           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE             FILED
                          JANUARY 1999 SESSION
                                                          April 23, 1999

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk

ANTHONY JEROME STOKES,             *    C.C.A. No. 03C01-9710-CR-00477

             Appellant,            *    HAMILTON COUNTY

VS.                                *    Honorable Douglas A. Meyer, Judge

STATE OF TENNESSEE,                *    (Post-Conviction)

             Appellee.             *



For Appellant:                          For Appellee:

Rebecca Garren Parker, Esq.             John Knox Walkup
118 Lee Parkway Drive, Suite 201        Attorney General & Reporter
Chattanooga, TN 37421
                                        Ellen H. Pollack
                                        Assistant Attorney General
                                        Criminal Justice Division
                                        425 Fifth Avenue North
                                        Nashville, TN 37243

                                        C. Leland Davis
                                        and
                                        Caldwell Huckabay
                                        Assistant District Attorneys General
                                        City and County Courts Building
                                        Chattanooga, TN 37402




OPINION FILED:___________________


AFFIRMED


GARY R. WADE, PRESIDING JUDGE
                                        OPINION

              The petitioner, Anthony Jerome Stokes, appeals the trial court's denial

of his application for post-conviction relief. In this appeal of right, he presents two

issues for review: (I) whether the trial court erred by concluding that the guilty pleas

of the petitioner were made knowingly and voluntarily and (II) whether the petitioner

received the ineffective assistance of counsel.



              We affirm the judgment of the trial court.



              On June 15, 1995, the petitioner entered pleas of guilt to first degree

murder and second degree murder. As part of the plea agreement, the state

withdrew its request for the death penalty and voluntarily dismissed an especially

aggravated robbery charge. The trial court imposed a Range II, thirty-year sentence

for second degree murder and a consecutive sentence of life for the first degree

murder.



              In his petition for post-conviction relief, the petitioner contended that

his guilty pleas were unlawfully induced by his trial counsel who placed him in fear of

the death penalty. He also argued that his pleas were not knowingly entered

because he was taking medication at the time of the plea and because the plea

agreement was amended without explanation after the petitioner signed it. Further,

the petitioner claimed that his counsel mistakenly described the submission hearing

as only a "practice run," failed to file any motions to suppress illegally obtained

evidence, and erroneously advised that his guilty plea could be withdrawn for any

reason within thirty days. Finally, he contended that his conviction was based upon

evidence obtained pursuant to an unlawful arrest.




                                            2
                 At the post-conviction hearing, the petitioner testified that he wanted a

trial despite the urging of his counsel to enter a plea agreement. He claimed that his

trial counsel tried to convince the petitioner's family and friends to influence him to

plead guilty. The petitioner maintained that he pled guilty because trial counsel told

him on several occasions that he would "fry" if he went to trial and that he was

persuaded to enter the plea only because his trial counsel advised that he could

automatically withdraw his plea within thirty days if he changed his mind.1



                 The petitioner also testified that his trial counsel informed him that he

would have a "practice run" the day before the guilty plea hearing. He contended

that an hour before the "practice run," one of his attorneys told him that the state

had agreed to the plea offer and wanted to proceed with the plea submission

hearing that day. The petitioner testified that he felt unprepared and misled and that

he did not have an opportunity to discuss the plea with his family. He insisted that

pain medication prevented him from thinking clearly. While he acknowledged

having stated during the submission hearing that he was not impaired, the petitioner

explained at the evidentiary hearing that he had been instructed by his counsel to

tell the trial judge what he wanted to hear. He insisted that his attorneys did not

explain a handwritten paragraph of the plea agreement, as follows: "I recognize that

I'm pleading out of my range on 198820. I am doing this in return for the State's

agreement to allow me to plead to 198820 as a murder in the second degree." The

petitioner claimed that but for these errors, he would not have pled guilty.



had suffered at the hands of arresting officers. He insisted that if his trial counsel

had succeeded in suppressing some evidence, he would not have pled guilty.

        1
          The petitioner alleges that on July 17, 1995, he filed a motion to withdraw his guilty plea but
he was never notified of the court's ruling. The petitioner states that the motion was filed under seal
by his attorne ys. The m otion is not in th e record .



                                                    3
              On cross-examination, the petitioner asserted that he wanted a new

trial. He admitted that he shot one of the victims during an argument, explaining

that he tried to hit her with the gun and the gun discharged. The petitioner denied

shooting the other victim and blamed a William Harrison for her murder. The

petitioner admitted during his evidentiary hearing that at the guilty plea proceeding,

he had informed the trial court that he entered his pleas voluntarily after consulting

with his attorneys and his mother. He acknowledged having said that his plea was

in his best interest and that his attorneys had answered all of his questions.



              Attorneys Karla G. Gothard and Mary Ann Green of the public

defender's office and Attorney Howard Barnwell had been appointed to represent

the petitioner at trial. At the post-conviction evidentiary hearing, Attorney Gothard

testified that during an initial interview with the petitioner, an attorney from her office

had warned, "You are going to fry." Upon learning of the inappropriate statement,

she had removed that attorney from the case. Nonetheless, Attorney Gothard

recalled that she had a number of conversations with the petitioner about the

possibility that he would receive a death sentence. In her opinion, the case was

"prime" for a death penalty verdict because of racial overtones (the two victims were

white females and the petitioner is a black male) and because of the nature of the

wounds, which were close contact wounds to the head, one of which was execution

style. Attorney Gothard testified that her aim had been to convince the petitioner to

plead guilty to avoid the death penalty. Although she acknowledged having had

discussions with the petitioner's family members, she denied trying to have them

influence the petitioner. She remembered a five-hour meeting with the petitioner,

his attorneys, family members, and friends during which she had presented her best

assessment of the state's evidence against him. It was her opinion that the

petitioner and his family were unable to recognize the severity of the charges


                                             4
against the petitioner.



              Attorney Gothard testified that until just before the plea, she also

believed there would be only a "practice run" on Thursday and that, on Friday, when

the victims' families could attend, the submission hearing would take place. On

Thursday, however, the assistant district attorney informed her that the victims'

family members were present and wanted to proceed with the plea that afternoon or

else proceed to trial. When Attorney Gothard told the petitioner to prepare to enter

his plea that day, he asked to speak to his mother first. Attorney Gothard preferred,

however, that he not speak to his mother:

              I felt like his mother was really, not really very capable of
              properly advising him, and he would talk to her and she
              would ... tell us, "I've prayed about it and things are going
              to work out okay. He's not going to spend any time in
              jail." And I didn't want [the petitioner] to talk to her again.

Nevertheless, Attorney Gothard contacted the petitioner's mother as requested.

She attended the plea hearing. As Attorney Gothard and the petitioner waited for

the petitioner's mother to arrive, the prosecutor had informed the trial court that they

could continue the proceeding until the next day, if necessary. Attorney Gothard

preferred that the plea be "now or never ... we needed to go ahead ...." Attorney

Gothard identified the plea agreement and the handwriting of her co-counsel Mary

Ann Green. She stated that the language regarding the petitioner pleading out of

his range would have been initialed had it been added after the petitioner signed the

form. While she could not recall how much explanation had been provided to the

petitioner regarding the terms of the plea agreement, Attorney Gothard did

remember that there were many discussions among counsel and the defendant as

to suppression of evidence. She testified that she had reviewed the videotaped

conversation with William Harrison and concluded that there were no issues which

would lead to a more favorable result for the petitioner. She testified that she never

discussed withdrawal of the guilty plea with the petitioner but did recall a


                                            5
conversation in which Attorney Barnwell had mentioned waiting thirty days or

"holding your breath for thirty days until it became final." Although she intended to

caution the petitioner that withdrawal of a plea was unlikely, she conceded that she

had not done so.



              Muchaka Am'al Zukinta, an inmate at the Bledsoe Regional

Correctional Facility, testified that petitioner's trial counsel, Attorney Green, had

asked him to speak to the petitioner about Islam because the petitioner had

converted to Islam and had spiritual questions about entering guilty pleas. He

stated that it appeared to be counsel's aim that he convince the petitioner to plead

guilty.



              Attorney Green testified that she had tried to educate the petitioner

and his family about the reality of the death penalty. She stated that based upon all

the facts she was able to ascertain, she thought the petitioner should plead guilty.

She denied having told the petitioner that he would "fry" but was aware that

someone else in her office had used that term. Attorney Green agreed that the

state provided very little notice that the offer of a "practice run" had been withdrawn.

She stated that when she heard that the plea was to be entered on Thursday rather

than Friday, she immediately tried to contact the petitioner's family. She

acknowledged that the prosecutor had warned that if the petitioner did not enter a

plea that day, he would have to face trial. She testified that she had no recollection

of anyone advising the petitioner that he could withdraw the guilty plea within thirty

days. Attorney Green denied pressuring the petitioner into accepting the terms of

the plea and contended that she was unconvinced that the petitioner needed to

enter a guilty plea until she and the defense team had completed their investigation.

She maintained that at the time of the plea, the defense team was prepared for trial.




                                            6
              Attorney Barnwell testified that defense counsel conducted a thorough

investigation. He denied that the defense team ever approached the case from the

standpoint that the petitioner was guilty and there was no choice other than a guilty

plea. He stated that as the investigation progressed, the team reached a general

consensus that if the petitioner proceeded to trial, he would be convicted and

sentenced to death. He had arranged for the petitioner to talk with Attorney John

Oliva of the Capital Case Resource Center about conditions on death row but the

petitioner seemed to know as much or more about death row than Attorney Oliva.

Attorney Barnwell testified that the petitioner had agreed at an earlier point to enter

a plea agreement but at the last moment, he had refused to proceed. Afterward and

in the presence of the petitioner, Attorney Barnwell had commented, "He has made

a decision. If that is his decision, we will give him the best damn defense that we

can, but in my opinion, he's wanting to die." He remembered that after several days

passed during which the defense team did not have contact with the petitioner, the

petitioner telephoned the public defender's office and indicated that he wanted to

enter a plea. He recalled Attorneys Gothard and Green explaining the terms of the

various proposed plea agreements to the petitioner in "painstaking[]" detail.

Attorney Barnwell stated that the public defender's office had been very thorough in

their investigation and preparation of the case. He denied having informed the

petitioner that he would be permitted to withdraw his plea within thirty days.

Attorney Barnwell did, however, acknowledge that he may have said, "we can hold

our breath until we get to court."



              The trial court denied the petition for post-conviction relief in pertinent

part, as follows:

                             I Unlawfully Induced Guilty Plea
              [P]etitioner telephoned the Public Defender's Office, ... a
              few days before his plea, and said "I want to plead
              guilty[."] None of the attorneys had spoken to him in two
              to three days. He was not under pressure to plead guilty
              at that time.

                                            7
                     The transcript of the guilty plea hearing clearly
             shows that petitioner was freely and voluntarily waiving
             his right to a jury trial and that he knew and understood
             what he was doing. The medication he was taking did
             not affect his reasoning. Months before, upon
             questioning by the court, petitioner had withdrawn his
             proposed guilty plea. If he had not wanted to plead guilty
             on June 15, 199[5], he knew how to stop it.
                     Gothard felt she had not "legally" pressured the
             petitioner to plead guilty, but that morally she may have
             invaded his province .... Green and Barnwell do not feel
             that they pressured him into pleading guilty. They and
             Gothard explored every possible issue to raise in his
             defense. Green and Barnwell felt they had given
             petitioner an opportunity to make an informed decision.

                         II Evidence from an Unlawful Arrest
                    Other than petitioner's testimony, there was no
             proof that the detectives abused, threatened, or
             mistreated him in getting a statement from him, after his
             arrest. His testimony was not convincing. Gothard said
             video of his statement indicated he was talking freely.
             William [] Harrison had worn a wire, but had not coerced
             him. There was not evidence to suppress.

                         III Ineffective Assistance of Counsel
                     From the testimony of the t[h]ree attorneys, it is
             obvious that the services they rendered were within the
             range of competence demanded by attorneys in criminal
             cases. They realized their heightened responsibilities in
             a death penalty case. They and their investigators talked
             to everyone they felt might have testimony to help their
             defense, they obtained the assistance of experts. They
             left no stone unturned and were prepared to try the case.
                     Petitioner told his attorneys at various times that
             (1) he did not shoot either young lady[,] (2) he shot one
             young lady, and (3) he shot both young ladies. During
             this proceeding he admitted he shot April Stewart, but
             that it was accidental. ...
                     [T]his [C]ourt finds that the petitioner has failed to
             carry the burden of proving the asserted violation of his
             rights. The Court finds that his plea was not coerced or
             forced, that there was not unlawful evidence to suppress,
             and that he was not denied effective assistance of
             counsel.



                                           I

             The petitioner initially contends that his plea was neither knowing nor

voluntary because his trial counsel misled him with a "practice run" and because he

did not understand that he was pleading as a Range II offender to second degree


                                           8
murder.



              Under our statutory law, the petitioner bears the burden of proving his

allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). On

appeal, the findings of fact by the trial court are conclusive and will not be disturbed

unless the evidence contained in the record preponderates against them. Brooks v.

State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the

petitioner to show that the evidence preponderates against those findings. Clenny v.

State, 576 S.W.2d 12 (Tenn. Crim. App. 1978).



              In Boykin v. Alabama, 395 U.S. 238 (1969), the United States

Supreme Court ruled that defendants should be advised of certain of their

constitutional rights before entering pleas of guilt. Included among those required

warnings are the right against self-incrimination, the right to confront witnesses, and

the right to a trial by jury. Id. at 243. The overriding Boykin requirement is that the

guilty plea must be knowingly and voluntarily made. Id. at 242-44. If the proof

established that the petitioner was aware of his constitutional rights, he is entitled to

no relief. Johnson v. State, 834 S.W.2d 922, 926 (Tenn. 1992). "[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).



              Initially, the petitioner asserts that his plea was neither knowing nor

voluntary because his attorneys "tricked" him by assuring him the proceeding was a

"practice run," when in actuality, the proceeding was real. The trial court found that

the petitioner knew and understood his actions in entering the guilty plea. Implicit in

the trial court's findings is that counsel did not trick the petitioner with the concept of

a "practice run." The trial court concluded that if the petitioner had decided that he


                                             9
did not want to enter guilty pleas, he could have so informed the court, just as he

had done on a previous occasion. The petitioner acknowledged during the

evidentiary hearing that he did not feel he was "tricked" but hinted that he had been

misled. His attorneys testified that they were surprised when the state withdrew its

offer of a "practice run" and demanded immediate acceptance of the plea

agreement. In our view, the petitioner has failed to meet his burden of showing that

the evidence preponderates against the trial court's findings.



              Secondly, the petitioner claims that his plea was not knowingly entered

because he did not understand the handwritten paragraph pertaining to pleading out

of his range. Although Attorney Gothard could not recall how much explanation had

been provided to the petitioner regarding this provision, she did testify that if the

paragraph had been added after the petitioner signed it, her custom was to have the

changes initialed. Attorney Barnwell testified that Attorneys Gothard and Green

explained the agreement to the petitioner in painstaking detail. Moreover, at the

guilty plea proceeding, the trial court explained to the petitioner that the plea

agreement was outside of his range, an acceptable practice. The petitioner knew

that the state had agreed to reduce the charge of first degree murder to second

degree murder and dismiss the aggravated robbery charge in return for his guilty

plea and was advised that his sentence for second degree murder would be thirty

years. The petitioner acknowledged in the trial court that he understood he would

likely serve ten and one-half years for second degree murder, which is thirty-five

percent of the sentence. From all of this, we must conclude that the record supports

the trial court's conclusion that the petitioner entered a knowing and voluntary plea.



                                            II

              Next, the petitioner maintains that the trial court erred by determining

he had been provided with effective assistance of counsel. He contends that his


                                           10
attorneys were ineffective because they did not file any motions to suppress

evidence despite discussing such options. He also claims that Attorney Barnwell

erroneously advised that he had the option to withdraw his guilty plea within thirty

days of its entry.



              In order for the petitioner to be granted relief on grounds of ineffective

counsel, he must establish that the advice given or the services rendered were not

within the range of competence demanded of attorneys in criminal cases and that,

but for his counsel's deficient performance, the result of his trial would have been

different. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); Strickland v.

Washington, 466 U.S. 668, 687 (1984). This two-part standard, as it applies to

guilty pleas, is met when the petitioner establishes that, but for his counsel's errors,

he would not have pled guilty and would have insisted on a trial. Hill v. Lockhart,

474 U.S. 52, 59 (1985).



              Here, the petitioner testified that arresting officers beat and abused

him in order to secure a confession and that his defense counsel failed to file

motions to suppress this evidence. Attorney Gothard testified that while they had

discussed filing motions to suppress, she had ultimately concluded that there were

no meritorious issues to address. The trial court found the petitioner's testimony

unreliable and accredited that of Attorney Gothard. The record does not

preponderate otherwise.



              The petitioner also contended that one of his attorneys advised him he

could withdraw his guilty plea within thirty days under Rule 32, Tenn. R. Crim. P.

His attorneys, however, denied that any such statement was made. The trial court

determined that the services rendered by petitioner's counsel were within the

necessary range of competence, that the attorneys realized they had "heightened


                                           11
responsibilities" due to the nature of the charges, and that they had thoroughly

investigated and prepared his defense. Implicit in these findings is that the trial

court rejected the petitioner's assertion that he was misadvised of the law governing

the withdrawal of his guilty plea. From all of this, it is our view that the petitioner has

been unable to demonstrate that the evidence preponderates against the finding

made by the trial court that he had been represented within professional guidelines.



              Accordingly, the judgment is affirmed.



                                           ________________________________
                                           Gary R. Wade, Presiding Judge

CONCUR:



_____________________________
Norma McGee Ogle, Judge



_____________________________
John K. Byers, Senior Judge




                                            12
