           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE              FILED
                           NOVEMBER 1998 SESSION
                                                          March 11, 1999

                                                      Cecil W. Crowson
JERRY E. BIGGS,                *                     Appellate Court Clerk
                                    C.C.A. # 01C01-9711-CR-00514

      Appellant,               *    DAVIDSON COUNTY

VS.                            *    Hon. Cheryl Blackburn, Judge

STATE OF TENNESSEE,            *    (Post-Conviction)

      Appellee.                *




For Appellant:                      For Appellee:

Jeffery S. Frensley                 John Knox Walkup
211 Third Avenue North              Attorney General and Reporter
P.O. Box 198288
Nashville, TN 37219-8288            Daryl J. Brand
                                    Senior Counsel
                                    Criminal Justice Division
                                    425 Fifth Avenue North
                                    Nashville, TN 37243

                                    Roger Moore
                                    Assistant District Attorney General
                                    Washington Square, Suite 500
                                    222 Second Avenue North
                                    Nashville, TN 37201




OPINION FILED:__________________________




AFFIRMED




GARY R. WADE, PRESIDING JUDGE
                                        OPINION

              The petitioner, Jerry E. Biggs, appeals from the trial court's denial of

his application for post-conviction relief. In this appeal of right, the single issue

presented for review is whether the trial court erred by concluding that the guilty plea

of the petitioner was knowingly and voluntarily made.



              We affirm the judgment of the trial court.



              On January 12, 1996, the petitioner entered a guilty plea to theft of

more than $1,000 but less than $10,000, a Class D felony. As a part of the plea

agreement, the state voluntarily dismissed other burglary and theft charges. The

petitioner received a Range II, five-year sentence, to be served in the Department of

Correction. At the time, the petitioner was on parole for a prior sentence for

aggravated robbery and faced detainers in Williamson County, Tennessee, Florida,

and Alabama.



              In this petition for post-conviction relief, the petitioner contends that his

counsel was ineffective for advising him that, because the parole violation hearing

had not yet been held, his sentence could be concurrent if the judgment form was

silent in that regard. The petitioner claims that he would not have entered into the

plea agreement had he understood that the sentences would not be concurrent.



              At the conclusion of the evidentiary hearing, the trial court accredited

the testimony of the petitioner's trial counsel, a veteran public defender, who stated

that his file records would have reflected any request on the part of the petitioner for

a concurrent sentence. The trial judge ruled that there was a "clear discussion in

the guilty plea transcript of the sentence and how [] by operation of law it would be


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consecutive to any unfinished sentences of the petitioner." The trial court concluded

that the plea was knowingly and voluntarily made and more specifically ruled that

"the petitioner was not credible on any issue regarding [his attorney's]

representation."



              In this appeal, the petitioner argues that the sentencing court failed to

address the consecutive sentencing issue during the submission proceeding and

had a duty to do so. The state argues to the contrary.



              When a petitioner seeks post-conviction relief on the basis of

ineffective assistance of counsel, he must first establish that the services rendered

or the advice given was below "the range of competence demanded of attorneys in

criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Second, he

must show that the deficiencies "actually had an adverse effect on the defense."

Strickland v. Washington, 466 U.S. 668, 693 (1984). Should the petitioner fail to

establish either factor, no relief is warranted. As to guilty pleas, the petitioner must

establish a reasonable probability that, but for the errors of his counsel, he would

not have entered the plea and would have insisted on going to trial. Hill v. Lockhart,

474 U.S. 52, 59 (1985). In Henderson v. State, 419 S.W.2d 176, 178 (Tenn. 1967),

our supreme court ruled that a plea agreement which included concurrent

sentencing for an offense committed while the defendant was on parole for a prior

crime, rendered the plea void. When the accused enters a plea wherein all parties

agree to a lesser sentence than is permissible by law, "the accused should be

allowed to withdraw his plea." Id.; see State v. Burkhart, 566 S.W.2d 871 (Tenn.

1978); Terry L. Charlton v. State, No. 01C01-9701-CC-00002 (Tenn. Crim. App., at

Nashville, Aug. 20, 1998). In each of these cases, the petitioner and the other

parties clearly agreed to concurrent sentencing.


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              Under our statutory law, the petitioner bears the burden of proving his

allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). On

appeal, the findings of fact made by the trial court are conclusive and will not be

disturbed unless the evidence contained in the record preponderates against them.

Brooks v. State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on

the petitioner to show that the evidence preponderates against those findings.

Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).



              The overriding determination on the validity of a guilty plea rests upon

whether it was knowingly and voluntarily entered. State v. Neal, 810 S.W.2d 131,

139-40 (Tenn. 1991), overruled in part by Blankenship v. State, 858 S.W.2d 897

(Tenn. 1993). If the proof establishes that the petitioner was aware of his

constitutional rights, he is entitled to no relief. Johnson v. State, 834 S.W.2d 922,

926 (Tenn. 1992). "[A] plea is not 'voluntary' if it is the product of '[i]gnorance, [or]

incomprehension ....'" Blankenship, 858 S.W.2d at 904 (quoting Boykin v. Alabama,

395 U.S. 238, 242-43 (1969)).



              While it could have been more clearly stated, the transcript of the guilty

plea hearing suggests that "by operation of law" the sentence would be consecutive.

The state and the petitioner agreed that the sentencing court would leave the

judgment form silent on the issue of consecutive sentence, apparently to

accommodate his request to receive a Department of Correction sentence rather

than a sentence with the Corrections Corporation of America. Obviously, the

petitioner demonstrated knowledge on the subject: "I'm a hundred percent sure

TDOC will accept me." From this and other portions of the record, we are

persuaded that the petitioner knew and understood the terms of the plea agreement.

That is, that he was willing to accept the risks of the silent record. Thus, the


                                             4
petitioner has not demonstrated his claim by clear and convincing evidence.



             In summary, the evidence does not preponderate against the findings

made by the trial court at the conclusion of the evidentiary hearing. Accordingly, the

judgment is affirmed.



                                         ________________________________
                                         Gary R. Wade, Presiding Judge

CONCUR:



_____________________________
John H. Peay, Judge



_____________________________
Jerry L. Smith, Judge




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