         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON

                        JANUARY 1998 SESSION
                                                    FILED
                                                     March 12, 1998

                                                   Cecil Crowson, Jr.
MICHAEL ALLEN UNDERWOOD,         )                  Appellate C ourt Clerk
                                 )    NO. 02C01-9701-CR-00032
      Appellant,                 )
                                 )    SHELBY COUNTY
VS.                              )
                                 )    HON. W. FRED AXLEY,
STATE OF TENNESSEE,              )    JUDGE
                                 )
      Appellee.                  )    (Post-Conviction)



FOR THE APPELLANT:                    FOR THE APPELLEE:

DAVID M. LIVINGSTON                   JOHN KNOX WALKUP
111 West Main Street                  Attorney General and Reporter
Brownsville, TN 38012
                                      KENNETH W. RUCKER
                                      Assistant Attorney General
                                      Cordell Hull Building, 2nd Floor
                                      425 Fifth Avenue North
                                      Nashville, TN 37243-0493

                                      WILLIAM L. GIBBONS
                                      District Attorney General

                                      TERRELL L. HARRIS
                                      Assistant District Attorney General
                                      201 Poplar Street, Suite 301
                                      Memphis, TN 38103-1947




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                         OPINION



       The petitioner, Michael Allen Underwood, appeals the trial court's denial

of post-conviction relief. The trial court found the state met its burden of proving

by clear and convincing evidence the petitioner knowingly and voluntarily pled

guilty to various offenses. The judgment of the trial court is affirmed.



                                             I.



       In September 1986, the petitioner pled guilty to two (2) counts of burglary

and one (1) count of receiving stolen property. He was sentenced to concurrent

four (4) year sentences for the burglary charges and one (1) year for receiving

stolen property.

       In 1988, the petitioner filed a post-conviction petition alleging his guilty

pleas were not knowingly and voluntarily entered and were constitutionally infirm

since he was not advised of certain constitutional rights. The trial court held a

hearing in June 1992, and found the pleas to be valid. This Court remanded for

a harmless error analysis as outlined in Johnson v. State, 834 S.W.2d 922

(Tenn. 1992). Michael Allen Underwood v. State, C.C.A. No. 02C01-9207-CR-

00163, Shelby County (Tenn. Crim. App. filed June 2, 1993, at Jackson).

Specifically we found the trial court improperly placed the burden of proving the

pleas were involuntary or unknowing upon the petitioner instead of the state.

       The trial court subsequently reviewed the record and concluded any

previous errors were harmless because the evidence showed clearly and

convincingly that the petitioner was aware of his constitutional rights at the time

his pleas were entered.1 That ruling is the basis of this appeal.




       1
           No new proof was heard by agreement of the parties.

                                             2
                                          II



       The United States Supreme Court in Boykin v. Alabama, 395 U.S. 238,

244, 89 S.Ct. 1709, 1713, 23 L.Ed.2d 274 (1969), held that defendants must

waive certain rights in order for their decision to plead guilty to be considered

knowing and voluntary. These rights include the right to a jury trial, the right to

confront witnesses, and the right against self-incrimination. Id. These rights

cannot be validly waived without an intentional relinquishment, which cannot be

presumed from a silent record. Id. To ensure guilty pleas are entered

“knowingly and intelligently,” Boykin instructs the trial court to discuss with the

accused the consequences of the decision. 395 U.S. at 244, 89 S.Ct. at 1712.

       When a trial court fails to advise an accused of these rights, the burden

shifts to the state to prove a constitutional plea. Johnson v. State, 834 S.W.2d at

925. The failure does not, in and of itself, entitle the defendant to relief,

however. Id. The state may prove by clear and convincing evidence either

substantial compliance with the advice requirement by showing the petitioner

was made aware of his constitutional rights, or that the petitioner independently

knew of his constitutional rights, rendering the trial court’s omission harmless.

Id.

       The standard for determining substantial compliance or harmless error

necessarily requires inquiry into circumstantial factors surrounding the plea.

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993), (citing Caudill v. Jago,

747 F.2d 1046, 1052 (6th Cir. 1984)). The relative intelligence of the defendant,

the degree of his familiarity with criminal proceedings, the opportunity to confer

with competent counsel regarding plea options, the extent of advice from counsel

and the court regarding the charges faced, and the desire to avoid a greater

punishment resulting from a jury trial are all relevant factors a court could use to

find a “knowing” and “intelligent” plea. Blankenship, 858 S.W.2d at 904.




                                          3
                                           III.



       The Tennessee Supreme Court established guidelines for reviewing guilty

pleas in State v. Neal, 810 S.W.2d 131 (Tenn. 1991). The Court held that

“absolutely literal compliance with the advice to be given is not required.” Id. at

137. “Substantial compliance” would suffice as long as the “sense of the

substance of the required advice . . . is [expressed to an accused prior to a plea

of guilty].” Id.

       Blankenship v. State presented our Supreme Court with a nearly identical

situation to the case sub judice. Blankenship entered guilty pleas without being

explicitly forewarned that he had a right not to incriminate himself. 858 S.W.2d

at 899. The pleas were found in all other aspects to be “knowing” and

“voluntary.” Id. The Court found, based on federal law as well as its decision in

Neal, a failure to precisely recite the three “Boykin rights” does not automatically

entitle a petitioner to relief from the effects of prior guilty pleas. Id. at 905.2 The

omission of advice regarding the right against self-incrimination was found to be

“at most, harmless” under the facts and circumstances of the case. Id.



                                           IV.



       Upon remand, the trial court in this case found the state proved by clear

and convincing evidence the petitioner was aware of his rights and, accordingly,

ruled the guilty pleas knowing and voluntary.

       Specifically, the trial court found the petitioner pled guilty to similar crimes

four (4) years prior to the pleas in the present case. At that time the petitioner

was advised of his right to plead not guilty and go to trial, right to counsel, right to

cross-examine witnesses, call witnesses on his own behalf, and appeal. In

addition he executed a written waiver of various rights. A similar written waiver


       2
        The opposite is also true; simply enumerating the three rights, without more, will
not establish the pleas were voluntarily and knowingly entered. Blankenship, 858 S.W.2d
at 905.

                                            4
was executed by petitioner upon entry of the subject guilty pleas. The trial court

found the petitioner to be less than credible and quoted numerous

inconsistencies in his testimony. The trial court further noted the petitioner had

graduated from high school and attended some college. When it examined the

evidence as a whole, the trial court concluded the state had met its burden of

proving by clear and convincing evidence substantial compliance and harmless

error regarding the advice requirements.



                                          V.



         The trial judge's findings of fact on post-conviction hearings are conclusive

on appeal unless the evidence preponderates otherwise. Butler v. State, 789

S.W.2d 898, 899-900 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 354

(Tenn. Crim. App. 1995). The trial court’s findings of fact are afforded the

weight of a jury verdict, and this Court is bound by the trial court’s findings unless

the evidence in the record preponderates against those findings. Henley v.

State,      S.W.2d       (Tenn. 1997); Dixon v. State, 934 S.W.2d 69, 72 (Tenn.

Crim. App. 1996). This Court may not reweigh or reevaluate the evidence, nor

substitute its inferences for those drawn by the trial judge. Henley v. State,

S.W.2d at       ; Massey v. State, 929 S.W.2d 399, 403 (Tenn. Crim. App. 1996);

Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Questions

concerning the credibility of witnesses and the weight and value to be given to

their testimony are resolved by the trial court, not this court. Henley v. State,

S.W.2d at       ; Black v. State, 794 S.W.2d at 755. The burden of establishing

that the evidence preponderates otherwise is on petitioner. Henley v. State,

S.W.2d at       ; Black v. State, 794 S.W.2d at 755.



         We find the evidence does not preponderate against the trial court’s

findings; therefore, the judgment of the trial court is AFFIRMED.




                                           5
                                     __________________________
                                     JOE G. RILEY, JUDGE




CONCUR:



______________________________
JOE B. JONES, PRESIDING JUDGE




______________________________
PAUL G. SUMMERS, JUDGE




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