             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON

                          MARCH 1999 SESSION
                                                      FILED
                                                       June 18, 1999

                                                    Cecil Crowson, Jr.
MARIO PERKINS,               )
                                                   Appellate Court Clerk
                             )
             Appellant,      )    No. 02C01-9805-CR-00127
                             )
                             )    Shelby County
v.                           )
                             )    Honorable Bernie Weinman, Judge
                             )
STATE OF TENNESSEE,          )    (Post-Conviction)
                             )
             Appellee.       )


For the Appellant:                For the Appellee:

Randall B. Tolley                 Paul G. Summers
242 Poplar Avenue                 Attorney General of Tennessee
Memphis, TN 38103
                                  Michael E. Moore
                                  Solicitor General

                                  J. Ross Dyer
                                  Assistant Attorney General of Tennessee
                                  450 James Robertson Parkway
                                  Nashville, TN 37243-0493

                                  William L. Gibbons
                                  District Attorney General
                                          and
                                  Alanda Horne
                                  Assistant District Attorney General
                                  201 Poplar Avenue
                                  Memphis, TN 38103




OPINION FILED:____________________



AFFIRMED

Joseph M. Tipton
Judge
                                                OPINION



                 The petitioner, Mario Perkins, appeals as of right from the Shelby County

Criminal Court’s denial of his petition for post-conviction relief. The petitioner was

originally charged with aggravated robbery and first degree murder, but he pled guilty to

aggravated robbery and second degree murder pursuant to a plea bargain. He was

sentenced as a Range I, standard offender to eight years for the aggravated robbery

conviction and as a Range III, persistent offender to forty-five years for the second

degree murder conviction. The sentences were ordered to be served concurrently in

the custody of the Department of Correction. The petitioner now presents the following

issues for our review:

                 (1) whether his guilty plea1 was knowing and voluntary; and

                 (2) whether he received the ineffective assistance of
                 counsel.

We affirm the trial court’s denial of post-conviction relief.



                 At the evidentiary hearing, the petitioner testified that he was sixteen at

the time he entered his guilty plea. He said he met with his attorney one time before

the guilty plea hearing. He said he agreed to a sentence as a Range III offender

because the trial judge threatened to sentence him to life without parole if he did not

make a decision and plead guilty that day. He said he thought he would serve forty-five

percent of his sentence, not eighty-five percent. He stated that he did not remember

having any discussions with the trial court or with his attorney regarding the offense

being a Class A felony. He said the trial court told him that the state would try the

aggravated robbery case first and if he was convicted, they would use that conviction

against him in the murder case.




                1
                  Although the petition for post-conviction relief refers to both of the petitioner’s convictions
upon guilty pleas, the petitioner’s proof and argument and the trial court’s decision focus only on the plea
to second degree murder. We will review that decision.

                                                        2
              On cross-examination, the petitioner admitted that he confessed to killing

the victim. He said he knew he would be facing the possibility of life without parole if he

went to trial. He said his attorney spoke with him every time he was in court and came

to see him once in jail to discuss the case. He stated that he did not understand the

judge’s explanation of his sentence because the judge told him two different things. He

said that it was not until after he signed the plea agreement that the judge told him that

a jury would decide his sentence if he went to trial, not the judge. He admitted that he

told the judge that he did not have any questions and that his attorney had done

everything he wanted him to do. He testified that after he had time to think about it, he

wished he had not entered the guilty plea because he did not want to serve forty-five

years as a Range III offender. He admitted that on the day of the plea hearing, he did

not want to go to trial and face the possibility of life without parole.



              The petitioner’s father, Randy Perkins, testified that he asked the judge at

the plea hearing how the petitioner could receive a Range III sentence as a first-time

offender. He testified that the judge told him that the state would try the aggravated

robbery case first then use that conviction against the petitioner in the murder case. He

said the judge explained that if the petitioner was found guilty at trial, he would

sentence him to life without parole. Mr. Perkins testified that a trial court clerk spoke to

them outside the courtroom during a recess and told them that they should not go to

trial because of what the judge would do. He stated that the clerk told them that the

judge would be very hard on the petitioner at trial. He testified that he remembered the

judge indicating that a decision on the plea had to be made that day or the state would

go to trial and the offer would be revoked.



              On cross-examination, Mr. Perkins admitted that he did not tell the judge

about his conversation with the court clerk. He said he must have lied to the judge

when he said he was satisfied with the representation of the petitioner’s attorney.



                                               3
              The petitioner’s attorney testified that he discussed the state’s offer with

the petitioner and the possibility of success at trial. He said he believed he shared

discovery with the petitioner. He stated that he visited the petitioner several times in jail

and spoke with the petitioner’s parents several times. He said that he explained to the

petitioner the state’s offer of pleading guilty to second degree murder with a forty-five

year sentence as a Range III offender and that he asked the judge to explain it again at

the plea hearing. He stated that because he was uncertain whether the petitioner

understood what he was doing, he also explained the offer to the petitioner’s parents

and let them discuss it with the petitioner. He said he discussed with the petitioner the

ramifications of going to trial, but he never threatened or coerced the petitioner into

pleading guilty. He said the prosecutor told him that the state would try the aggravated

robbery case first then use that conviction to get a sentence of life without parole in the

murder case. He said he explained this to the petitioner and his family. He stated that

at the time the pleas were entered, he was satisfied that both the petitioner and his

family understood the plea agreement.



              On cross-examination, the attorney testified that he did not present the

state’s offer to the petitioner immediately because he thought it was a bad offer. He

said he tried to get a better offer from the state, but he took the offer to the petitioner

when he was unsuccessful. He said he explained to the petitioner that his options were

to either accept the agreement or to go to trial. He said he did not believe that the state

filed a notice of intent to seek enhanced punishment, and he said the petitioner did not

have a criminal record. He testified that he did not recall the judge putting any pressure

on the petitioner to accept the plea agreement. He said he believed the judge decided

that once he set a trial date, the petitioner could not change his mind and try to accept

the plea because the offer would no longer stand. He admitted that the state usually

made that determination. He said it would have been pointless to request additional



                                              4
time for the petitioner to consider the plea because the petitioner and his family had

already agreed to accept it.



              The trial court denied the petition. It found that the petitioner freely and

voluntarily entered his guilty plea after being fully advised of his rights by his attorney

and by the court. It also found that the advice given and the services rendered by the

petitioner’s attorney were within the range of competence demanded of an attorney in a

criminal case.



                                     I. GUILTY PLEA

              The petitioner contends that his plea was not voluntary because (1) he

was pressured and coerced by the trial court into accepting the plea agreement, (2) he

was confused by the trial court’s explanation of his sentence, and (3) the trial court did

not require the state to file notice of its intent to seek enhanced punishment as required

by Tenn. Code Ann. § 40-35-202(a). The state contends that the petitioner’s plea was

knowing and voluntary and that the trial court painstakingly and accurately explained to

the petitioner and his parents the ramifications of pleading guilty and the ramifications

of going to trial. The state argues that it was not required to submit notice of intent to

seek enhanced punishment.



              The transcript of the guilty plea hearing reflects that the trial court

thoroughly explained to the petitioner the constitutional rights he was waiving by

pleading guilty and that the trial court complied with Rule 11, Tenn. R. Crim. P. See

Johnson v. State, 834 S.W.2d 922 (Tenn. 1992); State v. Neal, 810 S.W.2d 131 (Tenn.

1991). Furthermore, nothing in the record indicates that the petitioner was coerced or

threatened by the trial court. The petitioner asserts that the trial court threatened to

sentence him to life without parole if he elected to go to trial. However, at the plea

hearing, the trial court specifically stated, “Now, if you’re convicted of anything less than



                                              5
murder in the first degree, I would sentence you. And if you were convicted of murder

in the first degree, the jury would sentence you.” Later, the petitioner’s father asked the

trial court whether it had stated that it would sentence the petitioner to life without

parole if the petitioner went to trial and was convicted of first degree murder. The trial

court stated, “Well, no, no I didn’t . . . . The jury would do the sentencing in the murder

case, not me. The jury would do that.” The record also reflects the following colloquy

between the trial court and the petitioner at the beginning of the plea hearing:

              COURT: I’m not at all going to suggest that you need to
              have a trial in this case. I’m not, at all, suggesting that you
              shouldn’t have a trial. I just want to make sure that you
              understand what you are doing and that you make the
              choice that you want to make, after you’re informed and
              know what’s going on. Do you understand that?

              PETITIONER: Yes, sir.

Nothing in the record supports the petitioner’s contention that he was coerced and

threatened by the trial court into accepting the plea agreement.



              The petitioner also contends that he was coerced by the trial court

because the trial court told him that the state would try the aggravated robbery case

first, and if he was convicted, the state would use this to get a sentence of life without

parole in the murder case. The record reflects that the prosecutor explained that the

state intended to do just that. Rather than coercing the petitioner, the trial court was

merely explaining to the petitioner the potential ramifications of a trial.



              The petitioner argues that his plea was not knowing because he did not

understand his sentencing range. However, the record reflects that the petitioner was

adequately apprised of the fact that he would serve eighty-five percent of his sentence.

Although at one point during the guilty plea hearing the trial court misstated that the

petitioner was to serve forty-five percent of his sentence, the trial court later instructed

the petitioner and his parents that he would serve eighty-five percent of his sentence,

and the following colloquy occurred:


                                              6
             COURT: . . . . So we know for sure, that if he doesn’t
             misbehave and lose all his credits, that when he’s served
             eighty-five percent of forty-five years, he will have served his
             time and he’ll be out. Not on parole, he’ll be released.

             PETITIONER’S FATHER: But, okay then, we going [sic] to
             accept the time, then.

             ....

             PETITIONER’S FATHER: We agree upon it.

             COURT: . . . . Mr. Mario Perkins, you understand what we’ve
             done and you agree with this guilty plea; is that correct?

             PETITIONER: Yes, sir.

The record reflects that the petitioner was correctly apprised that he would serve eighty-

five percent of his sentence and that the petitioner agreed that he understood the

sentence and accepted the plea agreement.



             Finally, the petitioner contends that the trial court did not require the state

to submit notice of its intent to seek enhanced punishment ten days before the guilty

plea hearing, as required by Tenn. Code Ann. § 40-35-202. We believe that the

petitioner misapprehends the purpose of Tenn. Code Ann. § 40-35-202. That statute

deals with the requirement of advanced notice by the state of its intent to use a

defendant’s previous convictions to enhance the sentence. The purpose of the statute

is to provide fair notice to a defendant that he or she is exposed to a greater sentence

due to his or her previous criminal convictions. See State v. Adams, 788 S.W.2d 557

(Tenn. 1990). In the present case, the petitioner did not have any prior convictions;

rather, the petitioner agreed upon a sentence in an enhanced range as a part of his

plea agreement to second degree murder. Under these circumstances, Tenn. Code

Ann. § 40-35-202 is not applicable. This issue is without merit.



                    II. INEFFECTIVE ASSISTANCE OF COUNSEL

             The petitioner contends that his attorney was ineffective. Specifically, he

argues that his attorney did not adequately inform him of the consequences of his plea.


                                             7
The petitioner also makes myriad other statements with respect to what his attorney did

or did not do, but he does not articulate in what way his attorney’s actions were

deficient or how he was prejudiced. The state contends that the trial court correctly

concluded that the petitioner received the effective assistance of counsel. We agree.



              In a post-conviction case, the petitioner must prove his grounds for relief

by clear and convincing evidence. Tenn. Code Ann. § 40-35-210(f). To establish the

ineffectiveness of counsel, the petitioner must show that counsel’s performance was

deficient and that the deficiency resulted in prejudice. Strickland v. Washington, 466

U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); State v. Melson, 772 S.W.2d 417, 419 n.2

(Tenn. 1989). Relative to a claim that a guilty plea resulted from the ineffective

assistance of counsel, the petitioner must show that but for counsel’s errors, he would

not have pled guilty and would have insisted upon going to trial. Hill v. Lockhart, 474

U.S. 52, 59, 106 S. Ct. 366, 370 (1985); Bankston v. State, 815 S.W.2d 213, 215

(Tenn. Crim. App. 1991). 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. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). In this respect,

the petitioner, as the appellant, has the burden of illustrating how the evidence

preponderates against the judgment entered. Id.



              The petitioner’s trial attorney testified that he explained the state’s offer to

the petitioner and that he requested that the trial court explain the offer to the petitioner

at the plea hearing. He testified that he also explained the offer to the petitioner’s

parents and asked them to discuss it with the petitioner to ensure that the petitioner

understood the offer. He testified that he explained to the petitioner the ramifications of

going to trial. The attorney testified that he did not request additional time for the

petitioner to consider the offer because both the petitioner and his father stated that

they wanted to accept the offer. We conclude that the petitioner has not demonstrated



                                              8
that the record preponderates against the trial court’s finding that he received the

effective assistance of counsel.



               In his brief, the petitioner also makes the following statements with

respect to his attorney’s performance: (1) the attorney could not remember whether he

shared discovery with the petitioner, (2) the attorney stated that he did not know

whether the petitioner understood what he was doing, (3) the attorney first told the

petitioner that both cases would be tried at the same time but later told the petitioner

that the state would try the aggravated robbery case first, (4) the attorney could not

remember when he received the plea offer from the state, (5) the attorney did not

immediately take the offer to the petitioner, (6) the attorney told the petitioner that he

would have to go to trial if he did not accept the offer, (7) the attorney admitted that the

state did not file notice of its intent to seek enhanced punishment and that he did not

object to this, (8) the attorney allowed the petitioner to plead guilty to a sentence above

his range, but he did not have any authority for allowing the petitioner to do so, (9) the

attorney only met with the petitioner once, and (10) the attorney did not inform the

petitioner of the state’s offer until the day of the hearing.



               The petitioner makes no argument with respect to how these alleged

actions by his attorney were deficient or how he was prejudiced by them. We note that

some of the allegations listed in the petitioner’s statements are directly contradicted by

the proof in the record. In any event, the statements do not rise to the level of

allegations that would entitle the petitioner to relief because the petitioner has not

shown that the evidence preponderates against the trial court’s finding of effective

assistance.



               In consideration of the foregoing and the record as a whole, we affirm the

trial court’s denial of post-conviction relief.



                                                  9
                                     __________________________
                                     Joseph M. Tipton, Judge

CONCUR:

___________________________
Gary R. Wade, Presiding Judge



___________________________
Thomas T. Woodall, Judge




                                10
