         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs April 20, 2004

                 WILLIAM BERRIOS v. STATE OF TENNESSEE

                   Direct Appeal from the Criminal Court for Knox County
                        No. 72749    Richard R. Baumgartner, Judge



                                  No. E2003-01791-CCA-R3-PC
                                          May 5, 2004

The petitioner, William Berrios, appeals the post-conviction court’s denial of his post-conviction
relief petition in relation to his guilty plea to felony murder for which he received a life sentence.
On appeal, the petitioner contends: (1) the state failed to satisfy a condition of the plea agreement;
and (2) his plea was unknowingly and involuntarily entered. We affirm the judgment of the post-
conviction court.

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

JOE G. RILEY , J., delivered the opinion of the court, in which DAVID H. WELLES and THOMAS T.
WOODALL, JJ., joined.

Gerald L. Gulley, Jr., Knoxville, Tennessee, for the appellant, William Berrios.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Philip H. Morton, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

       The petitioner was charged with felony murder, premeditated first degree murder, especially
aggravated robbery, and theft as a result of his participation in the homicide of David Zimmerlin on
June 28, 1997. Pursuant to a plea agreement, the petitioner pled guilty to felony murder and
received a life sentence. See Tenn. Code Ann. § 39-13-202(a)(2).

        According to the facts presented by the state at the plea hearing, when the victim did not
arrive for work on Monday morning, his co-workers went to his apartment at the Knottingham North
Apartments in Knoxville, Tennessee. The manager of the apartment complex unlocked the door;
they observed “something was not right”; and they contacted the police.

        The police discovered the victim’s body lying in a fetal position on his bed, and it was
partially covered with a bed sheet. His hands were bound with duct tape; a black plastic garbage
bag covered his head; and duct tape encircled the outside of the garbage bag encasing his head. The
apartment had been stripped of its contents. The state believed the victim was killed on Friday
evening upon returning to his residence from work.

        The police learned that someone had used the victim’s credit cards at various stores. The
descriptions given by the stores’ clerks matched the petitioner and his wife, Kimberly Berrios. The
Berrioses lived in the same apartment complex as the victim. The police traced items taken from
the victim’s apartment to local pawn shops where the items had been exchanged for cash. The
receipts of the transactions indicated the Berrioses pawned the items. The police also lifted the
petitioner’s fingerprint from the garbage bag which covered the victim’s head. Kimberly Berrios
pled guilty to felony murder and was prepared to testify regarding the petitioner’s involvement in
the offense.

                         I. POST-CONVICTION RELIEF HEARING

        At the post-conviction relief hearing, the petitioner testified he was incarcerated at Northeast
Correctional Center at the time he entered his plea. The petitioner informed defense counsel that
due to safety concerns, he wanted to serve his sentence in Morgan County until he could be
transferred to Illinois or Puerto Rico. The petitioner explained that he would not have entered the
plea unless these terms were included in the plea agreement.

        The petitioner testified that after entering the plea, he was transferred to a facility in
Nashville and then to Northeast Correctional Center in violation of the plea agreement.
Approximately six months after entering the plea, the petitioner learned that he would not be
permitted to serve his sentence in Illinois or Puerto Rico because Tennessee did not have an
interstate compact agreement with either jurisdiction. The petitioner maintained that prior to
entering the plea, defense counsel knew he could not serve his sentence in either jurisdiction and
failed to provide him with this information. The petitioner stated defense counsel assured him that
he would be transferred. The petitioner further stated that during the plea hearing, a member of his
defense team informed the trial court that the district attorney had written a letter to an official with
the Tennessee Department of Correction (TDOC) recommending placement and that the letter only
served as a recommendation. The petitioner acknowledged that nothing in the transcript of the
guilty plea hearing indicated his transfer was a condition of the plea agreement.

        The petitioner testified he had planned to enter a plea on June 6, 2000, but then declined the
plea agreement. On June 9, while at the courthouse, the petitioner informed defense counsel that
he did not want to plead guilty and that he wanted a trial. Defense counsel then exited the room, and
the petitioner spoke to Kimberly Berrios, his wife and co-defendant. The petitioner stated she
encouraged him to accept the plea agreement because she did not want him to receive the death
penalty.

        The petitioner testified that after meeting with his wife, defense counsel encouraged him to
enter the plea and told him to think about the stress which he had caused his family. Defense
counsel informed the petitioner that he would face the death penalty if he did not enter the plea. The
petitioner stated that as a result, he pled guilty to the offense. The petitioner further stated defense
counsel instructed him to inform the trial court that he was voluntarily entering the plea.

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         Kenneth Irvine, one of the members of the petitioner’s defense team, testified that prior to
entering the plea, the petitioner asked defense counsel to investigate the possibility of serving his
sentence in either Illinois or Puerto Rico. Irvine recalled they focused on Illinois and enlisted the
aid of a friend of the petitioner’s family in Chicago. Irvine did not recall that the petitioner required
serving his sentence in either Illinois or Puerto Rico as a condition of the plea. Irvine explained that
if the parties had agreed to the transfer as a condition to the plea, this would have appeared in the
written plea agreement or would have been stated on the record during the plea hearing.

        Irvine testified defense counsel attempted to place the petitioner in a facility in Morgan
County where the petitioner felt he would be safe. The district attorney wrote a letter of support to
a TDOC official. In the letter, the district attorney acknowledged the TDOC official would
ultimately decide where to house the petitioner. The letter further stated the district attorney had
“no objections should the Tennessee Department of Correction’s policies allow Mr. Berrios to serve
his sentence in an Illinois penitentiary.” Irvine explained that this meant the state would have no
objections in the event Tennessee subsequently had a contract with Illinois.

        Irvine testified that on several occasions, the parties negotiated a plea agreement which the
petitioner then rejected. Irvine stated Kimberly Berrios, who planned to testify at trial, requested
permission to speak to the petitioner prior to the plea, and the petitioner agreed to meet with her.
She had entered a guilty plea to felony murder relating to the incident but had not yet been
sentenced. Irvine testified that after the meeting, the petitioner informed defense counsel that he
wished to enter a plea.

         John Halstead, an assistant district public defender who was appointed to the petitioner’s
defense team, testified that upon contacting TDOC’s legal department regarding their ability to
transfer the petitioner, he learned that Tennessee had canceled its interstate compact contract with
Illinois. Halstead stated he informed the petitioner of the cancellation prior to entry of the plea. The
petitioner also requested incarceration in Morgan County, and defense counsel obtained a letter of
recommendation from the district attorney. Halstead stated he also informed the petitioner that he
could not guarantee incarceration in Morgan County.

        Halstead testified he did not coerce the petitioner into entering the plea. Halstead informed
the petitioner that he believed the petitioner would be convicted at trial and would likely receive the
death penalty. Halstead stated “it was [the petitioner’s] choice as to what to do.”

                        II. POST-CONVICTION COURT’S FINDINGS

        In denying the petitioner’s post-conviction relief petition, the post-conviction court accredited
Halstead’s testimony that he informed the petitioner prior to entry of the plea that he could not serve
his sentence in Illinois. Regarding the petitioner’s placement in a Morgan County facility, the court
noted the guilty plea transcript reflected that a member of the defense team informed the trial court
in the petitioner’s presence that the state was only recommending placement and was not attempting
to bind TDOC. The post-conviction court further noted that during the plea hearing, the trial court
“made it very crystal clear” to the petitioner that TDOC would make the final determination
regarding placement, notwithstanding the state’s recommendation. Thus, the post-conviction court

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found that neither out-of-state incarceration nor incarceration at Morgan County was a condition of
the petitioner’s plea.

        The post-conviction court found the petitioner’s guilty plea was not the result of coercion.
The court noted the petitioner had declined to enter a plea agreement on a prior occasion and,
therefore, knew he had a right to reject the plea agreement. The court further noted that during the
plea hearing, the petitioner informed the trial court that he was voluntarily entering the plea.
Regarding the meeting between the petitioner and his wife, the post-conviction court noted the
petitioner agreed to meet with her and found that defense counsel’s conduct in permitting the
meeting was not improper.

                                 III. STANDARD OF REVIEW

        The post-conviction judge’s findings of fact on post-conviction hearings are conclusive on
appeal unless the evidence preponderates otherwise. State v. Burns, 6 S.W.3d 453, 461 (Tenn.
1999). Those findings of fact are afforded the weight of a jury verdict, and this court is bound by
the findings unless the evidence in the record preponderates against those findings. Jaco v. State,
120 S.W.3d 828, 830 (Tenn. 2003). This court may not reweigh or reevaluate the evidence, nor
substitute its inferences for those drawn by the post-conviction court. State v. Honeycutt, 54 S.W.3d
762, 766 (Tenn. 2001).

                          IV. CONDITION OF PLEA AGREEMENT

       The petitioner contends the state agreed to allow him to serve his sentence in either Illinois
or Puerto Rico as a condition of his plea agreement. The petitioner maintains that this condition is
impossible to fulfill, and as a result, the plea agreement is void.

        Plea agreements are treated as contracts and are enforceable once the trial court accepts the
agreement. State v. Howington, 907 S.W.2d 403, 407 (Tenn. 1995). As the United States Supreme
Court has noted, “when a plea rests in any significant degree on a promise or agreement of the
prosecutor, so that it can be said to be part of the inducement or consideration, such promise must
be fulfilled.” Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971).

        Upon reviewing the record, we are unable to conclude incarceration in Illinois, Puerto Rico,
or Morgan County was a condition of the petitioner’s plea. Neither the guilty plea documents nor
the transcript of the guilty plea hearing indicate that the state guaranteed incarceration in any of
these jurisdictions.

         Furthermore, the evidence indicates that prior to entering the plea agreement, the petitioner
was aware that incarceration in any of these jurisdictions was not guaranteed. At the plea hearing,
both defense counsel and the trial court stated that the district attorney only recommended to TDOC
that the petitioner serve his sentence in Morgan County and that TDOC would determine placement.
Most importantly, the post-conviction court accredited Halstead’s testimony that he informed the
petitioner that due to the absence of an interstate compact contract between Tennessee and Illinois,
he could not be transferred to Illinois at that time. The evidence does not preponderate against the

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findings of the post-conviction court. Accordingly, the petitioner is not entitled to relief on this
issue.

                              V. INVOLUNTARY GUILTY PLEA

       The petitioner contends his plea was involuntary and the result of coercion from defense
counsel and his wife. We disagree.

       Due process demands that a guilty plea be entered voluntarily, knowingly, and
understandingly. Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).
A guilty plea is not involuntary simply because the accused was faced with an election between a
possible death sentence upon trial and a lesser sentence upon a guilty plea. Parham v. State, 885
S.W.2d 375, 381 (Tenn. Crim. App. 1994); see Brady v. United States, 397 U.S. 742, 751, 90 S. Ct.
1463, 25 L. Ed. 2d 747 (1970).

        In determining whether a guilty plea comports with due process, the court must assess
whether it “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, 27 L. Ed. 2d 162
(1970). A defendant’s testimony at a plea hearing that his plea is voluntary is a “formidable barrier
in any subsequent collateral proceedings” because “[s]olemn declarations in open court carry a
strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S. Ct. 1621, 52 L. Ed.
2d 136 (1977).

        At the plea hearing, the petitioner informed the trial court that he did not receive any threats
and was not pressured into entering the plea. The petitioner stated he was voluntarily entering the
plea and had discussed his options with defense counsel. At the post-conviction relief hearing,
Halstead testified he did not coerce the petitioner into pleading guilty and the petitioner chose to
enter the plea. The petitioner knew he had the right to reject the plea agreement and proceed to trial.
The petitioner knew he was facing the possibility of the death penalty and chose to avoid this
possibility. See Parham, 885 S.W.2d at 381. The post-conviction court found the petitioner freely
and voluntarily pled guilty to the offense and was not unlawfully coerced by his wife or counsel.
The evidence does not preponderate against the post-conviction court’s findings.

       We affirm the judgment of the post-conviction court.



                                                        ____________________________________
                                                        JOE G. RILEY, JUDGE




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