             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON

                          JULY 1999 SESSION
                                                    FILED
                                                      August 16, 1999

BRADLEY GREEN,                    )                Cecil Crowson, Jr.
                                  )               Appellate Court Clerk
             Appellant,           )   No. 02C01-9809-CR-00300
                                  )
                                  )   Shelby County
v.                                )
                                  )   Honorable Carolyn Wade Blackett, Judge
STATE OF TENNESSEE,               )
                                  )   (Post-Conviction)
             Appellee.            )



For the Appellant:                    For the Appellee:

Michael E. Scholl                     Paul G. Summers
200 Jefferson Avenue, Suite 202       Attorney General of Tennessee
Memphis, TN 38103                            and
                                      R. Stephen Jobe
                                      Assistant Attorney General of Tennessee
                                      425 Fifth Avenue North
                                      2nd Floor, Cordell Hull Building
                                      Nashville, TN 37243-0493

                                      William L. Gibbons
                                      District Attorney General
                                              and
                                      Michael H. Leavitt
                                      Assistant District Attorney General
                                      Criminal Justice Complex, Suite 301
                                      201 Poplar Avenue
                                      Memphis, TN 38103




OPINION FILED:____________________



AFFIRMED

Joseph M. Tipton
Judge
                                       OPINION



              The petitioner, Bradley Green, appeals as of right from the Shelby County

Criminal Court’s denial of post-conviction relief from his 1993 convictions for felony

murder and especially aggravated robbery for which he is presently serving an effective

sentence of life imprisonment. The petitioner contends (1) that his guilty pleas were not

knowingly and voluntarily entered and (2) that he received the ineffective assistance of

counsel by his attorney’s misadvice regarding parole eligibility. We affirm the trial court.



              The petitioner and a co-defendant, Darryl Wallace, were jointly indicted for

and pled guilty to first degree murder, especially aggravated robbery, and criminal

trespassing. The guilty plea hearing transcript reflects that on May 30, 1992, the victim,

Erving Manis, was closing the Bargain Center at the Southgate Shopping Center. He

carried a money bag with the day’s receipts, and an unarmed security guard had gone

to the car. While the victim was locking the door, the petitioner and Wallace, each

armed with a revolver, approached him. Wallace took the money from the victim and

shot the victim several times while he was on the ground. The state’s proof would

circumstantially show that the petitioner tried to fire a shot but that the gun misfired.

The two ran from the scene and broke into an apartment, where they were arrested.

The petitioner had prior convictions involving the use of or the threat of violence, an

aggravating circumstance that exposed him to the death penalty. The petitioner’s

sentences of life for the first degree murder, fifteen years for the especially aggravated

robbery, and thirty days for the criminal trespass are to be served concurrently.



              The gist of the petitioner’s claims is that the trial court intimidated him and

that one of his attorneys told him that he would only have to serve 19.6 years and

maybe as little as twelve years, both of which were incorrect. At the evidentiary

hearing, the petitioner testified that he had no trouble with his attorneys and was


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satisfied with their preparation before trial. He said that he rejected the state’s offer of

consecutive sentences. He also said that he knew he was going to lose the case

because of the evidence against him. He stated that on the morning of trial, the state

offered concurrent sentences. He said that Brett Stein, one of his attorneys, said that

he would serve 19.6 years and that with good and honor time, he might serve as little

as twelve years. The petitioner testified that when he got to prison, he found out that he

would not be released for “thirty something years.” He said that he would not knowingly

have pled guilty with that much time in confinement.



              The petitioner testified that when he was testifying at the guilty plea

hearing, the trial judge intimidated him by advising him of the crime of perjury and of the

consequences of him committing perjury in his testimony. The petitioner said that he

was not threatened by the trial judge but that the judge was intimidating, and the

petitioner wanted to get off the witness stand in a hurry.



              Brett Stein testified that he and Larry Nance were appointed to represent

the petitioner. He said that an office fire destroyed his file regarding the case, and he

had very little independent recollection of the events. However, he stated that he made

no mention of 19.6 years or twelve years to the petitioner. He said he mentioned no

numbers, although he acknowledged on cross-examination that some mention might

have been “possible.” Regarding parole, he said that he usually would tell a defendant

that the defendant would “see daylight again.” He said that the petitioner pled guilty to

avoid exposure to the death penalty. Finally, he said that he did not find the trial judge

to be intimidating and, in any event, thought his remarks regarding perjury were

irrelevant to the plea process.



              Larry Nance testified that he had no recollection of a discussion regarding

any specific number of years before parole. He said he never mentioned nineteen



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years to the petitioner and did not recall Mr. Stein mentioning any figure. He testified

that it was his practice to tell inquiring defendants that he could not say when they

would be paroled and that it was up to the parole board. Mr. Nance testified that he

believed that the petitioner pled guilty because of the possibility of the death penalty.

He said that the shell casing in the petitioner’s gun had an impression as if the

petitioner had attempted to shoot but that the gun had not fired.



              The guilty plea hearing transcript reflects that the trial court and Mr. Stein

discussed with and questioned the petitioner at length regarding his understanding of

his constitutional rights, the consequences of waiving those rights, the nature of the

offenses, the sentences involved, the facts in the case, and the petitioner’s desire to

enter guilty pleas. Under oath, the petitioner stated that he understood the

proceedings, had no questions about them, and freely and voluntarily wanted to enter

guilty pleas. The petitioner also testified that he was pleading guilty because if he went

to trial, he would be found guilty and would get the death penalty.



              In the present case, the trial court filed an eleven page Findings of Fact

and Conclusions of Law denying the petitioner post-conviction relief. Relevant to this

appeal, the trial court stated the following:

                     Turning to Petitioner’s allegations, Petitioner asserts
              that the trial court was unduly coercive by asserting possible
              criminal charges against the Petitioner if he were later to claim
              his counsel ineffective. During the guilty pleas, the trial court
              judge explained the importance of being truthful to Petitioner
              while under oath and carefully explained to Petitioner that this
              was his day in court. Therefore, Petitioner had an opportunity
              to tell the truth, make any complaints about his legal
              representation or ask any questions in open court.

                    The trial judge warned the Petitioner that he would be
              committing perjury if he were dishonest with the court. There
              is no evidence of the trial court being unduly coercive.
              Therefore, this issue is without merit.

                      Petitioner further states that the alleged threat by the
              trial court judge inhibited the voluntariness of the Petitioner’s
              plea. However, the Petitioner was specifically asked by the


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              Court and his legal counsel whether the guilty plea was
              voluntary and the response by the Petitioner was in the
              affirmative. Further, Petitioner clearly, stated at the beginning
              of the guilty plea that his attorney had explained all of his
              rights, explained the charges in the indictments, the lesser
              included offenses and had specifically interviewed the
              witnesses given by the Petitioner.

                     There is nothing in the record to indicate that
              Petitioner’s attorney told Petitioner that he would receive
              parole on a life sentence in nineteen (19) years. There was
              also no evidence that Petitioner’s attorney attempted to tell
              Petitioner about the exact time which would be served at the
              Tennessee Department of Corrections. Therefore, these
              allegations by Petitioner are without merit and are hereby
              dismissed.

                     The trial court carefully explained to Petitioner his
              constitutional rights before accepting his guilty plea. The trial
              court advised Petitioner that he had a right to plead not guilty,
              a right to a public and speedy trial by jury, a right to confront
              and cross-examine any state witness, a right against self-
              incrimination. In consideration of these facts, the evidence
              establishes that the trial court took great care [i]n ensuring that
              Petitioner was well advised and aware of his constitutional
              rights. The Petitioner freely and voluntarily, understandingly,
              knowingly, advisedly and intelligently waived his rights and
              entered his guilty plea. Accordingly, this Court finds that
              Petitioner’s allegation that he entered his guilty plea
              involuntarily is without merit.



              It is obvious that the trial court accredited the petitioner’s testimony at the

guilty plea hearing and the testimony of the petitioner’s attorneys at the evidentiary

hearing. The burden was on the petitioner in the trial court to prove his claims by clear

and convincing evidence. Tenn. Code Ann. § 40-30-210(f). On appeal, the trial court’s

findings are conclusive unless we determine that the evidence preponderates against

them. Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). Questions concerning the

credibility of the witnesses, the weight and value to be given their testimony, and the

factual issues raised by the evidence are to be resolved by the trial court. Black v.

State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).



              First, we note that the petitioner’s testimony at the guilty plea hearing

“constitutes a formidable barrier” to his claim that he was coerced into pleading guilty in


                                              5
that “solemn declarations in open court carry a strong presumption of verity.”

Blackledge v. Allison, 431 U.S. 63, 75, 97 S. Ct. 1621, 1629 (1977). The guilty plea

hearing transcript fully supports the trial court’s conclusion that the petitioner’s guilty

pleas were knowingly and voluntarily entered. In fact, the petitioner’s testimony at the

evidentiary hearing does not purport to show otherwise. As for the claim that the

petitioner was advised that parole eligibility would occur in 19.6 years, the trial court

was entitled to accredit the testimony of the petitioner’s attorneys. W ith such

accreditation, the record does not preponderate against the trial court’s finding that the

attorneys did not misadvise the petitioner about parole. In consideration of the

foregoing and the record as a whole, we affirm the judgment of the trial court.



                                                   __________________________
                                                   Joseph M. Tipton, Judge


CONCUR:


___________________________
James Curwood W itt, Jr., Judge


___________________________
John Everett W illiams, Judge




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