        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON               FILED
                         DECEMB ER SESSION, 1998         March 12, 1999

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk

TIMOTHY LEE INMAN,                )   C.C.A. NO. 02C01-9808-CC-00254
                                  )
           Appe llant,            )
                                  )   DYER COUNTY
V.                                )
                                  )
                                  )   HON. LEE MOORE, JUDGE
STATE OF TE NNE SSE E,            )
                                  )
           Appellee.              )   (POST -CON VICTIO N)



FOR THE APPELLANT:                    FOR THE APPELLEE:

RALPH I. LAWSON                       JOHN KNOX WALKUP
306 Church Avenue                     Attorney General & Reporter
P.O. Box 1207
Dyersburg, TN 38025-1207              PETE R M. C OUG HLAN
                                      Assistant Attorney General
                                      2nd Floor, Cordell Hull Building
                                      425 Fifth Avenu e North
                                      Nashville, TN 37243

                                      C. PHILLIP BIVENS
                                      District Attorn ey Ge neral

                                       JAMES E. LANIER
                                       Assistant District Attorney General
                                       Criminal Justice Center, Suite 301
                                       115 East Market Street
                                       P.O. Box E
                                       Dyersburg, TN 38025-2005




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION
       The Petition er, Tim othy Le e Inm an, ap peals the trial c ourt’s d ismiss al of his

petition for post-conviction relief. In this appeal, Petitioner raises the following

issues: (1) whether h is guilty plea w as invo luntarily entere d into w ithout a full

unders tanding of the nature and consequences of the plea; (2) whether he was

denied the effective assistance of counsel due to a deficient performance which

influenced him to plead guilty; and (3) whether his guilty plea is per se invalid

because the trial judge did not tell him of his right against self-incrim ination. After a

careful rev iew of the re cord, we affirm the ju dgme nt of the trial co urt.



       The pertinen t facts are that on April 26, 1996, Petitioner was charged by way

of criminal information with two counts of rape of a child in the Dyer C ounty Circu it

Court. On July 29, 1996, a report from Dr. Vandankumar Patel was issued indicating

that after a competency evaluation, pursuant to Tenn. Code Ann. § 39-11-501, it was

determined that Petitioner’s condition was such that he was capable of defending

hims elf in a court o f law. Dr. Patel also found tha t Petitioner unders tood the nature

of the legal process, the charges pending against him, the co nseq uenc es tha t could

follow, and that he could ad vise counse l and participate in his ow n defense. D r.

Patel did not believe that a defens e of insanity could be supported.           T hereafter,

defense counsel filed a mo tion for me ntal evalua tion. On Aug ust 20, 1996 , the court

ordered a thirty day me ntal evalua tion of Pe titioner at W estern M ental He alth

Institute, noting that Petitioner had been evaluated at the local level and that he had

a mental problem causing a serious question as to whether Petitioner was

competent as well as whether or not an insanity defense might be appropriate. After

the thirty day evaluation, the Western Mental Health Institute issued a repo rt

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indicating that Petitioner was capable of adeq uately d efend ing him self in a court of

law. It was further concluded that he had the ability to cooperate with his attorney

in his own defense and that he had an awareness and unde rstanding of the n ature

and object of the proceedings. The repo rt noted that his intellectual limitations might

require his attorney to spend extra time to insure that Petitioner understood more

complex court pro cedure s. The re port also indica ted that the defens e of insan ity

could not be supp orted b ecau se at th e time of the o ffense , Petition er, in sp ite of his

mental defect, wa s able to a pprecia te the nature or wrongfulness of such acts.

Thereafter, on Feb ruary 18, 1 997, P etitioner pled guilty to one count of the lesser

offense of aggravated sexual battery. He was sentenced to eight (8) years in the

Department of Correction, and the trial judge recommended that Petitioner be placed

in a specia l needs fa cility. Petitioner filed his petition for post-conviction relief on

January 20, 1998, claiming ineffective assistance of counsel and involuntariness as

to his guilty ple a. The tria l court sub seque ntly dismis sed his p etition.



                                      Issues I. a nd II.



       Petitioner argues that his plea was not voluntarily entered into and that his trial

counsel’s pe rformance was deficient, which influenced him to plead guilty.



       In post-c onvictio n proceedings, the petitioner has the burden of proving the

allegations of fact by clear and convincing evidence. Tenn. Code Ann. § 40-30-

210(f). Wh en rev iewing the dis miss al of a post-conviction petition, this Court must

affirm the judgment of the trial court unless the evidence in the record preponderates

against the judgm ent. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990 ).




                                             -3-
      In determining wheth er cou nsel p rovide d effec tive ass istanc e at trial, the court

must decide w hether counsel’s performance was within the range of competence

demanded of attorney s in crimin al cases . Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975). To succeed on a claim that his counsel was ineffective at trial, a

petitioner bears the burden of showing that his counsel made errors so serious that

he was not functioning as counsel as guaranteed under the Sixth Amendment and

that the deficient representation prejudiced the petition er resulting in a failure to

produc e a reliable result. Strickland v. Washington, 466 U.S . 668, 693 , 104 S. C t.

2052, 80 L. Ed . 2d 674 , reh’g denied, 467 U.S . 1267 (1 984); Coope r v. State, 849

S.W.2d 744, 74 7 (Ten n. 1993 ); Butler v. Sta te, 789 S.W.2d 898, 899 (Ten n. 1990).

To satisfy the second prong the petitioner m ust show a reaso nable p robability tha t,

but for cou nsel’s unrea sona ble erro r, the fac t finder w ould h ave ha d reas onab le

doubt regarding pe titioner’s gu ilt. Strickland, 466 U .S. at 69 5. This reaso nable

probab ility must be “sufficient to underm ine confidence in the outcom e.” Harris v.

State, 875 S.W.2d 662, 665 (Tenn. 1994) (citation omitted). When reviewing trial

coun sel’s actions, this Court should not use the b enefit of hin dsight to second-guess

trial strategy a nd criticize c ounse l’s tactics. Hellard v. State, 629 S.W.2d 4, 9 (Tenn.

1982). Counsel’s alleged e rrors sh ould b e judg ed at th e time they we re ma de in

light of all facts and circumstances. Strickland, 466 U.S . at 690; see Cooper, 849

S.W.2d at 746.



      In regard to guilty pleas, the petitioner must establish a reaso nable p robability

that, but for the errors of counsel, he would not have en tered into th e plea. Adkins

v. State, 911 S.W.2d 334, 349 (Tenn. Crim. App. 1994). In North Ca rolina v. Alford,

400 U.S. 25 (1970), the United States Supreme Court stated the following:




                                            -4-
             The standard was and remains whether the plea
             represe nts a voluntary and intelligent choice among the
             alternative c ourses of action o pen to the defend ant.


In evaluating the knowing and voluntary nature of Petitioner’s plea, this Court must

look at the totality of the circumstances . State v. Turner, 919 S.W.2d 346, 353

(Tenn . Crim. A pp. 199 5), perm. to appeal denied (Tenn. 199 6).



      It is clear from the record that the trial c ourt wa s con cerne d with P etitione r’s

intelligence. The court ordered an evaluation of Petitioner who has an IQ of 71.

Two evaluations we re completed and both concluded that Petitioner was competent

to stand trial an d that he could assist in his defense. One report did note that

Petition er’s attorney may have to spend additional time with him in exp laining “more

comp lex court pr ocedu res.”



      Petitioner alleges that the testimony of his neighbor and that of an employee

of the Department of Human Services demonstrated that he could not understand

what he was being told. However, as the post-conviction court noted , Petition er’s

neighbor had no training in p sychology, but w as only a student in social work.

Similarly, the DH S emp loyee stated sh e was not traine d in psycholog y.



      The record re flects that co unsel w as con cerned about Petitioner’s mental

ability and that he discussed this issue with both Petitioner and with Petitio ner’s

mother. He said he discussed the plea with Petitioner while his mother was pre sent.

He testified that he was satisfied Petitioner understood what was going on and that

Petitioner knew he was pleading guilty to aggravated sexual battery with an eight (8)

year sentence.



                                            -5-
       Petition er’s mother said that she wanted the case to go to the jury but that she

was afraid of what the jury might decide. She also said that Petitioner told her he

committed the crimes. Petitioner’s trial counsel testified that Petitioner could h ave

gone to trial in hopes that the jury would find reasonable doubt, but that given the

statemen t of the victim and the victim ’s mother, he d ecided it was too risky.



       Contrary to Petitio ner’s a llegatio ns, the decisio n to ple ad wa s not m ade s olely

by Petitioner’s mothe r. In fact, the mother stated that she, Petitioner, and trial

counsel all discussed whether or not to plead guilty. She said, “me and the lawyer

and Timmy [P etitione r] too. W e all m ade th e dec ision.” J ust be caus e Petitio ner’s

mother was present and had an opinion about whether to plead does not mean that

Petition er’s guilty plea w as not va lidly entered . Petitioner was p resen t during all

discussions and he chose to plead to a lesser offense to avoid being convicted of the

greater o ffense.



       Petitioner also alleges that a third psychological evaluation was required, and

that not requesting one was ineffective assistance of counsel.                 However, no

evidence was presented as to what an independent evaluation would have found.

The two evaluations that were conducted concluded that Petitioner was competent

to stand tria l and to as sist in his de fense.



       Based on the foregoing, we find that Petitioner has failed in his burden to

prove his allegation by clear and convincing evidence that he did not understand

what he was doing when he pled guilty. Likewise, he has also failed to prove that

“but for cou nsel’s errors ,” he wo uld not have pled g uilty and would ha ve insisted on

going to tria l. These issues a re withou t merit.

                                             -6-
                                          Issue III.



       Petition er’s third claim is that his gu ilty plea is per se invalid because he was

not told of his right against self-incrimination. Petitioner was not informed of his right

against self-incrimination at the guilty plea hearing. However, this does not end the

inquiry as to whether his plea was voluntarily, understandingly an d kno wingly

entered. See State v. Neal, 810 S.W.2d 131 (Tenn. 1991); Villers v. State, 833

S.W.2d 98 (Tenn . Crim. A pp. 199 2); Cham berlain v. S tate, 815 S.W.2d 534 (Tenn.

Crim. App. 1990). Such deficiencies are subject to harmless error analysis. Neal,

810 S.W.2d at 138. If the State can demonstrate through extrinsic evidence that

Petitioner did in fact understand the omitted right, then the guilty plea will stand. Id.



       The “Plea of Guilty and Waivers of Jury Trial and Appeal” form contains all of

the inform ation re gardin g Petitio ner’s rig hts ag ainst s elf-incrim ination and his

constitutional right to confront his accusers. Howe ver, this Co urt, like the trial cou rt,

is not sa tisfied th at Petitio ner co uld read his rig hts and fully unders tand the m. Trial

counsel testified that although he ordinarily either reads or has so meo ne rea d this

information to Petitioner, he co uld not recall whether he had done so in this case.

He also indicated that although he ordinarily explains all these rights to his clients,

he could not reca ll specifically whether he h ad done s o in this case.          How ever,

Petitioner testified as follows at the post-conviction hearing:


              The Court: Do you remember being in court and entering
              a guilty plea?

              A: Yes, sir.

              Q: Did [tria l coun sel] eve r tell you that if you went to--
              Before you entered that guilty plea, did [trial counsel] ever
              tell you that if you went to trial, you could not be forced to

                                             -7-
              testify; in other words, you wouldn ’t have to get up on the
              stand like you are now?

              A: Yes, sir.

              Q: He d id tell you that?

              A: Yes, sir.

              Q: What did you think about that? W hat did you think he
              mean t?

              A: That if I took it to court -- trial, that they couldn’t make
              me get up there and say nothing.

              Q: Did you know that when you entered the guilty plea?

              A: Yes.



       Based on the foregoing testimony by Petitioner, we agree with the trial cou rt

that he did unde rstand h is right aga inst self-incrim ination be fore he e ntered th e guilty

plea. We find tha t the Sta te has met its burde n of sh owing that Pe titioner in fact

understood his right against self-incrimination, and that the e rror was therefore

harmle ss. This is sue is with out me rit.



       Accordingly, the judgment of the trial court is affirmed.




                                    ____________________________________
                                    THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
GARY R. WA DE, Presiding Judge



                                              -8-
___________________________________
JOHN EVERET T WILLIAMS, Judge




                               -9-
