         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs September 26, 2007

          TIMMY CHARLES MCDANIEL v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Hamilton County
                              No. 258844   Don W. Poole, Judge



                    No. E2007-00113-CCA-R3-PC - Filed November 9, 2007


The petitioner, Timmy Charles McDaniel, entered pleas of guilty to first degree felony murder and
especially aggravated burglary in exchange for concurrent sentences of life without the possibility
of parole and 12 years, respectively. Following his incarceration, the petitioner filed a petition for
post-conviction relief alleging that his guilty pleas were not knowingly and voluntarily entered
because he was denied the effective assistance of counsel. In this appeal, he challenges the denial
of his petition for post-conviction relief and reasserts his claim that his guilty pleas were not
knowingly, voluntarily, and intelligently entered. Finding no error, we affirm the judgment of the
trial court.

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

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J.,
and NORMA MCGEE OGLE, J., joined.

Brian S. Finlay, Chattanooga, Tennessee, for the appellant, Timmy Charles McDaniel.

Robert E. Cooper, Jr., Attorney General & Reporter; Sophia S. Lee, Assistant Attorney General;
William H. Cox, District Attorney General; and Neal Pinkston, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION

               On August 24, 2005, the petitioner entered pleas of guilty to first degree felony
murder and especially aggravated burglary. Pursuant to a plea agreement with the state, the
defendant received concurrent sentences of life without the possibility of parole and twelve years.
On May 10, 2006, the petitioner filed a pro se petition for post-conviction relief alleging that he did
not knowingly and voluntarily plead guilty, that his arrest was unlawful, that his statement to police
was not voluntarily given, that the prosecution failed to disclose exculpatory evidence, that he was
denied the effective assistance of counsel, and that he was mentally incompetent to enter his pleas.
The post-conviction court dismissed the petitioner’s claims relating to his arrest and statement to
police and appointed counsel. Subsequently, the petitioner’s appointed counsel filed notice that the
pro se petition would not be amended.

                  The facts of this case, as summarized by the prosecutor at the time of the guilty pleas,
are as follows:

                  [T]he State’s proof would have shown that on the 9th of December
                  2002, Mary Lou Wojcik’s neighbor, at the request of her sister, went
                  to check on Mary Lou at her residence in Mountain Shadows. And
                  when she arrived at the residence, she found that the door had been
                  pried open, standing partially open. She entered to investigate and
                  found the victim’s partially nude body lying in the bathroom with
                  severe injuries, blood all over the place. . . .

                                  It turns out that the victim . . . apparently . . . laid [sic]
                  dead in her home for approximately 24 to 30 hours before she was
                  discovered by the neighbor. . . . [D]uring the course of the
                  investigation, [the Hamilton County Sheriff’s Department] learned
                  that a pickup truck had been in the area on that particular night, had
                  been described as having a wooden bed in it, and that was a lead.
                  Eventually, they followed that lead and developed [the defendant] as
                  a suspect.

                                  [The defendant] was an ex-boyfriend to the daughter
                  of [the victim] and apparently he and some of his buddies had come
                  up from Tunnel Hill, Georgia, on the night of this murder, he having
                  the intent to burglarize this house belonging to [the victim]. He . . .
                  broke into [the house] with a crowbar that he’d brought to the scene,
                  entered the house, found the victim in the bathroom [and] slashed her
                  throat with a knife.

                                  After she fell to the floor, our proof would
                  demonstrate that he stomped on her, breaking bones inside her body,
                  breaking her sternum, continued to inflict injuries, knife injuries on
                  the victim, slashing her throat. Again, we would show that there were
                  two slash wounds to her throat approximately three and a half inches
                  deep, practically cutting off her head. Also, she had stab wounds to
                  her abdomen area. . . .

                                 Fortunately, the police were able to locate . . . palm
                  prints and fingerprints that subsequently turned out to belong to the
                  defendant in this case.



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               . . . . [The defendant] went back to Tunnel Hill after the murder,
               buried the murder weapon . . . , burned his clothing and then took off
               to Florida and spent some time there.

                             Later, he c[a]me back to Tunnel Hill . . . where law
               enforcement officers in that jurisdiction . . . located him at this
               residence. The first thing he said to them when they walked in is I
               know why you’re here, because of the woman that I killed.

                              They brought him back . . . to Chattanooga . . . where
               he gave an extensive . . . confession as to the facts. . . .

                                 The aggravating factor in this case . . . was the injuries
               inflicted to the victim that were far in excess of what was required to
               produce death, the heinous nature of this killing. The defendant, by
               his own admission, abused the victim’s body sexually after having
               slashed her numerous times, cut her throat, digital penetration. For
               those facts . . . we sought the [death penalty] in this case.

               At the evidentiary hearing, the petitioner abandoned half of his claims and pursued
only his claims that he was mentally incompetent to plead guilty, that his trial counsel were
ineffective for failing to request a mental evaluation, and that his pleas were not knowingly,
voluntarily, and intelligently entered. The petitioner testified that on the day he entered his pleas,
he had been in court for nearly five hours and that the trial judge “was overruling all the motions in
my case.” The petitioner, who claimed he was “very tired and very stressed out,” stated that he “was
ready to go, I was ready to get the case over with.” He stated that he did not understand the
consequences of the trial court’s rulings and that he “never understood the whole plea itself.” He
conceded, “I knew that I would be going to prison for the rest of my life,” but claimed that he did
not comprehend that he was foregoing his right to appeal. When asked why he told the trial court
that he understood the consequences of the plea, the petitioner stated that he “was tired, [he] felt
threatened, [he] was under pressure and stressed and very depressed and [he] was just ready to get
the case over with.”

                 During cross-examination, the petitioner admitted that the two attorneys appointed
to represent him visited him numerous times during his pretrial incarceration. He also conceded that
he was aware that he had been charged with first degree murder and was facing the death penalty.
He acknowledged that his trial counsel went over the State’s evidence with him and that they filed
numerous motions on his behalf. The petitioner also acknowledged that his trial counsel had
reviewed the terms of the plea agreement with him and had explained to him the consequences of
pleading guilty. The petitioner testified that it was his choice to plead guilty, explaining, “If we had
went to trial, I would have lost.”




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                One of the petitioner’s trial attorneys testified that he had been appointed as second
chair after the State filed its notice of intent to seek the death penalty. He stated that he and his co-
counsel met with the petitioner more than 30 times prior to the entry of his guilty pleas. They went
over everything they had received from the State as well as all that they had discovered during their
own investigation. Counsel stated that after the trial court denied the motion to suppress the
petitioner’s statement, the petitioner approached them and stated his intent to change his plea and
accept the plea offer from the State. Counsel testified that a mental evaluation of the petitioner
established that the petitioner was competent to stand trial. He stated that he encouraged the
petitioner to wait a day before changing his plea but the petitioner insisted on pleading guilty that
day.

                The post-conviction court denied the petition in an extensive written order filed after
the conclusion of the hearing. The post-conviction court determined that the petitioner had failed
to establish any of his claims. The court concluded that mental evaluations prior to the entry of the
petitioner’s pleas established that he was competent to plead guilty. The court also found that,
contrary to the petitioner’s allegation, he received three complete mental evaluations prior to the
entry of his plea. Finally, the court determined that the petitioner’s pleas were knowingly,
voluntarily, and intelligently entered.

                In this appeal, the petitioner contends that the post-conviction court erred by denying
his petition for post-conviction relief. He contends that he did not knowingly, voluntarily, and
intelligently plead guilty because he was unaware of the consequences of his pleas and because he
was “tired and stressed” at the time he agreed to plead guilty.1

                The petitioner bears the burden of proving the allegations in his post-conviction
petition by clear and convincing evidence. T. C. A. § 40-30-110(f) (2006). “Evidence is clear and
convincing when there is no serious or substantial doubt about the correctness of the conclusions
drawn from the evidence.” Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). On
appeal, the findings of fact made by the trial court are conclusive and will not be disturbed unless
the evidence contained in the record preponderates against them. Brooks v. State, 756 S.W.2d 288,
289 (Tenn. Crim. App. 1988).

                Due process demands that a guilty plea be entered voluntarily, knowingly, and
understandingly. See Boykin v. Alabama, 395 U.S. 238, 242-44 (1969). “[T]he core requirement
of Boykin is ‘that no guilty plea be accepted without an affirmative showing that it was intelligent
and voluntary.’” Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Fontaine v.
United States, 526 F.2d 514, 516 (6th Cir. 1975)). The plea must represent a “voluntary and
intelligent choice among the alternative courses of action open to the defendant.” North Carolina
v. Alford, 400 U.S. 25, 31 (1970). A plea is involuntary if the accused is incompetent or only “if it
is the product of ‘ignorance, incomprehension, coercion, terror, inducements, [or] subtle or blatant
threats.’” Blankenship, 858 S.W.2d at 904 (quoting Boykin, 395 U.S. at 242-43).


        1
            The petitioner has abandoned the remainder of his claims on appeal.

                                                          -4-
                 In this case, the petitioner testified that he made the choice to plead guilty based upon
his belief that he could not be successful at trial. Although he claimed that he did not completely
understand the consequences of his pleas, the petitioner acknowledged that he knew he would be
going to prison for the rest of his life. He conceded that his trial counsel had fully explained the
consequences of the guilty pleas to him. Counsel testified that he and his co-counsel had discussed
the entirety of the State’s evidence with the petitioner and that it was the petitioner’s choice to plead
guilty. The transcript of the plea submission establishes that the petitioner was advised of the full
panoply of his rights before entering his pleas. The trial court also specifically advised the petitioner
that he was foregoing the right to appeal, explaining, “Your plea today means there will be no trial,
there will be no appeal, your cases will all be over today.” The petitioner stated at that time that he
was fully aware that he was giving up his right to appeal. Moreover, nothing in the transcript
suggests that the petitioner’s pleas were the product of “‘ignorance, incomprehension, coercion,
terror, inducements, [or] subtle or blatant threats.’” Blankenship, 858 S.W.2d at 904 (quoting Boykin,
395 U.S. at 242-43). Under these circumstances, the petitioner has failed to establish by clear and
convincing evidence that his guilty pleas were not knowingly, voluntarily, and intelligently entered.

                Accordingly, the judgment of the post-conviction court is affirmed.


                                                         ___________________________________
                                                         JAMES CURWOOD WITT, JR., JUDGE




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