         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs September 28, 2005

              STACY ALLEN MELTON v. STATE OF TENNESSEE

                       Appeal from the Criminal Court for Greene County
                           No. 04CR255     James E. Beckner, Judge



                    No. E2005-00206-CCA-R3-PC - Filed November 4, 2005


The petitioner, Stacy Allen Melton, appeals from the Greene County Criminal Court’s dismissal of
his petition for post-conviction relief from his guilty plea to especially aggravated kidnapping, a
Class A felony, and attempted second degree murder, a Class B felony. He contends that his guilty
plea was involuntary and that he received the ineffective assistance of counsel. We affirm the trial
court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which JERRY L. SMITH and ALAN E.
GLENN , JJ., joined.

Greg W. Eichelman, District Public Defender; and Deanna M. Snyder, Assistant Public Defender,
for the appellant, Stacy Allen Melton.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General;
C. Berkeley Bell, Jr., District Attorney General; and Cecil Clayton Mills, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.

                                               OPINION

         In this case, the petitioner stabbed his wife and held his six-year-old son at knife-point.
Initially, we note that the parties agreed at the guilty plea hearing to a waiver of an oral recitation of
the facts. Instead, the parties agreed to file a written offense report of the stipulated facts with the
trial court. This written offense report is not included in the appellate record, and the remainder of
the record is virtually devoid of the facts of the case. Thus, we are only able to glean certain details
from various factual references to the offenses in the record. The summary of these references is
as follows.

       On the day in question, the petitioner went to the home of his ex-wife, the victim of the
attempted murder. He had consumed a jar of moonshine and had also been taking Paxil, an anti-
depressant. The petitioner stabbed his ex-wife in the chest with a kitchen knife, and she fled alone
across the street to a neighbor’s home. When the police arrived, the petitioner was holding a knife
to his six-year-old son’s neck. The police held the petitioner at gun-point until he released his son
unharmed.

        A Greene County grand jury indicted the petitioner for especially aggravated kidnapping,
attempted second degree murder, and aggravated burglary. Pursuant to a plea agreement, the
petitioner pled guilty to the charges of attempted second degree murder and especially aggravated
kidnapping in exchange for the state’s dismissing the aggravated burglary charge. The petitioner
also agreed to concurrent sentences of eight years at thirty percent for the attempted second degree
murder and fifteen years at one hundred percent for the especially aggravated kidnapping. The
petitioner signed two formal agreements listing the two charges and the negotiated sentences.

        At the guilty plea hearing on May 28, 2004, the trial court informed the petitioner of his
constitutional right (1) to a jury trial, (2) to have the assistance of counsel, (3) to call witnesses on
his own behalf, (4) to confront and cross-examine witnesses called against him, (5) to have the court
issue subpoenas compelling the attendance of witnesses, (6) to remain silent or to testify, and (7) to
force the state to prove every element of the crime beyond a reasonable doubt. The trial court
explained to the petitioner the elements of the crimes of attempted second degree murder and
especially aggravated kidnapping. The trial court also presented the ranges of punishment for these
offenses.

        On November 1, 2004, the petitioner filed a petition for post-conviction relief alleging that
his guilty plea was involuntary and that he received the ineffective assistance of counsel. After
appointment of counsel, the petitioner filed an amended petition alleging the same two grounds.

        At the post-conviction hearing, the petitioner testified that he did not understand that a one
hundred percent release eligibility date meant that he would serve the entire sentence. He explained
that at one point during the guilty plea hearing, he was silent as to whether he understood the
sentence length. He said he only pled guilty because he did not want to put his family through any
trouble. The petitioner also said that he was taking Paxil for depression and that he requested a
mental evaluation but that his attorney did not see a reason for an evaluation. The petitioner said he
had a friend in law enforcement who told him that the state might be willing to offer the petitioner
a plea deal of ten years. The petitioner said that he told his attorney about this rumored offer, that
his attorney asked him what he wanted to do if the prosecuting attorney would not offer this deal,
and that he replied that he would take the fifteen-year plea agreement rather than go to trial. The
petitioner maintained, though, that he felt pressured into accepting the guilty plea.

        On cross-examination, the petitioner acknowledged he did not tell the trial court that he had
taken Paxil within twenty-four hours of his plea hearing. He acknowledged he told the trial court
that he was satisfied with his attorney and that he understood his agreement with the state. The
petitioner said his attorney told him that the prosecuting attorney would not allow less than a fifteen-
year sentence. However, the petitioner maintained he did not understand what “one hundred


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percent” meant despite his ongoing discussions with his friend in law enforcement and his G.E.D.
education.

         On redirect examination, the petitioner restated that he remained silent when the trial judge
first asked him if he understood that the one hundred percent release eligibility date meant he would
serve the entire sentence. However, on recross-examination, the petitioner admitted that the trial
judge asked him later if he understood the total sentence would be fifteen years with a one hundred
percent release eligibility date and that he replied that he understood the sentence.

         The petitioner’s attorney testified that he advised the petitioner not to expect to receive a
sentence of less than fifteen years if he went to trial unless he was acquitted on both charges. The
petitioner’s attorney said the petitioner was initially hesitant to accept the plea agreement because
of the requirement that he would serve the entire fifteen-year sentence. The petitioner’s attorney said
that he was “very careful” to explain to the petitioner that he would serve the entire sentence and that
he saw no indication whatsoever that the petitioner did not understand. The petitioner’s attorney
said that at the petitioner’s request, he asked about the rumored ten-year offer but that the
prosecuting attorney remained adamant that the fifteen-year sentence was the minimum offer. The
petitioner’s attorney said the petitioner then agreed to the plea arrangement.

        On cross-examination, the petitioner’s attorney said he advised the petitioner that voluntary
intoxication was not a defense under Tennessee law. He said he told the petitioner that he may have
suffered adverse effects from the Paxil but that his voluntary consumption of a jar of moonshine
practically negated this defense option. The petitioner’s attorney also said the petitioner never
requested a mental evaluation. The attorney said, though, that he would have pursued any potential
mental defense but that none was applicable based upon the petitioner’s consuming a jar of
moonshine. The petitioner’s attorney said he explained to the petitioner all of the rights he would
be waiving if he chose to plead guilty.

        Following the post-conviction hearing, the trial court dismissed the petition for post-
conviction relief. Regarding the voluntariness of the plea, the trial court found that the petitioner’s
testimony that he did not understand that one hundred percent meant the entire sentence was “simply
not credible.” Regarding the ineffective assistance of counsel, the trial court found that “discovery
was complete, that all possible defenses were explored, that every option and possible defense and
negotiation was explained completely to the petitioner, that all options were discussed completely
and fully; and that it was the petitioner’s informed decision to plead guilty.”

        On appeal, the petitioner contends that the trial court erred in dismissing his petition for post-
conviction relief. He claims that his guilty plea was involuntary and that he received the ineffective
assistance of counsel. The state contends that the petitioner’s plea was voluntary and that he did not
receive the ineffective assistance of counsel. We agree with the state.

       The burden in a post-conviction proceeding is on the petitioner to prove his grounds for relief
by clear and convincing evidence. T.C.A. § 40-30-110(f). On appeal, we are bound by the trial


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court’s findings of fact unless we conclude that the evidence in the record preponderates against
those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). Because they relate to mixed
questions of law and fact, we review the trial court’s conclusions as to whether counsel’s
performance was deficient and whether that deficiency was prejudicial under a de novo standard with
no presumption of correctness. Id. at 457.

                               I. INVOLUNTARY GUILTY PLEA

        The petitioner contends that his plea was involuntary. He claims that based upon his lack
of education and familiarity with the legal system, he did not understand that he would be required
to serve one hundred percent of his sentence. He argues that his silence during the guilty plea
colloquy supports his contention that his guilty plea was involuntary. The state contends that the
petitioner’s plea was voluntarily entered as evidenced by his oral and written acceptance of the plea.
We agree with the state.

       When evaluating the knowing and voluntary nature of a guilty plea, the United States
Supreme Court has held that “[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. 25, 31, 91 S. Ct. 160, 164 (1970). The court reviewing the
voluntariness of a guilty plea must look to the totality of the circumstances. See State v. Turner, 919
S.W.2d 346, 353 (Tenn. Crim. App. 1995). The circumstances include

               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.

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). A plea resulting from ignorance,
misunderstanding, coercion, inducement, or threats is not “voluntary.” Id.

        The trial court is charged with determining if the guilty plea is “knowing” by questioning the
defendant to make sure he fully understands the plea and its consequences. State v. Pettus, 986
S.W.2d 540, 542 (Tenn. 1999); Blankenship, 858 S.W.2d at 904. In Boykin v. Alabama, the United
States Supreme Court clearly enunciated that certain constitutional rights are implicated in a plea of
guilty, namely, the right to a trial by jury, the right to confront witnesses, and the privilege against
compelled self-incrimination, and that it would not presume a waiver of these three important rights
from a silent record. 395 U.S. 238, 243, 89 S. Ct. 1709, 1712 (1969). Rule 11(c)(3) of the
Tennessee Rules Criminal Procedure outlines advice to be given a defendant entering a plea and
explicit procedures for ensuring on the record that pleas of guilty are voluntarily and understandingly



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made. However, only the constitutionally grounded rights stated in Boykin are addressable, per se,
under the Post-Conviction Procedure Act. See State v. Prince, 781 S.W.2d 846, 853 (Tenn. 1989).

       The following colloquy relating to the petitioner’s claim that his guilty plea was involuntary
occurred at the petitioner’s guilty plea hearing:

               THE COURT: Can you read and write?
               [THE PETITIONER]: Yes, sir.
               THE COURT: Without any difficulty?
               [THE PETITIONER]: Yes, sir.
               THE COURT: Anything about your health, physical, or mental
               condition that would cause you not to understand what we’re doing
               today?
               [THE PETITIONER]: No, sir.
               THE COURT: Have you had any alcohol or drugs in the last [twenty-
               four] hours?
               [THE PETITIONER]: No, sir.
               THE COURT: Do you understand what you’re charged with?
               [THE PETITIONER]: Yes, sir.

                       ....

               THE COURT: For especially aggravated kidnapping . . . it does carry
               with it a one hundred percent release eligibility date. You have to
               serve all the sentence. Do you understand that?
               [THE PETITIONER]: [SILENT]
               THE COURT: Is this your signature on this paper, waiving your
               rights and pleading guilty to those charges?
               [THE PETITIONER]: Yes, sir, it is.
               THE COURT: Have you read it, and do you understand it?
               [THE PETITIONER]: Yes, sir.

                       ....

               THE COURT: Are you pleading guilty because you are guilty?
               [THE PETITIONER]: Yes, sir.
               THE COURT: Do you do so freely and voluntarily and of your own
               free will?
               [THE PETITIONER]: Yes, sir.
               THE COURT: Any force or threats of any kind used against you to
               cause you to plead guilty?
               [THE PETITIONER]: No, sir.



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                       ....

               THE COURT: Do you understand correctly that . . . for the attempted
               second degree murder there will be a sentence of eight years, for the
               especially aggravated kidnapping it will be a sentence of fifteen years;
               those sentences are to be served concurrently with each other so you
               will have a total effective sentence of fifteen years with a one hundred
               percent release eligibility date. Is that your complete agreement and
               what you ask me to approve?
               [THE PETITIONER]: Yes, sir.

        We conclude that the petitioner has failed to carry his burden of proving by clear and
convincing evidence that his guilty plea was involuntary. The record reflects that the petitioner
acknowledged his sentence would be fifteen years at one hundred percent in his negotiated plea
document and at the guilty plea hearing. Further, the petitioner’s attorney testified at the post-
conviction hearing that the petitioner originally hesitated to plead guilty because he did not want to
serve a term of fifteen years in confinement. He said, however, that the petitioner understood the
terms of the agreement. The petitioner is not entitled to relief on this issue.

                    II. THE INEFFECTIVE ASSISTANCE OF COUNSEL

         The petitioner next contends that he received the ineffective assistance of counsel because
his attorney did not investigate and develop all substantial defenses and did not continue negotiations
with the prosecuting attorney to reach a better plea offer. The state contends that the petitioner did
not receive the ineffective assistance of counsel. We agree with the state.

        When a petitioner claims that the ineffective assistance of counsel resulted in a guilty plea,
the petitioner must prove that counsel performed deficiently and that, but for counsel’s errors, the
petitioner would not have pled guilty and would have insisted upon going to trial. Hill v. Lockhart,
474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985). In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975),
our supreme court decided that attorneys should be held to the general standard of whether the
services rendered were within the range of competence demanded of attorneys in criminal cases. In
reviewing counsel’s conduct, a “fair assessment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland
v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065; see Hellard v. State, 629 S.W.2d 4, 9
(Tenn. 1982).

        At the post-conviction hearing, the petitioner’s trial attorney testified that he explored the
possibility of asserting a mental defense but ultimately concluded such a defense was not viable
given the petitioner’s consumption of a jar of moonshine. The attorney also testified that after the
petitioner informed him of the state’s potential willingness to extend the petitioner an offer of a ten-
year sentence, he approached the prosecuting attorney to determine whether the rumor had merit.
He said, however, that the prosecution was unwilling to consider any negotiated plea agreement with

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a sentence of less than fifteen years. We conclude the evidence does not preponderate against the
trial court’s finding that the petitioner’s attorney’s performance was not constitutionally deficient.
The petitioner is not entitled to relief on this issue.

                                          CONCLUSION

         Based upon the foregoing and the record as a whole, we affirm the judgment of the trial
court.



                                              _________________________________
                                              JOSEPH M. TIPTON, JUDGE




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