            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                               FILED
                                AT KNOXVILLE
                                                              January 4, 2000

                          OCTOBER SESSION, 1999              Cecil Crowson, Jr.
                                                            Appellate Court Clerk




ALICIA SHAYNE LOVERA,               *
                                    *     C.C.A. No. 03C01-9901-CC-00030
      Appellant,                    *
                                    *     SEVIER COUNTY
vs.                                 *
                                    *     Hon. REX H. OGLE, Judge
STATE OF TENNESSEE,                 *
                                    *     (Post-Conviction)
      Appellee.                     *



For the Appellant:                  For the Appellee:

Douglas A. Trant                    Paul G. Summers
Attorney for the Appellant          Attorney General and Reporter
900 S. Gay Street, Suite 1502
Knoxville, TN 37902                 Ellen H. Pollack
                                    Assistant Attorney General
                                    Criminal Justice Division
                                    425 Fifth Avenue North
                                    2d Floor, Cordell Hull Building
                                    Nashville, TN 37243-0493


                                    Alfred C. Schmutzer, Jr.
                                    District Attorney General
                                    Sevier County Courthouse
                                    125 Court Avenue, Suite 301-E
                                    Sevierville, TN 37962




OPINION FILED:

AFFIRMED



David G. Hayes, Judge
                                        OPINION



       The appellant, Alicia Shayne Lovera, appeals from the trial court’s denial of

her petition for post-conviction relief. In November 1994, the appellant was charged

with the first degree premeditated murder of her husband Kelly J. Lovera. A Sevier

County jury found the appellant guilty of the offense charged. Prior to the

sentencing hearing, the appellant, pursuant to a negotiated plea with the State, pled

guilty to first degree murder in return for a sentence of life with the possibility of

parole. The appellant filed a pro se petition for post-conviction relief, alleging, inter

alia, ineffective assistance of trial counsel. The petition was amended following

appointment of counsel. After a hearing on the petition, the Sevier County Criminal

Court dismissed the petition. This appeal follows.



       After review of the record, we affirm.




                                      Background



       On November 6, 1994, United States Park Rangers located a Jeep at the

bottom of a one hundred foot embankment on U.S. Highway 441. Inside the Jeep,

they discovered the body of the deceased, Kelly J. Lovera. The deceased had

multiple wounds to the head. An investigation ensued resulting in the arrest of the

appellant and Brett Rae, the co-defendant in this case and the alleged lover of the

appellant.



       The appellant and her co-defendant were jointly tried. A jury found both the

appellant and her co-defendant guilty of first degree murder. Although the death

penalty was not sought, the State had provided notice that it was seeking a

sentence of life without the possibility of parole. On the morning of the sentencing


                                           2
hearing, the appellant entered into an agreement with the State which provided that

she would plead guilty to first degree murder in exchange for a sentence of life with

the possibility of parole. In return, the State relinquished the right to seek a

sentence of life without parole. The judgment form also reflects that the appellant

waived her right to file either a direct appeal or a collateral post-conviction attack of

her conviction.1



         On March 12, 1997, the appellant filed the instant petition for post-conviction

relief. The petition may be generally summarized as alleging (1) trial counsel was

ineffective for failing to advise her of issues viable for direct appeal of her conviction;

(2) her plea was coerced and involuntary; and (3) that her conviction is void as

violating the protection against double jeopardy.2



         A hearing was held on the petition on December 17, 1998. The appellant

testified that she was originally represented by retained counsel, who “did absolutely

no preparation for almost nine months.” After retained counsel was permitted to

withdraw, the court appointed the Office of the Public Defender as substitute

counsel. The appellant explained that she only met with the public defender

“several times.” She admitted that “I know he tried to get it delayed so that he could

have more time to prepare. As far as what he actually did to prepare I’m not

knowledgeable enough to know exactly what he did.” The appellant continued to

provide illustrations of her counsel’s alleged ineffectiveness including, his advice

encouraging her to testify at trial, his failure to object to hearsay testimony, and his

failure to prepare for the sentencing hearing. She conceded that counsel did advise



         1
          Neither a tran scrip t of the guilty ple a hea ring n or a c opy of the p lea ag reem ent is
prov ided in the re cord on ap pea l.

         2
          Included within the petition are numerous claims of error, including but not limited to:
         (1) The appellant was questioned by police after she requested counsel; (2)
         Bruton violations; (3) Brady issues; (4) failure to grant change of venue; (5)
         prosec utorial m iscondu ct; (6) failure to object to h earsay; (7 ) denied rig ht not to
         testify; (8) trial counsel misstated facts; (9) search warrant invalid; (10)
         unconstitutional search of her person; (11) range of punishment jury instruction.

                                                       3
her that issues regarding the search of her apartment could be raised on appeal in

addition to challenging the results of the “Luminol” test introduced at trial which

established the presence of blood at the crime scene.



       With regard to her guilty plea, the appellant stated that, when first

approached by counsel about the possibility of a plea immediately following the

jury’s verdict, she informed counsel that she “couldn’t answer him . . .she couldn’t

even think much less give him an answer.” The next morning, when counsel again

questioned the appellant about the plea, she responded that “I thought I probably

ought to keep whatever rights I had left. . . .” The appellant stated, that counsel

informed her that the State had new evidence against her and that if she accepted

the plea bargain she would be able to see her children within the next ninety days.

She averred that trial counsel informed her that she “would probably do eighteen”

years on a sentence of life with the possibility of parole and that she later discovered

that she would have to serve a minimum twenty-five years before reaching parole

eligibility. The appellant conceded that she agreed to accept the plea agreement,

however, she did “not really” understand that she was relinquishing her right to a

direct appeal, post-conviction relief, and habeas corpus relief. She admitted that

she understood that she was pleading guilty to the offense although she had been

found guilty by a jury, specifically she inquired if she could plead no contest instead

of pleading guilty. The appellant admitted that the trial court informed her of her

rights, including her right to appeal. She stated that, in hindsight, she “gained

absolutely nothing” from her plea and that “[she] would have been a whole lot better

off to let you all give me life without parole, because then I wouldn’t have waived all

my rights.”



       On cross-examination, the State elicited from the appellant that she was an

honor student in high school and, after graduating, attended college for one and

one-half years. She conceded that her trial counsel filed an interlocutory appeal on


                                          4
the search and seizure issue and that he had informed her that this issue was

meritorious for appeal.



       The appellant’s trial counsel testified on behalf of the State. Counsel stated

that, after being appointed to represent the appellant, he met with her “on numerous

occasions” to discuss her case, specifically on the issue of her testifying. Counsel

stated that he “never told her she had to testify” and that “[s]he never told [him] she

did not want to testify.” Indeed, he remarked that the appellant “always did want to

get up and tell her side of the story.” Counsel explained that, after the guilty verdict

had been returned by the jury, he discussed a plea agreement with the State

wherein the appellant would agree to a sentence of life with the possibility of parole

in exchange for waiving the right to challenge the conviction on appeal. When he

presented the offer to the appellant, counsel reviewed “specific issues” that were

cognizable on appeal. The appellant agreed to relinquish her right to appeal in

exchange for accepting a sentence of life with parole. Counsel informed her that

“an earliest eligibility for parole [was] at twenty-five years.” As an additional

condition of her acceptance, although not specifically a part of the plea, an

arrangement was made for the appellant to visit with her children on at least one

occasion within ninety days following entry of her plea. Counsel stated that the trial

court also clearly advised the appellant of the effect of her plea for future challenges

to the conviction.



       Regarding potential aggravating and mitigating proof for the sentencing

hearing, counsel remarked:



       . . .we discussed this was a difficult case to mitigate after the jury had
       rendered their judgment. It’s unlike most other cases I’ve ever dealt
       with where you’ve got an obvious explanation for you client’s behavior
       and somehow you can explain that to the jury.
       But basically, you know, we had prepared, were prepared to present
       evidence of course of the untimely and unfortunate death of Brent Mills
       who she was very close to as well as other evidence regarding her, the
       person she was. That was presented, a lot of it, in the guilt/innocence

                                          5
      phase, as to just what an outstanding person she was particularly in
      high school as I remember. And we had teachers of hers in high
      school that would testify as to her outstanding character in high school.
      Her current employer at the time just prior to her incarceration that
      would testify as to her good character, that she was a good worker and
      that sort of thing.


      After hearing closing argument of respective counsel, the trial court stated its

findings of fact and conclusions of law on the record:

      . . .[T]he issue is whether or not she knowingly and voluntarily waived
      her rights to appeal and agreed to a life sentence as opposed to life
      without parole. At that juncture right or wrong she stood guilty of First
      Degree Premeditated Murder. The evidence that had gone into the
      trial of this case was overwhelming against her. She was caught in lie
      after lie and in all candor the Court would have to say that her memory
      at least is pretty selective as she sits here today. She says that she
      didn’t understand this and she didn’t understand that but she was the
      one that brought up about a nolo plea to her attorney. The Court finds
      she is very intelligent, that she knew what was going on.

      ...

      Prior to taking this plea agreement,. . . this Court went through those
      rights very specifically with Mrs. Lovera and asked her and gave her
      every opportunity to discuss with the Court those issues. And she said
      certainly in there that [counsel] had done the best that he could. . . .

      ...

      But to say . . . that [counsel] should have guaranteed her any outcome
      on appeal certainly is not correct. . . .[I]n effect it is asking [counsel] . . .
      to be a fortune teller. And unfortunately for Mrs. Lovera she had to
      make a decision then. She had to either go to a hearing on life without
      parole or take a life sentence. . . . I am satisfied that she understood
      what was going on. Obviously she wasn’t happy . . . but happy is not
      what first degree murder trials are about. She made some tough
      choices both during the trial, she got caught in some very horrendous
      lies that destroyed her defense. And she comes back in here today
      and tries to lie again.

       ...

       And it is clear that Mrs. Lovera always has a lot to say but she has
       always got caught up in her own misstatements and she has here
       today. Her evidence is not credible as to what she says [counsel] did
       or did not tell her. The Court finds that [counsel] has been very
       credible and did everything that he could do. He fully advised her of
       her right to appeal. She and I discussed that and she waived her
       rights to appeal. She and I discussed that and she waived her rights
       to appeal in exchange for a life sentence and that’s what she got.

       The Court finds that the petition for post-conviction relief and or
       habeas corpus is completely without merit and the same is hereby
       dismissed . . . .


                                           6
                                                    Analysis



                       I. Waiver of Right to Post-Conviction Remedies



         As part of the appellant’s guilty plea, she agreed to waive her right to both a

direct appeal of her conviction and her right to pursue post-conviction remedies.

Obviously from the posture of this case, this waiver provision was not enforced

against the appellant as she did seek post-conviction relief. Thus, the initial inquiry

before this court is whether this proceeding was properly entertained by the trial

court and, subsequently, whether this cause is properly before this court. After

consideration of constitutional principles, we conclude that this case is properly

before this court.



         Although a criminal defendant may waive the right to a direct appeal as part

of a plea agreement,3 we conclude today that a defendant may not waive his or her

right to post-conviction remedies as part of a plea agreement. But see State v.

John Joseph Villaneuva, C.C.A. No. 93 (Tenn. Crim. App. at Knoxville, May 30,

1991), perm. to appeal denied, (Tenn. Jan. 6, 1992) (upholding waiver of right to

raise ineffective assistance of counsel claim in post-conviction proceeding). Post-

conviction proceedings are significantly different from a direct appeal. Unlike a

direct appeal, a post-conviction proceeding provides a means of collaterally

attacking the constitutional validity of a conviction. See generally Tenn. Code Ann.

§ 40-30-203 (1997). And, although, generally, a guilty plea entered on the


         3
            Plea bargains are contractual in nature and therefore, the “negotiated plea represents a
bargained for quid pro quo.” See Unite d Sta tes v. Esc am illa, 975 F.2d 568, 571 (9 th Cir. 1992 ).
Thu s, a p rovis ion in th e plea agre em ent w aiving the d efen dan t’s righ t to pu rsue a dire ct ap pea l is
a barga ined for ele men t of the agr eem ent. See United States v. Gonzalez, 981 F.2d 1037 (9 th Cir.
1992). T his provisio n is enfor ceable a s long as the waive r is know ing and vo luntary. See State
v. McKissack, 917 S.W .2d 714, 715 (Tenn. Crim . App. 1995) (footnote omitted). See, e.g., United
State s v. M arin , 961 F.2d 493, 496 (4 th Cir. 1992 ); United States v. Bolinger, 940 F.2d 478, 480
(9 th Cir. 1991).

                                                       7
competent advice of counsel will be held to waive the majority of the fundamental

protections afforded by the Constitution,4 a guilty plea cannot waive jurisdictional

defects. Additionally, a guilty plea cannot waive those constitutional challenges to

the resulting conviction if the plea itself was not knowingly and voluntarily entered

upon competent advice of counsel. If post-conviction remedies could be waived, a

defendant would be precluded from challenging an involuntary guilty plea or one

entered upon the ineffective assistance of counsel. It would be unconscionable and

against the public policy of this state to insulate a conviction from such challenges.

Accordingly, we hold that the portion of the judgment in the case sub judice waiving

the appellant’s right to make application for post-conviction relief is void and

unenforceable. See, e.g., Majors v. State, 568 N.E.2d 1065, 1067-1068 (Ind. Ct.

Ap. 1991); Hood v. State, 890 P.2d 797, 798 (Nev. 1995). Cf. United States v.

Astacio, 14 F. Supp.2d 816, 818-819 (E.D. Va. 1998) (holding, even where a

defendant has waived his statutory right to bring a § 2255 motion, he may

nonetheless raise claims of ineffective assistance of counsel and the voluntariness

of the guilty plea) (citing United States v. Wilkes, 20 F.3d 651, 652- 653 (5 th Cir.

1994); United States v. Pruitt, 32 F.3d 431, 432-433 (9 th Cir. 1994); United States v.



Abarca, 985 F.2d 1012, 1014 (9 th Cir. ), cert. denied, 508 U.S. 979, 113 S.Ct. 2980

(1993)).




                                           II. Effect of Guilty Plea



         Preliminary to our review of the voluntariness of the guilty plea, we address

the precise posture of this case. Based upon her entry of a guilty plea following a

jury verdict, the appellant argues that her conviction violates the protections against

         4
          A guilty plea made voluntarily, understandingly, and knowingly effectively constitutes a
waive r of th e con stitutio nal rig hts a gains t com puls ory se lf-inc rim inatio n, the right to conf ront o ne’s
accusers, and the right to trial by jury, and, except under limited exceptions, the right to direct
appea l. See gene rally Tenn. R. Crim . P. 11(c); 37(b)(2).

                                                          8
double jeopardy. The Fifth Amendment to the United States Constitution and Article

1, Section 10 of the Tennessee Constitution protects the accused (1) against a

second prosecution after an acquittal; (2) against a second prosecution after

conviction; and (3) against multiple punishments for the same offense. State v.

Denton, 938 S.W.2d 373, 378 (Tenn.1996). Double jeopardy becomes a factor only

when the defendant faces retrial or multiple punishments for the same crime.

Accordingly, the appellant’s argument based on the constitutional protection against

double jeopardy is without merit.



        There are no limitations under the Tennessee Constitution, Criminal Code, or

Rules of Court which would per se prohibit the entry of a guilty plea after a jury

verdict had been returned.5 A guilty plea is in itself a conviction and is conclusive as

to the defendant’s guilt. Thus, under the circumstances before us in this case, we

construe the appellant’s subsequent entry of a guilty plea to effectively supercede

the jury verdict of first degree premeditated murder. 6 Cf. Haskins v.

Commonwealth, 500 S.W.2d 407, 408-409 (Ky. App. 1973). But see Daye v.

Commonwealth, 467 S.E.2d 287, 289 (Va. Ct. App. 1996) (entry of guilty plea after

jury verdict is moot). The effect of the guilty plea is to nullify, for all practical

purposes, the guilt phase of the trial. Thus, when examining her guilty plea for

constitutional infirmities, the reviewing court places the appellant in the same

posture as if she had not proceeded to trial.




        5
           The provision in Rule 11 requiring notice to the court of the existence of a plea
agreem ent prior to trial is n ot a bar to e ntering a g uilty plea but rath er, “subs ection (e) (5) . . .
permits the trial judge to impose reasonable pretrial time limits on the court’s consideration of plea
agreements, a practice which will allow maximum efficiency in the docketing of cases proceeding
to trial on pleas of not guilty.” See Advisory C omm ission Co mm ents, Te nn. R. C rim. P. 11 .

        6
           It is without doubt that plea bargaining is an important and widely utilized tool of the
crimina l justice syste m for resolving p rosecu tion quick ly and econ omic ally. See Blackledge v.
Allison, 431 U.S. 63, 97 S.Ct. 1621 (1977). By entering into a plea agreement, a defendant
admits guilt of the substantive offense often, as in the present case, in excha nge for a more
lenient sen tence. T he cou rts mu st enforc e the def endan t’s prom ise, unless otherwis e show n to
be involuntary or unknowingly entered, in order to carry out the policies that underlie plea
bargain ing. See gene rally People v. Fearing, 442 N.E.2d 939, 941 (Ill. App. 1982).

                                                    9
                             III. Post-Conviction Claims



       Based upon our ruling that the appellant’s conviction for first degree murder

stems from her plea of guilty to that offense rather than from a jury verdict, our

review is limited to the voluntary nature of the plea and the ineffective assistance of

counsel regarding the plea. Specifically, in her petition, the appellant alleges that

double jeopardy bars her conviction and her plea was involuntary because counsel

had failed to advise her of the waiver of her constitutional rights, counsel failed to

inform her of viable issues for appeal, counsel misinformed her as to her parole

eligibility date, counsel failed advise her of and failed to prepare for a sentencing

hearing, and she was coerced into entering the plea out of fear of not being able to

visit with her children.




       A trial court’s findings of fact in a post-conviction hearing are conclusive on

appeal unless the evidence in the record preponderates against those findings.

See Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990); Clenny v. State, 576

S.W.2d 12, 14 (Tenn. Crim. App. 1978), cert. denied, 441 U.S. 947, 99 S.Ct. 2170

(1979). Allegations of deficient performance of counsel and possible prejudice to

the defense are mixed questions of law and fact. See State v. Brenda Anne Burns,

No. W1996-0004-SC-R11-CD (Tenn. at Jackson, Nov. 8, 19990 (for publication).

Although we perform a de novo review of the issue, the appellant must still establish

his or her allegations by clear and convincing evidence. See Tenn. Code Ann. § 40-

30-210(f) (1997).



       Once a guilty plea has been entered, effectiveness of counsel is relevant only

to the extent that it affects the voluntariness of the plea. In this respect, such claims


                                         10
of ineffective assistance necessarily implicate the principle that guilty pleas be

voluntarily and intelligently made. See North Carolina v. Alford, 400 U.S. 25, 31, 91

S.Ct. 160, 164 (1970).



       In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366 (1985), the United States

Supreme Court addressed the issue of alleged involuntary guilty pleas resulting from

erroneous or negligent advice by trial counsel. The result reached was the

formulation of a merger of the Strickland test for ineffective assistance and the

traditional requirements for a valid guilty plea. The Strickland test provides that, to

prevail on a claim of ineffective counsel, the defendant must establish that (1) the

services rendered by counsel were deficient and (2) he/she was prejudiced by the

deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 2064 (1984); Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993). As

applied to guilty pleas, the first prong, deficient performance remains the same, i.e.,

counsel failed to exercise the customary skill and diligence that reasonably

competent counsel would provide under similar circumstances. See Baxter v. Rose,

523 S.W.2d 930, 936 (Tenn. 1975); Walton v. State, 966 S.W.2d 54, 54-55 (Tenn.

Crim. App. 1997). However, the prejudice requirement focuses on whether

counsel’s ineffective performance affected the outcome of the plea process. Hill v.

Lockhart, 474 U.S. at 58, 106 S.Ct. at 370. In other words, in order to satisfy the

prejudice requirement, the defendant must show that there is a reasonable

probability that, but for counsel’s errors, he would not have pled guilty and would

have insisted on going to trial. Id.; See also Walton, 966 S.W.2d at 55.



       Generally, the “prejudice” inquiry will closely resemble the inquiry engaged in

by courts reviewing ineffective assistance challenges to convictions obtained

through a trial. Hill v. Lockhart, 474 U.S. at 59, 106 S.Ct. at 370. Indeed, the focus

is not only upon the actual “error” committed by counsel, but whether had counsel

acted competently (1) would counsel have changed his recommendation as to the


                                         11
plea or (2) would the competent performance have been likely to change the

outcome of a trial. See Hill v. Lockhart, 474 U.S. at 59, 106 S.Ct. at 370-371.



        In the present case, the post-conviction court concluded that the appellant

received the competent assistance of counsel and, consequently, entered her plea

knowingly and voluntarily. A trial court’s findings of fact in a post-conviction hearing

are conclusive on appeal unless the evidence in the record preponderates against

those findings. See Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Clenny

v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978), cert. denied, 441 U.S. 947, 99

S.Ct. 2170 (1979).7 The appellant has failed to include the transcript of prior

proceedings, specifically a transcript of the guilty plea proceeding, in the record

before this court. See Tenn. R. App. P. 24(b). This Court, therefore, is precluded

from conducting an appropriate review on appeal. See State v. Ballard, 855

S.W.2d 557 (Tenn.1993). Accordingly, "[i]n the absence of an adequate record on

appeal, this court must presume that the trial court's rulings were supported by

sufficient evidence." State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App.1991).



        Additionally, in evaluating the knowing and voluntary nature of a guilty plea,

the United States Supreme Court held, "[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. at 31, 91 S.Ct. at

164. In making this determination, the reviewing court must look to the totality of

the circumstances. State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App.1995),

perm. to appeal denied, (Tenn.1996). See also Chamberlain v. State, 815 S.W.2d



        7
           Notwithstanding this general rule, in State v. Brenda Anne Burns, No. W1996-00004-SC-
R11-CD (T enn. at Jackson, No v. 8, 1999) (for publication), our supreme court held that “[c]ases
that involve mixed questions of law and fact are subject to de novo review.” (citing Harries v.
State , 958 S.W .2d 799, 802 (Tenn. Crim . App. 1997)). Specifically, the supreme court
determined that issues involving alleged deficient performance of counsel and possible prejudice
to the defe nse are mixed question s of law an d fact. See State v. Brenda Anne Burns, No.
W1996-00004-SC-R11-CD. Although we perform a de novo review of the issue, the appellant
mus t still establish his o r her allega tions by clea r and co nvincing e vidence . See Tenn. Code Ann.
§ 40-30-210(f) (1997).

                                                  12
534, 542 (Tenn. Crim. App.1990), perm. to appeal denied, (Tenn.1991). Indeed, “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[/her] familiarity with criminal proceedings; whether

he[/she] was represented by competent counsel and had the opportunity to confer

with counsel about the options available to him[/her]; the extent of advice from

counsel and the court concerning the charges against him[/her]; and the reasons for

his[/her] 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).




       With these criteria considered, we conclude that the record supports the trial

court’s findings that counsel had informed the appellant of her right to appeal

(including possible issues for appeal), provided relevant sentencing information, and

properly advised her regarding the waiver of her constitutional rights. The record

supports the trial court’s conclusion that the appellant’s guilty plea was knowingly

and voluntarily entered upon the competent advice of counsel.



       After a full consideration of the record, we conclude that the appellant has

failed to establish either prong of the Hill v. Lockhart test. For these reasons, we

affirm the judgment of the trial court.




                                    ____________________________________
                                    DAVID G. HAYES, Judge




                                          13
CONCUR:




_______________________________________
JOSEPH M. TIPTON, Judge



_______________________________________
DAVID H. WELLES, Judge




                               14
