             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                             June 18, 2002 Session

                       JESSE E. ROGERS v. STATE OF TENNESSEE

                    Direct Appeal from the Criminal Court for Hawkins County
                            No. 7934 James Edward Beckner, Judge



                                         No. E2001-02869-CCA-R3-PC
                                               October 16, 2002

The petitioner, Jesse E. Rogers, entered “best interest” guilty pleas to five counts of rape of a child.
He was sentenced to twenty-five years incarceration in the Tennessee Department of Correction for
each offense, with the sentences to be served concurrently. The petitioner subsequently filed for
post-conviction relief. Following an evidentiary hearing, the post-conviction court denied relief and
the petitioner timely appealed. 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
DAVID H. WELLES, J., joined.

John S. Anderson, Rogersville, Tennessee, for the appellant, Jesse E. Rogers.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
C. Berkeley Bell, District Attorney General; and Douglas Godbee, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                                      OPINION

                                       I. Factual Background
                On June 5, 2000, the petitioner was indicted by the Hawkins County Grand Jury on
five counts of rape of a child in violation of Tennessee Code Annotated section 39-13-522 (1997).
The alleged victim was the petitioner’s eight-year-old daughter. Thereafter, on October 6, 2000, the
petitioner entered “best interest” guilty pleas to all five counts of rape of a child.1 In accordance with
the plea agreement, the petitioner was sentenced to twenty-five years incarceration for each count


         1
            An accused who wishes to plead guilty yet assert his innocence may en ter what is known as a “b est interest”
guilty plea. See North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S. Ct. 160, 167 -168 (1970). A trial court may accept
such a plea if the court is satisfied that there is a factual basis for the plea. See Do rtch v. State, 705 S.W.2d 687, 689
(Tenn. Crim. App. 198 5).
with the sentences to be served concurrently. As a child rapist, the petitioner was required to serve
one hundred percent (100 %) of his sentence in confinement.

                 On August 22, 2001, the petitioner filed for post-conviction relief, alleging that he
received ineffective assistance of counsel. Specifically, the petitioner claimed that his trial counsel
failed to file proper pre-trial motions and failed to properly investigate his case. Additionally, the
petitioner alleged that his guilty pleas were not knowing or voluntary because counsel failed to
advise the petitioner of the sentence he would receive if he went to trial as opposed to pleading
guilty. Moreover, the petitioner claimed that he was not “in the right state of mind” to accept a plea
and did not remember if he was even present at the time the pleas were entered.

                The post-conviction court appointed counsel and conducted an evidentiary hearing.
Following the evidentiary hearing, the post-conviction court made detailed findings and concluded
that the petition was without merit. It is from this determination that the petitioner now appeals.

                                            II. Analysis
                We begin by noting that although the petitioner cites authority addressing ineffective
assistance of counsel and knowing and voluntary guilty pleas, he has failed to support his issues with
argument. Accordingly, this court could consider these issues waived. See Tenn. Ct. Crim. App.
R. 10(b). Nevertheless, we will address the petitioner’s claims. To be successful in his claim for
post-conviction relief, the petitioner must prove all factual allegations contained in his post-
conviction petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997).
“‘Clear and convincing evidence means evidence in which there is no serious or substantial doubt
about the correctness of the conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905,
911 (Tenn. Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.2 (Tenn.
1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded their
testimony, and the factual questions raised by the evidence adduced at trial are to be resolved by the
post-conviction court as the trier of fact. Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997).
Therefore, we afford the post-conviction court’s findings of fact the weight of a jury verdict, with
such findings being conclusive on appeal absent a showing that the evidence in the record
preponderates against those findings. Id. at 578.

                               A. Ineffective Assistance of Counsel
                A claim of ineffective assistance of counsel is a mixed question of law and fact. State
v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). In Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001)
(citations omitted), our supreme court further explained the standard of review in cases of ineffective
assistance of counsel:
                [A post-conviction] court’s findings of fact underlying a claim of
                ineffective assistance of counsel are reviewed on appeal under a de
                novo standard, accompanied with a presumption that those findings
                are correct unless the preponderance of the evidence is otherwise.
                However, a [post-conviction] court’s conclusions of law--such as
                whether counsel’s performance was deficient or whether that


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               deficiency was prejudicial--are reviewed under a purely de novo
               standard, with no presumption of correctness given to the [post-
               conviction] court’s conclusions.

               “To establish ineffective assistance of counsel, the petitioner bears the burden of
proving both that counsel’s performance was deficient and that the deficiency prejudiced the
defense.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)). In evaluating whether the petitioner has met this
burden, this court must determine whether counsel’s performance was within the range of
competence required of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). Moreover, in the context of a guilty plea, “the petitioner must show ‘prejudice’ by
demonstrating that, but for counsel’s errors, he would not have pleaded guilty but would have
insisted upon going to trial.” Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998); see also
Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985).

                At the post-conviction hearing, the petitioner called his trial counsel and counsel’s
investigator to testify on his behalf. Trial counsel testified that he filed motions for discovery and
discussed the State’s evidence with the petitioner. Counsel stated that he discussed possible
sentences with the petitioner, including the possibility that consecutive sentences could be ordered.
Counsel met with the petitioner two or three times with the defense investigator present, and also
met with the petitioner alone on a number of occasions. Counsel testified that “[the petitioner]
seemed to be a reasonably intelligent man and, yes, as I recall, he didn’t seem to have any problems
understanding what I told him.” Counsel did not recall if he had filed a motion to suppress the
petitioner’s statements.

                Counsel recalled that the petitioner wavered regarding whether he wanted to plead
guilty or go to trial. However, counsel testified that he had two primary concerns about going to
trial. He noted that the petitioner had made two incriminating statements and there was also
damaging physical evidence. Additionally, counsel recalled that the victim was very articulate and
had provided graphic details regarding the offenses.

                Lawrence Smith, the defense investigator, testified regarding the petitioner’s case.
Smith related that he had more than twenty-five years of experience in law enforcement and as an
investigator with the public defender’s office. He has an associate’s degree from Walters State
Community College and had almost completed the requirements for a bachelor’s degree in criminal
justice at East Tennessee State University. Smith also teaches and lectures at various colleges and
at seminars relating to child abuse investigations.

                Smith testified that he spent a great deal of time with the petitioner while the
petitioner was incarcerated in the Hawkins County Jail. He estimated that he met with the petitioner
at least ten times. Smith interviewed witnesses, reviewed discovery materials and lab reports, and
and discussed the evidence with the petitioner. He and the petitioner’s trial counsel also discussed
with the petitioner the advantages and disadvantages of going to trial or pleading guilty. Although


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the petitioner did not necessarily want to plead guilty, he did not want to go to trial. Smith explained
that the petitioner was reluctant to go to trial because he did not want his daughter to have to testify.
Eventually, the petitioner chose to plead guilty. Smith recalled,
                 [t]his was not one of these quick decisions to enter into a plea
                 bargain. It, certainly, was a very, very long process. We was
                 prepared to go to trial, but [the petitioner] finally arrived at that
                 decision to enter the plea bargain after it was explained to him the
                 possibility of what the evidence would possibly prove against him,
                 being the D.N.A., and all the statements, and everything. It was one
                 of the best prepared cases that I have saw as far as the evidence, as far
                 as corroborating statements, for his D.N.A., and, of course, very
                 damaging statements that [the petitioner] had made to law
                 enforcement officers.

                 The petitioner testified at the post-conviction hearing that he was not guilty of rape.
He contended that if he was guilty of anything, it was a lesser offense. The petitioner asserted that
he entered “best interest” pleas because he did not want to plead guilty, and now believes that he
should have gone to trial. Although he claimed that counsel should have filed a motion to suppress
his statements, the petitioner admitted that he made the statements. However, he explained, “[A]fter
I reflected on it, I had no memory, or really what happened. I still don’t. I can’t tell you today what
happened. I don’t know.” He alleged that he should have requested an attorney before he made the
statements. The petitioner conceded that, prior to his plea, he was evaluated by mental health
professionals. Moreover, despite his limited memory of the circumstances surrounding his
statements, the petitioner admitted that he was aware that the State’s evidence included laboratory
results and DNA evidence. The petitioner presented no other evidence to support his claims of
ineffective assistance.

                 As noted earlier, the post-conviction court found that the petitioner received effective
assistance of counsel. The post-conviction court obviously accredited the testimony of trial counsel
and the defense investigator rather than the testimony of petitioner. The post-conviction court
concluded that counsel, with the assistance of the defense investigator, thoroughly investigated the
case, talked with witnesses, consulted with the petitioner, and obtained discovery. Further, the court
noted that the original court file reflected that counsel had filed several motions, including a motion
for a mental evaluation of petitioner. The court asserted after reviewing the record that there “was
such that a very strong case existed against the petitioner, for which he, in all likelihood, would be
found guilty. He could have received up to 125 years in this case, instead of the 25 years that he did
receive at 100 percent release eligibility date.” Additionally, the court concluded that the petitioner
had failed to show that if not for counsel’s errors, he would have insisted on going to trial. Indeed,
the petitioner testified that he wanted to plead guilty in order to prevent his daughter from being
forced to testify at trial. The court asserted after reviewing the record that had the petitioner gone
to trial rather than entering a guilty plea, “the probability is that a much worse result would have
occurred.”



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                Again, we note that the findings of fact of the post-conviction judge are afforded the
weight of a jury verdict, and those findings are conclusive on appeal unless the evidence in the
record preponderates otherwise. There is nothing in the record to preponderate against the
conclusion of the post-conviction court that the petitioner did not meet his burden of proving
ineffective assistance of counsel. This issue is without merit.

                                             B. Guilty Pleas
                The petitioner also complains that his guilty pleas were neither knowing nor voluntary
because the pleas were “[e]ntered without [the] petitioner’s understanding of awareness of the
important constitutional rights he was waiving by pleading guilty.” Again, we observe that the
petitioner has failed to support this issue with argument. Regardless, we conclude that the petitioner
has failed to show that he is entitled to relief.

                 When a defendant enters a plea of guilty, certain constitutional rights are waived,
including the privilege against self-incrimination, the right to confront witnesses, and the right to a
trial by jury. Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712 (1969). Therefore, in
order to comply with constitutional requirements a guilty plea must be a “voluntary and intelligent
choice among the alternative courses of action open to the defendant.” North Carolina v. Alford, 400
U.S. 25, 31, 91 S. Ct. 160, 164 (1970). In order to ensure that a defendant understands the
constitutional rights being relinquished, the trial court must advise the defendant of the consequences
of a guilty plea, and determine whether the defendant understands those consequences. Boykin, 395
U.S. at 244, 89 S. Ct. at 1712.

                The Tennessee Supreme Court, in State v. Mackey, 553 S.W.2d 337, 341 (Tenn.
1977), set out the procedure trial courts in Tennessee should follow when accepting guilty pleas.
Prior to accepting the guilty plea, the trial court must address the defendant personally in open court,
inform the defendant of the consequences of the guilty plea, and determine whether the defendant
understands those consequences. See id.; Tenn. R. Crim. P. 11(c). A verbatim record of the guilty
plea proceedings must be made and must include, without limitation, “(a) the court’s advice to the
defendant, (b) the inquiry into the voluntariness of the plea including any plea agreement and into
defendant’s understanding of the consequences of his entering a plea of guilty, and (c) the inquiry
into the accuracy of a guilty plea.” Mackey, 553 S.W.2d at 341.

                In determining whether the petitioner’s guilty pleas were knowing and voluntary, this
court looks to the following factors:
                the relative intelligence of the [petitioner]; 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 897, 904 (Tenn. 1993).


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                The post-conviction court noted that it had reviewed the entire record, including the
transcript of the guilty plea hearing. The plea transcript reflects that the trial court explained to the
petitioner his constitutional rights and the consequences of pleading guilty. The trial court carefully
explained to the petitioner the State’s burden in proving rape of a child, specifically defining the
statutory definition of penetration. The petitioner advised the court that he understood the charges
against him, was entering his plea voluntarily, and was aware of the constitutional rights being
relinquished. The trial court further explained to the petitioner the sentence he would receive and
that he was required to serve one hundred percent (100%) of his sentence in confinement. The
petitioner advised the trial court that he had completed high school, had two years of college study,
and had no mental or physical conditions that limited his understanding of the proceedings.

                At the post-conviction hearing, the petitioner contended that he was not “in the right
state of mind to even make a plea.” The post-conviction court noted that, prior to the petitioner’s
pleas, the petitioner had been evaluated by mental health professionals who found the petitioner
competent to stand trial and who concluded that an insanity defense could not be supported. The
petitioner asserted that he should have gone to trial and, at most, should have been convicted of a
lesser offense. Again, the post-conviction court considered the evidence, accredited the testimony
of the trial counsel and the defense investigator, and determined that the petitioner’s plea “in all
respects was voluntarily, intelligently, and understandably made.” We conclude that the evidence
does not preponderate against this determination.

                                         III. Conclusion
                Accordingly, we affirm the judgment of the post-conviction court



                                                        ___________________________________
                                                        NORMA McGEE OGLE, JUDGE




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