        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs January 15, 2014

         ROLLY WILLIAM WHITFORD v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                   No. 2007-D-3239    J. Randall Wyatt, Jr., Judge




                 No. M2013-01402-CCA-R3-PC - Filed March 31, 2014


The Petitioner, Rolly William Whitford, pled guilty to sexual battery and rape, with the trial
court to determine the length and manner of service of his sentence. The trial court imposed
an effective sentence of twelve years, to be served in the Tennessee Department of
Correction. This Court affirmed the Petitioner’s sentence on appeal. State v. Rolly William
Whitford, No. M2009-02525-CCA-R3-CD, 2011 WL 255310 at *1 (Tenn. Crim. App., at
Nashville, Jan. 20, 2011), perm. app. denied (Tenn. May 25, 2011). The Petitioner timely
filed a petition seeking post-conviction relief, asserting that his guilty plea was not entered
knowingly and voluntarily, which the post-conviction court denied after a hearing. The
Petitioner now appeals, maintaining that his guilty pleas were not entered knowingly and
voluntarily because he was never advised of the lifetime supervision requirement for sex
offenders. After a thorough review of the record, the briefs, and relevant authorities, we
affirm the post-conviction court’s judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J., and T HOMAS T. W OODALL, J., joined.

Ryan C. Caldwell, Nashville, Tennessee, for the Appellant, Rolly William Whitford.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Victor S. Johnson, III, District Attorney General; and Brian Holmgren, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                         OPINION
                                          I. Facts
       A Davidson County grand jury indicted the Petitioner for two counts of rape and four
counts of sexual battery. The Petitioner pled guilty to one count of sexual battery and one
count of rape. At a subsequent sentencing hearing, the trial court sentenced the Petitioner
to serve two years for the sexual battery conviction and a consecutive ten years for the rape
conviction for a total effective sentence of twelve years. The Petitioner appealed the trial
court’s sentences and this Court affirmed the sentences. State v. Rolly William Whitford, No.
M2009-02525-CCA-R3-CD, 2011 WL 255310 at *1 (Tenn. Crim. App., at Nashville, Jan.
20, 2011), perm. app. denied (Tenn. May 25, 2011).

                                A. Guilty Plea Submission Hearing

       At the guilty plea submission hearing, the trial court reviewed the Petitioner’s charges
and the range of sentences that the Petitioner might receive at the subsequent sentencing
hearing. The Petitioner affirmed his understanding of the charges and the range of sentences.
The trial court then reviewed the Petitioner’s rights and the waiver of those rights as it related
to the entry of guilty pleas. The Petitioner once again affirmed his understanding. The
Petitioner testified that he had reviewed the plea petition “in its entirety” and confirmed that
he understood “exactly” what he was doing. The Petitioner then stated, “It is my decision
to plead guilty” and stated that he was doing so voluntarily. The State then presented the
following factual basis for the trial court’s acceptance of the guilty pleas:

               [H]ad this matter proceeded to trial . . . we would have been calling for
       purposes of that hearing [M.A.P.]1 , who was the daughter of [the Petitioner’s]
       wife. She would have testified that sometime during the summer of 2005, she
       believed between August and September of 2005, that she was asleep [at] a
       residence here in Nashville, Davidson County, that she awoke to have the
       [Petitioner] in her room, that the [Petitioner] had digitally penetrated her
       genitals.

              Had the other counts proceeded to trial, we would have provided
       testimony from [B.D.] who would have testified that on diverse occasions in
       Nashville, [the Petitioner, a friend of her family] had come into her bedroom.
       And on one occasion she had awoken to find her clothing disturbed. She
       would have also testified that other occasions in other jurisdictions, that similar
       occurrences had occurred on one of those occasions which [the Petitioner] had
       fondled her genitals when she had awakened.



       1
           In order to protect the privacy of the minor victims, we refer to them by their initials only.


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              [The Petitioner] provided statements during a telephone conversation
       with [B.D.’s] mother in which he had admitted to multiple instances, both in
       Nashville and in other locations where he had fondled the genitals of [B.D]
       while she was asleep.

             He also made admissions that with respect to [M.A.P] that he had
       fondled her genitals on a single occasion here in Nashville.

                               B. Post-Conviction Hearings

       The hearings on the Petitioner’s post-conviction petition were held on three dates:
February 21, 2013; March 12, 2013; and March 28, 2013. At the first of the three hearings,
the Petitioner testified that his case was set for trial but he ultimately pled guilty to the
offenses rather than proceed to trial. He explained that his attorney (“Counsel”) met with
him nine times before the trial date and that on each occasion “tried to get [him] to do a plea
deal.” The Petitioner said that his attorney never advised him of his options related to the
decision to plead guilty or proceed to trial. He said that Counsel never advised him of the
lifetime supervision requirement for sex offenses. He could not recall whether the trial court
had advised him of the requirement and denied that the State’s prosecutor had ever
mentioned the supervision requirement. The Petitioner said that, had he known of this
requirement, he would not have pled guilty to the two offenses. The Petitioner asserted that
Counsel had misadvised him about the possible range of punishments for the offenses to
which he pled.

       On cross-examination, the Petitioner testified that, during the pendency of this case,
four different attorneys represented him. He said that not one of those attorneys ever advised
him of the lifetime supervision requirement. The Petitioner agreed that he had “some
difficulties” working with the other attorneys that represented him.

       The Petitioner maintained that Counsel never advised him about the strengths and
weaknesses of pursuing a trial versus entering a plea agreement. He agreed, however, that
Counsel advised him that he faced additional charges if he proceeded to trial and the
likelihood of an alternative sentence was less if he proceeded to trial.

       Counsel testified that he was the Petitioner’s fourth attorney related to this case.
Counsel said that he knew the State’s proof for the allegations and that the Petitioner had
made “some incriminatory statements” related to the offenses. Counsel recalled that he
reviewed the discovery with the Petitioner “extensively.” He said that he did so because the
Petitioner’s previous attorney had filed a motion to suppress the Petitioner’s incriminating
statements to the victim’s mother. Counsel said that he reviewed the documents and case law

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with the Petitioner before withdrawing the motion because there was no legal basis to
suppress the statement. Counsel said that he discussed “tactics” with the Petitioner that
included attacking the victim’s credibility. He explained that the Petitioner’s statements
implicating himself were “very damaging to any defense.”

        Counsel testified that he discussed consecutive sentencing as well as the potential for
additional charges based on materials the State alleged were child pornography found on one
of the Petitioner’s computers. Counsel agreed that he outlined the sentencing options for the
Petitioner but stated that he “never guaranteed him or promised him” a particular sentence.
Counsel recalled that the Petitioner was “fixated” on negotiating a sentence that did not
require him to go to the Department of Correction but would allow him to stay in Nashville.
Counsel said that, at the time, he did not anticipate the Petitioner pleading guilty based on
the Petitioner’s demeanor and assertions. He denied pressuring the Petitioner into pleading
guilty in this case. He also denied making false representations about the sentence to induce
the Petitioner to plead guilty.

        Counsel testified that he had reviewed the transcripts in this case and that the
Petitioner was not advised in court of the lifetime supervision requirement for sex offenders.
He noted that, at the time of the guilty pleas, there was not a legal requirement for defendants
to be advised of the requirement during plea colloquies. Counsel said that, even though it
was not a requirement, he advised clients of the lifetime supervision requirement because it
was “still a consequence of the plea and a very serious one.” He said that, “in addition to
telling [clients] the current state of the law I always tell clients as kind of a catch-all [that]
every legislative session they make it tougher for sex offenders to live. They add more
restrictions on where they can live [and] where they can work.” When asked if he advised
the Petitioner of the lifetime supervision requirement, Counsel responded:

               It was my practice at the time to discuss it. I don’t recall specifically
       discussing that with him. I remember discussing the plea. I have in my notes,
       just to generally discuss the State’s offer. I have the breakdown of the years,
       because I always have to do the math long hand and we went over all of that.
       I don’t have in my notes that I specifically told him that thought.

Counsel then stated that, although it was not documented in his notes, he believed that he
discussed the requirement with the Petitioner. He explained that his belief was based on:

              [S]everal conversation we had[,] again him being fixated [on] wanting
       to go into CCA[,] and I remember talking about the registry at one point and
       he always was not concerned with [the sex offender registry] as long as he was
       able to first not go to TDOC or [second] get probation.

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        Counsel testified that the Petitioner never asked to withdraw his plea or indicated that
he had lied to the trial court during the plea colloquy. Counsel stated that it was the
Petitioner’s decision to plead guilty and the Petitioner’s decision to seek an appeal of his
sentence. The Petitioner expressed some “hesitancy” about seeking an appeal, telling
Counsel that he believed he had a year to file an appeal. Counsel said that he corrected the
Petitioner and informed him that he had only thirty days and, therefore, needed to make a
decision. Thereafter, the Petitioner told Counsel to “go ahead and do the appeal.” After
filing the appeal, Counsel received a letter from the Petitioner stating, “Please, do not appeal
my case.” The Court of Criminal Appeals denied the direct appeal and Counsel notified the
Petitioner of the denial. Counsel said that, at that time, he informed the Petitioner that he
could seek permission to appeal to the Tennessee Supreme Court, but the Petitioner declined.
Counsel said that he filed a motion to be relieved, which was granted. Counsel recalled that
it was around this same time that the Petitioner began writing to Counsel, stating he had
changed his mind and wanted Counsel to file an application. Counsel said that he wrote the
Petitioner a letter notifying him that Counsel had been relieved and would not be seeking
further appeal.

       Counsel testified that the Petitioner never expressed any dissatisfaction with his
representation but say he wished he had been sentenced to probation or split confinement.

       At the March 12, 2013, hearing, Michael Colavecchio testified that he represented the
Petitioner on this case for a period of time before Counsel. Mr. Colavecchio said that he was
not the first attorney who worked on this case and that he was retained by the Petitioner’s
family. He said he represented the Petitioner for between six months and a year. During his
representation of the Petitioner the State made “offers,” but the Petitioner indicated to Mr.
Colavecchio that he wanted to proceed to trial.

        Mr. Colavecchio testified that he reviewed his file before the post-conviction hearing,
but the file was not a complete file because he had turned over portions of it to Counsel when
Counsel assumed representation of the Petitioner. As such, he did not know the specific plea
offer made by the State, but he knew all of the State’s offers included a guilty plea to rape.
Mr. Colavecchio agreed that the rape charge required lifetime supervision as part of the
sentence. When asked if he conveyed the supervision for life requirement to the Petitioner
as part of the plea offer, Mr. Colavecchio responded:

       While I don’t specifically recall whether I advised him that he would have
       either community supervision for life or be on the sexual offender registry for
       life, it is my practice to explain to someone who may be entering a plea to a
       charge that required one or both of those to convey that information to them.

                                               5
       ....
       I don’t have any doubt that there was a discussion about that [community
       supervision for life requirement] issue, but I don’t recall specifically when I
       did and to what extent.

       Mr. Colavecchio testified that his representation of the Petitioner ended “at some point
in the last half of 2008.” He explained that during one of their meetings, the Petitioner
became “irate and threatening.” Mr. Colavecchio determined that it would not be in the
Petitioner’s “best interest” for Mr. Colavecchio to continue to represent the Petitioner, and
so he withdrew as the Petitioner’s attorney.

       At the final, March 28, 2013, hearing on the petition, Jon Wing testified that he was
originally appointed to work on the Petitioner’s case. He said that he worked on the case
with another attorney in his office, Tyler Yarbrough. Mr. Wing said that he was appointed
to represent the Petitioner in August 2007. He represented the Petitioner until March 2008
when the Petitioner retained private counsel, Mr. Colavecchio. Mr. Wing said his office was
re-appointed to represent the Petitioner in October 2008 until February 25, 2009, when
Counsel was appointed. Mr. Wing said that both times his representation of the Petitioner
was terminated due to the Petitioner’s dissatisfaction with the representation.

       Mr. Wing testified that he received and reviewed the State’s discovery in this case.
Once Mr. Colavecchio assumed representation, Mr. Wing’s office provided Mr. Colavecchio
with the discovery. Likewise, when the case was once again transferred back to Mr. Wing,
any new or additional documentation was provided.

        Mr. Wing testified that his notes reflected that any plea offers from the State included
a guilty plea to either rape or attempted rape. Mr. Wing agreed that either rape or attempted
rape required by statute community supervision for life. Mr. Wing said that, although it was
his practice, his notes did not reflect that he spoke with the Petitioner about this requirement.
Ms. Yarbrough’s notes, however, reflected that the offer included “lifetime registry.” He
agreed that all discussions that both he and Ms. Yarbrough had with the State regarding a
plea offer involved community supervision for life. He conveyed the offers, but the
Petitioner was not interested in entering a plea to the offers made.

         After hearing the evidence, the trial court issued an order denying the Petitioner relief.
It is from this judgment that the Petitioner now appeals.

                                           II. Analysis

       On appeal, the Petitioner contends that his guilty plea was not knowingly and

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voluntarily entered because he was not advised of the lifetime community supervision
requirement. The State responds that because the Petitioner was advised by three different
attorneys of this requirement, he has not adequately demonstrated that his plea was not
entered knowingly, intelligently, and voluntarily. We agree with the State.

        In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional right.
T.C.A. § 40-30-103 (2012). The petitioner bears the burden of proving factual allegations
in the petition for post-conviction relief by clear and convincing evidence. T.C.A. § 40-30-
110(f) (2012). Upon review, this Court will not re-weigh or re-evaluate the evidence below;
all questions concerning the credibility of witnesses, the weight and value to be given their
testimony, and the factual issues raised by the evidence are to be resolved by the trial judge,
not the appellate courts. Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999) (citing Henley
v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997)). A post-conviction court’s factual findings
are subject to a de novo review by this Court; however, we must accord these factual findings
a presumption of correctness, which can be overcome only when a preponderance of the
evidence is contrary to the post-conviction court’s factual findings. Fields v. State, 40
S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction court’s conclusions of law are subject
to a purely de novo review by this Court, with no presumption of correctness. Id. at 457.

        To be valid, a guilty plea must be entered knowingly, voluntarily, and intelligently.
See Boykin v. Alabama, 395 U.S. 238, 242-44 (1969); State v. Mackey, 553 S.W.2d 337, 340
(Tenn. 1977). A plea meets constitutional muster when the defendant understands both what
the plea connotes and its consequences, Blankenship v. State, 858 S.W.2d 897, 904 (Tenn.
1993) (citing Boykin, 395 U.S. at 244), and makes a voluntary and intelligent choice from the
alternative courses of action available to plead guilty. Jaco v. State, 120 S.W.3d 828, 831
(Tenn. 2003) (citing North Carolina v. Alford, 400 U.S. 25 (1970)). A petitioner’s testimony
at a guilty plea hearing “constitute[s] a formidable barrier” in any subsequent collateral
proceeding because “[s]olemn declarations in open court carry a strong presumption of
verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977).

        When determining the knowing and voluntary nature of a guilty plea, the standard is
“whether the plea represents a voluntary and intelligent choice among the alternative courses
of action open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31 (1970). A
reviewing court can look to a number of factors to find a “knowing and intelligent plea,”
including “[t]he relative intelligence of the petitioner, the degree of his [or her] familiarity
with criminal proceedings, the opportunity to confer with competent counsel and the trial
court regarding the charges faced, and the desire to avoid a greater punishment resulting from
a jury trial.” Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The Petitioner must
have an understanding of the charges against him and the consequences of pleading guilty,

                                               7
including “the sentence that he will be forced to serve as the result of his guilty plea and
conviction.” Id. at 905. A plea is not “voluntary” if it results from ignorance,
misunderstanding, coercion, inducements, or threats. Blankenship v. State, 858 S.W.2d 897,
904 (Tenn. 1993).

        In this case, the Petitioner asserts that he should be granted relief because the trial
court did not advise him of the lifetime supervision requirement pursuant to Ward v. State.
315 S.W.3d 461 (Tenn. 2010). The defendant in Ward filed a petition for post-conviction
relief, alleging, among other things, that his guilty plea was not knowing and voluntary
because the trial court failed to advise him of the lifetime community supervision
requirement. Our Supreme Court held that, “[b]ecause the mandatory lifetime supervision
requirement is an additional part of a defendant’s sentence, the trial court is constitutionally
required to inform the defendant of the supervision requirement as part of the plea colloquy.”
Ward, 315 S.W.3d at 474. This opinion was issued on July 7, 2010, and the Petitioner
pleaded guilty to these offenses on September 11, 2009, almost ten months before the Ward
opinion. The Ward court did not address the retroactivity of this holding.

        The Supreme Court addressed the issue in Derrick Brandon Bush v. State of
Tennessee, __ S.W.3d __, 2014 WL 295187 (Tenn., January 28, 2012). As to the question
of the retroactivity of Ward, the Court held:

       Although the rule we announced in Ward v. State is an important new
       constitutional rule, we can not say that it amounts to a “fairness safeguard . .
       . implicit in the concept of ordered liberty” which, under Tenn. Code Ann. §
       40-30-122, must be applied retroactively to judgments that became final before
       its recognition.

Id. at *16.

       In its written order, the trial court first noted the Ward case and then provided the
following reasoning in support of its denial of relief:

               The Court finds that the proof at the post-conviction hearing established
       by clear and convincing evidence that the Court did not advise the Petitioner
       of the lifetime supervision requirement during the plea colloquy. Under Ward,
       this was constitutional error on the part of the Court. However, if the proof
       shows that the [Petitioner] already knew what he was not advised, the error
       was harmless and the conviction stands. The State must demonstrate that the
       error was harmless beyond a reasonable doubt.



                                               8
               Here, the Court finds that the Petitioner was represented by three
       separate attorneys prior to the plea. Each of them indicated that, based on their
       usual practice at the time, they believed they advised the Petitioner regarding
       the lifetime supervision requirement, even though they could not remember
       exactly when they so advised him. As stated above, the Court does not find
       the Petitioner’s testimony to be credible and fully credits the testimony of the
       attorneys. Based on the testimony, the Court is inclined to believe that the
       Petitioner was advised multiple times of the lifetime supervision requirement
       of the plea, he already knew about it, and that the error was therefore harmless.

The post-conviction court found that the Petitioner’s testimony was not credible. We defer
to the post-conviction court’s findings regarding the credibility of witnesses. See Momon,
18 S.W.3d at 156. Furthermore, we agree with the post-conviction court that the Petitioner
has failed to prove by clear and convincing evidence that his plea was not made knowingly
and voluntarily. See T.C.A. § 40-30-110(f) (2006); Momon, 18 S.W.3d at 156. Therefore,
the Petitioner is not entitled to relief on this issue.

                                       II. Conclusion

       After a thorough review of the record and relevant authorities, we conclude that the
post-conviction court properly denied post-conviction relief. Accordingly, we affirm the
judgment of the post-conviction court.


                                                   _________________________________
                                                   ROBERT W. WEDEMEYER, JUDGE




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