             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE               FILED
                         JANUARY 1998 SESSION
                                                         February 2, 1999

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk


JORGE ARIEL SANJINES             )
                                 )      C.C.A. NO. 03C01-9706-CR-00229
      Appellant                  )
                                 )      HAMILTON COUNTY
v.                               )
                                 )      HONORABLE STEVEN BEVIL
STATE OF TENNESSEE               )
                                 )      (Post Conviction)
      Appellee.                  )
                                 )



For the Appellant:                      For the Appellee:

Robert N. Meeks                         John Knox Walkup
P.O. Box 8086                           Attorney General & Reporter
Chattanooga, TN. 37414
(on post-conviction)                    Sandy C. Patrick
                                        Assistant Attorney General
                                        2d Floor Cordell Hull Building
                                        425 Fifth Avenue North
                                        Nashville, TN. 37243-0943

                                        William H. Cox, III.
                                        District Attorney General

                                        Rebecca J. Stern
                                        Assistant District Attorney General
                                        Third Floor, Courts Building
                                        Chattanooga, TN. 37402




OPINION FILED:_______________________

AFFIRMED IN PART; REVERSED IN PART

WILLIAM M. BARKER, SPECIAL JUDGE
                                                       OPINION

         The appellant, Jorge Ariel Sanjines, appeals as of right from the Hamilton

County Criminal Court’s dismissal of his petition for post-conviction relief. He raises

the following issues for review:

         (1) Whether his trial counsel provided effective assistance in preparing his
         defense and in advising him to enter guilty pleas;

         (2) Whether the prosecution committed misconduct by withholding Brady
         evidence, interfering with defense counsels’ investigation, and charging
         appellant with two inchoate offenses, attempted murder and conspiracy to
         commit murder, for the same criminal objective against Ms. Sanjines;

         (3) Whether the appellant entered voluntary and knowing guilty pleas following
         the advice of counsel and the Rule 11 procedure;

         (4) Whether the appellant was afforded due process of law by the trial court’s
         denial of pre-trial bond, the trial court’s acceptance of appellant’s guilty pleas,
         and appellant’s absence from a hearing on a pre-trial motion for continuance;
         and

         (5) Whether the trial court lacked subject matter jurisdiction to accept
         appellant’s guilty pleas as a result of an indictment charging the
         appellant with both attempted murder and conspiracy to commit murder of Gina
         Sanjines.1

         The record reflects that the appellant did not raise prosecutorial misconduct

(Issue 2) or due process violations pertaining to the motion for a continuance (Issue 4)

in either his pro se or amended post-conviction petitions. The appellant has offered

no reason why those issues were omitted from his petitions, and we conclude that

they are waived. Tenn. Code Ann. § 40-30-206 (1995).

         After a careful review of the remaining issues, we find that the appellant was

improperly convicted of multiple inchoate offenses, attempted murder and conspiracy

to commit murder, for the criminal conduct against his ex-wife, Gina Sanjines. Tenn.

Code Ann. § 39-12-106(a) (Supp. 1994). Neither the defense nor the State

considered section 39-12-106(a) when they constructed the plea agreement in this

case. We conclude that the error was prejudicial and, accordingly, reverse the


         1
           This final c onte ntion was raise d in ap pellan t’s su pplem enta l brief o n app eal. T he ap pellan t did
not in clud e this issue in his p ost-c onvic tion p etition s. Ho weve r, an is sue of su bjec t ma tter ju risdic tion is
not waiva ble and w e will addres s it sua sp onte .

                                                             2
conviction of attempted murder. 2 The remaining convictions and sentences are

affirmed.

                                             BACKGROUND

        In 1995, the appellant pled guilty to the first degree murder of Virgil Schrag,

attempted first degree murder of Ms. Sanjines, and conspiracy to commit first degree

murder.3 The guilty pleas were supported by evidence that the appellant had hired

one Jeremy Ingram to kill Ms. Sanjines and her then boyfriend, Mr. Schrag. Beginning

in Summer 1992, the appellant planned the murders with Mr. Ingram and Amy

Marcum, both of whom were employees at appellant’s restaurant.4 Mr. Ingram carried

out the criminal plan in March 1994, by shooting both Ms. Sanjines and Mr. Schrag.

Ms. Sanjines survived the shooting with injuries; however, Mr. Schrag died almost

instantly from gunshot wounds.

        Pursuant to a plea agreement, the appellant was sentenced to life

imprisonment with the possibility of parole for first degree murder, twenty five (25)

years for attempted murder, and twenty five (25) years for conspiracy to commit

murder. The twenty five (25) year sentences for attempted murder and conspiracy

were ordered to run concurrently to each other and consecutively to the life sentence.

No direct appeal was taken from the trial court’s judgment.

        The appellant, thereafter, filed a pro se petition for post-conviction relief

challenging the validity of his guilty pleas and contending that his trial counsel were

ineffective in failing to adequately prepare his case and in coercing him to plead guilty.

Through a newly retained counsel, the appellant filed two amended post-conviction




        2
         The e vidence was su fficient to su pport bo th the con viction of atte mpte d mu rder and consp iracy.
W e hav e elec ted to reve rse th e con viction of atte mp ted m urde r to re me dy the error unde r Te nn. C ode
Ann. § 39-12-106(a) (Sup p. 1994).

        3
          The record reflects that the indictment included one count of conspiracy. Both victims, Ms.
Sanjine s and M r. Schra g, were inc luded in tha t count.

        4
         Both M r. Ingram and M s. Marc um w ere indicte d for their re spective involvem ent in the cr imes .
Pursu ant to plea a greem ents, they en tered gu ilty pleas and a greed to testify agains t the appe llant.

                                                       3
petitions raising the above grounds for relief and further alleging that the trial court did

not properly follow Rule 11 procedures at the guilty plea hearing.

        At the post-conviction hearing, counsel William Ortwein and John Morgan both

testified that they conducted appellant’s defense in a team effort with attorney Chris

Helton and investigator William Dipillo. The defense interviewed over thirty (30)

potential witnesses including Jeremy Ingram, Amy Marcum, and members of

appellant’s family. Mr. Dipillo and Mr. Morgan met with the appellant on a weekly

basis to discuss the continuing investigation and to review the evidence. The

investigation entailed interviewing potential witnesses for both the State and the

defense, reviewing the crime scene, and reviewing the prosecution’s entire file on

appellant’s case.

        Evidence against the appellant included statements and proposed testimony of

Amy Marcum and Jeremy Ingram, implicating the appellant as a primary conspirator in

the plot to kill Ms. Sanjines and Mr. Schrag. Both Ms. Marcum and Mr. Ingram

entered into plea agreements with the State and planned to testify against the

appellant. Other witnesses, including members of appellant’s family, were prepared to

testify that they had heard the appellant threaten to kill Ms. Sanjines and had heard

the appellant talk to Mr. Ingram by telephone.5

        Defense counsel were also confronted with evidence of appellant’s motive to

kill the victims. Prior to the shootings, the appellant and Ms. Sanjines had ended their

marriage and were engaged in a heated dispute over the custody of their children.

Appellant’s children made statements to counsel revealing that the appellant had

physically abused Ms. Sanjines in the past. Moreover, there was evidence that the

appellant was angry at Ms. Sanjines because of their custody dispute and because of




        5
           The appellant’s wireless telephone records indicated that he had made several long distance
telephone calls to Mr. Ingram near the time of the shooting. In addition, the appellant’s son, Nicholas
Sanjines, observed the appellant talk to Mr. Ingram by telephone on the day of the murder. Investigator
Dipillo interview ed Nich olas for the defens e.

                                                   4
her romance with Mr. Schrag. The appellant had stated that he should hire someone

to kill his wife.6

        Mr. Ortwein testified that the defense team discussed possible theories and

strategies to defend the appellant against the incriminating evidence. One proposed

theory was that Ms. Sanjines’ family in Washington, D.C. had hired someone to

commit the killings. The appellant raised that theory based upon his apparent belief

that Ms. Sanjines was terminally ill and that her family wanted to end her suffering.

Another proposed theory was that Ms. Marcum had orchestrated the entire murder

scheme because she was in love with the appellant and wanted Ms. Sanjines out of

his life. Mr. Ortwein testified that the appellant would not allow the defense to pursue

any theory that further implicated Ms. Marcum in the crimes.

        Both Mr. Ortwein and Mr. Morgan testified that the appellant was fully informed

and involved in the development of his case. The appellant participated in

discussions of the evidence and the possible strategies for dealing with the evidence.

However, he did not allow counsel to negotiate a plea agreement with the prosecution

until a few days before trial. Appellant’s counsel testified that they strongly

encouraged the appellant to plead guilty in light of the overwhelming evidence and the

State’s notice of intent to seek the death penalty.

        The appellant was also advised to enter into a plea agreement by John Oliva,

then attorney with the Capital Case Resource Center in Nashville. Mr. Oliva met with

the appellant by permission and informed him of the procedures and lifestyle of prison

inmates on death row. Mr. Oliva told the appellant that the chances of a death

sentence in his case were great because of the incriminating evidence and the

likelihood of a first degree murder conviction. The appellant indicated to Mr. Oliva that

he understood the risks, but remained committed to his plea of not guilty.



        6
          Kristine Kennedy, a potential witness for the prosecution, overheard the appellant say that he
should hire someone to kill his wife. Additionally, Mr. Dipillo interviewed a friend of the appellant who
stated tha t he and th e appe llant had disc ussed the idea of having the ir wives killed.

                                                     5
         Defense counsel met with the appellant approximately one week before the

scheduled date of trial to again advise him to plead guilty. The defense team had

interviewed co-conspirators Mr. Ingram and Ms. Marcus and had obtained other

evidence from their investigation. Mr. Ortwein testified that they discussed the

strengths and weaknesses of the case so that the appellant could make an informed

decision about pursuing a plea agreement. Counsels’ advice to the appellant was to

enter into an agreement and avoid a possible death sentence.

         The appellant testified at the evidentiary hearing that counsel coerced him into

pleading guilty because they were unprepared for trial. He stated that counsels’ lack

of preparation was reflected in a motion for a continuance filed shortly before the

scheduled date of trial. Both Mr. Ortwein and Mr. Morgan testified that they filed a

motion for a continuance in response to the surprise discovery of a tape recorded

conversation between the appellant and Ms. Marcum.7 Fearing that the tapes

contained incriminating evidence, counsel sought additional time to deal with the

newly discovered information.8 The motion was denied a few days before the

appellant agreed to plead guilty.

         The trial court accredited the testimony of appellant’s counsel and dismissed

the post-conviction petitions. The trial court reviewed the record from the guilty plea

hearings and found that the appellant was fully informed of his rights and the

consequences of entering guilty pleas. Moreover, the court found no evidence of

ineffective assistance of counsel and determined that, based upon appellant’s

education and position as a medical doctor, he completely understood the nature of

the criminal charges, the weight of the incriminating evidence against him, and his

rights associated with a jury trial.



         7
          Ms. Mar cum had s urep ticiou sly rec orde d her telep hon e con vers ation s with the a ppe llant w hile
the two were in police custody. The appellant’s conversations with Ms. Marcum were against the advice
of his coun sel.

         8
        Mr. Ortwein testified that the defense team had prepared its trial strategy and had subpoenaed
witnesses before the tape recordings were discovered.

                                                         6
                                            DISCUSSION

       The appellant first contends that his counsel were ineffective in failing to

prepare his defense. He argues that counsel were ineffective in their: (1) failure to

investigate evidence and prepare defense strategy; (2) failure to review Tenn. Code

Ann. § 39-12-106, dealing with multiple convictions of inchoate offenses; (3) failure to

file a motion to suppress tape recorded conversations; (4) failure to appeal the trial

court’s order denying pre-trial bond; and (5) failure to accurately inform appellant

about the nature and consequences of his guilty pleas.

       We conclude that counsel should have reviewed Tenn. Code Ann. § 39-12-106

and relied upon it in appellant’s defense. The appellant was prejudiced by this error,

and the conviction of attempted murder is reversed. The remaining claims of

ineffectiveness are without merit.

       To prevail on a claim of ineffective assistance of counsel in this proceeding, the

appellant must prove by clear and convincing evidence9 that the advice or services

provided by his counsel fell below the range of competence demanded of attorneys in

criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Furthermore, he

must demonstrate prejudice by proving that, but for counsels’ incompetence, he would

not have pled guilty and would have insisted upon going to trial. Hill v. Lockart, 474

U.S. 52, 59 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); Bankston v. State, 815

S.W.2d 213, 215 (Tenn. Crim. App. 1991), per. app. denied (Tenn. July 1, 1991).

       The appellant first argues that counsel were ineffective in failing to investigate

evidence and possible defense theories. He contends that counsel coerced him into

pleading guilty in part because they were not prepared for trial.

       The trial court reviewed the evidence and found nothing in counsels’

investigation or advice that fell below the level of competence demanded of attorneys

in criminal cases. That determination is conclusive on appeal and will not be



       9
           Tenn. Code A nn. § 40-30-210(f) (Supp. 1996).

                                                    7
overturned unless the evidence preponderates against the judgment. State v. Buford,

666 S.W.2d 473, 475 (Tenn. Crim. App. 1983). We conclude that the evidence

supports the trial court’s finding. Appellant’s counsel conducted a thorough

investigation of the case and informed the appellant about the overwhelming evidence

against him. With that evidence in mind, counsel competently advised the appellant

that a plea agreement was the best way to avoid a possible death sentence.

       The appellant next argues that his counsel were ineffective in failing to review

Tenn. Code Ann. § 39-12-106 (Supp. 1994), dealing with multiple convictions of

inchoate offenses. He argues that defense counsel should have challenged the

multiple count indictment under section 39-12-106(a), and prevented him from

pleading guilty to attempted murder and conspiracy.

       There was no basis for challenging the indictment in this case. Each count in

the indictment was supported by evidence sufficient for review by a trier of fact. If the

case had gone to trial, the State could have elected which of the two inchoate

offenses to present to the jury. 10 Therefore, counsels’ decision to focus on the

possible convictions and sentences, instead of contesting the indictment, was both

reasonable and competent.

        The appellant, however, is correct in stating that under Tenn. Code Ann. § 39-

12-106(a), he could not be convicted of both attempted murder and conspiracy for the

criminal conduct against Ms. Sanjines. The text of section 39-12-106(a) reads: “A

person may not be convicted of more than one (1) of the offenses of criminal attempt,

solicitation, or conspiracy for conduct designed to commit or to culminate in the

commission of the same offense.”

        The indictment in this case included three counts: (1) conspiracy to commit

murder of Mr. Schrag and Ms. Sanjines, (2) attempted murder of Ms. Sanjines, and (3)

first degree murder of Mr. Schrag. Appellant’s counsel testified at the evidentiary


       10
          In addition, the State could have removed Ms. Sanjines’ name from the conspiracy count and
procee ded on all three cou nts in the ind ictmen t.

                                                  8
hearing that they did not rely on Tenn. Code Ann. § 39-12-106 to contest the charges

against the appellant. Consequently, the appellant entered into a plea agreement that

included all three counts of the indictment.

       Counsel should have advised and defended the appellant under Tenn. Code

Ann. § 39-12-106(a). We acknowledge that counsels’ primary concern under the

great weight of incriminating evidence was to avoid the death penalty. In that respect,

counsel were effective and instrumental in saving appellant’s life. Nevertheless, the

plea agreement, as constructed by both the State and the defense, included a

conviction that ran afoul of our criminal law. Tenn. Code Ann. § 39-12-106(a) (Supp.

1994). The conviction of attempted murder is, therefore, reversed.

       The appellant next argues that counsel were ineffective in failing to file a motion

to suppress his tape recorded conversations with Ms. Marcum. The trial court

determined that appellant’s counsel made a tactical decision not to file a motion to

suppress after they examined the tape recordings and found them to be of limited

evidentiary value. Mr. Ortwein testified that no legal ground existed to support a

motion to suppress because Ms. Marcum had recorded the tapes at the request of her

attorney, without coercion or involvement from the State. Appellant’s counsel planned

to object to the relevancy of the tape recordings if the prosecution attempted to

introduce them at trial.

       Counsels’ decision not to file a motion to suppress must be reviewed with

deference and from counsels’ perspective at that time. Strickland v. Washington, 466

U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed. 674 (1984); Hellard v. State, 629

S.W.2d 4, 9 (Tenn. 1982). Every effort is made to avoid judging counsels’

performance from hindsight; however, we must ensure that the appellant was afforded

effective and competent assistance. Hellard, 629 S.W.2d at 9.

       The evidence shows that counsel examined the tape recordings and found no

basis or need to challenge them before trial. The recordings did not factor into

appellant’s decision to plead guilty and they were not used as evidence against him.

                                               9
Under those circumstances, we conclude that the defense strategy concerning the

tape recordings was not ineffective.11

        The appellant next argues that his counsel were ineffective in failing to appeal

the trial court’s order denying pre-trial bond. He contends that the trial court’s order

discriminated against his national origin and should have been challenged by an

interlocutory appeal.

        The trial court denied pre-trial bond in this case based upon: (1) the court’s

finding that the appellant was at high risk to flee to his home country of Bolivia; and (2)

the State’s notice of intent to seek the death penalty upon a conviction of first degree

murder. Appellant’s counsel found no basis to challenge that discretionary ruling, and

chose to spend their time preparing a defense to the criminal charges. W e give

deference to counsels’ tactical decision and find no ineffectiveness. See Hellard 629

S.W.2d at 9.

        The appellant also argues that his counsel were ineffective in failing to

accurately inform him about the nature and consequences of his guilty pleas. He

contends that counsel gave him false information about the plea negotiations and the

plea agreement.

        The evidence shows that appellant’s counsel met with him on several

occasions to discuss the ongoing plea negotiations. The appellant testified on his own

behalf that counsel reviewed with him various plea options, including a possible Alford

plea.12 According to the appellant, he authorized his counsel to negotiate an

agreement in which he would enter an Alford plea and avoid a possible death penalty.




        11
            The record reflects that appellant’s counsel filed a motion in limine to suppress a tape
recorded conversation between the appellant and Mr. Ingram. The basis for that motion and the trial
court’s ru ling were n ot included in the reco rd.

        12
           A defendant may enter a guilty plea and still protest his or her innocence if, within the
discretion of the trial court, the plea is in the defendant’s best interest. This plea is recognized as an
Alford plea. See North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 167, 27 L.Ed.2d 162 (19 70);
Dortch v. State, 705 S.W .2d 687, 6 89 (Te nn. Crim . App. 198 5).

                                                     10
The appellant testified that he believed he was entering an Alford plea even though

the trial court never discussed such a plea with him at the Rule 11 hearing.

       Appellant’s counsel testified that although they discussed the possibility of an

Alford plea with the appellant, they did not pursue that option during the negotiations.

The evidence is unclear whether counsel proposed an Alford plea to the prosecution.

However, the District Attorney testified at the evidentiary hearing that the prosecution

would have rejected any proposed Alford plea in appellant’s case.

       Counsel testified that during the negotiations they were most concerned with

the degree of punishment and the length of prison sentence. Once an agreement was

reached, counsel reviewed the plea papers and the Rule 11 procedure with the

appellant. Counsel testified that they never told the appellant that the agreement

included an Alford plea. The appellant signed the plea papers and did not question

whether he was entering an Alford plea. He pled guilty to all three counts without any

mention or protest of innocence.

       The trial court accredited the testimony of appellant’s counsel and found that

counsel provided effective assistance during the plea negotiations. We affirm that

finding. State v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983). The

evidence shows that the appellant had various opportunities to question the plea

agreement both during meetings with his counsel and during the plea hearing. The

appellant did not question his guilty plea, but instead signed the plea papers after

counsel informed him of the agreement and the Rule 11 procedure.

       Defense counsel testified that during the negotiation process, appellant’s

primary concerns were the length of his sentence, the acceptance of his family, and

visitation privileges for his children. Under the weight of the incriminating evidence,

counsel performed reasonably in protecting the appellant’s interests and in avoiding a

possible death sentence. The appellant has failed to prove that his counsel were

ineffective in that respect. Moreover, there has been no sufficient showing of

prejudice.

                                           11
                                                      II.

       The appellant next contends that his guilty pleas were not entered voluntarily

and knowingly. He argues that defense counsel coerced him into pleading guilty, and

that the trial court failed to comply with Rule 11 of the Tennessee Rules of Criminal

Procedure.

       The due process clause of the federal constitution requires that guilty pleas be

knowing and voluntary. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712,

23 L.Ed. 274 (1969); Johnson v. State, 834 S.W.2d 922, 923 (Tenn. 1992). A

defendant enters a knowing and voluntary plea when he or she understands the rights

and circumstances involved and nevertheless chooses to waive or relinquish those

rights. State v. Mackey, 553 S.W.2d 337, 340 (Tenn. 1977). There must be an

affirmative showing in the record that the defendant understood his or her rights and

voluntarily waived those rights by pleading guilty. Id. at 340-42.

       Aside from the error under Tenn. Code Ann. § 39-12-106(a), the record shows

that the appellant voluntarily and knowingly entered the plea agreement with the State.

The appellant was fully informed about the charges of first degree murder, attempted

murder, and conspiracy to commit first degree murder. He admitted at the evidentiary

hearing that he read the indictment and signed the necessary papers before the guilty

plea hearing.

       At the plea hearing, the trial court followed the guidelines under Rule 11 of the

Tennessee Rules of Criminal Procedure.13 The prosecution first provided a factual

basis to support appellant’s guilty pleas. Both the prosecution and the defense

stipulated that had the case gone to trial, the evidence would have shown that the

appellant paid Mr. Ingram $10,000 dollars to kill Ms. Sanjines and Mr. Schrag. The

prosecution had evidence that appellant began devising a criminal plan to kill the

victims in 1992, after he and Ms. Sanjines divorced. With the assistance of Ms.



       13
            The record contains a verbatim transcript of appellant’s guilty plea hearing.

                                                      12
Marcum and Mr. Ingram, the appellant invoked the plan that resulted in the murder of

Mr. Schrag and the injuries to Ms. Sanjines.

       The trial court provided the required litany of information to the appellant,

including the nature and the elements of the criminal charges, the State’s burden of

proof on each charge, the possible sentences for each charge, the privilege against

self incrimination, the right to a trial by jury, and the right to confront his accusers. The

appellant responded that he understood the criminal charges and his rights associated

with a jury trial. He further stated that his counsel did everything they could have done

to prepare his defense. Counsel explained to the appellant the evidence, the

indictment, the plea procedures, and his constitutional rights. The appellant informed

the trial court that he was of sound mind and that he had no questions or problems

with the plea procedure.

       The trial court reviewed the guilty plea hearing and determined that the

appellant was well-educated and capable of understanding his rights, the nature of the

procedures, and the consequences of entering guilty pleas. We affirm that finding.

       The record shows that the appellant voluntarily entered a plea agreement to

avoid the death penalty and to acquire the best possible sentence under the weight of

the incriminating evidence. The plea agreement was an all-inclusive deal that

mistakenly included an unlawful conviction under Tenn. Code Ann. § 39-12-106(a).

Having addressed that error, we conclude that the plea agreement is otherwise valid.

The appellant has failed to prove by clear and convincing evidence that his guilty

pleas were unknowing and involuntary.

                                             III.

       The appellant next contends that under Tenn. Code Ann. § 39-12-106(a)

(Supp. 1994), he was improperly indicted on attempted murder and conspiracy to

commit murder, relating to Ms. Sanjines. He argues that the invalid indictment

deprived the trial court of subject matter jurisdiction to accept his guilty pleas.



                                             13
       This issue is without merit.

       The record shows that the appellant did not challenge the indictment in his pro

se or amended post-conviction petitions. He raised this issue for the first time during

the evidentiary hearing and in his appeal to this Court. Nevertheless, in addressing

this issue on its merits, we conclude that the indictment was valid. As previously

addressed, Tenn. Code Ann. § 39-12-106(a) does not preclude a defendant from

being indicted on multiple inchoate offenses for the same criminal conduct.

       We otherwise find no basis for challenging the indictment in this case. Each

count in the indictment was supported by evidence sufficient to present the case to the

trier of fact. Under that indictment, the trial court had subject matter jurisdiction both

to hear the case and to accept appellant’s guilty pleas.

                                        CONCLUSION

       Having reviewed the evidence and the plea agreement, we conclude that the

plea agreement was a package deal that saved the appellant from a possible death

sentence. Defense counsel were effective in investigating the evidence and in

advising the appellant to plead guilty. Nevertheless, the plea agreement contains an

unlawful conviction that must be redressed to comport with our criminal law. Tenn.

Code Ann. § 39-12-106(a) (Supp. 1994). We, therefore, reverse the conviction of

attempted murder. The remaining convictions of first degree murder and conspiracy

to commit first degree murder, and the effective sentence of life imprisonment plus

twenty five (25) years, are affirmed.



                                           __________________________________
                                           WILLIAM M. BARKER, SPECIAL JUDGE

CONCUR:

______________________________
GARY R. WADE, Presiding Judge

______________________________
JOSEPH M. TIPTON, JUDGE


                                            14
