         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs October 29, 2002

                    JESSE CARTER v. STATE OF TENNESSEE

                  Direct Appeal from the Circuit Court for Bedford County
                              No. 8784    Charles Lee, Judge



                  No. M2001-02496-CCA-R3-PC - Filed November 20, 2002


The petitioner appeals the denial of his post-conviction relief petition. He argues: (1) his trial
counsel was ineffective in advising him regarding the sentence agreement in which he waived his
right to appeal; and (2) he did not knowingly and voluntarily waive his right to appeal. We conclude
that although the post-conviction court erroneously stated that the uncorroborated testimony of the
post-conviction petitioner “should be summarily struck,” the post-conviction court, nevertheless,
made proper and adequate findings which support the denial of relief. We 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 GARY R. WADE, P.J., and ROBERT W.
WEDEMEYER, J., joined.

Hershell D. Koger, Pulaski, Tennessee, for the appellant, Jesse Carter.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
W. Michael McCown, District Attorney General; and Michael David Randles, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                            OPINION

       A Bedford County jury convicted the petitioner of possession with intent to deliver over 0.5
grams of cocaine and resisting arrest. He also pled guilty to simple possession of marijuana. On the
day of the petitioner’s sentencing hearing, petitioner’s attorneys discovered the state intended to
present proof that the petitioner had been involved in two drug sales in Nashville while on bond.

        The proof at the evidentiary hearing showed trial counsel and the petitioner were allowed to
review the evidence and interview the state’s witnesses regarding these sales. The state and the
petitioner then entered into an agreement whereby the petitioner would be sentenced to ten years’
incarceration, would forfeit his automobile, and would waive his right to appeal his conviction; in
return, the district attorney’s office would encourage Metro Nashville not to pursue charges on the
two alleged drug sales. The trial court questioned the petitioner regarding the agreement and his
waiver of the right to appeal; it then accepted the agreement. The petitioner also signed the order
which waived his right to appeal.

        In his post-conviction relief petition, the petitioner alleged trial counsel was ineffective in
advising him regarding the consequences of accepting the agreement, and the waiver of appeal was
not made knowingly and voluntarily. The post-conviction court found that trial counsel rendered
effective assistance, and that the petitioner voluntarily waived his right to appeal; accordingly, it
dismissed the post-conviction relief petition.


                        I. INEFFECTIVE ASSISTANCE OF COUNSEL

        When a claim of ineffective assistance of counsel is made under the Sixth Amendment, the
burden is upon the complaining party to show (1) that counsel's performance was deficient, and (2)
the deficiency was prejudicial in terms of rendering a reasonable probability that the result of the trial
was unreliable or the proceedings fundamentally unfair. See Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). Our supreme court has applied the
Strickland standard to the right to counsel under Article I, Section 9 of the Tennessee Constitution.
See State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

       In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court required that the
services be rendered within the range of competence demanded of attorneys in criminal cases. In
reviewing counsel's conduct, a “fair assessment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Strickland,
466 U.S. at 689, 104 S. Ct. at 2065; see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

        We will review the petitioner’s claims in the same manner in which we would review a claim
that counsel was ineffective in advising his client regarding a guilty plea. As to guilty pleas, the
post-conviction relief petitioner must establish that, but for counsel’s errors, petitioner would not
have entered the plea and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52,
59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). Thus, as pertinent to this case, petitioner must establish
that he would not have waived his right to appeal but for counsel’s deficient performance.

         The petitioner bears the burden of proving the factual allegations that would entitle petitioner
to relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). We review the post-
conviction court's factual findings underlying a claim of ineffective assistance of counsel under a de
novo standard with a presumption that those findings are correct, unless the preponderance of the
evidence establishes otherwise. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). However, the post-
conviction court's conclusions of law, such as whether counsel's performance was deficient or


                                                   -2-
whether that deficiency was prejudicial, are reviewed under a de novo standard with no presumption
of correctness. Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001).


                                II. POST-CONVICTION HEARING

        In the instant case, the petitioner testified at the evidentiary hearing that trial counsel told him
he could not appeal the trial court’s denial of his motion to suppress. The petitioner further stated
trial counsel told him they could not appeal his convictions because his trial was “clean.” He said
trial counsel did not tell him he could have appealed his sentence if he had allowed the trial court
to sentence him instead of entering into the agreement.

         The petitioner testified he went to the sentencing hearing believing he would be placed on
some form of alternative sentencing. He stated one of his attorneys told him it was “a good
possibility” he could receive probation or community corrections. The petitioner said he did not
recall trial counsel telling him he faced a potential sentence of twelve years for possession of cocaine
over 0.5 grams with the intent to deliver, a Class B felony. See Tenn. Code Ann. §§ 39-17-417(c)(1),
40-35-112(a)(2).

         According to the petitioner, on the day of his sentencing hearing, he went with his two
defense attorneys and some police officers to listen to the audio tapes of the alleged drug sales. The
petitioner said he left to make a telephone call before listening to all of the tapes. He testified he did
not discuss the state’s evidence with his attorneys; he stated they did not tell him the effect the
evidence could have on his sentencing, or that the evidence could lead to additional charges against
him. He testified one of his attorneys told him, “There is nothing worse you could have done.” He
said his defense counsel did not explain the sentencing agreement to him and did not advise him that
he would be waiving his right to an appeal. He further testified he would have sought an appeal if
the trial court had sentenced him to “hard time” in the penitentiary.

        The petitioner’s lead trial counsel testified for the state at the evidentiary hearing and
contradicted petitioner's testimony in all material matters. The attorney stated that during the time
he represented the petitioner, they spoke every week. He said he advised the petitioner of his rights
more than once and explained the “entire process of the criminal justice system.” He further testified
he gave the petitioner a prognosis of all the possible outcomes of his case and explained the range
of potential punishments. The attorney said he advised the petitioner of his right to appeal.

        According to the attorney, following the petitioner’s convictions, he and co-counsel were
prepared to seek community corrections as a sentencing alternative; however, they were concerned
that the petitioner would be incarcerated, and they conveyed these concerns to the petitioner. He
stated they advised the petitioner that he could possibly be required to serve the maximum sentence
in the penitentiary.




                                                    -3-
        Trial counsel said that, on the day of the sentencing hearing, they learned the state intended
to present evidence showing the petitioner had engaged in drug sales while on bond. He testified
he and the petitioner listened to the audio tapes of the transactions, and the petitioner’s voice could
be heard on the tapes. He also stated he and the petitioner had a lengthy discussion with two Metro
police officers who were involved in the alleged drug sales. He opined the state’s proof that the
defendant had engaged in the alleged drug sales was strong. He said he told the petitioner, “You
screwed up badly. You could not do it any worse.”

        The attorney testified that as a result of the new evidence, he and the state entered into
settlement negotiations regarding the petitioner’s sentence. The state offered a sentence of ten years
on the conviction for possession of cocaine with intent to deliver, and the remaining convictions,
both misdemeanors, would be served concurrently. As part of the agreement, the petitioner would
waive his right to appeal and surrender his vehicle for forfeiture; in turn, the district attorney’s office
would request Metro Nashville not to indict the petitioner for the two alleged drug transactions.

        Trial counsel stated he explained the sentencing offer to the petitioner, including the
requirement that he must waive his right to appeal. He said he also explained to the petitioner he
was facing consecutive sentences if convicted of the offenses which allegedly occurred while the
petitioner was on bond. He testified he further explained that the trial court might impose the
maximum sentence of twelve years if presented with the evidence the petitioner had engaged in drug
transactions while on bond. The attorney opined the state’s offer of ten years was “reasonable” and
in the petitioner’s best interest under the circumstances. He stated he advised the petitioner that he
must make his own decision whether to accept the offer.

        The parties presented the settlement agreement to the trial court. The trial court explained
to the defendant that under the terms of the agreement, he would receive a ten-year sentence to be
served in incarceration and would be waiving his right to appeal his convictions. The defendant
indicated he understood and would accept the agreement. Following the hearing, the petitioner
signed the order waiving his right to an appeal.


              III. ANALYSIS OF INEFFECTIVE ASSISTANCE OF COUNSEL

        Following the evidentiary hearing on the post-conviction relief petition, the post-conviction
court stated it accredited the testimony of trial counsel, and the events on the date of sentencing gave
“great credibility” to counsel’s testimony. The lower court found trial counsel fully advised the
petitioner regarding the range of possible sentences; it implicitly found counsel fully advised the
petitioner regarding the settlement agreement. The post-conviction court found trial counsel's
representation was well within the range of competence demanded by Strickland and Baxter. The
evidence does not preponderate against the findings of the post-conviction court. Likewise, we
conclude trial counsel’s performance was in no way deficient.




                                                   -4-
       Ordinarily, this would end our inquiry as to this issue. However, we note the following
statement by the post-conviction court at the conclusion of its findings:

               [T]he Court will then also reiterate that the Court believes the law is
               that the uncorroborated testimony of a petitioner is insufficient to go
               forward. That is all the testimony on many of the issues that the
               Court heard from the defendant. Those issues should be struck
               summarily . . . .

Based upon this statement, we have examined the record to ascertain whether the petition was
dismissed solely because the petitioner’s testimony was uncorroborated.

        The comments of the post-conviction court are understandable in light of the language used
in various opinions of this court. This language appears to have its genesis in Morgan v. State, 445
S.W.2d 477 (Tenn. Crim. App. 1969), one of the first post-conviction cases decided by this court
after the adoption of the Post-Conviction Procedure Act of 1967. In Morgan, we stated “[the
petitioners’] uncorroborated testimony does not sustain the burden of proof resting upon them, or
justify granting the writ of habeas corpus, where the judgment is regular upon its face and entitled
to the presumption of validity.” Id. at 480. The court cited cases that were all decided prior to the
adoption of the Post-Conviction Procedure Act of 1967 and involved only habeas corpus relief.
Shortly after Morgan, we stated in Swaw v. State, 457 S.W.2d 875, 876 (Tenn. Crim. App. 1970),
that “[the post-conviction relief petitioner’s] uncorroborated testimony is insufficient to carry [the
burden of proof], where the judgment is regular on its face and entitled to the presumption of
validity.”

        In Sherrill v. State, 772 S.W.2d 60, 62 (Tenn. Crim. App. 1989), this court specifically
rejected the state’s reliance on Morgan for the proposition that the uncorroborated testimony of a
post-conviction relief petitioner is insufficient per se to sustain his burden of proof. We noted such
a proposition would preclude the post-conviction court from finding counsel to be ineffective even
if the post-conviction court were convinced of the veracity of the petitioner and the validity of his
claim. Id. at 63. Further, it found such a holding would contradict the spirit of Baxter v. Rose, 523
S.W.2d 930 (Tenn. 1975), which was decided after Morgan, and “would work an injustice and
generally serve as authority to defeat any petitioner who claims” trial counsel was not effective.
Sherrill, 772 S.W.2d at 63.

        Despite Sherill, our court has since routinely cited Morgan and/or Swaw in stating that a post-
conviction relief petitioner’s uncorroborated testimony is insufficient to carry the burden of proof
where the judgment is regular on its face and entitled to the presumption of validity. See, e.g., State
v. Kerley, 820 S.W.2d 753, 757 (Tenn. Crim. App. 1991); Devito S. Polk v. State, No. 02C01-9602-
CR-00065, 1997 Tenn. Crim. App. LEXIS 189, at **3-4 (Tenn. Crim. App. Feb. 28, 1997, at
Jackson); Bart Chandler v. State, No. 02C01-9502-CC-00047, 1995 Tenn. Crim. App. LEXIS 702,
at *4 (Tenn. Crim. App. Aug. 23, 1995, at Jackson); Donald R. West v. State, No. 03C01-9407-CR-
00253, 1995 Tenn. Crim. App. LEXIS 359, at *7 (Tenn. Crim. App. Apr. 26, 1995, at Knoxville)


                                                 -5-
(petitioner’s testimony standing alone carries little weight), perm. to app. denied (Tenn. 1995);
William Dan Johnson v. State, No. 02C01-9212-CR-00263, 1994 Tenn. Crim. App. LEXIS 45, at
*6 (Tenn. Crim. App. Feb. 2, 1994, at Jackson), perm. to app. denied (Tenn. 1994); David M. Ogle
v. State, No. 03C01-9303-CR-00104, 1994 Tenn. Crim. App. LEXIS 4, at *3 (Tenn. Crim. App. Jan.
6, 1994, at Knoxville). However, we note that in none of these cases was the lack of corroboration
fully determinative of the issues presented.

        There is clearly one area of law which requires corroboration of a witness’s testimony. The
testimony of an accomplice-witness must be corroborated in order to support a conviction. See State
v. Bane, 57 S.W.3d 411, 419 (Tenn. 2001). This requirement has long been entrenched in our
criminal law. The clear and obvious reason for such a requirement regarding accomplices is to
protect the accused’s right to a fair trial and to guard him against untruthful testimony by a witness
with suspect motivation. See generally id. at 420; Sherrill v. State, 321 S.W.2d 811, 814 (Tenn.
1959).

        We do not believe that our court, through the use of the Morgan language, has intended to
create a blanket rule, similar to the accomplice corroboration requirement, that a post-conviction
petitioner’s testimony must be corroborated by some other witness or evidence in order to be
considered on its merits.

        Our state’s Post-Conviction Procedure Act is intended to be a vehicle for the good faith
claims of defendants deprived of their constitutional rights. See State v. Menn, 668 S.W.2d 671, 673
(Tenn. Crim. App. 1984). As we noted in Sherrill, because of the inherently private and confidential
nature of the attorney-client relationship, a corroboration requirement as applied to a claim of
ineffective assistance of counsel would often be impossible for a petitioner to establish. 772 S.W.2d
at 62. Such a requirement would preclude relief where only the petitioner and trial counsel were
privy to the challenged conduct, even if the post-conviction court found the petitioner's testimony
to be credible. Thus, we find the trial court’s statement that the petitioner’s uncorroborated
testimony “should be struck summarily” to be in error.

        However, after carefully reviewing the record and the trial court’s findings in this case, it is
evident that, despite the post-conviction court’s statement, it did not summarily dismiss the petition
or summarily disregard the petitioner’s testimony. Instead, the lower court properly conducted a full
hearing on the petition in which the state presented strong and detailed testimony by trial counsel to
rebut the petitioner’s testimony in all material respects. Our review shows the post-conviction court
weighed all of the proof, including the testimony of the petitioner and of trial counsel, made
extensive findings, accredited the testimony of trial counsel, implicitly rejected the credibility of
petitioner's testimony, and made a proper ruling based upon all the evidence and the court’s
observations regarding the weight and credibility of the evidence. Therefore, while we find the post-
conviction court’s statement regarding the petitioner’s uncorroborated testimony to be error, we
conclude this error did not affect the manner in which the post-conviction court conducted the
hearing or made its findings.



                                                  -6-
         Defendant’s contention that he was deprived of the effective assistance of counsel is without
merit.


                    IV. VOLUNTARY WAIVER OF RIGHT TO APPEAL

        The petitioner also contends he did not voluntarily waive his right to appeal. At the post-
conviction hearing, he testified he was “stressed out to the max” at the time he entered into the
sentencing agreement and did not understand he was waiving his right to an appeal. He stated he
recalled telling the trial court he understood his rights and knew what he was doing, but, in reality,
he did not understand what he was doing. He further testified he signed the order waiving his right
to an appeal without reading it properly because he did not have his glasses.

       A criminal defendant has the right to one level of appellate review. Tenn. R. App. P. 3(b);
Collins v. State, 670 S.W.2d 219, 221 (Tenn. 1984). A defendant’s waiver of this right to appeal
must be made voluntarily. See Tenn. R. Crim. P. 37(d); Collins, 670 S.W.2d at 221. Further, the
waiver should be reduced to writing in a document signed by the defendant, subscribed to by
counsel, and clearly reflecting the defendant's awareness of the right to appeal and voluntarily
waiving it. Tenn. R. Crim. P. 37(d).

        In the instant case, the record shows that both trial counsel and the trial court advised the
petitioner he would be waiving his right to an appeal under the terms of the agreement, and the
petitioner indicated he understood and wished to accept the agreement. Further, the proof
established the petitioner signed a written order clearly stating he was waiving his right to an appeal.
The post-conviction court found the petitioner voluntarily waived his right to an appeal. The
evidence does not preponderate against this finding. This issue is without merit.


                                          CONCLUSION

       In summary, we conclude the post-conviction court did not err in denying the petitioner’s
request for post-conviction relief. We affirm the judgment of the post-conviction court.



                                                        ___________________________________
                                                        JOE G. RILEY, JUDGE




                                                  -7-
