         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                         Assigned on Briefs June 3, 2003, at Jackson

            ANDREW LEVI JEFFERSON v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Davidson County
                            No. 2000-A-253    Steve Dozier, Judge



                    No. M2002-01604-CCA-R3-PC - Filed December 12,2003


The petitioner, Andrew Levi Jefferson, appeals from the Davidson County Criminal Court’s denial
of post-conviction and habeas corpus relief. In his amended, combined petitions for relief, the
petitioner challenges his 2001, guilty-pleaded convictions of second degree murder and attempt to
commit especially aggravated robbery. On appeal, the petitioner claims post-conviction relief
because his trial counsel were ineffective in failing to defeat the transfer of the petitioner’s case from
juvenile court to criminal court, in preventing the petitioner from testifying at the transfer hearing,
by failing to investigate and discover the petitioner’s mental status, and in failing to present a critical
issue in pretrial motions. Also, the petitioner claims that his guilty pleas were involuntary and
unknowing and that he was denied due process because he was not allowed to testify in the juvenile
court transfer hearing. In his joined claim for habeas corpus relief, the petitioner claims that,
because of errors in the transfer from juvenile court, the criminal court lacked jurisdiction to
adjudicate his case. Based upon our review, we find no reversible error and affirm the actions 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 JOSEPH M. TIPTON and
DAVID G. HAYES, JJ., joined.

Dwight E. Scott, Nashville, Tennessee, for the Appellant, Andrew Levi Jefferson.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and James H. Todd, Assistant District Attorney
General, for the Appellee, State of Tennessee.
                                              OPINION

                                   I. Conviction Proceedings.

                 The underlying offenses relate to the shooting death of Julius Talley. The petitioner,
born August 8, 1981, was seventeen years of age on January 19, 1999, when the underlying offenses
were committed, and on June 10, 1999, when the juvenile court transferred his case to criminal court.
After the transfer, the petitioner was indicted on one count of first degree felony murder, see Tenn.
Code Ann. § 39-13-202(a)(2) (2003) (proscribing first degree felony murder), and one count of
attempt to commit especially aggravated robbery, id. §§ 39-13-403 (proscribing especially
aggravated robbery as a Class A offense), -12-101 (attempt), -12-107 (grading criminal attempt “one
(1) classification lower than the most serious crime attempted”) (2003). He was nineteen years of
age on January 17, 2001, when he entered guilty pleas in criminal court to second degree murder and
attempt to commit especially aggravated robbery. Pursuant to the plea agreement, he was sentenced
as a Range I offender to the minimum Class A sentence of fifteen years for second degree murder
and to the maximum Class B sentence of twelve years for attempt to commit especially aggravated
robbery. See id. § 40-35-112(a)(1), (2) (2003) (delineating sentencing ranges). These Department
of Correction sentences were imposed to run concurrently.

                                   a. Transfer Proceeding.

                  On June 10, 1999, the Davidson County Juvenile Court conducted a hearing pursuant
to Tennessee Code Annotated section 37-1-134(a) and to determine whether the “disposition of the
[petitioner] shall be as if [he] were an adult.” Id. § 37-1-134(a) (2001). After presenting extensive
evidence about the petitioner’s involvement in the homicide and attempted robbery, the prosecutor
presented the petitioner’s juvenile court file and asked the court to consider it as evidence. The
juvenile court judge took “a few minutes to go through the files . . . to see . . . the prior record and
. . . prior treatment efforts and the things that the code instructs me to look at.” After a recess, the
judge reconvened the hearing, set bond, and concluded the hearing. The juvenile court then entered
an order transferring the petitioner’s case to criminal court. In the order, the court recounted its
review of the transfer considerations mandated by Tennessee Code Annotated section 37-1-134(b).
The court found that the petitioner was seventeen years old when the offenses were committed, that
he was not committable to an institution for the mentally ill or retarded, that he committed the
charged offenses, and that, upon examination of “the prior record of the [petitioner] and the prior
treatment received by the [petitioner],” the state “has met its burden under T[ennessee] C[ode]
A[annotated] [s]ection 37-1-134 regarding the appropriateness of transfer.”

                                     b. Suppression Proceeding.

                Following the transfer to, and the indictment in, criminal court, the petitioner’s
counsel moved to suppress the petitioner’s January 21 and 25, 1999 statements on the grounds that
they were obtained in violation of his rights pursuant to the Fifth, Sixth, and Fourteenth Amendments
to the United States Constitution and Articles 1, 7, and 8 of the Tennessee Constitution. The motion


                                                  -2-
alleged that the petitioner’s statements to police officers on both days, and to an assistant district
attorney general on January 25, 1999, were rendered in violation of the principles of Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). From evidence presented at the suppression hearing,
the trial court made the following findings of fact. Acting upon information supplied by an
accomplice to the shooting of Mr. Talley, officers visited the petitioner’s home on January 21, 1999.
The petitioner “agreed to accompany [the officers] downtown to answer some questions.” At the
Criminal Justice Center (CJC), the petitioner made statements implicating himself and “accompanied
[an officer] to a location to obtain the alleged murder weapon.” Thereafter, the officer took the
petitioner home. After acquiring new information about the crime, the officer called the petitioner
on January 25 and asked him “if he would come in for more questions.” The officer “picked up the
[petitioner] and proceeded downtown to the [CJC].” The officer testified that after arriving at the
CJC, he read the petitioner his Miranda rights and that the petitioner waived the rights and gave a
tape-recorded statement. The officer then arrested the petitioner and took him to the Juvenile
Detention Center, where after the Miranda rights were again explained and waived, an assistant
district attorney general interviewed him.

                In its order denying suppression, the criminal court found that, despite the petitioner
having been placed in handcuffs while being transported to the CJC on January 21, the petitioner was
under no restraint while being questioned and, accordingly, was not in custody when interrogated
on January 21, 1999. Based on that finding, the court then denied suppression of the January 21
inculpative statement.

               The court then turned to consider whether the petitioner effectively waived his
Miranda rights before giving the inculpative statements on January 25. The court considered the
petitioner’s background and his ability to read and write, accredited the testimony of the police
officer who described the petitioner’s demeanor during the waiver process, and found that the
petitioner “voluntarily waived his Miranda rights in both statements given on January 25, 1999.”

                                   c. Guilty Plea Proceeding.

                 On January 17, 2001, the petitioner entered into a plea agreement which called for
a reduction of the felony murder charge to second degree murder with a minimum Range I, Class
A sentence of fifteen years in the Department of Correction. Also, the petitioner agreed to plead
guilty to attempt to commit especially aggravated robbery and to serve a maximum Range I, Class
B sentence of twelve years concurrently with the second degree murder sentence. On January 18,
2001, the trial court engaged the petitioner in a thorough inquiry about his desire to plead guilty and
his waiver of various procedural rights. The petitioner acknowledged that his attorneys had
discussed the case with him and that he had neither lingering questions nor complaints about
counsel’s service. The trial judge explained the terms of the plea, including the statutory provision
that the second degree murder sentence would be served at 100 percent, and the petitioner
acknowledged that he understood the terms. The judge explained the petitioner’s rights to be tried
by a jury, to be represented by counsel, to confront adverse witnesses, to compel the testimony of
witnesses, to avoid self-incrimination, to testify in his own behalf, and to appeal any adverse


                                                 -3-
adjudications. The petitioner acknowledged that he understood these rights and that he wished to
waive them in exchange for the plea arrangement. The petitioner acknowledged that he attained the
eighth grade in school, could read and write, and that he understood the plea documents. The
prosecutor stated in detail the factual basis for the pleas, and the petitioner confirmed the truth of the
statement. The petitioner affirmed that he was pleading guilty freely and voluntarily.

                                      II. Post-Conviction Proceeding.

                  At the post-conviction evidentiary hearing held on May 10, 2002, the petitioner’s trial
attorneys testified. The petitioner’s juvenile court counsel characterized the transfer proceeding in
juvenile court as being one where “basically, the issue is whether the juvenile system can handle the
child given the factors of the child and the child’s background history versus whether a child needs
to be in the adult system.” Counsel reviewed with the petitioner his juvenile court history. In 1995,
he had been transferred to criminal court on another homicide charge that was later dismissed.
Following that, he was adjudicated delinquent in juvenile court for committing aggravated robbery
and attempted homicide, and he was committed to a state juvenile institution. The petitioner was
on “after-care” from that institution when he committed the instant offenses. Counsel testified that
the petitioner’s prior institutional placement was the “most intensive and severe” form of
rehabilitation available in the juvenile justice system. Counsel admitted that she saw nothing else
appropriate and available to the petitioner through the juvenile system.1 Counsel testified that even
after she had spent 25 to 30 hours conferring with the petitioner, he presented no signs of mental or
psychological impairment and that he merely wanted to waive any objection to the transfer to
criminal court in exchange for a lower bond. Counsel did not recall whether the petitioner requested
to testify at the transfer hearing, but she testified that she normally would advise against a juvenile’s
testimony in such a situation.

                In criminal court, counsel moved to suppress the petitioner’s three pretrial statements.
She did not recall discussing with the petitioner the possibility of appealing the suppression ruling,
but notwithstanding, she believed that an appeal would have been futile. She admitted that in the
suppression proceeding, she did not raise the issue of how much time had elapsed with the petitioner
in custody before the statements were given. Counsel testified that the state had evidence other than
the petitioner’s statements that inculpated him in the instant offenses.

               Counsel testified that she read the plea agreement to the petitioner and that he seemed
to understand, although counsel was then unaware of the petitioner’s IQ score. She admitted that
knowledge of the IQ score might have affected the way she explained things to the petitioner.
Nevertheless, counsel discussed possible theories of defense and explained the theory of criminal

         1
           A 1995 p sychological evaluation report contained in the record reveals that the petitioner’s full scale
intelligence quotient (IQ) score is 65, placing him in a classification of mild mental retardation. The evaluator found,
however, that the petitioner “often steals from others, . . . prefers to be around o thers who get into trouble,” has no
remorse for wro ngful or illegal behavior, is “highly opp ositional and . . . likely to be o penly defiant to ward authority,”
and has a “high level of homicidal ideation and violation of the rights of others.” The evaluator determined that the
petitioner, at age twelve years and eleven months, “likely presents a threat to the community.”

                                                             -4-
responsibility, which the petitioner apparently understood. Counsel sought no psychological
evaluation because the petitioner gave no indication of any mental health issue.

                The petitioner testified at the evidentiary hearing that he asked his lawyer whether he
could testify at the transfer hearing; however, he admitted that had he testified, he would have
repeated the account he gave in his pretrial statements. He testified that he had attended special
education classes and had difficulty reading.

                The petitioner testified that on January 25, 1999, he stayed at the CJC about six or
seven hours before being booked into the juvenile facility. He acknowledged that counsel visited
him seven or eight times before the plea hearing but denied that he understood everything she told
him. He testified that he told counsel that he wanted to go to trial but that she overcame his will to
do so when she told him that if he were convicted of first degree murder, he would receive an
automatic life sentence. The petitioner testified that he did not know the meaning of “facilitation”
as a lesser-included offense. He denied that counsel discussed lesser-included offenses with him.
He claimed that he thought the effective fifteen-year sentence would be served at thirty percent.

                In its written order denying post-conviction relief, the trial court found that “the
record is clear that the juvenile court considered the entire juvenile file on the petitioner . . . when
considering whether to transfer these cases.” The post-conviction court found that the juvenile court
complied with the law when it transferred the petitioner’s case to criminal court and, moreover,
found that the petitioner “failed to show how [his] lack of testimony [at the transfer hearing]
rendered the outcome of the transfer hearing unreliable.” The court ruled that the petitioner also
failed to show that he was prejudiced by his lack of testimony at the transfer hearing. The post-
conviction court found that trial counsel had adequately prepared the case and advised the petitioner,
and the petitioner failed to show prejudice in support of his claim that counsel should have utilized
a statutory basis for seeking suppression of the petitioner’s pretrial statements. Also, based upon
its rulings that the transfer to criminal court was proper, the post-conviction court held that the
criminal court had jurisdiction over the petitioner and his case; it thus denied habeas corpus relief.

                                    III. Post-Conviction Procedure.

               The post-conviction petitioner bears the burden of proving his or her allegations by
clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f) (2003). On appeal, the appellate
court accords to the lower court’s findings of fact the weight of a jury verdict, and these findings are
conclusive on appeal unless the evidence preponderates against them. Henley v. State, 960 S.W.2d
572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997).

                           IV. Adjudication of the Petitioner’s Claims.

                                a. Ineffective Assistance of Counsel.




                                                  -5-
                 First, we address the petitioner’s claims that his convictions were the product of
ineffective assistance of counsel, in contravention of the Sixth Amendment of the United States
Constitution and Article I, section 9 of the Tennessee Constitution. See Baxter v. Rose, 523 S.W.2d
930 (Tenn. 1975). He claims that counsel was ineffective in failing (1) to press the juvenile court
on the issues whether the petitioner’s prospects for rehabilitation in the juvenile system and his mild
mental retardation defeated the state’s effort to transfer the case to criminal court, (2) to present the
petitioner as a witness in the transfer hearing, (3) to discover and exploit the petitioner’s mild mental
retardation as a means of defending the charges in criminal court, (4) to adequately advise the
petitioner prior to entering into a plea agreement, particularly with respect to the possibility of
facilitation as lesser-included offenses of the charged offenses, and (5) to raise the issue of length
of detention in the motion to suppress.

                In determining whether the evidence preponderates against the post-conviction court's
findings that the petitioner received effective assistance of counsel, this court considers (1) whether
counsel's performance was within the range of competence demanded of attorneys in criminal cases,
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and (2) whether any deficient performance
prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687-79, 104 S. Ct. 2052,
2064-2069 (1984); see Powers v. State, 942 S.W.2d 551, 557 (Tenn. Crim. App. 1996). We need
not address these components in any particular order or even address both if the petitioner fails to
meet his burden with respect to one. Henley, 960 S.W.2d at 580.

                In evaluating counsel's performance, this court should not examine every allegedly
deficient act or omission in isolation, but rather in the context of the case as a whole. State v.
Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The primary concern should be the
fundamental fairness of the proceeding whose result is being challenged. Id. This court should not
second-guess tactical and strategic decisions by defense counsel. Henley, 960 S.W.2d at 579.
Instead, this court must reconstruct the circumstances of counsel's challenged conduct and evaluate
the conduct from counsel's perspective at the time. Id.; see also Irick v. State, 973 S.W.2d 643, 652
(Tenn. Crim. App. 1998). However, this court's deference to counsel's tactical decisions will depend
upon counsel's adequate investigation of defense options. Burger v. Kemp, 483 U.S. 776, 794, 107
S. Ct. 3114, 3126 (1987).

               Even if the petitioner establishes that counsel’s performance was not within the
requisite range of competence, he must also demonstrate a reasonable probability that the result of
the proceeding would have been different but for the defective performance of counsel. Henley, 960
S.W.2d at 580. The prejudice prong of the Strickland test “continues to be the primary hurdle to
be cleared in Sixth Amendment assistance of counsel cases,” but “[t]his obstacle . . . is not
insurmountable.” Profitt v. Waldron, 831 F.2d 1245, 1251 (5th Cir. 1987).

                A court must consider the totality of the evidence before the judge or
                jury. Some of the factual findings will have been unaffected by the
                errors, and factual findings that were affected will have been affected
                in different ways. Some errors will have had a pervasive effect on the


                                                  -6-
               inferences to be drawn from the evidence, altering the entire
               evidentiary picture, and some will have had an isolated, trivial effect.

Henley, 960 S.W.2d at 580 (citations omitted).

                In cases involving a guilty plea or plea of nolo contendere, the petitioner claiming
ineffective assistance of counsel must show prejudice by demonstrating that, but for counsel’s errors,
he would not have pleaded guilty but would have insisted upon going to trial. See Hill v. Lockhart,
474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985); Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim.
App. 1991).

                                            (1), (2)

                First, we review the complaints that counsel failed to adequately oppose the transfer
from juvenile court by neglecting to present options for juvenile rehabilitation programs and to
establish the petitioner’s IQ score of 65. When considering a transfer of a juvenile to adult
disposition in criminal court, the court is mandated to consider certain factors:

               In making the [transfer] determination required by subsection (a), the
               court shall consider, among other matters:
                        (1) The extent and nature of the child's prior delinquency
               records;
                        (2) The nature of past treatment efforts and the nature of the
               child's response thereto;
                        (3) Whether the offense was against person or property, with
               greater weight in favor of transfer given to offenses against the
               person;
                        (4) Whether the offense was committed in an aggressive and
               premeditated manner;
                        (5) The possible rehabilitation of the child by use of
               procedures, services and facilities currently available to the court in
               this state; and
                        (6) Whether the child's conduct would be a criminal gang
               offense, as defined in § 40-35-121, if committed by an adult.

Tenn. Code Ann. § 37-1-114(b) (2001) (emphasis added). In the present case, the petitioner argues
that the juvenile court failed to make any findings about his prospects for rehabilitation through the
juvenile justice system and that his counsel failed to press the issue. Implicit in the petitioner’s
position is the claim that, had counsel advanced the issues of the aptness of juvenile programs and
the circumstance of the petitioner’s mild mental retardation, the juvenile court would have denied
the transfer request. The petitioner argues that because counsel failed to highlight his low IQ score,
the juvenile court was unaware that it was empowered to grant psychological or mental examinations
for the child. See id. § 37-1-128(e) (2001).


                                                 -7-
                 In our view, although the juvenile court could have made more specific factual
findings relative the statutory factors for transferring a juvenile to criminal court, that court did
review the evidence, including the petitioner’s prior juvenile court record, and based upon all the
evidence, it essentially determined that any factors favoring a juvenile disposition of the case were
overcome by the factors indicating the aptness of a transfer. Moreover, we must agree with the
assessment of the petitioner’s juvenile court counsel that the evidence, including the prior record and
evaluation report, showed that the juvenile court had little choice but to transfer the petitioner to
criminal court. In essence, the juvenile court had exhausted its available remedies and had
previously failed to rehabilitate a young man who posed a violent threat to the community. Thus,
the petitioner has failed to demonstrate the requisite prejudice. Moreover, we discern no deficient
performance of counsel in failing to take actions to exploit the petitioner’s mental limitations and
his rehabilitation potential. Given the petitioner’s dismal chances of prevailing on the transfer issue,
we must defer to counsel’s strategic choice to pursue the petitioner’s request by using the opportunity
to obtain a lower bond, which counsel was apparently successful in doing.

                We believe the overwhelming evidence favored transfer of the petitioner to criminal
court,2 and the petitioner’s desire to obtain a lower bond fueled a strategy of acceding to the state’s
transfer request once the state had established the probability that the petitioner was involved in the
crimes. That strategy logically embraced the tactic that the petitioner should avoid testifying. His
testimony would commit the petitioner to a sworn, on-the-record account of his role in the crimes,
and in any event, it likely would have been futile to testify. Thus, testifying presented a nothing-to-
gain, something-to-lose scenario. The “something to lose” seems particularly poignant when we
consider that, had the petitioner testified, he would have adopted and essentially galvanized his
pretrial inculpative statements, which in criminal court he later tried to have suppressed. Thus, the
petitioner has demonstrated no lower-court error in finding that his juvenile court counsel rendered
effective assistance at the transfer hearing.

                                                         (3)

                The petitioner claims that trial counsel were ineffective in failing to discover his mild
mental retardation and in failing to employ it as a defense theory in criminal court. We agree that
trial counsel should have been aware of the petitioner’s IQ score, but we discern no prejudice in
failing to discover or utilize the mental status as a defense strategy. The petitioner did not establish
at the evidentiary hearing below how any mental limitation or psychological condition would have
affected his culpability for the present crimes or would have impaired his competency to participate
in the criminal court proceedings. Counsel’s testimony, accredited by the post-conviction court,

         2
            W e are aware that the record contains no psych olog ical report on the petitioner more recent than the 1995
report that was a part of his juvenile history; however, our task in this post-conviction proceeding is to determine whether
the evidence preponderates against the post-conviction court’s finding that the petitioner failed to carry his burden of
proving his claims by clea r and convincing evidence. See Tenn. Cod e Ann. § 40-30-110(f) (2003 ). In other words, he
failed to introduce evidence at the post-conviction evidentiary hearing to show that his psychological, mental, or
rehab ilitative status was different in 1999 than it was in 199 5.

                                                            -8-
showed that despite many substantive discussions with the petitioner, counsel perceived no basis for
thinking him mentally deficient or even for seeking a mental or psychological evaluation. Thus, the
post-conviction record fails to establish that the petitioner was prejudiced by counsel’s failure to
discern and exploit his mental and/or psychological condition.

                                                (4)

                 In his next ineffective assistance issue, the petitioner complains that his trial counsel
failed to explain his legal circumstances and, in particular, failed to advise him that a trial could
possibly result in the petitioner being convicted of facilitation of the charged crimes. See Tenn. Code
Ann. § 39-11-403 (2003) (proscribing facilitation of a felony as an offense punishable in an offense
class next below that of the charged offense); State v. Burns, 6 S.W.3d 453, 466-67 (1999)
(establishing facilitation as a lesser-included offense of the charged offense when complicity is an
issue).

                 Assuming that counsel did not impart this information to the petitioner, and even if
that lapse equates to deficient performance, we are unpersuaded that the petitioner has shown
prejudice as contemplated by Strickland. The petitioner was otherwise fully advised of his legal
circumstances, including the nature of the state’s theory of his responsibility for the crimes of
another. Furthermore, by our reckoning, the plea agreement was very favorable to the petitioner.
The petitioner was fully aware that through this plea agreement he avoided the risk of life
imprisonment. He failed to convince the post-conviction court that had he been informed about
facilitation as a lesser-included offense, he would have eschewed the plea and gone to trial. The
evidence does not preponderate against this finding.

                                                (5)

                In his next claim of ineffective assistance, the petitioner argues that trial counsel were
remiss in not using Tennessee Code Annotated section 37-1-115 as a basis for the suppression of his
pretrial statements. That section provides:

                       (a) A person taking a child into custody shall within a
                reasonable time:

                       (1) Release the child to such child's parents, guardian or other
                custodian upon a promise by such person or persons to bring the child
                before the court when requested by the court unless such child's
                detention or shelter care is warranted or required under § 37-1-114;
                or

                       (2) Bring the child before the court or deliver such child to a
                detention or shelter care facility designated by the court or to a
                medical facility if the child is believed to suffer from a serious


                                                   -9-
               physical condition or illness which requires prompt treatment. A
               person taking a child into custody shall give notice thereof, together
               with a reason for taking the child into custody, to a parent, guardian
               or other custodian and to the court. If the child is taken into custody
               pursuant to the provisions of § 37-1-113(a)(3) prior to the filing of a
               petition, a petition under § 37-1-120 shall be filed as soon as possible
               but in no event later than two (2) days after the child is taken into
               custody excluding Saturdays, Sundays and legal holidays.

                        (b) If a parent, guardian or other custodian, when requested,
               fails to bring the child before the court as provided in subsection (a),
               the court may issue its warrant directing that the child be taken into
               custody and brought before the court.

Tenn. Code Ann. § 37-1-115(a), (b) (2001) (emphasis added); see id. § 37-1-127(c) (2001)
(providing that "[a]n extra-judicial statement, if obtained in the course of violation of this part or
which would be constitutionally inadmissible in a criminal proceeding, shall not be used against [a
child]").

                The petitioner relies upon his testimony that on January 25, 1999, he spent up to two
and one-half hours at the CJC, where he was interrogated and gave an inculpative statement, before
being brought to the juvenile center, where he was again interrogated and gave another statement.
The petitioner testified that, in total, six or seven hours elapsed between the time he was picked up
at his residence and the time he was ultimately “booked” at the juvenile center.

                 In our view, the petitioner has failed to show that he was prejudiced by counsel’s
failure to raise the statutory issue in the motion to suppress. First, our supreme court has held that
Code section 37-1-127(c) guarantees only that a juvenile's statements taken in violation of section
37-1-115 will not be used against him or her in a proceeding in juvenile court. Colyer v. State, 577
S.W.2d 460, 462 (Tenn. 1979) (emphasis added). In addition, the petitioner failed to show by clear
and convincing evidence that the lapse of time between taking him into custody and delivering him
to the juvenile center was unreasonable.

                When considering the suppression of a juvenile’s post-custody statement, the proper
“inquiry is whether the reasonable time requirements of the statute have been met and whether, under
the totality of the circumstances, the defendant’s confession was the result of a knowing and
intelligent waiver of his constitutional rights.” State v. Lundy, 808 S.W.2d 444, 446 (Tenn. 1991).
We believe that, in looking at the totality of the circumstances, the present case is strikingly
analogous to Lundy:

               At the time police received information about Willie Lundy, they did
               not have probable cause to make an arrest, although they did have an
               adequate basis for further investigation. Moreover, individual


                                                -10-
               interrogation of Lundy was a reasonable method of investigation
               under the circumstances. Within minutes of being picked up from
               school, Lundy volunteered an incriminating response to his mother's
               question. Upon arriving at the police station, Lundy was advised of
               his rights and, within an hour and twelve minutes of leaving school,
               he had made a full statement of his involvement in Maxwell's death.
               Although his detention at the hands of the police lasted beyond that
               period of time, the admissibility of subsequently seized evidence is
               not at issue. Lundy was turned over to the jurisdiction of juvenile
               court less than five hours after leaving school. Under the particular
               facts of this case, we hold that this was a reasonable period of time
               under T[ennessee] C[ode] A[nnotated section] 37-1-115(a).

Lundy, 808 S.W.2d at 447. In the present case, it is difficult to determine when the petitioner was
placed into custody on January 25; however, the custody probably commenced when the petitioner
completed his first statement on that date. Sometime later, apparently less than six or seven hours,
he was taken to the juvenile center. Based upon Colyer and Lundy, the petitioner has failed to show
that had he raised the statutory issue in his motion to suppress, he would have prevailed. This failure
equates to a failure to show prejudice pursuant to Strickland. See Kimmelman v. Morrison, 477 U.S.
365, 375, 106 S. Ct. 2574, 2583 (1986) (where failure to litigate suppression is basis of
ineffectiveness claim, defendant must also prove suppression motion is meritorious).

                Thus, we hold that the record supports the post-conviction court’s determination that
the petitioner failed to establish ineffective assistance of counsel.

                           b. Involuntary, Unknowing Guilty Pleas.

               The petitioner next claims that his guilty pleas should be vacated because his pleas
were unknowing and hence involuntary. To be sure, a guilty plea must be made knowingly and
voluntarily. Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S. Ct. 1709, 1712 (1969). To that end,
“defendants should be advised of certain of their constitutional rights before entering pleas of guilt.
Included among those required warnings are the right against self-incrimination, the right to confront
witnesses, and the right to a trial by jury.” Charlton v. State, 987 S.W.2d 862, 866 (Tenn. Crim.


                                                 -11-
App. 1998). Our supreme court has identified several relevant factors in determining whether a plea
is voluntary and intelligent:

                [A] court charged with determining whether those pleas were
                "voluntary" and "intelligent" must look to various circumstantial
                factors, such as the relative intelligence of the defendant; the degree
                of his familiarity with criminal proceedings; whether he was
                represented by competent counsel and had the opportunity to confer
                with counsel about the options available to him; the extent of advice
                from counsel and the court concerning the charges against him; and
                the reasons for his decision to plead guilty, including a desire to avoid
                a greater penalty that might result from jury trial.

Wallen v. State, 863 S.W.2d 34, 38 (Tenn. 1993)

                  Although, based upon the IQ score, the petitioner’s intelligence is less than
formidable, the other Wallen factors support a finding that the petitioner’s plea was knowing and
voluntary. The petitioner had been involved previously with proceedings in juvenile court and had
experienced a previous transfer of a homicide case to criminal court, albeit one in which the charge
was dismissed. Based upon the record before us, the petitioner was represented by competent
counsel who conferred with him extensively. Counsel’s accredited testimony showed that counsel
rendered intricate advice on the issues at hand. Moreover, the record of the plea-submission hearing
belies the petitioner’s claim in his brief that “insufficient time was taken to ensure that the Petitioner
understood what he was doing.” At the hearing, the trial court tediously explained the petitioner’s
rights to him, and the petitioner responded affirmatively – not perfunctorily – that he understood his
rights and that he waived them. Although he maintained in the post-conviction hearing that he did
not understand that the second degree murder sentence must be served at 100 percent, the plea
documents reveal otherwise. The petitioner, in his evidentiary hearing testimony, even
acknowledged that trial counsel had imparted to him an accurate description of the second degree
murder sentence. Also, the trial court expressly informed the petitioner during the plea colloquy that
the fifteen-year sentence entailed a requirement of 100 percent service. The petitioner told the
trialcourt that he understood this provision. Finally, it is apparent on the record that the petitioner
reasonably agreed to the plea arrangement in order to avoid a possible life sentence.

                Under all of the circumstances, we conclude that the post-conviction court was
justified in determining that the guilty pleas were made knowingly and voluntarily.




                                                  -12-
                            c. Denial of Right to Testify at Transfer Hearing.

                 Citing Momon v. State, 18 S.W.3d 152 (Tenn. 1999), the petitioner asserts that he was
denied his right to testify in his juvenile court transfer hearing. In Momon, our supreme court held
that “a criminal defendant's right to testify is a fundamental constitutional right guaranteed both by
Article I, section 9 of the Tennessee Constitution and by the Fifth and Fourteenth Amendments to
the United States Constitution . . . [, and a]s such, the right must be personally waived by the
criminal defendant.” Id. at 155. We find nothing in the record to indicate that the defendant
personally waived his testimony at the transfer hearing.

                  Assuming, purely for purposes of argument, that Momon even applies to proceedings
other than to a trial on a criminal charge,3 we have no doubt that a denial of the right was harmless
beyond a reasonable doubt. See id. at 166-67 (“[D]enial of the right to testify has been appropriately
characterized as a trial error which is subject to the harmless error doctrine.”). The petitioner
testified at the post-conviction evidentiary hearing that at the transfer hearing he would have testified
along the lines of his inculpating pretrial statements. Thus, we are at a loss to see how such
testimony would have altered the juvenile court’s decision to transfer the case to criminal court.
Furthermore, as we have mentioned above, the juvenile court clearly had unsuccessfully utilized its
most severe and intensive programs as a means of rehabilitating an offender who is inveterately
prone to violent behavior. The evaluation report before the juvenile court said that the petitioner
prefers to associate with other law-breaking peers, he is “highly oppositional and . . . likely to be
openly defiant toward authority[,] . . . has a high level of homicidal ideation in violation of the rights
of others [,] . . . has little or no empathy for [his victims, and] . . . is a threat to the community.”
Faced with this sanguine portrayal of an intractably violent person, we are confident that the juvenile
court would have transferred the case to criminal court despite the testimony the petitioner says he
would have offered. Thus, he did not establish by clear and convincing evidence that a denial of
his right, if any, to testify at the transfer hearing would have resulted in a juvenile court disposition
of his case.

                                           e. Habeas Corpus Claim.

               When counsel amended the post-conviction petition, he included a claim that the
petitioner was entitled to habeas corpus relief because the conviction court lacked jurisdiction. He
based this argument upon his underlying claim that the juvenile court transfer proceeding was infirm.

                 First, we are constrained to point out that merely appending a claim in habeas corpus
to a petition brought pursuant to the Post-Conviction Procedure Act, Tenn. Code Ann. §§ 40-30-101



         3
            After reviewing the history of both the federal and state constitutional guarantees of the right to testify, the
Momon court stated, “[T ]he right of a crim inal defendant to testify in his or her own behalf is a fundamental
constitutional right.” Id. at 161. Then, the court added, “Since the right to testify at one's own trial is a fundamental
right, it follows that the right may only be waived personally by the defendant.” Id. at 161 (emphasis added).

                                                           -13-
et seq. (2003) invites futility. Tennessee law requires that habeas corpus claims comply with a
statutorily prescribed regimen.

                       (a) Application for the writ shall be made by petition, signed
               either by the party for whose benefit it is intended, or some person on
               the petitioner's behalf, and verified by affidavit.

                      (b) The petition shall state:

                       (1) That the person in whose behalf the writ is sought, is
               illegally restrained of liberty, and the person by whom and place
               where restrained, mentioning the name of such person, if known, and,
               if unknown, describing the person with as much particularity as
               practicable;

                       (2) The cause or pretense of such restraint according to the
               best information of the applicant, and if it be by virtue of any legal
               process, a copy thereof shall be annexed, or a satisfactory reason
               given for its absence;

                       (3) That the legality of the restraint has not already been
               adjudged upon a prior proceeding of the same character, to the best
               of the applicant's knowledge and belief; and

                       (4) That it is first application for the writ, or, if a previous
               application has been made, a copy of the petition and proceedings
               thereon shall be produced, or satisfactory reasons be given for the
               failure so to do.

Tenn. Code Ann. § 29-21-107 (2000). By merely stating the habeas corpus claim as an alternative
claim for relief in his post-conviction petition, the petitioner has failed to comply with the
requirements set forth in Code section 29-21-107(a) and provisions (1), (3), and (4) of subsection
29-21-107(b). “[T]he procedural provisions of the [habeas corpus] statutes are mandatory and must
be followed scrupulously.” Archer v. State, 851 S.W.2d 157, 165 (Tenn. 1993). Thus, the post-
conviction (habeas corpus) court was warranted in dismissing the claim based upon procedural
deficiency.

               The habeas corpus claim is also, however, lacking in its substantive merit. “[T]he
writ of [habeas corpus] will issue in Tennessee only when it appears upon the face of the judgment
or the record of the proceedings upon which the judgment is rendered that a convicting court was
without jurisdiction or authority to sentence a defendant, or that a defendant's sentence of
imprisonment or other restraint has expired.” State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000)
(quoting Archer, 851 S.W.2d at 164). “A void judgment is one in which the judgment is facially


                                                -14-
invalid because the court lacked jurisdiction or authority to render the judgment or because the
defendant's sentence has expired.” Taylor v. State, 955 S.W.2d 78, 83 (Tenn. 1999). In contrast,
“[a] voidable conviction or sentence is one which is facially valid and requires the introduction of
proof beyond the face of the record or judgment to establish its invalidity.” Ritchie, 20 S.W.3d at
630 (quoting Taylor, 955 S.W.2d at 83). Facial invalidity means that the “fact [depriving the court
of jurisdiction] must appear clearly and indisputably either on the face of the judgment or in the
original trial record before a writ of habeas corpus can issue from a Tennessee court.” Ritchie, 20
S.W.3d at 633.

                The petitioner claims that because the juvenile court failed to consider all of the
factors for transfer to criminal court, the transfer order is void, and hence, the criminal court lacked
jurisdiction to adjudicate the petitioner’s case. We conclude, however, that the juvenile court’s
transfer order reflects a complete adjudication of the transfer issue. Thus, the claimed defect does
not appear on the face of the record and, therefore, cannot give rise to a claim in habeas corpus.

                Additionally, we have elsewhere in this opinion rejected the claim that any defect
attends the transfer proceeding in juvenile court. For this reason, as well as those stated immediately
above, the habeas corpus claim must fail.

                                       V. Conclusion.

               We discern no basis for reversing the actions of the lower court and affirm the denial
of post-conviction and habeas corpus relief.




                                                        ___________________________________
                                                        JAMES CURWOOD WITT, JR., JUDGE




                                                 -15-
