        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                             FILED
                             AT JACKSON
                                                          September 28, 1999

                         AUGUST 1999 SESSION               Cecil Crowson, Jr.
                                                          Appellate Court Clerk




ROCKY HIPPS,                      )
                                  )
           Appellant,             )   C.C.A. No. 03C01-9807-CC-00237
                                  )
vs.                               )   Blount County
                                  )
STATE OF TENNESSEE,               )   Hon. D. Kelly Thomas, Jr., Judge
                                  )
           Appellee.              )   (Post-Conviction)
                                  )

FOR THE APPELLANT:                    FOR THE APPELLEE:

CRAIG L. GARRETT                      PAUL G. SUMMERS
Attorney for Appellant                Attorney General & Reporter
226 E. Broadway Avenue
Maryville, TN 37801                   MICHAEL J. FAHEY, III
                                      Assistant Attorney General
                                      Criminal Justice Center
                                      425 Fifth Avenue North
                                      Nashville, TN 37243

                                      DAVID G. BALLARD
                                      District Attorney General

                                      EDWARD P. BAILEY, JR.
                                      Asst. District Attorney General
                                      363 Court Street
                                      Maryville, TN 37804




OPINION FILED: _____________


AFFIRMED


JAMES CURWOOD WITT, JR., JUDGE
                                 OPINION



              The petitioner, Rocky Hipps, appeals the Blount County Circuit Court’s

denial of post-conviction relief. On appeal, the defendant alleges (1) that five prior

convictions should be overturned because the underlying guilty pleas were defective

and (2) that two other prior convictions should be overturned because trial counsel

ineffectively represented the petitioner. We affirm the judgment of the trial court.



              In order to facilitate further discussion, we divide the petitioner’s

convictions into two groups as follows:

              Group A       Case No. C-274, forgery, guilty plea January
                                  1979.
                            Case No. C-517, petit larceny, guilty plea
                                  September 1979.
                            Case No. C-1155, second degree burglary, guilty
                                  plea May 1982.
                            Case No. C-1155, grand larceny, guilty plea May
                                  1982.
                            Case No. C-1710, robbery, guilty plea January,
                                  1984.

              Group B       Case No. C-3913, grand larceny, guilty plea April,
                                  1988.
                            Case No. C-3914, aggravated kidnapping, guilty
                                  plea April 1988.


              The petitioner filed the post-conviction petition now under review on

June 19, 1989. The trial court appointed counsel, who amended the petition. The

court held an evidentiary hearing on March 6, 1997. The petitioner argued that the

Group A guilty pleas were invalid because the trial court failed to observe the plea-

acceptance requirements imposed by State v. Mackey, 553 S.W.2d 337 (Tenn.

1977). He argued that the Group B convictions were invalid because of counsel’s

ineffectiveness in failing to adequately challenge the state’s use of the Group A

convictions as bases for charging the petitioner with being an habitual criminal.

See Tenn. Code Ann. §§ 39-1-801 to -807 (1982) (repealed 1989). The indictments

in Group B charged grand larceny, aggravated kidnapping, and, using these

charges as triggering offenses, two habitual criminal counts. Pursuant to a plea

agreement, the petitioner pleaded guilty to grand larceny and aggravated

                                          2
kidnapping and received an effective thirty-year sentence to be served at 30

percent. Approving the agreement, the trial court dismissed the habitual criminal

charges. The petitioner maintains that had his counsel in the Group B cases

effectively challenged the validity of the Group A convictions, the risk of an habitual

criminal life sentence would have been removed, and he would not have pleaded

guilty to aggravated kidnapping in case no. C-3914, a case in which he maintains

he had a defense.



              In its order denying post-conviction relief, the trial court found (1) that

no constitutional errors were committed in the Group A guilty-plea proceedings and

that, accordingly, any deficiencies in the plea acceptance procedures were not

subject to post-conviction relief, and (2) that, therefore, trial counsel in the Group

B cases was not ineffective in “failing to attack the Habitual Criminal counts of the

indictment.” The post-conviction court further found that, even if trial counsel’s

representation in the Group B cases had been deficient, no prejudice was shown

because had the petitioner gone “to trial in the aggravated kidnapping charge, he

would most certainly lose.” The court based this conclusion upon the finding that

the petitioner’s testimony at the evidentiary hearing established the elements of

aggravated kidnapping. Additionally, the post-conviction court found that, upon a

conviction of aggravated kidnapping, the petitioner would have been sentenced to

a minimum period of incarceration of 40 years, even without the habitual criminal

charges. Recounting that the negotiated sentence was 30 years, the court

essentially found that no prejudice resulted from the alleged deficient performance

of counsel.



              The post-conviction petition in this case is governed by the provisions

of the 1967 Post-Conviction Procedure Act. See Tenn. Code Ann. § 40-30-101 to

-124 (1990) (repealed 1995). Under this act, a petitioner may attack a “conviction

or sentence [that] is void or voidable because of the abridgement in any way of any

right guaranteed by the constitution of this state or the Constitution of the United



                                           3
States.” Tenn. Code. Ann. § 40-30-105 (1990) (repealed 1995). A petitioner bears

the burden of proving his post-conviction case by a preponderance of the evidence.

Irick v. State, 973 S.W.2d 643, 651 (Tenn. Crim. App. 1998). “On appeal, the trial

court’s findings are conclusive unless the evidence preponderates against its

determinations.” Id.



                  1. The Challenge to the Group A Convictions.



              The petitioner pleaded guilty in all of the Group A cases. He contends

that these pleas are invalid because the trial court did not advise him that “upon the

sentencing hearing, evidence of any prior convictions may be presented to the

judge or jury for their consideration in determining punishment.” See State v.

Mackey, 553 S.W.2d 337, 341 (Tenn. 1977). He also contends that, in one of the

Group A cases, the trial court failed to inform him as to the minimum and maximum

penalties. See id. Based upon these alleged deficiencies in the guilty pleas, the

petitioner challenges the validity of the Group A convictions.



              The federal constitution requires that a guilty plea be knowing and

voluntary.   Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709 (1969). “To be

voluntary [the plea] must be knowledgeable and the failure to properly instruct a

defendant is a violation of due process and the guilty plea is void.” State v.

Newsome, 778 S.W.2d 34, 35 (Tenn. 1989).                The constitutionally required

instructions relate to the waiver of certain “federal constitutional rights,” namely, the

privilege against compulsory self-incrimination, the right to a jury trial, and the right

to confront the accusing witnesses. Boykin, 395 U.S. at 243, 89 S. Ct. at 1712;

State v. Neal, 810 S.W.2d 131, 135 (Tenn. 1991), overruled in part on other

grounds by Blankenship v. State, 897 S.W.2d 902 (Tenn. 1993).



              In Mackey, a direct appeal of a conviction based upon a guilty plea,

the Tennessee Supreme Court, in an exercise of its “supervisory power to insure



                                           4
that the courts of this State afford fairness and justice to defendants in criminal

cases,” promulgated a procedure for trial courts to follow when accepting guilty

pleas. See Mackey, 553 S.W.2d at 340. The court acknowledged that the litany of

instructions contained in the procedure were          “stricter standards than those

mandated by . . . Boykin.” Id. This litany includes instructions on the mandatory

minimum and the maximum possible penalties which the accused faces and advice

on the possibility that punishment may be based upon a consideration of prior

convictions. Id. at 341.1



              Many, but not all, of the Mackey guilty plea requirements are now set

forth in Tennessee Rule of Criminal Procedure 11 (c). However, the three basic

waiver issues that were identified in Boykin--the privilege against compulsory self-

incrimination and the rights to a jury trial and to confrontation of witnesses--continue

to be the touchstone for constitutional concerns about guilty pleas. See, e.g., State

v. Prince, 781 S.W.2d 846, 852 (Tenn. 1989); Bentley v. State, 938 S.W.2d 706,

711 (Tenn. Crim. App. 1996). The additional procedural requirements set forth in

Rule 11, Mackey and McClintock do not raise “issue[s] of constitutional dimensions.”

Prince, 781 S.W.2d at 852; see also Bryan v. State, 848 S.W.2d 72, 75 (Tenn.

Crim. App. 1992). The petitioner’s complaints about his Group A guilty pleas are

based upon non-constitutional elements of Mackey. See Neal, 810 S.W.2d at 138

(failing to warn that “the resulting judgment of conviction could be used in a




       1
         In State v. McClintock, 732 S.W.2d 268 (Tenn. 1987), our supreme court
added to the Mackey procedure the requirement that “a court accepting a guilty
plea must make it clear to the defendant that the resulting judgment of conviction
may be used in a subsequent proceeding to enhance the punishment for
subsequent offenses.” Id. at 273; see Neal, 810 S.W.2d at 138 (explaining that
McCormick “pronounces a supervisory authority mandate,” like Mackey, rather
than a constitutional mandate). However, this admonition from McClintock is not
applicable to the Group A convictions in the present case. See McClintock, 732
S.W.2d at 274 (“This decision is to be applied through the pipeline approach . . .
to the litigants at bar, to all actions pending on [April 27, 1987], and to all causes
of action arising subsequently.”) See Adkins v. State, 911 S.W.2d 334, 348
(Tenn. Crim. App. 1994). We note, however, that the Mackey instruction that
prior convictions may be used to enhance punishment in the case under
consideration has been viewed as communicating to the defendant “the future
use of . . . the case under consideration” as enhancement of future punishment.
See State v. Prince, 781 S.W.2d 846, 853 (Tenn. 1989).

                                           5
subsequent proceeding to enhance the punishment” does not raise a matter of

constitutional concern); Prince, 781 S.W.2d 852-53 (advice about the “future use

of prior convictions and the future use of the case under consideration . . . is not

based upon any constitutional provision”); Bryan, 848 S.W.2d at 75 (advice about

minimum and maximum punishments not constitutionally based). As such, these

complaints are not justiciable in a post-conviction proceeding. See Tenn. Code

Ann. § 40-30-105 (1990) (repealed 1995); Wills v. State, 859 S.W.2d 308, 311

(Tenn. 1993); McClintock, 732 S.W.2d at 271; Bryan, 848 S.W.2d at 75.



              The trial court did not err in denying the petitioner’s challenges to the

Group A convictions.



                       2. The Challenges to the Group B Convictions.



              The petitioner argues that the Group B convictions should be

overturned because the guilty pleas upon which these convictions were based were

the result of the ineffective assistance of counsel. The petitioner alleges that the

Group A convictions were invalid because of the Mackey deficiencies discussed in

the preceding section and that, had trial counsel properly and successfully attacked

these predicate convictions for the habitual criminal charges in the Group B cases,

the threat of habitual criminal life sentences would have been removed. The

petitioner claims that, faced with the threat of the habitual criminal charges, he was

pressured unnecessarily to plead guilty.



              The proof at the evidentiary hearing showed that trial counsel filed and

argued a pretrial motion to dismiss the habitual criminal charges. The trial court

denied the motion. The petitioner argues that trial counsel was remiss in failing to

obtain transcripts of the Group A plea submission hearings and in failing to present

evidence at the hearing on the motion to dismiss. Although the record does not

contain the transcript of the plea hearing nor the trial judge’s findings, trial counsel



                                           6
testified without contradiction at the post-conviction hearing that the trial judge

denied the motion because the Group A convictions could not be collaterally

attacked in the Group B proceedings. In this vein, the petitioner argues that trial

counsel should have filed a post-conviction proceeding in order to attack the Group

A convictions.



                When an appeal challenges the effective assistance of counsel, the

appellant has the burden of establishing (1) deficient representation and (2)

prejudice resulting from that deficiency. Strickland v. Washington, 466 U.S. 668,

686, 104 S. Ct. 2052 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).

Deficient representation occurs when counsel provides assistance that falls below

the range of competence demanded of criminal attorneys. Bankston v. State, 815

S.W.2d 213, 215 (Tenn. Crim. App. 1991). Prejudice is the reasonable likelihood

that, but for deficient representation, the outcome of the proceedings would have

been different. Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994). When it is

alleged that the ineffective assistance of counsel resulted in a guilty plea, the

burden is upon the defendant to establish the prejudice prong of Strickland by

proving that “there is a reasonable probability that but for counsel’s errors, he would

not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart,

474 U.S. 52, 59 106 S. Ct. 366, 370 (1985).           On review, there is a strong

presumption of satisfactory representation. Barr v. State, 910 S.W.2d 462, 464

(Tenn. Crim. App. 1995).



                The trial court found that trial counsel took the appropriate steps to

represent the defendant, and the evidence of record does not preponderate against

that finding.



                At the time of the Group B proceeding in 1988, McClintock had

established that a defendant who is attacking “a prior, facially valid conviction that

is or may be used to enhance punishment” must pursue “authorized routes of



                                           7
attack,” and in a guilty-plea case where proper steps are not taken to raise the

question on direct appeal, a post-conviction proceeding is the only authorized route

of attack. McClintock, 732 S.W.2d at 268, 271-72. In a new criminal case in which

the enhancement of punishment is at stake, the defendant may not collaterally

attack the earlier, predicate convictions. Id. at 272; see also State v. Prince, 781

S.W.2d 846, 852 (Tenn. 1989).



              Accordingly, the trial judge correctly ruled that the collateral attack

mounted in the Group B proceedings was inappropriate. Any failure to present

evidence or further argument in the Group B motion was not ineffective

representation.



              Neither was counsel’s representation ineffective because he failed to

file a post-conviction proceeding as McClintock contemplated. As pointed out in the

preceding section of this opinion, only constitutional claims are cognizable in post-

conviction proceedings. See Prince, 781 S.W.2d at 852; McClintock, 732 S.W.2d

at 271; Bentley, 938 S.W.2d at 711. The petitioner’s challenges to the Group A

guilty pleas do not rise to the level of the Boykin constitutional claims. See Prince,

781 S.W.2d at 852-53 (advice about the “future use of prior convictions . . . is not

based upon any constitutional provision”); Bryan, 848 S.W.2d at 75 (advice about

minimum and maximum punishments not constitutionally based). Any Mackey-

McClintock omissions “not required in Boykin may be relied upon on direct appeal

in appropriate cases but such omissions have no validity on the first or any

subsequent post-conviction proceedings.” Prince, 781 S.W.2d at 853. Any post-

conviction proceeding filed in 1988 using the grounds now claimed to invalidate the

Group A convictions would have been inapposite.



              The judgment of the trial court is affirmed.




                                          8
                                 _________________________________
                                 JAMES CURWOOD WITT, JUDGE

CONCUR:




______________________________
DAVID H. WELLES, JUDGE



______________________________
JERRY L. SMITH, JUDGE




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