                IN THE TENNESSEE COURT OF CRIMINAL APPEALS

                               AT JACKSON

                            JULY SESSION, 1998
                                                      FILED
                                                          March 19, 1999

JAMES MOORE,                      )                   Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk
                                  )
      Petitioner,                 )   C.C.A. NO. 02C01-9511-CC-00337
                                  )
VS.                               )   MADISON COUNTY
                                  )
STATE OF TENNESSEE,               )   HONORABLE FRANKLIN MURCHISON
                                  )
      Respondent.                 )   (Post-Conviction)




For the Petitioner                        For the Respondent

Joe H. Byrd, Jr.                          John Knox Walkup
203 S. Shannon Street                     Attorney General and Reporter
Suite 300
Jackson, TN 38302-2764                    Douglas D. Himes
                                          Assistant Attorney General
                                          425 Fifth Avenue South
                                          Nashville, TN 37243-0493

                                          Jerry Woodall
                                          District Attorney General
                                          P.O. Box 2825
                                          Jackson, TN 38302-2825


OPINION FILED:____________________


AFFIRMED


ROBERT W. WEDEMEYER, SPECIAL JUDGE
                                         OPINION



       The petitioner appeals the trial court’s dismissal of his petition for post-conviction

relief. The petitioner was originally indicted for bank robbery and being an habitual

criminal. In 1984, the petitioner was convicted of bank robbery with the use of a firearm

and sentenced to forty-five years imprisonment. State v. Moore, 713 S.W.2d 670

(Tenn. Crim. App. 1985), perm. to app. denied, (Tenn. 1986). The jury, however, could

not reach a verdict on the habitual criminal charge and a mistrial was declared on that

charge. A second trial was had on that charge, but again a mistrial was declared in

1986. Finally, during a third trial in 1987, the petitioner was found to be an habitual

criminal and sentenced to life imprisonment. State v. Moore, 751 S.W.2d 464 (Tenn.

Crim. App.), perm. to app. denied, (Tenn. 1988). The state relied upon two guilty plea

convictions in 1975 for third degree burglary and three guilty plea convictions in 1978

for third degree burglary to enhance the petitioner’s sentence.



       The petitioner subsequently filed individual post-conviction petitions between

May 5, 1986 and June 30, 1989, challenging his conviction for bank robbery as well as

his convictions for third degree burglary. The petitioner was appointed counsel and

these petitions were consolidated for an evidentiary hearing on August 17, 1990. The

petitioner alleged that counsel was ineffective during the trial and appeal of his bank

robbery conviction. The petitioner also alleged that his five guilty pleas to third degree

burglary were involuntary because he was not informed of his right against self-

incrimination and “the full consequences of the guilty pleas.” After hearing the proof,

the trial court denied the petitions.



       On appeal, the petitioner contests 1) the trial court’s finding that he received the

effective assistance of counsel and 2) the trial court’s ruling that his guilty pleas were

constitutional. After reviewing the record before the Court, including the petitions filed

below, we affirm the judgment of the trial court dismissing the petitioner’s post-

conviction petitions.



                                              2
                                        ANALYSIS



1)     Before considering the substantive issues raised on appeal, we deem it

necessary to address the procedural history of this case. As noted above, the

evidentiary hearing on the alleged grounds for relief was held on August 17, 1990. The

matter was taken under advisement. The post-conviction court issued an order of

dismissal and its findings and conclusions on September 4, 1990. Apparently,

however, neither counsel nor the petitioner received a copy of this order.

Consequently, on July 30, 1993, the petitioner filed a motion requesting the trial court to

vacate and reinstate its order so that the petitioner could timely file a notice of appeal.

The trial court did not respond. Thereafter, the petitioner filed a motion in this Court to

waive the timely filing of the notice of appeal. However, because there was still a

motion pending in the trial court in this matter, on December 14, 1995, this Court filed

an order denying the motion as premature. Finally, on July 11, 1997, the post-

conviction court filed an order vacating and re-entering the order denying post-

conviction relief as of that date. The petitioner filed a notice of appeal from that order.



       A trial court judgment becomes final thirty days after its entry unless a timely

notice of appeal or one of the post-trial motions enumerated in T.R.A.P. 4(c) is filed.

State v. Mixon, -- S.W.2d --, -- (Tenn. 1999); State v. Lock, 839 S.W.2d 436, 440 (Tenn.

Crim. App. 1992). Once the judgment becomes final, the trial court generally loses

jurisdiction to amend or alter it. Lock, 839 S.W.2d at 440. An exception is allowed for

the correction of clerical mistakes. See Rule 36, Tenn.R.Crim.P. A trial court, however,

does not have the authority to vacate a final judgment and reinstate it as of a later date.



       While the Post-Conviction Procedure Act requires the trial court to send a copy

of the final order denying relief to the petitioner and his counsel, T.C.A. § 40-30-212

(1997) (formerly § 40-30-119), the Act does not provide a remedy for the failure to do




                                             3
so.1 Nor does Rule 28, Rules of the Supreme Court, which governs Post-Conviction

Procedure, provide a remedy in this situation. However, T.C.A. § 40-30-216 provides

that an appeal from a final order denying relief under the Act may be taken to this Court

in the manner provided by the Rules of Appellate Procedure. Pursuant to T.R.A.P.

4(a), the notice of appeal document is not jurisdictional in criminal cases, including

post-conviction matters, and the timely filing of such document may be waived in the

interest of justice. The Rule further states that the appropriate appellate court shall

determine whether the waiver is warranted. Id. Waiver is not automatic, however, and

in making that determination, this Court shall consider the nature of the issues

presented for review, the reasons for the delay in seeking relief, as well as other factors

presented in the case. See, e.g., Michelle Pierre Hill v. State, 01C01-9506-CC-00175

(Tenn. Crim. App., Feb 13, 1996), perm. to app. denied, (Tenn., May 28, 1996).



         In this case, the trial court found in its order of July 11, 1997, that neither the

petitioner nor his counsel received a copy of the order denying post-conviction relief.

Although there was a seemingly unreasonable delay before the petitioner or his counsel

inquired about the status of the petition, it appears from the record that the failure to

timely file the notice of appeal was not solely the petitioner’s fault. Accordingly, it would

appear that the interest of justice would warrant waiver in this case. However, as stated

above, this Court is the appropriate court to permit waiver. After the trial court filed its

order on July 11, 1997, the petitioner should have then petitioned this Court for

permission to late-file the notice of appeal. 2 The trial court’s order of July 11, 1997, has

no effect, other than to provide this Court with the relevant factual background. In the

interest of justice, however, this Court has decided to allow this appeal to proceed. The

notice of appeal shall be considered timely filed.

         1
            This Court has held that a petitioner is entitled to relief from the dismissal of his petition when
the trial cour t failed to forw ard a co py of the fina l order of d ismiss al as m andate d by the Ac t. See Dorsey
v. State , No. 02C 01-950 8-CR -00218 (Tenn . Crim. A pp., Sep . 9, 1997); Clotfelter v. S tate, No. 03C01-
920 6-C R-0 021 0 (T enn . Crim . App ., July 8 , 199 3). H owe ver, in thes e cas es, th is Co urt did not s pec ifically
hold that the post-co nviction co urt has the authority to vac ate its orde r and reins tate it at a later da te.
These cases were remanded to the trial court for a determination of whether the petitioner’s claim that he
did not rec eive notice of dism issal had merit.

         2
          This Court’s order denying the petitioner’s previous motion for a delayed appeal was not
rendered on the merits of the motion. The motion was denied as premature simply because it appeared
to the Court at that time that the proceedings were still pending in the trial court. The Court’s order did not
preclude the petitioner from filing a subsequent motion.

                                                            4
2)      The petitioner claims he was denied the effective assistance of counsel during

the trial and appeal of his conviction for bank robbery. Specifically, the petitioner

contends that counsel 1) failed to keep in contact with the petitioner; 2) failed to

suppress the petitioner’s statement; 3) failed to investigate alibi witnesses; 4) failed to

prevent pretrial “face to face” contact between the petitioner and identification

witnesses; 5) failed to seek a change of venue; 6) failed to challenge a biased juror; 7)

failed to seek severance from the petitioner’s co-defendant; and 8) failed to timely file a

motion for new trial thereby precluding appellate review of certain issues.



        The proof at the post-conviction hearing on this issue consisted solely of the

testimony of the petitioner and his trial counsel. After hearing the testimony of both

witnesses, the post-conviction court entered findings specifically addressing each claim

and concluded that


        the defendant has failed to establish by a preponderance of the evidence
        that (a) the services rendered or advise [sic] given by counsel fell below
        the range of competence demanded of attorneys in criminal cases and/or
        (b) counsel was guilty of any unprofessional conduct that enured to the
        prejudice of the petitioner.


        In post-conviction relief proceedings, the petitioner has the burden of proving the

allegations in his petition by a preponderance of the evidence. McBee v. State, 655

S.W.2d 191, 195 (Tenn. Crim. App. 1983). 3 It has long been established that the trial

court’s findings of fact and conclusions of law in post-conviction suits are afforded the

weight of a jury verdict. See, e.g., Caruthers v. State, 814 S.W.2d 64, 67 (Tenn. Crim.

App. 1991). The trial court’s findings of fact and conclusions of law are conclusive on

appeal unless the appellate court finds that the evidence preponderates against the

findings. Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). Furthermore, this Court

may not reweigh or reevaluate the evidence or substitute its inferences for those drawn

by the trial court. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).




        3
          Under the current post-conviction statute, the standard is “clear and convincing evidence.”
T.C.A. § 40-30-210(f) (1997). The petitions in this case were filed prior to the enactment of the current
statute and are, therefore, not governed by its provisions.

                                                     5
       The Court’s review of the post-conviction court’s judgment is governed by

several well-established principles. In order for the petitioner to be granted relief on

grounds of ineffective counsel, he must establish that the advice given or the services

rendered were not within the range of competence demanded of attorneys in criminal

cases and that, but for his counsel's deficient performance, the result of his trial would

have likely been different. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80

L.Ed.2d 674 (1984); Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). Furthermore, this

Court may not second-guess the tactical and strategic choices made by trial counsel

unless those choices were uninformed because of inadequate preparation. Hellard v.

State, 629 S.W .2d 4, 9 (Tenn. 1982). Trial counsel may not be deemed ineffective

merely because a different procedure or strategy might have produced a different

result. Williams v. State, 599 S.W.2d 276 (Tenn. Crim. App. 1980). The reviewing

courts must indulge a strong presumption that the conduct of counsel falls within the

range of reasonable professional assistance. Strickland, 466 U.S. at 690.



       The presumption is that the attorney rendered effective assistance, and the

burden is on the petitioner to prove both that the assistance was ineffective and that

such ineffectiveness caused the petitioner to suffer prejudice. Hartman v. State, 896

S.W.2d 94, 104 (Tenn. 1995). In a post-conviction proceeding, a petitioner's

uncorroborated testimony is insufficient to carry this burden of proof. State v. Kerley,

820 S.W.2d 753, 757 (Tenn. Crim. App. 1991).



       The post-conviction judge resolved all conflicting testimony in favor of the

petitioner's trial counsel. This was certainly his prerogative. The judge also determined

that counsel’s performance was constitutionally adequate and stated, nevertheless, that

the petitioner failed to establish prejudice resulting from any of the alleged errors. As

stated above, the petitioner’s uncorroborated testimony is insufficient to carry his

burden.



       Moreover, although trial counsel did not timely file his motion for new trial, on



                                             6
appeal this Court decided to review the appellate record for any errors and held that the

petitioner was “not prejudiced by the failure to file his Motion for a New Trial within the

time allowed.” State v. Moore, 713 S.W.2d 670, 674 (Tenn. Crim. App. 1985). The

petitioner’s claim in this particular respect, therefore, has been previously determined.

T.C.A. § 40-30-112(a) (1990 repealed).



         Accordingly, having reviewed the record in light of the petitioner’s claims, we

agree that petitioner was not denied the effective assistance of counsel. There is

simply no evidence in the record to preponderate against the findings and conclusions

of the post-conviction court.



3)       The petitioner claims that his 1975 and 1978 guilty pleas to third degree burglary

were involuntary because he was never informed of his right against self-incrimination

or the consequences of the convictions. 4



         In order to satisfy constitutional standards, a plea of guilt must be entered

knowingly, voluntarily and intelligently. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct.

1709, 1712, 23 L.Ed.2d 274 (1969). This includes an intentional relinquishment or

abandonment of known constitutional rights, including the right against compulsory self-

incrimination. State v. Mackey, 553 S.W.2d 337, 340 (Tenn. 1977). The

relinquishment of these rights will not be presumed from a silent record. Bates v. State,

973 S.W.2d 615, 624 (Tenn. Crim. App. 1997) (citing Boykin and Mackey). However,

“‘[t]he standard was and remains whether the plea represents a voluntary and intelligent

choice among the alternative courses of action open to the defendant.’” Powers v.

State, 942 S.W.2d 551, 556 (Tenn. Crim. App. 1996) (quoting North Carolina v. Alford,

400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970)).




         4
            Even though the petitioner is attacking guilty pleas that were entered well over ten years prior,
the petitione r timely filed his p etitions in this ca se. T.C .A. § 40-3 0-102 (1 990 rep ealed). See also State v.
Masucci, 754 S.W .2d 90 (Tenn. Crim . App. 1988). Under the current post-conviction statute, petitioners
must file petitions challenging any guilty plea within one year of the date of final judgment. T.C.A. § 40-30-
202 (199 7). Ac cord ingly, w e not e tha t the p roce dura l histo ry of th is cas e is ra ther u nique and w ould r arely,
if ever, be presented in another case.

                                                             7
        In determining whether the petitioner’s guilty pleas were 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); Chamberlain v. State, 815 S.W.2d 534, 542 (Tenn.

Crim. App. 1990). In so doing, the Court can review any relevant evidence in the

record, including the post-conviction proceedings. Turner, 919 S.W.2d at 353.


        [A] court charged with determining whether those pleas were “voluntary”
        and “intelligent” must look to various circumstantial factors, such as the
        relative intelligence of the defendant; the degree of his familiarity with
        criminal proceedings; whether he was represented by competent counsel
        and had the opportunity to confer with counsel about the options available
        to him; the extent of advice from counsel and the court concerning the
        charges against him; and the reasons for his decision to plead guilty,
        including a desire to avoid a greater penalty that might result from a jury
        trial.

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). Moreover, a defendant’s

prior record, particularly when it includes guilty pleas to the same crime, may suggest

that the defendant was aware of his basic rights. State v. Sheckles, No. 1, Obion

County (Tenn. Crim. App., Jackson, Nov. 21, 1990).



        A transcript of the petitioner’s guilty pleas in 1975 is included in the record before

this Court. This transcript clearly shows that the petitioner was represented by

competent counsel, with whom he testified he was satisfied; was informed of the nature

of the charges against him, including the elements of the offense, the strength of the

state’s case, and the range of sentences; and was advised by the trial judge of his

basic constitutional rights, including the right against compulsory self-incrimination.5

Moreover, after questioning the petitioner and counsel, the trial court found that the

petitioner freely, voluntarily and intelligently entered the pleas. The petitioner pled guilty

to two charges of third degree burglary and received two concurrent three year

sentences. The post-conviction court found that these pleas were in compliance with

constitutional standards. We agree.




        5
           The 1975 pleas were entered before the Mackey decision, and therefore the determination of
whether the pleas were kno wing and voluntary must be m ade pursuant to review under Boyk in, and
without consideration of the additional safeguards outlined by our Supreme Court in Mackey. See
Blan ken ship , 858 S.W.2d at 903 (“this case presents a Boyk in issue and that issue alone”).

                                                   8
        As for the 1978 pleas, the record before this Court does not contain the

transcript from the guilty plea hearing. It appears the transcript has been lost. Contrary

to the petitioner’s suggestion, however, this fact alone does not resolve the issue in his

favor. See, e.g., Powers v. State, 942 S.W.2d 551, 556-57 (Tenn. Crim. App. 1996);

Hogan v. State, No. 01C01-9604-CC-00161 (Tenn. Crim. App., Mar. 13, 1997). In the

absence of the transcript, the petitioner’s allegations that he was not advised of his

rights may shift the burden to the state to show that the pleas were knowing and

voluntary. See Johnson v. State, 834 S.W.2d 922, 925 (Tenn. 1992). However, as

explained above, the totality of the circumstances must be examined, and if the

evidence shows that the petitioner was aware of his constitutional rights, then any error

by the state in not producing the transcript or by the trial court in not advising the

petitioner of his rights would be harmless. Id. See also Bates v. State, 973 S.W.2d

615, 624 (Tenn. Crim. App. 1997).



        The post-conviction court concluded that any alleged error in the 1978 guilty plea

hearing was harmless.6 Having reviewed the entire record on appeal, we too conclude

that the petitioner was aware of his constitutional rights before pleading guilty and,

therefore, knowingly, voluntarily and intelligently entered his pleas. Just three years

prior, the petitioner pled guilty to two separate charges under the same criminal statute.

At the 1975 guilty plea hearing, the petitioner testified that he was aware and

understood his basic rights and the nature of the charges against him. He received an

effective three year sentence in 1975; and in 1978, he agreed to an effective five year

sentence. At the post-conviction hearing, the petitioner testified that he accepted the

plea in 1978 “mainly” because he knew he could possibly have received a thirty year

sentence on the three third degree burglary charges. The petitioner was particularly

familiar with guilty plea proceedings. Given the totality of the circumstances in this

case, especially the petitioner’s prior involvement in a similar situation where he openly



        6
             At the post-conviction hearing, the judge permitted the state to establish the trial court’s general
practice in accepting guilty pleas by receiving evidence of a guilty plea hearing involving an unrelated
case. The petitioner claims this was erroneous. We do not need to address the appropriateness of the
post-conviction court’s action in this respect. Without considering this evidence, we have concluded that
the p etition er’s p leas were kno wing and v olunt ary.

                                                        9
acknowledged that he knew his constitutional rights and his admitted desire to receive a

lesser sentence, it is evident that the petitioner’s rights were not violated.7



                                                CONCLUSION



         The petitioner has failed to carry his burden on appeal. Therefore, for the

reasons stated herein, we affirm the trial court’s dismissal of the petition for post-

conviction relief.




                                             _______________________________________
                                             ROBERT W. WEDEMEYER, SPECIAL JUDGE



CONCUR:




____________________________
JOE G. RILEY, JUDGE




____________________________
J. CURWOOD WITT, JR., JUDGE




         7
            We note that the trial court was not required to advise the petitioner that his guilty pleas could be
use d to e nha nce futur e sen tenc es. T his ad vice w as no t requ ired b efor e the Ten nes see Sup rem e Co urt’s
decision in State v. McClintock, 732 S.W .2d 268 ( Tenn . 1987). See Blanke nship v. S tate, 858 S.W.2d
897, 905 n.6 (Tenn. 1993 ).

                                                        10
