        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                      Assigned on Briefs at Knoxville July 27, 2010

             EDDIE LEE MURPHY, SR. v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Sumner County
                          No. 624-2007 Tom E. Gray, Judge


                No. M2009-01993-CCA-R3-PC - Filed January 20, 2011


The Petitioner, Eddie Lee Murphy, Sr., appeals the Sumner County Criminal Court’s denial
of post-conviction relief from his conviction for felony murder and resulting life sentence.
See T.C.A. § 39-13-202(a)(2) (2003) (amended 2005, 2007). He contends that the trial court
erred in denying him relief because (1) he did not understand the nature of the charges
against him and the consequences of his guilty plea, (2) he was not adequately informed of
his right against self-incrimination, (3) trial counsel was ineffective, and (4) his guilty plea
was involuntary. We affirm the judgment of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,
J R., and D. K ELLY T HOMAS, J R., JJ., joined.

Mike Carter, Gallatin, Tennessee, for the appellant, Eddie Lee Murphy, Sr.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; L. Ray Whitley, District Attorney General; and Wayne Hyatt, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                           OPINION

        The Petitioner pled guilty to felony murder. The State’s recitation of facts at the guilty
plea hearing reflected that he killed Dorothy Jordan while committing a robbery. The victim
was seventy-seven years old and lived alone. Gallatin Police Investigator Charlie Harris
found her body in her home on June 8, 2004. The victim was lying in the doorway separating
the living room from the hallway. She had a four-inch cut on the left side of her throat and
defensive wounds on both hands.
       Officer Harris’s investigation revealed that the victim’s purse and a dresser drawer
had been searched. Officer Harris found bloodstains throughout the home and found a chair
overturned in the living room. On the day of the murder, police found a small tag in the
victim’s driveway with “567 Small” written on it.

      Tom Deering of the Davidson County Medical Examiner’s Office performed an
autopsy and found that the cause of death was the laceration to the victim’s throat. Dr.
Deering determined that the victim died between 7:00 a.m. and 10:00 a.m. on June 8, 2004.

        The police developed the Petitioner as a suspect through various witness interviews.
At approximately 11:00 p.m. on the day after the murder, police located the Petitioner in
Nashville at the home of his aunt, Mary Thomas. Police found a pair of black Nike tennis
shoes at the home. The Petitioner’s cousin, Perry Adams, at first claimed that the shoes were
his but later stated that the shoes belonged to the Petitioner, who asked him to switch shoes.
The Petitioner admitted to the police that the shoes were his and that he had asked his cousin
to switch shoes. A Metro Police Department crime scene investigator confirmed that the
shoes had blood on them. The Tennessee Bureau of Investigation’s (TBI’s) crime laboratory
tested the shoes and found that the blood samples matched the victim’s DNA.

       The Petitioner told Officer Harris that he lived at 567 Small Street in Gallatin, which
was one of the victim’s rental properties. He admitted he was in Gallatin during the time of
the murder. The Petitioner said that he lived at the Small Street address with a woman named
Kim Franklin and that he did maintenance work on the victim’s rental properties to help Ms.
Franklin pay the rent. The Petitioner told the officer that he had been in the victim’s house
before and that he would routinely call the victim to see if she had any work for him. The
Petitioner also cut the grass at several of the victim’s rental properties. Shortly before her
murder, the victim told her handyman that she was not satisfied with the Petitioner’s work
and that she wanted her handyman to cut the grass.

        On June 10, 2004, police executed a search warrant at the Petitioner’s home. The
police found a shirt in the dryer that was covered in bleach and appeared to have bloodstains
on it. The Petitioner smelled of bleach when he was found in Nashville the day before, and
he claimed the odor was from washing dishes. The shirt he was wearing also appeared to be
stained with bleach. At the guilty plea hearing, the Petitioner agreed under oath that the facts
as recited by the State were substantially correct.

        The Petitioner filed a pro se petition for post-conviction relief on July 20, 2007, and
the trial court appointed counsel. At the post-conviction hearing, the Petitioner testified that
he attended high school through the eleventh grade but did not graduate. He agreed he was
housed in the Department of Correction from the time of his arrest through his guilty plea.

                                              -2-
He said that trial co-counsel, who represented him at the plea hearing, sent him a stack of
discovery materials in 2004 but that he did not see trial counsel until 2005 when he was
transferred to Riverbend Maximum Security Institution (“Riverbend”). He said trial counsel
did not go over the materials, did not read the papers to him, and did not point out specific
documents.

        The Petitioner testified that from the time of the murder in 2004 until he entered his
plea in August 2006, he wanted to go to trial and believed that trial counsel was preparing
for trial. He said he discussed the evidence with trial counsel’s investigators and then spoke
with trial counsel. He agreed that trial counsel visited him, presented information about his
case, and discussed issues.

        The Petitioner testified that he met with co-counsel on August 28, 2006. He said that
he did not read the plea agreement before signing it but that co-counsel read it to him and
held it where he could see it. He said he did not ask questions about the agreement at the
August 28 meeting. The plea agreement was entered into evidence, and the Petitioner read
the following handwritten sentence from it: “Plea to felony murder, count two; the
premeditated murder count is to be dismissed, count one.” He said that the agreement did
not indicate what the sentence would be or what the elements of felony murder were and that
he did not discuss the elements of felony murder with co-counsel. He said he signed the plea
agreement on August 28 because trial counsel told him in a past meeting that he could not
win the case and because his mother encouraged him to enter a guilty plea.

       The Petitioner testified that the plea agreement did not mention consecutive
sentencing and that trial counsel did not discuss consecutive sentencing during their August
28, 2006 meeting. He agreed he was serving a sentence from a parole violation when he
signed the plea agreement. He reviewed the judgment and read that it stated his sentences
would run consecutively. He said consecutive meant that he would have to finish one
sentence and start another.

        The Petitioner testified that the trial court did not explain the elements of felony
murder. He said the trial court told him that he was giving up the right to a trial by jury and
the right to appeal. He said that he did not understand that serving a life sentence would be
fifty-one years and that trial counsel did not explain it to him before the hearing. He said that
when the trial court explained that his earliest parole eligibility would be after fifty-one years,
he tried to talk to trial counsel but that counsel told him to wait until after the hearing. He
said he would not have entered the plea agreement if he had understood that eligibility would
be after fifty-one years.




                                                -3-
      The Petitioner testified that he was aware that trial counsel hired a mitigation expert,
which he defined as a “person who tries to keep the death penalty off the table.” He said he
had hoped that if convicted of first degree murder, he would not get the death penalty.

        The Petitioner testified that the trial court did not mention his privilege against self-
incrimination. He agreed the trial court told him that he had the right to take the case to trial,
the right to cross-examine the State’s witnesses, the right to call witnesses on his own behalf,
the right to testify, and the right to have the jury instructed that his decision not to testify
could not be used against him. He defined self-incrimination as “you get up on the stand and
basically just tell on yourself.” After reviewing a paragraph from the plea hearing transcript,
he said the court told him that he had the right to defend himself. He said that he understood
he could either “tell on” himself or defend himself and that no one explained the difference
to him or defined self-incrimination.

       The Petitioner testified that he asked trial counsel to explore additional evidentiary
issues but that trial counsel only responded that the investigator would look into them. He
said that the key tag with 567 on it was not tested for fingerprints and that if he had known
a neighbor saw a sport utility vehicle (SUV) parked in back of the victim’s house, he would
not have pled guilty. He said that trial counsel did not discuss with him the items he wanted
investigated.

        On cross-examination, the Petitioner testified that he was forty-four years old and that
when he entered his guilty plea, he was forty-one years old. He said he could read. He
agreed that he pled guilty to robbery on June 22, 2000, that the same trial judge presided at
that hearing as when he pled guilty in this case, and that the judge questioned him then about
whether he wanted to plead guilty. He agreed that his charge in 2000 was for aggravated
robbery and that it was reduced to robbery when he pled guilty. He said he knew that the
State was asking for the death penalty and that the State would drop the request if he pled
guilty. He said that he knew he would avoid going to trial and possibly receiving the death
penalty by pleading guilty but that the difference in punishment was not the reason for his
plea.

       The Petitioner testified that he had a good relationship with trial counsel and co-
counsel and that he met with them multiple times. He said that trial counsel hired a private
investigator on his behalf and that he met with two investigators five or six times. He said
the investigators talked about the people he was with the night before the murder but not
about the evidence. He agreed that trial counsel discussed the State’s evidence with him and
that when he pled guilty, he knew what the State’s evidence was. He said trial counsel told
him about an inmate whom the State intended to call as a witness against him. He said
counsel told him that the inmate would testify to overhearing the Petitioner admit to the

                                               -4-
killing. He said the State was prepared to prove that the shoes with the victim’s blood were
his shoes, but he denied that the shoes were his. He agreed that he knew about the key tag
but denied that he knew the State was prepared to show he had a large amount of money on
him at the time of the murder.

        The Petitioner testified that he told the trial court he understood the proceedings and
that he did not lie to the court. He said he was not under the influence of alcohol or drugs
when he entered his plea. He said he answered the trial court truthfully when he agreed that
trial counsel reviewed the plea agreement with him, that he understood it, and that he signed
it. He said when the trial court asked him if he understood what he was doing there and he
said yes, he meant that he understood why he was in court and that he was charged with
felony murder. He agreed that he understood the sentence for felony murder would be life
with parole but said that he “just didn’t understand the law.”

        The Petitioner testified that his answers to the trial court’s questions in which he
admitted entering the victim’s home and murdering her and said he still wished to enter a
guilty plea were correctly entered in the transcript as “Yes, ma’am.” He agreed that he heard
the State recite the facts at the plea hearing and that he heard the State ask that the sentence
run consecutively to his robbery sentence. He said that at the time of the plea hearing, he did
not know the difference between consecutive and concurrent but that he had since learned
the difference.

       The Petitioner testified that he believed fingerprint testing of the key tag would have
shown that his fingerprints were not on the tag and that this result would have made a
difference because “latent testing” of the victim’s house showed that his fingerprints were
not there. He agreed that the evidence would have looked worse for him if his fingerprints
were on the tag and that he did not know if his prints would have been found. He said trial
counsel did not discuss with him the advantages and disadvantages of pleading guilty and
receiving a life sentence.

       Co-counsel testified that he was appointed to represent the Petitioner six days after
the State filed a notice in August 2005 that it would seek the death penalty. He said that he
was a death penalty qualified attorney and had handled approximately ten cases in which the
State was pursuing the death penalty plus others in which the State filed a notice of intent to
seek the death penalty in an effort to settle. He said he met several times with the Petitioner
at Riverbend, sometimes alone and sometimes with trial counsel. He said both he and trial
counsel were in the courtroom when the Petitioner entered his guilty plea.

       Co-counsel testified that he last met with the Petitioner on August 28, 2006, and that
he reviewed the plea petition with him then. He said his usual practice was to go over a plea

                                              -5-
word for word with the client sitting beside him. He said the plea agreement entered into
evidence in this case was the agreement required by Tennessee Rule of Criminal Procedure
11. He said the Petitioner had to understand the offense to which he was pleading and the
consequences in order to enter an intelligent plea. He acknowledged that the plea did not
state that the life sentence would equate to sixty years or fifty-one years before parole
eligibility.

        Co-counsel testified that in a meeting on August 16, 2006, he and trial counsel
discussed with the Petitioner parole eligibility after fifty-one years and the difference
between a life sentence without parole and one with parole. He said he told the Petitioner
that the difference would mean little to him because he would probably die in prison either
way. He said he and trial counsel did not think the State would offer life with the possibility
of parole. He said he was certain that between August 16, 2006, and the plea hearing sixteen
days later, he and trial counsel reviewed many times with the Petitioner what a life sentence
meant and how long the Petitioner would serve.

       Co-counsel testified that he remembered conversations in which he explained the
elements of felony murder to the Petitioner. He said the Petitioner did not say he had
difficulty understanding the difference between self-incrimination and taking the witness
stand. He said he did not remember the Petitioner’s trying to interrupt to ask a question
during the plea hearing.

       On cross-examination, co-counsel testified that he was a criminal defense lawyer in
a public defender’s office in Kentucky for four years and in the Davidson County Public
Defender’s Office for five years. He said that he generally acted as lead counsel on death
penalty cases and that trial counsel had been second-chair, co-counsel with him before. He
said that in this case, trial counsel was appointed and that he offered to be co-counsel. He
said that after being appointed to the case, he reviewed trial counsel’s files and several
hundred pages of the State’s discovery materials, including lab reports, TBI reports, DNA
reports, serology reports, and videotapes. He said that he reviewed the case from August to
November 2005 and that he first met with the Petitioner, along with trial counsel, in
November 2005.

        Co-counsel testified that the Petitioner was cooperative when reviewing the case. He
said that Dr. Pam Auble completed a mental health evaluation of the Petitioner and that one
of her suggestions was to give information to the Petitioner in concrete blocks and general
summaries. He said that he and trial counsel prepared for the case in two phases, the
guilt/innocence phase and the penalty phase, and that the mental health evaluation was in
preparation for the penalty phase. He said that the penalty phase defense team included a



                                              -6-
mitigation investigator or specialist and a mental health specialist and that trial counsel also
requested funds to hire an additional mitigation specialist.

       Co-counsel testified that he met with the Petitioner between six and ten times while
preparing the case. He said trial counsel requested the Petitioner’s transfer to Riverbend in
order for the Petitioner to be more accessible to counsel. He said that he believed the
Petitioner understood what they were discussing and that he and trial counsel answered the
Petitioner’s questions. He said he and trial counsel conducted a mock cross-examination of
the Petitioner at Riverbend.

        Co-counsel testified that he discussed with the Petitioner what the State would have
to prove for a felony murder conviction. He said that without the plea agreement, it was
likely the Petitioner would have received the death penalty. He said that the evidence against
the Petitioner included a confidential informant, the blood matching the victim’s DNA found
on the shoe, a witness identifying the shoe, the key tag found in the victim’s driveway, dogs
that tracked the Petitioner, and a prison informant’s testimony. He said he did not remember
the Petitioner’s asking counsel to investigate telephone records or fingerprints on any seized
items, including the key tag. He said that the Petitioner’s post-conviction counsel called him
to ask about telephone records, that he went through his records and talked to trial counsel,
but that he found nothing indicating that the Petitioner asked for telephone records or
fingerprint testing.

        Co-counsel testified that he and trial counsel conducted the mock direct and cross-
examination of the Petitioner on August 16, 2006, and that afterward, they discussed the plea
possibilities with the Petitioner. He said that the Petitioner asked counsel to call the
prosecutor about a possible plea agreement and that counsel contacted the prosecutor that
day. He said that on August 22, he discussed the plea status with the Petitioner at the prison
and that on August 28, he received a call from the prosecutor agreeing to settle. He said that
later on August 28, he met with the Petitioner and reviewed the specific conditions before
the Petitioner signed the petition. He said he also called the mitigation specialist and the
Petitioner’s mother to discuss the Petitioner’s decision. He said that the Petitioner’s mother
wanted the Petitioner to plead guilty and avoid the death penalty and that counsel met with
her about the details of the guilty plea a few days after the Petitioner signed the petition to
plead guilty. He said that on August 29, he and trial counsel met with the Petitioner again
and that he had no doubt the Petitioner knew what he was doing when he pled guilty.

       On redirect examination, co-counsel testified that he was responsible for working with
Dr. Auble and reviewing the mental evaluation. He said the Petitioner’s IQ was seventy-six
overall, which was in the low range of average intelligence. He said that he spent a lot of
time explaining the case to the Petitioner and that he followed Dr. Auble’s communication

                                              -7-
suggestions because he wanted the Petitioner to understand the case, particularly because the
death penalty was a possibility. He said they discussed the Petitioner’s concern about his
mother’s and his son’s ability to visit him in prison and his concern that he did not want his
mother to have a son on death row.

        The trial court found that the Petitioner’s appointed counsel formed a team, with one
directing the guilt phase and one directing the penalty phase. The court found that counsel’s
mitigation team determined the Petitioner’s IQ to be slightly below average and that defense
counsel accepted the mitigation team’s advice to speak in concrete rather than abstract terms
to the Petitioner. In denying post-conviction relief, the trial court concluded:

                     [Trial co-counsel] was a credible witness in this matter.
              He is credible when he stated that there was discussion with Mr.
              Murphy about the death penalty, high probability of conviction,
              and that there was discussion of his mother’s wishes, and also
              consideration of his son.

              ...

                     Also, there was discussion about his age and the number
              of years of actual time that he would serve before he became
              eligible for parole. And from the work of the attorneys, from
              the communication with Mr. Murphy by his attorneys, the Court
              finds that Mr. Murphy understood the plea agreement that he
              was offered, that he comprehended and understood, that he
              knowingly entered into that agreement voluntarily, of his own
              free will, that the two attorneys representing Eddie Lee Murphy,
              Sr. were effective, and the petitioner has not established that the
              services of his attorney [were] below the range of competence
              [and/or] that any acts done by them, any assistance provided to
              him, was prejudicial to his case. As to any allegation of
              ineffective assistance of counsel that’s dismissed.

                     The burden of proof is upon the petitioner by clear and
              convincing evidence that did not occur here. It didn’t even
              occur by a preponderance of the evidence.

              ...




                                              -8-
                     The Court finds today, that upon the arrest of . . . Mr.
              Murphy, that he was incarcerated in the Department of
              [Correction] because he was out on parole. Since he was out on
              parole, the Court then infers that he was–he’s familiar with the
              criminal justice system, and that he’s familiar with his Fifth
              Amendment Right.

                      There was no inadequacy on explaining this to him. Mr.
              Murphy has not proven, by clear and convincing evidence, that
              he didn’t understand this right against self incrimination, or that
              he did not voluntarily, with lack of understanding, sign the plea
              agreement and enter into that plea agreement then three days
              later in front of Judge Wheatcraft. The guilty plea was
              voluntarily with understanding that he made a full–with full
              competence of his plea, full competence to the understanding of
              this plea, and the punishment. He understood the charges. He
              also understood about self incrimination.

The Petitioner appealed.

        The burden in a post-conviction proceeding is on the petitioner to prove the
allegations of fact by clear and convincing evidence. T.C.A. § 40-30-110(f) (2010);
Dellinger v. State, 279 S.W.3d 282, 294 (Tenn. 2009). A petitioner is required to provide
“allegations of fact explaining why each ground for relief was not previously presented in
any earlier proceeding.” T.C.A. § 40-30-104(e) (2010). 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. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). Post-conviction
relief may only be given if a conviction or sentence is void or voidable because of a violation
of a constitutional right. T.C.A. § 40-30-103 (2010).

                                    I (Issues 1, 2, and 4)

       The Petitioner contends that his guilty plea was involuntary because he was not
adequately informed of and did not understand the nature of the charges against him, the
consequences of his guilty plea, and his right against self-incrimination. The State contends
that the Petitioner knew the nature of the charges against him and the consequences of
pleading guilty and that he was adequately informed of his rights. We agree with the State.

      When evaluating the knowing and voluntary nature of a guilty plea, the United States
Supreme Court has held that “[t]he standard was and remains whether the plea represents a

                                              -9-
voluntary and intelligent choice among the alternative courses of action open to the
defendant.” North Carolina v. Alford, 400 U.S. 25, 31 (1970). The court reviewing the
voluntariness of a guilty plea must look to the totality of the circumstances. See State v.
Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995). The circumstances include:

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

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993); see also Caudill v. Jago, 747 F.2d
1046, 1050-52 (6th Cir. 1984). A plea resulting from ignorance, misunderstanding, coercion,
inducement, or threats is not “voluntary.” Blankenship, 858 S.W.2d at 904 (citing Boykin
v. Alabama, 395 U.S. 238, 242-43 (1969)).

        The trial court is charged with determining if the guilty plea is “knowing” by
questioning the defendant to ensure that he or she fully understands the plea and its
consequences. State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999) (citing Boykin, 395 U.S.
at 243-44). In Boykin, the United States Supreme Court stated that certain constitutional
rights are implicated in a plea of guilty, namely, the right to a trial by jury, the right to
confront witnesses, and the privilege against compelled self-incrimination, and that it would
not presume a waiver of these three important rights from a silent record. 395 U.S. 238, 243
(1969). Rule 11(b) of the Tennessee Rules of Criminal Procedure outlines advice to be given
to a defendant entering a plea and explicit procedures for insuring on the record that guilty
pleas are voluntarily and understandingly made. However, only the constitutionally grounded
rights stated in Boykin are addressable, per se, under the Post-Conviction Procedure Act. See
State v. Prince, 781 S.W.2d 846, 853 (Tenn. 1989).

        The Petitioner contends that he did not understand the nature of the charge against him
because the trial court did not explain the elements of felony murder, particularly the mental
state required for the underlying felony. The State responds that the Petitioner received a full
explanation of the charge to which he was pleading guilty. We agree with the State.

       Absent an explanation of the charge from the trial court, the fact that the Petitioner
signed the plea agreement is not sufficient proof that he understood the nature of the charge.
See State v. Crowe, 168 S.W.3d 731, 749 (Tenn. 2005). However, this court may determine

                                              -10-
that the Petitioner received an adequate understanding of the charge from other sources,
including the indictment, the prosecution’s summation of the facts at the plea hearing, self-
explanatory legal terms in the charge, and defense’s counsel’s advice. See id. At the time
of the offense, felony murder was defined pertinently as “a killing of another committed in
the perpetration of or attempt to perpetrate any first degree murder, act of terrorism, arson,
rape, robbery, burglary, theft, kidnapping, aggravated child abuse, aggravated child neglect
or aircraft piracy.” T.C.A. § 39-13-202(a)(2) (2003) (amended 2005, 2007).

        The Petitioner contends that because the trial court did not explain the mental state for
the underlying crime of robbery or theft, he did not understand what the State was required
to prove at trial for felony murder. The indictment alleged that the Petitioner killed the
victim during the perpetration of a robbery or theft. At the plea hearing, the Petitioner
accepted the prosecutor’s recitation of facts as true, including that the victim was an elderly
woman who lived alone and that the Petitioner was familiar with her home. The Petitioner
also answered “Yes, ma’am” to each question when the trial court asked in simple terms if
he broke into the victim’s home, robbed her, and murdered her. The Petitioner
acknowledged that he pled guilty to robbery in 2000. The record indicates that the Petitioner
was familiar with the elements of robbery and that he admitted knowing the victim’s living
situation, breaking into her home, stealing from her, and killing her. See T.C.A. § 39-13-401
(2010) (“Robbery is the intentional or knowing theft of property from the person of another
by violence or putting the person in fear.”). We also note that co-counsel testified that he
discussed the elements of felony murder with the Petitioner. We conclude that the Petitioner
was adequately informed of and understood the nature of the charges against him.

        The Petitioner contends that he did not understand the consequences of his guilty plea
because he did not understand the meaning of consecutive sentencing or realize that a life
sentence with the possibility of parole meant fifty-one years’ incarceration before parole
eligibility. See T.C.A. § 39-13-202(c) (2006) (amended 2007); T.C.A. § 40-35-501(h)-(i)
(2003) (amended 2006, 2007, 2008, 2009, 2010). At the post-conviction hearing, the
Petitioner testified that he was serving a sentence for a parole violation when he entered this
guilty plea, and he acknowledged that the trial court told him at the plea hearing that his life
sentence would be consecutive to the sentence he was currently serving. The plea hearing
transcript shows that the trial court encouraged the Petitioner to ask questions of the court
or counsel at any point during the court’s explanation and questioning. The Petitioner had
the opportunity to ask for a definition of consecutive if it was unclear to him.

       As to the Petitioner’s eligibility for parole, the plea hearing transcript shows the
following exchange:

              Trial Court: And what is the sentence you are receiving?

                                              -11-
              Petitioner:    Life with the possibility of parole.

              Trial Court: And do you understand that a life sentence is sixty
                           years, and that the minimum time you would have
                           to serve before reaching your earliest parole
                           eligibility would be fifty-one years?

              Petitioner:    Yes, ma’am.

The Petitioner testified that at this point, he attempted to ask trial counsel a question about
the sentence and that counsel told him to wait until after the hearing. The transcript shows
no indication of a break in the proceeding, and co-counsel testified that he did not remember
the Petitioner’s attempting to ask a question. We conclude that the trial court did not err in
finding that the Petitioner was adequately informed regarding the consequences of his guilty
plea.

       The Petitioner contends that he did not understand the right against self-incrimination
waived by his guilty plea. The plea hearing transcript shows that the trial court outlined the
constitutional rights the Petitioner relinquished, including the following:

              [I]f you had a jury trial, you would have the right to take that
              witness chair and testify in your own defense. You would not
              have to do that, and if you elected not to testify, I would tell the
              jury that could not be held against you, but it is a right you’re
              giving up.

When the trial court asked the Petitioner if he understood that he was giving up this right, he
answered, “Yes, ma’am.” The court continued:

              Do you understand that in the course of accepting this plea, I’m
              going to question you about the underlying offense, and if you
              answer those questions under oath, on the record, and in the
              presence of counsel, your answers may later be used against you
              in a prosecution for perjury or false statement?

The Petitioner answered, “Yes, ma’am.”

      The Petitioner argues that because the court did not define the term self-incrimination
to him and because he thought it meant that he “could either tell on himself or defend
himself,” the court failed to explain this right adequately. The record reflects that although

                                             -12-
the trial court failed to call the right against self-incrimination by name, it explained the right
in simple and clear terms, and the Petitioner stated that he understood. At the post-conviction
hearing, the trial court concluded that co-counsel was a credible witness when he testified
that he sat with the Petitioner and read the plea agreement to him. The record shows that the
plea agreement contained an explanation of the Petitioner’s waiver of his right against self-
incrimination. The trial court did not err in finding that the Petitioner received an adequate
explanation of this right.

        We conclude that the trial court did not err in denying post-conviction relief on the
basis that the Petitioner entered his plea involuntarily and unknowingly. The court based its
finding on testimony regarding the Petitioner’s IQ and educational level, familiarity with the
criminal justice system, representation by counsel, extent of advice received from counsel
and the court, and reasons for pleading guilty, including the Petitioner’s concern about the
evidence against him and the well-being of his family members. The Petitioner is not entitled
to relief on these issues.

                                           II (Issue 3)

         The Petitioner contends that trial counsel rendered ineffective representation by failing
to (1) address evidentiary issues identified by the Petitioner, (2) discuss the benefits and
detriments of pleading guilty with a life sentence compared to trial with the death penalty as
a possibility, (3) explain that parole eligibility with a life sentence was after a minimum of
fifty-one years, (4) include the sentence information on the plea agreement, (5) discuss the
elements of felony murder with the Petitioner, (6) explain consecutive sentencing, (7) stop
the plea hearing when the Petitioner attempted to ask a question, and (8) explain the
Petitioner’s right against self-incrimination. The Petitioner also claims that but for trial
counsel’s errors, he probably would not have pled guilty and would have insisted on going
to trial. The State contends that there is no proof in the record to show that trial counsel were
deficient in their representation. We agree with the State.

        If a petitioner establishes the fact of counsel’s errors, the trial court must determine
whether those errors resulted in the ineffective assistance of counsel. Dellinger, 279 S.W.3d
at 293; see Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). Because they relate
to mixed questions of law and fact, we review the trial court’s conclusions as to whether
counsel’s performance was deficient and whether that deficiency was prejudicial under a de
novo standard with no presumption of correctness. Fields, 40 S.W.3d at 457.

       Under the Sixth Amendment to the United States Constitution, when a claim of
ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that
counsel’s performance was deficient and (2) that the deficiency was prejudicial. Strickland,

                                               -13-
466 U.S. at 687; see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). A petitioner will
only prevail on a claim of ineffective assistance of counsel after satisfying both prongs of the
Strickland test. See Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). The performance
prong requires a petitioner raising a claim of ineffectiveness to show that counsel’s
representation fell below an objective standard of reasonableness or “outside the wide range
of professionally competent assistance.” Strickland, 466 U.S. at 690. The prejudice prong
requires a petitioner to demonstrate that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.
at 694. When a petitioner pleads guilty, he must show a reasonable probability that, but for
the errors of his counsel, he would not have pled guilty. See Hill v. Lockhart, 474 U.S. 52,
59 (1985); Adkins v. State, 911 S.W.2d 334, 349 (Tenn. Crim. App. 1994).

        Our supreme court has held 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. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). 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). See id. 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. “Thus, the fact that a particular strategy or tactic failed or even
hurt the defense does not, alone, support a claim of ineffective assistance.” Cooper v. State,
847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). Deference is made to trial strategy or tactical
choices if they are informed ones based upon adequate preparation. Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982); see DeCoster, 487 F.2d at 1201.

       In denying post-conviction relief, the trial court dismissed all claims of ineffective
assistance of counsel, noting trial counsel’s organization in forming two teams for the phases
of representation, thoroughness in obtaining a mitigation team and additional investigator,
transfer of the Petitioner for close access to counsel, multiple meetings with the Petitioner,
and care taken in tailoring explanations to the Petitioner’s needs. We have held that the
Petitioner was adequately informed regarding the consequences of pleading guilty as opposed
to going to trial, the length of his sentence, the nature of the charge of felony murder,
consecutive sentencing, and his right against self-incrimination. We conclude that counsel’s
representation was not deficient in these areas.

        The Petitioner’s remaining claims are that counsel did not address some evidentiary
issues, did not include the sentence information on the plea agreement, and did not stop the
plea hearing when the Petitioner attempted to ask a question. As to evidentiary issues, the

                                              -14-
Petitioner testified that he asked trial counsel to test the key tag found in the victim’s
driveway for fingerprints and that he wanted his attorneys to investigate whether a neighbor
saw an SUV parked behind the victim’s house on the day of the murder. Co-counsel testified
that he looked through his notes and asked trial counsel and that neither recalled the
Petitioner asking for fingerprints. The Petitioner admitted that he did not know if his
fingerprints were on the key tag, and he offered no further proof regarding unexplored
evidentiary issues. The Petitioner argues that at the post-conviction hearing, the trial court
sustained an objection to the relevance of his testimony regarding additional evidentiary
issues and that the objection prevented him from showing trial counsel’s deficiency in this
area.

       “When a petitioner contends that trial counsel failed to discover, interview, or support
witnesses in support of his defense, these witnesses should be presented by the petitioner at
the evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990)
(holding that the petitioner’s conclusory statement that trial counsel failed to properly
investigate facts and potential witnesses was insufficient to show deficiency in counsel’s
representation). In this case, the Petitioner offered no proof that fingerprint testing of the key
tag would have changed his plea, and he did not produce any additional witnesses at the post-
conviction hearing. We conclude that the trial court did not err in finding that trial counsel
provided adequate investigation.

        The Petitioner also argues that trial counsel was deficient in failing to include the
sentencing information on the plea agreement and in failing to stop the plea proceedings
when the Petitioner asked counsel a question about parole eligibility. The record shows that
the plea agreement contained the following sentencing information: “I understand that the
Court has accepted the proposed sentence in this case and that the sentence as accepted by
the Court is as follows: Life in prison with the possibility of parole.” The Petitioner argues
that the agreement should have included information explaining eligibility for parole. No
such requirement exists for plea agreements. See Tenn. R. Crim. P. 11(c). In any event, the
trial court found co-counsel’s testimony that he discussed parole eligibility with the Petitioner
to be credible. The hearing transcript contains no indication that the Petitioner attempted to
ask a question as the court explained parole eligibility. These claims are without merit. We
hold that the Petitioner failed to carry his burden of showing that trial counsel were deficient
in their performance, and we also conclude that the record shows no proof that the
Petitioner’s decision to plead guilty was influenced by any errors of trial counsel.




                                              -15-
        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.


                                               ___________________________________
                                               JOSEPH M. TIPTON, PRESIDING JUDGE




                                             -16-
