         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                         DECEMBER 1997 SESSION
                                                       FILED
                                                       February 26, 1998

                                                       Cecil Crowson, Jr.
DEWAYNE CATHEY,                      )                 Appellate C ourt Clerk
                                     )
            Appellant,               )   C.C.A. No. 02C01-9612-CR-00446
                                     )
v.                                   )   Shelby County
                                     )
STATE OF TENNESSEE,                  )   Hon. W. Fred Axley, Judge
                                     )
            Appellee.                )   (Post Conviction)




FOR THE APPELLANT:                          FOR THE APPELLEE:

BARBARA D. MACINTOSH                        JOHN KNOX WALKUP
Attorney at Law                             Attorney General & Reporter
474 Perkins Extended, Ste. 205
Memphis, TN 38117                           SARAH M. BRANCH
                                            Assistant Attorney General
                                            450 James Robertson Parkway
                                            Nashville, TN 37243-0493

                                            JOHN W. PIEROTTI
                                            Dist. Attorney General

                                            ALANDA HORNE
                                            Asst. Dist. Attorney General
                                            Criminal Justice Complex
                                            201 Poplar St., Ste. 301
                                            Memphis, TN 38103




OPINION FILED: _____________

AFFIRMED


CURWOOD WITT, JUDGE
                                      OPINION

               The petitioner, Dewayne Cathey, 1 comes to this court aggrieved of the

Shelby County Criminal Court's dismissal of his claim for post conviction relief.

Cathey is presently incarcerated for a life term following his guilty plea to the crime

of first-degree murder. Following a series of hearings at which the petitioner had

the opportunity to present his evidence, the trial court found all of the allegations

contained in the petition to be without merit and denied relief. On appeal, Cathey

asks this court to review two of the trial court's four determinations. 2 He claims the

evidence preponderates against the trial court's determinations that he was afforded

the effective assistance of counsel and that his guilty plea was knowingly and

voluntarily entered. Having reviewed the record and the briefs of the petitioner and

the state, we find the petitioner's issues without merit and affirm the judgment of the

trial court.



               Cathey was indicted in May 1993 for the March 1993 homicide of

Airon D. Toliver. The indictment charged the offense as first-degree murder, and

the state sought the death penalty. Counsel was appointed to represent Cathey,

though a substitution was made when his original counsel discovered a conflict of

interest.3 The state offered Cathey a plea bargain for life in prison in exchange for

his guilty plea to the crime of first-degree murder, and he accepted. His plea was

entered on November 30, 1993 in the Shelby County Criminal Court.



               In the amended post conviction petition, Cathey claimed counsel was



1

        According to the indictment, the petitioner is also known as Nedra Hill.
2

       We give no consideration to the remaining two issues presented in the
amended petition, as they are not before us. Tenn. R. App. P. 13(b) ("[Appellate
r]eview generally will extend only to those issues presented for review."). Only
the evidence relevant to the two issues before this court will be discussed in this
opinion.
3

       Only the substituted counsel was the subject of Cathey's proof at the post
conviction hearings.

                                          2
ineffective in failing to investigate and interview witnesses, failing to obtain a

psychiatric evaluation, failing to explain the meaning and consequences of the plea

agreement in terms he could understand, and in coercing him to accept the plea

bargain by threatening him with the death penalty if he went to trial. Cathey also

claimed he had unknowingly waived his right to question his innocence at a later

time, that he had unintelligently entered his plea, that he did not understand he

waived his appellate rights, that he did not have competent advice, and that he

could not understand and be aware of his rights waived by entering the plea

because he was mentally confused and fearful for his safety in the county jail.



              Evidence was received by the trial court at a series of three hearings.

Cathey's testimonial evidence included his own testimony that he was unsatisfied

with his trial counsel's performance and that he did not understand what he was

doing at the time he accepted the plea agreement. Primarily, he claimed that

counsel visited him only twice while he was in jail, did not interview his mother or

inquire into his psychological problems, did not explain his rights and the fact that

those rights were being waived by entry of a guilty plea, and held the prospect of a

death penalty verdict over his head in order to obtain his agreement to the plea

bargain. Cathey also testified that while he was being held in pretrial detention in

the Shelby County Jail he was involved in a disturbance which resulted in facial and

head injuries and required treatment at a hospital. According to Cathey, he was

extremely fearful for his safety and desired to leave the county jail as quickly as

possible. He testified he was so consumed with fear, distress and desire to get out

of the county jail that he entered the guilty plea in order to extricate himself from that

situation. Cathey conceded he had received copies of discovery from the district

attorney general's files, but as a seventh grade dropout from special education

classes, he contends he does not read well. Finally, Cathey acknowledged that had

the trial court granted post conviction relief, he would face the death penalty at any

subsequent trial.




                                            3
              Cathey's mother testified she was never contacted by trial counsel;

however, she testified if he had contacted her she would have told him that her son

had serious psychological concerns in March 1993, for which he was receiving

disability benefits from the Social Security Administration. The petitioner's mother

conceded that she did not know with whom her son was living at the time of the

murder, and he did not come around her much. She likewise conceded she knew

nothing about his mental condition at the time he pleaded guilty in November 1993.



              Cathey also presented expert testimony from Floyd Covey, PhD, a

licensed psychologist who performed a mental evaluation of Cathey to determine

his eligibility for Social Security disability benefits in December 1992. Doctor Covey

diagnosed Cathey with "psychosis NOS"4 based upon a finding of auditory

hallucinations. Although Dr. Covey offered no evidence of Cathey's mental state

at the time of the crime or at the time of the plea submission, he testified it was

"certainly possible" that if Cathey's psychological condition remained the same after

the evaluation and was combined with the use of beer and marijuana, Cathey could

become violent if involved in an argument.



              The state's testimonial evidence was given by the petitioner's trial

counsel, who estimated that he met with Cathey a minimum of 8 to 12 times. Trial

counsel testified his investigation included talking with the petitioner's aunt and

reviewing the petitioner's mental health records. He did not interview Cathey's

mother.



              The transcript of the guilty plea hearing and the written report of Dr.

Covey were received as exhibits. The transcript of the guilty plea hearing reflects

that Cathey was admonished by the court that he was waiving his rights, which the

court explained in detail. Cathey voiced his understanding. Cathey also testified



4

       According to Dr. Covey, "NOS" is a diagnostic designation which means
"not otherwise specified."

                                          4
that he was satisfied with counsel's consultation with him and investigation of the

case. He expressed that his guilty plea was entered voluntarily and was not a result

of his unhappiness with his then-present situation in the county jail. Significantly,

he also claimed he had no psychiatric or psychological impairment which might

cloud his thinking that day. The report of Dr. Covey reflected the background

information supporting his diagnosis of psychosis NOS and his gathering of test

results revealing the petitioner to have a low IQ, though Dr. Covey deemed these

results an invalid underestimate of Cathey's actual cognitive abilities. He found

Cathey "limited" in (1) ability to understand and remember, (2) ability to sustain

concentration and persistence, (3) social interaction, and (4) adaptation.



              The trial court found all of Cathey's claims without merit. The trial

court's thoughtful and well-drafted order, which recites extensive findings of fact,

reflects that the court accredited the testimony of trial counsel and the transcript of

the plea submission hearing over the testimony of the petitioner. Cathey claims the

trial court's determination on two of the issues was in error.



              Cathey filed his post conviction petition prior to the 1995 amendments

to the Post Conviction Procedure Act. Therefore, his burden of proving his claims

is by a preponderance of the evidence. Clenny v. State, 576 S.W.2d 12, 14 (Tenn.

Crim. App. 1978).5




                                           I

       First, we examine whether Cathey received the effective assistance of

counsel in the proceedings leading up to his conviction. In evaluating claims of this

nature, the finder of fact must indulge a strong presumption that counsel's conduct

falls within the range of reasonable professional assistance and must evaluate

5

      The petitioner's burden of proof in all cases filed under the Post
Conviction Procedure Act of 1995 is by clear and convincing evidence. Tenn.
Code Ann. § 40-30-210(f) (1997).

                                          5
counsel's performance from counsel's perspective at the time of the alleged error

and in light of the totality of the evidence. Strickland v. Washington, 466 U.S. 690,

695, 104 S. Ct. 2066, 2069 (1984). The petitioner must demonstrate that there is

a reasonable probability that but for counsel's deficient performance, the result of

the proceeding would have been different. Strickland, 466 U.S. at 695, 104 S. Ct.

at 2069. A trial court's findings of fact following a post-conviction hearing have the

weight of a jury verdict. Bratton v. State, 477 S.W.2d 754, 756 (Tenn. Crim. App.

1971). On appeal, those findings are conclusive unless the evidence preponderates

against the judgment. Butler v. State, 789 S.W.2d 898, 900 (Tenn. 1990).



              First, the petitioner claimed his attorney failed to investigate and

interview witnesses. The trial court accredited the attorney's conservative estimate

that he met with Cathey 8 to 12 times, discussed the case in detail, talked with

Cathey's aunt, and investigated the possibility of a self defense claim. Moreover,

the trial court noted that Cathey had acknowledged his satisfaction with his

attorney's services at the plea hearing. The trial court found no harm in counsel's

decision not to interview the petitioner's mother based upon her testimony that the

petitioner did not live with her at the time and that she did not have much contact

with her son at the time of the victim's death. We cannot say the evidence

preponderates to the contrary.



              Second, the petitioner claimed counsel's services were deficient

because he failed to obtain a psychiatric evaluation. The trial court found that

counsel had Cathey's mental health records. Those records were not offered into

evidence, so the trial court had no way of determining whether anything contained

therein would put counsel on notice of the need for evaluation of his client. The

petitioner had been found competent to stand trial. Counsel did not question

Cathey about whether he received Social Security disability benefits because

Cathey told counsel he was employed. In addition to these facts on which the trial

court relied, we note that counsel testified he had represented the petitioner for a

previous felony charge several years before this case, and the petitioner was found


                                          6
competent to stand trial at that time, too. Counsel knew the petitioner from his

previous representation of him, met with him at least 8 times in preparation for this

case, and was satisfied that the petitioner understood what he was doing when he

pleaded guilty.   In closing argument below, Cathey's post conviction counsel

claimed the petitioner's mental condition combined with his substance abuse at the

time of the crime "gave him a defense or at least a chance at a plea to a lesser

charge of second degree murder." The evidence presented at the hearing was only

that it was "possible" Cathey's substance abuse coupled with the psychiatric

diagnosis observed months prior by Dr. Covey "could" result in violent behavior.

The record is noticeably devoid of any evidence that Cathey entered his plea

because counsel failed to follow this line of investigation or that he would not have

entered the plea had he known of the possibility of an insanity defense or

diminished capacity argument. Our review leads us to the conclusion the evidence

does not preponderate against the trial court's determination that this subissue lacks

merit.



              With respect to Cathey's claim counsel failed to explain the meaning

and consequences of his plea to him in terms he could understand, the trial court

accredited counsel's testimony and discredited Cathey's testimony. In addition, the

transcript of the guilty plea hearing belies Cathy's post conviction testimony. Again,

the evidence does not preponderate against the trial court's determination.



              Cathey's fourth and final allegation of ineffective assistance is based

on counsel's alleged coercion of him through threats he would receive the death

penalty if he went to trial. The trial court accredited counsel's testimony that the

choice was left to the petitioner and that counsel advised his client of the possible

punishments but did not predict an outcome. The evidence does not preponderate

otherwise.



              In sum, all of Cathey's claims of ineffective assistance of counsel are



                                          7
without merit.



                                           II

              Cathey's next series of complaints deals with his plea and whether it

was knowingly and voluntarily entered. When reviewing the entry of a guilty plea,

the overriding concern is whether the plea was knowingly and voluntarily made.

Woods v. State, 928 S.W.2d 52, 55 (Tenn. Crim. App. 1996). The lower court's

findings of fact are conclusive on appeal unless the evidence preponderates against

those findings. Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993).



              Cathey claims he unknowingly waived his rights to raise the question

of his innocence at some later time and to appeal. The trial court found that the

court which accepted Cathey's plea advised him of his rights not to plead guilty, to

a jury trial, to confront witnesses, to be free from self incrimination, to have a motion

for new trial and to appeal. Notably, the court which accepted the plea advised

Cathey twice of the waiver of appellate rights. The evidence does not preponderate

against the trial court's determination.



                 The petitioner claims his plea was unintelligently made and that his

mental confusion and fear for his safety in the county jail kept him from

understanding and being aware of the rights he waived. The court below noted

Cathey's acknowledgment of his understanding waiver of his rights at the plea

submission hearing. In addition, trial counsel testified he was satisfied the petitioner

knew and understood what he was doing. The transcript of the guilty plea hearing

further belies Cathey's claim; in it, he specifically denies both entering his plea due

to his alleged problems in the county jail and having any psychological or psychiatric

condition which clouded his judgment in making the decision to enter a plea that

day. Simply put, the evidence of record does not preponderate against the trial

court's determination.




                                           8
              Finally, Cathey claimed he did not have competent advice, and

therefore, his plea was not voluntary. The court below found Cathey was aware of

his rights. Trial counsel testified he advised Cathey of his rights and of the possible

punishments if he were found guilty of first-degree murder by a jury of his peers.

The transcript of the plea hearing illustrates that the judge again admonished

Cathey in this regard. We find the evidence does not preponderate against the trial

court's resolution of this issue.



              In summary, we find all of Cathey's claims of ineffective assistance of

counsel and of having entered an unknowing and involuntary guilty plea lacking in

merit. As a result, it is our duty to affirm the judgment of the trial court.



                                                   ____________________________
                                                   CURWOOD WITT, JUDGE

CONCUR:


______________________________
JOE B. JONES, PRESIDING JUDGE



_______________________________
JERRY L. SMITH, JUDGE




                                           9
