relying

upon Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The

trial court denied the petition without a hearing, finding that Boykin was not

retrospective in application and could not be used to invalidate the 1968 guilty

pleas. The trial court further denied relief as to the 1973 guilty pleas on the basis

of laches.

        Petitioner then appealed the dismissal of his petition. This Court agreed that

Boykin is prospective in application only and did not constitute grounds for relief as

to the 1968 pleas. Claude Todd v. State, C.C.A. No. 02C01-9204-CR-00083 (Tenn.

Crim. App. filed November 18, 1992, at Jackson). However, this Court found that

the record did not conclusively show that petitioner was not entitled to relief on the

1973 guilty pleas. Id. The Court remanded for an evidentiary hearing on the 1973

pleas. Id.

        Evidentiary hearings were held. The trial court, pursuant to Blankenship v.

State, 858 S.W.2d 897 (Tenn. 1993), and State v. Neal, 810 S.W.2d 131 (Tenn.



                                            2
1991), found that the 1973 guilty plea proceedings substantially complied with

requirements set forth in Boykin. Therefore, the trial court found that the alleged

omission of warnings concerning petitioner’s right against self-incrimination was

harmless error, at best. From this ruling, petitioner brings this appeal.



                            STANDARD FOR REVIEW



       The trial judge's findings of fact on post-conviction hearings are conclusive

on appeal unless the evidence preponderates otherwise. Butler v. State, 789

S.W.2d 898, 899-900 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 354 (Tenn.

Crim. App. 1994). The trial court’s findings of fact are afforded the weight of a jury

verdict, and this Court is bound by the trial court’s findings unless the evidence in

the record preponderates against those findings. Dixon v. State, 934 S.W.2d 69,

72 (Tenn. Crim. App. 1996).       This Court may not reweigh or reevaluate the

evidence, nor substitute its inferences for those drawn by the trial judge. Massey

v. State, 929 S.W.2d 399, 403 (Tenn. Crim. App. 1996); Black v. State, 794 S.W.2d

752, 755 (Tenn. Crim. App. 1990).          Questions concerning the credibility of

witnesses and the weight and value to be given to their testimony are resolved by

the trial court, not this court. Black v. State, 794 S.W.2d at 755. The burden of

establishing that the evidence preponderates otherwise is on petitioner. Id.



                          ENHANCEMENT POTENTIAL



       Petitioner claims that his 1973 guilty pleas are invalid because the trial judge

did not inform him that the pleas could later be used against him to enhance

punishment on subsequent convictions. The alleged failure of the trial court, upon

accepting petitioner's pleas of guilty to felonies which became predicate offenses

for the habitual criminal conviction, to advise the petitioner that these convictions

might be used to enhance punishment imposed in any future proceedings is not a

constitutional issue and cannot be considered in a post-conviction proceeding.



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Coker v. State, 911 S.W.2d 357, 363 (Tenn. Crim. App. 1995); Housler v. State, 749

S.W.2d 758, 760 (Tenn. Crim. App. 1988); State v. Evans, 669 S.W.2d 708, 713

(Tenn. Crim. App. 1984). This issue is without merit.



                     RIGHT AGAINST SELF-INCRIMINATION



       Petitioner insists that the 1973 guilty pleas are void pursuant to Boykin v.

Alabama because the trial judge did not inform him of his right against self-

incrimination when the pleas were entered. In Boykin, the United States Supreme

Court held it to be reversible error for a trial judge to accept a plea of guilty without

first determining on the record if the defendant has voluntarily and understandingly

waived his constitutional rights. 395 U.S. at 244, 89 S.Ct. at 1712-13. The federal

constitutional rights that are implicated when a guilty plea is entered in a state

criminal trial are the privilege against compulsory self-incrimination, the right to trial

by jury, and the right to confront one’s accusers. 395 U.S. at 243, 89 S.Ct. at 1712.

       However, “Boykin does not require separate enumeration of each right

waived and separate waivers as to each [right].” Fontaine v. United States, 526

F.2d 514, 516 (6th Cir. 1975), cert. denied, 424 U.S. 973, 96 S.Ct. 1476, 47 L.Ed.2d

743 (1976); Blankenship v. State, 858 S.W.2d at 904. What is required by Boykin

is that “no guilty plea be accepted without an affirmative showing that it was

intelligent and voluntary.” Id. In order to determine if a guilty plea is voluntary and

intelligent, the court must look to several factors, including:

       the relative intelligence of the defendant; the degree of his familiarity
       with criminal proceedings; whether he was represented by competent
       counsel and had the opportunity to confer with counsel about the
       options available to him; the extent of advice from counsel and the
       court concerning the charges against him; and the reasons for his
       decision to plead guilty, including a desire to avoid a greater penalty
       that might result from a jury trial.

Blankenship v. State, 858 S.W.2d at 904 (citing Caudill v. Jago, 747 F.2d 1046,

1052 (6th Cir. 1984)).      More specifically, the record must show “substantial

compliance” with the Boykin mandate. Id. at 905; State v. Neal, 810 S.W.2d at 134.

       In the order dismissing the petition for post-conviction relief, the trial court



                                            4
found that the guilty plea was in substantial compliance with Boykin. The court

concluded that even without a specific warning of the right against compulsory self-

incrimination, the guilty pleas were otherwise voluntarily and intelligently entered.

The trial court further found that any omission of an explicit warning concerning the

right against self-incrimination was, at most, harmless. In so concluding, the trial

court found:

       [p]etitioner’s testimony and pro se brief reflect intelligence and
       understanding. He has made no claims, and the record in no way
       indicates, that he was incompetent or mentally impaired at the time in
       question. Petitioner was experienced and familiar with the criminal
       justice system. He was represented by experienced counsel and had
       adequate opportunity to discuss his options. The record indicates
       extensive advice by court and counsel: (1) Petitioner had three public
       defenders over the life of the proceedings; (2) the acknowledgments
       of rights in the signed petition of waiver of jury trial and acceptance of
       guilty plea; (3) Mr. Gwinn’s statements about his general policy, as
       well as those of Judge Faquin’s;[1] and (4) the assertions in Judge
       Faquin’s order that Petitioner had been fully advised and understood
       what he willingly waived. Petitioner’s decision to accept sentencing
       recommendations on eight felonies, among them concurrent three (3)
       year sentences on multiple charges of assault with intent to murder,
       rather than going to trial, certainly represents a voluntary and
       intelligent choice of action.

Each of these findings is adequately supported by the record.

        Although it is impossible to ascertain with certainty whether or not the trial

judge or petitioner’s attorney informed petitioner in 1973 of his right against

compulsory self-incrimination,2 we conclude that the trial court did not err in finding

that the 1973 guilty pleas were otherwise intelligent, voluntary, and in substantial

compliance with Boykin. This issue is without merit.



                                      CONCLUSION



       Petitioner’s claim that his 1973 guilty pleas are invalid because of the trial



       1
          Walker Gwinn was petitioner’s attorney at the time the guilty pleas were taken in
Judge Arthur Faquin’s court in 1973. Gwinn testified that it was his usual policy to advise
his clients of their right against self-incrimination whenever there was a possibility of going
to trial. He also testified that at the time the guilty pleas were entered, Judge Faquin was
adhering to the standards set forth in Boykin.
       2
         Apparently, no transcript of the guilty plea proceeding was available due to the lapse
of time between the guilty pleas and the filing of the post-conviction petition.

                                              5
judge’s failure to advise him of the enhancement potential for subsequent

convictions is not a proper issue in a post-conviction proceeding. Furthermore, the

trial court’s finding that the 1973 guilty pleas were intelligent, voluntary, and in

substantial compliance with Boykin is clearly supported by the record. Accordingly,

the judgment of the trial court is affirmed.




                                                JOE G. RILEY, JUDGE




CONCUR:




JOE B. JONES, PRESIDING JUDGE




DAVID H. WELLES, JUDGE




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