         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs March 8, 2005

        MATTHEW MELTON JACKSON v. STATE OF TENNESSEE

                     Appeal from the Circuit Court for Robertson County
                      Nos. 01-0022; 01-0086   Michael R. Jones, Judge



                     No. M2004-01342-CCA-R3-PC - Filed May 18, 2005


The petitioner, Matthew Melton Jackson, appeals as of right the dismissal of his petition for post-
conviction relief by the Robertson County Circuit Court. He seeks relief from his convictions for
two counts of aggravated rape, one count of aggravated kidnapping, one count of aggravated robbery,
and effective sentence of twenty-five years. The petitioner contends that he received the ineffective
assistance of counsel and that his guilty pleas were not voluntary or knowing. We affirm the
judgment of the trial court.

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

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
NORMA MCGEE OGLE, JJ., joined.

William F. Kroeger, Springfield, Tennessee, for the appellant, Matthew Melton Jackson.

Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General;
John Wesley Carney, Jr., District Attorney General; and B. Dent Moriss, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

         Two multi-count indictments were returned against the petitioner charging him with two
counts of aggravated rape, a Class A felony, and one count of aggravated kidnapping, a Class B
felony, in one indictment and with one count of aggravated robbery, a Class B felony, and one count
of theft over $500, a Class E felony, in the other indictment. Pursuant to a plea agreement, he pled
guilty to all five offenses, with the sentence lengths to be determined by the trial court but to be
served concurrently with each other. Following a sentencing hearing, the trial court imposed
sentences of twenty-five years for each aggravated rape conviction, twelve years for the aggravated
kidnapping conviction, ten years for the aggravated robbery conviction, and two years for the theft
conviction, for an effective sentence of twenty-five years to be served at one hundred percent. His
sentence was affirmed on appeal. State v. Matthew Melton Jackson, No. M2001-01999-CCA-R3-
CD, Robertson County, slip op. (Tenn. Crim. App. Feb. 7, 2003). However, the petitioner failed to
include a transcript of his guilty plea hearing in the appellate record, and this court noted that the
omission of the transcript particularly hindered review of the sentences. Id. at 6.

        The underlying facts are taken from the opinion on appeal: The petitioner accosted the two
victims as they were leaving their job at a video store. The petitioner pointed a pistol at them, forced
them to open the store’s safe, and put the money in a bag. The petitioner then motioned the two
women into the ladies restroom, but changed his mind and ordered one to accompany him to the
other side of the store. He warned the second victim to stay in the restroom and made the first victim
undress at gunpoint. The petitioner raped the first victim two times, first with the barrel of his gun
and then with his penis, using a small plastic bag as a makeshift condom. During the assault,
Springfield Police Sergeant Ricky Morris drove into the store’s parking lot while on routine patrol.
The petitioner saw the police car and fled the store. The police officers searched the immediate area
and captured the petitioner behind the store shortly thereafter. The officers recovered the pistol used
to commit the crimes and $746.26 in cash. See id. at 3-4.

        The petitioner filed a petition for post-conviction relief alleging that his guilty pleas were
involuntary and unknowing because he was unaware of the constitutional rights he was waiving at
the time he entered his pleas. He also alleged that he received the ineffective assistance of counsel
in that his attorney failed to investigate the facts of his case properly, communicate with him, and
prepare adequately for trial. He argued that the attorney also failed to provide the appellate court
with a complete record and failed to argue that the trial court erred by using a juvenile conviction
to enhance his sentence.

        At the post-conviction hearing, the petitioner testified that his attorney was appointed to
represent him in January 2001. He said they did not discuss the statements he made to the police
after his arrest. He said that he informed his attorney that he was intoxicated at the time he was
arrested and interrogated but that his attorney did not file a motion to suppress his statements. He
recalled meeting with his attorney only two times for a total of twenty minutes, once in February and
again in May. He said his attorney met him in February to tell him that tests performed by the state
matched his DNA with that in the semen recovered from the rape victim. He said he saw his
attorney the second time on May 15, 2001, the day before his trial was scheduled to begin. He said
he discussed the plea agreement with his attorney once, on May 15, and pled guilty the next day. He
said that his attorney did not inform him he could refuse to accept the plea agreement and that if he
had known he could file a motion to suppress his statements to the police and go to trial, he would
not have pled guilty. He said he was also unaware that there was a possibility his aggravated
kidnapping conviction could have been merged with the aggravated robbery or aggravated rape
convictions. He said he learned later that theft is a lesser included offense of robbery and that under
the circumstances in his case, he could not be convicted of both offenses. He said that he did not
have an opportunity to discuss with his attorney the joyriding conviction which occurred while he
was a juvenile and that he had no contact with his attorney during the pendency of his appeal. He
said his attorney never discussed with him the possibility of going to trial and did not file any
motions, which forced him to file motions. He said his attorney acquired the facts of his case from


                                                  -2-
the news media and radio broadcasts. He said his attorney handled his appeal improperly by failing
to give the appellate court a complete record.

         The petitioner recalled that the trial court informed him during the plea hearing that he had
a right to have a jury trial but that there would be no trial if he pled guilty. He said he was unaware
pleading guilty would result in his not having a jury trial. He recalled that he had a private
conversation with his attorney when the trial court brought this to his attention at the plea hearing
and that his attorney then instructed him to answer yes, “just for court purposes,” to all questions
asked by the trial judge that day. He said he was also unaware he was entering guilty pleas at the
plea hearing. He said he thought the purpose of the hearing was to order that a psychological
evaluation be performed on him to adjudge his mental competency for trial. He said he also did not
know the purpose of the sentencing hearing. He said he understood sentencing, but he thought the
purpose of the hearing was to present the results of the psychological evaluation, not sentence him.
Regarding his case, he claimed his attorney presented him with three options: accept the prosecutor’s
plea agreement, plead for mercy from the trial court, or petition the governor for a pardon. He said
he informed his attorney that he was not interested in any plea agreement.

        The petitioner said that his attorney was unaware of the facts of his case and that this became
evident when the attorney presented the factual basis for the charges to the trial court at the plea
hearing. He said his attorney made the following misstatements to the trial court: The petitioner was
apprehended in a store or café, when in fact he was caught in the grass by the highway; the petitioner
was charged with robbing a Blockbuster Video Store, when he robbed a Video Checkout Store; the
pistol was recovered from the money bag the petitioner threw over a fence, when the pistol was
actually recovered from the petitioner’s pants pocket; the petitioner locked one of the victims in the
storeroom during the rape, when he actually placed her in the bathroom and the door was unlocked;
the petitioner took the rape victim to the front of the store to rape her, when he actually took her to
the rear of the store; and other factual misstatements. The petitioner said he was diagnosed as being
“psychopathologic” during his childhood. He said his attorney told him he would contact his mother
to acquire his medical records and arrange for her to testify. He said his attorney misstated his
condition to the trial court as “schizophrenic,” however, and never contacted his mother.

         On cross-examination, the petitioner testified that he attended college for three years and
studied business management. He acknowledged reading the transcript of the guilty plea hearing but
iterated that he did not understand all of the trial court’s questions. He said that he understood when
the trial court asked him if he was guilty of aggravated rape but that he did not know he was pleading
guilty when he answered affirmatively. He said his attorney instructed him to answer yes to
whatever question the trial judge posed because “if [he] was found guilty, then it’d look good
because [he] had admitted in open court to the charge.” He said that he did not lie during the plea
hearing but admitted that he did not tell the truth. He also admitted he knew he was being sentenced
at the sentencing hearing. Shown the guilty plea petition, the petitioner acknowledged that the
signature on it was his but claimed that he did not read the document and that it was not completely
filled out when he signed it. He said that the sexual penetration of the victim was consensual and



                                                 -3-
that he did not rape her. However, he admitted he had not met the victim before their encounter at
the video store.

        The petitioner’s attorney testified that he was appointed to represent the petitioner in January
2001. He said he interviewed the officers involved with the petitioner’s arrest but not the victims.
He said identification of the petitioner was not an issue in his case because the petitioner was
apprehended shortly after the crime was committed and gave a multiple-page confession to the
police. He said that the petitioner never informed him he was intoxicated at the time of his arrest
or interrogation by the officers but that if he had, a motion to suppress may have been proper. He
said no evidence received from the officers, the victims, or the petitioner indicated that the petitioner
was intoxicated at that time. He said that he met with the petitioner four or five times for a total of
two to three hours. He said the DNA test results indicated the petitioner’s DNA was on the gun and
the plastic bag used as a condom during the rape. He said he and the petitioner discussed the
evidence and the facts of the case. He said the case became a matter of acquiring the most favorable
settlement for the petitioner because the DNA test results linked the petitioner to the weapon and the
victim, the petitioner was “caught in the act,” and he confessed to committing the robbery in his
statements to the police. He said that the petitioner asked him to negotiate a plea agreement and that
on the morning the trial was scheduled to begin, an agreement was negotiated. He said the petitioner
was given until the next day to decide whether to accept the state’s offer. He said as a special
condition in the agreement, the petitioner’s mental competence would be determined by a medical
doctor before the plea agreement became valid. He said he informed the petitioner that a jury trial
was one option but that the charged offenses involved mandatory penitentiary time. He said that the
petitioner wanted a deal which gave him concurrent sentences and that he eventually got what he
wanted.

         The petitioner’s attorney admitted that he did not discuss the possibility of merging the
kidnapping conviction into the robbery or rape convictions and said that the merger would not matter
because the petitioner would get a “free kidnapping” with concurrent sentencing. He admitted that
having one less felony conviction on the petitioner’s record could be advantageous for him at some
point but said that it was immaterial to his sentence in this case. He denied telling the petitioner to
answer “yes” to whatever question the trial court asked him. He also denied telling the petitioner
that his answers to the trial court did not matter because they were “just for court purposes.” He said
that he explained to the petitioner he was pleading guilty and that the petitioner understood what he
was doing. He admitted the charge of theft should have been dismissed as a lesser included offense
of the robbery. He explained that he probably missed that issue because, like the merging of the
kidnapping conviction, it was another “free ride” in that he was “pleading guilty to something but
getting no punishment.” However, he acknowledged that having an additional felony conviction on
one’s criminal record could be considered punishment. He also admitted he made numerous
mistakes when relating the factual basis at the plea hearing but offered no explanation. Regarding
the petitioner’s prior conviction for joyriding, he recalled the offense was a misdemeanor but did not
recall the petitioner telling him he was a juvenile at the time of the offense. He said the trial court
gave the conviction little weight in sentencing. As for the petitioner’s appeal, he said only
sentencing issues could be argued. He explained he did not include the plea hearing transcript in the


                                                  -4-
record on appeal because he believed the information in it was irrelevant. He said that because the
review was de novo, the appellate court did not require the plea hearing transcript unless it concluded
the trial court erred and had to assume the sentencing function, which it did not.

         On cross-examination, the petitioner’s attorney denied that the petitioner ever told him his
sexual contact with the victim was consensual but said that instead, the petitioner initially denied it
happened at all. He said that he read the transcript of the petitioner’s confession to the police and
that it contained nothing to make him suspect the petitioner was intoxicated. He said he telephoned
the petitioner’s mother, who refused to testify. He said that he would have tried the case if the
petitioner and the prosecutor had not been able to reach an agreement but conceded that he would
have needed a few more days to prepare because he believed the case should settle. He said that his
primary objective in negotiating the plea agreement was avoiding any consecutive sentences, which
would have made possible a punishment range of thirty-eight to sixty-two years. He said the
petitioner had no viable defense strategy, considering his twenty-page confession, the recovery of
the weapon and money, and the DNA test results linking the petitioner with the gun and the victim.

         After considering the testimony and the evidence presented, the trial court concluded that the
attorney’s misstatement of the facts did not affect the voluntariness of the petitioner’s guilty pleas.
The trial court found “incredible” the petitioner’s claim he was unaware he was pleading guilty at
the plea hearing. It also found that the petitioner was adequately advised of the nature of the charges
and possible sentences; that he was advised of his constitutional rights and subsequently waived
them; that he was aware that a jury trial was not forthcoming following his pleas of guilty; and that
the trial court did not violate any procedural requirements, including Rule ll, Tenn. R. Crim. P., in
accepting the guilty pleas. The trial court determined that the petitioner’s theft conviction should
be set aside as a lesser included offense of aggravated robbery and found that the petitioner’s
attorney was not informed that the petitioner’s offense of joyriding occurred while he was a juvenile.
From the trial court’s perspective, the most serious allegation in the petition was the attorney’s
failure to include the plea hearing transcript in the record on appeal. However, the trial court found
that the petitioner failed to establish that his appeal would have been successful but for the omission
of the transcript or to present any legal authority that the enhancement and mitigating factors were
not properly applied at his sentencing. As for the possibility of merging the aggravated kidnapping
conviction into his conviction for aggravated rape, the trial court found the petitioner failed to
establish that an issue existed under State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). It found that
placing the second victim in the bathroom was separate and apart from the rape of the first victim
and, thus, that an Anthony issue did not exist. In conclusion, the trial court found that the petitioner
failed to prove that his guilty pleas were not voluntary and intelligent or that he received the
ineffective assistance of counsel.

        On appeal, the petitioner contends that the ineffective assistance of counsel received during
the plea negotiations, combined with the trial court’s failure to adhere to the requirements set forth
in Rule 11, Tenn. R. Crim. P., and State v. Mackey, 553 S.W.2d 337 (Tenn. 1997), rendered his
guilty pleas unknowing, involuntary and unintelligent. He also contends that he received the
ineffective assistance of counsel during his appeal which warrants a new trial in his case. The state


                                                  -5-
contends that the petitioner’s guilty pleas were knowing and voluntary and that he received the
effective assistance of counsel pre-trial and on appeal.

                       I. INEFFECTIVE ASSISTANCE OF COUNSEL

        In order for a petitioner to succeed on a post-conviction claim, the petitioner must show the
allegations set forth in his petition by clear and convincing evidence. T.C.A. § 40-30-210(f). A trial
court’s findings of fact in a post-conviction hearing are conclusive on appeal unless the evidence in
the record preponderates against those findings. See Butler v. State, 789 S.W.2d 898, 899 (Tenn.
1990). However, we review the trial court’s conclusions of law, such as whether counsel’s
performance was deficient or whether that deficiency was prejudicial, under a de novo standard.
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). Post-conviction relief may only be given if a
conviction or sentence is void or voidable because of a violation of a constitutional right. T.C.A.
§ 40-30-203.

        Under the Sixth Amendment, when a claim of ineffective assistance of counsel is made, the
burden is on the petitioner to show that (1) counsel’s performance was deficient, and (2) the
deficiency was prejudicial in terms of rendering a reasonable probability that the result of the trial
was unreliable or the proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838,
842-44 (1993). In other words, a showing that counsel’s performance fell below a reasonable
standard is not enough; rather, the petitioner must also show that but for the substandard
performance, “the result of the proceeding would have been different.” Strickland, 466 U.S. at 694,
104 S. Ct. at 2068. The Strickland standard has been applied to the right to counsel under article I,
section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).
When a petitioner claims that ineffective assistance of counsel resulted in a guilty plea, the petitioner
must prove that counsel performed deficiently and that but for counsel’s errors, the petitioner would
not have pled guilty and would have insisted upon going to trial. Hill v. Lockhart, 474 U.S. 52, 59,
106 S. Ct. 366, 370 (1985).

       In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that
attorneys should be held to the general standard of whether the services rendered were within the
range of competence demanded of attorneys in criminal cases. The court stated that the range of
competence was to be measured by the duties and criteria set forth in Beasley v. United States, 491
F.2d 687, 696 (6th Cir. 1974), and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir.
1973). Also, in reviewing counsel’s conduct, a “fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982).




                                                  -6-
                                          A. The Guilty Pleas

        The petitioner contends that he received the ineffective assistance of counsel during plea
negotiations, thereby rendering his guilty pleas unknowing, involuntary, and unintelligent. In
support of this contention, he points to his attorney’s numerous misstatements while relating the
factual basis to the trial court at the plea hearing and to the fact that his attorney allowed him to plead
guilty to theft, a lesser included offense of another offense to which he pled guilty. He argues that
his attorney failed to inform him of the possibility that his aggravated kidnapping conviction may
have merged into either the aggravated rape or aggravated robbery conviction and that, but for
counsel’s failure to advise him of “all the possibilities,” he would not have pled guilty.

        As for counsel’s misstatements while relating the factual basis for the petitioner’s guilty pleas
to the trial court, the record reflects that none of his statements concerned material facts. The
petitioner’s guilt of the offenses was not based in any part on the name of the video store or whether
he was apprehended in a café or a field of grass. Also, it was not material whether the petitioner
raped the victim in the front or rear of the store, whether the kidnapping victim was confined or
locked in a storeroom or bathroom, or whether the pistol used to commit the rape was recovered
from the money bag or the petitioner’s pocket. The petitioner has failed to demonstrate prejudice.

         Regarding the petitioner’s conviction for theft, the trial court found the petitioner was correct
in that his guilty plea to theft was unwarranted because it was a lesser included offense of the robbery
charge. The trial court ordered that the theft conviction be set aside and an amended judgment be
entered dismissing the theft count in the plea settlement. We fail to see how these circumstances
prejudiced the petitioner relative to his other guilty pleas.

         As for the possibility that his aggravated kidnapping conviction may have been merged into
either the aggravated rape or aggravated robbery convictions, we conclude that counsel’s explanation
why this was not pursued does not reflect adequate performance. However, we conclude the
petitioner was not prejudiced by counsel’s deficiency. In State v. Dixon, 957 S.W.2d 532, 534-35
(Tenn. 1997), our supreme court explained that “[t]he Anthony decision should only prevent the
injustice which would occur if a defendant could be convicted of kidnapping where the only restraint
utilized was that necessary to complete the act of rape or robbery,” and “any restraint in addition to
that which is necessary to consummate rape or robbery may support a separate conviction for
kidnapping.” One commits aggravated kidnapping who knowingly removes or confines another so
as to interfere substantially with the other’s liberty and to facilitate the commission of a felony, flight
thereafter, or with the intent to inflict serious injury on the victim or another. See T.C.A. § 39-13-
304. The kidnapping of the second victim by placing her in the bathroom was not necessary to
complete the act of raping the first victim and, because it occurred after the petitioner removed the
money from the safe, it was not necessary to complete the act of robbery. The petitioner did not
receive the ineffective assistance of counsel relative to his guilty pleas.




                                                   -7-
                                            B. The Appeal

        The petitioner contends that he also received the ineffective assistance of counsel on appeal
because his attorney failed to include the guilty plea hearing transcript in the appellate record and
failed to argue that the trial court erred by considering his juvenile conviction during sentencing.
The state responds that the attorney’s choice not to include the plea hearing transcript was a tactical
decision which this court should not second guess and that the petitioner failed to show that his
attorney knew he was a juvenile at the time he committed the offense. The state contends that the
petitioner also failed to show that the trial court was prohibited from using the joyriding conviction
to enhance his sentence in the event he was a juvenile at the time and that even if his counsel’s
performance was deficient, the petitioner failed to demonstrate that he suffered prejudice as a result.

         As previously noted, this court observed that the petitioner did not include a transcript of the
guilty plea hearing in the record on appeal and that the trial court had specifically considered the
evidence presented at the guilty plea hearing in determining the sentence. This court stated that the
omission of the transcript particularly hindered our review of the enhancement and mitigating factors
applied by the trial court, and we presumed that the evidence not included in the record would have
supported the imposition of the petitioner’s sentences. Jackson, slip op. at 3, 6. At the post-
conviction hearing, the petitioner’s attorney testified that it was a conscious decision on his part not
to include the plea hearing transcript in the appellate record because he deemed the information
contained in it irrelevant to the issues before this court. He disagreed that the court was hindered by
the incomplete record and said that the court would only require the transcript if it determined the
trial court erred and it was necessary to resentence the petitioner. He testified that because this court
concluded the trial court did not err, it did not require the transcript. His statements are incorrect.

         The opinion in that appeal reveals that because the record on appeal failed to include the plea
hearing transcript, this court presumed that the evidence not included in the record would have
supported the imposition of the petitioner’s sentences and the trial court’s determinations. Thus, this
court’s review of the application of enhancement factors (10) and (16) and mitigating factor (1) was
incomplete and hindered by the attorney’s decision to not provide this court with a proper record.
Id. at 5-6. When a defendant challenges his or her sentence, this court conducts a de novo review
of the sentence by considering, among other things, the evidence received at trial and the nature and
characteristics of the criminal conduct. See T.C.A. § 40-35-210(b). For those defendants who plead
guilty, the guilty plea hearing is the equivalent of a trial, because it allows the state the opportunity
to present the facts underlying the offense. State v. Keen, 996 S.W.2d 842, 843-844 (Tenn. Crim.
App. 1999). For this reason, a transcript of the guilty plea hearing is needed to conduct a proper
review of the sentence imposed. Id. at 844. We conclude that the attorney’s failure to provide this
court with the transcript of the plea hearing on appeal constituted deficient performance.

         As for prejudice, we believe the record reflects that although the trial court stated that it
recalled the guilty plea proceeding and would “certainly be using the factual basis that was presented
at that time” in its sentencing determinations, the guilty plea hearing did not provide any evidence
to support the enhancement and mitigating factors applied in the petitioner’s case which was not also


                                                  -8-
provided at the sentencing hearing. The facts provided in the presentence report in the petitioner’s
appeal essentially mirrored the facts that would have been provided this court by the plea hearing
transcript. The petitioner’s appeal primarily focused on the trial court’s use of enhancement factors
(10) and (16) in determining his sentence for count one, aggravated rape. In finding the record too
incomplete to ascertain whether the facts warranted application of factor (10), appropriate when the
defendant possessed or employed a firearm during the commission of the offense, this court
concluded that even if the trial court’s use of it were improper, the remaining enhancement factors
justified the imposition of the maximum sentence for the offense. Jackson, slip op. at 5; see T.C.A.
§ 40-35-114(10). The remaining enhancement factors used to determine the petitioner’s sentence
involved one prior misdemeanor conviction and findings concerning the treatment of and injuries
sustained by the victims, who testified at the sentencing hearing. See T.C.A. § 40-35-114(2), (6),
(7), (8), (11), and (17). Because we conclude that the performance of the petitioner’s attorney did
not alter the results of the proceeding, the petitioner has failed to demonstrate that he suffered
prejudice.

        The petitioner also contends that his attorney was deficient for not arguing on appeal that the
trial court erred by considering his conviction for joyriding during sentencing because he was a
juvenile and for not communicating with him during the pendency of his appeal. As for his
conviction, the presentence report reflects that the petitioner said he was convicted of misdemeanor
unauthorized use of a vehicle in North Carolina. It also reflects that he was arrested when he was
eighteen years old. The trial court found that the petitioner failed to inform his attorney he
committed the offense while a juvenile. The record does not preponderate against this finding and
does not otherwise indicate that the North Carolina conviction was invalid. Regarding the lack of
communication, the petitioner claims that his attorney failed to answer the letters he sent him from
jail while his appeal was pending. However, the petitioner has failed to show how the lack of
communication prejudiced his case. The petitioner did not receive the ineffective assistance of
counsel in the appeal.

                              II. VALIDITY OF GUILTY PLEAS

        The petitioner contends that his guilty pleas were rendered unknowing, involuntary and
unintelligent by the trial court’s failure to follow Rule 11, Tenn. R. Crim. P., and State v. Mackey,
553 S.W.2d 337 (Tenn. 1997). The record reflects that during the plea hearing, the petitioner’s
counsel read the charges against the petitioner contained in the indictments, reviewed the range of
punishment associated with each of the five offenses, and informed the trial court that the petitioner
intended to plead guilty to all five offenses. The petitioner’s attorney informed the trial court that
the petitioner had appeared to be sane and competent during discussions and to be intelligent,
articulate, and knowledgeable during the plea negotiation process. The trial court then informed the
petitioner that he was under oath and that he was subject to perjury charges for untruthful statements.
The trial court restated the charged offenses, reviewed the maximum and minimum punishment for
a Class A felony offense, and gave a brief overview of the sentencing process. The petitioner
acknowledged that he discussed the plea agreement with his attorney and said that he understood his
case and the evidence against him. The trial court informed the petitioner he had a right to plead not

                                                 -9-
guilty, to confront witnesses, and to have a jury trial represented by an attorney. Regarding waiver
of his right to a jury trial, the following colloquy occurred:

               COURT:                  Do you understand that by pleading guilty,
                                       that there is not going to be any trial?

               [PETITIONER]:           Yes, sir.

               COURT:                  Do you understand that there is not going to
                                       be any jury?

               [PETITIONER]:           I was unaware of all that --

               COURT:                  Sir?

               [COUNSEL]:              There is no jury trial --

               [PETITIONER]:           No, but he’s saying by me pleading guilty,
                                       there will be no jury, no trial – so I will
                                       automatically – (inaudible) --

                       (Whereupon, Counsel and [the Petitioner] confer briefly)

               [PETITIONER]:           Yes, I understand.

               COURT:                  You understand that there won’t be any jury
                                       here to hear any evidence?

               [PETITIONER]:           Yes, sir.

               COURT:                  You understand that you are giving up those
                                       rights?

               [PETITIONER]:           Yes, sir.

The trial court continued by informing the petitioner that he had the right to remain silent and that
no one could force him to plead guilty or to incriminate himself. The trial court asked the petitioner
if he understood that by pleading guilty he was waiving the rights discussed and the right to appeal
his convictions. The petitioner responded affirmatively and acknowledged that he understood he
would have five felonies on his criminal record which could be used to enhance future punishments.
The petitioner also acknowledged the plea agreement was the result of discussions with his attorney
and the state and said he understood he would serve his sentence in the penitentiary.



                                                   -10-
        When evaluating the knowing and voluntary nature of a guilty plea, the United States
Supreme Court stated that the standard is “whether the plea represents a voluntary and intelligent
choice among the alternative courses of action open to the defendant.” North Carolina v. Alford, 400
U.S. 25, 31, 91 S. Ct. 160, 164 (1970). The court reviewing the voluntariness of a guilty plea must
look to the totality of the circumstances. See State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim.
App. 1995). These circumstances include

               the relative intelligence of the defendant; the degree of his familiarity
               with criminal proceedings; whether he was represented by competent
               counsel and had the opportunity to confer with counsel about the
               options available to him; the extent of advice from counsel and the
               court concerning the charges against him; and the reasons for his
               decision to plead guilty, including a desire to avoid a greater penalty
               that might result from a jury trial.

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). A plea resulting from ignorance,
misunderstanding, coercion, inducements, or threats is not “voluntary.” Id.

         The trial court is charged with determining if the guilty plea is “knowing” by questioning the
defendant to make sure he fully understands the plea and its consequences. State v. Pettus, 986
S.W.2d 540, 542 (Tenn. 1999); Blankenship, 858 S.W.2d at 904. In Boykin v. Alabama, the United
States Supreme Court stated that certain constitutional rights are implicated in a plea of guilty,
namely, the right to a trial by jury, the right to confront witnesses, and the right against compelled
self-incrimination, and that it would not presume a waiver of these three important rights from a
silent record. 395 U.S. 238, 243, 89 S. Ct. 1709, 1712 (1969). Although these rights are repeated
in Mackey and in Rule 11(c)(3), Tenn. R. Crim. P., only constitutionally-grounded rights are relevant
under the Post-Conviction Procedure Act. See State v. Prince, 781 S.W.2d 846, 853 (Tenn. 1989).
To the extent the petitioner’s claim is based upon the requirements for the taking of guilty pleas
imposed by Mackey and Rule 11, Tenn. R. Crim. P., but not related to constitutional rights, it is not
cognizable in a suit for post-conviction relief. See State v. Neal, 810 S.W.2d 131, 137 (Tenn. 1991);
Prince, 781 S.W.2d at 846. Post-conviction relief is available only when a conviction or sentence
is void or voidable because of a violation of a constitutional right. T.C.A. § 40-30-105.

         The record reflects that the trial court satisfied the requirements of Boykin. During the plea
colloquy between the petitioner and the trial court at the plea hearing, the trial court informed the
petitioner he had a right to plead not guilty, the right to not incriminate himself, and the right to
confront witnesses. The petitioner acknowledged that he understood. The trial court also informed
him that he had the right to have a jury trial and be represented by an attorney. When he appeared
confused about the issue of waiving a jury trial, he was given an opportunity to confer with his
attorney. Immediately thereafter, he confirmed that he understood he was giving up his right to a
jury trial. He also acknowledged that he had the right to remain silent, that no one could force him
to plead guilty or to incriminate himself, and that he understood by pleading guilty he was waiving



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the rights listed by the trial court. We conclude that the petitioner’s guilty pleas were knowing,
voluntary, and intelligent.

        We conclude that the petitioner received the effective assistance of counsel and that his guilty
pleas were knowing, voluntary, and intelligent. Based upon the foregoing and the record as a whole,
we affirm the judgment of the trial court.



                                                        ___________________________________
                                                        JOSEPH M. TIPTON, JUDGE




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