         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs February 5, 2002

                DALE WESLEY BELL v. STATE OF TENNESSEE

                  Direct Appeal from the Circuit Court for McNairy County
                          No. 1189    Jon Kerry Blackwood, Judge



                     No. W2001-02509-CCA-R3-PC - Filed April 4, 2002


The Appellant, Dale Wesley Bell, appeals from the dismissal of his petition for post-conviction
relief. In 1999, Bell pled guilty to nine counts of aggravated burglary and one count of theft in
excess of $10,000. Bell, a Range III Persistent Offender, received an effective fifteen-year sentence
to be served in the Department of Correction. On appeal, Bell challenges the validity of his guilty
plea upon grounds of: (1) voluntariness and (2) ineffective assistance of counsel. After review, we
affirm the judgment of the McNairy County Circuit Court dismissing the petition.

                Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which DAVID H. WELLES and ROBERT W.
WEDEMEYER , JJ., joined.

William Ken Seaton, Selmer, Tennessee, for the Appellant, Dale Wesley Bell.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Braden H.
Boucek, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Jerry W.
Norwood, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                            OPINION

                                       Factual Background

       Following a series of residential burglaries in McNairy County in December of 1998, the
Appellant was eventually apprehended and charged with sixteen offenses: eleven counts of
aggravated burglary, class D felony theft, class C felony theft, evading arrest, possession of a
Schedule III controlled substance, and possession of a Schedule IV controlled substance. On two
separate occasions, the Appellant was able to elude law enforcement officers in multi-county
pursuits, after sheriff’s department deputies were dispatched to investigate reports of a suspicious
person at two residences in the county. The Appellant was identified on both occasions as the driver
of the stolen vehicles, before the vehicles were wrecked in the chase and abandoned. Following
abandonment of the wrecked vehicle in the second chase, the Appellant was captured after
attempting escape in another stolen vehicle. During an inventory of the first wrecked vehicle, items
taken during four aggravated burglaries were found. Inventory of the second wrecked vehicle again
revealed items taken during additional burglaries.

        In view of the Appellant’s indigency status, the public defender’s office was appointed to
represent the Appellant. On the scheduled morning of trial, the Appellant requested discharge of his
appointed counsel. This request was granted and the Appellant was permitted to proceed pro se.
After the jury was selected, the Appellant, following plea negotiations, entered guilty pleas to nine
counts of aggravated burglary and one count of class C felony theft, and received, under the terms
of the plea agreement, an effective fifteen-year sentence.

                                            ANALYSIS

        In order to succeed on a post-conviction claim, the Appellant bears the burden of showing
by clear and convincing evidence, the allegations set forth in his petition. Tenn. Code Ann. § 40-30-
210(f) (1997). The Appellant’s claim of involuntariness of his guilty plea, as set forth in his
petition, stems from the following allegations:

       (1) the trial court’s unwillingness to grant a continuance;

       (2) the trial court’s statements to the defendant regarding the potential sentence he
       would receive should he be convicted; and

       (3) the attorney who represented the defendant prior to the defendant being allowed
       to represent himself, provided ineffective assistance of counsel prior to the trial.

In sum, the Appellant contends that based upon trial counsel’s deficient pre-trial representation, he
felt compelled to request discharge of counsel and after being advised by the trial court of the
potential sentence he would receive and because the trial court denied a continuance, he was forced
to enter guilty pleas because he felt “helpless.” We, in turn, examine the Appellant’s issue of failure
to grant a continuance, the trial court’s alleged statements regarding potential sentence, and
ineffective assistance of counsel.

        In evaluating the knowing and voluntary nature of a guilty plea, the United States Supreme
Court held, "[t]he standard was and remains 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, 91 S.Ct. 160, 164 (1970). In making this determination, the reviewing court must
look to the totality of the circumstances. State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App.
1995); see also Chamberlain v. State, 815 S.W.2d 534, 542 (Tenn. Crim. App. 1990). Indeed, a
"court charged with determining whether . . . pleas were 'voluntary' and 'intelligent' must look to

                                                 -2-
various circumstantial factors, such as the relative intelligence of the defendant; 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).

                                I. Refusal to Grant a Continuance

       The Appellant argues that his plea was involuntarily entered because the trial court refused
to grant a continuance after the Appellant discharged his attorney and new counsel was not
appointed, thereby requiring the Appellant to proceed pro se. Specifically, he contends that his state
of mind was such that he “felt helpless” after being forced to represent himself.

         It is well-established that the decision whether to grant a continuance rests within the sound
discretion of the trial court. State v. Hines, 919 S.W.2d 573, 579 (Tenn. 1995), reh'g denied, No.
01-S-01-9303-CC-00052 (Tenn. at Nashville, Mar. 11, 1996), cert. denied, 519 U.S. 847, 117 S.Ct.
133 (1996). Moreover, the denial of a continuance will not be disturbed unless it appears that the
trial court abused its discretion and prejudice resulted to the accused as a direct result of the court's
denial. Id. Additionally, in order to trigger post-conviction relief, the denial of a motion for
continuance must implicate a constitutional right. Harris v. State, 947 S.W.2d 156, 174 (Tenn.
Crim. App. 1996), perm. to appeal denied (Tenn. 1997). “Thus, the petitioner must demonstrate,
first, that the court abused its discretion and, second, that its action rendered the proceeding
fundamentally unfair." Id. (citation omitted). Rarely does a grant or refusal of a continuance reach
constitutional proportions. Id. (citing Knighton v. Maggio, 740 F.2d 1344, 1351 (5th Cir.), cert.
denied, 469 U.S. 924, 105 S.Ct. 306 (1984)).

        We are not persuaded by the facts presented that the denial of Appellant’s request for a
continuance implicates a constitutional right. Unless an Appellant can show that his substantial
rights were prejudiced by reason of the denial of his request for continuance, the appellate court will
conclude that there was no abuse of discretion by the trial court in denying the request. In this case,
the Appellant was declared indigent, and the public defender’s office was appointed to represent him.
After conflicts arose between the Appellant and his attorney, the Appellant, on the day of trial,
requested that his attorney be discharged and another lawyer be appointed to represent him. The trial
court refused to discharge the Appellant’s attorney. The Appellant then requested to represent
himself. The trial court, after advising the Appellant of the dangers of self-representation, granted
this request, but refused to allow a continuance of the case.

               Both the United States and Tennessee Constitutions guarantee an indigent
        criminal defendant the right to assistance of appointed counsel at trial. See U.S.
        Const. amend. VI; Tenn. Const. art. I, § 9. The right of an accused to assistance of
        counsel, however, does not include the right to appointment of counsel of choice, or
        to special rapport, confidence, or even a meaningful relationship with appointed

                                                  -3-
       counsel. See Morris v. Slappy, 461 U.S. 1, 13-14, 103 S. Ct. 1610, 1617-18 (1983).
       The essential aim of the Sixth Amendment is to guarantee an effective advocate, not
       counsel preferred by the defendant. See Wheat v. United States, 486 U.S. 153, 159,
       108 S. Ct. 1692, 1697 (1988).

               Ordinarily, waiver of the right to counsel must be voluntary, knowing, and
       intelligent. See Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S. Ct. 1019, 1023
       (1938). Typically, such a waiver occurs only after the trial judge advises a defendant
       of the dangers and disadvantages of self-representation and determines that the
       defendant "knows what he is doing and his choice is made with eyes open." Adams
       v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S. Ct. 236, 242 (1942). Many
       courts, however, have recognized that the right to counsel is not a license to abuse
       the dignity of the court or to frustrate orderly proceedings. Accordingly, several
       courts have acknowledged that, like other constitutional rights, the right to counsel
       can be implicitly waived or forfeited if a defendant manipulates, abuses, or utilizes
       the right to delay or disrupt a trial.

State v. Carruthers, 35 S.W.3d 516, 546-47 (Tenn. 2000) (some citations omitted). With these
criteria considered, we find that the Appellant has not shown that his substantial rights were
prejudiced by reason of the denial of his request for continuance. The trial court found that the
Appellant was “playing the system” by firing his attorney and requesting a continuance. Also, the
Appellant testified at the guilty plea hearing that he was not “forced” to represent himself. He has
failed to identify any prejudice affecting his conviction or sentence, which he authored.
Accordingly, we conclude that the post-conviction court did not abuse its discretion in denying the
Appellant’s motion for a continuance.

                                    II. Sentencing Information

       The Appellant contends that his “state of mind was such that he could not make a voluntary,
knowing, and intelligent decision with regard to his guilty plea” based upon “the trial court’s
statements to the [Appellant] regarding the potential sentence he would receive.” At the post-
conviction hearing, the Appellant testified that,

       Judge Blackwood advised me that if I proceeded to trial that morning, I was
       facing upwards of 150 years, and that it might not be the Court’s position to
       impose a 150-year sentence on it, but it would be the Court’s position to run
       consecutive sentences if I was found guilty that morning of trial.

By this statement, the Appellant asserts that “the Court was trying to encourage him to plead guilty.”

        We conclude that the record establishes that the Appellant's plea of guilty was entered
voluntarily and knowingly and with full awareness of his constitutional rights. The transcript of the
guilty plea hearing reveals that the trial court questioned the Appellant extensively as to whether his

                                                 -4-
plea was made with knowledge and understanding. Additionally, the transcript of the hearing
establishes that the trial court informed the Appellant of “the minimum and maximum punishment
for these offenses.” Moreover, the Appellant indicated to the trial court that it was his “desire to
pursue a negotiated settlement of the case.” Thus, the record supports the post-conviction court's
conclusion that the Appellant's guilty plea was entered into voluntarily and knowingly. Therefore,
this issue is without merit.

                               III. Ineffective assistance of counsel

         Once a guilty plea has been entered, effectiveness of counsel is relevant only to the extent
that it affects the voluntariness of the plea. In this respect, such claims of ineffective assistance
necessarily implicate the principle that guilty pleas be voluntarily and intelligently made. Hill v.
Lockhart, 474 U.S. 52, 56,106 S.Ct. 366, 369 (1985) (citing North Carolina v. Alford, 400 U.S. at
31, 91 S.Ct. at 164).

        To succeed in a challenge for ineffective assistance of counsel, the Appellant must
demonstrate that counsel’s representation fell below the range of competence demanded of attorneys
in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984), the Appellant must establish (1)
deficient representation and (2) prejudice resulting from the deficiency. In the context of a guilty
plea, to satisfy the second prong of Strickland, the Appellant must show that “there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted
on going to trial.” Hill v. Lockhart, 474 U.S. at 59, 106 S. Ct. at 370; Walton v. State, 966 S.W.2d
54, 55 (Tenn. Crim. App. 1997).

        The issues of deficient performance by counsel and possible prejudice to the defense are
mixed questions of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). “A trial 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.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001)
(citing Tenn. R. App. P. 13(d)); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However,
conclusions of law are reviewed under a purely de novo standard, with no presumption of
correctness. Fields, 40 S.W.3d at 458.

        In his brief, the Appellant focuses on two areas of ineffectiveness: (1) trial counsel’s failure
to adequately address the issues related to the credibility of key state witnesses, and (2) trial
counsel’s “aggressive efforts to convince the defendant to plead guilty.” In the present case, the
post-conviction court concluded that the Appellant received the competent assistance of counsel, and
consequently, entered his plea knowingly and voluntarily. The proof does not preponderate against
these findings.

       As stated earlier, at the guilty plea hearing, the Appellant indicated to the trial court that it
was his “desire to pursue a negotiated settlement of the case” without the assistance of counsel. The

                                                  -5-
Appellant later testified that he was not “forced to represent himself.” At the post-conviction
hearing, trial counsel testified that he did not pressure the Appellant to enter into a plea.
Furthermore, the Assistant District Attorney noted that the Appellant was “doing good
negotiations.”1 As observed by the Appellant’s sentencing classification as a career offender, he is
no novice to the criminal justice system. The Appellant’s criminal history reflects sixteen prior
felony convictions beginning in 1979 and spanning three states. Moreover, the terms of the guilty
plea were favorable to the Appellant. The Appellant was indicted on sixteen offenses, and received
only an effective fifteen-year sentence. Regarding the witness credibility issue, trial counsel testified
that he had a tape player in his office, and therefore, if the Appellant wanted to listen to the tapes,
then there would have been no “problem with getting him the tapes or letting him listen to them.”
Accordingly, we find that the Appellant has not proven by clear and convincing evidence that trial
counsel’s performance was not within the range of competence demanded of attorneys in criminal
cases. The Appellant certainly has provided no evidence that “but for counsel’s errors, he would not
have pleaded guilty and would have insisted on going to trial.” In sum, the Appellant has failed to
show ineffective assistance of counsel.

        For the foregoing reasons, we deny post-conviction relief and affirm the judgment of the
Circuit Court of McNairy County.

                                                      CONCLUSION

        Based upon the foregoing, we find that the post-conviction court did not err in ruling that the
Appellant’s plea was knowingly, intelligently, and voluntarily entered or that he received the
effective assistance of counsel. Accordingly, the judgment of the post-conviction court is affirmed.




                                                                    ___________________________________
                                                                    DAVID G. HAYES, JUDGE




        1
            The Assistant D istrict Atto rney stated th at,

        there were certain co unts that he didn’t want to plead guilty to on account of there was some evidence
        involved in some pending cases in the other courts. . . . [I]t was just like talking to another attorney.
        . . . I mean, he knew wh at he w anted don e, and with som e reluctanc e, the S tate dismissed the charges
        that he was insisting on.

                                                              -6-
