          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE         FILED
                         OCTOBER 1998 SESSION
                                                  December 18, 1998

                                                  Cecil W. Crowson
                                                 Appellate Court Clerk
CHAUNCEY R. GORDON,               )
                                  )     No. 01C01-9710-CC-00483
      Appellant,                  )
                                  )     Giles County
v.                                )
                                  )     Hon. Robert L. Jones, Judge
STATE OF TENNESSEE,               )
                                  )
      Appellee.                   )     (Post-Conviction)



For the Appellant:                      For the Appellee:

Joseph W. Henry, Jr.                    John Knox Walkup
119 South First Street                  Attorney General and Reporter
Pulaski, TN 38478-0458                         and
                                        Karen M. Yacuzzo
                                        Assistant Attorney General
                                        Cordell Hull Building, 2nd Floor
                                        425 Fifth Avenue North
                                        Nashville, TN 37243-0493

                                        T. Michael Bottoms
                                        District Attorney General
                                                and
                                        Richard H. Dunavant
                                        Assistant District Attorney
                                        General
                                        Giles County Courthouse
                                        P.O. Box 304
                                        Pulaski, TN 38478-0304




OPINION FILED:



AFFIRMED


Joseph M. Tipton
Judge
                                   OPINION



              The petitioner appeals the denial of his petition for post-conviction relief.

On January 2, 1991, the petitioner pled guilty to one count of first degree murder and

one count of second degree murder. He received an agreed sentence of life plus

twenty-five years, respectively. The petitioner now attacks the validity of that guilty

plea, arguing that the plea was not voluntarily, knowingly, and understandingly made.

Upon a complete review of the record, we conclude that the evidence does not

preponderate against the trial court’s findings. Thus, we affirm the dismissal of the

petition.



                                          FACTS

              In October 1989, the petitioner shot and killed his girlfriend and her

mother. A Giles County Grand Jury indicted him on two counts of first degree murder.

The district attorney’s office sought the death penalty. Through extensive negotiations,

the petitioner’s appointed counsel secured a plea agreement that allowed the petitioner

to plead guilty to one count of first degree murder and one count of second degree

murder. The petitioner received a life sentence and twenty-five years, respectively, to

run consecutively.



                                 A. Guilty Plea Hearing

              At the guilty plea hearing, the trial court addressed numerous questions to

the petitioner to ascertain whether he understood the nature of the proceedings and the

waiver of his rights. The petitioner indicated that he did understand and that the plea

was voluntary. He also expressed satisfaction with his counsel’s representation.



              When the petitioner denied remembering the details of the crime itself due

to intoxication, the trial court inquired further into the circumstances surrounding the

plea. The trial court’s inquiry revealed that counsel had discussed and investigated the




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possibility of an intoxication defense for the petitioner. Counsel’s investigation showed

that the witnesses’ testimony would controvert such a defense, not support it.



                  The trial court then confirmed that counsel had explained these things to

the petitioner and that he still wished to enter the plea. The petitioner indicated that he

did want to enter the plea. Thus, the trial court approved the agreement and the plea

was entered.



                                        B. Post-Conviction Hearing

                  At the post-conviction hearing, the trial court heard testimony from the

petitioner’s appointed counsel at the trial level and the petitioner himself. The trial court

also received the deposition testimony of Rudy Rains, the petitioner’s Adult Basic

Education teacher, and Dr. Edward Bloser, a prison psychologist. The trial court filed a

written order of denial that included specific findings relating to each of the petitioner’s

averments.



                                                1. Trial Counsel

                  The petitioner’s trial attorney acknowledged little independent recollection

of his discussions with the petitioner leading up to the plea.1 However, his testimony

indicated appropriate preparation for a case of this magnitude.



                  There were extensive negotiations with the district attorney’s office in

reaching the plea agreement. He recalled several meetings with the petitioner, the

petitioner’s father, and other people associated with the petitioner’s family. He also

remembered discussions with the petitioner about the death penalty aggravators, their

possible applicability, and the ramifications of proceeding to trial versus accepting a

plea agreement.




         1
         Tes timo ny rev ealed that th e atto rney’s origin al cas e file h ad be en los t, and mo st like ly
destroyed, due to the collapse of an office building in which he was practicing.

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              The attorney recalled investigating the possibility of an intoxication

defense. The investigation revealed that the witnesses, including two Tennessee

Highway Patrol Officers and an eyewitness to one of the shootings, did not see

anything to indicate that the petitioner was significantly impaired.



              The attorney testified that he felt the petitioner understood the guilty plea

proceedings. He said that if he had any reservations about the petitioner’s ability to

understand, he would have asked the trial court to be more specific, go into more detail,

and use non-legal terminology.



                                      2. Rudy Rains

              Rudy Rains, the petitioner’s Adult Basic Education teacher, testified by

deposition regarding the petitioner’s current academic abilities and intellectual

capabilities in a classroom setting. Mr. Rains characterized the petitioner as “pretty

smart” with “lots of common sense” compared to other inmates. It was his opinion that

the petitioner suffered from a learning disability in reading and reading comprehension.

However, Mr. Rains believed that if someone read the plea document to the petitioner,

he could understand it.



                                  3. Dr. Edward Bloser

              Dr. Bloser, a psychologist at the prison, testified by deposition that his

department evaluated the petitioner at the request of the educational staff. He said that

the type of evaluation requested is performed in cases of suspected limited intellectual

capacity. The results showed a below third-grade spelling ability, a sixth-grade math

ability, and overall comprehension and reading skills at a fourth-grade level. The

petitioner had a full-scale IQ score of fifty-eight. This placed him in the mildly mentally

retarded range. However, Dr. Bloser expressed deep reservations about relying on IQ

tests and characterized them as very inaccurate.




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               Although the IQ test result placed the petitioner at a level of mild mental

retardation and his comprehension level tested fairly low, Dr. Bloser did not believe that

the petitioner was mildly mentally retarded. He said that the petitioner’s IQ was higher

than the average inmate, and his ability to comprehend was at least the same as the

average inmate.



                                      4. Chauncey Gordon

                The petitioner testified that he did not understand that he was originally

charged with two counts of first degree murder and did not understand what he was

doing when he pled guilty. He testified that his attorney knew he could not read and

that the attorney read the documents to him. He said that although he did not

understand the attorney’s explanations of the documents, he signed them anyway.



                The petitioner testified that he did not understand most of what the judge

said to him at the plea hearing. He said that he did not understand the judge’s

explanation of the intoxication defense. He said that he agreed with everything that

was said to him because “[i]t’s embarrassing to sit in front of a lot of people and to say .

. . ‘I can’t read’ or . . . ‘I don’t understand this.’”



                The petitioner acknowledged that he answered the questions at the guilty

plea hearing without being prompted by his attorney. He conceded that he received

advice from a fellow inmate who convinced him that if he had gone to trial, he might not

have been convicted of first degree murder.



                              5. Post-Conviction Order of Denial

                The trial court found the petition to be without merit. Specifically, it found

that the petitioner’s responses at the guilty plea hearing and the entire record indicate

that the petitioner “understood the nature of the charges against him and all of his rights

at the time the plea was entered.” The trial court noted that the petitioner’s testimony at

the post-conviction hearing was self-serving and not credible compared to his



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statements at the guilty plea hearing. The trial court noted that neither Mr. Rains nor

Dr. Bloser would characterize the petitioner as mildly mentally retarded. The trial court

further noted that according to their testimony, the petitioner could understand what

someone else read to him and would have understood questions asked by the court.

The trial court concluded that the guilty plea was knowingly and voluntarily entered.



                                  STANDARD OF REVIEW

                      The trial court's findings of fact on post-conviction hearings are

conclusive on appeal unless the evidence preponderates otherwise. Butler v. State,

789 S.W.2d 898, 899 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 341 (Tenn. Crim.

App. 1995). The burden of establishing that the evidence preponderates otherwise is

on the petitioner. Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); Black v. State,

794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). This court may not reweigh or

reevaluate the evidence, nor substitute its inferences for those drawn by the trial court.

Henley v. State, 960 S.W.2d at 579; Massey v. State, 929 S.W.2d 399, 403 (Tenn.

Crim. App. 1996); Black v. State, 794 S.W.2d at 755. Questions concerning the

credibility of witnesses and the weight and value to be given to their testimony are

resolved by the trial court, not this court. Henley, 960 S.W.2d at 579; Black, 794

S.W.2d at 755.



                                       CONCLUSION

              This court has examined the entire record of this case including the

transcript of the guilty plea hearing, the post-conviction hearing transcript, and the trial

court’s order of denial. The evidence does not preponderate against the findings made

by the trial court in its thorough order of denial.



              In consideration of the foregoing and the record as a whole, we affirm the

judgment of the trial court.




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                                      _________________________
                                      Joseph M. Tipton, Judge


CONCUR:




_________________________
Joe G. Riley, Judge




_________________________
James Curwood W itt, Jr., Judge




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