            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                FILED
                                AT KNOXVILLE
                                                              January 18, 2000

                          NOVEMBER SESSION, 1999             Cecil Crowson, Jr.
                                                            Appellate Court Clerk



BRETT RAE,                          *
                                    *     C.C.A. No. 03C01-9901-CC-00029
      Appellant,                    *
                                    *     SEVIER COUNTY
vs.                                 *
                                    *     Hon. Rex H. Ogle, Judge
STATE OF TENNESSEE,                 *
                                    *     (Post-Conviction)
      Appellee.                     *


For the Appellant:                  For the Appellee:

Melinda Meador                      Paul G. Summers
Bass, Berry & Sims PLC              Attorney General and Reporter
900 S. Gay Street, Suite 1700
Knoxville, TN 37902                 Ellen H. Pollack
                                    Assistant Attorney General
                                    Criminal Justice Division
                                    425 Fifth Avenue North
                                    2d Floor, Cordell Hull Building
                                    Nashville, TN 37243-0493

                                    Alfred C. Schmutzer, Jr.
                                    District Attorney General

                                    Charles Atchley, Jr.
                                    Asst. District Attorney General
                                    Sevierville, TN 37862




OPINION FILED:

AFFIRMED

David G. Hayes, Judge
                                               OPINION



        The appellant, Brett Rae, appeals the trial court’s denial of his petition for

post-conviction relief. In November 1994, the appellant and a co-defendant were

charged with premeditated first degree murder. Following a jury trial in the Criminal

Court of Sevier County, the appellant was found guilty of the indicted offense.

Immediately prior to the jury fixing his punishment,1 the appellant, pursuant to a

negotiated agreement, pled guilty to first degree murder in exchange for a sentence

of life with the possibility of parole. The appellant, proceeding pro se, subsequently

filed a petition for post-conviction relief, alleging, inter alia, ineffective assistance of

trial counsel. The petition was amended following appointment of counsel. The trial

court denied the relief sought and this appeal follows.



        After review of the record, we affirm.



                                             Background



        On November 6, 1994, park rangers discovered a jeep on the slope of an

embankment off Highway 441 inside the Great Smoky Mountains National Park.

The jeep was lodged against a tree approximately 100 feet from the highway. Inside

the jeep the rangers observed the body of the deceased, Kelly J. Lovera. The victim

was lying in the back floorboard in a pool of blood. It was immediately apparent,

based upon the extensive nature and location of the injuries and the position of the

body in the jeep, that death was not attributable to the jeep’s impact with the tree.

An investigation ensued, resulting in the arrest of the appellant and his lover,

Shayne Lovera, the wife of the victim.




        1
           The State did not seek the death penalty; however, it did give notice to the appellant of
its intent to seek life without parole.

                                                  2
       Proof at trial established that the victim was bludgeoned to death in his

apartment, his body was placed in the jeep and then driven into the National Park by

the appellant, where the vehicle was pushed off the highway. Shortly after the

murder, the appellant confided to two of his friends that he had “. . . put [the victim]

over a hundred foot embankment.” In addition to the volunteered statements

discussing his involvement in the murder, he also discussed with his two friends his

relationship with the victim’s wife, his previous unsuccessful attempt to kill the victim,

and various other plots which he had devised to kill Lovera. Additionally, physical

evidence found at the victim’s apartment and in the National Park connected the

appellant to the crime.



       The appellant and his co-defendant were tried jointly. A jury found both guilty

of first degree murder. Prior to the sentencing hearing, the appellant negotiated an

agreement with the State which provided that, in exchange for a guilty plea to first

degree murder, he would receive the minimum sentence of life with the possibility of

parole. As part of the plea agreement, the appellant waived his right to file either a

direct appeal or a collateral post-conviction attack of his conviction.



       On March 10, 1997, the appellant filed the instant petition for post-conviction

relief. The petition may be summarized as alleging (1) trial counsel was ineffective

for encouraging appellant to accept the State’s offer of life with the possibility of

parole, failing to prepare for mitigating circumstances at the sentencing phase of the

trial, failing to properly conduct a pre-trial investigation, failing to adequately consult

with the appellant during critical stages of the proceedings, and failing to advise the

appellant of his rights to direct appeal and collateral attack of his conviction; (2)

deficient performance of counsel at trial; (3) his guilty plea was coerced and

involuntary; and (4) that his conviction is void as violating the protection against




                                           3
double jeopardy. 2



        A hearing was held on the petition on December 18, 1998. The appellant

provided testimony that, on the morning after the guilty verdict had been returned,

counsel approached him with information that “there was a plea made available . . .

to plead guilty to First Degree Murder and accept this sentence of life with a

possibility of parole.” Counsel informed him that in order to accept this plea, he

would have to agree “that part of the plea would be waiving my appeal.” The

appellant conceded that, before accepting his plea, the trial court had “extensively . .

. [gone] into the appeal process.” He also conceded that he admitted his guilt at the

guilty plea hearing and that he stated that his “attorneys did the best they could do.”

However, the appellant explained that he made these admissions only because his

attorneys instructed him to do so. Moreover, although he agreed that he believed

himself to be guilty of first degree murder at the time of his plea, he now retracts that

admission. Additionally, the appellant testified that he agreed to the plea offer

because his co-defendant “asked [him] to take it and [he] said okay, well, let’s do it.”

On re-direct examination, the appellant stated that his attorneys never “discussed”

any possible defenses with them. He also stated that counsel only consulted with

him a “few” times prior to trial.



        Robert Ritchie, a Knoxville attorney, testified that he was retained by the

appellant’s father to represent the appellant immediately following his arrest on the

murder charge. Richie’s representation extended over a period of two to three

months. Ritchie testified that he met with the appellant and initiated an investigation

which included obtaining voluntary discovery from the District Attorney General’s

Office. Ritchie admitted that, considering the circumstances of this case, it became


        2
            Inclu ded within the o rigina l pro se petition and two subsequent am endmen ts are
numerous claims of error, including but not limited to (1) prosecutorial misconduct; (2) being
shackled before the jury; (3) trial counsel “handed” the State their case; (4) unconsitutional jury
instructions, including range of punishment; (5) counsel’s failure to move to exclude evidence at
trial; (6) counsel’s failure to adequately voir dire the jury; (7) counsel’s failure to present evidence
in defense of appellant; and (8) counsel’s breach of attorney-client privilege.

                                                    4
evident “that there was not a defense based upon many of the defenses that

become apparent in a homicide case.” He particularly noted that the appellant was

“obsessed” with his co-defendant and that the relationship had totally dominated the

appellant’s life. In early January, Ritchie was informed that other counsel, Robert

Ogle, had been retained to represent the appellant.



       Alan Feltes, a Sevier County attorney, testified that he was appointed to

represent the appellant “about two months before the actual trial date.” During a

portion of this period, both Feltes and Ogle jointly represented the appellant. He

related that he met at least twice a week with the appellant not including telephone

conversations. Feltes testified that he discussed with the appellant the potential

punishment that he faced if he was found guilty. Through his conversations with the

appellant, Feltes learned that the appellant “didn’t want to present an actual

defense” because he did not want to “hurt” his co-defendant’s case.

Notwithstanding the appellant’s position, Feltes was of the opinion that no defense

could rationally be presented on behalf of the appellant, based upon the

overwhelmingly incriminating evidence possessed by the State.



       Feltes explained that, the morning after the verdict was returned, he was

approached by co-defendant’s counsel concerning the possibility of a plea

arrangement. Co-defendant’s counsel advised Feltes that Ms. Lovera was prepared

to enter a plea of guilty, waiving her right to a direct appeal and post-conviction relief

in exchange for a life sentence. Co-defendant’s counsel added that the plea could

not be accepted by the co-defendant unless “it was a package deal with [the

appellant.]” Feltes conveyed this offer to the appellant. In doing so, Feltes informed

the appellant that there was a good possibility that the appellant would receive a

sentence of life without the possibility of parole. He also explained that the plea

would guarantee the appellant a life sentence “which . . .at the time . . . was

somewhere around twenty-five years.” Counsel also believed that there was not


                                          5
“any major error in the trial that would have . . . warranted any kind of reversal.” The

appellant agreed to accept the plea offer. Feltes did advise the appellant that “[he]

didn’t think [the appellant] could waive his post-conviction rights.” Rather, he

advised him to “go through the motions like we’re going to do that as part of this

deal.” Mr. Feltes opined that “in the course of representing [the appellant] [he]

never had any problem with him being coherent and understanding.”



       After considering the testimony presented at the evidentiary hearing and the

transcript of the guilty plea hearing, the trial court entered its findings of fact and

conclusions of law on the record:

       . . . I’ve already ruled that it was not double jeopardy. . . .
       . . . I asked Mr. Rae those statements about the . . . Plea Agreement . .
       . and he acknowledged making those and he said that’s the way he felt
       that day. That testimony is very consistent with the testimony of Mr.
       Alan Feltes, that he was told not to do anything to hurt Mrs. Lovera. It
       was obvious throughout the trial of this case that was sort of the plan. .
       . . [H]e had to talk to her, they had to have some private time together
       before they accepted the plea agreement that was offered by the
       State.

       . . .There was no evidence in this record that Mr. Rae suffered from
       any mental disease or defect that would have kept him from
       understanding the nature of the charges against him, from being able
       to exercise his own free will.

       [T]he Court feels like that the evidence is totally and completely
       overwhelming that Mr. Rae knew what he was doing on the day that he
       entered the plea and accepted the sentencing agreement.
       ...

       In order to set aside everything that’s been done here the Court would
       have to find prejudice on your part. Well, if you instructed your
       attorney to put on no defense that would affect Mrs. Lovera and if the
       State had all of this evidence against you then I don’t see any
       prejudice from anything that took place in this trial and certainly, and
       certainly the plea agreement and the sentencing agreement. I mean I
       don’t know what more I could have done except tattooed it on your
       head. Certainly you had been advised and advised as to what you
       were doing and you sat right here this morning and said you knew that.
       ...



       [F]rom the totality of the circumstances the Court is satisfied that the
       Petition for Post-Conviction Relief should be denied and is hereby so
       ordered.



                                           6
                                                    Analysis



                       I. Waiver of Right to Post-Conviction Remedies

         Under the terms of the plea agreement, the appellant agreed to waive his

right to both a direct appeal of his conviction and his right to pursue post-conviction

remedies. Obviously from the posture of this case, this waiver provision was not

enforced against the defendant as he did seek post-conviction relief. Thus, the

initial inquiry before this court is whether this proceeding was properly entertained by

the trial court and, subsequently, whether this cause is properly before this court.

After consideration of constitutional principles, we conclude that this case is properly

before this court.



         Although a criminal defendant may waive the right to a direct appeal as part

of a plea agreement,3 we conclude today that a defendant may not waive his or her

right to post-conviction remedies as part of a plea agreement. But see State v.

John Joseph Villaneuva, C.C.A. No. 93 (Tenn. Crim. App. at Knoxville, May 30,

1991), perm. to appeal denied, (Tenn. Jan. 6, 1992) (upholding waiver of right to

raise ineffective assistance of counsel claim in post-conviction proceeding). Post-

conviction proceedings are significantly different from a direct appeal. Unlike a

direct appeal, a post-conviction proceeding provides a means of collaterally

attacking the constitutional validity of a conviction. See generally Tenn. Code Ann.

§ 40-30-203 (1997). And, although, generally, a guilty plea entered on the

competent advice of counsel will be held to waive the majority of the fundamental




         3
            Plea bargains are contractual in nature and therefore, the “negotiated plea represents a
bargained for quid pro quo.” See Unite d Sta tes v. Esc am illa, 975 F.2d 568, 571 (9 th Cir. 1992 ).
Thu s, a p rovis ion in th e plea agre em ent w aiving the d efen dan t’s righ t to pu rsue a dire ct ap pea l is
a barga ined for ele men t of the agr eem ent. See United States v. Gonzalez, 981 F.2d 1037 (9 th Cir.
1992). T his provisio n is enfor ceable a s long as the waive r is know ing and vo luntary. See State
v. McKissack, 917 S.W .2d 714, 715 (Tenn. Crim . App. 1995) (footnote omitted). See, e.g., United
State s v. M arin , 961 F.2d 493, 496 (4 th Cir. 1992 ); United States v. Bolinger, 940 F.2d 478, 480
(9 th Cir. 1991).

                                                       7
protections afforded by the Constitution,4 a guilty plea cannot waive jurisdictional

defects. Additionally, a guilty plea cannot waive those constitutional challenges to

the resulting conviction if the plea itself was not knowingly and voluntarily entered

upon competent advice of counsel. If post-conviction remedies could be waived, a

defendant would be precluded from challenging an involuntary guilty plea or one

entered upon the ineffective assistance of counsel. It would be unconscionable and

against the public policy of this state to insulate a conviction from such challenges.

Notwithstanding, this court will not vacate a conviction due to an invalid waiver

provision where the guilty plea is voluntary in all other aspects and the invalid

provision did not prevent the appellant from seeking relief. However, we do hold

that the portion of the judgment in the case sub judice waiving the appellant’s right

to make application for post-conviction relief is void and unenforceable. See, e.g.,

Majors v. State, 568 N.E.2d 1065, 1067-1068 (Ind. Ct. Ap. 1991); Hood v. State,

890 P.2d 797, 798 (Nev. 1995). Cf. United States v. Astacio, 14 F. Supp.2d 816,

818-819 (E.D. Va. 1998) (holding, even where a defendant has waived his statutory

right to bring a § 2255 motion, he may nonetheless raise claims of ineffective

assistance of counsel and the voluntariness of the guilty plea) (citing United States

v. Wilkes, 20 F.3d 651, 652- 653 (5 th Cir. 1994); United States v. Pruitt, 32 F.3d 431,

432-433 (9th Cir. 1994); United States v. Abarca, 985 F.2d 1012, 1014 (9 th Cir. ),

cert. denied, 508 U.S. 979, 113 S.Ct. 2980 (1993)).




                                           II. Effect of Guilty Plea

         Preliminary to our review of the voluntariness of the guilty plea, we first

address the appellant’s argument that his conviction violates the protections against

double jeopardy because he entered a guilty plea after the jury found him guilty of

the same offense. The Fifth Amendment to the United States Constitution and

         4
          A guilty plea made voluntarily, understandingly, and knowingly effectively constitutes a
waive r of th e con stitutio nal rig hts a gains t com puls ory se lf-inc rim inatio n, the right to conf ront o ne’s
accusers, and the right to trial by jury, and, except under limited exceptions, the right to direct
appea l. See gene rally Tenn. R. Crim . P. 11(c); 37(b)(2).

                                                          8
Article 1, Section 10 of the Tennessee Constitution protect one accused of a crime

(1) against a second prosecution after an acquittal; (2) against a second prosecution

after conviction; and (3) against multiple punishments for the same offense. State v.

Denton, 938 S.W.2d 373, 378 (Tenn. 1996). Double jeopardy becomes a factor only

when the defendant faces retrial or multiple punishments for the same crime.

Accordingly, the appellant’s argument based on the constitutional protection against

double jeopardy is without merit.



        There are no limitations under the Tennessee Constitution, Criminal Code,

Tennessee Rules of Criminal Procedure or Rules of Court which would per se

prohibit the entry of a guilty plea after a jury verdict had been returned.5 A guilty

plea is in itself a conviction and is conclusive as to the defendant’s guilt. Thus, in

the circumstance before this court, we construe the appellant’s subsequent entry of

a guilty plea to effectively set aside the jury verdict of first degree premeditated

murder. Cf. Haskins v. Commonwealth, 500 S.W.2d 407, 4308, 409 (Ky. App.

1973). But see Dave v. Commonwealth, 467 S.E.2d 287, 289 (Va. Ct. App. 1996)

(entry of guilty plea after jury verdict is moot). The effect of the guilty plea is to

nullify, for all practical purposes, the guilt phase of the proceeding. Thus, when

examining the appellant’s conviction for constitutional infirmities, the reviewing court



places him in the same posture as if he had not proceeded to trial but only entered a

guilty plea.



                                    III. Post-Conviction Claims



        Based upon our ruling that the appellant’s conviction for first degree murder


        5
            The provision in Rule 11 requiring notice to the court of the existences of a plea
agreement prior to trial is not a bar to entering a guilty plea after the verdict but rather, “subsection
(e)(5 ) . . . per mits the tria l judg e to im pos e rea son able p retria l time limits on th e cou rt’s
consideration of plea agreements, a practice which will allow maximum efficiency in the docketing
of cases proceed ing to trial on pleas of not guilty.” See Advisory Comm ission Comments, Tenn.
R. Crim. P. 11.

                                                   9
stems from his plea of guilty to that offense rather than from a jury verdict, our

review is limited to the voluntary nature of the plea and the ineffective assistance of

counsel regarding the plea. In his petition, the appellant alleges that his guilty plea

was involuntarily and unknowingly entered, that trial counsel was ineffective in

negotiating a plea arrangement that foreclosed a direct appeal and post-conviction

review, that counsel failed to consult with the appellant at critical stages of the

proceedings, that counsel failed to raise the issue of appellant’s competency, that

counsel failed to properly conduct a pre-trial investigation and that counsel was

deficient in his performance at trial and in preparation for the sentencing hearing.



       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. See North Carolina v. Alford, 400 U.S. 25, 31, 91

S.Ct. 160, 164 (1970).



       In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366 (1985), the United States

Supreme Court addressed the issue of alleged involuntary guilty pleas resulting from

erroneous or negligent advice by trial counsel. The result reached was the

formulation of a merger of the Strickland test for ineffective assistance and the

traditional requirements for a valid guilty plea. The Strickland test provides that, to

prevail on a claim of ineffective counsel, the defendant must establish that (1) the

services rendered by counsel were deficient and (2) he/she was prejudiced by the

deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 2064 (1984); Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993). As

applied to guilty pleas, the first prong, deficient performance remains the same, i.e.,

counsel failed to exercise the customary skill and diligence that reasonably

competent counsel would provide under similar circumstances. See Baxter v. Rose,

523 S.W.2d 930, 936 (Tenn. 1975); Walton v. State, 966 S.W.2d 54, 54-55 (Tenn.


                                         10
Crim. App. 1997). However, the prejudice requirement focuses on whether

counsel’s ineffective performance affected the outcome of the plea process. Hill v.

Lockhart, 474 U.S. at 58, 106 S.Ct. at 370. In other words, in order to satisfy the

prejudice requirement, the defendant must show that there is a reasonable

probability that, but for counsel’s errors, he would not have pled guilty and would

have insisted on going to trial. Id.; See also Walton, 966 S.W.2d at 55.



        Generally, the “prejudice” inquiry will closely resemble the inquiry engaged in

by courts reviewing ineffective assistance challenges to convictions obtained

through a trial. Hill v. Lockhart, 474 U.S. at 59, 106 S.Ct. at 370. Indeed, the focus

is not only upon the actual “error” committed by counsel, but whether had counsel

acted competently (1) would counsel have changed his recommendation as to the

plea or (2) would the competent performance have been likely to change the

outcome of a trial. See Hill v. Lockhart, 474 U.S. at 59, 106 S.Ct. at 370-371.



        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. A trial court’s findings of fact in a post-conviction hearing

are conclusive on appeal unless the evidence in the record preponderates against

those findings. See Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Clenny

v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978), cert. denied, 441 U.S. 947, 99

S.Ct. 2170 (1979).6 The transcript of the guilty plea hearing reveals that the trial

court thoroughly advised the appellant regarding his right to appeal. The court

further explained to the appellant that by entering a plea of guilty he was effectively



        6
           Notwithstanding this general rule, in State v. Brenda Anne Burns, No. W1996-00004-SC-
R11-CD (T enn. at Jackson, No v. 8, 1999) (for publication), our supreme court held that “[c]ases
that involve mixed questions of law and fact are subject to de novo review.” (citing Harries v.
State , 958 S.W .2d 799, 802 (Tenn. Crim . App. 1997)). Specifically, the supreme court
determined that issues involving alleged deficient performance of counsel and possible prejudice
to the defe nse are mixed question s of law an d fact. See State v. Brenda Anne Burns, No.
W1996-00004-SC-R11-CD. Although we perform a de novo review of the issue, the appellant
mus t still establish his o r her allega tions by clea r and co nvincing e vidence . See Tenn. Code Ann.
§ 40-30-210(f) (1997).

                                                  11
waiving a myriad of constitutional rights. When questioned by the court regarding

the performance of his trial counsel at the guilty plea hearing, the appellant

responded:

       I would just like to say that Mr. Feltes and all of my previous attorneys
       did the best they could do. There’s no doubt that I’m guilty. I didn’t
       deny I was guilty. The day after it happened I went and confided in my
       friends. I lied to the law enforcement officials that came and
       questioned me that day. I ran to Mexico because I was guilty and I
       came back to the United States to face the punishment. I sat there, I
       shut up and I did not offer a defense. There is not a defense for a
       man who is guilty. That’s all I have to say, sir.



Finally, the court informed the appellant that by entering a guilty plea in exchange

for a sentence of life imprisonment “means that [he] will have to serve at least

twenty-five years of [his] sentence before [he] is eligible for parole.” The court, then,

after more than thoroughly advising the appellant of his rights, accepted the

appellant’s plea of guilty to the offense of first degree murder.



       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. at 31, 91 S.Ct. at 164. 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),

perm. to appeal denied, (Tenn. 1996). See also Chamberlain v. State, 815 S.W.2d

534, 542 (Tenn. Crim. App. 1990), perm. to appeal denied, (Tenn. 1991). Indeed, a

“court charged with determining whether . . . pleas were ‘voluntary’ and ‘intelligent’

must look to 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.”

                                          12
Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993).



       With these criteria considered, we conclude that the record amply supports

the trial court’s finding that counsel informed the appellant of his right to appeal in

addition to providing other relevant sentencing information at the time of entry of his

plea. Moreover, our review of the entire record establishes that the appellant’s plea

of guilty was entered voluntarily and knowingly and with full awareness of his

constitutional rights.



       For the foregoing reasons, we deny post-conviction relief and affirm the

judgment of the Criminal Court of Sevier County.




                                          13
                          ____________________________________
                          DAVID G. HAYES, Judge



CONCUR:


__________________________________
ALAN E. GLENN, Judge



___________________________________
JOE H. WALKER, III, Special Judge




                               14
