        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE             FILED
                       OCTOBER SESSION, 1997          December 23, 1997

                                                  Cecil Crowson, Jr.
                                                   Appellate C ourt Clerk
SCOTTIE RAY LASTER,          )    C.C.A. NO. 03C01-9701-CR-00001
                             )
      Appe llant,            )
                             )
                             )    HAWKINS COUNTY
VS.                          )
                             )    HON. JAMES E. BECKNER
STATE OF TENNESSEE,          )    JUDGE
                             )
      Appellee.              )    (Post-Conviction)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF HAWKINS COUNTY


FOR THE APPELLANT:                FOR THE APPELLEE:

RUSSELL MATTOCKS                  JOHN KNOX WALKUP
Public Defender                   Attorney General and Reporter
1609 College Park Drive, Box 11
Morristown, TN 37813-1618         CLINTON J. MORGAN
                                  Assistant Attorney General
                                  425 5th Avenu e North
                                  Nashville, TN 37243

                                  C. BERKELEY BELL
                                  District Attorney General

                                  DOUG GODBEE
                                  District Attorney General
                                  Main Street, Courthouse
                                  Rogersville, TN 37857



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                  OPINION

       The Petitioner, Scottie Ra y Laster, appea ls pursuant to Rule 3 of the

Tennessee Rules o f Appella te Procedure the trial court’s denial of his petition for

post-conviction relief. He argues (1) Tha t the guilty pleas he e ntered were

unlaw fully induced because (a) counsel for the Petitioner accepted a plea

agreement withou t the Pe titioner’s consent, and (b) counsel never told him he

had the right to refuse to ente r the gu ilty pleas ; and (2 ) that his convictions were

based on an indictment issued by a grand jury that was unconstitutionally

selected and im panele d. W e affirm the judgm ent of the tria l court.



       On February 5, 1996, the Petitioner was indicted by the Ha wkins C ounty

Grand Jury for burglary of an automobile, possession of burglary tools, attempt

to commit first degree murder, and vandalism of less than $5 00. See Tenn. Code

Ann. §§ 39-14-402(a)(4), 39-14-701, 39-12-101, 39-14-408. According to the

record, it appears that the Petitioner agreed to waive g rand jury a ction and to

proceed by information on a fifth count for aggravated burglary. Pursuant to a

negotiated plea agr eeme nt, the Defendant pleaded guilty to the offenses after a

hearing conducted on June 18, 1996. He was sentenced as a standard, Range

I offender to one year for the auto burg lary conviction, eleven m onths and tw enty-

nine days for the conviction for possession of burglary tools, fifteen years for the

attempted murder conviction, eleven months and twenty-nine days for the

vandalism less than $500 con viction, and three yea rs for the aggrava ted burglary

conviction. The sentence s were orde red to run con currently, for an effective

sentence of fifteen years.



                                          -2-
      The Petitioner filed a pro se petition for post-conviction relief on August 2,

1996. Counsel was appointed and a hearing on the petition was held on October

11, 1996.    The trial court denied the petition. It is from the denial of p ost-

conviction relief that the Petitioner appeals.



      As his first issue, the Petitioner a rgues th at the guilty plea he entered was

not voluntarily or k nowing ly subm itted. He contends that the plea agreement was

not entere d with h is consent and that counsel never informed him that he had the

right to withdraw his plea. We note that the Petition er has not sp ecifica lly

enumerated ineffective assistance of counsel as an issue. Ho wever, it appears

that the co mpe tency o f coun sel’s representation has been raised as an issue

affecting the voluntariness of the Petitioner’s guilty pleas.



      In determining whether counsel provided effective assistance at trial, the

court must decide whether counsel’s performance was within the range of

competence dema nded o f attorneys in crimina l 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 petitioner

resulting in a failure to produce a reliable res ult. Strickland v. Washington, 466

U.S. 668, 68 7, reh’g denied, 467 U.S . 1267 (1 984); Coop er v. State , 849 S.W.2d

744, 74 7 (Ten n. 1993 ); Butler v. Sta te, 789 S.W .2d 898 , 899 (T enn. 19 90). To

satisfy the seco nd pron g the pe titioner mu st show a reaso nable p robability tha t,

but for cou nsel’s unreason able error, the fact finder w ould have had re ason able

doubt regarding petitioner’s g uilt. Strickland, 466 U.S. at 695. T his rea sona ble

                                          -3-
probab ility must be “su fficient to undermine confidence in the outcome .” Harris

v. State, 875 S.W .2d 662, 665 (Tenn. 199 4).



      When review ing trial counsel’s action s, this co urt sho uld no t use th e ben efit

of hindsight 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 errors should be

judged at the tim e they w ere m ade in light of a ll facts an d circumstances.

Strickland, 466 U.S . at 690; see Cooper 849 S.W.2d at 746.



      This two part standa rd of measuring ineffective assistance of counsel also

applies to claims arising ou t of the plea proces s. Hill v. Lockhart, 474 U.S. 52

(1985). The prejudice requirement is modified so that the petitioner “must show

that there is a reason able pro bability that, but for counsel’s errors he would not

have pleade d guilty and wou ld have insisted on going to trial.” Id. at 59.



      The Petitioner testified at the pos t-conviction hearing that his attorney,

Burkett McInturff, discussed accepting a plea at fifteen years. This discussion

occurred on the day before the Petitioner was scheduled for trial. The Petitioner

testified that he refused the offer. He signed a piece of noteb ook pape r with “a

bunch of writing on it.” He also signed papers when he entered his plea. The

Petitioner stated that he was told he had to agree with what the judge said. He

was not sure he knew what statements the papers contained. The Petitioner

admitte d that he knew what he was charged with, but not the elements of the

crimes. He denied reading the waiver of rights form before he signed it, although

he stated he did read and sign the form at the guilty plea hearing. The Petitioner

stated that on the day of the trial he was surprised that no one was in the

                                          -4-
courtroom and counsel explained that he ha d signed a plea. He felt like counsel

then forced him to take the plea. The Petitioner denied that he understood the

questions asked of him by the trial judge, although he had a nswe red tha t he did

understand. He denied that he understood he could have insisted on a jury tria l.

He stated that he felt pressured to take the plea by his attorney, but not that he

was threatened.



       On cross-examination, the Petitioner admitted that he had pleaded guilty

to offenses as a juvenile and in general sessions court.                The Petitioner

acknowledged that the aggravated burglary ch arge oc curred a fter the indictm ents

for the other offenses and that counsel argued for the State to run the offense

concurrent with the other four charges as part of the plea agreement. He verified

that he signed a waiver of rights and guilty plea forms.



       The Petitioner’s counsel, Burkett McInturff, testified at the hearing that

several persons identified the Petitioner as the one who shot the victim. The

Petitio ner maintained a position of proceeding to trial until the last minute.

Counsel met with the Petitioner several times. After a meeting with him on the

day before trial, co unsel talk ed with the dis trict attor ney’s office regarding a plea

agreem ent.    General Godbee wrote down the offer on a piece of paper for

counsel to prese nt to the P etitioner. Co unsel too k the pap er and d iscusse d with

the Petitioner the evidence in the cases against him. Counsel discussed taking

an Alford plea, a lthoug h he re ferred to it as a “ Nelso n” plea . Coun sel had the

Petitioner sign a handwritten version of the plea agreement on June 17, 1996.

Counsel stated that a critical witness for the defense was “on the run” at the time




                                           -5-
of trial. He attempted to continue the case but the trial judge insisted that he

wanted the case tried.



      In denyin g the p etition, th e trial co urt con cluded th at cou nsel fu lly

investigated the case. There was evidence that he interviewed and attempted

to locate witnesses. Counsel filed motions and vigorously argued the case as

well as spent considerable time explaining the case to the Petitioner. Counsel

also made an effort to h ave the P etitioner sign papers reflecting th at he

acknowledged the plea agreement. Fina lly, the trial c ourt cre dited c ouns el’s

testimony and rejected that of the Petitioner. We note that under the provisions

of the Post-Conviction Procedure Act of 1995, a petitioner bears the burden of

proving the allegations in the p etition by clear and convincing evidence. Tenn.

Code Ann. § 40-30-210(f) (Supp. 1996).              In reviewing post-conviction

proceedings, "the factual findings of the trial court are conclusive unless the

evidence prepon derates against s uch findin gs." Coop er v. State, 849 S.W.2d

744, 746 (T enn.19 93); Butler v. Sta te, 789 S.W .2d 898, 899 (Tenn.19 90). From

the record before us, we cannot conclude that the evidence preponderates

against the find ings of the trial court that counsel’s performance was within the

range of competency expected of defense counsel. Thus, the Petitioner has

failed to establish a claim of ineffective assistance.



      W e now address in general the Peititioner’s claim that his guilty plea was

not voluntarily or knowingly entered. In Boykin v. Alabama, 395 U.S. 238 (1969 ),

the United States S uprem e Cou rt held that th e record must sh ow that a guilty

plea was made voluntarily, understand ingly and know ingly. In Boyk in, the Court

held that an entry of a guilty plea effectively constituted a waiver of the

                                        -6-
constitutional rights against compulsory self-incrimination, the right to confront

one's accuse rs, and the right to trial by jury. Id. at 243. If a guilty plea is not

voluntary and k nowin g, it has been entere d in violation of due process and is,

therefore, invalid.



      A volunta ry plea ca nnot be found fro m a silen t record. Boyk in, 395 U.S.

at 242. Pursua nt to its supervisory power, our su preme co urt has impo sed mo re

stringent standards for trial courts to employ when advising defendants during

guilty pleas to provide an adequate record that will insure constitutional

comp liance. State v. Mackey, 553 S.W .2d 337 (Tenn .1977).

   [T]he court must address the defendant personally in open court and
   inform him of, and determine that he understands, the following:

   (1) The nature of the charge to which the plea is offered, and the
   manda tory minim um pe nalty provid ed by law , if any, and the maximum
   poss ible penalty provided by law; and, if applicable, that a different or
   additional punishment may result by reason of his prior convictions or other
   factors which may b e esta blishe d in the present ac tion after the entry of his
   plea; and

   (2) If the defendant is not represente d by an attorne y, that he has a right
   to be represented by an attorney at every stage of the proceeding against
   him, and if necessary, one will be appointed to represent him; and

   (3) That he has a righ t to plead n ot guilty or to persist in that plea if it has
   already been made, and, that he has the right to be tried by a jury and at
   that trial has the rig ht to the assistance of counsel, the right to confront and
   cross-examine witnesse s agains t him, and the right no t to be com pelled to
   incriminate himself; and

   (4) That if he pleads guilty, there will not be a further trial of any kind
   except to determine the sentence so that by pleading guilty he waives the
   right to a trial; and

   (5) That if he pleads guilty, the court or the state may ask him questions
   about the offense to which he has pleaded, and if he answers these
   questions under oath, on the record, and in the presence of counsel, his
   answers may later be used against him in a prosecution for perjury or false
   statem ent, and, furthe r, that, upon the sentencing hearing, evidence of any
   prior convictions may be presented to the judge or jury for th eir
   conside ration in de terminin g punish ment.

                                            -7-
Mackey, 553 S.W .2d at 341 . How ever, p ost-co nviction relief m ay be g ranted only

if a conviction or sentence is void or voidable because of a violation o f a

constitutional right. Tenn. Code Ann. § 40-30-105 (repealed 1995). As was

pointed out in State v. Neal, 810 S.W.2d 131 (Tenn. 1991), violation of the advice

litany required by either Mackey or Tennessee Rule of Criminal Procedure 11

which is not linked to a specified cons titutiona l right is n ot cog nizab le in a su it for

post-conviction relief.     See    State v. Prince, 781 S.W.2d 846 (Tenn.1989).

Moreover,     it is the result, not the process, that is essential to a valid plea.

Johnson v. State, 834 S.W .2d 922, 923 -24 (Tenn . 1992). The critical inquiry is

whether the Petitioner had knowledge of certain rights and waived those rights

know ingly and voluntarily, not whether the trial court was the source of that

knowledge.



       The transcript of the hea ring on the guilty plea reve als that the trial court

fully complied with the requirements enumerated in Mackey. In the hearing, the

Petitioner denied that he had any condition that would impair his ability to

understand the proceedings. He acknowledged that he understood the charges

and the trial court comprehensively explained the offenses and the elements that

constituted each offense. The Petitioner stated that he understood the offenses

as well as the sentencing range, range of punishment and release eligibility. The

Petitioner agreed that he signed a waiver of rights, understood what he was

signing and that co unse l explain ed it to h im. Th e Petitio ner wa s aga in informed

in open court that he had the right to plead not guilty, but chose not to exercise

that right. The Petitioner denied that any threats were used to secure a guilty

plea and stated that he was satisfied with counsel’s representation.




                                             -8-
         In conjunction with the testimony received at the post-conviction hearing,

we cannot conclude that the trial court erred in finding that the Petitioner entered

his plea voluntarily. The tr ial judg e reca lled the Petition er’s demeanor from the

guilty plea hearing, and stated that he made no indication that he did not

understand the proceedings. In fact, the trial court suggested that the Petitioner

had offered perjured testimony at the post-conviction hearing. The evidence

does not preponderate against the findings of the trial court. This issue is without

merit.



         In his second p rimary issue, the Petitioner claims that his conviction was

based on action of a grand or petit jury that was unconstitutionally selected and

impaneled. Specifically, he alleges that the jury pa nels for the term o f court

“during which his cas e wou ld have been tried” were predominantly selected from

towns in the portion of Ha wkins Cou nty where the victim lived. The State argues

that the Petitioner has not cited any authority and has therefore waived

consideration of the issue pursu ant to R ule 10(b) of the Tennessee Rules of the

Court of Crimin al Appe als. We agree. Beyond this, an exam ination of the record

shows that the Petitioner has not provided us with sufficient evidence to evalua te

this issue on its merits. The Petitioner has submitted statistics that show the

percentage of jurors from certain towns. However, he has presented no evidence

that demo nstrates th e proce ss for sele cting jurors nor any irregularities in the

selection process. Therefore, we cannot add ress w hethe r any m atters c once rning

the jury or the selection from the venire were in any way irregular or prejudiced

the Petitioner in any w ay.



         Accord ingly, we affirm the judgm ent of the tria l court.

                                           -9-
                         ____________________________________
                         DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
GARY R. WADE, JUDGE


___________________________________
JERRY L. SMITH, JUDGE




                             -10-
