         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs August 14, 2002

               JOHN DAVID NEBLETT v. STATE OF TENNESSEE

                Direct Appeal from the Circuit Court for Montgomery County
                        No. 40000562    John H. Gasaway, III, Judge



                  No. M2001-02450-CCA-R3-PC - Filed September 16, 2002


The petitioner originally pled guilty to aggravated vehicular homicide, vehicular assault, and second
offense driving on a revoked license. The trial court sentenced him to an effective sentence of
twenty-four years. The effective sentence was affirmed on direct appeal. The petitioner sought post-
conviction relief, alleging an unknowing guilty plea and ineffective assistance of counsel. The post-
conviction court denied relief. In this appeal, the petitioner contends the post-conviction court erred
in summarily dismissing the petition based solely upon the guilty plea transcript. We disagree and
affirm the judgment of the post-conviction court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

JOE G. RILEY, J., delivered the opinion of the court, in which DAVID G. HAYES and NORMA MCGEE
OGLE , JJ., joined.

Gregory D. Smith, Clarksville, Tennessee, for the appellant, John David Neblett.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; John
Wesley Carney, Jr., District Attorney General; and C. Daniel Brollier, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                             OPINION

        We summarize the following underlying facts from this court’s opinion in the petitioner’s
direct appeal. See State v. John D. Neblett, C.C.A. No. 01C01-9805-CC-00231, 1999 Tenn. Crim.
App. LEXIS 934 (Tenn. Crim. App. Sept. 24, 1999, at Nashville), perm. to app. denied (Tenn.
2000).

       In August 1997, the intoxicated petitioner failed to observe a highway stop sign and collided
with a car driven by Glenda Atkins. Glenda Atkins's husband, a passenger, was killed. Glenda
Atkins was hospitalized and required surgery to remove glass from her leg. Petitioner admitted
driving while intoxicated and acknowledged his responsibility for Stephen Atkins's death in a
statement to the Tennessee Highway Patrol. Petitioner had three prior DUI convictions in addition
to several other misdemeanor convictions. As stated, petitioner pled guilty to aggravated vehicular
homicide, vehicular assault, and second offense driving on a revoked license and received an
effective sentence of twenty-four years.


                                             ANALYSIS

        On appeal, the petitioner contends the post-conviction court improperly dismissed his petition
for post-conviction relief by relying strictly upon the transcript of the guilty plea submission hearing.
Based upon the record before this court, we consider the allegation inaccurate and otherwise without
merit.

A. Procedural History of this Appeal

        Petitioner's counsel filed his brief on February 26, 2002. The basic premise set forth in the
brief was that the post-conviction court erred in dismissing the post-conviction petition based upon
its examination of the guilty plea transcript without giving the petitioner the opportunity to be heard.
On March 28, 2002, the state filed a motion in this court indicating there was an evidentiary hearing
in the post-conviction court, and the state sought to supplement the record with a transcript of this
evidentiary hearing. We granted the motion.

        A transcript of the evidentiary hearing was subsequently filed, which transcript reflects a
hearing in which both the petitioner and his trial counsel testified; it was agreed a transcript of the
guilty plea submission hearing would subsequently be filed and considered by the post-conviction
court; and counsel would then be allowed to argue the case. The parties, on a subsequent date,
appeared before the post-conviction court and were advised the guilty plea transcript had been filed
and reviewed by the court. They declined the opportunity to review the guilty plea transcript prior
to the post-conviction court's ruling. Present appellate counsel was also petitioner's counsel in the
proceedings below.

        The state filed its appellate brief on May 16, 2002, and made reference to the supplemental
record containing the transcript of the evidentiary hearing. A reply brief was not filed by petitioner's
counsel. The case was then submitted to this panel for determination.

        It, therefore, appears the basis of relief sought by the petitioner in his brief, namely, summary
dismissal without the opportunity to be heard, is patently without merit. We further note the absence
of a reply brief seeking relief on any other basis. Nevertheless, the record presently before the court
is adequate for us to review the post-conviction court's determinations regarding ineffective
assistance of counsel and voluntariness of the guilty plea. We, therefore, proceed with our analysis.




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B. Standard of Review

        The trial judge's findings of fact on post-conviction hearings are conclusive on appeal unless
the evidence preponderates otherwise. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). The trial
court’s findings of fact are afforded the weight of a jury verdict, and this court is bound by the trial
court’s findings unless the evidence in the record preponderates against those findings. Henley v.
State, 960 S.W.2d 572, 578 (Tenn. 1997).

        For a petitioner to successfully overturn a conviction based on ineffective assistance of
counsel, the petitioner must first establish that the services rendered or the advice given was below
“the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). Second, the petitioner must show that the deficiencies “actually had an
adverse effect on the defense.” Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984).

        Petitioner also contends his plea was involuntary and unknowing. Our supreme court has
stated the following:

                The cases of Boykin v. Alabama and State v. Mackey are the landmark constitutional
        cases for analyses of guilty pleas. Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L.
        Ed. 2d 274 (1969) (federal standard); State v. Mackey, 553 S.W.2d 337 (Tenn. 1977) (state
        standard). In Boykin, the United States Supreme Court held that before a trial judge can
        accept a guilty plea, there must be an affirmative showing that it was given intelligently and
        voluntarily. Id. at 242, 89 S. Ct. at 1711, 23 L. Ed. 2d at 279. In order to find that the plea
        was entered "intelligently" or "voluntarily," the court must "canvass[ ] the matter with the
        accused to make sure he has a full understanding of what the plea connotes and of its
        consequences." Id. at 244, 89 S. Ct. at 1712, 23 L. Ed. 2d at 280 (emphasis added).

                Likewise, in Mackey, this Court held that "the record of acceptance of a defendant's
        plea of guilty must affirmatively demonstrate that his decision was both voluntary and
        knowledgeable, i.e., that he has been made aware of the significant consequences of such a
        plea . . . .” 553 S.W.2d at 340.


State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999).

C. Post-Conviction Hearing Testimony


        The petitioner testified trial counsel met with him only once in the jail prior to the guilty plea;
he signed documents without reading them because he was without his eyeglasses; he conceded that
he was aware he was waiving his right to jury trial when he pled guilty; and he stated that if counsel
had explained that sentencing would have been conducted by the judge even if he had been found
guilty at a jury trial, he would have proceeded to trial. On cross-examination, the petitioner

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conceded he expressed his desire to plead guilty from the time he was arrested and was aware of the
charges in which he was pleading guilty at the time he executed the plea agreement. The petitioner,
however, stated counsel never explained the potential ranges of punishment, and petitioner thought
he would receive a twelve-year sentence.


        Trial counsel testified he could not recall the number of times he met with petitioner.
However, counsel testified the case was presented by information at petitioner's behest because
petitioner "wanted to plead guilty," "go to prison," and "get it over with" without having to await the
action of the grand jury. Counsel further testified he explained the guilty plea form to the petitioner,
including the waiver of a jury trial. Counsel further explained it was his normal practice to explain
the range of punishment, and he was “absolutely [certain]” he did so on this occasion. Counsel said
the petitioner never informed him he was unable to read without glasses.


       The transcript of the guilty plea submission hearing reveals that the trial court thoroughly
explained all aspects of the guilty plea to petitioner, including, but not limited to, a discussion of the
following:


        (1) an "open plea, meaning there is no recommended sentence. It will be up to the judge;"

        (2) a range of punishment of fifteen to twenty-five years for aggravated vehicular homicide,
two to four years for vehicular assault, and up to eleven months and twenty-nine days for second
offense driving on a revoked license;


        (3) the waiver of various rights by pleading guilty, including the right to trial by jury; and


        (4) whether petitioner was "freely and voluntarily" pleading guilty .


Petitioner indicated an appropriate response to each inquiry, thereby indicating his understanding of
his rights and desire to plead guilty. The trial court, immediately after its colloquy with the
petitioner, found the plea to be "freely, voluntarily and knowingly" entered.


D. Our Determination


        The post-conviction court, after receiving the evidence at the post-conviction evidentiary
hearing and after examining the transcript of the guilty plea submission hearing, found that petitioner
understood all the circumstances surrounding his guilty plea, including the possible penalties that



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he faced. The post-conviction court further found that petitioner had not established any deficiency
by trial counsel and further failed to establish any prejudice as a result of trial counsel's performance.

       The evidence before this court does not preponderate against the findings of the post-
conviction court. Accordingly, we affirm the judgment of the post-conviction court.




                                                         ___________________________________
                                                         JOE G. RILEY, JUDGE




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