        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON

                     SEPTEMBE R SESSION, 1997


PAUL GLIDEWELL,            )   C.C.A. NO. 02C01-9612-CC-00458
                           )
      Appe llant,          )
                           )
                           )   CROCKETT COUNTY
VS.                        )
                           )   HON. DICK JERMAN, JR.
STATE OF TENNESSEE,        )   JUDGE
                           )
      Appellee.            )   (Post-Conviction)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CIRCUIT COURT OF CROCKETT COUN TY


FOR THE APPELLANT:             FOR THE APPELLEE:

S. JAS PER TAYL OR IV          JOHN KNOX WALKUP
94 East Main Street            Attorney General and Reporter
P.O. Box 729
Bells, TN 38006                CLINTON J. MORGAN
                               Assistant Attorney General
                               425 5th Avenu e North
                               Nashville, TN 37243

                               CLAYBURN PEEPLES
                               District Attorney General
                               110 College Street, Suite 200
                               Trenton, TN 38382



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                                  OPINION


                The Petitioner appeals the trial court’s denial of his petition for post-

        conviction relief. He wa s convicte d of one count of a ggravate d rape b y a guilty

        plea on December 10, 1993.1 He was sentenced as a Range I, stan dard offender

        to the minimum sentence of fifteen (15) years in the Department of Correction.

        The Petitioner appeals with two issues: t hat counse l rendered ineffec tive

        assistance and that he did not voluntarily enter his guilty plea.                         We affirm the

        judgm ent of the tria l court.




                The Petitioner was indicted on one count of aggravated rape and one

        count of aggravated sexual battery.                     Attorney Bill Barron was retained to

        represent him. The Petitioner was scheduled for trial on December 10, 1993.

        After the jury had been empaneled, the Petitioner chose not to proceed with the

        trial and entered a guilty plea to one count of aggravated rape. Pursuant to an

        agreement with the dis trict attorney, th e Petitioner was sentenced to the minimum

        of fifteen years as a standard, Range I offender with an initial release eligibility

        after thirty-pe rcent (30 %) of the time serv ed, or ap proxima tely five (5) yea rs.



                The Petitioner filed a pro se petition for post-conviction relief on April 3,

        1995, alleging th e ineffective assistanc e of counse l resulting in an involuntary


        1
          The Petitio ner w as c onvic ted u nde r the f orm er law of ag grav ated rape base d on t he vic tim
being   und er the age o f thirte en (1 3) in T enn ess ee C ode Ann otate d sec tion 3 9-13 -502 (a)(4 ). Th is
        subsection was later deleted and replaced by the separate offense of rape of a child. Tenn. Code
        Ann § 39-13-522 (S upp. 1996).

                                                             -2-
guilty plea. The Petitioner was represented by counsel throughout the remainder

of the post-conviction proceedings. An evidentiary hearing on the post-conviction

petition was held on June 3, 1996, and the trial court denied re lief in an order

dated July 17, 1996. It is from this order that the Petitioner appeals.



      In his first issue in this appeal, the Petitioner alleges that counsel provided

ineffective assistance. In determining wheth er counse l provided effective

assistance at trial, the court must decide 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). To succeed on a claim that his

counsel was ineffective at trial, a petitioner bears the bu rden o f show ing tha t his

counsel made errors so serious th at 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 prod uce a re liable resu lt.

Strickland v. Washington, 466 U.S . 668, 687 , reh’g denied, 467 U.S. 1267 (1984);

Cooper v. State, 849 S.W.2d 744, 747 (Tenn . 1993); Butler v. Sta te, 789 S.W.2d

898, 899 (Tenn. 1990). To satisfy the second prong the petitioner must show a

reaso nable probability that, but for counsel’s un reasonab le error, the fact finder

would have had reasonable doubt regarding pe titioner’s guilt. Strickland, 466

U.S. at 695.     This reasonable probability must be “sufficient to undermine

confidence in the outcom e.” Harris v. S tate, 875 S.W.2d 662, 665 (Tenn. 199 4).



      When reviewing trial counsel’s actions, this cour t shou ld not u se the bene fit

of hindsight to second-guess trial strategy and criticize coun sel’s tactics. Hellard

v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors should be




                                          -3-
judged at the time they were made in light of all facts and circumstances.

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



       This two part standard of measuring ineffective assistance of counsel also

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

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

that there is a reaso nable proba bility that, but for counsel’s errors he wo uld not

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



       At the post-conviction hearing, the Petitioner testified that counsel Bill

Barron never subp oena ed witn esse s, includ ing the Petition er’s therapist. The

Petitioner also testified that he plead ed gu ilty beca use c ouns el told him h e wou ld

never win the case and th at he w ould re ceive a thirty-five (35) year sente nce if

he went to trial comp ared to the fifteen (15) years offered by the State. The

Petitioner testified that counsel did not interview witnesses. He also claimed that

counsel told him he would serve only twenty-four (24) to thirty-six (36) months

before he was eligible for parole and that he did not understand the release

percentages. He testified that he has some intellectual impairment that makes

it difficult to unde rstand the pro ceed ings. H e also conte nded that he was n ot told

about the elements of the crimes. The Petitioner finally claimed he was not

informed of his right against self-incrimination.         On cross-examination, the

Petitioner claimed he made a coerced confession and that any a dmissions were

untrue. He maintained that counsel failed to meet with his family and check out

his back ground . He state d that he m et two or thr ee time s with cou nsel.




                                           -4-
       The Petitioner’s mother also testified. She stated that counsel informed the

Petitioner he would serve thirty percent (30%) of his sentence, or two (2) to three

(3) years. She also testified that she remembered the trial court’s instructing the

Petitioner that he would have to serve thirty percent, but that there was no

guarantee.     The victim, a young child, testified that while appearing at the

preliminary hearing, she was unable to testify to any facts surrounding the

offense. The victim’s mother testified that she was never conta cted b y coun sel.



       Trial counsel Bill Barron testified at the post-conviction hearing. He began

representation at the time of the preliminary hearing, but the case was dismissed.

An indictment was later issued. Counsel filed a motion to suppress the statement

made by the Petitioner, which was denied after a hearing. Counsel met with the

Petitioner on se veral o ccas ions in perso n and on the phon e. The Petition er’s

mother came at least two times. The Petition er told c ouns el that th e victim would

not testify because he still had a relationship with the victim ’s mother. Ho wever,

when the victim ’s mo ther wa s later in dicted , the pro bability th at the vic tim wo uld

testify increased.



       Counsel noted that the Petitioner’s confession was ruled admissible.

Counsel also follow ed rece nt case law and informed the Petitioner about potential

consecu tive senten ces an d his cha nces o f prevailing at trial. Counsel testified

that he had all the witnesses he knew about at the trial and there were very few

for the case. The primary witnesses were the victim and her mother. Counsel

stated that he was cautious not to subpoena persons whose testim ony wo uld not

be pertin ent to the c ase. Counsel did not perceive the Petitioner as having low

intelligence and he explained the charges and the elements of the crimes to the

                                            -5-
Petitioner. The Petitione r appe ared to be invo lved in a nd to u nders tand th eir

discussions. Counse l filed a Rule 16 disco very letter, contacted the Department

of Human Services, and obtained the medical report of the victim. He talked with

the victim’s mothe r on seve ral occas ions.



      Counsel testified that he discus sed in detail the waiver of rights form at the

time the Petition er entere d his guilty ple a. He informed the Petitioner about the

thirty-percent release of approximately five years. He did not know why the

Petitioner was under the impression he would be released in two or three years.



      The Petitioner also asserts that he did not enter a voluntary and intelligent

guilty plea.    In Boykin v. Alabama, 395 U.S. 238 (1969), the United States

Supreme Court held that the record must show 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 constitutional right

against compulsory self-incrimination, the right to confront one's accusers, and

the right to trial by jury. Id. at 243. If a g uilty plea is not voluntary and knowing,

it has been entered 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 pow er, our supreme court has imposed more

stringent stand ards fo r trial cou rts to em ploy wh en ad vising d efend ants d uring

guilty pleas to p rovide an adequ ate record that will insure constitutional

compliance.      State v. Mackey, 553 S.W .2d 337 (Te nn.1977).             H owever,

post-conviction relief may be gra nted only if a conviction or sentence is void or

voidab le becau se of a viola tion of a co nstitutiona l right. Tenn . Code Ann. §

                                          -6-
40-30-105 (repeale d 1995 ). As was pointed out in State v. Neal, 810 S.W.2d 131

(Tenn. 1991 ), violatio n of the advice litany required by either Mackey or

Tennessee Rule of Criminal Procedure 11 which is not linked to a specified

constitutional right is n ot cog nizab le in a suit for po st-convictio n relief. See State

v. Prince, 781 S.W.2d 846 (Tenn.1989). Moreover, it is the result, not the

process, that is esse ntial to a valid plea. Johns on 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 knowingly and voluntarily, not whether the

trial court was the source of that knowledge.



       The transcript of the guilty plea hearing reveals that the Petitioner was

amp ly informed of the constitutional rights he was waiving. He was informed that

his release date of thirty percent would be dependent upon the Board of Paroles.

The Petitioner denied that he was threatened or promised anything regard ing his

guilty plea. Th ere is no e vidence that the P etitioner failed to unders tand the

consequences of his guilty plea. He states he was coerced and that he had the

impression he would be released sooner than was actually possible. Yet, counsel

refuted this contention and testified that he properly informed the Petitioner about

a thirty-percent release eligibility date.        Furthermore, counsel testified that he

discussed in detail the charges against the Petitioner and the consequences of

entering a plea of guilty.



       In a post-c onviction p roceed ing und er the Ac t applicab le to this cas e, the

petitioner must prove the allegations in the petition by a preponderance of the

evidence. Davis v. S tate, 912 S.W .2d 689 (Tenn . 1995); Adkins v. State, 911

S.W.2d 334, 3 41 (T enn. C rim. A pp. 19 94). In r eview ing post-conviction

                                            -7-
proceedings, "the factual findings of the trial court are conclusive unless the

evidence preponderates against such findings."          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.1990). The

trial court concluded that counsel more than adequately functioned as counsel

for the Petition er. Corre spond ingly, the trial court found the guilty plea to have

been voluntarily entered. We agree. The record revea ls no sig nifican t errors in

coun sel’s represe ntation. Nor is there evidence that counsel’s actions rendered

the Petitioner’s guilty plea inv oluntary. The trial court specifically accredited the

testimony of counsel Bill Barron and found that of the Petitioner lacked c redibility.




       Thus, the Petitioner failed at the post-conviction hearing to meet his burden

to prove the alle gation s con tained in his petition. Moreover, we cannot conclude

from the reco rd before us that the evidence preponderates against the findings

of the trial cou rt. Therefo re, we affirm the judgm ent of the tria l court.




                                   ____________________________________
                                   DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JOE B. JONES, PRESIDING JUDGE


___________________________________
JOE G. RILEY, JUDGE




                                           -8-
