        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                  FILED
                          AT KNOXVILLE                          August 24, 1999

                                                            Cecil Crowson, Jr.
                        APRIL SESSION, 1999                 Appellate C ourt
                                                                Clerk



STANLEY P. POSLEY,         )    C.C.A. NO. 03C01-9809-CR-00307
                           )
      Appe llant,          )
                           )
                           )    HAMILTON COUNTY
VS.                        )
                           )    HON . STEP HEN M. BE VIL
STATE OF TENNESSEE,        )    JUDGE
                           )
      Appellee.            )    (Post-Conviction)




FOR THE APPELLANT:              FOR THE APPELLEE:

STANLEY P. POSLEY               JOHN KNOX WALKUP
Pro-Se Appellant                Attorney General & Reporter
C/O B.M.C.X.
P. O. Box 2000                  ELLEN H. POLLACK
Wa rtburg, T N                  Assistant Attorney General
                                425 Fifth Avenu e North
                                Nashville, TN 37243

                                BILL COX
                                District Attorney General

                                BARRY A. STEELMAN
                                MARK HOOTEN
                                Assistant District Attorn eys
                                600 Market Street
                                Chattanooga, TN 37402



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                    OPINION


      On Febru ary 23 , 1996 , Petition er Sta nley P . Posle y pled g uilty in the

Hamilton County C riminal Court to five counts of selling cocaine. That sam e day,

the trial court sentenced Petitioner as a Range I standard offender to a term of

eight years for each c onviction and the trial court ordered th e sentences to run

concurren tly. Petitioner filed a petition for post-conviction relief on May 10, 1996,

and an amended petition for post-conviction relief on O ctober 17, 199 6. After a

hearing on September 29, 1997, the post-conviction court dismissed the petition.

Petitioner challenges the dismissal of his petition, raising the following issues:

      1) whe ther P etitione r receiv ed ine ffective a ssista nce o f coun sel;

      2) whether Petitioner’s guilty pleas were voluntary; and

      3) whether the post-conviction judg e was biase d against Pe titioner.

After a review of the record, we affirm the judgment of the post-con viction cou rt.



                                 I. BACKGROUND




      At the gu ilty plea hearing, Petitioner stated that he had read and

understood the request to plead guilty form. When the trial court asked Petitioner

whether he had discuss ed the ch arges a gainst him with his counsel, Petitioner

stated that he had. W hen the trial court asked Petitioner whether he understood

that the total sentence could be anywhere between eight and thirty years,

Petitioner stated that he did. The trial court then advised Petitioner that he had

the right to plead not guilty and insist on a jury trial, that he had the right to be

represented at trial, that he had the right to confront the witnesses against him,



                                          -2-
that he had the right to subpoena witnesses on his behalf, that he had a privilege

against self-incrimination, that he had the right to appeal if he was convicted at

trial, that he had th e right to coun sel on appeal, and th at his co nviction s in this

case could be used to enhance punishment in subsequent cases.                       After

explaining each right, the trial court asked Petitioner whether he understood the

right, and P etitioner sta ted that he did.



       After the trial court explained Petitioner’s rights, the court asked Petitioner

whether he had be en tak ing an y med ication or drug s that w ould a ffect his

decision making. Petitioner stated that he had not. The trial court then asked

Petitioner whether he had been forced, coerced, or threatened into pleading

guilty and Petitioner stated that h e had not. T he trial court then asked Petitioner

whether the decision to plead guilty was his own, and Petitioner stated that it was.

In addition, the trial court asked Petitioner whether he had discussed the matter

with his counsel and whether he was satisfied with the work of his coun sel.

Petitioner indicated that he had discussed the matter with his counsel and that

he was satisfied w ith his coun sel’s perfo rmanc e.



       Richard Mabe e, Petitione r’s trial couns el, testified at the post-convic tion

hearing that he ha d told Pe titioner that h e had th e right to insist on a trial an d if

he did so, he would be represented by counsel. Mabee testified that although he

did not specifically remember what he ha d done in this ca se, he always to ld every

client everything he knew about the State’s case, what the proof might be, and

what the possible defenses were and then gave the client the option of whether

to insist on a trial.




                                           -3-
       Mabee testified that he had advised Petitioner that if he went to trial, he

faced the possibility of being convicted, of being sentenced in a higher range, and

of receiving a higher sentence than the State had offered in the plea agreem ent.

Mabee also testified that he had explained the plea agreement to Petitioner and

believed that Petition er had u ndersto od the e xplanation .



       Mabee denied telling Petitioner that if he insisted on trial, he had no chance

of winning. Mabee also denied telling Petitioner that if he we nt to trial, he w ould

likely receive a sixty year sentence. In addition, Mabee denied that he refused

to show Petitioner certain discovery materials when Petitioner asked to see them.



       Petitioner testified that before he pled guilty, he had asked Mabee to show

him various materials obtained during discovery and Mabee had stated that he

did not need to see them. Petitioner testified that even though he knew that he

had the right to insist on a trial, he had decided to plead guilty because Mabee

had told him that he h ad no pos sibility of winning and that he would receive a

sentence of sixty years. P etitioner also testified that to the best of his knowledge,

Mabe e had n ever inves tigated his case.



       Petitioner testified that when he entered his guilty plea, he understood

everything that happened and he understood the judge’s questions. Petitioner

testified that he lied to the judge when he an swere d the q uestio ns be caus e he fe lt

that Mabee was providing inadequate repre sentation and wo uld contin ue to

provide in adequ ate repre sentation if the case went to trial.




                                           -4-
      On cross-examination, Petitioner admitted that he had pled guilty to other

offenses in the pas t. Petitioner also admitted that before he pled guilty, he had

refused a previous plea offer and insisted that the case be set for trial and Mabee

had co mplied with his req uest.



      When the post-c onviction c ourt que stioned P etitioner ab out why he had

pled guilty, Petitioner stated:

      I just wanted to cop out for the eight and just say forget it because I was
      tired of going back and forwards and staying at the county jail, so I just
      wanted to get me some air. I just went and pled guilty for it. Nobody
      pressured me into it. I just pleaded guilty just to get o ut [of] the coun ty jail.

When the post-conviction court asked Petitioner whether he had “told [the trial

court] just a bunch of lies so you could get out of the county jail,” Petitioner stated

that that wa s what h e had d one.



      At the conclusion of the hearing, the p ost-conviction cou rt found that there

was absolutely no evidence to substantiate Petitioner’s claim that he received

ineffective assistan ce of cou nsel. In ad dition, the co urt found that Pe titioner’s

guilty pleas were e ntered volunta rily, know ingly, an d intelligently. Finally, the

court found that Pe titioner’s testim ony as to Mab ee’s performance was simply not

credible.



                         II. ASSISTANCE OF COUNSEL




      Petitioner contends that the post-conviction court erred when it determined

that Petitioner did not receive ineffective assistance of counsel. We disagree.




                                          -5-
         When a petitioner seeks post-conviction relief on the basis of ineffective

assistance of couns el, the petitioner bears the burden of showing that (a) the

services rendered by trial counsel were deficient and (b) the deficient

performance was prejudicial. Powe rs v. State, 942 S.W.2d 551, 558 (Tenn. Crim.

App. 19 96). In order to demonstrate deficient performance, the petitioner must

show that the services rendered or the advice given was below “the range of

competence deman ded of attorneys in criminal cases.” Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975). In order to demonstrate prejudice, the petitioner

must show th at there is a reason able pro bability that, but for counsel’s deficient

performance, the result of the proceeding would have been different. Strickland

v. Washington, 466 U .S. 668, 6 94, 104 S.Ct. 2052, 206 8, 80 L.Ed.2d 674 (1984 ).

“In the case of a guilty plea, to satisfy the requirement of prejudice, the petitioner

must demonstrate a reasonable probability that, but for counsel’s errors, he

would not have pled guilty and would have insisted on going to trial.” Bentley v.

State, 938 S.W.2d 706, 710–11 (Tenn. Crim. A pp. 199 6). “More over, o n app eal,

the findings of fact made by the trial court are conclusive and will not be disturbed

unless the evidence contained in the record preponderates ag ainst them .”

Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). “The burden is

on the petitioner to show that the evidence preponderated against those

findings.” Id. In addition, “questions concerning the credibility of witnesses and

weight and value to be given their testimony are for resolution by the

post-conviction court.” Bates v. S tate, 973 S.W.2d 615, 631 (Tenn. Crim. App.

1997).



         Petitioner contends that he received ineffective assistance of counsel

because Mabee failed to investigate this case by interviewing witnesses and

                                         -6-
because Mabe e failed to sh ow the d iscovery m aterials to Petitioner when he

asked to see them. The post-conviction court found that Petition er had fa iled to

produce any evidence that supported these claims. The record supports the

post-conviction court’s finding s.    Inde ed, M abee testified that he had filed

discovery requests in this case and he had also talked to the pros ecutor to

determine what the proof would be and who would testify at tr ial. Mabee testified

that although he could not sp ecifica lly recall whether he or his investigators had

interviewed witnesse s in this cas e, his standard procedure in cases where a

witness was equivocal about an identification of the defendant would involve an

attempt to locate and interview the witness. Further, Mabee expressly denied

that he had eve r refused to hon or Petitioner’s request to see items obtained

during discovery. Finally, when the trial court asked Petitioner during the guilty

plea hearin g whe ther he was s atisfied with Ma bee’s perfor man ce, Pe titioner

stated tha t he was .



      The Petitioner has failed to support his allegations that he received

ineffective assistance of coun sel with an y evidenc e other th an his ow n self-

serving testimony which the post-conviction court found was simply not credible.

Thus, Petitioner has failed to s how that his gu ilty pleas were the result of

receiving ineffective a ssistanc e of coun sel. This is sue ha s no m erit.



                III. VOLUN TARINE SS OF THE G UILTY P LEAS




       Petitioner contends that the post-conviction court erred when it determined

that his guilty pleas were entered voluntarily, knowingly, and intelligently. W e

disagree.

                                          -7-
       In order to sa tisfy constitutional standards, a guilty plea must be entered

knowingly, voluntarily an d intelligently. Boyk in v. Alabama, 395 U.S. 238, 243,

89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969); Johns on v. State , 834 S.W.2d 922,

923 (Tenn. 199 2). A defendant enters a knowing and voluntary plea when he or

she understands the rights and circumstances involved and nevertheless

choos es to wa ive or relinqu ish those rights. State v. Mackey, 553 S.W.2d 337,

340 (Tenn. 1977). The relinquishment of these rights will not be presumed from

a silent reco rd. Bates v. S tate, 973 S.W .2d 615, 624 (Tenn. Crim . App. 1997 ).

However, “ [t]he standard was and remains whether the plea represents a

voluntary and intelligent choice among the alternative c ourses of action o pen to

the defend ant.” Powe rs v. State, 942 S.W.2d 551, 556 (Tenn. Crim. App. 1996)

(citation and internal qu otations om itted). In determining w hether a petition er’s

guilty plea was knowing and voluntary, this Court must look at the totality of the

circumstances. State v. Turner, 919 S.W .2d 346, 353 (Tenn. Crim . App. 1995 ).

In so do ing, this Court can review any relevant evidence in the record, including

the pos t-conviction procee dings. Id.



       W e conclud e that und er the totality o f the circum stances, the pos t-

conviction court did not err when it found that Pe titioner’s guilty pleas were

entered voluntarily, kn owingly, a nd intelligen tly.       As we have p reviou sly

discussed, Petitioner was represented by competent counsel who explained the

consequences of pleading guilty to Petitioner. In addition, whe n the trial court

informed Petitioner that if he pled guilty the total sentence could be anywhere

between eight and thirty years, Petitioner stated that he understood. Further, the

record indica tes tha t the trial c ourt ad vised P etitioner that h e had th e right to

plead not guilty and insist on a jury trial, that he had the right to be represented

                                          -8-
at trial, that h e had the righ t to con front the witnes ses a gains t him, that he had

the right to subpoena witnesses on his behalf, that he had a privilege against self-

incrimination, that he had the right to appeal if he was convicted at trial, that he

had the right to counsel on appeal, and that his convictions in this case could be

used to enhance punishment in subsequent cases. After the trial court explained

these rights, Petitioner stated that he understood them. Petitioner then indicated

that he had not been forced, coerced, or threatened into pleading guilty and the

decision to plead guilty was his own. During the post-conviction hearing,

Petitioner testified that when he entered his guilty plea, he understood everything

that happened and he und erstood the jud ge’s questions . Finally, the record

indicates that when the post-conviction court questioned Petitioner about why he

had pled guilty, Petitioner testified that “Nobody pressured me into it. I just

pleaded guilty jus t to get o ut [of] the coun ty jail.”    In sh ort, the r ecord fully

suppo rts the finding of the p ost-co nviction court th at Petitio ner wa s well advised,

was aware o f his cons titutional rights , and that he entere d his guilty pleas

voluntarily, kn owingly, a nd intelligen tly. This issu e has n o merit.



                         IV. BIAS AGAINST PETITIONER




       Petitioner claims that the allegation that the post-conviction judge was

biased against him and for this reason dismissed his petition is proven by the

following events he claims occurred during the post-conviction hearing: the judge

told Mabe e that h e did not have to answer a question about whether he wanted

Petitioner to receive the maximum sentence so that he could collect a payment

from the Victim’s Compensation Fund, the judge told Mabee that he did not have

to answer a question about whether he would be paid more if Petitioner pled

                                           -9-
guilty than he would be paid if the case went to trial, the judge refused to grant

a continuance when Petitioner’s counsel reported that Mabee had refused to turn

over the file on Petitioner’s case, and the judge refused to answer the questions

of Petitioner’s counsel about why the judge was interfering with his questioning

of Mabe e.



      W e have reviewed the transcript of Petitioner’s post-conviction hearing,

and the transcript fails to reflect that these events ever happe ned. Quite simply,

there is no ind ication in the re cord th at the p ost-co nviction judge had any

subjective or objective bias or prejudice against P etitioner. On the contrary, the

record indicates that rather than dismissing the petition for post-conviction relief

because he was biased against Petitioner, the post-conviction judge dismissed

the petition becau se it had n o merit w hatsoe ver. This iss ue has no me rit.



      Accordingly, the judgment of the post-conviction court is AFFIRMED.



                                 ____________________________________
                                 JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOE G. RILEY, JUDGE


___________________________________
NORMA MCGEE OGLE, JUDGE




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