           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE             FILED
                              JUNE 1998 SESSION
                                                          October 28, 1998

                                                        Cecil W. Crowson
                                                       Appellate Court Clerk
DWIGHT A. MAYTON,                   )
                                    )    C.C.A. NO. 01C01-9708-CC-00376
           Appellant,               )
                                    )    CANNON COUNTY
VS.                                 )
                                    )    HON. DON R. ASH,
STATE OF TENNESSEE,                 )    JUDGE
                                    )
           Appellee.                )    (Post-Conviction)



FOR THE APPELLANT:                       FOR THE APPELLEE:


Donald M. Bulloch, Jr.                   JOHN KNOX WALKUP
P. O. Box 398                            Attorney General & Reporter
301 North Spring St.
Murfreesboro, TN 37133-0398              DEBORAH A. TULLIS
                                         Asst. Attorney General
                                         Cordell Hull Bldg., 2nd Fl.
                                         425 Fifth Ave., North
                                         Nashville, TN 37243

                                         William Whitesell
                                         District Attorney General

                                         David L. Puckett
                                         Asst. District Attorney General
                                         303 Rutherford County Judicial Bldg.
                                         Murfreesboro, TN 37130




OPINION FILED:



AFFIRMED


JOHN H. PEAY,
Judge
                                     OPINION



              The petitioner pled guilty to second-degree murder on May 27, 1977, and

was sentenced to twenty years incarceration. On May 24, 1979, the petitioner filed a

post-conviction petition alleging that his plea was not entered voluntarily and that he was

denied the effective assistance of counsel. On June 13, 1979, the petitioner filed a

motion to withdraw his post-conviction petition; however, no order was ever entered

acting upon this motion. On July 17, 1995, the petitioner filed a “motion for writ of error

coram nobis” to vacate the judgment. On February 11, 1997, the petitioner filed an

amended petition for post-conviction relief alleging that his plea was not voluntary,

understanding, and knowing and that he received ineffective assistance of counsel.

Following an evidentiary hearing on May 19, 1997, the post-conviction court denied his

petition. It is from this denial that the petitioner now appeals.



              After a review of the record and applicable law, we find no merit to the

petitioner’s appeal and thus affirm the judgment of the court below.



              The petitioner’s convictions stem from his involvement in the murder of Tom

Alroy Raines on October 22, 1976. The petitioner pled guilty and was sentenced to a

term of twenty years. Although the petitioner has served this sentence in its entirety, he

is currently serving a sentence for other criminal charges. The conviction that the

petitioner is challenging in this appeal was used to enhance the sentence he is currently

serving.



              When the petitioner was indicted, the court appointed attorney Bill Bryson

to represent him. Boyd Bryson was also retained to assist in petitioner’s representation.

These two attorneys were later allowed to withdraw from the case after petitioner retained


                                             2
another attorney, Scott Daniel, as his representative. The petitioner has testified, by

deposition1, that Scott Daniel was retained because of the attitudes and ineffective

assistance of the earlier attorneys as well as their lack of investigation into the case. The

petitioner has also testified that when Scott Daniel was retained, he conducted a limited

investigation. Approximately two weeks after Mr. Daniel was retained, the State offered

the petitioner a plea bargain sentence of twenty years. Later that same day, the

petitioner, without any advance notice, was taken to Cannon County to appear in court.



                When the petitioner arrived at the courthouse, the attorney for the state

once again advised him to plead guilty. (The record indicates that petitioner’s counsel

was present.) At that point, the petitioner and his wife were given some time alone

together to discuss his options. During the discussion, the petitioner testified that he had

found a pint of bourbon in a desk drawer in the office where he and his wife had been left

to talk. The petitioner proceeded to drink approximately half of the pint and went into the

courtroom a few moments later. According to the petitioner, at no point did his attorney

explain to him who would impose sentence on him if he were found guilty by a jury, the

difference between first and second-degree murder, the minimum and maximum

sentence of first and second-degree murder, the right to plead not guilty, the right to a

speedy trial, the State’s burden of proof beyond a reasonable doubt, the right to the

assistance of counsel at trial, the right to confront and cross-examine all of the State’s

witnesses, the right to call and present his own witnesses, the presumption of innocence,

the right to remain silent or that a second-degree murder conviction could be used

against petitioner later to enhance a subsequent sentence.



                 The petitioner contends that not only did his attorney fail to advise him of



        1
            The petitioner testified in a deposition taken on Decemb er 19, 1996. This evidentiary
depos ition was or dered b y the post-c onviction c ourt.

                                                    3
these rights, the judge who accepted petitioner’s guilty plea also failed to advise him of

these rights. The petitioner asserts that had he known of these rights, he would have

requested a jury trial rather than entering a guilty plea. The petitioner also points to the

court transcript of the entry of the guilty plea where the judge asked the petitioner, “[h]as

anybody forced you to enter this plea of guilty against your will?” The transcript describes

the petitioner’s answer as “(No audible response.)” The judge goes on to ask, ”[t]he

question is whether or not you’re doing this voluntarily and of your own free will and

accord. Are you doing that?” The petitioner answered “[o]f my own free will? . . . Yes sir.”

The petitioner contends it was the sum of all these factors - no advance notice given of

court appearance, no explanation of the aforementioned rights, pressure by the attorney

for the State and the ineffective assistance of his own counsel - that forced him to plead

guilty and render his plea involuntary and unknowing. 2



                  The transcript from the entry of the guilty plea, which was attached as an

exhibit to this proceeding, revealed that the petitioner stated he understood the

proceeding and he was satisfied with Mr. Daniel’s representation. The petitioner also

stated the plea was entered voluntarily and of his own free will. The petitioner further

agreed that the maximum and minimum sentence which could be imposed had been

explained to him. The petitioner then pled guilty to second-degree murder.



                  “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




         2
            Petitioner admits that his attorney, Scott Daniel, did offer to take the case to trial. However,
petitioner tes tified Mr. D aniel also s aid som ething to the effect tha t petitioner ha d to cons ider the twe nty
years being offered by the State or the life sentence that was supposedly threatened by the State if the
petitioner did not take the plea bargain.

                                                         4
preponderates against the judgment.” State v. Buford, 666 S.W.2d 473, 475 (Tenn.

Crim. App. 1983).



              As the petitioner’s guilty plea was entered on May 27, 1977, the validity of

his plea is determined under the standards set out in Boykin v. Alabama, 395 U.S. 238,

239, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). See Clark v. State, 800 S.W.2d 500 (Tenn.

Crim. App. 1990). In Boykin, the United States Supreme Court held that there are three

federal constitutional rights involved “in a waiver that takes place when a plea of guilty is

entered in a state criminal trial”: the privilege against compulsory self-incrimination, the

right to a trial by jury, and the right to confront one’s accusers. 395 U.S. at 243. The

court further held that the waiver of these rights cannot be presumed by a silent record.

Id. However, this Court has held that Boykin did not create a procedural requirement that

these three rights must be explained to the defendant and the defendant waive these

rights before a trial judge can accept a defendant’s guilty plea. Clark, 800 S.W.2d at 504.

“Boykin simply requires that the transcript of a guilty plea proceeding affirmatively show

that ‘the defendant voluntarily and understandingly entered his plea of guilty.’” Id. (citing

Boykin, 395 U.S. at 244).



              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, 91 S.Ct. 160, 164, 27 L.Ed.2d 162, 168 (1970).

In addition, this Court has held that:

              the failure of a trial judge to advise a defendant of his privilege
              against compulsory self-incrimination prior to Mackey did not,
              as a matter of law, cause a defendant’s conviction to become
              constitutionally infirm. If the record of the sentencing hearing,
              as here, affirmatively shows that the defendant’s ‘plea repres-
              ent[ed] a voluntary and intelligent choice among alternative
              courses of action open to the defendant’, the defendant’s conv-
              iction is valid. In other words, ‘[s]pecific judicial incantation of

                                             5
                   constitutional rights is not the litmus test under’ the Constitution
                   or Boykin.

Clark, 800 S.W.2d at 505 (citations omitted).



                   The petitioner is arguing that the court’s failure to advise him of the rights

set out earlier renders his guilty plea involuntary and unknowing.                                 In light of the

aforementioned law, the petitioner’s contention is without merit. The record of the

petitioner’s plea submission hearing, in conjunction with the fact that this was not the

petitioner’s first experience in a courtroom,3 affirmatively shows the petitioner’s plea was

a voluntary and intelligent choice. At the guilty plea hearing the petitioner affirmatively

stated that he understood he had a right to a jury trial, the charge against him, the

meaning of his guilty plea, that his plea was voluntary, his right to compel the attendance

of witnesses, his right to confront those witnesses, and the maximum and minimum

sentences which might be imposed. In fact, the only right the petitioner was not

specifically questioned about was the right against self-incrimination. As stated earlier,

this ground alone is not enough to render a conviction invalid. See Blankenship v. State,

858 S.W.2d 897, 905 (Tenn. 1993); Clark, 800 S.W.2d at 505.



                   In light of these facts, it is clear the petitioner has not met his burden of

proof.       The post-conviction court found that petitioner’s plea was voluntarily and

knowingly made.             This finding is conclusive unless the petitioner proves, by a

preponderance of the evidence, that the finding is erroneous. See Buford, 666 S.W.2d

at 475. The petitioner has not met this burden. It is obvious that the trial court

canvassed the matter with the accused to make sure he had a full understanding of what

his plea connoted and its direct consequences. Therefore, the petitioner’s plea was




         3
             In fact, this w as petitione r’s third app earanc e facing charge s in a crim inal court.

                                                           6
voluntary and knowing. See Blankenship, 858 S.W.2d at 904.4



                   The petitioner further contends that he would not have pled guilty but for the

ineffective assistance of his counsel. In reviewing this contention, 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

reasonbleness” and that this performance prejudiced the defense. There must be a

reasonable probability that but for the counsel’s error the result of the proceeding would

have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694, 104

S.Ct. 2052, 80 L.Ed.2d 674 (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 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, 88 L.Ed.2d 203 (1985); Bankston v. State, 815 S.W.2d 213, 215

(Tenn. Crim. App. 1991).



                   We find nothing in the record to support the petitioner’s claim that his

counsel was ineffective. The post-conviction judge held that the petitioner “received

effective assistance of counsel and that, based upon this plea and the statements, that



         4
            Petitioner contends that because it was not made clear that a conviction could be used in a
later proceeding to enhance the punishment for subsequent offenses, his plea is not valid. In support of
this argument, petitioner cites State v. McClintock, 732 S.W.2d 268, 273 (Tenn. 1987). It is true that
state law requires a defendant who pleads guilty be informed that the resulting conviction may be used
later as the basis for enhan cem ent. See McClintock, 732 S.W.2d at 273. However, this rule was
ann oun ced ten ye ars a fter p etition er ple d guilt y and, as it is n ot retr oac tive, d oes not a pply in p etition er’s
case. See Clark, 800 S.W .2d at 503 ; Blan ken ship , 858 S.W.2d at 905 n.6.

                                                             7
[sic] he was satisfied with the representation of Mr. Daniel at that time.” The record fully

supports the findings of the post-conviction court.



               At the guilty plea hearing the trial judge asked the petitioner, “[n]ow, Mr.

Daniel has been representing you for some several weeks now. Are you satisfied with

what he’s done to represent you?” The petitioner responded, “[y]es, sir, I’m satisfied.”

The judge then asked Mr. Daniel if he felt that he had investigated the case. Mr. Daniel

responded, “[y]es, sir, very thoroughly, your Honor.” In fact, the petitioner testified in his

deposition that Mr. Daniel had investigated the case and offered to take the case to trial.




               In light of these facts, it is clear the petitioner has failed to carry his burden

of proving his allegations by a preponderance of the evidence. The petitioner clearly

received effective assistance of counsel.



               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:


______________________________
JOSEPH M. TIPTON, Judge



______________________________

                                               8
DAVID G. HAYES, Judge




                        9
