         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 December 12, 2000 Session

                     ROSS GUNTER v. STATE OF TENNESSEE

               Appeal as of Right from the Criminal Court for McMinn County
                             No. 98-556   Carroll L. Ross, Judge



                                 No. E2000-00747-CCA-R3-CD
                                        April 10, 2001

The petitioner, Ross Gunter, pled guilty in the McMinn County Criminal Court to second degree
murder and was ordered to serve one hundred percent (100%) of his fifteen year sentence in
confinement. The petitioner filed a petition for post-conviction relief alleging fault in the plea
agreement, and the post-conviction court denied relief. On appeal, the petitioner raises the following
issues for our review: (1) whether the post-conviction court erred in not granting the petition for
post-conviction relief based on the State’s breach of the plea agreement, and (2) whether the post-
conviction court erred in not granting the petition for post-conviction relief because the petitioner
did not knowingly and voluntarily enter a guilty plea. Upon review of the record and the parties’
briefs, we affirm the judgment of the post-conviction court.

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

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
JAMES CURWOOD WITT, JR., J., joined.

J. Allen Murphy, Jr. (post-conviction), and William C. Donaldson (trial), Athens, Tennessee, for the
appellant, Ross Gunter.

Paul G. Summers, Attorney General and Reporter, Peter M. Coughlan, Assistant Attorney General,
Jerry N. Estes, District Attorney General, Dan Cole and William Reedy, Assistant District Attorneys
General, for the appellee, State of Tennessee.

                                             OPINION

                                      I. Factual Background
                 On December 1, 1997, in the McMinn County Criminal Court, the petitioner, Ross
Gunter, entered a best interest guilty plea to second degree murder.1 The transcript of the guilty plea
hearing reflects that the petitioner pled guilty to second degree murder and received a sentence of
fifteen years incarceration in the Tennessee Department of Correction, which would be served one
hundred percent (100%) in confinement. At the guilty plea hearing, defense counsel requested that
the trial court recommend that the petitioner serve his sentence in a mental health facility instead of
a penal institution. The trial court agreed to make such a recommendation but advised the petitioner
that he could not guarantee that the petitioner would be placed in a mental health facility because the
determination regarding the petitioner’s placement rested with the Tennessee Department of
Correction. After the guilty plea hearing, a judgment of conviction was entered. The original
judgment correctly reflected the recommendation of defense counsel, the State, and the trial court
that the petitioner serve his sentence in a mental health facility. Subsequently, however, the trial
court entered an order noting that the original judgment erroneously reflected that the petitioner
would serve thirty percent (30%) of his sentence in incarceration before becoming eligible for parole.
The order required the appellant to serve one hundred percent (100%) of his sentence in
confinement.

                 The petitioner filed a petition for post-conviction relief alleging that, on the day of
the guilty plea hearing, the State breached the plea agreement by changing the plea agreement to
require him to serve one hundred percent (100%) of his sentence in confinement instead of thirty
percent (30%). The petitioner also contended that the State did not fulfill the plea agreement. As
proof, the petitioner testified at the post-conviction hearing that he has been serving his sentence in
a penal institution and not in a mental health facility. Additionally, the petitioner argued that he did
not knowingly and voluntarily enter his guilty plea because, due to his diminished capacity, he did
not understand the terms of the plea agreement as altered by the State on the day of his guilty plea
hearing.

                 The post-conviction court denied the petitioner’s petition for post-conviction relief,
finding that the petitioner knowingly and voluntarily entered into a plea agreement which provided
that the petitioner would serve one hundred percent (100%) of his sentence in confinement and that
the trial court would recommend that the petitioner be placed in a mental health facility. On appeal,
the petitioner raises the following issues for our review: (1) whether the post-conviction court erred
in not granting post-conviction relief based on the State’s breach of the plea agreement, and (2)
whether the post-conviction court erred in not granting post-conviction relief because the petitioner
did not knowingly and voluntarily enter a guilty plea.

                                                    II. Analysis



         1
            See North Carolina v. Alford, 400 U.S. 25, 37-38, 95 S. Ct. 160, 167-168 (1970). A best interest guilty plea
may be entered by a petitioner who w ishes to plead guilty while maintain ing his innocen ce. See Dortch v . State, 705
S.W.2d 687, 689 (Tenn. Crim. App. 1985). The trial court may accept the best interest guilty plea as long as the trial
court is satisfied tha t there is a factual b asis for the plea . Id.

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                The petitioner bears the burden of proving all of the factual allegations in his post-
conviction claim by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997). On
appeal, this court may not re-weigh or reevaluate the evidence or substitute our inferences for those
drawn by the post-conviction court. Owens v. State, 13 S.W.3d 742, 749 (Tenn. Crim. App. 1999),
perm. to appeal denied, (Tenn.), cert. denied, __ U.S. __, 121 S. Ct. 116 (2000). In other words, the
post-conviction court resolves all questions pertaining to the credibility of witnesses and the weight
and value to be accorded to their testimony. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App.
1990).

                                           A. Plea Agreement
                In arguing that the State breached the petitioner’s guilty plea agreement, the petitioner
contends that
               [t]he plea agreement not only set forth that the [petitioner] would only
               serve 30% of his 15 year sentence, but that he would also serve those
               years in a hospital suited for someone with his mental capacity.
The petitioner argues, based on State v. Howington, 907 S.W.2d 403 (Tenn. 1995), that a plea
bargain must be considered under the law of contracts. Accordingly, the petitioner alleges that the
State has breached the plea agreement because the petitioner is required to serve one hundred percent
(100%) of his sentence in confinement instead of thirty percent (30%) and because he has been
assigned to a penal institution instead of a mental health facility. We disagree with the petitioner’s
contention.

                It is of some note that, in his brief, the petitioner consistently makes reference to the
“plea form that [the petitioner] signed.” The petitioner alleges that this “signed agreement” contains
the provisions for the petitioner’s parole eligibility upon service of thirty percent (30%) of his
sentence and the trial court’s recommendation to the Tennessee Department of Correction that the
petitioner be assigned to a mental health facility. However, upon close inspection, we can find no
such signed document in the record. Accordingly, as this document appears to be the basis of the
petitioner’s argument, and as the petitioner bears the burden of providing a complete record for our
review of his issues, the petitioner has arguably waived this issue on appeal. State v. Draper, 800
S.W.2d 489, 492-493 (Tenn. Crim. App. 1990). Nonetheless, we choose to examine the petitioner’s
issue on the basis of the record before us.

                The judgment of conviction is the only document in the record on appeal that notes
the thirty percent (30%) release eligibility and the recommendation that the petitioner serve his
sentence in a mental health facility. However, contrary to the petitioner’s argument, this court has
stated, “[a]lthough plea agreements between prosecutors and the criminally accused that are accepted
by the trial court are treated as contracts, a judgment of conviction is not a contract, and principles
of contract law do not apply.” Brown v. State, 928 S.W.2d 453, 456 (Tenn. Crim. App. 1996)
(citations omitted). Moreover, when there is a discrepancy between the transcript of a proceeding
and the judgment, the disposition contained in the transcript controls. See State v. Davis, 706
S.W.2d 96, 97 (Tenn. Crim. App. 1985).



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                 It is clear from the transcript of the guilty plea hearing that the erroneous judgment,
reflecting that the petitioner was to serve thirty percent (30%) of his sentence in confinement before
becoming eligible for parole, was drafted after the guilty plea hearing. During the hearing, the trial
court repeatedly explained to the petitioner that the State would allow the petitioner to plead guilty
to second degree murder and the petitioner would be required to serve one hundred percent (100%)
of his fifteen year sentence in confinement. Each time the trial court asked the petitioner if he
understood the terms of the plea, the petitioner affirmatively responded that he did. After
considering the factual basis underlying the plea, the trial court approved the petitioner’s best interest
guilty plea.

                Additionally, the transcript reflects a request by the petitioner’s counsel that the trial
court recommend that the petitioner serve his sentence in a mental health facility instead of in a penal
institution. The trial court agreed to make such a recommendation. The petitioner contends that the
State breached this provision of the plea agreement because he has been serving his sentence in a
penal institution and not a mental health facility. However, the trial court clearly advised the
petitioner that
                I [will] recommend and I will sign the judgment which the General
                is preparing that you be placed in a facility for people with
                diminished mental capacity, and we’ll all sign on that and try to get
                you in the best place for you, but again, we cannot guarantee that.
The trial court recognized that, once the petitioner was assigned to the Tennessee Department of
Correction, the Department would make the decision regarding the petitioner’s placement. See
Tenn. Code Ann. § 40-35-212(d) (1997); but see Tenn. Code Ann. § 33-5-305(a)(1)(B) (Supp.
1999). Defense counsel, the State, and the trial court recommended that the petitioner be placed in
a mental health facility, but the recommendation was not followed by the Tennessee Department of
Correction. Accordingly, we find that the State did not breach any part of the petitioner’s plea
agreement, and this issue is without merit. We note however that our ruling on this issue does not
preclude the petitioner from pursuing any available administrative remedies to attempt to secure his
transfer to a mental health facility within the Tennessee Department of Correction.

                                    B. Knowing and Voluntary Plea
                The petitioner further contends that he did not knowingly and voluntarily plead guilty.
Specifically, the petitioner alleges that
                [t]he [petitioner] was only aware of what he signed, [the agreement
                that he serve thirty percent (30%) of his sentence,] not that the second
                degree murder charge[] that he plead guilty to was punishable by 15
                years in prison, of which 100% was to be served.
Once again, we note that the record contains no proof of a prior plea agreement between the State
and the petitioner.

                In assessing the nature of the petitioner’s best interest guilty plea, we note that the
petitioner does not claim that the trial court failed to ascertain the petitioner’s awareness of his
constitutional rights or the consequences of his guilty plea. See Boykin v. Alabama, 395 U.S. 238,


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242-243, 89 S. Ct. 1709, 1712 (1969); State v. Mackey, 553 S.W.2d 337, 341 (Tenn. 1977); Tenn.
R. Crim. P. 11(c). Furthermore, the record reflects that the trial court did substantially comply with
the dictates of Mackey in advising the petitioner. See State v. Newsome, 778 S.W.2d 34, 37-38
(Tenn. 1989).

                Moreover, the record is abundantly clear that the petitioner was repeatedly informed
of the length of his sentence and the amount of the sentence that he was required to serve in
confinement. The trial court questioned the petitioner on several occasions regarding his desire to
plead guilty to second degree murder and to accept a sentence of fifteen years, one hundred percent
(100%) of which he would serve in confinement. Each time, the petitioner assured the court that he
understood the agreement and wanted to plead guilty. See Lesley Buford v. State, No. 03C01-9603-
CR-00096, 1997 WL 184769, at *2 (Tenn. Crim. App. at Knoxville, April 17, 1997); Eric LaVaughn
Anderson v. State, No. 03C01-9508-CR-00224, 1996 WL 397456, at *5 (Tenn. Crim. App. at
Knoxville, July 15, 1996). As this court has stated,
                [t]he petitioner agreed to the sentence on the record. It can be
                conclusively determined from the record that the petitioner
                acknowledged his acceptance of [his] sentence.
Buford , No. 03C01-9603-CR-00096, 1997 WL 184769, at *2.

                Furthermore, the petitioner’s trial counsel testified that he advised the petitioner that
he would be required to serve one hundred percent (100%) of his fifteen year sentence in
confinement. See Anderson , No. 03C01-9508-CR-00224, 1996 WL 397456, at *5. Petitioner’s trial
counsel also testified at the post-conviction hearing that
                I think that’s probably just a mistake [on the judgment reflecting 30%
                release eligibility], because there is a space for violent [offenders to
                serve] 100%, and second degree murder falls under that 100% rule.
See Jeffery Robinson v. State, No. 89-293-III, 1990 WL 44055, at *1 (Tenn. Crim. App. Nashville,
April 18, 1990); see also Tenn. Code Ann. § 40-35-501(i)(1) and (2)(B) (1997). Thus, we find that
the petitioner knowingly and voluntarily entered his guilty plea.

                The petitioner also appears to argue that he was not competent to enter into a guilty
plea. However, the petitioner concedes that he was evaluated and found competent to stand trial.
See Freda Gail McMahan v. State, No. 03C01-9212-CR-00422, 1993 WL 455290, at *2 (Tenn.
Crim. App. at Knoxville, November 5, 1993). Furthermore, there was no proof presented at the post-
conviction hearing regarding the petitioner’s incompetency. Moreover, the post-conviction court
found that the petitioner intelligently responded to all questions posed at the guilty plea hearing. See
Moten v. State, 935 S.W.2d 416, 422 (Tenn. Crim. App. 1996). Accordingly, we can not disagree
with the post-conviction court that the petitioner was competent to enter his knowing and voluntary
guilty plea.

                                        III. Conclusion
                Based upon the foregoing, we affirm the judgment of the post-conviction court.



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      ___________________________________
      NORMA McGEE OGLE, JUDGE




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