         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs December 14, 2004

                    ROBERT ALLEN v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Hamblen County
                         No. 03-CR-279     James E. Beckner, Judge



                   No. E2004-00900-CCA-R3-PC - Filed February 16, 2005


The petitioner appeals the denial of his petition for post-conviction relief from his convictions for
aggravated robbery, aggravated assault, and second degree murder, raising two claims: (1) that he
was denied the effective assistance of trial counsel; and (2) that his guilty pleas were not knowing
and voluntary. Following our review, we affirm the judgment of the post-conviction court.

     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 GARY R. WADE , P.J., and JAMES
CURWOOD WITT , JR., J., joined.

William E. Phillips, II, Rogersville, Tennessee, for the appellant, Robert Allen.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General; C.
Berkeley Bell, Jr., District Attorney General; and Paige Collins, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION

                                              FACTS

        On October 11, 2002, the petitioner, Robert Allen, pled guilty in the Hamblen County
Criminal Court to aggravated robbery, a Class B felony; aggravated assault, a Class C felony; and
second degree murder, a Class A felony. Pursuant to the terms of his plea agreement, he was
sentenced as a Range I, standard offender to an effective sentence of twenty years. The facts of the
underlying crime are contained primarily in the transcript of the preliminary hearing held on
November 1, 2001. On October 20, 2001, the petitioner and a codefendant, Jimmy Tucker, went to
the apartment of Lamont Simpson in Morristown, while a third codefendant, Regina Tucker, waited
in the car. Apparently, Simpson had shot at Tucker earlier in the day, and the petitioner and Tucker
were going to “get even” with Simpson by shooting him. At the door of Simpson’s apartment, the
three conversed for a few minutes and then the petitioner pulled out a gun. Simpson slammed the
apartment door, and the petitioner fired the gun through the door. He and Tucker then shot through
the window, and one of the bullets struck Christina Clark, an occupant of the apartment, in the head,
killing her. The petitioner and the Tuckers fled from the scene, and the petitioner later stole a pickup
truck and $5.00 at gunpoint from Joshua Heft. The petitioner was subsequently arrested and charged
in an information by the district attorney general with aggravated assault on Simpson, aggravated
robbery of Heft, and second degree murder of Clark. The petitioner pled guilty based on the
information and waived his right to presentment or indictment by the grand jury.

        On September 29, 2003, the petitioner filed a pro se petition for post-conviction relief
alleging, inter alia, that he received ineffective assistance of counsel, that his guilty pleas were
unknowing and involuntary, that he was coerced by his family, at the behest of trial counsel, into
pleading guilty, and that a motion to withdraw the guilty pleas should have been filed based on newly
discovered evidence. Post-conviction counsel was appointed, and counsel filed an amended petition,
restating essentially the same grounds for relief. Although the petitioner made a variety of
allegations in his two petitions and at the evidentiary hearing of ineffective assistance, he confines
himself on appeal to arguing that trial counsel was ineffective because counsel’s investigator gave
the petitioner erroneous legal advice, which was not corrected by counsel, and, as a result, his pleas
were unknowing and involuntary.

        Although on appeal, as we understand the petitioner’s claims, his argument of ineffective
assistance of counsel is focused only on the assertion that trial counsel failed to correct erroneous
or incomplete legal advice given by their investigator, which caused the petitioner to involuntarily
plead guilty, we will review in detail the testimony at the evidentiary hearing.

        The investigator who assisted defense counsel in defending the petitioner testified that he had
been an investigator with the public defender’s office for approximately thirteen years and had
conducted an independent investigation into the facts of the petitioner’s case, including the
interviewing of witnesses. He obtained information not revealed by discovery, including the fact that
the police department had “failed to retrieve some valuable information,” such as the doors and
windows containing the bullet holes. He met “several times” with the petitioner but never gave the
petitioner any legal advice. He stated that he obtained the petitioner’s criminal record and reviewed
that history with the petitioner while the petitioner was incarcerated. He said that trial counsel met
with the petitioner “way more than three times,” and a defense strategy had been developed, which
was also explained to the petitioner. This strategy was based on their examination of various
witnesses and the evidence in the case, as well as visiting the crime scene and taking “numerous
photographs.” The defense team had also obtained the only written statement from the victim,
Lamont Simpson, who said he had shot at codefendant Jimmy Tucker several days prior to the
incident in question. The petitioner was given copies of materials received in the discovery process
and wrote several letters to defense counsel indicating certain avenues of defense.

       The petitioner’s trial counsel testified that, as a result of a probation violation in general
sessions court, the petitioner had been in jail for about a year before the guilty pleas. Counsel met
with the petitioner “on a number of occasions” during that year, including some meetings at which


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the investigator was present. He informed the petitioner that the State had set a deadline for
accepting the plea agreement, otherwise it intended to seek an indictment before the grand jury for
first degree murder. Asked if any of his actions might have coerced the petitioner into pleading
guilty, counsel responded that he simply informed the petitioner of the State’s intent to indict him
for first degree murder:

                I don’t think that what I said to him, except that I -- the facts were that if he
       did not accept this offer he was going to be indicted. I didn’t tell him that he would
       get a life sentence or that any other thing, because you can’t predict the outcome of
       that. But he was told that the grand jury -- the attorney general’s office would seek
       indictment for felony murder, first degree murder if this plea wasn’t accepted.

He told the petitioner that, if the plea were not accepted, “the offer that they had made to him would
terminate.”

         The petitioner testified he learned the public defender’s office was representing him right
before the preliminary hearing. He said that, during this representation, he met with the investigator
and trial counsel one time, a week before he pled guilty. Counsel told him that the State had set a
Friday deadline for accepting the plea agreement and that if he did not accept, the State intended to
“serve first degree murder indictments . . . conspiracy to commit first degree murder, attempted first
degree murder on Lamont Simpson, and aggravated assault and aggravated robbery.” Once these
indictments were served, the best plea that counsel would be able to obtain would be a “life
sentence.” This information made the petitioner feel “hopeless,” made even more so by the fact that
his criminal record could be used against him if he had gone to trial rather than pled guilty.
Concerning his prior criminal record, the petitioner stated, “I’ve got a history and I’m not proud of
it. And I know that I’ve done wrong in the past and I’ve had to lie in the past.” He said that an
“Officer Green” from Greene County had offered to provide favorable testimony for the petitioner,
but trial counsel did not contact Officer Green. He said he met with lead trial counsel only three or
four times in the year leading up to his plea agreement. He said that trial counsel never filed any
motions in the case, and “[i]t was just like he told me he could not win at trial.” He described the
“hopelessness” of the situation, stating, “I trusted him. And all this time, I mean -- I know I’m not
guilty of the crime but in a sense talking to him, the more I talked to him, the more I felt like I was
guilty. And then . . . it was like just messing with my mind.” He said he did not remember signing
a grand jury waiver form and never received a copy of any indictment, only an information. Asked
why he responded affirmatively at the guilty plea hearing concerning the voluntariness of his pleas,
the petitioner said trial counsel “was standing right beside of [him],” telling him to say “yes, sir.”
Although the petitioner stated that trial counsel went over the law and the State’s burden of proof,
he was never informed that he could be found guilty of a “way lesser crime.” The best he could hope
for at a trial would be a guilty verdict for first degree murder, which made him feel like he was going
to “get fried.”

        On cross-examination, the petitioner acknowledged he was given materials received from
the State in the discovery process, but counsel never reviewed it with him to develop a trial strategy.


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He was told that both of his codefendants had “turned state’s evidence” and were going to testify
against him. Everything he was told, by his view, was “a total coercion” to convince him to plead
guilty in order to “make their job easier.”

        Lead trial counsel testified he had handled “forty or fifty” murder cases in the past. During
this representation, he met with the petitioner “twenty to forty times, conservatively; maybe fifty,”
and reviewed with him “[e]very piece of evidence . . . received by virtue of . . . discovery motions
with the state,” as well as possible trial strategies. He identified two of the motions he filed on
behalf of the petitioner and said that he gave him copies of laws and statutes because he wanted to
review and study them. Even though the petitioner had not been indicted yet, counsel filed an “ex
parte motion” in order to obtain the services of a jury selection expert. He also went through the
sentencing aspects “time and time again” with the petitioner and advised him that once an indictment
was returned, “it would have been much more difficult to get any sort of plea agreement similar” to
what he was offered. He stated that the petitioner’s guilty plea hearing reflects that the petitioner
was “able to talk at will” and that counsel was “as loose as I’ve ever been with a defendant on a plea
so he could say anything that he likes.”

       On April 14, 2004, the post-conviction court entered written findings of fact and conclusions
of law denying the petitioner relief on his claims, and this appeal followed.

                                            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
unless the evidence preponderates against them. See State v. Burns, 6 S.W.3d 453, 461 (Tenn.
1999); 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, 6 S.W.3d at 461.

                               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.


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1997), perm. to appeal denied (Tenn. 1998) (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)). When analyzing a
petitioner's allegations of ineffective assistance of counsel, this court must indulge in a strong
presumption that the conduct of counsel fell within the range of reasonable professional assistance,
see Strickland, 466 U.S. at 690, 104 S. Ct. at 2066, and may not second-guess the tactical and
strategic choices made by trial counsel unless they were uninformed because of inadequate
preparation, see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

        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. When a petitioner’s ineffective assistance claim is made in the context
of a conviction stemming from a guilty plea, he must prove a reasonable probability that were it not
for deficiencies in his counsel’s performance, he would not have pled guilty but instead would have
insisted on going to trial. See Shazel v. State, 966 S.W.2d 414, 416 (Tenn. 1998) (quoting Hill v.
Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370-71, 88 L. Ed. 2d 203 (1985)). “In cases involving
a guilty plea or plea of nolo contendere, the petitioner must show ‘prejudice’ by demonstrating that,
but for counsel’s errors, he would not have pleaded guilty but would have insisted upon going to
trial.” Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998) (citing Hill, 474 U.S. at 59,
106 S. Ct. at 370; Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991)).

        Because both prongs of the test must be satisfied, a failure to show either deficient
performance or resulting prejudice results in a failure to establish the claim. See Henley, 960 S.W.2d
at 580. For this reason, courts need not approach the Strickland test in a specific order or even
“address both components of the inquiry if the defendant makes an insufficient showing on one.”
466 U.S. at 697, 104 S. Ct. at 2069; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective assistance
claim”).


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        The petitioner contends on appeal that the evidence shows that trial counsel was deficient in
that their investigator gave the petitioner erroneous legal advice, namely by telling him that if he
went to trial, his criminal record would be used to impeach him, without also explaining the Rules
of Evidence and steps that could be taken to prevent the use of the prior criminal record. In addition,
according to the petitioner, trial counsel knew “or should have known” of this erroneous legal advice
but took no steps to correct the investigator. The petitioner argues that “but for” this advice, the
result of the proceeding would have been different, namely, he would not have pled guilty but would
have insisted on going to trial.

         We note that, in his testimony during the evidentiary hearing, the petitioner testified as to
numerous alleged shortcomings of trial counsel and their investigator. However, he did not single
out and claim, as he now does on appeal, that he would not have pled guilty absent the alleged
erroneous information from the investigator as to the use the State would make of prior convictions.
In fact, as we understand the petitioner’s testimony, he received erroneous legal advice during only
one meeting with the investigator. His explanation as to this advice was only a very small part of
his testimony at the hearing and one of numerous claims of ineffective assistance of counsel. As we
read the claim, which he pressed at the hearing, he was pressured into pleading guilty. The post-
conviction court found that, in fact, his pleas were informed and voluntary. Not surprisingly, the
post-conviction court did not make a specific finding as to the erroneous advice claim which is the
centerpiece on appeal, for at the post-conviction hearing, it was presented only in passing as one of
many examples of ineffective assistance of counsel, the others of which are no longer being pursued.
However, we will review the petitioner’s appellate claims as best the record permits.

         At the plea submission hearing, after explaining each of the charges to the petitioner and what
the State would have to prove at trial, the trial court explained the range of punishment and release
eligibility for each of the charges. The trial court next inquired into the petitioner’s understanding
of his plea agreement with the State:

       THE COURT: All right. Is this your signature on this paper waiving your rights and
       pleading guilty to those charges?

       [THE PETITIONER]: Yes, sir.

       THE COURT: Have you read it, and do you understand it?

       [THE PETITIONER]: Yes, sir.

       THE COURT: Has [trial counsel] explained it to you?

       [THE PETITIONER]: Yes, sir.

       THE COURT: Do you understand that you have a right to a jury trial, which no one
       can take from you unless you waive it?


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[THE PETITIONER]: Yes, sir, I do.

....

THE COURT: That you have a right to remain silent or against self-incrimination,
you do not have to say or do anything at anytime that would incriminate you in these
charges and, further, if you chose to go to trial, you would not have to take the
witness stand and testify and, if you did not, that fact could not be held against you,
and a prior record could not be brought out against you? (emphasis added).

[THE PETITIONER]: Yes, sir.

....

THE COURT: Now is when I will explain to you about a best-interest plea. Under
United States Supreme Court case of North Carolina versus Alford, a person can
plead guilty even though they maintain their innocence if certain circumstances exist,
three in particular: Number one, you have to believe that from your knowledge of the
evidence against you in the case, that if you went to trial, you probably would be
found guilty of the offense to which you’re pleading guilty to; and, number two, you
have to believe that this disposition is a fair disposition to you; and, number three,
you have to believe that it is in your best interest under all the circumstances to enter
a plea of guilty as you are doing.

[THE PETITIONER]: Your Honor, did you say that I have to believe that it isn’t
fair?

THE COURT: No. No, sir. I said that you have to believe that it is fair to you.

[THE PETITIONER]: Okay.

....

THE COURT: Do you believe all those things?

[THE PETITIONER]: Yes, sir, I do.

THE COURT: Under those circumstances, are you pleading guilty freely and
voluntarily of your own free will?

[THE PETITIONER]: Yes, sir.



                                          -7-
       THE COURT: Any force or threats of any kind used against you to cause you to
       plead guilty?

       [THE PETITIONER]: No, sir.

       THE COURT: Or has anybody promised you anything except for this agreement that
       you’ve reached –

       [TRIAL COUNSEL]: He turned to me. I need to know what –

       ([The petitioner] and [trial counsel] confer off record.)

       [THE PETITIONER]: I understand, your Honor.

       THE COURT: I overheard what you said there. If this went to the grand jury on
       charges of first degree murder, that’s not force or threats; what I’m talking about, if
       the grand jury came back with a greater charge, that would be for the grand jury to
       determine what the charges would be, and the fact that you might take advantage of
       the state and the victim’s family giving you an opportunity to plead to something less
       by information is not force. But are there any other kinds of force or coercion of any
       kind used against you?

       [THE PETITIONER]: No, sir.

       ....

       THE COURT: Do you understand what the agreement that you’ve reached is?

       [THE PETITIONER]: Yes, sir.

        We note that as the petitioner was being advised of his rights at the submission hearing, he
specifically was told that if he chose not to testify at trial, then his criminal record would not be
brought out against him. He responded that he understood this and his other rights and made no
inquiries in this regard to the trial court. Additionally, although given an additional opportunity to
speak, the petitioner expressed no dissatisfaction with the performance of defense counsel:

       THE COURT: Okay. All right. Are you satisfied with the representation of you by
       your lawyer . . .?

       [THE PETITIONER]: Yes, sir.

       THE COURT: Any complaint in any way about how he’s represented you?



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       [THE PETITIONER]: No, sir.

       THE COURT: Anything that I’ve told you or asked you that you don’t understand?

       [THE PETITIONER]: No, sir.

        In response to the central claim of the petitioner at the post-conviction hearing that his pleas
were coerced, the post-conviction court found they were free and voluntary. The record fully
supports this determination. Additionally, the post-conviction court found that the petitioner failed
to show any deficiency in trial counsel’s representation or that he was in any way prejudiced by
counsel’s performance. The record fully supports these findings as well. It is clear that the petitioner
was given ample opportunity at the submission hearing to tell the court that he was being pressured
into pleading guilty but did not do so. Further, he did not question the court about how his prior
record could be utilized or voice any complaints against trial counsel.

       At the evidentiary hearing, the scant testimony by the petitioner concerning this “erroneous”
advice by the defense investigator occurred during the following exchange when he was asked about
how the performance of trial counsel had affected him prior to his pleas of guilty:

       A        It made me -- It was like it was hopeless. It was like they wasn’t even going
       to try. And then you’ve got [the defense investigator] sitting here telling me that if
       I try to go to trial that my prior record and prior dealings with the police and all this
       would make me out to be a liar and make me look bad and everything that I’ve done
       in the past that I was probably ashamed of would come out and all this, and I’m like,
       you know –

       Q       Did [the investigator] explain to you the Rules of Evidence about bringing out
       prior criminal histories of criminal defendants?

       A       No, sir.

The defense investigator, when asked about this conversation, acknowledged he discussed with the
petitioner his record of convictions but denied that he gave the petitioner legal advice:

       Q       Do you recall having told [the petitioner] that the state would bring out his
       potential - - any potential past record that he might have against him at trial and that
       in doing so, it would make him out to be a liar?

       A       I don’t believe that’s legal advice, but I did have a conversation and went over
       his criminal history that I received from the Hamblen County Sheriff’s Department
       and pointing out to him that in 8-9 of ‘86 - - -




                                                  -9-
         Q      Without going specifically into the criminal history, [defense investigator],
         you did - -

         A        That’s the answer to your question, sir.

         Q       Yeah, I understand. I think you’ve answered it. You did go over his criminal
         history with him and tell him that the state would bring that out against him?

         A        Yes, sir.

         Q        Did you also explain to him the rules of criminal procedure?

         A      I was probably included in a discussion with [trial counsel]. At many times
         we had discussed this with him.

         Q      So you yourself, after telling him that they could use this past record against
         him, did not inform him that that could only be brought out in certain occasions?

         A       I explained when he asked questions about if he took the witness stand and
         he made certain statements and opened the door that a pattern could be established
         by his past record.

         Q        Okay. I have no further questions, your Honor.

         Since the petitioner’s criminal history is not included in the record on appeal, we cannot
assess what its impact might have been had the State been allowed to utilize it in some fashion
during a trial. Regardless, the petitioner has failed to show by clear and convincing evidence that
his conversations with the defense investigator constituted “erroneous legal advice,” or legal advice
at all and how he was prejudiced by it.1 The record supports the court’s determination in this regard.

                                     III. Voluntariness of Guilty Plea

        As a corollary to his first claim, that counsel was ineffective, the petitioner also claims that
his decision to plead guilty was not voluntary but instead was the result of “misinformation”
provided by the defense investigator, as well as the petitioner’s resulting “ignorance as to his rights”
and “misunderstanding of the law.” We have already determined the record supports the post-
conviction court’s determination that trial counsel was not ineffective. We now will review whether
the petitioner’s pleas of guilty were unknowing and involuntary.




         1
          W e note that the petitioner has not alleged that he ever questioned or even discussed with trial counsel the
alleged erroneous advice from the investigator.

                                                         -10-
         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, our 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 fully understands the plea and its
consequences. Pettus, 986 S.W.2d at 542; Blankenship, 858 S.W.2d at 904.

       At the post-conviction hearing, the petitioner stated he was not comfortable with the guilty
plea but felt he had no choice:

        I still wasn’t comfortable with the plea, but I felt like I had to take it. I mean I had
        to take it. And I wouldn’t have took it -- I was ignorant to the law and I would not
        have took this plea if I’d -- if I had a lawyer that I thought was doing the best he
        could do. I thought he was at the time but, no.

Given the opportunity to question the court and voice complaints about the process or trial counsel,
the petitioner, instead, kept silent, responding to the trial court’s questions in such a fashion to show
the pleas of guilty were free, voluntary, and informed.

                                           CONCLUSION

      The evidence in the record fully supports the findings of the post-conviction court.
Accordingly, we affirm the post-conviction court’s denial of the petition for post-conviction relief.


                                                         ___________________________________
                                                         ALAN E. GLENN, JUDGE




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