           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON               FILED
                        OCTOBER 1998 SESSION            February 9, 1999

                                                     Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk

MARY BETH CARUTHERS,            )
                                )   C.C.A. NO. 02C01-9806-CC-00162
           Appellant,           )
                                )   OBION COUNTY
VS.                             )
                                )   HON. WILLIAM B. ACREE, JR.,
STATE OF TENNESSEE,             )   JUDGE
                                )
           Appellee.            )   (Post-Conviction)



FOR THE APPELLANT:                  FOR THE APPELLEE:


MARY ELLEN STEVENS                  JOHN KNOX WALKUP
313 South Third St.                 Attorney General & Reporter
Union City, TN 38261
                                    MARVIN E. CLEMENTS, JR.
                                    Asst. Attorney General
                                    Cordell Hull Bldg., 2nd Fl.
                                    425 Fifth Ave., North
                                    Nashville, TN 37243

                                    THOMAS A. THOMAS
                                    District Attorney General

                                    JIM CANNON
                                    Asst. District Attorney General
                                    P.O. Box 218
                                    Union City, TN 38281-0218




OPINION FILED:



AFFIRMED


JOHN H. PEAY,
Judge
                                          OPINION



               On June 3, 1996, the petitioner entered a negotiated plea of guilty to

attempted first-degree murder and aggravated arson. Pursuant to the plea agreement,

the petitioner was sentenced to concurrent fifteen year sentences as a Range I standard

offender. On May 27, 1997, upon learning that she would not be eligible for release until

she served eighty-five percent of her sentence, she filed a “Petition for Appeal of

Sentence,” claiming that her plea was involuntary and that she had received ineffective

assistance of counsel. Upon the petitioner’s request, the trial court treated the petition

for appeal of sentence as a petition for post-conviction relief. The trial court denied the

petition and the petitioner now appeals this decision. After a review of the record and the

applicable law, we find no merit to the petitioner’s appeal and thus affirm the judgment

of the court below.



               On January 17, 1996, the petitioner shot her fourteen-year-old disabled

daughter in the chest. The petitioner then set fire to the room in which her daughter was

lying. The fire consumed part of the trailer and both the petitioner and her daughter were

burned. Miraculously, the petitioner’s daughter survived both the gunshot wound and the

fire. During the police investigation, the petitioner was Mirandized and interrogated, and

she confessed to both of the crimes. The petitioner was then appointed counsel. The

petitioner’s counsel, Joseph Atnip, testified that he met with the petitioner approximately

four times while she was in jail. He stated that although the petitioner cried during their

entire first meeting, she was better able to communicate after she returned from a mental

evaluation.1 However, other than discussing the plea agreement form, he was never able

to discuss the facts of the case in detail with the petitioner. Mr. Atnip further testified that

he remembered discussing with the petitioner a thirty percent release eligibility date


       1
         The petitioner was evaluated at the Middle Tennessee Mental Health Institute where she was
found capable of adequately defending herself in a court of law.

                                                 2
regarding the attempted first-degree murder charge. However, he did not remember

discussing with the petitioner any release eligibility date regarding the aggravated arson

charge. Mr. Atnip believed that he was more focused on the charge of first-degree

murder than the charge of aggravated arson. He also testified that he would have

advised the petitioner to plead guilty pursuant to the plea agreement regardless of the

eighty-five percent release eligibility date for the aggravated arson charge.



               The State argues that the post-conviction court should have dismissed the

petition for post-conviction relief because it was filed outside of the applicable one year

statute of limitations. It is undisputed that the petitioner filed her petition for appeal of

sentence within one year of the final judgment. However, after that one year had passed,

the petitioner asked the post-conviction court to treat the petition as a petition for post-

conviction relief. The trial court granted her request, appointed her counsel, and allowed

her thirty days to amend the petition.



               The State argues that since the one year statute of limitations had already

expired by the time the petitioner asked the court to treat the petition as a petition for

post-conviction relief, the petition is barred. The State further argues that since the trial

court is required by T.C.A. § 40-30-206(a) to enter a preliminary order to a post-conviction

petition within thirty days of its filing, and the petitioner did not make her request until four

months after the original petition was filed, it should not have been treated as a post-

conviction petition.



               We note that a “trial court is not bound by the title of the pleading, but has

the discretion to treat the pleading according to the relief sought.” Flowers v. Traughber,

910 S.W.2d 468, 469-70 (Tenn. Crim. App. 1995) (citing Norton v. Everhart, 895 S.W.2d

317, 319 (Tenn. 1995)). It appears that the trial court did not know to treat this petition

for appeal of sentence as a post-conviction petition until it was retitled. After the petition

                                               3
was retitled, the trial court entered a preliminary order within thirty days in accordance

with the post-conviction statute. Even assuming that the time requirement of T.C.A. §40-

30-206 was not met, the statute does not proscribe a penalty where a court fails to

comply with the thirty day time period. There is nothing in the statute that would justify

prejudicing the petitioner and dismissing her petition because the trial court failed to

follow the time guideline set out in the statute. As such, this contention is without merit.



              The petitioner’s first contention is her guilty plea was not knowingly and

voluntarily made because at the time of the guilty plea neither she nor her attorney

considered the fact that she would have to serve eighty-five percent of her sentence for

aggravated arson. The post-conviction court found that although the petitioner was not

made aware of this release eligibility date, her guilty plea was still knowingly and

voluntarily made.



               “In post-conviction relief proceedings the petitioner has the burden of

proving the allegations in his [or her] petition by a preponderance of the evidence.”

McBee v. State, 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, the factual

findings of the trial court in hearings “are conclusive on appeal unless the evidence

preponderates against the judgment.” State v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim.

App. 1983).



              The United States Supreme Court has held that the standard in determining

whether a guilty plea is voluntary and knowing is “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 (1970). In addition, the Tennessee Supreme

Court has held that:

              [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

                                             4
              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). The defendant contends that

her guilty plea was unknowing and involuntary because she was not made aware of the

release eligibility date regarding her fifteen year sentence for aggravated arson.

However, this Court has held that “[i]t is not necessary that Appellant know the exact date

of his possible release for the plea to be voluntary.” Jerome Lamont Wolley v. State, No.

01C01-9311-CR-00402, Davidson County (Tenn. Crim. App. filed October 20, 1994, at

Nashville). This Court has further held that a guilty plea is not rendered constitutionally

invalid because a defendant is not informed about the details of her parole eligibility,

including the possibility that she is ineligible for parole. Rickey Sams v. State, No.

03C01-9511-CC-00368, Sullivan County (Tenn. Crim. App. filed November 14, 1996, at

Knoxville). The ultimate question in determining the voluntariness of a plea is whether

the defendant understood the consequences of his or her plea. Wolley, slip op. at 6

(citing Alford, 400 U.S. at 25). “Although the actual length of confinement is an important

consequence of the voluntariness calculus, it is the stated term of incarceration at the

sentencing and the formula for its calculation that are the direct consequences which

warrant actual knowledge on the part of Appellant.” Wolley, slip op. at 6.



              It is clear in the case at hand that the petitioner was made aware of the

stated term of incarceration (fifteen years). The fact that she was not told of an exact

date of release regarding the charge of aggravated arson does not render her guilty plea

unknowing and involuntary. As such, this contention is without merit.



              The defendant next argues that her guilty plea was rendered involuntary

and unknowing in light of the petitioner’s mental condition “in that she did not understand


                                            5
the guilty plea and did not understand her constitutional rights when she confessed to the

crime.” As stated previously, this Court is bound on appeal by the post-conviction court’s

findings of fact unless the evidence in the record preponderates otherwise. See McBee,

655 S.W.2d at 195. The post-conviction court specifically found that the petitioner’s guilty

plea was not involuntary and unknowing due to her mental condition because there was

no evidence to substantiate any claim of insanity. In fact, the court noted the petitioner

was found to be mentally competent at the time of the offense and mentally competent

to stand trial by the Middle Tennessee Mental Health Institute.



              It seems that the petitioner has confused the issue as to whether her pleas

were knowing and voluntary with the issue of whether she was competent to plead guilty.

These are two distinct issues. See Moten v. State, 935 S.W.2d 416, 420 (Tenn. Crim.

App. 1996).

              The focus of a competency inquiry is the defendant’s mental
              capacity; the question is whether he has the ability to underst-
              and the proceedings. The purpose of the “knowing and volunt-
              ary” inquiry, by contrast, is to determine whether the defendant
              actually does understand the significance and consequences of
              a particular decision and whether the decision is uncoerced.

Id. (quoting Godinez v. Moran, 509 U.S. 389, 401 n.12 (1993)). It seems that the

petitioner, as the appellant in Moten, is arguing that she was incompetent to enter her

guilty pleas. This Court has held that when it appears that an accused is incompetent to

waive his or her rights, it is the trial court’s duty to conduct a hearing to determine the

accused’s competence and, if necessary, order a psychiatric evaluation. Id. (citing

Berndt v. State, 733 S.W.2d 119, 122 (Tenn. Crim. App. 1987)). In the petitioner’s case,

the trial court ordered a psychiatric evaluation before she entered her guilty pleas. The

evaluation indicated that the petitioner was competent at the time of the offense and

capable of adequately defending herself in a court of law. As the petitioner has offered

no evidence to preponderate against the trial court’s finding that she was mentally

competent when she entered her guilty pleas, this contention is without merit.


                                             6
              The petitioner’s final contention is that the trial court erred in finding that she

had received the effective assistance of counsel. In reviewing the petitioner’s Sixth

Amendment claim of ineffective assistance of counsel, this Court must determine whether

the advice given or services rendered by the attorney are within the range of competence

demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.

1975). To prevail on a claim of ineffective counsel, a petitioner “must show that counsel’s

representation fell below an objective standard of reasonableness” and that this

performance prejudiced the defense. There must be a reasonable probability that but for

counsel’s error the result of the proceeding would have been different. Strickland v.

Washington, 466 U.S. 668, 687-88, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422

(Tenn. Crim. App. 1985). To satisfy the requirement of prejudice, the petitioner would

have had to demonstrate a reasonable probability that, but for counsel’s errors, he [or

she] would not have pled guilty and would have insisted on going to trial. See Hill v.

Lockhart, 474 U.S. 52, 59 (1985); Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim.

App. 1991).



              The post-conviction court held that the petitioner offered no evidence to

substantiate the claim that she received the ineffective assistance of counsel. The record

fully supports the findings of the trial court.



              The petitioner contends that Mr. Atnip was ineffective because he did not

advise her that her guilty plea to aggravated arson required that she serve eighty-five

percent of the sentence. Mr. Atnip admitted that he did not advise the petitioner of the

eighty-five percent release eligibility date with regard to a conviction for aggravated arson.

However, a petitioner claiming he or she received ineffective assistance of counsel must

prove not only that the counsel’s representation fell below an objective standard of

reasonableness, but also that this performance prejudiced the defense. Strickland, 466

U.S. at 687-88; Best, 708 S.W.2d at 422. In the case of a guilty plea, in order to show

                                              7
prejudice the petitioner must prove that but for counsel’s errors he or she would not have

pled guilty and would have insisted on going to trial. See Hill, 474 U.S. at 59; Bankston,

815 S.W.2d at 215.



              In the case at bar, even assuming the petitioner has shown that Mr. Atnip’s

representation fell below an objective standard of reasonableness because he failed to

inform her of the applicable release eligibility date, the petitioner has failed to prove that

but for counsel’s errors she would not have pled guilty. In fact, Mr. Atnip testified that had

he been aware of the eighty-five percent release eligibility date he still would have

advised the petitioner to plead guilty. In light of the strength of the evidence against her,

the petitioner has not proven she would have disregarded this advice and nonetheless

proceeded to trial. Thus, the petitioner has failed to prove prejudice.



              The petitioner next contends that Mr. Atnip was ineffective because he

failed to meet with her a sufficient amount of time to adequately advise her, failed to

investigate the facts surrounding her confessions, failed to advise the petitioner that

these confessions could be attacked and possibly excluded from evidence, failed to seek

the appointment of an independent psychological expert in the face of his own misgivings

about her competence, and failed to make any effort to develop any defense on her

behalf. However, Mr. Atnip met with the petitioner on at least four occasions while she

was in jail and discussed the case with her several times on the phone as well as through

other correspondence. Although Mr. Atnip testified that the petitioner was not able to

communicate with him during the first meeting, at subsequent meetings he was able to

go over the plea agreement form with her and discuss the case generally. He also

testified that the petitioner was better able to communicate after returning from her

mental evaluation at the Middle Tennessee Mental Health Institute. In addition, Mr. Atnip

testified that if the case had been going to trial he would have investigated the

confessions and the case more thoroughly. As such, the post-conviction court found that

                                              8
the petitioner had failed to offer evidence to substantiate these claims. As the petitioner

has failed to offer evidence that would preponderate against this finding, this contention

is without merit.



               The petitioner further contends that Mr. Atnip was ineffective because he

did not advise her that the jury would have been required to consider any applicable

lesser included offenses.    However, the post-conviction court found there was no

evidence to substantiate this claim and, as the petitioner has not offered any evidence

to preponderate against this finding, this contention is without merit.



               In sum, we agree with the post-conviction court’s findings that the

petitioner’s plea was voluntarily, understandingly, and knowingly made and that the

petitioner received effective assistance of counsel. We affirm the post-conviction court’s

denial of this petition.



                                                 ______________________________
                                                 JOHN H. PEAY, Judge



CONCUR:



______________________________
DAVID G. HAYES, Judge



______________________________
L. T. LAFFERTY, Senior Judge




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