         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs September 28, 2004

                  KERMIT PENLEY v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Greene County
                         No. 03CR078     James E. Beckner, Judge



                   No. E2004-00129-CCA-R3-PC - Filed November 1, 2004


The petitioner, Kermit Penley, appeals from a denial of post-conviction relief. On appeal, the
petitioner alleges ineffective assistance of counsel, and that his plea of guilty was not knowing or
voluntary. We affirm the post-conviction court’s denial of 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 JOSEPH M. TIPTON and
DAVID H. WELLES, JJ., joined.

David L. Leonard, Greeneville, Tennessee, for the appellant, Kermit Penley.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant, Assistant Attorney
General; C. Berkeley Bell, Jr., District Attorney General; and Eric D. Christiansen and Cecil C.
Mills, Jr., Assistant District Attorneys General, for the appellee, State of Tennessee.


                                            OPINION

        The petitioner pled guilty to first degree murder in exchange for an agreed sentence of life
imprisonment. The petitioner then filed an action for post-conviction relief. After a full hearing,
the petition was denied and this appeal followed. The appeal alleges that the petitioner received
ineffective assistance of counsel and that his plea was not knowingly and voluntarily made.

                                      Assistance of Counsel

        Our review on a claim of ineffective assistance of counsel is under 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 petitioner must prove that (1) the attorney’s performance was
deficient, and (2) the deficient performance resulted in prejudice such as to deprive the defendant
of a fair trial. Id. at 687, 104 S. Ct. at 2064; Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996);
Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). If either deficiency or prejudice is not proven,
then denial of relief is justified. Goad, 938 S.W.2d at 370.

        The test in Tennessee to determine whether counsel provided effective assistance is whether
his or her performance was within the range of competence demanded of attorneys in criminal cases.
Baxter, 523 S.W.2d at 936. The petitioner must overcome the presumption that counsel’s conduct
falls within a wide range of acceptable professional assistance. Strickland, 466 U.S. at 689, 104 S.
Ct. at 2065; State v. Honeycutt, 54 S.W.3d 762, 769 (Tenn. 2001).

       The petitioner bears the burden of proving the factual allegations justifying relief by clear and
convincing evidence. Tenn. Code Ann. § 40-30-210(f). We are required to affirm the post-
conviction court’s findings unless the petitioner proves that the evidence preponderates against those
findings. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

       In support of the petition, there were three witnesses called: Beatrice Penley, the petitioner’s
mother; T. Wood Smith, one of the petitioner’s trial co-counsel; and the petitioner.

       Beatrice Penley testified that she had attended all pretrial hearings concerning the petitioner
except for the plea entry. She stated that she was not notified of that hearing. She also stated that
she had written letters to two of the petitioner’s co-counsel, due to an inability to contact them by
phone.

        Thomas Wood Smith testified that he was one of three co-counsel for the petitioner. Suzanne
Thomas was appointed first and served as lead counsel. A third attorney, Douglas Payne, served as
unpaid co-counsel. Mr. Smith stated that he had difficulties at times in reaching lead counsel. He
stated that defense counsel obtained the services of a mitigation specialist who also served as
psychologist. In addition, the petitioner had the benefit of an investigator, a jury consultant, and a
communications specialist. The mitigation expert had developed approximately twenty-eight
mitigation themes.

        On September 6, 2002, the State offered to accept a plea to first degree murder in exchange
for a sentence of life imprisonment. The petitioner’s trial was set for September 16th. Counsel for
the petitioner met with the petitioner on the morning of September 6th and again after lunch to
discuss the plea offer and the petitioner’s options. The petitioner was advised that if he accepted the
plea offer, he would serve a minimum of fifty-one years before he was eligible for release. Mr.
Smith filled out the Negotiated Plea Agreement and Waiver of Rights - Guilty Plea form. The
Negotiated Plea Agreement was erroneously marked to indicate the offense as a Class A felony and
the classification of offender as “standard offender.”

        On cross-examination, Mr. Smith stated that the petitioner’s confession had been a problem
for counsel in defense preparation. He stated that all defenses were investigated and all witnesses
interviewed. He and co-counsel filed numerous pretrial motions, did independent research, and
communicated regularly with the petitioner. He stated that at the time of plea entry, the petitioner


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was free of intoxicants, was uncoerced, and understood the consequences of his acceptance. Prior
to this, the petitioner had undergone a psychological examination and was determined competent to
stand trial.

         Kermit Penley testified that he thought he was receiving a fifty-one year sentence with release
eligibility after thirty percent service. He denied that co-counsel explained that he would be serving
a minimum of fifty-one years day for day and said he only learned this fact when he arrived at
Brushy Mountain prison. The petitioner stated that he felt his attorneys “should have built a better
defense.” He also said that his counsel should have visited with him more.

        On cross-examination, the petitioner admitted that the sentence of life imprisonment had
been explained to him by the trial judge during the guilty plea hearing. He further admitted that he
had told the trial judge he understood the terms of the sentence. The petitioner also had expressed
his satisfaction with his representation at the plea hearing.

        In his order denying post-conviction relief, the post-conviction judge detailed the steps taken
by the petitioner’s counsel to prepare a defense. The order recounts the acquisition of experts
including an investigator, a psychologist-mitigation expert, a communications specialist, and a jury
consultant. Approximately twenty-eight mitigation themes had been developed. Witnesses were
interviewed, and all possible defenses were considered. A plethora of pretrial motions had been filed
and heard by the petitioner’s co-counsel.

          In addressing the petitioner’s complaints of ineffective counsel, the post-conviction judge
stated:
          What [the petitioner] said today was that his specific complaints about his lawyers
          were that they should have built a better defense. But what would it be? There’s no
          suggestion as to what that might’ve been.

          And he also said that the lawyers should have come to see him more. Why? What
          would it have done differently? What could’ve been developed that wasn’t
          developed? What could’ve been presented that wasn’t presented in all these motion
          hearings and presentations to the court?

       We agree with the post-conviction judge that the petitioner received effective assistance of
counsel. In fact, from the presentation of evidence, it appears that co-counsel was exemplary in the
thoroughness of their trial preparation. The petitioner has presented no evidence that approaches a
preponderance against the post-conviction court’s findings.

                                             Guilty Plea

       The petitioner’s second and concluding issue alleges that he did not enter a knowing and
voluntary plea of guilty.



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        Concerning guilty pleas in the context of ineffective assistance of counsel, the petitioner must
establish that, but for counsel’s errors, the petitioner would not have entered the plea and would have
insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 59, 102 S. Ct. 366, 88 L. Ed. 2d 203
(1985).

         The petitioner maintains that he was misled by his attorneys to understand that he was
receiving a fifty-one year sentence with a possibility of parole after serving thirty percent. In support
of this, the petitioner points to two documents. The Negotiated Plea Agreement was erroneously
marked as a Class A felony and as a Standard Offender. The term of sentence was “Life with
possibility of parole.” The Waiver of Rights - Plea of Guilty form identified the sentence as “Life
in the Penitentiary with the possibility of parole.”

         The statute provides that there is no release eligibility for parole or any other release program
on a life sentence, having to be served at 100% less sentence credits earned and retained, not to
exceed 15%. Tenn. Code Ann. § 40-35-501(i)(1),(2) (2001). The term “life imprisonment with the
possibility of parole” is inaccurate and is mistakenly used to differentiate between the more severe
sentence of life imprisonment without possibility of parole. More accurately stated, a sentence of
life in prison entitles the defendant to be released, as opposed to paroled, after serving 100% of sixty
years less any eligible credits, so long as they do not operate to reduce the sentence by more than
15%, or nine years, which would result in a total sentence of fifty-one years.

        Thomas Wood Smith, one of the petitioner’s co-counsel, testified that the terms of the plea
agreement and the length of the sentence were made explicitly clear to the petitioner. It specifically
stressed that the petitioner would serve a minimum of fifty-one years under the terms of the
agreement. Mr. Smith’s testimony was accredited and accepted by the post-conviction judge.

        In addition, the trial judge thoroughly explained the terms of the plea agreement and the
minimum length of sentence to the petitioner during the Boykin litany. The petitioner, on two
occasions, acknowledged his understanding and his desire to accept the proposed sentence and stated
that he was doing so freely and voluntarily. The post-conviction court found that the plea of guilty
was voluntarily, knowingly, and intelligently entered. We agree.

        In conclusion, we hold that the petitioner received the effective assistance of counsel and that
his plea of guilty was freely, voluntarily, and knowingly made. Accordingly, we affirm the denial
of post-conviction relief.



                                                         ___________________________________
                                                          JOHN EVERETT WILLIAMS, JUDGE




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