        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs June 29, 2010

             ROBERT CLAY PRIEST v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Blount County
                 No. C-17077    Jon Kerry Blackwood, Senior Judge


               No. E2009-02137-CCA-R3-PC - Filed September 14, 2010


The petitioner, Robert Clay Priest, who pleaded guilty in the Blount County Circuit Court to
multiple offenses and was sentenced to 29 years’ confinement, appeals from that court’s
dismissal of his petition for post-conviction relief. On appeal, he claims that he was mentally
incompetent to enter into a plea agreement, that the trial court failed to ask him to enter a
guilty plea, and that the post-conviction court erroneously excluded his expert witness. We
discern no error and affirm the order of the circuit court.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which N ORMA M CG EE
O GLE, J., joined. D. K ELLY T HOMAS, J R., J., not participating.

Robert L. Huddleston, Knoxville, Tennessee, for the appellant, Robert Clay Priest.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Michael L. Flynn, District Attorney General; and Tammy Harrington, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

              On November 13, 2006, the petitioner entered guilty pleas to counts of
especially aggravated robbery, aggravated robbery, aggravated burglary, attempted
aggravated kidnapping, and burglary. The circuit court imposed a total effective sentence
of 29 years. On December 14, 2007, the petitioner filed in the circuit court the petition for
post-conviction relief now at issue. The post-conviction court appointed counsel for the
petitioner and conducted an evidentiary hearing.

              A transcript of the petitioner’s competency and plea submission hearing was
exhibited to the post-conviction hearing. From the State’s rendering of a factual basis for the
pleas, we glean the following summary of the charged offenses:

                            [O]n May [25,] 2005, [the petitioner] along with
              Bobby Bain burglarized a house under construction located in
              the same area, prior to the burglary of the Teffeteller residence.
              ...

                             Sometime after that burglary, . . . Mr. Bain and
              [the petitioner] entered the home of Leslie and Betty Jane
              Teffeteller. That was done, according to [the petitioner], by
              breaking out a pane glass window in the back door . . . . [The
              victims testified at the preliminary hearing] that they were
              awakened by two individuals standing on either side of their
              beds, including Ms. Teffeteller[’s] saying that something was
              put to her head, which she was led to believe was a gun, and the
              statement was made demanding keys, money from both the
              Teffetellers.

                             A struggle ensued . . . . Mr. Teffeteller . . . began
              to combat his assailants [with a hammer]. There was quite a bit
              of injury to Mr. Teffeteller, as well as Mr. Bain and [the
              petitioner] were injured . . . . Mr. Teffeteller was able to fight
              off his assailants. [The petitioner] was in the kitchen with Betty
              Teffeteller, asked for money, which she gave him from her
              purse. And then, according to Ms. Teffeteller, he then attempted
              to tie her hands behind her back as they were leaving. But the
              rope – I should say the belt then fell away . . . . She was not
              restrained for any significant period of time.

                             After they left the residence, . . . they did try to
              gain access and take the Teffeteller’s van. An alarm went off,
              a neighbor came out and they fled the premises. [The petitioner]
              was later found on a pay phone at a gas station . . . [and] made
              spontaneous statements . . . that he didn’t mean to hurt them,
              that – basically admitted that he was there.

              In the post-conviction evidentiary hearing, the petitioner testified that he was
diagnosed with mental illness at the age of eight and had been in several mental hospitals
within the State of Tennessee including Vanderbilt, St. Francis, Moccasin Bend, Peninsula,

                                              -2-
Lakeshore, and Middle Tennessee Mental Health Institute. At the time of the post-conviction
proceeding, he was incarcerated in the Lois M. DeBerry Special Needs Facility (“Lois M.
DeBerry”) within the Tennessee Department of Correction.

               The petitioner testified that while incarcerated at Lois M. DeBerry, the
medication that he was taking, Risperdal, caused him to “trip” and made him “temporarily
insane.” He was taken off of this medication and refused to take his new medication,
Vistaril, because the drug caused him “more mental problems” than when he was without it.

               The petitioner testified that he pleaded guilty to the crimes because he was
“under a lot of stress” and that he had been intimidated by police officers in the county jail.
He also testified that his lawyer told him that if he did not take the plea, he would be charged
with possessing child pornography that had been found on his accomplice’s computer. The
petitioner stated that he did not clearly recall the day that he submitted his guilty plea. He
claimed that he remembered speaking with his lawyer but that most of his recollection came
from reading the transcript.

               He testified that he recalled his lawyer’s telling him that the lawyer did not
believe that the petitioner was competent to stand trial. He recalled the mental evaluation
done at Lakeshore, but he did not clearly recall the evaluation done at Vanderbilt that
concluded that he was competent to stand trial.

              The petitioner stated that he could not have been convicted of especially
aggravated robbery because there were no serious injuries or of the crime of “robbery
because robbery is the theft at the body of another.” The petitioner claims that he was
“railroaded due to the political clout that these victims had.” He testified that he changed his
mind about going to trial because the officers in the jail were having other inmates beat him
and were putting things in his food.

              The petitioner asked the court to allow him to withdraw the guilty pleas and
give him a trial on the merits.

              On cross-examination, the petitioner claimed that his lawyer “didn’t do what
he should have done.” He claimed he asked his lawyer to get him transferred to another jail
because the family of the victims worked there and tried to intimidate him. He claimed he
also asked his lawyer to get a change of venue “due to the publicity.”

             The petitioner testified that he was given copies of everything that his lawyer
had. He claimed, “I don’t remember nothing at the plea. I remember reading – I got all the
paperwork.” The petitioner testified that, as a result of the pleas, two cases pending in

                                              -3-
general sessions court for aggravated perjury and aggravated assault were dismissed.

                The petitioner’s trial counsel testified that he recalled the petitioner’s three-
month commitment to Lakeshore, as well as the subsequent determination by Vanderbilt that
the petitioner was neither insane nor incompetent and that he was malingering. Counsel
testified that he had 29 contacts with the petitioner and opined that the petitioner was able
to communicate effectively with counsel.

             Counsel testified that there was insufficient “tainting of the [jury] pool to do
a change of venue.”

                Counsel testified that the petitioner could have received a sentence of 53 years
if he had gone to trial and that the petitioner asked counsel to initiate plea negotiations with
the State. Counsel stated that the case against the petitioner was overwhelming and that the
only defense was insanity, based on the Lakeshore report. Counsel testified that the
petitioner thought it would be in his best interest to take the plea because the risks were too
great to go to trial. He testified that the risk of a poor outcome at trial was heightened by the
possibility that the jury would be sympathetic with the elderly victims whose home was
invaded. Counsel also testified that the petitioner said that he wanted to go from jail to
prison because it would be “nicer.”

              The evaluative reports from Lakeshore and Vanderbilt were exhibited to the
post-conviction hearing.

              The post-conviction court entered written factual findings and conclusions of
law. The court found that trial counsel had obtained a pretrial mental evaluation of the
petitioner which resulted in Lakeshore’s determinations that he was incompetent to stand trial
and that a defense of insanity could be supported. The State requested further pretrial
evaluation, and the trial court ordered an evaluation at Vanderbilt which resulted in
determinations that the petitioner was competent to stand trial and that a defense of insanity
was unsupportable.

               The post-conviction court further found that the petitioner was not a credible
witness. It found that trial counsel “recognized the need for a mental evaluation of petitioner
and took all appropriate steps to pursue a defense based upon a mental condition.” The court
found that trial counsel conducted numerous interviews of the petitioner and believed him
to be lucid and to understand the proceedings. The court found that trial counsel provided
the petitioner with copies of the discovery materials and discussed with the petitioner the
possibilities for trial strategy, including the use of an insanity defense. The court found that
no undue publicity had occurred that would have warranted a change of venue. Finding that

                                               -4-
the petitioner requested his counsel to pursue plea negotiations, trial counsel obtained a plea
offer that entailed the reduction of the Class A felony charge of especially aggravated
robbery to a Class B felony with a release eligibility of 30 percent. The court found that the
plea colloquy was thorough and detailed.

               Based upon these findings, the post-conviction court concluded that the pleas
were knowingly and voluntarily entered and that the petitioner received the effective
assistance of trial counsel. From this determination, the petitioner filed a timely appeal.

               On appeal, the petitioner claims that his diminished mental capacity invalidated
his guilty pleas as a matter of due process of law, that the guilty pleas were not effectively
submitted, and that the post-conviction court erred in disallowing expert testimony about the
adequacy of the conviction court’s inquiry into the petitioner’s competency to submit guilty
pleas.

               The post-conviction petitioner bears the burden of proving his or her
allegations by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006). On appeal, the
appellate court accords to the post-conviction court’s findings of fact the weight of a jury
verdict, and these findings are conclusive on appeal unless the evidence preponderates
against them. Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973
S.W.2d 615, 631 (Tenn. Crim. App. 1997). The appellate court defers to the post-conviction
court’s resolution of credibility issues. See Massey v. State, 929 S.W.2d 399, 403 (Tenn.
Crim. App. 1996); Taylor v. State, 875 S.W.2d 684, 686 (Tenn. Crim. App. 1993). By
contrast, the post-conviction court’s conclusions of law receive no deference or presumption
of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).

              First, we address the petitioner’s claim that, based upon his diminished mental
capacity, principles of due process precluded the entry of valid guilty pleas. He posits that
the transcripts of the pre-plea competency hearing and the post-conviction evidentiary
hearing evince his incompetency at the time the pleas were submitted.

               Our supreme court, in setting forth the standard for identifying a
constitutionally valid guilty plea, has noted that “before a trial judge can accept a guilty plea,
there must be an affirmative showing that it was given intelligently and voluntarily.” State
v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999) (citing Boykin v. Alabama, 395 U.S. 238, 242
(1969)). Our high court has noted that “a plea is not ‘voluntary’ if it is the product of
‘[i]gnorance, incomprehension, coercion, terror, inducements, [or] subtle or blatant threats,’”
Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Boykin, 395 U.S. at
242-43), or if the defendant was “incompetent or otherwise not in control of his mental
facilities” when the plea was entered, id. “It is a fundamental principle of our system of

                                               -5-
criminal justice that one who is charged with a crime cannot be required to plead to the
offense, be put to trial, convicted, or sentenced while insane or otherwise mentally
incompetent.” Berndt v. State, 733 S.W.2d 119, 121 (Tenn. Crim. App. 1987) (citing Pate
v. Robinson, 383 U.S. 375 (1966); Drope v. Missouri, 420 U.S. 162 (1975); State v. Stacy,
556 S.W.2d 552 (Tenn. Crim. App. 1977); Mackey v. State, 537 S.W.2d 704 (Tenn. Crim.
App. 1975)). “The conviction of an accused while mentally incompetent violates the basic
concepts of the Due Process Clause of the Fourteenth Amendment to the United States
Constitution. Such a conviction also violates Article I, Section 8 of the Tennessee
Constitution.” Berndt, 733 S.W.2d at 122 (internal citations omitted). Furthermore,

              The standard for determining the competency of an accused to
              stand trial, i.e. the capacity to understand the nature and object
              of the proceedings, consult with counsel, and assist in the
              preparation of his or her defense, is the same standard to be
              applied in determining the competency of an accused to plead
              guilty or nolo contendere. A person who has been found
              competent to stand trial has the requisite mental competence to
              waive his or her rights and enter a plea of guilty or nolo
              contendere. This is the prevailing view in this country.

Id. at 123.

               First, we address the claim that the petitioner’s testimony in the post-conviction
hearing supports the claim of his mental debility at the time of plea submission. On this
point, we must defer to the post-conviction court’s resolution of credibility issues, and in this
case, the post-conviction court found that the petitioner was not credible.

               Second, we remind the petitioner that the proceeding below was not a direct
action to obtain leave to withdraw his guilty pleas; it was a post-conviction proceeding. As
such, the petitioner bore the burden of establishing his claims by clear and convincing
evidence. See State v. Antonio Demonte Lyons, No. 01C01-9508-CR-00263 (Tenn. Crim.
App., Nashville, Aug. 15, 1997) (distinguishing between challenges to guilty pleas brought
through a petition for post-conviction relief, on the one hand, and through a motion to
withdraw a guilty plea via Tennessee Rule of Criminal Procedure 32(f), on the other, and
stating that the standards for a Rule 32(f) avoidance of a guilty plea are less stringent than
the standard for post-conviction proceeding). Other than the evaluative reports from
Lakeshore and Vanderbilt, which essentially are in conflict, and the petitioner’s testimony
in the pre-plea competency hearing, no credible evidence of record really addresses the issue.
Although the record shows that the petitioner amassed a long history of mental health
treatment, the extensive Vanderbilt report, issued just a week prior to the competency and

                                               -6-
plea submission hearing, diagnosed the petitioner as a malingerer who exhibited merely an
antisocial personality disorder with borderline traits and who was competent to stand trial and
who appreciated the nature and wrongfulness of his criminal conduct. From our review of
the transcript of the trial court’s voir dire of the petitioner for the purpose of determining his
competency to waive his rights and submit a guilty plea, we cannot say that the court’s
conclusion that the petitioner was competent is unsupported in the record. Under the
circumstances of this case, we agree with the post-conviction court that the petitioner failed
to establish by clear and convincing evidence that he was not competent to validly waive his
constitutional rights and enter guilty pleas.

               In the petitioner’s next issue, he claims that his convictions are invalid because
the trial court failed to ask him in the plea-submission hearing whether he in fact was
pleading guilty to the charges.

              Unfortunately for the petitioner, this issue recently has been settled by our
supreme court. In Jeffery Aaron Lane v. State, --- S.W.3d ---, No. E2007-00032-SC-R11-PC
(Tenn., Knoxville, July 14, 2010), the court held that, when a trial court “substantially
complied with the federal and Tennessee guilty plea mandates with its questions and the
defendant affirmatively answered these questions,” a valid, knowing, voluntary, and
intelligent guilty plea resulted despite that the trial court did not specifically ask the
defendant whether he was pleading guilty. Id. at ---, slip op. at 14.

              In the present case, we hold that the trial court substantially complied with the
law in questioning and advising the petitioner concerning his plea agreement.1

              In his final issue, the petitioner asserts that the post-conviction court erred in
disallowing the expert testimony of an attorney concerning the adequacy of the trial court’s
pre-plea competency hearing.

               We decline to review the issue because the petitioner did not comply with
Tennessee Rule of Evidence 103; the petitioner did not proffer the testimony of the attorney
expert. “Error may not be predicated upon a ruling which . . . excludes evidence unless a
substantial right of the party is affected, and . . . the substance of the evidence and the
specific evidentiary basis supporting admission were made known to the court by offer or
were apparent from the context.” Tenn. R. Evid. 103(a)(2). In the present case, counsel for
the petitioner merely described the purpose of the proposed testimony in stating that it


        1
         In so holding, we do not wish to imply that non-constitutional elements in a plea litany may ipso
facto form the basis for a post-conviction claim. See T.C.A. § 40-30-103; see also, e.g., Casey Skelton v.
State, No. E2007-02818-CCA-R3-CD (Tenn. Crim. App., Knoxville, Aug. 28, 2008).

                                                   -7-
“would address the sufficiency of [the trial judge’s] questioning in order to assess the
competency of [the petitioner] on the day of the plea.” Lacking a proffer of the expert
testimony, we cannot discern how or to what extent the proposed testimony would have
addressed the sufficiency of the competency hearing, whether it would have substantially
assisted the post-conviction court, see Tenn. R. Evid. 702, or whether the facts or data
utilized by the proposed expert met the requirements of Tennessee Rule of Evidence 703.
Also, we cannot know without a proffer whether some issue, unrevealed in the competency
hearing, could have emerged through the proposed expert and altered the perception of the
competency inquiry. Accordingly, error may not be predicated upon the exclusion of this
evidence.

               At any rate, we doubt that a substantial right of the petitioner was at stake as
required by Rule 103(a). The post-conviction court and this court have both reviewed the
transcript of the competency hearing and the evaluative reports. As we noted above, the
record evinces a basis for the trial court’s determination of competency.

              In view of the foregoing analysis, we affirm the order of the post-conviction
court.


                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




                                              -8-
