         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs January 23, 2007

             JAMES MARIO STARNES v. STATE OF TENNESSEE

                      Appeal from the Circuit Court for Bedford County
                                No. 9884    J.B. Cox, Judge



                    No. M2006-00197-CCA-R3-PC - Filed March 13, 2007


The Petitioner, James Mario Starnes, entered an open guilty plea in the Bedford County Circuit
Court to attempted second degree murder and especially aggravated robbery. He received an
effective sentence of twenty-five years. He subsequently petitioned for post-conviction relief. In
this appeal from the denial of post-conviction relief, the Petitioner argues (1) that he received the
ineffective assistance of counsel, (2) that he entered an involuntary guilty plea, and (3) that an
insufficient factual basis exists for his plea. Finding no error, we affirm the judgment of the trial
court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which THOMAS T. WOODALL and
ROBERT W. WEDEMEYER , JJ., joined.

Christopher Westmoreland, Shelbyville, Tennessee, for the appellant, James Mario Starnes.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;
Charles Crawford, District Attorney General; Ann Filer and Michael D. Randles, Assistant District
Attorneys General, for the appellee, State of Tennessee.


                                             OPINION

        The Petitioner pled guilty in Bedford County, Tennessee to attempted second degree murder
and especially aggravated robbery arising from the theft of money at gunpoint at a steakhouse and
the shooting of the restaurant’s proprietor. The factual basis for the guilty plea as presented at the
guilty plea hearing and recounted by this Court in the Petitioner’s direct appeal is as follows:

                       PROSECUTOR: Your Honor, on August 20th, 1998, the
               [Petitioner] as well as Leon Terrell Phillips entered Prime Steakhouse
               here in Shelbyville; robbed them of the money bag. Fairly large
                amount of money, well over $500. They did so while [the Petitioner]
                was armed with a firearm.

                        As they were leaving, after having obtained the money, as the
                proprietor Mr. Bill Katisis is his name, as they were leaving they shot
                him or not they. [The Petitioner] shot him, and he was gravely
                injured. It is a miracle that he lived. He was in the hospital for [an]
                extended period of time. Astronomical medical bills and very
                seriously injured.

                         DEFENSE COUNSEL: The proof would further show after
                the money was obtained and started out the door the proprietor
                followed-[the Petitioner] wants this on the record-to the door in an
                effort to try to retrieve the money. At that point there was some small
                struggle. I think the gun went off. This is when he was shot.

                        PROSECUTOR: The [Petitioner] did make a statement to this.

                        DEFENSE COUNSEL: That’s correct.

                        THE COURT: Mr. Starnes, you heard what the State said they
                are prepared to prove. Is that what happened?

                        THE [PETITIONER]: Yes, sir.


State v. James Mario Starnes, No. M2002-01450-CCA-R3-CD, 2003 WL 1094071 at *1 (Tenn.
Crim. App., Nashville, Mar. 13, 2003). The trial court accepted the Petitioner’s open guilty plea.
The Petitioner was sentenced to ten years and nine months for the attempted second degree murder
and twenty-five years for the especially aggravated robbery, to be served concurrently in the
Department of Correction.


        The Petitioner failed to file a timely notice of appeal. The Petitioner then filed a pro se post-
conviction petition. The trial court entered an order granting a delayed direct appeal of sentencing
issues. On direct appeal, this Court concluded that the Petitioner was attempting to challenge the
sufficiency of the evidence to support his conviction. As such, this Court determined that the
Petitioner had waived this issue when he entered his guilty plea. Therefore, we dismissed the
Petitioner’s appeal. See James Mario Starnes, 2003 WL 1094071.


        The Petitioner subsequently filed a petition seeking post-conviction relief, which the trial
court summarily dismissed. The Petitioner appealed the trial court’s summary dismissal of his
petition for post-conviction relief. This Court reversed and remanded the case to the trial court for


                                                  -2-
an evidentiary hearing, concluding that the petition did state a colorable claim for post-conviction
relief. See James Mario Starnes v. State, No. M2004-01442-CCA-R3-CD, 2004 WL 3304658
(Tenn. Crim. App., Nashville, Apr. 15, 2005). Counsel was appointed, and an amended petition was
filed.


        At the post-conviction relief hearing, the Petitioner argued that his trial counsel did not fully
advise him of the legal issues of his case and that he was not aware of potential defense arguments
when he pled guilty. First, with regard to the especially aggravated robbery charge, the Petitioner
asserted that his attorney should have proceeded under the theory that he could only be found guilty
of aggravated robbery. This theory rested upon the argument that the “serious bodily injury” to the
victim only occurred after the robbery was complete and the Petitioner was perfecting his escape.
Second, with regard to his attempted murder charge, the Petitioner asserted that he did not have the
requisite intent to be found guilty of attempted second degree murder, arguing apparently that the
shooting was accidental. The Petitioner contends that, if he had been advised of the legal issues in
his case, he would not have entered a guilty plea.


         The Petitioner testified that he entered his guilty plea “due to the advice of [his] attorney.”
With regard to the especially aggravated robbery charge, the Petitioner stated that he told his attorney
after researching the law that he “should be charged with aggravated robbery” instead of especially
aggravated robbery. The Petitioner stated that he came to this conclusion because he “knew [that
he] didn’t shoot the man during the robbery” as he had already gotten the bag of money and was
trying to escape when he shot the victim. The Petitioner stated that he asked his attorney about this
legal issue “[a]t least three or four” times. The Petitioner testified that his attorney did not believe
that this was a good defense and focused upon the fact that “the man got shot twice, he almost died,
that is all he seemed to be concerned about. That the man did get hurt.”


        With regard to the attempted second degree murder charge, the Petitioner testified that he did
not intend to kill the victim but that the “gun [went] off . . . a time or two . . . .” He testified that his
attorney “didn’t discuss any possible defenses” with him. He also stated that his attorney “did say
something that he knowed [sic] there is no way they could convict [him] of attempted first degree
murder.”


        With regard to the ultimate decision to plead guilty, the Petitioner testified that his attorney
“advised [him] to plead guilty.” When he explained that he was concerned he would lose his right
to an appeal, he testified that his attorney informed him of his option to enter an “open plea.” The
Petitioner asserted that he believed , if he entered an open plea, he would retain his right “to appeal
everything; conviction and everything.” He stated that he believed he would be able to appeal the
legal issues regarding the timing of the serious bodily injury for especially aggravated robbery and
the intent for attempted second degree murder. The Petitioner ultimately stated that he would not
have pled guilty if he had understood that he could not appeal these issues.


                                                    -3-
         The Petitioner admitted that, when he entered his guilty plea, the trial judge did advise him
of his rights and asked him the required litany of questions. The Petitioner stated that he was advised
of his right to an attorney, his right to a trial by jury, his right to subpoena witnesses, and his right
to appeal a jury verdict and sentence. However, the Petitioner stated that he did not “remember” the
trial judge instructing him that, by entering an open plea, he would waive all of those rights except
the right to appeal his sentence.


       With respect to the result of his guilty plea, the Petitioner stated that the best offer he had
from the State before trial was to plead guilty and accept consecutive sentences which would have
been an effective sentence of forty-two years. The Petitioner stated that his trial attorney was able
to persuade the sentencing judge to run the sentences concurrently for an effective sentence of
twenty-five years.


        The Petitioner’s trial counsel testified at the post-conviction hearing. With regard to the
especially aggravated robbery charge, trial counsel testified that he was aware of a prior case1 where
a robbery occurred at one location and other offenses occurred down the street. Trial counsel stated
that he discussed this case with the Petitioner but explained to him that the facts of this case were
probably distinguishable from the Petitioner’s offense because there was not a significant break
between the taking of money and the shooting. Trial counsel explained that the Petitioner and the
victim both stated the shooting occurred “inside the door” of the restaurant or “close to the door” as
the Petitioner and his accomplice were attempting to flee with the money.


        With regard to sentencing, trial counsel stated that he advised the Petitioner that he would
more than likely receive concurrent sentences if he allowed the trial judge to determine the sentence.
Trial counsel testified that the State’s only offer of a plea agreement included consecutive sentences.
Trial counsel stated that he “only” advised the Petitioner that “he could appeal the sentence imposed
by the judge.” Trial counsel further stated that the trial judge always “advised the client that they
had a right to appeal the [sentence] entered by the Court but they do not have a right to appeal the
conviction they pled guilty to.”


       With regard to the decision to plead guilty, trial counsel stated that the Petitioner “did not
want to go to trial.” Trial counsel stated that he explained the Petitioner’s right to receive a trial if



         1
          The case that trial counsel discussed with the Petitioner was State v. David Owens, No. 02C01-9706-9706-CR-
00204, 1998 W L 211795 (Tenn. Crim. App., Jackson, May 1, 1998), rev’d, 20 S.W .3d 364 (Tenn. 2000). As the trial
court noted in its findings, the Petitioner’s offense in January of 1999 occurred before the Owens case was reversed by
the Tennessee Supreme Court. As such, the Petitioner’s trial attorney was advising him based upon the Court of Criminal
Appeals decision.




                                                         -4-
he so chose. Ultimately, trial counsel stated that the Petitioner never gave any indication that the
open plea was not a voluntary decision by the Petitioner.


        At the conclusion of the post-conviction hearing, the trial court dismissed the Petitioner’s
petition. The trial judge orally stated his findings of fact and conclusions of law:


                       [THE COURT]: As to the [P]etitioner’s petition, the Court is
               not inclined to grant the relief that the [P]etitioner is seeking here.
               The Court believes that the burden of proof to be sustained in this
               matter is a very high burden of proof. It is clear and convincing proof
               in this matter and the Court does not believe that the [P]etitioner has
               met that burden of proof.


                       In that regard, as a point of analysis, the Court is inclined,
               based upon being present in court to resolve any and all conflicts
               concerning any credibility issues in favor of [trial counsel] and
               against the [P]etitioner in this matter.


                       That can most easily been [sic] borne out by the fact that [the
               Petitioner] gave the police at least two different statements and there
               was a statement made to [trial counsel] that [trial counsel] testified to
               that he didn’t admit that he made to [trial counsel]. Then by the time
               we get to the plea there is a different statement that has to be insisted
               upon in the plea. And there is a different statement made to the
               presentence officer in the matter before then Judge Lee at the time.


                       The Court is inclined in that regard to resolve all of those
               credibility questions in favor of [trial counsel].


                       The Court is, I guess, concerned about the legal theory
               approach used by [the Petitioner] in this matter. I think he is trying
               to argue that his plea was not made in a knowing, intelligent,
               voluntary way. In that regard again I would give great weight to [trial
               counsel’s] testimony; less weight to the [P]etitioner’s testimony in
               that regard.


                      And take notice from the Court’s own experience that Judge
               Charles Lee would not have allowed an open plea to have gone down


                                                 -5-
without being assured that the [Petitioner] understood all of the
ramifications of that particular open plea.


        That not only can be taken from this particular case but that
he always used a pattern when dealing with open pleas that he never
varied from based upon the Court’s experience before him and during
the time that the Court has been on the bench when he was on the
bench.


        He always went over the range of punishment; all of the
elements of the criminal offense. They were always thoroughly
explained to the [Petitioner] who was attempting to enter a plea and
he was especially careful when that plea was open and likely to be on
the eve of trial which was likely already scheduled in this matter.


        The [Petitioner’s] own testimony here today, even . . . though
the Court finds some of it suspect, indicates to the Court that he knew
he had a right to go to trial and he did not insist upon that right being
carried out.


        His only issue is his misperception in his own mind that is
conveniently raised now that he thought he could appeal any and all
issues.


        The Court does not find that to be credible testimony here.


        The Court is also aware of the number of cases that [trial
counsel] respectfully understates when he takes the witness stand and
what is done in those cases when he is involved in those cases
concerning making sure and make [sic] certain that defendants have
their rights completely explained to them in such a way that they
understand those rights.


       The other curiosity is the effect of Owens and/or Dickson
upon this particular post-conviction petition.


       The Court is not inclined to agree with the Petitioner or with
counsel as it relates to this matter. One matter of curiosity for the

                                  -6-
Court is this to be articulated upon the record. Let’s assume for a
moment that I gave him what he wanted, and I gave him a new trial,
his argument would seem to be, Your Honor, I committed two
different offenses. I committed the offense of aggravated . . . robbery
inside the store and then I shot someone, which was a separate
offense, which would be grounds for potentially consecutive
sentencing, which the State argued for from the beginning in this
matter.


         Now, I will be honest with you. I haven’t looked it up. Even
if he was successful in having Dickson applied to his case now, which
I don’t believe he would be successful at, I believe he would be
bound by the law at the time that the offense was committed, which
I think [the Petitioner’s counsel] to his credit has conceded would be
Owens. . . .


       [PETITIONER’S COUNSEL]:            The            first   Owens
[opinion]—the Supreme Court Owens was after.


        [THE COURT]: Was after.


       In that regard he would not be entitled to—I don’t think he
would, the benefit of Dickson.


        ....


        . . . [T]he Court finds it difficult to understand how [the
Petitioner] could successfully commit robbery if [the victim] had
been able to successfully stop him even [when] he was in the parking
lot.


        Now, as it relates to that, I don’t find that the distinctions
created by those cases particularly hold water and I don’t find that his
legal advice fell below that required by the law in this setting.


       I honestly believe [trial counsel’s] legal advice was directly on
point with the facts that the Court has been made privileged to hear
today.

                                  -7-
                      His issue may have been with how many years he got for
               especially aggravated robbery, and that was an issue probably to be
               taken up with Judge Lee by way of an appeal but in terms of the
               advice given by [trial counsel] concerning that, his best choice if his
               guilt was not of the actual events was not at issue, would likely to
               have been [to] take an open plea.


                       I do agree that he shouldn’t have taken the State’s offer. I
               think he made the right choice in that regard and he was given sound
               legal advice.


                        Some folks would argue that he had nothing to lose by going
               to trial. Well, again that is a right that he had that he did not insist
               upon. There is no doubt in this Court’s mind that he was advised he
               had that right, thoroughly.


                       In that regard, if you look at the first part of Exhibit 1 in this
               matter, there is no doubt of his ability or the Court’s right to infer that
               he had the ability to understand those things that were going on
               around him at the time because he is clearly a graduate from
               Shelbyville Central High School.


                      In that regard, a lack of understanding testimony here doesn’t
               hold the same water it might if he was otherwise disabled in some
               way.


                       In that regard, I think that the [P]etitioner has failed on each
               and every point to carry his burden of proof which the Court believes
               to be a great burden of proof and the Court hereby, based upon those
               findings, and conclusion hereby dismisses the petition.


The trial judge entered a written order denying the Petitioner’s petition. This appeal followed.




                                                  -8-
                                               Analysis

I. Post-Conviction Standard of Review
        To sustain a petition for post-conviction relief, a defendant must prove his or her factual
allegations by clear and convincing evidence at an evidentiary hearing. See Tenn. Code Ann. § 40-
30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon review, this Court will not re-
weigh or re-evaluate the evidence below; all questions concerning the credibility of 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 judge, not the appellate courts. See Momon, 18 S.W.3d at 156; Henley v. State,
960 S.W.2d 572, 578-79 (Tenn. 1997). The trial judge’s findings of fact on a petition for post-
conviction relief are afforded the weight of a jury verdict and are conclusive on appeal unless the
evidence preponderates against those findings. See Momon, 18 S.W.3d at 156; Henley, 960 S.W.2d
at 578.


A. Effective Assistance of Counsel
        The Petitioner asserts that his trial counsel was ineffective in advising him to plead guilty and
that, but for the constitutionally deficient representation, he would not have entered a guilty plea.
The Sixth Amendment to the United States Constitution and article I, section 9 of the Tennessee
Constitution guarantee a criminal defendant the right to representation by counsel. State v. Burns,
6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Both the
United States Supreme Court and the Tennessee Supreme Court have recognized that the right to
such representation includes the right to “reasonably effective” assistance, that is, within the range
of competence demanded of attorneys in criminal cases. Strickland v. Washington, 466 U.S. 668,
687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523 S.W.2d at 936.


       A lawyer’s assistance to his or her client is ineffective if the lawyer’s conduct “so
undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.” Strickland, 466 U.S. at 686. This overall standard is comprised of
two components: deficient performance by the defendant’s lawyer and actual prejudice to the defense
caused by the deficient performance. Id. at 687; Burns, 6 S.W.3d at 461. The defendant bears the
burden of establishing both of these components by clear and convincing evidence. Tenn. Code
Ann. § 40-30-110(f); Burns, 6 S.W.3d at 461. The defendant’s failure to prove either deficiency or
prejudice is a sufficient basis upon which to deny relief on an ineffective assistance of counsel claim.
Burns, 6 S.W.3d at 461; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).


        This two-part standard of measuring ineffective assistance of counsel also applies to claims
arising out of a guilty plea. Hill v. Lockhart, 474 U.S. 52, 58 (1985). The prejudice component is
modified such that the defendant “must show that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id.
at 59; see also Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998).


                                                  -9-
         In evaluating a lawyer’s performance, the reviewing court uses an objective standard of
“reasonableness.” Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The reviewing court must
be highly deferential to counsel’s choices “and should indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462;
see also Strickland, 466 U.S. at 689. The court should not use the benefit of hindsight to second-
guess trial strategy or to criticize counsel’s tactics, see Hellard v. State, 629 S.W.2d 4, 9 (Tenn.
1982), and counsel’s alleged errors should be judged in light of all the facts and circumstances as
of the time they were made, see Strickland, 466 U.S. at 690; Hicks v. State, 983 S.W.2d 240, 246
(Tenn. Crim. App. 1998).


        A trial court’s determination of an ineffective assistance of counsel claim presents a mixed
question of law and fact on appeal. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). This Court
reviews the trial court’s findings of fact with regard to the effectiveness of counsel under a de novo
standard, accompanied with a presumption that those findings are correct unless the preponderance
of the evidence is otherwise. Id. “However, a trial court’s conclusions of law—such as whether
counsel’s performance was deficient or whether that deficiency was prejudicial—are reviewed under
a purely de novo standard, with no presumption of correctness given to the trial court’s conclusions.”
Id. (emphasis in original).


        The trial court found that the Petitioner did not meet his burden of establishing by clear and
convincing evidence that his trial counsel was ineffective. The trial court found that the Petitioner’s
counsel was not deficient because his “legal advice was directly on point with the facts” of the case
and there was no evidence that “his legal advice fell below that required by the law in this setting.”
The trial court also accredited trial counsel’s testimony over the Petitioner’s with regard to the facts
of the representation as presented at the post-conviction hearing. We conclude that the trial court
did not err in its determination that the Petitioner received the effective assistance of counsel.


        The evidence presented at the post-conviction hearing demonstrates that the Petitioner’s
counsel discussed the facts of the case with him and recent case law2 that was factually similar, yet
arguably distinguishable, from the Petitioner’s case. The Petitioner informed his counsel that he was
guilty of the offense but did not want to go to trial. However, the Petitioner did not want to accept
the State’s offer, which would have been a guilty plea conditioned upon consecutive sentences for
an effective sentence of forty-two years. Furthermore, the Petitioner stated that he wanted to be able
to preserve possible issues for appeal. Thus, the Petitioner’s counsel recommended that the
Petitioner enter an open guilty plea. The Petitioner’s counsel advised him that he would still be able
to appeal his sentence but that he believed that the trial court would order the sentences to be served


         2
           In the Petitioner’s brief, he argues that trial counsel was ineffective for not discovering the case of State v.
Owens, 20 S.W.3d 634 (Tenn. 2000). However, at the time of the Petitioner’s guilty plea on January 18, 1999, the case
had not yet been decided. Therefore, the Petitioner’s counsel relied upon our decision, State v. David L. Owens, No.
02C01-9706-9706-CR-00204, 1998 W L 211795 (Tenn. Crim. App., Jackson, May 1, 1998), to advise his client.

                                                          -10-
concurrently for an effective sentence of fifteen to twenty-five years. Finally, the trial court
specifically found that “[t]here is no doubt in this Court’s mind that [the Petitioner] was advised he
had [the right to trial], thoroughly.” The Petitioner simply did not insist upon that right. Therefore,
the record does not preponderate against the trial court’s finding that the Petitioner’s counsel
rendered constitutionally adequate performance. Therefore, we conclude that this issue has no merit.


B. Voluntariness of Guilty Plea
        The Petitioner also contends that his guilty plea was not entered knowingly, intelligently, and
voluntarily. When a guilty plea is entered, a defendant waives certain constitutional rights, including
the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront
witnesses. Boykin v. Alabama, 395 U.S. 238, 243 (1969). “A plea of guilty is more than a
confession which admits that the accused did various acts; it is itself a conviction; nothing remains
but to give judgment and determine punishment.” Id. at 242. Thus, in order to pass constitutional
muster, a guilty plea must be voluntarily, understandingly, and intelligently entered. See id. at 243
n.5; Brady v. United States, 397 U.S. 742, 747 n.4 (1970). To ensure that a guilty plea is so entered,
a trial court must “canvass[] the matter with the accused to make sure he [or she] has a full
understanding of what the plea connotes and of its consequence[s].” Boykin, 395 U.S. at 244. The
waiver of constitutional rights will not be presumed from a silent record. Id. at 243.


        In State v. Mackey, 553 S.W.2d 337 (Tenn. 1977), the Tennessee Supreme Court set forth
the procedure for trial courts to follow in Tennessee when accepting guilty pleas. Id. at 341. Prior
to accepting a guilty plea, the trial court must address the defendant personally in open court, inform
the defendant of the consequences of a guilty plea, and determine whether the defendant understands
those consequences. See id.; Tenn. R. Crim. P. 11. A verbatim record of the guilty plea proceedings
must be made and must include, without limitation, “(a) the court’s advice to the defendant, (b) the
inquiry into the voluntariness of the plea including any plea agreement and into the defendant’s
understanding of the consequences of his entering a plea of guilty, and (c) the inquiry into the
accuracy of a guilty plea.” Mackey, 553 S.W.2d at 341.


        However, a trial court’s failure to follow the procedure mandated by Mackey does not
necessarily entitle the defendant to receive post-conviction relief. See State v. Prince, 781 S.W.2d
846, 853 (Tenn. 1989). Only if the violation of the advice litany required by Mackey or Tennessee
Rule of Criminal Procedure 11 is linked to a specified constitutional right is the challenge to the plea
cognizable in post-conviction proceedings. See Bryan v. State, 848 S.W.2d 72, 75 (Tenn. Crim.
App. 1992). “Whether the additional requirements of Mackey were met is not a constitutional issue
and cannot be asserted collaterally.” Johnson v. State, 834 S.W.2d 922, 925 (Tenn. 1992).


       To obtain post-conviction relief, the Petitioner has the burden of establishing by clear and
convincing evidence in the trial court that his guilty plea was entered involuntarily, unknowingly,
or unintelligently. The trial court noted that the trial judge who accepted the Petitioner’s plea


                                                  -11-
followed strict procedures with regard to informing a defendant of the charges, his rights, and the
consequences of the plea. The trial court also accredited the testimony of the Petitioner’s counsel
who stated that he advised the Petitioner thoroughly about the effects of entering an open plea. The
trial court also found that the Petitioner was undoubtedly “thoroughly” advised of his right to trial.
Although the transcript of the guilty plea proceeding is not part of the record on appeal, the Petitioner
bore the burden of bringing forth any evidence that would establish he was unaware of the full
import of his decision to plead guilty. The Petitioner did not do so. As such, the record does not
preponderate against the trial court’s finding that the Petitioner’s guilty plea was voluntarily entered.


C. Lack of Factual Basis for Guilty Plea
        Finally, the Petitioner alleges that the trial court lacked sufficient factual basis to accept the
Petitioner’s guilty plea for especially aggravated robbery. The Petitioner requests this Court to “set
aside the plea of guilty” pursuant to Rule 13 of the Tennessee Rules of Appellate Procedure, which
states as follows:
                Findings of guilt in criminal actions whether by trial court or jury
                shall be set aside if the evidence is insufficient to support the findings
                of the trier of fact of guilt beyond a reasonable doubt.


Tenn. R. App. P. 13(e).
         First, this Court has previously determined that lack of a factual basis for a guilty plea is not
a basis for post-conviction relief. See, e.g., Powers v. State, 942 S.W.2d 551, 555 (Tenn. Crim. App.
1996). Moreover, the Petitioner is again attempting to challenge the factual sufficiency of his
conviction. As we concluded in the Petitioner’s direct appeal, the Petitioner waived his right to
contest the sufficiency of the convicting evidence by entering a guilty plea:


                        A guilty plea conviction is based entirely upon the plea, and
                the plea constitutes a conviction in and of itself and is conclusive.
                Beaty v. Neil, 4 Tenn. Crim. App. 86, 467 S.W.2d 844, 847 (Tenn.
                Crim. App.1971). As a general rule, an accused who enters a plea of
                guilty to a criminal offense waives the right to appeal. Hobbs v. State,
                73 S.W.3d 155, 158 (Tenn. Crim. App. 2001). This rule is subject to
                a limited number of narrowly defined exceptions. Tenn. R. App. P.
                3(b)(2) states:

                       In criminal actions an appeal as of right by a defendant lies
                from any judgment of conviction entered by a trial court from which
                an appeal lies to the Supreme Court or Court of Criminal Appeals:
                        ....

                        (2) on a plea of guilty or nolo contendere, if the defendant

                                                  -12-
               entered into a plea agreement but explicitly reserved with the consent
               of the state and the trial court the right to appeal a certified question
               of law dispositive of the action, or if the defendant seeks review of
               the sentence and there was no plea agreement concerning the
               sentence, or if the issues presented for review were not waived as a
               matter of law by the plea of guilty or nolo contendere and if such
               issues are apparent from the record of the proceedings already had.

                      See also Tenn. R. [Crim.] P. 37(b). The Appellant’s appeal
               does not fall within any exception. The Appellant’s guilty plea in this
               case was an “open” plea, as provided by Rule 11(e)(1)(B) of the
               Tennessee Rules Criminal Procedure. As such, the issue presented
               was waived as a matter of law.

James Mario Starnes, 2003 WL 1094071, at *2. We again conclude that the Petitioner waived his
sufficiency claim by entering his guilty plea. As such, the Petitioner is not entitled to relief on this
issue.

                                             Conclusion

       Based upon the foregoing authorities and reasoning, we affirm the judgment of the trial court.



                                                               ______________________________
                                                               DAVID H. WELLES, JUDGE




                                                 -13-
