            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE

                           SEPTEMBER 1996 SESSION        FILED
                                                            June 18, 1997

                                                         Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk
CHARLES HARRILL                    )    NO. 03C01-9605-CC-00185
                                   )
      Appellant                    )    BLOUNT COUNTY
                                   )
V.                                 )    HON. KELLY THOMAS, JR., JUDGE
                                   )
STATE OF TENNESSEE                 )    (Post-Conviction)
                                   )
      Appellee                     )
                                   )


FOR THE APPELLANT                       FOR THE APPELLEE

Mack Garner                             John Knox Walkup
District Public Defender                Attorney General and Reporter
419 High Street                         450 James Robertson Parkway
Maryville, Tennessee 37801              Nashville, Tennessee 37243-0493

Laura Rule Hendricks                    Michael J. Fahey, II       810
Henley Street                           Assistant Attorney General
Knoxville, Tennessee 37902              450 James Robertson Parkway
                                        Nashville, Tennessee 37243-0493

                                        Michael L. Flynn
                                        District Attorney General
                                        363 Court Street
                                        Maryville, Tennessee 37804-5906

                                         Kirk Andrews
                                         Assistant District Attorney General
                                         363 Court Street
                                         Maryville, Tennessee 37804-5906




OPINION FILED:______



AFFIRMED IN PART; DELAYED APPEAL GRANTED


William M. Barker, Judge
                                         Opinion

       The Appellant, Charles Harrill, appeals as of right the Blount County Circuit

Court’s dismissal of his post-conviction petition. He argues on appeal that his

constitutional right to effective assistance of counsel was violated. He claims

specifically that:

       (1)     His guilty plea was not knowing, voluntary, and intelligent.

       (2)     His lawyer failed to object when the trial court accepted his guilty plea in
       violation of State v. Mackey, 553 S.W.2d 337 (Tenn. 1977), and Rule 11 of the
       Tennessee Rules of Criminal Procedure.

       (3)     His lawyer failed to adequately interview potential witnesses prior to the
       guilty plea hearing.

       (4)     His lawyer failed to introduce sufficient proof at the sentencing hearing.

       (5)   His lawyer failed to object when the district attorney recommended that
       he serve his sentence in the Department of Correction.

       (6)   His lawyer failed to advise him of his right to appeal his sentence after
       the sentencing hearing.

After a careful review of the record on appeal, we grant the Appellant a delayed

appeal with respect to his sentences only. Regarding all other issues, however, the

trial court is affirmed.

                                   Factual Background

       On January 11, 1993, the Appellant raped his thirteen-year old adopted step-

daughter. Around 6:00 a.m. on that day, after the Appellant’s wife left for work, the

Appellant went into the bedroom where his step-daughter was resting on the bed. The

Appellant made the girl take off her panties, forcibly spread her legs, and sexually

penetrated her. When the incident was over, approximately thirty minutes later, the

Appellant told the young girl to take a shower and get ready for school. The Appellant

took the girl to school where she reported the incident to friends and school faculty. A

medical examination confirmed that the young girl had been vaginally penetrated.

       The Appellant’s lawyer tried to work out a plea bargain agreement with the

district attorney prior to trial. The Appellant wanted to serve his sentence in


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community corrections or at least get split confinement instead of a full prison

sentence. During the plea bargaining process, however, the district attorney learned

that the Appellant had a significant previous criminal history and refused to

recommend community corrections, but agreed to recommend an eight-year sentence

to be served in the manner decided by the trial court. On October 22, 1993, the

Appellant pled guilty to rape. On February 8, 1994, the trial judge sentenced him to

eight years imprisonment in the Department of Correction. No appeal was taken, but

later the Appellant filed this petition for post-conviction relief seeking to have his guilty

plea set aside. The trial court dismissed the petition and the Appellant now appeals.

                                         Argument

       The Appellant contends that he was denied effective assistance of counsel

under both the United States and the Tennessee Constitutions. In reviewing the claim

of ineffective assistance of counsel, this Court must determine whether the advice

given or services rendered by the attorney were within the range of competency

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

(Tenn. 1975). To prevail on a claim of ineffective assistance of counsel, a petitioner

“must show that counsel’s representation fell below an objective standard of

reasonableness” and that this performance prejudiced the plea process. Strickland v.

Washington, 466 U.S. 668, 687-88, 692, 694, 104 S.Ct. 2053, 2064, 2067-68, 80

L.Ed. 674 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985). To

satisfy the requirement of prejudice, an appellant must demonstrate a reasonable

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

insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88

L.Ed. 203 (1985); Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim App. 1991).

       The Appellant’s two first ineffective assistance of counsel claims concern

whether his guilty plea was knowing, voluntary, and intelligent. First he claims that his

counsel led him to believe that by pleading guilty he would receive a community

corrections sentence instead of a prison sentence, and that but for that

                                              3
misapprehension he would have gone to trial. He further claims that his lawyer failed

to object when the trial judge did not comply with the procedures established in

Mackey, 553 S.W.2d 337 and Rule 11 of the Tennessee Rules of Criminal Procedure

when accepting his guilty plea. Both issues are without merit.

       It is well-settled in American jurisprudence that a guilty plea must be knowing,

voluntary, and intelligent to be constitutionally valid. Boykin v. Alabama, 395 U.S. 238,

243, 89 S.Ct 1709, 1712, 23 L.Ed.2d 274 (1969). To insure that criminal defendants’

constitutional rights are protected, the Tennessee Supreme Court has developed a

procedure for trial judges accepting guilty pleas. Mackey, 553 S.W.2d 337. This

procedure requires the trial judge to address the defendant personally in open court

and makes sure that he understands the nature of the charges against him and the

maximum and minimum penalties provided by law. The trial judge must also make

sure that the Defendant knows that he has a right to counsel, that he has a right to not

plead guilty, that he has a right to a trial and to confront and cross-examine witnesses,

that he has a right to not incriminate himself, that there will be no further proceedings

except for a sentencing hearing, that he may be questioned about the offense by the

state or the court, that any statements made can be used against him, that the plea is

voluntary and not the result of any force, threat, or promise apart from the plea

agreement and that there is a factual basis for the plea. Id at 342. However, a guilty

plea does not necessarily become void or voidable because a trial judge does not

strictly follow Mackey; substantial adherence will generally suffice. Id. “It is the result,

not the process, that is essential to a valid plea. The critical fact is the defendant’s

knowledge of certain rights, not that the trial judge was the source of that knowledge.”

Johnson v. State, 834 S.W.2d 922, 924-25 (Tenn. 1992); see State v. Montgomery,

840 S.W.2d 900, 902 (Tenn. 1992).

       We find that the trial judge substantially complied with the guilty plea

procedures provided in Mackey and Rule 11 of the Tennessee Rules of Criminal

Procedure and that the Appellant’s guilty plea was knowing, voluntary, and intelligent.

                                             4
The record clearly indicates that the Appellant knew that he was charged with rape

and that rape carries a sentence of eight to twelve years. Even though the Appellant

claims that he thought he was going to be sentenced to community corrections under

his plea agreement, the record shows that he knew that it was up to the judge to

decide how his sentence was to be served. The trial judge at the post-conviction

hearing also found that the Appellant’s counsel had informed the Appellant that he

would not be sentenced to community corrections and that he could be sentenced to

eight years imprisonment. The trial court's findings of fact in a post-conviction hearing

are binding on appeal unless the Appellant can show that the evidence preponderates

against the trial court’s findings. State v. Lueptow, 909 S.W.2d 830, 831 (Tenn. Crim.

App. 1995). The Appellant has failed to show that the evidence preponderates

against the trial court’s findings.

       The guilty plea hearing transcript also reveals that the trial judge informed the

Appellant of his right to not plead guilty, his right to a trial and to confront witnesses,

that there would be no trial and only a sentencing hearing, and that if he plead not

guilty he had the right to remain silent. The trial judge also made sure the Appellant

did not enter the plea because of any force, threat or promise apart from the plea

agreement and that there was a factual basis for the rape charges. The Appellant’s

argument that his counsel failed to object when the trial court did not adhere to the

guilty plea procedures in Mackey and Rule 11 of the Tennessee Rules of Criminal

Procedure is moot since we find that the trial court adhered to those procedures. The

Appellant’s third contention is that his lawyer rendered ineffective assistance of

counsel because he failed to adequately interview potential witnesses prior to the

guilty plea hearing. The Appellant argues that if his lawyer had interviewed the victim

and other potential witnesses it would have become apparent that the victim

consented to sexual intercourse. This, the Appellant contends, would have led to a

lesser criminal charge and a more favorable plea agreement. The Appellant also



                                              5
asserts that but for this failure to investigate, he would not have pled guilty and gone

to trial.

        This argument is not well taken. The record clearly shows that the Appellant

specifically asked his lawyer to not interview his step-daughter or his wife to avoid

further embarrassment to his step-daughter. The trial judge also found that the

Appellant’s lawyer thoroughly investigated this case and provided excellent counsel to

the Appellant. The Appellant has failed to demonstrate that the evidence

preponderates against the trial court’s findings.

        In his fourth argument, the Appellant claims that his lawyer rendered ineffective

assistance of counsel because he failed to introduce sufficient proof at the sentencing

hearing. This issue is without merit.

            The Appellant’s complaint is based on the assertion that his lawyer failed to call

certain witnesses to the sentencing hearing and failed to summon members of the

community to write letters on the Appellant’s behalf to be introduced at the sentencing

hearing. “When a petitioner contends that trial counsel failed to discover, interview, or

present witnesses in support of his defense, these witnesses should be presented by

the petitioner at the [post-conviction] hearing” to prove that the petitioner suffered

prejudice because critical evidence was omitted from the trial. Black v. State, 794

S.W.2d 752, 757 (Tenn. Crim. App. 1990). Here, the Appellant failed to introduce any

of the alleged witnesses or the letters from the community at the post-conviction

hearing. This Court cannot speculate as to what proof would have been offered had

the witnesses and the letters been introduced at the hearing and absent such proof

we are unable to find that the Appellant suffered prejudice as is required under the

second Strickland inquiry. 466 U.S. at 687-88, 692, 694, 104 S.Ct. at 2064, 2067-68,

80 L.Ed.2d 674.

        The Appellant’s fifth contention is that his lawyer rendered ineffective

assistance of counsel when he failed to object when the district attorney



                                                 6
recommended that he serve his sentence in the Department of Correction. This issue

is without merit.

       During the plea bargain negotiations, the district attorney agreed to recommend

that the Appellant should serve an eight-year sentence but that it would be for the trial

court to decide the manner of service. At the sentencing hearing the district attorney

argued that the Appellant should serve his eight-year sentence in the Department of

Correction. The Appellant now claims that his lawyer should have objected to the

district attorney’s argument.

       The Appellant has failed to state any authority in support of his argument and,

therefore, has waived this issue. Rules of the Court of Criminal Appeals 10(b);

Killebrew, 760 S.W.2d at 231. Moreover, since the district attorney never promised to

not argue in support of an eight-year prison sentence, it was within his discretion to

argue that the Appellant should be incarcerated and the fact that the Appellant’s

lawyer did not object is not constitutional error. See Tenn. R. Crim. P. 11(e)(1)(B).

       The Appellant’s final contention is that his lawyer rendered ineffective

assistance of counsel because he failed to advise him of his right to appeal his

sentence after the sentencing hearing. For the same reason, the Appellant also asks

this Court to grant him a delayed appeal.

       Immediately before the sentencing hearing, the Appellant’s counsel advised the

Appellant that he could appeal any decisions the trial court may make regarding his

sentence. In response, the Appellant stated that he did not want to appeal any

sentence the trial court may impose. After the sentencing hearing, the Appellant’s

counsel did not have any further contact with the Appellant, except for a letter, which

stated in its entirety, “I have fully completed my legal representation of you regarding

the above captioned matter. I have enjoyed working for you, and if I can be of service

to you in the future, please contact me.”

       Tennessee Rule of Criminal Procedure 37(d) provides that an attorney, before

any judgment becomes final, must either file a notice of appeal or a waiver of appeal

                                            7
signed by the defendant with the trial court. Tenn. R. Crim. P. 37(d). A technical

violation of this rule does not render a judgment invalid if the record clearly and

unambiguously shows that the defendant knew of his right to appeal and intended to

waive that right to appeal. Jenkins v. State, C.C.A. No. 01C01-9405-CR-00156 (Tenn.

Crim. App., Nashville, Apr. 13, 1995).

       Here, the evidence shows that before he was sentenced, the Appellant advised

his attorney that he had no intention of seeking an appeal. However, there is no

indication that his attorney later discussed with the Appellant whether or not he had

changed his mind and wanted to appeal after he knew the trial court’s sentencing

decision. Moreover, there is no waiver of appeal in the record in accordance with Rule

37(d) of the Tennessee Rules of Criminal Procedure. The appropriate remedy for this

deficiency is a delayed appeal. Rawlings v. State, C.C.A. No. 02C01-9504-CR-00112

(Tenn. Crim. App., Jackson, Apr. 17, 1996). We, of course, in no way consider the

merits, if any, of such an appeal before granting this relief.

       Accordingly, we affirm the lower court’s judgment denying post-conviction relief

with respect to the Appellant’s guilty plea and conviction. However, because the

Appellant was denied effective assistance of counsel with regard to an appeal of his

sentence, we grant the Appellant a delayed appeal with respect to his sentence only.




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                                 __________________________
                                 WILLIAM M. BARKER, JUDGE



CONCUR:



__________________________
JOHN H. PEAY, JUDGE



__________________________
DAVID G. HAYES, JUDGE




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