           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT NASHVILLE            FILED
                            NOVEMBER SESSION, 1996
                                                             April 3, 1997

                                                        Cecil W. Crowson
PHILLIP MARK NUNLEY,                 )     C.C.A. NO. 01C01-9602-CC-00066
                                                      Appellate Court Clerk
                                )
      Appellant,                )
                                )
                                )    GRUNDY COUNTY
VS.                             )
                                )    HON. BUDDY D. PERRY
STATE OF TENNESSEE,             )    JUDGE
                                )
      Appellant.                )    (Post-Conviction Relief)




FOR THE APPELLANT:                   FOR THE APPELLEE:

ROBERT S. PETERS                     CHARLES W. BURSON
Swafford, Peters & Priest            Attorney General and Reporter
100 First Avenue, S.W.
Winchester, TN 37398                 EUGENE J. HONEA
                                     Assistant Attorney General
                                     450 James Robertson Parkway
                                     Nashville, TN 37243-0493

                                     J. MICHAEL TAYLOR
                                     District Attorney General

                                     THOMAS HEMBREE
                                     Assistant District Attorney
                                     2nd Floor Lawyers Building
                                     Jasper, TN 37347




OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                     OPINION


       Appellant Philip Mark Nunley appeals from the dismissal of his petition

for post-conviction relief. On March 23, 1993, Appellant pled guilty to second-

degree murder and especially aggravated robbery. Appellant received a

sentence of twenty-five years imprisonment for second-degree murder and

twenty years imprisonment for especially aggravated robbery. The sentences

were ordere d to be served concurrently for an effective sentence of twenty-five

years. O n July 10, 1 993, Ap pellant filed a petition for p ost-con viction relief,

allegin g ineffe ctive as sistan ce of c ouns el and that he involun tarily en tered h is

guilty plea. The post-conviction court dismissed his petition, finding

Appe llant’s petition w ithout me rit. On app eal, App ellant argu es that his guilty

plea was involuntarily entered. For the reasons discussed below, we reject

Appe llant’s claim and affirm the decis ion of the p ost-con viction cou rt.



       Appellant m aintains that his guilty plea w as not voluntarily, intelligently,

or kno wingly e ntered beca use th e trial co urt did n ot fully co mplyin g with R ule

11 of the Tennessee Rules of Criminal Procedure by inquiring of Appellant

whether his willingness to plead guilty resulted from prior discussions between

the district attorney and the defendant or his attorney. In addition, he claims

that be caus e of tim e pres sures and th e una vailability of his fa mily to h elp him

make a decision, Appellant was unable to make a voluntary, intelligent

decision .



       In Boykin v. Alabama the United State Supreme Court held that an

accu sed’s guilty ple a mu st be vo luntarily , know ingly, an d und erstan dingly

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entered before a conviction resting upon a guilty plea may comply with due

process. 395 U.S. 238 (1969). In Boyk in, the Sup reme C ourt stated that a

guilty plea constituted a waiver of various rights and that it would not presume

a waiver of the following federal constitutional rights from a silent record:

      (1)    The privilege against compulsory self-incrimination;

      (2)    The right to trial by jury; and

      (3)    The right to confront one’s accusers.



Id. at 242. T hus, Boyk in placed a premium on the record showing sufficient

waiver of specified rights.



      Exercisin g its supe rvisory pow er to ens ure that the courts of th is State

afford fairness and justice to defendants in criminal cases, the Tennessee

Supreme Court in State v. Mackey, 553 S.W .2d 337, 341 (Tenn. 197 7),

required stricter standards than those mandated by the Boyk in decision .

Mackey requires that trial judges, in accepting pleas of guilty in criminal cases

to substantially adhere to the following procedure:

      The c ourt mu st addre ss the de fendan t in open c ourt and inform h im of,

      and determine that he understands:

             (a) Th e natu re of the charg es bro ught a gains t him
             and the mandatory minimum penalty provided by
             law, if any, and the maximum possible penalty; and
             that a d ifferent o r additio nal pu nishm ent m ay resu lt
             by reason of prior convictions or other factors;
             (b) If he is not represented by counsel, that he has a
             right to be so repre sented and that if he cannot afford
             counsel, counsel will be appointed;
             (c) That he has the right to plead not guilty, the right
             to be tried by a jury, the right to the assistance of
             counsel at trial, the right to confront and cross-
             exam ine witnes ses, and the right no t to incrimina te
             himse lf;

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              (d) That if he pleads guilty, that there will be no trial
              except to determine his sentence; and
              (e) Tha t if he plead s guilty, the co urt or the sta te
              may ask him questions about the offense to which he
              plead ed, an d that if h e ans wers u nder o ath his
              answers may later be used against him in a
              prosecution for false statement or perjury, and that
              prior convictions may be used to set the sentence.
              (f) The court shall not accept a plea of guilty without
              first, by addressing the defendant personally in open
              court, determining that the plea is voluntary and not
              the result of force of threats or of promises apart from
              a plea ag reeme nt. The c ourt sha ll also inquire as to
              whethe r the defe ndant’s w illingness to plead gu ilty
              results from prior discussions between the District
              Attorney Ge neral and the d efendant or h is attorney.

Id. at 341.

      The Mackey requirements have been adopted into Rule 11 of the

Tennessee Rules of Criminal Procedure. In State v. McClintock, 732 S.W.2d

268, 273 (Tenn. 1987), the Supreme Court of Tennessee pronounced the

additional requirement that the trial court make clear to the guilty-pleading

defendant that the resulting judgment of conviction may be used in a

subsequent proceeding to enhance the defendant’s punishment for

subse quent o ffenses. T hus, Boyk in, Mackey, McClintock, and Rule 11 of

Tennessee Rules of Criminal Procedure govern the validity of guilty plea

proceedings.



      As the Supreme Court of Tennessee noted in State v. Prince, 781

S.W.2d 846, 853 (Tenn. 1989), some of the mandated Mackey advice is not

required by Boyk in but repre sents a s uperviso ry pronou ncem ent of the c ourt.

The C ourt stated “any othe r requirem ent of Mackey in excess of Boyk in is not

based upon any constitutional provision, federal or state. It follows, that any

omissions, not required in Boyk in may b e relied upon on dire ct app eal in


                                         -4-
appropriate cases but such omissions have no validity on the first or any

subsequ ent post-conviction proceeding .” Id. at 853.



       From the transcript of the guilty plea proceeding, it is clear that the trial

judge went to exhaustive measures to ensure that Appellant’s plea was

voluntary. Addressing Appellant in open court, the trial judge informed

Appellant that he had the right to plead not guilty and that he had the right to a

trial by jur y, insistin g that th e State of Ten ness ee pro ve bey ond a reaso nable

doubt that he was guilty. The trial judge further informed Appellant of his right

to an attorney at trial, his right to confront and cross-examine the witnesses

against him, his right against self-incrimination, and the right to subpoena

witnesses to testify on his behalf. The trial judge inquired of Appellant whether

anyone had forced him to plead guilty. Appellant answered “no.” Appellant

indicated that he understood the rights he was waiving. It does appear that

the trial cou rt failed to ask Appella nt wheth er his willingn ess to ple ad guilty

resulted from discussions between he and the district attorney or his attorney

and th e distric t attorne y. How ever, th is is a su perviso ry, non -cons titutiona lly

based instruc tion required by Mackey, and relief m ay be give n in a pos t-

conviction hearing only if a conviction is void or voidable because of a violation

of a cons titutional right. See Tenn . Code Ann. § 4 0-30-20 3 (Sup p. 1996 );

Prince, 781 S.W .2d at 853 . There fore, this issu e has n o merit.



       Neither did Appellant’s alleged time pressures, lack of family input, or

coercion on the pa rt of couns el result in his guilty plea b eing involu ntary.

Appellant claims that he and his attorney barely discussed the guilty plea

offered by the State and that he was forced into accepting the plea minutes

                                             -5-
before the plea was entered. He also maintains that the trial court pressured

him an d his attorn ey to com e to a quic k decisio n beca use the judge w anted to

begin court promptly at 9:00 a.m. In fact, Appellant testified at the hearing on

the petition for post-conviction relief that he was told about the possibility of

plead ing gu ilty the Fr iday be fore the Mond ay he p led gu ilty. Durin g his

negotiations with the State which b egan on F riday and end ed on Su nday,

coun sel info rmed Appe llant of th e plea and th e stren gth of th e State ’s

evidence against Appellant. While it is true that the trial judge stated at the

hearin g that if h e had been aske d for m ore tim e Mon day m orning , he wo uld

not have gran ted it, such a reque st was never m ade and n o such pres sure

was e xerted by the c ourt. In a ddition , while A ppella nt com plains abou t his

lack of access to family input, his mo ther did visit him at jail the Sun day before

his plea was entered. Although his mother testified that they did not discuss

the plea at that time, they certainly had the opportunity to do so. After having

observed the trial and conviction of Appellant’s co-defendant brother, and

considering the even greater weight of evidence against Appellant, counsel

believed that it was in Appellant’s best interest to accept the plea offered by

the State. Counsel was entitled to use reasonable persuasion when making

his recom mend ation. State v. Parham, 885 S.W.2d 375, 384 (Tenn. Crim.

App. 1994 ).



       We conclude that Appellant’s plea was voluntarily, intelligently, and

knowingly entered and that the evidence produced by Appellant does not

preponde rate against the findin gs of the post-co nviction court. Acco rdingly,

the judgment of the post-conviction court is affirmed.




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                         ____________________________________
                         JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOHN H. PEAY, JUDGE


___________________________________
DAVID H. WELLES, JUDGE




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