         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE              FILED
                         JANUARY, 1998 SESSION
                                                             April 2, 1998

                                                        Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk

WILLIE L. HICKS,                  )   No. 03C01-9707-CR-00242
                                  )
      Appellant,                  )
                                  )   Sullivan County
vs.                               )
                                  )   Honorable R. Jerry Beck, Judge
STATE OF TENNESSEE,               )
                                  )   (Post-Conviction)
      Appellant.                  )



FOR THE APPELLANT:                    FOR THE APPELLEE:

GERALD STANLEY GREEN                  JOHN KNOX WALKUP
147 Jefferson Avenue, Suite 115       Attorney General & Reporter
Memphis, TN 38103

                                      SANDY C. PATRICK
                                      Assistant Attorney General
                                      Criminal Justice Division
                                      2nd Floor Cordell Hull Building
                                      425 Fifth Ave. North
                                      Nashville, TN 37243-0943

                                      H. GREELEY WELLS
                                      District Attorney General

                                      BARRY STAUBUS
                                      Assistant District Attorney General
                                      P.O. Box 526
                                      Blountville, TN 37617




OPINION FILED: ____________________


AFFIRMED


CURWOOD WITT
JUDGE
                                       OPINION

              The petitioner, Willie L. Hicks, appeals pursuant to Rule 3, Tennessee

Rules of Criminal Procedure, from the Sullivan County Criminal Court’s denial of

post-conviction relief. The petitioner pleaded guilty in 1994 of the first-degree

murder of Yolanda Riley and the second-degree murder of her sister, Jennifer Riley.

In accordance with the plea agreement, he received a life sentence with the

possibility of parole in the first-degree murder conviction and a consecutive

sentence of fifteen years for second-degree murder. On March 27, 1996, retained

counsel filed a timely petition for post-conviction relief alleging that the attorneys1

who represented the petitioner during the plea bargaining and the submission of the

plea were ineffective and that the guilty plea was entered involuntarily. After an

evidentiary hearing, the post-conviction judge 2 entered a thorough and detailed

memorandum order finding that Hicks had received effective assistance of counsel

and that the guilty pleas were entered knowingly and voluntarily. Therefore, the

lower court denied Hicks’s petition for post-conviction relief.



              In this appeal, Hicks contends (1) that his attorneys were ineffective

in that they did not investigate and assert all apparently substantial defenses and

that they failed to communicate properly with a defendant whose intelligence and

understanding were well below average, and (2) that the record does not

affirmatively demonstrate that he knowingly, intelligently, and voluntarily waived his

right to trial and the privilege against self-incrimination.



              For the reasons discussed below, we affirm the judgment of the trial

court.




         1
              Stephen M. Wallace, the public defender, and Mark Slagle, a
private attorney, represented Hicks throughout the pretrial proceedings.
         2
               The Hon. Frank G. Slaughter, the trial judge who accepted Hicks’s
guilty pleas, was no longer on the bench at the time of the post-conviction
hearing. Judge R. Jerry Beck was appointed to hear the case because Judge
Phillis H. Miller was an assistant district attorney at the time of the original
indictments.

                                           2
              We begin with a brief summary of the facts as they appear in the

transcripts of the post-conviction hearing, the submission hearing, and the

preliminary hearing. The two victims and the petitioner were from Clarksdale,

Mississippi. When Yolanda Riley decided to enter the Job Corps training program

at Bristol, Tennessee, Hicks became upset. Three times he came to Tennessee to

persuade her to return with him to Mississippi. The third time, Yolanda’s sister,

Jennifer, and Jennifer’s two small children accompanied him. After spending the

weekend with the petitioner and her sister, Yolanda agreed to return to Mississippi.

However, after returning to the Job Corps site and meeting with her advisor and two

other students, she changed her mind. She and the two students were sitting in a

small inner office. The door was locked. Hicks, who was in the outer office, spoke

to Yolanda on the telephone. When the conversation ended, Hicks kicked open the

locked door, entered the office, and shot Yolanda several times, once execution-

style in the back of the head. Then, he fired a single shot at Jennifer who had

entered the office. Both women died.



              The grand jury indicted the petitioner on two counts of premeditated

and deliberate murder, and the state indicated that it would seek the death penalty. 3

When defense counsel traveled to Clarksdale, they discovered that, according to

an intelligence test taken before he was eighteen, Hicks had an I.Q. of 59 and

deficits in adaptive behavior. Although other test results yielded somewhat higher

scores, the state apparently concluded that seeking the death penalty would be

problematic under Tennessee Code Annotated section 39-13-203.4 Hicks was

allowed to plead guilty to first-degree murder in the shooting of Yolanda Riley and

to second-degree murder in the shooting of Jennifer Riley.



       3
              A third count charged Hicks with the aggravated assault of Troyan
Ford, one of the students in the office. The state dismissed this count after
Hicks pleaded guilty.
       4
               This statue precludes the death sentence for those who have a
functional intelligence quotient of seventy (70) or below and deficits in adaptive
behavior if the mental retardation manifested itself during the developmental
period or before the defendant reached the age of 18. Tenn. Code Ann. § 39-
13-203(a)(1), (2), (3) (1997).

                                          3
              At the guilty plea submission hearing, Hicks acknowledged that he

fired the shots that killed the women but denied that he intended to kill them. He

also disputed the number of shots that were fired and denied firing directly into

Yolanda’s head. When the trial judge questioned him more closely, he insisted that

he shot the women accidentally. The trial judge then said, “Well, gentlemen, the

Court’s duty is pretty clear.” The district attorney then suggested that the court

accept the plea as an Alford plea.5 The district attorney and defense counsel once

again summarized the state’s evidence for the court.            The evidence would

demonstrate that Hicks had brought the gun from Mississippi, that he carried it

loaded into the Job Corps offices where he kicked open the locked door, and that

one eye-witness heard him say, “I love her. I’m going to kill her.” The trial judge

then resumed his questioning of the petitioner who agreed that he wanted to waive

his rights and plead guilty according to the plea agreement. Nothing more was said

about an Alford plea.      The trial court accepted the plea and sentenced the

petitioner.



              The petitioner, his mother, and attorney, Mark Slagle, testified at the

post-conviction hearing. Hicks said that his attorneys told him that if he went to trial

he would receive the death penalty. Hicks testified that he thought the submission

hearing was actually a trial, that the other people in the courtroom were the jury, and

that when the trial judge said, “Well, gentlemen, my choice is clear,” he thought he

had lost his case. Later, he responded “guilty” to the trial judge’s question because

he thought he had lost. He also said that his attorneys had visited him more than

five times and had told him about life sentences and the “lockdown” at Riverbend

where he would never see his family. He complained that he had never seen the

autopsy photographs proving that he had shot Yolanda in the back of the head. On


       5
               In Alford, the United States Supreme Court ruled that there was no
constitutional error in accepting a guilty plea which contained a protestation of
innocence if the defendant had intelligently concluded that it was in his best
interests to plead guilty and the record before the judge contained strong
evidence of actual guilt. North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160
(1970). This court recognized the validity of an Alford or “best interests” plea in
Dortch v. State, 705 S.W.2d 687 (Tenn. Crim. App. 1985).

                                           4
cross-examination he admitted he had signed the guilty plea documents, two before

the hearing and one in the court room.



             Bertha Hicks, the petitioner’s mother, described her son as having a

hard time understanding things. He was in special education classes at school.

She and other members of her family came up to see him a few days prior to the

submission hearing to talk to him about accepting the plea. She said that she told

him that it was his decision and that he would have to make up his own mind.



             Mark Slagle testified to his experience in handling capital cases as

well as other first-degree murder cases. He described the trip that he, Stephen

Wallace, and the investigator made to Clarksdale where they interviewed the

petitioner’s family and friends and obtained his school, medical, and psychological

records.6 The defense moved for and the trial court granted funds so that a

psychologist or psychiatrist could examine the petitioner.7   Defense counsel had

complete access to the prosecutor’s files. They met with the medical examiner,

interviewed available witnesses, and reviewed the investigative reports. Slagle

agreed that he sometimes had a difficult time communicating with Hicks. However,

he said that when he took his time and explained things carefully, Hicks seemed to

understand. He and Wallace explained the terms of the plea agreement very

carefully, including maximum and minimum sentences, consecutive sentencing,

lesser included offenses, and the rights the petitioner would be waiving. According

to Slagle, the defense team took extra pains because of the petitioner’s limited

intelligence. Slagle believed that the petitioner understood that he was not having

a trial and that he was aware of the significance of the guilty plea proceeding. On

cross-examination, Slagle agreed that the hearing was unusual, and that he had his

doubts as to Hicks’s ability to follow the proceedings. He couldn’t recall another



        6
             Steven Wallace, the public defender, went to Clarksdale a second
time.
        7
               Apparently, the expert found that Hicks was competent to stand
trial and that he did not qualify as insane under Tennessee law.

                                         5
time when a prosecutor suggested that the court accept an Alford plea. He

conceded that the petitioner seemed to be confused at times.8 However, Slagle

believed that Hicks knew he was entering a guilty plea and that he wanted to do it.



              The post-conviction judge took the case under advisement, and on

February 24, 1997, he filed his “Finding of Fact, Memorandum of Law, Judgment

Order” denying petitioner’s request for post-conviction relief. In the memorandum,

the court recognized that the petitioner’s intelligence was a factor that must be

considered. The post-conviction judge concluded that the trial judge had satisfied

the requirements of Rule 11, Mackey, and Boykin and that the guilty plea had not

been coerced. He also found that the trial court had adequately explained the

Alford plea and that it was not improper for a district attorney to suggest that the

court accept a “best interests plea” as long as there was a strong factual basis for

the conviction and the defendant was represented by competent counsel. With

respect to the effectiveness of trial counsel, the court specifically accredited Slagle’s

testimony. He found that both defense attorneys were experienced in criminal law

and in capital cases, that they had traveled to Mississippi in an attempt to find useful

information, that they met with the petitioner on many occasions, and that they were

cognizant of the petitioner’s intelligence level and had advised him accordingly. The

court concluded that trial counsel had generally represented their client effectively

according to the standards established in Strickland v. Washington, 466. U.S. 487,

104 S. Ct. 2052 (1984) and Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). Based

on the facts before the court, the trial court concluded that, notwithstanding the

petitioner’s lack of mental development, the petitioner knowingly and voluntarily

entered his guilty pleas and received effective assistance of counsel.




       8
               For example, at one point, the petitioner told the trial court that he
had to prove that Troyan Ford was lying. Ford was one of the two students in
the room when the petitioner shot Yolanda. Ford was the victim named in the
aggravated assault charge. Slagle said that he had no idea why Hicks made that
statement. The record indicates that Ford lied when he said that the petitioner
hit him with the gun.

                                           6
                                Standard of Review

                Because this petition was filed on March 27, 1996, it is governed by

the provisions of the 1995 Post-Conviction Procedure Act.           Accordingly, the

petitioner bears the burden of establishing, at the evidentiary hearing, his

allegations by clear and convincing evidence.9         Tenn. Code Ann. § 40-30-

210(f)(1997).    Evidence is clear and convincing when there is no serious or

substantial doubt about the correctness of the conclusions drawn from the

evidence. Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901, n. 3 (Tenn. 1992). An

appellate court is bound by the trial court’s findings of fact unless we conclude that

the evidence in the record preponderates against those findings. Black v. State,

794 S.W.2d 752, 755 (Tenn. 1990).



                          Effective Assistance of Counsel

                The Sixth Amendment of the United States Constitution and Article I,

section 9 of the Tennessee Constitution both require that a defendant in a criminal

case receive effective assistance of counsel. Baxter v. Rose, 523 S.W.2d 930

(Tenn. 1975).     When a defendant claims ineffective assistance of counsel, the

standard applied by the courts of Tennessee is "whether the advice given or the

service rendered by the attorney is within the range of competence demanded by

attorneys in criminal cases." Summerlin v. State, 607 S.W.2d 495, 496 (Tenn. Crim.

App. 1980).



                In Strickland v. Washington, the United States Supreme Court defined

the Sixth Amendment right to effective assistance of counsel. 466 U.S. 668, 140

S. Ct. 2052 (1984). First, the appellant must show that counsel's performance fell



       9
              We note that the post-conviction judge found that the petitioner had
not proven his allegation by a preponderance of the evidence. The
preponderance of the evidence was the quantum of proof required prior to the
adoption of Tennessee Code Annotated section 40-30-210(f)(1997). See, e.g.,
McGee v. State, 739 S.W.2d 789 (Tenn. Crim. App. 1989); Clenny v. State, 576
S.W.2d 12 (Tenn. Crim. App. 1978). Although the use of the incorrect standard
constitutes error, the petitioner was not prejudiced. If his proof did not reach the
preponderance level, it could not be considered “clear and convincing.”

                                          7
below an objective standard of reasonableness under prevailing professional norms,

and must demonstrate that counsel made errors so serious that he was not

functioning as "counsel" guaranteed by the Constitution. Strickland, 466 U.S. at 687,

104 S. Ct. at 2064. Second, the petitioner must show that counsel's performance

prejudiced him, that the errors were so serious as to deprive the defendant of a fair

trial, and call into question the reliability of the outcome. Id.



              A reviewing court must indulge a strong presumption that counsel's

conduct falls within the range of reasonable professional assistance and must

evaluate counsel's performance from counsel's perspective at the time of the

alleged error and in light of the totality of the evidence. Strickland, 466 U.S. at 695,

104 S. Ct. at 2070. 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. Id.



              To establish ineffective assistance of counsel in Tennessee, evidence

stemming from a failure to prepare a sound defense or present witnesses must be

significant. However, a reasonable probability of being found guilty of a lesser

charge, or a shorter sentence, satisfies the prejudice requirement of Strickland.

State v. Zimmerman, 823 S.W.2d 220, 227 (Tenn. Crim. App. 1991).              In cases

involving a guilty plea or plea of nolo contendere, the petitioner must show

“prejudice” by demonstrating that, but for counsel’s errors, he would not have

pleaded guilty but would have insisted upon going to trial. See Hill v. Lockhart, 474

U.S. 52, 59, 106 S. Ct. 366, 370 (1985); Bankston v. State, 815 S.W.2d 213, 215

(Tenn. Crim. App. 1991).



              In the instant case, all the proof in the record demonstrates that the

trial attorneys were effective advocates. They interviewed the witnesses, reviewed

the investigative reports, and had access to the district attorney’s file. Because the

petitioner killed the victims in front of two eye-witnesses, defense counsel decided



                                           8
that the best defense hung on mental capacity and state of mind. They went to

Mississippi twice to investigate the petitioner’s competence and his familial and

educational background. An expert performed additional psychological testing; an

MRI revealed no abnormalities. Mark Slagle testified that he spent several hours

with the petitioner questioning him about his thought processes. He carefully

explained the crimes, the maximum and minimum penalties, the terms of the plea,

the length of time the petitioner would have to serve, and consecutive sentencing.

Keeping in mind the petitioner’s limited mental capacity, he took great care to

explain the constitutional rights that would be waived. Defense counsel arranged

for the petitioner to have a four-hour visit with his family a few days before the

submission hearing. Nothing indicates that petitioner’s attorneys were incompetent

or that they were in any way ineffective. The evidence in the record totally supports

the trial court’s conclusion that the petitioner received effective assistance of

counsel during the pre-trial discovery, investigations and negotiation that resulted

in his guilty pleas.



                         Voluntariness of the Guilty Pleas

               When the accused opts to plead guilty, the plea must be voluntarily,

understandingly, and knowingly entered to pass constitutional muster. Boykin v.

Alabama, 395 U.S. 238, 244, 89 S. Ct. 1709, 1713 (1969). In Tennessee, a plea

must be made voluntarily and with full understanding of its consequences. State v.

Neal, 810 S.W.2d 131, 134-135 (Tenn. 1992); State ex rel. Barnes v. Henderson,

220 Tenn. 719, 727, 423 S.W.2d 497, 501 (1968). Entry of a guilty plea constitutes

a waiver of constitutional rights including the privilege against self-incrimination, the

right to confront witnesses, and the right to a trial by jury. Boykin, 395 U.S. at 243,

89 S. Ct. at 1714. Waiver of constitutional rights may not be presumed from a silent

record. Id.



               The petitioner contends that his plea was not voluntarily entered.

According to his testimony, he believed that he was having a trial on the date of the



                                           9
submission hearing. He acknowledged that he signed the plea agreement and the

waiver form; however, he alleges that his attorneys told him that he had to sign the

papers so that he could go to trial. The petitioner claims that he was coerced into

pleading guilty and that his plea violates the principles of North Carolina v. Alford,

400 U.S. 25, 91 S. Ct. 160 (1970). We disagree.



              In Alford, the United States Supreme Court allowed the defendant to

enter a plea of guilty despite his protestation of innocence. 400 U.S. at 37, 91 S.

Ct. at 167. The Court held that “an individual . . . may voluntarily, knowingly, and

understandingly consent to the imposition of a prison sentence even if he is

unwilling or unable to admit his . . . crime [or protests his] innocence.” Id.       The

standard remains “whether the plea represents a voluntary and intelligent choice

among the alternative courses of action open to the defendant.” Id.



              The Alford or “best interests” plea has been recognized in this state.

See, e.g., Dortch v. State, 705 S.W.2d 687, 689 (Tenn. Crim. App. 1985); State v.

Williams, 851 S.W.2d 828, 830 (Tenn. Crim. App. 1992). Before a Tennessee court

can accept any guilty plea, the court must determine that the defendant is pleading

guilty voluntarily and with an understanding of the nature of the plea and its

consequences. Williams, 851 S.W.2d at 830-831. A trial judge may accept a guilty

plea even when the defendant says that he is innocent so long as there is a factual

basis for the plea. Williams, 851 S.W.2d at 831. Therefore, we must determine

whether the record demonstrates that the petitioner entered his guilty pleas

voluntarily and knowingly and whether there was an adequate factual basis for the

pleas.



              In   determining    whether      a   plea   of   guilty   was   voluntarily,

understandingly, and intelligently entered, this court, like the trial court, must

consider all of the relevant circumstances that existed at the entry of the plea. State

v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995). A reviewing court may



                                          10
look to any relevant evidence in the record to determine the voluntariness of the

plea. Id. Rule 11 of the Tennessee Rules of Criminal Procedure and our supreme

court’s decisions in State v. Mackey, 553 S.W.2d 337 (Tenn. 1977), and State v.

McClintock, 732 S.W.2d 268 (Tenn. 1987), control the guilty plea process in

Tennessee. Trial judges are required to adhere substantially to the procedure

prescribed in the rule. A submission hearing transcript must establish on its face

that the trial court substantially complied with the requirements of Rule 11, Boykin

v. Alabama and the teachings of Mackey and McClintock. State v. Turner, 919

S.W.2d at 352.



                In this instance, the transcript of the submission hearing indicates that,

although the trial judge did not adhere to a standard litany of advice, he substantially

complied with the mandates of Rule 11 as well as the additional requirements found

in Mackey and McClintock.10          The trial judge advised the petitioner of the

constitutional rights under Boykin and specifically asked him if he were waiving

those rights.     The petitioner responded affirmatively in each instance.            We

recognize, as did the post-conviction judge and the trial judge, that this petitioner

needed some extra assistance in understanding the proceedings. The transcripts

of both proceedings demonstrate that in each instance the judge gave due

consideration to this defendant’s special needs. Moreover, the post-conviction

judge accredited the testimony of defense counsel who testified that he and his

colleague had carefully and meticulously discussed the plea agreement and the

waiver form before the petitioner signed them.




       10
              The trial court did not advise the petitioner that he was required to
answer the court’s questions under oath and that his answers could later be
used against him in a prosecution for perjury, Tenn. R. Crim. P. 11(c)(5), nor did
the court specifically ask whether the plea was the result of conversations with
his attorney and the district attorney and not the product of force or coercion.
Tenn. R. Crim. P. 11(d). However, these are supervisory rather than
constitutionally based requirements. Non-constitutional error cannot be
addressed under the Post-Conviction Procedure Act. Tenn. Code Ann. § 40-30-
203 (1997); State v. Neal, 810 S.W.2d 131, 137 (Tenn. 1991). Moreover, the
petitioner has not alleged any prejudice that he incurred because the trial judge
did not specifically address him concerning these matters.

                                            11
              The petitioner contends that he did not know and the trial court did not

explain the concept of a “best interests” or Alford plea. The record supports this

contention. All of the remarks concerning a possible Alford plea were between

counsel and the trial judge. The trial court could have and probably should have

addressed the petitioner directly and explained the meaning of the terms. However,

we cannot see how the failure to understand a legal term such as Alford or how the

inability to follow the discussion between counsel and the bench would render the

guilty plea involuntary. A “best interests” plea is treated exactly like any other guilty

plea except for the defendant’s protestation of innocence. It made no difference to

the petitioner whether the trial court accepted his plea as an Alford plea or a garden-

variety guilty plea.11 If the petitioner had the information required to make an

intelligent decision and if he understood the consequences of pleading guilty to

first-degree and second-degree murder, then he entered his plea knowingly and

intelligently despite his lack of specific knowledge of North Carolina v. Alford. We

find that the record supports the post-conviction court’s finding that the petitioner

knowingly entered his pleas and that he understood the consequences of his

actions.



              The record also demonstrates that neither the trial court nor defense

counsel coerced the petitioner into pleading guilty. The entry of a plea of guilty to

avoid a death sentence or the risk of greater punishment does not, standing alone,

make a plea involuntary. Parham v. State, 885 S.W.2d 375, 381 (Tenn. Crim. App.

1994). The petitioner’s mother testified that when she and other members of the

family discussed the plea bargain with him they made it clear that the choice was

his. In fact, the petitioner testified that his mother left the decision to him. Nor does

the petitioner’s statement that he pleaded guilty because he had no choice

necessarily indicate that the plea was obtained by force or coercion. The statement,

“I have no choice,” may result from awareness of the undesirable aspects of going


       11
                In fact, from reading the record, we cannot say for certain that the
trial court, after questioning the petitioner more closely, considered this to be an
Alford plea.

                                           12
to trial. The response may well mean that, after considering the options before him,

the petitioner concluded that the only intelligent choice was to plead guilty. We

have carefully reviewed the record before us, and we have found no evidence that

the petitioner was forced, coerced, or even cajoled into pleading guilty.



              Having decided that the petitioner entered his guilty pleas knowingly

and voluntarily, we must determine whether there was an adequate factual basis for

the acceptance of an Alford plea. See State v. Williams, 851 S.W.2d 828, 831

(Tenn. Crim. App. 1992). We are convinced that the factual basis in this case was

more than adequate to prove that the petitioner was guilty of first- and second-

degree murder. At trial, the state would have proved that Hicks brought a loaded

weapon from Mississippi to Tennessee and that he took the weapon with him into

the Job Corps building. Then, after kicking down a locked door, Hicks first shot

Yolanda and then turned the gun on her sister. Two students witnessed the killings.

One witness would testify that Hicks said that he was going to kill Yolanda. The

autopsy would show that Yolanda was shot four times and that a shot to the head

was fired from close range. At the submission hearing, the petitioner insisted that

he shot Yolanda only once. However, it makes little difference whether he shot her

once or four times. Even if the petitioner’s statement were accepted as true, the

other evidence is sufficient to support a finding of premeditation and deliberation.



              The evidence in the record demonstrates that, although the trial judge

did not follow the exact wording of Boykin, Mackey, and Rule 11, the petitioner

knowingly and voluntarily pleaded guilty. The pleas were acceptable as “best

interest” or Alford pleas despite the petitioner’s protestation of innocence. See

Dortch v. State, 705 S.W.2d 687, 689 (Tenn. Crim. App. 1985); State v. Williams,

851 S.W.2d at 830.



                                   Conclusion

             The evidence in the record overwhelmingly supports the post-



                                        13
conviction court’s findings. The petitioner received effective assistance of counsel

and entered his guilty pleas intelligently, knowingly and voluntarily. We affirm the

post-conviction court’s denial of the petitioner’s request for post-conviction relief.



                                                  __________________________
                                                  CURWOOD W ITT, Judge

CONCUR:



______________________________
GARY R. WADE, Judge



______________________________
WILLIAM M. BARKER, Judge




                                          14
