         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs March 13, 2002

                 COREY L. MALONE v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Davidson County
                         No. 97-A-69    J. Randall Wyatt, Jr., Judge



                     No. M2001-02133-CCA-R3-PC - Filed March 22, 2002


The petitioner originally pled guilty, pursuant to a negotiated plea agreement, to second degree
murder and especially aggravated robbery for an effective sentence of twenty years. The petitioner
filed a post-conviction relief petition, which was denied by the post-conviction court. In this appeal,
the petitioner contends (1) he received ineffective assistance of counsel, and (2) his guilty pleas were
unknowingly and involuntarily entered. After review, we affirm.

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

JOE G. RILEY, J., delivered the opinion of the court, in which THOMAS T. WOODALL and JOHN
EVERETT WILLIAMS, JJ., joined.

Mike Anderson, Nashville, Tennessee, for the appellant, Corey L. Malone.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
Victor S. (Torry) Johnson, III, District Attorney General; and Kymberly Haas, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                              OPINION

                        POST-CONVICTION HEARING TESTIMONY

        Trial counsel testified she represented the petitioner at a trial which resulted in a hung jury.
She continued representing the petitioner as they prepared for retrial. After negotiations, the
petitioner entered a plea of guilty to second degree murder and especially aggravated robbery for
agreed concurrent sentences of twenty years to be served at one hundred percent. She stated she was
aware petitioner had suffered from depression and cocaine abuse and had been hospitalized during
the pendency of his case; she secured a psychological examination; and the petitioner had been
prescribed Prozac, though he did not appear to take it regularly. She explained, however, she
believed the petitioner was competent, sane, and fully aware of the details of the plea agreement.
She further explained the psychological examination was sought in an attempt to establish “that his
IQ was such that we could use that as an explanation for his [inculpatory] statement to the police,”
not to establish he was incompetent or insane.

         The petitioner testified he informed trial counsel he was suffering from depression. He
further stated that although he was taking Prozac, he was not allowed to take it while in custody prior
to the plea acceptance hearing because jail officials did not have a doctor’s statement. The petitioner
stated the Prozac would give him “a balance,” and without it, he was in “a depressed mode all the
time,” giving him “a sense of just like I didn’t care, you know.”

        On cross-examination, the petitioner conceded his trial counsel advised him the plea was for
“twenty years at one hundred percent,” and he knew at the time of the plea acceptance hearing that
he was pleading guilty and receiving an effective sentence of twenty years. However, he stated he
“just didn’t understand that [he] might have to serve a hundred percent of [his] sentence.”

        The transcript of the guilty plea hearing reveals that both the prosecutor, when announcing
the plea, and the trial court, when advising the petitioner about the sentence, expressly stated the
twenty-year sentence was “at one hundred percent.”


                       I. INEFFECTIVE ASSISTANCE OF COUNSEL

       The petitioner contends he received ineffective assistance of counsel. We disagree.

A. Standard of Review

        This court reviews a claim of ineffective assistance of counsel under the standards of Baxter
v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). The petitioner has the burden to prove that (1) the attorney’s
performance was deficient, and (2) the deficient performance resulted in prejudice to the defendant
so as to deprive him of a fair trial. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Goad v. State,
938 S.W.2d 363, 369 (Tenn. 1996); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). In Hill v.
Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), the Supreme Court applied the two-
part Strickland standard to ineffective assistance of counsel claims arising out of a guilty plea. The
Court in Hill modified the prejudice requirement by requiring a petitioner to show that there is a
reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would
have insisted on going to trial. 474 U.S. at 59, 106 S. Ct. at 370; Hicks v. State, 983 S.W.2d 240,
246 (Tenn. Crim. App. 1998).

        The trial judge's findings of fact on post-conviction hearings are conclusive on appeal unless
the evidence preponderates otherwise. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). This court
may not reweigh or reevaluate the evidence, nor substitute its inferences for those drawn by the trial
judge. State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn. 2001). Questions concerning the credibility

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of witnesses and the weight and value to be given to their testimony are resolved by the trial court,
not this court. Burns, 6 S.W.3d at 461.

B. Analysis

        Trial counsel testified she discussed details of the plea agreement with the petitioner prior
to the hearing, and she informed him he would serve a minimum of seventeen years, which is eighty-
five percent of twenty years. See Tenn. Code Ann. § 40-35-501(i). She further stated she had no
difficulty communicating with him; he was competent to enter the plea; and he was “crystal clear”
the minimum sentence he would serve was seventeen years. The petitioner conceded he had “several
discussions” with trial counsel prior to the plea hearing concerning the details of the negotiated plea
and was told by counsel that the plea was twenty years at one hundred percent.

       The trial court entered detailed written findings of fact which expressly accredited the
testimony of trial counsel and found no deficiency in trial counsel’s performance. The evidence does
not preponderate against these findings. This issue is without merit.


                                II. VOLUNTARINESS OF PLEA

        The petitioner contends his plea was not entered knowingly or voluntarily. We disagree.

A. Standard of Review

        The United States Supreme Court in Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709,
1713, 23 L. Ed. 2d 274 (1969), noted that a guilty plea must be knowing and voluntary. To ensure
that guilty pleas are entered “knowingly and intelligently,” Boykin instructs the trial court to discuss
with the accused the consequences of the decision. Id. at 244, 89 S. Ct. at 1712. Tennessee has
likewise recognized the requirement of a knowing and voluntary guilty plea. See State v. Mackey,
553 S.W.2d 337, 340 (Tenn. 1977).

B. Analysis

        Although the petitioner contends he was unable to understand the effective length of his
sentence, he conceded that trial counsel and the trial judge informed him he was to serve twenty
years at one hundred percent. The petitioner, however, explained he did not understand the meaning
of one hundred percent because he only finished the eighth grade. He said he erroneously told the
trial court he understood the sentence length because he was in a state of depression.

        In its findings, the trial court concluded “the petitioner understood his rights and the terms
of the agreement, and he knowingly, voluntarily, and intelligently chose to forego . . . another jury
trial and plead guilty under the agreed terms.” The evidence does not preponderate against these
findings. This issue is without merit.

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Based on the foregoing, we affirm the judgment of the trial court.




                                              ___________________________________
                                                    JOE G. RILEY, JUDGE




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