         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs September 20, 2000

            SHANTA FONTON MCKAY V. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Davidson County
                         No. 97-B-786    Cheryl Blackburn, Judge



                    No. M2000-00016-CCA-R3-PC - Filed October 27, 2000


After his transfer from juvenile court, appellant pled guilty to second degree murder and, pursuant
to a negotiated plea agreement, received a sentence of 19 years. Appellant sought post-conviction
relief, which was denied by the trial court. In this appeal as a matter of right, appellant seeks relief
alleging a double jeopardy violation, an involuntary guilty plea, and ineffective assistance of counsel.
After a thorough review of the record, we affirm the denial of post-conviction relief.


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

JOE G. RILEY, J., delivered the opinion of the court, in which DAVID H. WELLES and NORMA MCGEE
OGLE , JJ., joined.

David G. Ridings, Nashville, Tennessee, for the appellant, Shanta Fonton McKay.

Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Roger D. Moore, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                              OPINION

        After being transferred by juvenile court to criminal court, appellant pled guilty to second
degree murder and received a sentence of 19 years. Appellant sought post-conviction relief, which
was denied by the trial court. In this appeal as a matter of right, appellant raises the following
claims:

        (1) his constitutional right against double jeopardy was violated due to the juvenile court’s
        adjudication;

        (2) his guilty plea was involuntary; and
       (3) he received ineffective assistance of counsel.

Upon review of the record, we affirm the judgment of the trial court.


                                        I. BACKGROUND

        We glean the following underlying facts from the guilty plea proceeding. Appellant was
involved in a drug transaction at age 17. A dispute occurred during the transaction, and the buyer’s
vehicle suddenly drove away from appellant. Appellant discharged his weapon, and its bullet struck
the rear window of the buyer’s vehicle. The buyer had his two young children in the vehicle’s
backseat, and the bullet struck the buyer’s two-year-old son. The child subsequently died from his
injuries.

        Appellant was taken before the juvenile court, and a transfer hearing was held to determine
whether he would remain in the juvenile system or be transferred to criminal court. The juvenile
court transferred appellant to criminal court, where he pled guilty to second degree murder for an
agreed 19-year sentence.


                              II. POST-CONVICTION HEARING

        At the post-conviction hearing, appellant claimed that his right against double jeopardy, as
guaranteed by both the Federal and Tennessee Constitutions, was violated because the juvenile court
adjudicated appellant guilty and also transferred him to criminal court. This claim is based upon the
statements of the juvenile court judge indicating that he found that the appellant had, in fact,
committed criminal acts. Appellant argues that the juvenile court’s action renders his subsequent
guilty plea and 19-year sentence void. Furthermore, appellant argues that his guilty plea was
involuntary and unknowing and resulted from ineffective assistance of counsel.

         Appellant testified that trial counsel never informed him of a double jeopardy defense, and
if trial counsel had informed him, he would not have pled guilty. Appellant conceded that he
understood that the purpose of the juvenile court hearing was for transfer. Appellant stated that after
the transfer hearing, he and his trial counsel discussed the state’s proof as revealed at the hearing,
and he was familiar with the facts of the case when he pled guilty.

         Appellant’s trial counsel also testified at the post-conviction hearing. He did not believe the
double jeopardy defense to be viable. Trial counsel asserted that he examined the transfer order and
found it to comply with the statute. He and appellant discussed the strengths and weaknesses of the
state’s case, as revealed in the transfer hearing, and he informed appellant of all possible crimes and
punishments if appellant chose to go to trial. Trial counsel further testified that he and appellant
communicated well, and he found appellant to be intelligent and aware of the details of the plea


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agreement. Finally, trial counsel testified that there was no question in his mind that the juvenile
court hearing was a transfer hearing, and there was no doubt that the only issue was transfer.

         Pursuant to Tenn. Code Ann. § 40-30-211(b), the post-conviction judge set forth excellent
and detailed findings of fact and conclusions of law addressing each ground raised by appellant. The
trial judge found all grounds to be without merit and dismissed the petition.


                                 III. STANDARD OF REVIEW

A. Post-Conviction

        The trial judge’s findings of fact in post-conviction hearings are conclusive on appeal unless
the evidence preponderates otherwise. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). The trial
court’s findings of fact are afforded the weight of a jury verdict, and this court is bound by the trial
court’s findings unless the evidence in the record preponderates against those findings. Henley v.
State, 960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App.
1997). This court may not reweigh or reevaluate the evidence, nor substitute its inferences for those
drawn by the trial judge. Henley, 960 S.W.2d at 578-79; Massey v. State, 929 S.W.2d 399, 403
(Tenn. Crim. App. 1996). Questions concerning the credibility of witnesses and the weight and
value to be given their testimony are resolved by the trial court and not by this court. Burns, 6
S.W.3d at 461.

B. Involuntary Guilty Plea

        The United States Supreme Court in Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709,
1713, 23 L.Ed.2d 274 (1969), noted that a guilty plea must be knowing and voluntary. To ensure
that guilty pleas are entered “knowingly and intelligently,” Boykin instructs the trial court to discuss
with the accused the consequences of the decision. 395 U.S. at 244, 89 S.Ct. at 1712. Tennessee
has likewise recognized the requirement of a knowing and voluntary guilty plea. See State v.
Mackey, 553 S.W.2d 337, 340 (Tenn. 1977).

C. Ineffective Assistance of Counsel

         The court reviews a claim of ineffective assistance of counsel according to the standards of
Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). The appellant has the burden to prove that (1) the attorney’s
performance was deficient, and (2) the deficient performance resulted in prejudice to the defendant
so as to deprive him of a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Goad v. State, 938
S.W.2d 363, 369 (Tenn. 1996).

        In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the Supreme Court
applied the two-part Strickland standard to ineffective assistance of counsel claims arising out of a
guilty plea. The Court in Hill modified the prejudice requirement by requiring a defendant to show

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that there is a reasonable probability that, but for counsel's errors, he would not have pled guilty and
would have insisted on going to trial. 474 U.S. at 59, 106 S.Ct. at 370; Hicks v. State, 983 S.W.2d
240, 246 (Tenn. Crim. App. 1998).


                                          IV. ANALYSIS

A. Double Jeopardy

        Appellant claims that the juvenile court “blended” a transfer hearing with a hearing on the
merits, and his conviction violates double jeopardy principles enunciated in Breed v. Jones, 421 U.S.
519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975) (prosecution of youth as adult in state court, after juvenile
court adjudicatory and dispositional hearing in which the youth was found to have violated a state
criminal statute, is barred by double jeopardy). Appellant argues that the juvenile court found
appellant guilty of the offense and subsequently transferred him to criminal court to be tried as an
adult. In support of his argument, appellant offers the transfer hearing’s transcript and emphasizes
the following statements of the juvenile court judge:

       I have someone who is a 17-year-old who armed himself, sold drugs, shot a gun, took
       a life.... [T]he 13 months of jurisdiction left in the juvenile system simply is not
       enough to address whatever it is that’s the problem of Mr. McKay... [T]hat is what
       he did.

Appellant contends that this language is enough to convert the juvenile hearing into an adjudicatory
hearing on the merits. We disagree.

       Appellant seeks reversal of his conviction citing State v. Davis, 637 S.W.2d 471 (Tenn. Crim.
App. 1982). In Davis, this court overturned the convictions of two defendants on double jeopardy
grounds because the juvenile court blended a transfer hearing with an adjudicatory hearing. Id. at
474. However, Davis is distinguished from appellant’s case. In Davis, the juvenile court issued two
judgments; the first judgment ordered transfer to criminal court, while the second judgment
adjudicated the party as a “delinquent child.” Id. at 473. In contrast, there was only one judgment
in appellant’s case, and it was for transfer to criminal court; appellant was never adjudicated
delinquent.

        This case is similar to State v. James Hyde, C.C.A. No. 02C01-9710-CC-00420, 1999 WL
460072 (Tenn. Crim. App. filed July 8, 1999, at Jackson), perm. to app. denied (Tenn. December
20, 1999). In Hyde, the defendant argued that he was placed in double jeopardy by being convicted
in criminal court after a juvenile hearing that was “essentially a delinquency hearing.” Id. at *1. The
juvenile judge found that the defendant had committed the offense in “an aggravated pre-meditated
manner,” and the juvenile judge transferred the defendant to criminal court. Id. at *2. On appeal,
we concluded,

        [n]ever did the judge suggest that based on the evidence, he found the defendant to

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        be delinquent or guilty; rather, he specifically limited his review of the evidence in
        context of determining “whether or not there are reasonable grounds to believe that
        the child committed the delinquent act as charged,” as required by § 37-1-
        134(a)(4)(A).

Id. at *2.

        Throughout appellant’s juvenile hearing, all concerned parties knew it was a transfer hearing.
Also, appellant omits the portion of the juvenile court’s finding immediately subsequent to the
portion that appellant places at issue; it stated: “And that’s why this type of case is one that the
legislature has contemplated should be dealt within the criminal justice system. So I’m going to
transfer Mr. McKay to criminal court.” (Emphasis added). Additionally, the juvenile court judge
entered an order whereby he emphasized that his responsibility was not to make a determination of
guilt or innocence, but rather a finding of probable cause as a statutory predicate to transfer.
Appellant errs in his contention that the juvenile court’s statements merged the transfer hearing with
an adjudication on the merits. Accordingly, no double jeopardy violation occurred. This issue is
without merit.

B. Guilty Plea

        Appellant claims that his guilty plea was involuntary because he lacked sufficient knowledge
and understanding of available options. First, we note that appellant’s trial counsel correctly
concluded that no viable double jeopardy defense existed, so appellant suffered no prejudice in this
regard. The post-conviction court found, after a thorough analysis of the guilty plea proceeding, that
appellant pled guilty knowingly and with sufficient understanding of options available. The record
clearly supports this conclusion. Accordingly, this issue is without merit.

C. Ineffective Assistance of Counsel

        Appellant finally alleges that he received ineffective assistance of counsel, primarily due to
trial counsel’s failure to discover and inform him of the potential defense of double jeopardy.
Appellant’s argument is without merit because no double jeopardy defense existed. Furthermore,
trial counsel’s recommendation that appellant plead guilty for an agreed sentence was based on
adequate preparation, explanation, and communication. The post-conviction court found no
deficiency in counsel’s representation. Again, the record clearly supports this conclusion.
Accordingly, this issue is without merit.




                                        V. CONCLUSION


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        We conclude that appellant’s constitutional right against double jeopardy was not violated;
his guilty plea was voluntary; and he received effective assistance of counsel. Accordingly, the
judgment of the trial court is affirmed.

                                                     ___________________________________
                                                     JOE G. RILEY, JUDGE




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