            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON

                          NOVEMBER 1997 SESSION
                                                              FILED
CAVIOUS M. WATKINS,           *      C.C.A. # 02C01-9701-CR-00031

             Appellant,       *      SHELBY COUNTY
                                                             January 12, 1998
VS.                           *      Hon. James C. Beasley, Jr., Judge

STATE OF TENNESSEE,           *      (Post-Conviction)
                                                              Cecil Crowson, Jr.
             Appellee.        *
                                                              Appellate C ourt Clerk




For Appellant:                       For Appellee:

Garland Erguden                      John Knox Walkup
Attorney                             Attorney General and Reporter
242 Poplar Avenue
Memphis, TN 38103                    Clinton J. Morgan
                                     Counsel for the State
                                     450 James Robertson Parkway
                                     Nashville, TN 37243-0493

                                     Janet Shipman
                                     Assistant District Attorney General
                                     201 Poplar Avenue, Third Floor
                                     Memphis, TN 38103




OPINION FILED:__________________________




AFFIRMED




GARY R. WADE, JUDGE
                                        OPINION

              The defendant, Cavious M. Watkins, appeals the trial court's denial of

his petition for post-conviction relief. In this appeal of right, the defendant contends

that his pleas were neither knowingly nor voluntarily made due to the ineffective

assistance of counsel. We find no error and affirm the judgment of the trial court.



              Indicted on two counts of especially aggravated robbery and one count

of felony murder, the petitioner entered into a plea agreement, acknowledging his

guilt on each count. On June 1, 1995, the trial court imposed Range I, twenty-five-

year sentences on each of the two robberies. A life sentence was imposed for the

felony murder. The sentences are to be served concurrently.



              On April 26, 1996, the petitioner filed a pro se petition for post-

conviction relief, claiming that his guilty pleas were neither freely nor intelligently

made due to the ineffective assistance of his retained trial counsel. An amendment

to the petition included the specific allegation that the petitioner had been

misinformed by his trial counsel as to his release eligibility date. He contended that

he entered his plea based upon information that he would be eligible for release

much sooner than as later determined through the Department of Correction.



              The petitioner was seventeen years of age at the time of his plea and

had completed the ninth grade. There was testimony that he had understood his

prison sentence would last approximately seventeen years; however, he later

learned that with maximum good time credits, his minimum sentence would be

twenty-two years. While acknowledging that his trial counsel had met with him

regularly to provide progress reports on his case, the petitioner testified that, in

general, he did not understand the nature of the proceedings against him.


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              Trial counsel testified that he had learned through his investigation that

the evidence against the petitioner was overwhelming. He learned that the

defendant and each of his two co-defendants had admitted their participation in the

crimes to the police. There was a videotape of the car the defendants used in the

commission of the crimes. The victim who had survived the robbery was able to

identify the petitioner as one of the robbers. Trial counsel asserted that the only

defense possible was to require the state to meet its burden of proof on each of the

elements of the crime. He expressed particular concern about the possibility of

consecutive sentencing had a trial been demanded and recalled that the petitioner,

when apprised of the results of the investigation, expressed a genuine desire to

plead guilty so as to avoid a more onerous result.



              Trial counsel specifically denied having informed the petitioner that he

would be eligible for release within seventeen years. He testified that it was his

understanding that a life sentence would consist of twenty-five years. Trial counsel

claimed that it had been his policy to inform clients that release eligibility is solely

determined by the Department of Correction and potentially influenced by

overcrowding, earned sentence credits, or other incentives.



              In its findings of fact and conclusions of law, the trial court determined

that the petitioner's only complaint was that his trial counsel had represented that he

would be eligible for parole in seventeen years. Otherwise, the petitioner had no

quarrel with the quality of his work. The court observed that trial counsel had

represented the petitioner over a period of two years, had fully investigated the

matter, and had adequate prior experience by his participation in a number of

murder trials. The trial court generally accredited the testimony of trial counsel,

determining that the petitioner had failed to meet his burden of proving that the


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pleas were not knowingly or voluntarily made. Implicit in the holding is that the

petitioner was unable to establish to the satisfaction of the trial judge that he had

been misinformed by his counsel about the release eligibility date.



               In order for the petitioner to be granted relief on grounds of ineffective

counsel, he must establish that the advice given or the services rendered were not

within the range of competence demanded of attorneys in criminal cases and that,

but for his counsel's deficient performance, the result of his trial would have been

different. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). This two-part

standard, as it applies to guilty pleas, is met when the petitioner establishes that, but

for his counsel's errors, he would not have pled guilty and would have insisted on a

trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985). "Gross

misadvice concerning parole eligibility can amount to ineffective assistance of

counsel." Sparks v. Sowders, 852 F.2d 882, 885 (6th Cir. 1988); see generally

Adkins v. State, 911 S.W.2d 334 (Tenn. Crim. App. 1994) (holding failure of counsel

to advise defendant as to collateral effects of guilty plea is not ineffective

assistance).



               The burden is on the petitioner to show that the evidence

preponderates against the findings of the trial judge. Clenny v. State, 576 S.W.2d

12 (Tenn. Crim. App. 1978). Otherwise, the findings of fact by the trial court are

conclusive. Graves v. State, 512 S.W.2d 603 (Tenn. Crim. App. 1973). In post-

conviction claims, the credibility of the witnesses and the weight and value to be

given their testimony is within the exclusive authority of the trial court. Taylor v.

State, 875 S.W.2d 684, 686 (Tenn. Crim. App. 1993).




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              Here, the petitioner testified that his true release eligibility date was

2029, almost thirty-four years after his pleas. That date is erroneous as

acknowledged by the petitioner in his appellate brief; thus, the testimony did not

enhance the petitioner's credibility. The trial court deemed as significant the fact

that no other witnesses testified on behalf of the petitioner as to his release eligibility

date allegations even though trial counsel had consulted with other members of the

petitioner's family prior to the acceptance of the plea agreement. We cannot

disagree with the trial court's rationale. The record suggests that the petitioner may

still be confused about his release eligibility date. From all of this, it is our view that

the petitioner has been unable to demonstrate that the evidence preponderates

against the finding made by the trial court that he had been represented within

professional guidelines.



              It follows then that the petitioner has failed to demonstrate that his plea

was involuntary or unknowing. In Boykin v. Alabama, 395 U.S. 238 (1969), the

United States Supreme Court ruled that 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. Id. at 243. The overriding Boykin

requirement is that the guilty plea must be knowingly and voluntarily made. Id. at

242-44. If the proof established that the petitioner was aware of his constitutional

rights, he is entitled to no relief. Johnson v. State, 834 S.W.2d 922, 926 (Tenn.

1992). "[A] plea is not 'voluntary' if it is the product of '[i]gnorance, incomprehension,

coercion, terror, inducements, [or] subtle or blatant threats ....'" Blankenship v.

State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Boykin, 395 U.S. at 242-43).



              The petitioner asserts that his plea was neither knowing nor voluntary


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because he pled guilty expecting to serve a seventeen year sentence rather than a

twenty-two year sentence. As we have previously determined, however, the

petitioner has failed to meet his burden of showing that the evidence preponderates

against the trial court's findings. The trial court found, and we have agreed, that the

petitioner's trial counsel did not erroneously inform the petitioner he would serve

only a seventeen year sentence. Moreover, the petitioner admitted at the post-

conviction hearing that when he entered his pleas, he had understood he would

receive a life sentence and two concurrent twenty-five year sentences; he further

admitted that he understood each of his rights at that time. Thus, the record

indicates a knowing and voluntary plea.



              Accordingly, the judgment is affirmed.



                                          ________________________________
                                          Gary R. Wade, Judge

CONCUR:



_____________________________
David G. Hayes, Judge



_____________________________
Joe G. Riley, Judge




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