        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs September 9, 2008

                 KENNETH WILLIAMS v. STATE OF TENNESSEE

                   Direct Appeal from the Criminal Court for Shelby County
                           No. 04-02649 John P. Colton, Jr., Judge




                    No. W2007-01876-CCA-R3-PC - Filed December 1, 2008



The petitioner, Kenneth Williams, pled guilty in the Shelby County Criminal Court to second degree
murder and received a sentence of thirty years incarceration in the Tennessee Department of
Correction. Thereafter, he filed a petition for post-conviction relief. The post-conviction court denied
the petition, and the petitioner timely appealed. The sole issue for review on appeal is whether the
post-conviction court erred in finding that the plea was knowingly and voluntarily entered. Upon
review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ALAN E. GLENN and CAMILLE
R. MCMULLEN , JJ., joined.

David Christensen, Memphis, Tennessee, for the appellant, Kenneth Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Rachel Newton, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

                                      I. Factual Background

        In April 2004, a Shelby County Grand Jury returned an indictment charging the petitioner,
who was seventeen years old at the time of the offense, with first degree murder. The case was
transferred to criminal court. On May 16, 2005, the date the case was set for trial, the petitioner pled
guilty to second degree murder in exchange for a thirty-year sentence as a violent offender.
Subsequently, he filed a pro se petition for post-conviction relief and was appointed counsel who
amended the petition three times.
        The transcript reflects that prior to entry of the guilty plea, the State advised the trial court of
the terms of the plea agreement, including the requirement that the appellant was required to serve
one hundred percent of the sentence in confinement. When the trial court asked the petitioner if he
understood his rights, the petitioner responded that he was not aware that he would be required to
serve one hundred percent and that he would “rather go to trial.”

        The petitioner’s attorney then questioned the petitioner. The petitioner said that he understood
that the plea agreement was for a thirty-year sentence and that he would not be eligible for parole.
However, he understood that he could earn credits for good behavior and could “flatten” his sentence
after serving only eighty-five percent. He reiterated his desire for a jury trial. The court advised the
petitioner that if he were convicted of first degree murder, he would be sentenced to life in prison and
would not be eligible for parole for fifty-two years. The petitioner confirmed that he wanted a jury
trial. The court said it would accommodate the petitioner and called in the jury. Before the jury could
be seated, the petitioner interrupted and said that he wanted to accept the plea agreement.

       The trial court then questioned the petitioner extensively to ensure that the petitioner
understood his rights. The court began its questioning with the following:

                Mr. Williams, I’m going to ask you some questions and, again, I want
                to make sure that you’re doing what you want to do. I know you’re
                under some pressure here with the jury out in the hall and the attorney
                . . . asking you questions, but I want to make sure this is what you
                want to do. Okay? Because ultimately only you can decide to plead
                guilty. It’s your decision[;] you’re in control. Do you understand that?

         The petitioner testified that he understood the terms of the plea agreement, his right to a jury
trial, his right to plead not guilty, and his right to confront and cross-examine witnesses against him.
He also said that he understood his right not to testify at trial, his right to appeal any conviction
resulting from a trial, and his right to counsel at trial and on appeal. The petitioner testified that he
was freely and voluntarily pleading guilty because he was guilty and that nobody was forcing him to
plead guilty.

        The petitioner was further questioned by his attorney before the trial court accepted his plea.
He acknowledged that he and his attorney had discussed trial preparation and strategy. He said that
he understood that if the case went to trial, the jury could find him guilty of first degree murder and
sentence him to life. He also understood that a jury could find him not guilty or guilty of a lesser
included offense. He said that he was satisfied with his attorney’s representation and that he was not
pleading guilty because he thought he was unprepared for trial. Although he acknowledged that he
had discussed the plea agreement with his older brother, he denied that his brother had pressured him
to accept it. The petitioner testified that he was accepting the agreement because he did not want to
risk getting a life sentence.



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         At the post-conviction hearing, the petitioner said that his testimony at the guilty plea hearing
was untrue. He said that he did not understand the plea agreement and that his brother coerced him
into pleading guilty. At the time of the plea, he understood that the sentence for second degree
murder was thirty years, but he later learned that the sentencing range was fifteen to twenty-five years
for a standard Range I offender. He said he was confused when a jury did not get picked after he had
requested one, and he felt like the court was not listening to him.

        Arrel Williams, the petitioner’s brother, testified that he was the petitioner’s guardian at the
time the petitioner was indicted. He said that trial counsel relayed messages back and forth between
him and the petitioner on the morning of the guilty plea. He said he initially wanted his brother to
take the case to trial, but he became concerned about the possibility of a life sentence and eventually
decided that his brother should take the deal. He was in the courtroom when his brother asked for a
trial. He made a “grunt noise” to get the petitioner’s attention and told him to take the deal.

         The petitioner’s trial counsel testified about his trial preparations. He said there was no
question that the petitioner fired a shot into a crowd of people, killing the victim. The petitioner made
a statement admitting that he was in an altercation with a group of people, left the scene with another
group of people, returned with a gun, and fired a shot into the crowd. Trial counsel said that the
district attorney “classified” the case in the gang unit, and the state refused to make any offer until
ten days before trial. The state deviated from its no-offer policy because one of the eyewitnesses to
the shooting had died. Counsel said that he and the petitioner had several discussions about the offer
and that he was very reluctant and unwilling to tell the petitioner whether to accept it. He was
prepared for trial and thought that the petitioner “would maybe have a shot with the jury.”

        The post-conviction court found that the petitioner properly considered the potential costs and
benefits of going to trial and entered a knowing and voluntary guilty plea. In support of its decision,
the court cited the extensive plea colloquy and voir dire that preceded the guilty plea. The court found
that both the trial court and the petitioner’s counsel were willing to go to trial. It also concluded that
the proof of “a grunt and reasoned advice” from the petitioner’s brother was insufficient to establish
coercion in light of the petitioner’s testimony to the contrary in the trial court.

                                             II. Analysis

        To be successful in his claim for post-conviction relief, the petitioner must prove all factual
allegations contained in his post-conviction petition by clear and convincing evidence. See Tenn.
Code Ann. § 40-30-110(f) (2006). “‘Clear and convincing evidence means evidence in which there
is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence.’”
State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co.,
833 S.W.2d 896, 901 n.3 (Tenn. 1992)). Issues regarding the credibility of witnesses, the weight and
value to be accorded their testimony, and the factual questions raised by the evidence adduced at trial
are to be resolved by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d
572, 579 (Tenn. 1997). Therefore, we afford the post-conviction court’s findings of fact the weight
of a jury verdict, with such findings being conclusive on appeal absent a showing that the evidence


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in the record preponderates against those findings. Id. at 578.

       To pass constitutional muster, a guilty plea must be made voluntarily, understandingly, and
knowingly. Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998) (citing Boykin v.
Alabama, 395 U.S. 238, 244, 89 S. Ct. 1709, 1713 (1969)); see also State v. Mackey, 553 S.W.2d
337, 341 (Tenn. 1977). To determine the voluntariness and intelligence behind a guilty plea, the court
must look to various circumstantial factors, i.e.,

               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) (citation omitted).

        Upon our review of the record, we agree with the post-conviction court’s assessment. The
transcript of the guilty plea hearing reflects that the court informed the petitioner of his rights and
questioned him extensively to ensure that he understood the rights he was waiving by pleading guilty.
Both the trial court and trial counsel took precautions to ensure that he understood the plea agreement.
Accordingly, we conclude that the petitioner’s pleas were knowingly and voluntarily entered.

                                           III. Conclusion

       Based upon the foregoing, we affirm the judgment of the post-conviction court.


                                                        ___________________________________
                                                        NORMA McGEE OGLE, JUDGE




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