        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                  Assigned on Briefs at Knoxville November 2, 2010

                    JOHN GRIGGS v. STATE OF TENNESSEE

                    Appeal from the Shelby County Criminal Court
                 Nos. 05-08608, 06-05604   John P. Colton, Jr., Judge


                No. W2009-02601-CCA-R3-PC - Filed March 11, 2011


       The Petitioner, John Griggs, appeals the Shelby County Criminal Court’s denial of
post-conviction relief from his convictions for aggravated kidnapping, kidnapping,
aggravated burglary, aggravated assault, and attempted rape, for which he received an
effective sentence of eleven years. On appeal, the Petitioner contends that his guilty pleas
were not entered voluntarily and knowingly because he was not informed of his right against
compulsory self-incrimination. We affirm the judgment of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which J ERRY L. S MITH and
J OHN E VERETT W ILLIAMS, JJ., joined.

Robert C. Brooks (on appeal) and Charles Perkins (at trial), Memphis, Tennessee, for the
appellant, John Griggs.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
William L. Gibbons, District Attorney General; and Chris Scruggs and Stephanie Johnson,
Assistant District Attorney Generals, for the appellee, State of Tennessee.

                                           OPINION

       At the guilty plea hearing, the Petitioner stipulated that at a trial, the State would show
his kidnapping conviction resulted from an argument he had with his ex-girlfriend on April
24, 2005. That evening, the police responded to a domestic violence call at the home of
Lavisha Butler. Ms. Butler informed the police that she and the Petitioner argued about
where she was going that evening and who she would see. The argument escalated, and the
Petitioner pushed Ms. Butler into a bathtub, causing her to hit her head. He duct-taped her
hands and feet and covered her mouth. The Petitioner filled the bathtub with water, pushed
Ms. Butler’s head under the water, and questioned her. She told the police she believed the
Petitioner was going to kill her. The Petitioner eventually removed the duct tape, and Ms.
Butler walked outside and called 9-1-1.

        With regard to the remaining convictions, the Petitioner stipulated that at a trial, the
State would show that on May 11, 2005, he entered Ms. Butler’s home by prying open a
locked gate and climbing through a window. He kicked down a locked bathroom door and
found Ms. Butler in the bathtub. He struck Ms. Butler, cut her lip, forced a sock into her
mouth, and placed duct tape over her mouth. The Petitioner attempted to have sex with her
but was unable. He then forced Ms. Butler into a car and attempted to persuade her to
reconcile their relationship. Ms. Butler began screaming when the Petitioner stopped the car
at a store, and the Petitioner ran away.

       The Petitioner was sentenced pursuant to a plea agreement as a Range I, standard
offender to eight years’ confinement for the aggravated kidnapping conviction, three years’
confinement for kidnapping, three years’ confinement for aggravated burglary, three years’
confinement for aggravated assault, and two years’ confinement for attempted rape. The
aggravated kidnapping and kidnapping convictions were ordered to be served consecutively,
for an effective eleven-year sentence.

        In his petition for post-conviction relief, the Petitioner contended that his guilty pleas
were not entered voluntarily and knowingly because the trial court did not inform him of his
right against compulsory self-incrimination and that he did not have independent knowledge
of the right. At the post-conviction hearing, trial counsel for the Petitioner testified that he
had practiced criminal defense law for twenty-three years. He said he discussed the
Petitioner’s rights with him before the Petitioner entered into the plea agreement. Although
he said he advised the Petitioner of his right not to incriminate himself, he could not
remember if he told the Petitioner that the right applied at the guilty plea hearing.

        On cross-examination, trial counsel testified that before allowing a client to proceed
with a guilty plea, he would explain the plea agreement and go over every right waived
pursuant to the plea. He said he underlined the rights as he explained them to clients. He
said that he would write “any questions?” on the plea agreement and that if his clients had
no questions regarding the plea or their rights, he had them write “no” on the plea and sign
their name. He said that he would not allow a defendant to plead guilty if he was not
satisfied that the defendant understood his or her rights. He identified the Petitioner’s plea
agreement and waiver of rights. He said he explained to the Petitioner each of the rights
being waived pursuant to the plea and underlined each of the rights as they were explained.
He said he underlined and explained the Petitioner’s right not to be compelled to incriminate
himself. He said that he wrote “any questions?” on the plea agreement, that the Petitioner

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did not have any questions regarding the plea or his rights, and that the Petitioner wrote “no”
and signed the plea agreement.

       Trial counsel testified that he was present at the guilty plea hearing when the trial
court reviewed the Petitioner’s rights. He agreed the trial court informed the Petitioner that
he had the right to plead not guilty. He said he would have stopped the hearing if the
Petitioner had not understood his rights or had wished to proceed to trial.

       The Petitioner testified that he knew he had the right not to incriminate himself at trial.
He said that he was not advised that the right also applied to guilty plea hearings and that he
did not know he had the right not to incriminate himself at the guilty plea hearing.

       On cross-examination, the Petitioner testified that he incriminated himself at the guilty
plea hearing by pleading guilty to offenses he did not commit, but that he did not know what
the word “incriminate” meant. He agreed that before pleading guilty, trial counsel showed
him a “petition for waiver of trial by jury and request for acceptance of a plea of guilty.” He
said that trial counsel did not advise him of “anything” and that trial counsel only informed
him of the charges, the sentence negotiated for each charge, and where he needed to sign the
plea agreement. He said trial counsel did not read or underline the rights he waived pursuant
to the plea agreement before he signed it. He agreed that he signed his name on the plea
and that he wrote “no” and initialed his response next to a handwritten note asking if he had
any questions. He agreed the trial court at the guilty plea hearing asked him if he and his
attorney went over his rights. He said he did not remember if the trial court asked him if he
understood that he did not have to plead guilty.

       The trial court discredited the Petitioner’s testimony and found that the Petitioner was
aware of his right not to incriminate himself. The court noted that although the transcript of
the guilty plea hearing did not reflect that the Petitioner was advised of his right not to
incriminate himself at the hearing, testimony at the post-conviction hearing and the written
plea agreement showed that trial counsel “throughly explained” the Petitioner’s right against
self-incrimination. The trial court also found that the Petitioner entered his guilty pleas
knowingly and voluntarily. The trial court noted that the Petitioner understood the charges
against him, that he was advised of his right to a jury trial, and that the Petitioner stated at the
guilty plea hearing that he was satisfied with trial counsel’s performance.

        On appeal, the Petitioner contends that his guilty pleas were not entered voluntarily
and knowingly because the trial court did not inform him of his right against compulsory
self-incrimination and that he did not have independent knowledge of the right. The State
contends that the trial court properly held that the Petitioner’s pleas were knowing and
voluntary. We agree with the State.

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        The burden in a post-conviction proceeding is on the Petitioner to prove his
allegations of fact by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006);
Dellinger v. State, 279 S.W.3d 282, 294 (Tenn. 2009). On appeal, we are bound by the trial
court’s findings of fact unless we conclude that the evidence in the record preponderates
against those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). Post-conviction
relief may only be given if a conviction or sentence is void or voidable because of a violation
of a constitutional right. T.C.A. § 40-30-103 (2006).

       When evaluating the knowing and voluntary nature of a guilty plea, the United States
Supreme Court has held that “[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.” North Carolina v. Alford, 400 U.S. 25, 31 (1970). The court reviewing the
voluntariness of a guilty plea must look to the totality of the circumstances. See State v.
Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995). The circumstances include

              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) (citing Caudill v. Jago, 747 F.2d
1046, 1052 (6th Cir. 1984)). A plea resulting from ignorance, misunderstanding, coercion,
inducement, or threats is not “voluntary.” Blankenship, 858 S.W.2d at 904.

        Entry of a guilty plea effectively constitutes a waiver of certain constitutional rights:
the right against compulsory self-incrimination, the right to confront one’s accusers, and the
right to trial by a jury. See Boykin v. Alabama, 395 U.S. 238, 243 (1969). To verify that a
defendant enters into a guilty plea knowingly and voluntarily, the trial court must question
the defendant on the record to “ensure the defendant understands that by entering the plea
he is waiving the privilege against self-incrimination, the right to a jury trial, and the right
to confront his accusers.” Howell v. State, 185 S.W.3d 319, 331 (Tenn. 2006) (citing
Boykin, 395 U.S. at 243-44). If the trial court fails to advise a defendant of these rights, the
burden shifts to the State to establish that the guilty plea was entered into knowingly and
voluntarily. Johnson v. State, 834 S.W.2d 922, 925-26 (Tenn. 1992). A defendant is not
entitled to relief if the State establishes that there was substantial compliance with the advice
requirement. Id.; see also Paul L. Hawkins v. State, No. 61, Shelby County, slip op. at 6

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(Tenn. Crim. App. Aug. 1, 1990) (“If the trial judge substantially complies with these
requirements, and the record establishes that the defendant voluntarily and intelligently
entered his plea of guilty, the defendant’s conviction is valid.”).

        At the guilty plea hearing, the Petitioner testified that he attended college for two
years. In response to questions from the trial court, the Petitioner said that trial counsel
explained his rights and that he understood he could plead not guilty. He said he understood
that he had the right to a jury trial where he could confront the State’s witnesses and the right
not to testify at trial. He said he wished to waive these rights and plead guilty, but he later
recanted after the trial court informed him of the increased sentences he could face if he went
to trial. After a brief recess during which the Petitioner conferred with trial counsel, the
Petitioner said that he was initially unable to plead guilty because he felt overwhelmed after
seeing his children at the hearing. He said that he did not want to have a trial and that he was
“ready to get all of this behind” him. The trial court asked the Petitioner if he had any
questions regarding his rights or the consequences of his guilty pleas, and the Petitioner said
no. The Petitioner said that he was not pressured or forced to plead guilty and that he was
satisfied with trial counsel’s representation.

       Although the transcript of the guilty plea hearing reflects that the trial court did not
use the phrase “self-incrimination” when explaining the Petitioner’s rights and did not
explain that the right applied to the guilty plea hearing, it does reflect that the court advised
the Petitioner that he had the right to plead not guilty and the right to a jury trial where he
could testify or remain silent. This court has held that similar explanations of the right
against compulsory self-incrimination constituted substantial compliance with the advice
requirement. In Paul L. Hawkins, the trial court advised the defendant that if he did not enter
a plea of guilty and instead went to trial, he had the right to testify if he wanted to but that
he was not required to testify. On a different charge, the trial court advised the defendant
that he would not be required to present evidence. On appeal, this court stated that trial
courts were not required to use any precise language when explaining the right against
compelled self-incrimination and held that “the simplistic language used by the trial judges
in these cases was more readily understandable by a layman . . . [and] certainly constituted
substantial compliance with this requirement.” See Paul L. Hawkins, slip op. at 5; see also
Robert Allen Rosenbaum v. State, No. 972, Sullivan County, slip op. at 3-4 (Tenn. Crim.
App. Sept. 9, 1994) (concluding substantial compliance with Boykin when the trial court
advised the defendant that he had the right to a trial at which he could testify but that he was
not required to testify). We conclude that the trial court’s explanation of the right against
compulsory self-incrimination substantially complied with the advice requirement.

       We recognize that a guilty plea constitutes a judicial confession in that the waiver of
the right against compulsory self-incrimination occurs upon the entry of the plea. In this

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regard, the trial court should explain to a defendant intending to plead guilty that the right
against self-incrimination embraces not only a right applicable to a trial but to the guilty plea
hearing. Brady v. United States, 397 U.S. 742, 747-48 (1970); State v. Montgomery, 840
S.W.2d 900, 904 (Tenn. 1992). However, we do not view the distinction between the trial
right and guilty plea hearing right to be significant in this case. In Montgomery, our supreme
court noted that advice regarding the right against compulsory self-incrimination at the trial
“would constitute compliance with Boykin except in the most extraordinary factual situations
in which the defendant could demonstrate that he reasonably understood the advice related
to any future trial but not the guilty plea proceeding.” 840 S.W.2d at 904.

         As previously noted, the Petitioner was aware of and understood his right to proceed
to trial upon a not guilty plea if he so desired. He chose instead to accept the plea agreement
and the recommended sentence–circumstances which reasonably reflect an awareness that
his involvement in the guilty plea hearing would lead to his conviction and sentencing. The
Petitioner testified that his attorney and the trial court did not advise him that his right against
compulsory self-incrimination applied at the guilty plea hearing and that he was unaware that
it applied to anything other than a trial. This general claim of lack of awareness does not,
under the record before us, constitute a demonstration of a most extraordinary factual
situation as contemplated in Montgomery. It would defy reason for us to conclude that the
Petitioner was unaware that his entry of guilty pleas would waive certain constitutional
rights, particularly his right against self-incrimination, which he knew he would have if he
pled not guilty.

        Furthermore, we concur in the trial court’s conclusion that the Petitioner’s guilty pleas
were voluntarily and knowingly entered. The record reflects that trial counsel discussed the
Petitioner’s rights with him before the Petitioner signed the plea agreement. Trial counsel
explained to the Petitioner each of the rights being waived pursuant to the plea and
underlined each of the rights as they were explained. The plea agreement informed the
Petitioner that he had the right to counsel at all stages of the proceedings and the right not
to be compelled to incriminate himself. This admonition against self-incrimination did not
indicate that it only applied at trial. The Petitioner signed his name on the plea agreement
and indicated that he did not have any questions regarding the plea or the rights waived
pursuant to it. The trial court explained to the Petitioner at the guilty plea hearing that he had
the right to plead not guilty, the right to a jury trial where he could confront the State’s
witnesses, and the right not to testify. The Petitioner said that he understood these rights and
that he did not have any questions regarding his rights or the consequences of his guilty
pleas. The Petitioner said that he was not pressured or forced to plead guilty and that he was
satisfied with trial counsel’s representation.




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        The record also reflects that the Petitioner completed two years of college, that he had
multiple opportunities to confer with competent trial counsel before entering his guilty pleas,
that he was aware he could face increased penalties if he went to trial, and that the plea
agreement resulted in one charge of aggravated kidnapping being reduced to kidnapping and
one charge of domestic assault being dismissed. The Petitioner entered his guilty pleas after
stating that he did not want to have a trial and that he was ready to put his criminal offenses
behind him. We hold that under the totality of the circumstances, the Petitioner failed to
establish that he did not knowingly and voluntarily enter into his guilty pleas. The Petitioner
is not entitled to relief.

        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.


                                                ____________________________________
                                               JOSEPH M. TIPTON, PRESIDING JUDGE




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