         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs December 2, 2003

                 JAMES MILES PECK v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Davidson County
                        No. 2001-A-500   J. Randall Wyatt, Jr., Judge


                     No. M2003-00486-CCA-R3-PC - Filed March 25, 2004


The petitioner appeals the lower court’s denial of his post-conviction relief petition. The petitioner
entered a plea of nolo contendere to aggravated assault as a Range II offender, for which he was
sentenced to ten years’ incarceration at 35 percent. He contends on appeal that his trial counsel was
ineffective for failing to properly investigate his case and that his plea was entered involuntarily. We
affirm the judgment of the post-conviction court.

               Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which ALAN E. GLENN and
ROBERT W. WEDEMEYER , JJ., joined.

Matthew Mayo, Nashville, Tennessee, for the appellant, James Miles Peck.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Michael D. Rohling, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                              OPINION

                The petitioner was indicted on two counts of aggravated kidnapping and one count
of aggravated assault. On July 6, 2001, pursuant to a plea agreement, the petitioner pled nolo
contendere to the aggravated assault charge and received a ten-year sentence as a Range II offender
at 35 percent. The petitioner filed a petition for post-conviction relief, alleging he received
ineffective assistance of counsel and, as a result, entered his plea involuntarily.

                Defense counsel, an assistant public defender, testified that assistant public defender
Mike Engle represented the petitioner in an unrelated matter prior to her appointment. Defense
counsel testified Engle helped the petitioner with a probation violation that ran concurrently with the
charges she was assigned to defend.

              Defense counsel testified that she spoke with the petitioner on six occasions for a total
of over four hours. Defense counsel visited the petitioner where he was incarcerated on three
occasions, and three other meetings took place at the courthouse. She discussed possible defenses
to the charges, including attacking the credibility of the victim and the possibility of using the
victim’s alleged history of drug abuse to discredit her testimony.

                 Defense counsel completed an investigative request form in the public defender’s
office in order to obtain a statement from the victim. She recalled making efforts to reach the victim
and stated that she believed, but could not be certain, that someone from the public defender’s office
did speak with the victim. Defense counsel testified that the petitioner asked her to obtain the
victim’s medical records to show that the victim was on drugs at the time of the alleged incident.
After requesting the information from the district attorney’s office, defense counsel was told that no
such records existed. Defense counsel, however, did have the medical records relating to the
victim’s current injuries.

                Defense counsel testified that the petitioner laughed in response to the initial plea
offer by the district attorney’s office of twelve years at 100 percent. On July 5, 2001, the petitioner
told defense counsel that he would plead guilty to aggravated assault for twelve years at 30 percent.
Defense counsel testified she reviewed the plea petition with the petitioner on July 6 and explained
his constitutional rights to him. She explained the likely outcome of going to trial and the effect of
the petitioner’s prior felony convictions on his sentencing if convicted.

                 Defense counsel stated that on July 6, she was adequately prepared to proceed to trial
on Monday, July 9. Defense counsel secured the offer of ten years at 35 percent and advised the
petitioner that in her opinion accepting the plea agreement was in his best interests. She stated that
the petitioner expressed his understanding of the legal proceedings, explained what he wanted, and
was able to discuss the legal process because of his previous experience in the criminal justice
system.

               Mike Engle testified that he was appointed to represent the petitioner on a probation
violation warrant. He recalled he and the petitioner discussed both that case and the charge which
underlies the current appeal. Engle stated that he might have discussed with the petitioner the
possibility of working out both cases as part of a single plea, but Engle’s representation of the
petitioner concluded when the petitioner’s case was transferred from Division I to Division II.

               The petitioner testified he was initially charged with misdemeanor false imprisonment,
which resulted in the probation violation charge. The petitioner stated he spoke with Engle briefly
concerning the probation violation. The petitioner recalled he had no further contact with Engle after
arraignment on the new charges in criminal court.

                   The petitioner testified that defense counsel came to their first meeting with an offer
from the prosecution of twelve years at 35 percent, which he declined. He testified that defense
counsel told him that if he went to trial, he would receive twelve years at 100 percent. The petitioner
testified defense counsel said she had looked at his prior record and determined that he should not
testify at trial. The petitioner stated that he requested that defense counsel obtain the victim’s medical



                                                   -2-
records, which he contended would reveal the victim’s injuries were sustained prior to the
petitioner’s alleged assault of her.

                The petitioner testified that at his second meeting with defense counsel, he asked her
if she had obtained the medical records, and she indicated she had not. The petitioner testified that
he told defense counsel that the charges against him could all be explained by the medical records.
He stated that he asked defense counsel whether she had spoken with the victim, and defense counsel
said that she had not. The petitioner testified that he gave defense counsel the victim’s telephone
number, and defense counsel indicated she would contact the victim.

                The petitioner recalled that his third meeting with defense counsel took place a few
days prior to the trial date. He stated that defense counsel told him that the prosecution had not
changed its offer and that it was in his best interests to plead guilty to serve twelve years at 35
percent. The petitioner declined the offer. He stated that at the time of this meeting, he was still
intent on going to trial. He testified that defense counsel could not have been prepared to go to trial
because she did not have the medical records that would substantiate his side of the story. The
petitioner stated that he took the new ten-year offer because “it was either take the offer [or] go to
trial and lose and be sentenced to additional time. I had no choice.”

               The petitioner conceded that defense counsel explained the possible punishment for
the charges against him and he was aware of his rights prior to entering his plea. The petitioner
acknowledged that the judge explained “everything” to him at the plea hearing, stating, “I know I
didn’t have to come in here and plead guilty.”

               The post-conviction court found that defense counsel’s representation of the petitioner
was competent and thorough and that the petitioner’s plea was entered knowingly and voluntarily.
The post-conviction court found that the petitioner failed to present evidence sufficient to establish
deficient performance by defense counsel, prejudice, or an involuntary plea.

                The post-conviction 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). Those findings of fact are afforded the weight of a jury verdict, and this court is
bound by the findings unless the evidence in the record preponderates against those findings. Jaco
v. State, 120 S.W.3d 828, 830 (Tenn. 2003). This court may not reweigh or reevaluate the evidence,
nor substitute its inferences for those drawn by the post-conviction court. State v. Honeycutt, 54
S.W.3d 762, 766 (Tenn. 2001). However, the post-conviction court’s conclusions of law are
reviewed under a purely de novo standard with no presumption of correctness. Fields v. State, 40
S.W.3d 450, 458 (Tenn. 2001).

                The petitioner contends that defense counsel provided him with ineffective assistance
due to her failure to interview the victim and to obtain allegedly exculpatory medical records.

                For a petitioner to successfully overturn a conviction based on ineffective assistance
of counsel, the petitioner must first establish that the services rendered or the advice given was below


                                                  -3-
“the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). Second, the petitioner must show that the deficiencies “actually had an
adverse effect on the defense.” Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052 (1984).
As to guilty pleas, the petitioner must establish that, but for counsel’s errors, petitioner would not
have entered the plea and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52,
59, 106 S. Ct. 366 (1985). This standard also applies to a plea of nolo contendere. Harold David
Jones v. State, No. 01C01-9805-CC-00222 (Tenn. Crim. App., Nashville, Apr. 8, 1999), perm. app.
denied (Tenn. 1999).

                The petitioner contends that if trial counsel had interviewed the victim, trial counsel
would have discovered the victim would offer exculpatory evidence. However, the petitioner failed
to produce the witness at the evidentiary hearing. We may not speculate as to what she might have told
trial counsel. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Likewise, the
petitioner testified medical records would show that the injuries inflicted upon the victim were
preexisting. However, the petitioner did not produce any medical records at the evidentiary hearing.
Without the benefit of such medical records, we are unable to conclude that the petitioner would not
have entered his plea had counsel secured the medical records. The petitioner has failed to establish
prejudice; thus, his claim of ineffective assistance of counsel is without merit.

                The petitioner contends that his plea was unknowingly and involuntarily entered.
However, no transcript of the plea hearing appears in the record before this court. It is the duty of
the accused to provide a record which conveys a fair, accurate and complete account of what
transpired with regard to the issues which form the basis of the appeal. Tenn. R. App. P. 24(b); see
State v. Taylor, 992 S.W.2d 941, 944 (Tenn. 1999). Therefore, this issue is waived for failure to
include the transcript in the appellate record. Regardless of waiver, we conclude that the plea was
voluntarily entered.

               There must be an affirmative showing that a plea is entered intelligently and
voluntarily. Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709 (1969). In determining the
voluntary and knowing nature of a plea, the appellate court must examine all relevant circumstances
which existed when the plea was entered. Brady v. United States, 397 U.S. 742, 749, 90 S. Ct. 1463
(1970); State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995).

                In the instant case, the post-conviction court implicitly accredited the testimony of
defense counsel. The post-conviction court found that the petitioner willingly entered into the plea
agreement. The record of the post-conviction hearing reveals the petitioner indicated his willingness
to reach a plea agreement prior to the date he entered his plea, actively took part in the process of
reaching a plea agreement, and communicated specific terms of an acceptable plea agreement to his
attorney prior to entering his plea. Moreover, the petitioner stated that defense counsel explained
his rights and the possible punishment prior to entering his plea. The petitioner acknowledged that
the judge explained “everything” to him, and the petitioner knew he did not have to enter the plea.




                                                 -4-
               Based upon our review of the record, we conclude the petitioner received the effective
assistance of counsel and knowingly and voluntarily entered his nolo contendere plea. We affirm
the judgment of the post-conviction court.




                                                       ____________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE




                                                 -5-
