         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                    August 19, 2003 Session

               DONNA JEAN SEXTON v. STATE OF TENNESSEE

                        Appeal from the Circuit Court for Carter County
                            No. S12429     Lynn W. Brown, Judge



                                  No. E2002-02313-CCA-R3-PC
                                         April 14, 2004

The petitioner, Donna Jean Sexton, appeals from the judgment of the Carter County Circuit Court
denying her post-conviction relief from her convictions for first degree murder and aggravated
robbery. The petitioner contends that (1) the post-conviction court erred by concluding that her
amended, comprehensive petition was invalid because it was not properly verified under oath; (2)
she received the ineffective assistance of counsel because her attorneys misinformed her as to the
length of her sentence for first degree murder; and (3) her nolo contendere pleas were not knowingly,
intelligently, and voluntarily made because the trial court never informed her that she was waiving
constitutional rights and there was an insufficient factual basis for the petitioner’s pleas. Although
we conclude that the amended petition was not properly verified, we conclude the trial court
correctly proceeded on all issues raised by the petitioner. We also hold that the trial court’s findings
and conclusions relative to the petitioner’s claims are affirmed.

      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
ALAN E. GLENN , JJ., joined.

Kenneth F. Irvine, Jr., Knoxville, Tennessee, for the appellant, Donna Jean Sexton.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Joe C. Crumley, Jr., District Attorney General; and Kenneth Carson Baldwin, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                              OPINION

        The petitioner pled nolo contendere to the charged offenses of felony murder and aggravated
robbery. Pursuant to the plea agreement, the trial court sentenced the petitioner to life with the
possibility of parole for the murder and eight years for the aggravated robbery, to be served
concurrently in the Department of Correction (DOC).
        The petitioner’s convictions resulted from the killing and robbery of the victim, an employee
at a convenience store in June 1993. At the plea hearing, the state presented and the defendant
stipulated to the following summary of the facts surrounding the offenses:

                Miss Sexton was criminally responsible as the law defines criminal
                responsibility for the murder of – of Mrs. Montgomery there at the
                market, the murder with which she’s charged. She did not, however,
                it’s not the state’s theory, it would not be our proof that she was the
                person who committed the murder; but, that – but – and that she was
                more than a mere person who was present. But, that she was what
                used to be called an aider and abetter to that murder. . . . But, again,
                she feels that it’s important, and – and we agree that she was not the
                person who stabbed Mrs. Montgomery, that – that caused the fatal
                wound upon Mrs. Montgomery. We believe that that was done by her
                companion in this crime Matney Putman.

        At the post-conviction evidentiary hearing, the petitioner testified that she signed a statement
that her attorney had prepared on her acceptance of the plea agreement, which stated that she would
receive thirty years in prison when she pled nolo contendere and that anything less would be
determined at the discretion of the parole board. She said she signed the statement in front of one
of her attorneys, Mark Slagle, who prepared it. She said she did not learn that her sentence was sixty
years until she went to prison. She said she would have gone to trial if she had known that the
sentence for life in prison was sixty years. On cross-examination, she admitted that one of her
reasons for not going to trial was to avoid the possibility of receiving the death penalty.

       The record reflects that the petitioner had been in custody since 1991. She said that her
parole eligibility date had been set for 2028, but the record reflects that sentencing credits will
shorten the time.

        Robert J. Jessee, co-counsel for the petitioner at the time of her plea agreement, testified that
he told the petitioner that the state’s plea offer was good and that she should take it to avoid the
possibility of receiving the death penalty. He said he told her that there were no assurances about
when she would get out of prison. He said he explained to the petitioner that the plea agreement
stipulated that she would receive a concurrent sentence for the aggravated robbery charge. He said
evidence increasing the chance that the petitioner would receive the death penalty if she went to trial
included the following: the victim was a young mother; the killing was brutal, almost cutting off the
victim’s head; and when the petitioner’s accomplice suggested calling the rescue squad to help the
victim, the petitioner had responded, “Let the bitch die.” He said that based on these facts, the jury
might have imposed the death penalty if the case had gone to trial.

        Mr. Slagle testified that he drafted the Acceptance of Plea Agreement that the petitioner
signed and that it stated there was no guarantee the petitioner’s prison sentence would be less than
thirty years. He said the petitioner gave an incriminating statement to police about her involvement


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in the crimes and that their defense would have been “battered woman syndrome” if they had gone
to trial, although he questioned the likelihood of success. He said that the petitioner could have
received the death penalty with Putnam’s testimony against her but that he did not believe the
probability was very high. He said he did not want to take a chance on the petitioner receiving the
death penalty, especially when she had already admitted involvement in the killing. He said he told
the petitioner she was gambling with her life if she rejected the state’s offer. He acknowledged that
the petitioner was interested in the amount of time she would be required to spend in prison when
they discussed the state’s offer of life with the possibility of parole. He said that he knew that a life
sentence with the possibility of parole was sixty years. He said that in the statement of the plea
agreement he drafted, he was trying to convey to the petitioner that there was no guarantee she would
only serve nineteen years, the amount of time DOC personnel had previously told him people had
been serving on a life sentence. He said, however, that based upon further discussions with the
prosecuting attorney and DOC personnel, he told the petitioner that she could not expect to get out
of prison before thirty years.

         On cross-examination, Mr. Slagle testified that he wrote out the agreement between the
petitioner and the state and that he had the petitioner sign it to prevent a future ineffective assistance
of counsel claim. He said the provision that the petitioner would serve thirty years was based on
what the DOC told him. He acknowledged, though, that conflicting language existed in the
agreement because another sentence provided that the petitioner was “not guaranteed to receive any
term of imprisonment less than thirty years and that any release date earlier is strictly at the discretion
of the parole board and the governing powers of the State of Tennessee.” He also acknowledged that
the trial court never addressed the length of a sentence for life with the possibility of parole at the
plea hearing.

         The transcript from the plea hearing reflects that the assistant district attorney stated that the
petitioner would not be eligible for parole until she served thirty years in prison. It also reflects that
the trial court informed the petitioner of her constitutional rights but did not specifically state that
she was waiving them.

        The trial court found that the petitioner’s amended petition was not properly verified under
oath and dismissed the petition. The court, however, ruled on the petitioner’s claims in the event
that the petition was found to be properly verified by this court.

         Relative to the ineffective assistance of counsel, the trial court acknowledged that the
petitioner’s attorneys provided her with conflicting parole eligibility information and that her original
release eligibility date would have occurred after serving sixty percent of sixty years, i.e., thirty-six
years. It found, though, that although the petitioner’s parole eligibility at the time of the hearing was
set for 2028, her release eligibility would occur after serving twenty-five years if she obtained normal
sentence reduction credits. Also, the trial court was not convinced of the truth of the petitioner’s
claim that she would have gone to trial if she had known that her sentence was effectively sixty
years. The trial court found that the petitioner had not been prejudiced by her attorneys’ advice and
concluded that she did not receive the ineffective assistance of counsel.


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         Relative to the validity of the petitioner’s nolo contendere pleas, the trial court noted that the
transcript of the plea hearing did not contain explicit waivers by the petitioner of her constitutional
rights. However, it also noted that the petitioner was advised of all her constitutional rights as
required by Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709 (1969), and found that the transcript
reflected that the petitioner knew she was giving up those rights by pleading nolo contendere. The
trial court concluded that the transcript, trial counsel’s advising her of her alternatives, and her desire
not to chance the death penalty showed that the petitioner knowingly, intelligently, and voluntarily
entered her pleas. In this respect, although noting that the stipulation of facts at the plea hearing was
“not a particularly clear stipulation,” it believed that the stipulation indicated criminal responsibility
for the acts of another. The trial court concluded that any deficiency in the factual basis for the pleas
did not render them involuntary.

                            I. PETITION VERIFIED UNDER OATH

        The petitioner contends that the trial court erred in ruling that her comprehensive, amended
petition was not valid. The record reflects that at the evidentiary hearing, the trial court told the
petitioner’s counsel that the comprehensive petition filed by counsel was not verified under oath as
required by law. Counsel replied that he had certified in the petition that the allegations were true
and correct to the best of his knowledge and belief. However, the trial court believed the certificate
to be insufficient, although it noted that the petitioner’s previous pro se amended petition remained
valid because it was verified under oath. In any event, the trial court ruled on all the issues pursued
by the petitioner at the evidentiary hearing.

       Pursuant to the 1995 Post-Conviction Procedure Act, petitions and amendments to petitions
must be verified under oath:

                        The petitioner shall include allegations of fact supporting each
                claim for relief set forth in the petition and allegations of fact
                explaining why each ground for relief was not previously presented
                in any earlier proceeding. The petition and any amended petition
                shall be verified under oath. Affidavits, records or other evidence
                available to the petitioner supporting the allegations of the petition
                may be attached to it.

T.C.A. § 40-30-104(e).

         The petitioner relies upon dictum in Roger Harris v. State, E1999-02056-CCA-R3-PC,
Unicoi County (Tenn. Crim. App. July 28, 2000), to support her claim that counsel’s certification
suffices under the verification requirement of the Post-Conviction Procedure Act. In Roger Harris,
the trial court summarily dismissed the March 1995 post-conviction petition and its amendments
because they were not verified by oath or affirmation. This court and the state noted that the
verification by oath requirement was not effective until May 1995 and did not apply to Harris’s case.
This court held that the trial court incorrectly applied the oath requirement and remanded the case


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for further proceedings. However, this court then discussed the significance of counsel’s having
certified that he had investigated all the facts and the allegations were true and correct to the best of
his knowledge and belief. It stated that the certification satisfied the verification by oath
requirement. It also stated that absent proper verification, it would be appropriate for the trial court
to give the petitioner the opportunity to make a proper oath. We note as significant that the same
trial court and counsel in Roger Harris are before us in the present case.

       Counsel’s certificate in the present case in the amended, comprehensive petition is as
follows:

                        I . . . do hereby certify that I have investigated all of the above
                facts and do hereby state the foregoing is true and correct to the best
                of my knowledge and belief. My investigation and research have
                been done in close consultation with the petitioner, Ms. Donna
                Sexton.

                        I also certify that I have thoroughly investigated the possible
                constitutional violations alleged by Ms. Sexton and any other possible
                grounds that Ms. Sexton may have for relief. I have discussed all the
                grounds I have discovered with Ms. Sexton. To the best of my
                knowledge I have raised all non-frivolous constitutional grounds
                warranted by existing law or a good faith argument for the extension,
                modification, or reversal of existing law which Ms. Sexton has. I am
                aware that any ground not raised shall be forever barred by the
                application of T.C.A. § 40-30-206(g), or its predecessor provision,
                and have explained this to Ms. Sexton. This waiver provision is
                limited by several decisions of the Tennessee Supreme Court which
                have recognized a very limited exception to the rule of waiver.

Other than certifying the truth of the allegations to the best of counsel’s knowledge and belief, the
certificate generally conforms to the certificate required of post-conviction counsel by supreme court
rule. See Tenn. S. Ct. R. 28, § 6(C)(2)-(4), Appendix C.

        Given the fact that a petitioner is entitled to only one post-conviction case, the purpose of the
supreme court rule and appendix are obvious – they ensure that all possible claims are investigated
by counsel and all arguable constitutional claims are presented to the trial court for consideration.
The rule, therefore, guides counsel for the petitioner’s benefit. On the other hand, the statutory
requirement that the allegations be verified under oath is intended to serve entirely different interests.
Its goal is to deter or to reduce intentionally false allegations primarily made by petitioners by
exposing them to aggravated perjury charges pursuant to T.C.A. § 39-16-703. The expected
reduction in false claims should leave the criminal justice system with more time and resources to
deal with arguably legitimate post-conviction claims.



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        In this regard, we respectfully disagree with the dictum in Harris relative to counsel’s
certification. We conclude that the requirement under T.C.A. § 40-30-104(e) that allegations of a
petition and any amendments be verified under oath is not satisfied by counsel’s certification.
Whether prepared by a petitioner or by counsel, the petition and its amendments must be verified
under oath.

        Although the comprehensive petition in the present case was not verified under oath, we do
not believe the circumstances justified limiting the petitioner’s claims. The trial court did not notify
the petitioner of its concerns until the evidentiary hearing. Moreover, the trial court noted that the
petitioner’s previous pleadings had been verified under oath. The trial court easily could have
allowed the petitioner to verify the comprehensive petition. In any event, it took sworn testimony
from the petitioner and her trial attorneys relative to the petitioner’s claims. We conclude that the
circumstances justify the petitioner’s claims being heard on their merits.

                       II. INEFFECTIVE ASSISTANCE OF COUNSEL

        The petitioner contends that her guilty pleas resulted from the ineffective assistance of
counsel because her counsel misadvised her about the length of her life sentence when they told her
that she would serve thirty years. She asserts that her attorney’s advice concerning the sentence was
misleading. She claims not to have understood the actual sentence being imposed and that if she had
known, she would have gone to trial. The state responds that the record supports the trial court’s
findings.

        When a claim of ineffective assistance of counsel is made, the burden is upon the petitioner
to show (1) that counsel’s performance was deficient and (2) that the deficiency was prejudicial. See
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); State v. Melson, 772
S.W.2d 417, 419 n.2 (Tenn. 1989). To satisfy the requirement of prejudice when the petitioner
entered guilty pleas, the petitioner must demonstrate a reasonable probability that, but for counsel’s
errors, she would not have pled guilty and would have insisted on going to trial. See Hill v.
Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985); Bankston v. State, 815 S.W.2d 213, 215
(Tenn. Crim. App. 1991).

       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. Further, 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).



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        The burden was on the petitioner in the trial court to prove by clear and convincing evidence
the factual allegations that would entitle her to relief. T.C.A. § 40-30-110(f) (2003). On appeal, we
are bound by the trial court’s findings of fact unless we conclude that the evidence in the record
preponderates against those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Thus,
the petitioner now has the burden of illustrating how the evidence preponderates against those
findings. However, we review the court’s conclusions regarding the effectiveness of counsel de
novo with no presumption of correctness because it involves a mixed question of law and fact. Id.

        For parole purposes, a life sentence is computed as sixty years. See T.C.A. § 40-35-
501(h)(1). At the time of the petitioner’s offenses, release eligibility for a life sentence was
designated by statute to occur after serving sixty percent of the sentence, i.e., thirty-six years. See
T.C.A. § 40-35-501(f) (Supp. 1992). Also, a prisoner could earn sentence reduction credits for such
things as good behavior and involvement in work, educational, and vocational programs. See, e.g.,
T.C.A. § 41-21-236. We note, by comparison, that beginning less than a month after the petitioner’s
offenses, although the original release eligibility date remained thirty-six years, a life sentence for
murder required imprisonment for at least twenty-five years regardless of the amount of earned
sentence reduction credits. See T.C.A. § 40-35-501(g)(1) (Supp. 1993).

        Unquestionably, the advice the attorneys gave the petitioner was conflicting and somewhat
incorrect. The petitioner was not advised that her statutory release eligibility would occur after
serving thirty-six years. In reviewing the attorneys’ advice in this case, we are reminded of the late
Justice Joe Henry’s comment that “there are few practicing attorneys, otherwise knowledgeable in
criminal law, or judges at any level, who have a complete understanding of” parole procedures and
related matters. Farris v. State, 535 S.W.2d 608, 613 (Tenn. 1976). However, we conclude that the
petitioner was not prejudiced by the advice she received.

        Initially, we note that the record reflects that all persons involved in the plea process were
considering actual confinement time. At the post-conviction hearing, the petitioner was confusing
the length of the sentence with the length of actual confinement. Thus, it is understandable that the
trial court discredited her claim that she would not have pled guilty if she had known the sentence
was effectively sixty years. As for the amount of time the petitioner was expecting to serve in
confinement, the trial court computed the actual confinement to be twenty-five years, within the
range that the petitioner’s counsel projected. The record does not preponderate against this finding,
and we conclude that the trial court properly held that the petitioner was not prejudiced by her
counsel’s advice.

                III. KNOWING, VOLUNTARY, AND INTELLIGENT PLEA

        The petitioner contends that the record does not demonstrate that her decision to plead nolo
contendere was knowing, voluntary, and intelligent relative to her relinquishing her rights and the
factual basis for pleading. We conclude that her pleas were validly entered.




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        First, the petitioner states that the record reflects that the trial court informed her of various
rights but did not tell her that she was waiving those rights in the plea process. In Boykin v.
Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712 (1969), the Supreme Court stated that entry of
a guilty plea effectively constituted a waiver of the right against compulsory self-incrimination, the
right to confront one’s accusers, and the right to trial by a jury. The court held that a valid waiver
of such rights required the intentional relinquishment or abandonment of the rights and that such a
waiver may not be presumed from a silent record. Id.

        We believe the record reflects that the petitioner knowingly relinquished her Boykin rights
even though the trial court did not expressly determine her understanding that she was waiving those
rights. The trial court explained the Boykin rights to the petitioner in terms of a trial upon a plea of
not guilty. It told her that her nolo contendere plea would result in her being found guilty and would
allow the prosecutor to ask her questions which she would be required to answer. The petitioner
stated that she understood. Although such a document is not in the record, the petitioner told the
court that she had read, or had had explained to her, a petition for acceptance of a plea of nolo
contendere and waiver of rights and that she had understood it. She told the trial court that she had
no questions regarding the petition.

        Our supreme court has noted that “it is clear under federal law ‘that Boykin does not require
separate enumeration of each right waived and separate waivers as to each [of the three rights].’”
Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Fontaine v. United States, 526
F.2d 514, 516 (6th Cir. 1975)). In other words, no particular litany is necessary for constitutional
validity. We believe that the nature of the proceeding, the exchange between the trial court and the
petitioner, and the relatively beneficial plea agreement reflect the petitioner’s knowledge and
understanding that her constitutional rights relative to the trial process were not to be asserted by her
any further.

        The petitioner asserts that an insufficient factual basis was presented at the plea hearing
relative to her guilt for the offenses for which she pled nolo contendere. She asserts that she should
be entitled to withdraw her pleas. The factual basis requirement for a guilty or nolo contendere plea
primarily exists to ensure that a defendant’s plea is made with an understanding that the admitted
conduct actually constitutes the offense that is charged. See McCarthy v. United States, 394 U.S.
459, 466-67, 89 S. Ct. 1166, 1171 (1969). In other words, the factual basis focuses upon a
defendant’s understanding about the applicable law in relation to the facts being admitted. State v.
Lord, 894 S.W.2d 312, 316 (Tenn. Crim. App. 1994).

        The prosecutor told the court that the petitioner aided and abetted in the murder of the victim
at a market. He stated that she was not the person who stabbed the victim but that she was more than
a mere person who was present. He stated that the stabbing was done by the petitioner’s companion,
Matney Putman. We note that upon inquiry, the petitioner’s counsel advised the court that he
believed the state’s proof could result in a guilty verdict for first degree murder and aggravated
robbery. We believe that the record sufficiently shows a factual basis relative to the murder charge.
Obviously, though, there was no mention of an aggravated robbery. However, an insufficient factual


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basis does not, per se, rise to the level of a constitutional violation relative to a plea being
involuntary, unknowing, or not understood. See, e.g., Powers v. State, 942 S.W.2d 551, 555 (Tenn.
Crim. App. 1996). We note that the petitioner’s “Acceptance of Plea Agreement” reflects that she
understood that she was pleading nolo contendere to felony murder. She did not testify at the post-
conviction hearing regarding any lack of understanding that she had relative to her plea to aggravated
robbery. We conclude that the record does not support a claim that the failure to establish a
sufficient factual basis for a plea to aggravated robbery contributed in any way to the petitioner’s
decision to plead nolo contendere.

        In consideration of the foregoing and the record as a whole, the judgment of the trial court
is affirmed.



                                                       ___________________________________
                                                       JOSEPH M. TIPTON, JUDGE




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