          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT JACKSON
                        APRIL SESSION, 1997         FILED
                                                      July 10, 1997

                                                 Cecil Crowson, Jr.
ALBERT LEWIS,              )                        Appellate C ourt Clerk
                           )    No. 02C01-9512-CR-00394
      Appellant            )
                           )    SHELBY COUNTY
vs.                        )
                           )    Hon. BERNIE WEINMAN, Judge
STATE OF TENNESSEE,        )
                           )    (Post-Conviction)
      Appellee             )
                           )    (Three counts of Aggravated
                           )    Rape; One Count Aggravated
                                Robbery)


For the Appellant:              For the Appellee:

JAMES A. COHEN                  CHARLES W. BURSON
Attorney at Law                 Attorney General and Reporter
200 Jefferson Avenue
Suite 925                       SARAH M. BRANCH
Memphis, TN 38103               Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
JEANNE REA                      Nashville, TN 37243-0493
Attorney at Law
6000 Poplar Avenue
Suite 401                       WILLIAM GIBBONS
Memphis, TN 38117               District Attorney General

                                REGINALD HENDERSON
                                Asst. District Attorney General
                                Shelby County District Attorney's Office
                                Criminal Justice Complex
                                201 Poplar Avenue, Third Floor
                                Memphis, TN 38103



OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                       OPINION



       The appellant, Albert Lewis, appeals from the dismissal of his petition for

post-conviction relief. On December 17, 1991, the appellant pled guilty in the

Shelby County Criminal Court to three counts of aggravated rape, and, on

January 10, 1992, to one count of aggravated robbery. He received a sentence

of twenty years for each aggravated rape conviction and a sentence of eight

years for the aggravated robbery conviction. All sentences were ordered to run

concurrently. On March 2, 1994, the appellant filed a petition for post-conviction

relief alleging that his guilty pleas were not entered knowingly and voluntarily and

that he received the ineffective assistance of counsel. Specifically, he contends

that his pleas were not voluntary because neither counsel nor the trial court

advised him of his Fifth Amendment right against self-incrimination. In reference

to his ineffective assistance of counsel claim, he alleges that trial counsel failed

to file pre-trial motions, failed to interview potential witnesses, and misinformed

him of his release date. The post-conviction court conducted an evidentiary

hearing and denied relief. The appellant now appeals this denial.



       At the post-conviction hearing, the appellant's trial counsel testified that

she filed motions for discovery, investigated the charges against her client, and

interviewed potential witnesses. Moreover, counsel testified that she reviewed

with the appellant the implications of waiving his right to a jury trial, including his

right that he could not be compelled to incriminate himself. Trial counsel denied

making any promise to the appellant concerning the length of time he would

serve. The transcript of the December 17, 1991, guilty plea hearing reflects that

the appellant was specifically advised by the trial judge of his right against self-

incrimination. The State concedes, however, that the transcript of the January



10, 1992, plea hearing does not indicate that the appellant, on that occasion,


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was advised of his right against self-incrimination by the trial judge.



       In denying relief, the post-conviction court accredited the testimony of the

appellant's trial counsel and concluded that "at the time the [appellant] entered

his guilty plea he understood his right against self-incrimination and he entered

his guilty plea freely and voluntarily." The court further found that trial counsel

"appropriately investigated the case" and did not misinform the appellant as to

his period of incarceration.



        When this court undertakes review of a lower court's decision on a

petition for post-conviction relief, the lower court's findings of fact are given the

weight of a jury verdict and are conclusive on appeal absent a finding that the

evidence preponderates against the judgment. Clenny v. State, 576 S.W.2d 12,

14 (Tenn. Crim. App. 1978), cert. denied, 441 U.S. 947, 99 S.Ct. 2170 (1979).

Although the record reflects that the appellant was not advised of his right

against self-incrimination at the January 10, 1992, guilty plea hearing, the record

is clear that the appellant was informed of and had acknowledged this same right

twenty-four days earlier. Moreover, the proof establishes that trial counsel

explained to the appellant his right against self-incrimination in addition to other

constitutional rights he was relinquishing by entering a plea of guilty. In Johnson

v. State, 834 S.W.2d 922, 924 (Tenn. 1992), our supreme court reiterated the

principal that "for a plea to be knowing and intelligent the accused must have

certain knowledge regarding . . .the [constitutional] protections afforded the

accused." The court distinguished the fact that a defendant may be aware of his

constitutional rights even though not advised thereon. Id. at 925. Additionally, if

an allegation that the defendant was not advised of his right against self-

incrimination is supported by the evidence, the burden of proving a knowing plea

shifts to the State. Id. However, "it does not, ipso facto, entitle the [defendant]

to relief." Id. The State may rebut the allegation with proof that "the [defendant]


                                           3
was aware of his constitutional rights and that therefore the trial court's failure to

give the mandated advice was harmless error." Id. If, as in the case at bar, the

record shows by clear and convincing evidence that the plea was knowing and

voluntary, then the appellant is not entitled to relief. Id. The record indicates that

the appellant understood his right against self-incrimination and that his guilty

pleas were entered knowingly and voluntarily. After reviewing the record, we

cannot conclude that the evidence preponderates against the post-conviction

court's findings. Accordingly, we find no error of law mandating reversal of the

court's judgment. The post-conviction court's denial of the appellant's petition for

post-conviction relief is affirmed.




                                      ____________________________________
                                      DAVID G. HAYES, Judge


CONCUR:



________________________________
JOSEPH M. TIPTON, Judge


________________________________
WILLIAM M. BARKER, Judge




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