            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                                            July 19, 2005 Session

                  KEVIN JERRON COOK v. STATE OF TENNESSEE

                    Direct Appeal from the Criminal Court for Davidson County
                            No. 97-D-2687    Cheryl Blackburn, Judge



                        No. M2004-02413-CCA-R3-PC - Filed October 6, 2005


In this post-conviction action the petitioner contends that: (1) trial counsel was ineffective in failing
to advise him of the effect his plea would have on his eligibility for rehabilitative programs and less
restrictive forms of confinement during his federal sentence; and (2) his plea was involuntary and
unknowing. Following our review, we conclude that counsel was not ineffective for failing to advise
the petitioner of a collateral consequence of his plea and that his plea was knowingly and voluntarily
entered. Therefore, we affirm the denial of post-conviction relief.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E. GLENN and
ROBERT W. WEDEMEYER , JJ., joined.

Cynthia M. Fort, Nashville, Tennessee, for the appellant, Kevin Jerron Cook.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
Victor S. (Torry) Johnson, III, District Attorney General; and Bret T. Gunn, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                                     OPINION

                                          Facts and Procedural History

        The defendant, Kevin Jerron Cook, pled guilty to one count of possession of over .5 grams
of cocaine with intent to sell (case number 2001-A-75; a Class B felony) and was sentenced as a
Range I, standard offender, to ten years in the Department of Correction. The sentence was ordered
concurrent to a one-hundred- twenty-one- month sentence previously issued in Federal District Court
on case numbers 3:00-00188-09 and 3:01-00097.1 At that time, the trial court also revoked the
petitioner’s probation issued upon the petitioner’s earlier plea to the charge of aggravated assault
(case number 97-D-2687; a Class C felony) and sentenced the petitioner to three years as a Range
        1
            The nature of the federal charges is not apparent from the record.
I, standard offender. That sentence was ordered to run consecutively to the federal sentence and the
ten-year sentence for drug possession.

         On April 1, 2003, the petitioner filed a petition for post-conviction relief, asserting that: (1)
trial counsel was ineffective in failing to negotiate a concurrent sentence on the charge of aggravated
assault, in that his consecutive sentence rendered him ineligible for rehabilitative programs and less
restrictive forms of incarceration for the duration of his federal sentence; and (2) his plea was not
knowingly and voluntarily entered because counsel failed to fully explain the effect the three-year
detainer would have on his federal sentence. Although the post-conviction court set the matter for
an evidentiary hearing, the petitioner’s counsel indicated that a hearing was not necessary and filed
pleadings in support of the petition. The post-conviction court ultimately dismissed the petition by
written order. The petitioner now appeals to this court, presenting his claims of ineffective
assistance and an involuntary and unknowing plea. Upon thorough review, we affirm the denial of
the petition.

                                                Analysis

                                 I. Ineffective Assistance of Counsel

        When a claim of ineffective assistance of counsel is made under the Sixth Amendment, the
petitioner bears the burden of proving that: (1) 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 were fundamentally unfair. Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 2064 (1984). This standard has also been applied to the right to counsel
under Article I, Section 9 of the Tennessee Constitution. State v. Melson, 772 S .W.2d 417, 419 n.2
(Tenn. 1989). When a petitioner claims ineffective assistance of counsel in relation to a guilty plea,
the petitioner must prove that counsel performed deficiently, and, but for counsel’s errors, the
petitioner would not have pled guilty but would have, instead, insisted upon going to trial. Hill v.
Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985).

       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 Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002).

        The petitioner bears the burden of proving by clear and convincing evidence the factual
allegations that would entitle the petitioner to relief. Tenn. Code Ann. § 40-30-210(f). This court
is bound by the post-conviction court’s findings of fact unless the evidence preponderates against
those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001).

        In the present case, the petitioner claims that trial counsel was ineffective in negotiating a


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consecutive sentence on the charge of aggravated assault because it, in effect, placed a detainer on
him for the entirety of his federal sentence, rendering him ineligible for rehabilitative programs and
minimal measures of detention.

        In Tennessee, when a claim of ineffective assistance of counsel is based on inadequate advice
concerning a guilty plea, courts generally distinguish between failure to inform of the direct and
indirect consequences of the guilty plea. While counsel’s failure to inform a petitioner of the direct
consequences of a guilty plea may constitute ineffective assistance of counsel, generally failure to
inform of the indirect consequences of a guilty plea does not. See Adkins v. State, 911 S.W.2d 334
(Tenn. Crim. App. 1994). This distinction “turns on whether the result represents a definite,
immediate and largely automatic effect on the range of the defendant's punishment.” Id. (quoting
Torrey v. Estelle, 842 F.2d 234, 236 (9th Cir. 1988)).

         Upon review, we conclude that the effect of the petitioner’s plea on his eligibility for
rehabilitative programs and less restrictive forms of confinement is a collateral consequence of his
plea. Indeed, the petitioner’s ineligibility for these programs did not have a definite, immediate, or
automatic effect on the range of his sentence but, rather, impacted only his entitlement to beneficial
programs during a separate federal sentence. Therefore, we cannot conclude that trial counsel’s
failure to advise the petitioner as to this collateral consequence amounted to ineffective assistance
of counsel.

                               II. Involuntary and Unknowing Plea

       Second and finally, the petitioner contends that counsel failed to fully explain the effect the
three-year detainer would have on his federal sentence, rendering his plea of guilty 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 (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. 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 (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).




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         Post-conviction relief is available “when the conviction or sentence is void or voidable
because of the abridgment of any right guaranteed by the Constitution of Tennessee or the
Constitution of the United States.” Tenn. Code Ann. § 40-30-103 (2003). In Boykin, the Supreme
Court held that the constitution requires that the accused individual’s right against self-incrimination,
right to confront one’s accusers, and the right to a trial by jury be intentionally relinquished. Boykin,
395 U.S. at 243. However, any advice beyond that required by Boykin and not tied to a
constitutional right is not cognizable in a petition for post-conviction relief but is properly addressed
on direct appeal. State v. Prince, 781 S.W.2d 846, 853 (Tenn. 1989).

         In the present case, the petitioner bases his claim of an unknowing and involuntary plea on
trial counsel’s failure to fully explain the effect of his three-year sentence on his eligibility for
rehabilitative programs and less restrictive measures of confinement during his federal sentence.
However, the petitioner’s claimed omission pertains to a collateral consequence of the plea that falls
outside the requirements of Boykin; therefore, we conclude that it is not a proper subject for post-
conviction relief. Moreover, the record reflects that the petitioner was advised of and intentionally
waived his right against self-incrimination, the right to confront one’s accusers, and the right to a
trial by jury. Therefore, we conclude that his plea was knowingly and voluntarily entered and that
he is not entitled to relief on this issue.

                                                Conclusion

        The denial of post-conviction relief is affirmed.




                                                        ___________________________________
                                                          JOHN EVERETT WILLIAMS, JUDGE




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