         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs September 28, 2005

                 ROBERT ROYSDEN v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Roane County
                           No. 12,367B    E. Eugene Eblen, Judge



                   No. E2005-00113-CCA-R3-PC - Filed November 16, 2005


The petitioner, Robert Roysden, appeals the denial of his petition for post-conviction relief, arguing
that his guilty pleas were unknowing and involuntary and that he was denied the effective assistance
of trial counsel. Following our review, we affirm the post-conviction court’s denial of the petition.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JERRY L.
SMITH , JJ., joined.

Jeffery H. Wicks, Kingston, Tennessee, for the appellant, Robert Roysden.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
J. Scott McCluen, District Attorney General; and D. Roger Delp, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION

                                              FACTS

        The petitioner was indicted by the Roane County Grand Jury on one count of first degree
premeditated murder, two counts of first degree felony murder, one count of theft of property over
$500, a Class E felony, and three counts of forgery, also a Class E felony, based on his March 5,
2000, participation with a codefendant in the murder of an elderly woman acquaintance during the
course of a robbery and theft. On April 2, 2002, the petitioner pled guilty to one count of second
degree murder, one count of theft of property over $500, and three counts of forgery in exchange for
the dismissal of the remaining counts of the indictment and the dismissal of a subsequent attempted
escape charge pending against him. Pursuant to the terms of his plea agreement, the petitioner was
sentenced as a Range II offender to forty years at 100% for the second degree murder conviction, two
years for the theft conviction, and one year for each of the forgery convictions. All of the sentences
were ordered to be served concurrently with the exception of one of the forgery sentences, which was
ordered to be served consecutively to the forty-year sentence for second degree murder, for a total
effective sentence of forty-one years.

       During his recitation of the facts prior to the petitioner’s entry of the guilty pleas, the
prosecutor stated in pertinent part:

       That on March the 5th of 2000, both of these defendants [the petitioner and his
       codefendant, Charles William Anthony York] took an active role in the killing of Ms.
       Anderson [the victim], knowingly. That they hid her body underneath a bed or
       somewhere in the house for a time period in order for Mr. York’s father to come and
       do laundry and not find the body. That they left the home taking about $80.00 that
       Ms. Anderson had in her sock. Also took her 1985 Ford Mustang and several blank
       personal checks all of which belonged to Ms. Anderson and which they took without
       her [e]ffective consent and with intent to deprive Ms. Anderson of that property.

         On May 20, 2002, the petitioner filed a pro se petition for post-conviction relief in which he
alleged, inter alia, that his guilty pleas were unknowing and involuntary and that he was denied the
effective assistance of trial counsel. Post-conviction counsel was appointed and an evidentiary
hearing held on August 15, 2003. At the hearing, the twenty-two-year-old petitioner testified he had
been a freshman for four years and a sophomore for one year and had completed his GED while at
the Mountain View Youth Detention Center. He said his appointed trial counsel did not meet with
him until eight to ten months after he had been indicted, never explained the charges in the
indictment to him, and did not review the discovery materials with him. In addition, he did not recall
counsel’s having ever explained the potential sentences he faced. The petitioner said counsel
reviewed his mental status and had a mental evaluation performed but, other than that, did not
discuss any possible defenses with him. He testified that counsel met with him only about four times
in total.

        The petitioner acknowledged he gave a statement, which detailed his involvement in the
crimes, to law enforcement officers. However, he testified that he had taken two sixty-milligram
morphine pills immediately before his arrest and was therefore “very intoxicated” when he gave the
statement. In addition, he claimed that the Tennessee Bureau of Investigation agent who conducted
the interview was “very intimidating,” telling him that they had physical evidence linking him to the
crime scene.

         The petitioner testified his understanding of the plea agreement was that he would be
pleading guilty to second degree murder in exchange for a Range I sentence of forty years. He said
counsel never explained the difference between a Range I and a Range II sentence to him and did
not tell him that he was agreeing to be sentenced outside of his range. He said he first learned the
difference when the inmate who helped him prepare his post-conviction petition informed him he
should not have received a Range II sentence for his first felony. The petitioner further testified that
he had broken his leg in three places, been released from the hospital only a few days before the
guilty plea hearing, and had taken a Lortab approximately twenty minutes before he made his


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wheelchair-bound courtroom appearance to enter his guilty pleas. As a result, his mind was not
focused on the hearing and he did not understand that he was agreeing to a forty-one-year sentence
at 100%. The petitioner described his mental state at the time:

       I wasn’t thinking. I was just -- I wasn’t processing what was really going on. I was
       in pain. I was just ready to get everything over with. Forty years is what they said.
       And that’s when I signed it. Let’s go. I was -- didn’t want to prolong it. I was in a
       lot of pain.

        On cross-examination, the petitioner acknowledged he was able to read and write. He
claimed he did not remember much from the guilty plea hearing, but he did not dispute that the
transcript reflected he had informed the trial court that he was satisfied with counsel’s representation
and that the facts of the case, as stated by the prosecutor, were substantially correct. He also claimed
not to remember the details of his statement to police. He conceded, however, that the statement
reflected that it had not been made until approximately nine or ten hours after his arrest. The
petitioner further conceded that an investigator from the public defender’s office had read the plea
agreement to him and that he had signed it. He reiterated, however, that he had not understood what
he was signing. The petitioner acknowledged he never informed his trial counsel or the trial court
that he was under the influence of a drug during the guilty plea hearing.

        On redirect examination, the petitioner agreed that it was trial counsel, rather than himself,
who answered the trial court’s final question at the guilty plea hearing, “Is that the way you
understand the agreement?” He testified he, therefore, was not sure he had been present for the
entire hearing.

        Trial counsel testified he had been employed with the Ninth Judicial District Public
Defender’s Office since July 1992, with the exception of a brief period from December 1998 through
September 1999 that he spent in private practice. He said he met with the petitioner several times
during the course of his representation and recalled that he and a colleague had first gone to see the
petitioner in jail while his case was still in general sessions court. Trial counsel stated that they
discussed at that time having a psychological evaluation performed on the petitioner but that he did
not think it was done until the case had been transferred to criminal court. Trial counsel testified he
explained the charges to the petitioner, who appeared to understand them; conducted discovery;
reviewed the petitioner’s statement; and investigated the circumstances under which the statement
had been made. He said he did not find any reasons to move to have the statement suppressed.

         According to trial counsel, the combination of the physical evidence, the codefendant and
the petitioner’s statements, and the results of the petitioner’s mental evaluation led him to conclude
that “this was a case that [they] did not want to try” and that they needed to “do something to get off
the first degree murder charge.” He, therefore, approached the State about a settlement, which
resulted in a package deal offer from the State. Under its terms, the petitioner and his codefendant
were both given the opportunity to plead guilty to second degree murder in exchange for a Range
II, forty-year sentence for the petitioner and a Range II, thirty-year sentence for the codefendant.


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Trial counsel said the petitioner’s codefendant rejected the offer, and he feared that the State would
withdraw it from the petitioner as well. However, although the prosecutor informed him that the
State would be re-indicting the petitioner on felony murder charges, he also indicated that it would
nonetheless still allow the petitioner to plead guilty to second degree murder in exchange for a Range
II sentence of forty years.

        Trial counsel testified he fully explained to the petitioner the difference between a Range I
and a Range II sentence; the fact that there was no “Range I” status as such for first degree murder,
but instead a minimum sentence of life, which had been determined to be sixty years with fifty-one
years required before becoming eligible for parole; and the reason that the State was offering the
forty-year, Range II sentence:

                But, I explained to [the petitioner], that the reason the State was going to
        make this 40-year offer was, since there’s no middle ground - - since he was a Range
        1 Offender, there’s no middle ground as a Range 1 Offender between a maximum of
        25 years and a mandatory 60 years. So the only way you could compromise between
        25 years max and 60 was to make a second degree offer in Range 2. And that’s what
        the State did. They made an offer in Range 2 for 40 years, which is essentially a
        compromise between a 25-year maximum on Range 1 in second degree murder, and
        a mandatory life sentence on first degree murder as a “Range 1 Offender.”

Trial counsel also recalled specific conversations he had with the petitioner about why he could be
sentenced outside his normal range. He testified that running one of the petitioner’s one-year forgery
sentences consecutively to the forty-year sentence for second degree murder was in exchange for the
State’s dismissal of an attempted escape charge the petitioner had received, based on his
participation with fellow inmates in an escape attempt from the Roane County Jail.

        Trial counsel identified his handwriting on the guilty plea agreement in a notation to the side
of the page that states, “Total Effective Sentence 41 years,” with the words “Range II” crossed out
below it. He said he did not know why he had crossed out the words “Range II,” but it may have
been because the forgery sentences were Range I, which meant that the effective sentence “was
actually 40 years in Range 2, and one year in Range 1.” Trial counsel explained that he had
answered the trial court’s final question at the guilty plea hearing because the court had been looking
at him when he asked it. He further testified, however, that he did not know that the petitioner had
not responded to the question as well and that he may have nodded.

        On cross-examination, trial counsel acknowledged that the prosecutor had wanted to delay
the entry of the petitioner’s guilty pleas until after the disposition of the codefendant’s case but that
the petitioner, who was eager to be transferred from the county jail to the penitentiary, had insisted
that the guilty plea hearing be held earlier. Trial counsel confirmed that the same plea agreement
had been in place for months:




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        Q       Yes. Do you remember our conversation, and me wanting to wait until after
        the disposition of the co-defendant before we actually entered his plea?

        A       Yes.

        Q       And is he the person who was contacting you, wanting to get that plea done?

        A       Yes.

        Q        And is there anything about his sentence that you see there in the transcript,
        that is different from what his agreement was, and had been for months?

        A      I’ve not looked at the judgment order, but the plea agreement is exactly what
        our agreement was.
               (Looks at documents.)
               Yes, this is the agreement. Plus, I don’t see the dismissal on the attempted
        escape, but I think that was dismissed, too.

        Q      Yes. If you recall, we did the one year consecutive here, basically, instead of
        pursuing the felony escape item. And that way he didn’t have to come back here.

        A       That’s right.

Finally, trial counsel testified there was nothing about the petitioner to indicate that he was under the
influence of any drugs or otherwise unable to understand what he was doing when he entered his
guilty pleas.

        At the conclusion of the hearing, the post-conviction court denied the petition, finding that
it was clear from the record that the petitioner had known exactly what he was doing when he
entered the guilty pleas. In a detailed written order entered on December 17, 2004, the court found,
among other things, that trial counsel was an experienced criminal attorney, that he had been well-
prepared for the case, and that the petitioner had failed to show that his representation had been
deficient in any way. The court further found that the petitioner had fully understood the plea
agreement, including the difference between a Range I and Range II sentence, and had therefore
entered the pleas knowingly, voluntarily, and intelligently.

                                             ANALYSIS

                                I. Post-Conviction Standard of Review

         The post-conviction petitioner bears the burden of proving his allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2003). When an evidentiary hearing
is held in the post-conviction setting, the findings of fact made by the court are conclusive on appeal


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unless the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d 497, 500 (Tenn.
1996). Where appellate review involves purely factual issues, the appellate court should not reweigh
or reevaluate the evidence. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However,
review of a trial court’s application of the law to the facts of the case is de novo, with no presumption
of correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective
assistance of counsel, which presents mixed questions of fact and law, is reviewed de novo, with a
presumption of correctness given only to the post-conviction court’s findings of fact. See Fields v.
State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

                               II. Ineffective Assistance of Counsel

        To establish a claim of ineffective assistance of counsel, the petitioner has the burden to show
both that trial counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064, 80 L. Ed. 2d 674 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App.
1997) (noting that same standard for determining ineffective assistance of counsel that is applied in
federal cases also applies in Tennessee). The Strickland standard is a two-prong test:

        First, the defendant must show that counsel’s performance was deficient. This
        requires showing that counsel made errors so serious that counsel was not
        functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
        Second, the defendant must show that the deficient performance prejudiced the
        defense. This requires showing that counsel’s errors were so serious as to deprive the
        defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687, 104 S. Ct. at 2064.

         The deficient performance prong of the test is satisfied by showing that “counsel’s acts or
omissions were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland, 466 U.S.
at 688, 104 S. Ct. at 2065; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong
of the test is satisfied by showing a reasonable probability, i.e., a “probability sufficient to undermine
confidence in the outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In the context of a guilty
plea, the petitioner must show a reasonable probability that were it not for the deficiencies in
counsel’s representation, he would not have pled guilty but would instead have insisted on
proceeding to trial. Hill v. Lockart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985);
House v. State, 44 S.W.3d 508, 516 (Tenn. 2001).

                  III. Petitioner’s Claims of Ineffective Assistance of Counsel

        In support of his ineffective assistance of counsel claim, the petitioner cites his testimony that
trial counsel did not meet with him until eight to ten months after he was indicted, did not review


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discovery with him or discuss possible defenses other than his mental status, and did not explain the
charges against him or the difference between a Range I and Range II sentence for second degree
murder. The petitioner contends that were it not for these alleged deficiencies in counsel’s
representation, in particular counsel’s alleged failure to explain the sentence, he would not have pled
guilty but instead would have insisted on going to trial.

         The record in this case, however, fully supports the post-conviction court’s finding that
counsel provided effective representation. Trial counsel’s testimony, which was accredited by the
post-conviction court, established that he met with the petitioner on a number of different occasions,
including before the petitioner’s case had been transferred to criminal court, that he thoroughly
prepared for and investigated the case, and that he fully informed the petitioner of the consequences
of the plea agreement, including the difference between a Range I and Range II sentence. At the
evidentiary hearing, trial counsel recalled with specificity the context of his discussions with the
petitioner:

               And I discussed with that whereas he did not have enough convictions to
       actually be, if he were convicted of second degree murder, he could not be sentenced
       in Range 2. However, if he pled guilty to second degree murder, he could, by
       agreement, be sentenced as a Range 2 Offender, if that was the agreement of the
       parties. That the case law holds that despite the fact the defendant does not have the
       requisite convictions to place him in Range 2, he can, by agreement, agree that he is
       in Range 2, and be sentenced in Range 2. And that was a pure compromise between
       the mandatory 60 on a first degree murder and the 25-year max on second degree
       murder in Range 1.

        In sum, there is no evidence that counsel was deficient in his representation or that the
petitioner would not have pled guilty were it not for counsel’s alleged deficiencies. We conclude,
therefore, that the petitioner is not entitled to post-conviction relief on the basis of his claim of
ineffective assistance of counsel.

                                 IV. Voluntariness of Guilty Plea

        In an interrelated claim, the petitioner also contends that his guilty pleas were not knowingly,
voluntarily, or intelligently entered. Specifically, he asserts that he entered into the pleas under the
mistaken belief that he was agreeing to be sentenced as a Range I offender for the second degree
murder conviction. In support, he cites his testimony that trial counsel failed to explain the sentences
to him and that he was in extreme pain and under the influence of Lortab at the time he entered his
pleas. In addition, he points to the fact that the words “Range II” were stricken from trial counsel’s
note on his plea agreement and that it was trial counsel who answered the trial court’s question about
whether the prosecutor had accurately stated what the plea agreement entailed. The State argues that
the evidence supports the post-conviction court’s finding that the petitioner freely, voluntarily, and
knowingly entered his plea. We agree with the State.



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         When analyzing a guilty plea, we look to the federal standard announced in Boykin v.
Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), and the state standard set out in
State v. Mackey, 553 S.W.2d 337 (Tenn. 1977). State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999).
In Boykin, the United States Supreme Court held that there must be an affirmative showing in the
trial court that a guilty plea was voluntarily and knowingly given before it can be accepted. 395 U.S.
at 242, 89 S. Ct. at 1711. Similarly, the Tennessee Supreme Court in Mackey required an affirmative
showing of a voluntary and knowledgeable guilty plea, namely, that the defendant has been made
aware of the significant consequences of such a plea. Pettus, 986 S.W.2d at 542. A plea is not
“voluntary” if it results from ignorance, misunderstanding, coercion, inducements, or threats.
Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The trial court must determine if the guilty
plea is “knowing” by questioning the defendant to make sure he or she fully understands the plea and
its consequences. Pettus, 986 S.W.2d at 542; Blankenship, 858 S.W.2d at 904.

         Because the plea must represent a voluntary and intelligent choice among the alternatives
available to the defendant, the trial court may look at a number of circumstantial factors in making
this determination. Blankenship, 858 S.W.2d at 904. These factors include: (1) the defendant’s
relative intelligence; (2) his familiarity with criminal proceedings; (3) whether he was represented
by competent counsel and had the opportunity to confer with counsel about alternatives; (4) the
advice of counsel and the court about the charges against him and the penalty to be imposed; and (5)
the defendant’s reasons for pleading guilty, including the desire to avoid a greater penalty in a jury
trial. Id. at 904-05.

         Trial counsel’s testimony, which was accredited by the post-conviction court, established
that the petitioner was fully informed of the consequences of his pleas, including the fact that he was
agreeing to be sentenced outside his normal range for the second degree murder conviction; that it
was the petitioner who insisted that he be allowed to enter his pleas before his codefendant’s case
had been resolved, due in part to his desire to expedite his transfer from the Roane County Jail; and
that the petitioner did not appear to be under the influence of any drug at the hearing.

         The petitioner’s own testimony established that he had obtained his GED and that he was
able to read and write. He acknowledged that he signed the guilty plea agreement, which clearly
stated the State’s recommended sentence for the second degree murder conviction as “40 yrs, R-II
multiple-A 100 % Service-Violent.” Moreover, trial counsel explained why he might have crossed
out the words “Range II,” beneath the words “Total Effective Sentence 41 years.” We note that
nowhere does the agreement state that the total effective sentence is 41 years as a Range I offender.
Furthermore, the transcript of the guilty plea hearing reflects that the petitioner responded
appropriately when asked if he understood the various constitutional rights as described by the trial
court, if he understood he was waiving certain rights by pleading guilty, whether he had been fully
informed of the charges and the plea agreement by his counsel, whether he understood his guilty
pleas, and whether he was satisfied with counsel’s representation.




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       As the following exchange between the prosecutor and the petitioner at the post-conviction
hearing reveals, the petitioner was apparently satisfied with his plea bargain until he reached the
penitentiary and began talking about his sentence with the inmate law clerk:

       Q      Okay. Now the truth is, you weren’t worried about this sentence, because you
       got what you thought you were getting, until you got up to the prison, and some
       inmate said, well, you’re not really Range Two. You should be Range One?

       A       Uh-huh (affirmative).

       Q       And that’s what got you all fired up; true?

       A       I should have got 25 years, yes, sir.

       Q       Okay. But that wasn’t your agreement, was it?

       A       I didn’t know that that was a possible agreement that I could have had.

       Q      Well, let me stop you right there, Mr. Roysden. It wasn’t. You weren’t ever
       going to be offered that. And your lawyers told you that, didn’t they?

       A       No, they never told me that.

        We, therefore, conclude that the record fully supports the post-conviction court’s finding that
the petitioner’s guilty pleas were knowingly, intelligently, and voluntarily entered.

                                          CONCLUSION

        Based on our review, we conclude that the petitioner has failed to show either that trial
counsel was ineffective or that his guilty pleas were unknowing and involuntary. Accordingly, we
affirm the denial of his petition for post-conviction relief.


                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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