             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                                        November 14, 2000 Session

                       WILLIAM FLOYD v. STATE OF TENNESSEE

                      Direct Appeal from the Circuit Court for Cannon County
                                 No. F99-17     J. S. Daniel, Judge



                      No. M2000-00318-CCA-R3-CD - Filed December 28, 2000


William Floyd appeals the dismissal of his petition for post-conviction relief. In 1998, Floyd pled
guilty to two counts of rape and, under the terms of his plea agreement, was sentenced to twenty
years imprisonment. In his petition for post-conviction relief, Floyd contends that his guilty pleas
are involuntary because on the date his pleas were entered he was under the influence of prescribed
psychotropic drugs. The petition was dismissed by the post-conviction court and this appeal follows.
Finding that the evidence in the record does not support Floyd’s claim, we affirm the lower court’s
dismissal.

                    Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH and NORMA
MCGEE OGLE , JJ., joined.

Dale W. Peterson, Woodbury, Tennessee, for the Appellant, William Floyd.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Russell S.
Baldwin, Assistant Attorney General, William C. Whitesell, Jr., District Attorney General, and Dale
L. Puckett, Assistant District Attorney General, for the appellee, State of Tennessee.


                                                      OPINION

       The Appellant, William Floyd, seeks post-conviction relief from his convictions for two
counts of rape entered pursuant to guilty pleas in the Cannon County Circuit Court.1 On appeal, he


         1
           The Appellan t was originally cha rged with fou r counts of sexual battery, ten counts of rape and ten counts of
incest, arising from his admitted sexual conduct with his stepdaughter. In April 1998, pursuant to a negotiated plea
agreeme nt, the Appellant entered guilty pleas to two counts of rape for which he received two consecutive sentences of
ten years. The agreement further provided that the remaining counts would be dismissed. The Appellan t is currently
confined a t the Harde man Co unty Correc tional Facility.
collaterally challenges his convictions upon grounds that the influence of prescribed psychotropic
drugs caused him to enter uninformed, involuntary, and incompetent guilty pleas.2

         After review of the record, we affirm.


                                         Proof at Post-Conviction Hearing

       The Appellant filed the instant petition seeking post-conviction relief on April 19, 1999. On
January 21, 2000, an evidentiary hearing was held in the Cannon County Circuit Court. During this
hearing, the following proof was presented.

         Lawrence Loveless, a registered nurse employed by the Cannon County Sheriff's Department,
testified that he first encountered the Appellant on May 29, 1997, the date of the Appellant's arrest.
On this date, Loveless received a report that the Appellant was sitting in his cell pulling his hair out.
 Emotionally, the Appellant was "distraught" and "uncommunicative." Additionally, Loveless was
advised that, prior to his arrest, the Appellant had “overdosed on a combination of Xanax and
Prozac."3 As a result of the Appellant’s behavior, the Appellant was referred to the Guidance Center
for evaluation.

        On August 1, 1997, the Guidance Center concluded that the Appellant was suffering from
" major depression, recurrence, severe with psychotic features and access to antisocial personality."
Based upon this diagnosis, the Appellant was prescribed Risperdal, Effexor, Paxil, Sinequan and
Mellaril.4 The Appellant’s use of his medication was sporadic. He would often refuse to take the
medication for "a week or two at a time." The Appellant’s refusals to be medicated coincided with
his scheduled court appearances. Additionally, due to the Appellant's complaints of urinary
retention, the medications were often changed.


         2
          The Ap pellant’s alleged in his petition for post-conviction relief that he was denied the effective assistance
of counsel in that counsel “failed to determine whether the psychothropic [sic] drugs petitioner was taking on the d ate
he entered his guilty [pleas], had any effect on petitioner’s ability to knowingly and without the full understanding of the
consequences that would follow.” This question obviously requires examination of the underlying question of whether
psychotro pic medication had any effect on petitioner’s ability to enter informed a nd voluntar y guilty pleas. This is the
issue which we address in this a ppeal.

         3
          Specifically, the j ail daily log con tained the follo wing notation :
         Inmate purportedly took a bottle of 36 Prosac [sic] from his wife from the home at 1 a.m. today, was
         taken into cus tody today a t 12 noon . Mr. Floyd was acting fine un til placed in the c ell.

         According to poison control, Prosac [sic], if he took all of them, it would be potentially fatal and that
         he neede d sedating a t 8:15. W e gave him L ibrium 50 milligrams PO . . . .

         There is so me questio n as to whethe r he took the Prosac [s ic] or is he acting ? . . .

         4
             Risperda l is an antipsycho tic drug; Pax il is an antidepre ssant.

                                                              -2-
        Gerald Melton, the Public Defender for the Sixteenth Judicial District, testified that he was
appointed to represent the Appellant on the indicted charges. Mr. Melton stated that nothing in his
notes made during his representation of the Appellant reflected that the Appellant did not understand
what was going on. During one conversation, however, counsel recalled that the Appellant advised
him that "he had been on different medications at some point in time." Mr. Melton admitted that he
never asked jail personnel whether the Appellant was in fact taking any medication. Concerned,
however, about the Appellant's behavior at the time of his arrest and the Appellant’s self-reports, Mr.
Melton obtained an order to have the Appellant evaluated regarding his competency to stand trial.
In February 1998, the Appellant was evaluated at the Guidance Center. The evaluation revealed that
the Appellant was competent to stand trial, that he could understand the nature of the charges and
the relative roles of those who would participate in the case, and that the defense of insanity could
not be supported. Moreover, counsel had no indication during his conferences with the Appellant
that the Appellant's competency was in question. Indeed, during conferences with counsel, the
Appellant clearly recited the facts regarding his charges in a consistent manner. The Appellant's
recitation of the facts never altered. The Appellant indicated that he understood the nature of the
charges against him and the penalties that he might receive. Moreover, the Appellant actively
participated in the negotiation process regarding plea offers with the State.5 Mr. Melton concluded
that "[he] never had any reason to doubt [the Appellant's] ability to assist me in his representation.”

        Tom Woodson, a pharmacist, testified as an expert on behalf of the Appellant regarding the
use of drugs and their effects on the human body. Mr. Woodson explained that Paroxetine, also
known as Paxil, is “an antidepressant used to treat depression, obsessive compulsive disorder and
panic disorder.” Paroxetine "would actually free up serotonin in the body. Serotonin works as a
mediator of sleep, helps in sensory perception, and actually promotes an overall feeling of well-being
in a person." Mr. Woodson further stated that someone under the prescription of Paroxetine “may
experience excitability or sedation.” An individual sporadically using Paroxetine “would not
receive the optimal effect of the drug and would probably lapse back in the baseline.” The purpose
behind the drug is to “enhance the feeling of well-being in the patient.” Risperidone is used as an
anti-psychotic to treat the symptoms of schizophrenia. Like Paroxetine, this drug also “works to
enhance a person's sense of well being and should be taken on a regular basis.” Mr. Woodson
explained that “extensive use of Risperidone could result in symptoms similar to those occurring in
patients with Parkinson's Disease.” Woodson testified that Paroxetine and Risperidone were
commonly taken simultaneously and that a person taking both prescriptions “could appear to be a
normal thinking person but could really not know what was going on.”




       5
           To illustrate the Appellan t's level of participa tion, counse l stated that the:
                    original offer in this case was an offer of 40 years that was rejected by Mr. Floyd.
                    An offer of 30 years was rejected by Mr. Floyd. Then there was this conversation
                    of an offer of maybe 24 years that was rejected by Mr. Floyd. The counter-offers
                    that I had made in between were rejected by the State until we reached the point in
                    April of 1998 that the State was co nsidering making us a new offer between 20 and
                    24 years. An offer of 20 years was accepted.

                                                           -3-
        The written statement of Esther Lack, Chief Jailer for Cannon County, was admitted into
evidence by stipulation. Ms. Lack’s statement provided that, during the Appellant’s period of
confinement, she observed what she considered as unusual behavior, specifically that the Appellant
talked to himself, that he talked to his dead mother, that he pulled out his hair, and generally, she was
of the opinion, that “he had gone off the deep end.”

        The Appellant, regarding his overall health in 1997-1998, testified that he was "in pretty bad
shape because [he didn't] remember." The Appellant explained that because he was on medication
during this period of time he could not recall meeting with defense counsel. Although he could not
enumerate the specific medications that he was prescribed, he testified that the medication resulted
in his loss of memory. In fact, the Appellant maintained that he could not recall any specifics
concerning the preparation of his case and his resulting guilty pleas. The Appellant stated, “I would
like the opportunity to start over where I’m aware of what’s going on and be able to make a rational
decision about my life.” In response to questioning by the court, the Appellant admitted that, within
the three-day period prior to his arrest, he ingested “Xanax, I had a hit of blotter, hit of microdot, I
took it.” He also conceded that he had ingested a bottle of pills which he had taken from his wife,
although he did not know what they were. The Appellant stated that, after taking the pills, he did
not know where he was until he “woke up strapped down” at the Mental Health Center in Nashville.
He recalled that this was shortly after his arrest. The Appellant stated that he had only vague
recollections of the year spent in confinement prior to his guilty plea.

        In denying the Appellant relief, the post-conviction court found in its written order:
        Mr. Floyd’s assertion that his plea was involuntary because of the medication that he
        was taking is also dismissed. The Petitioner in a Post Conviction Relief Petition has
        the burden of establishing his assertions by clear and convincing evidence. This is
        not done by Mr. Floyd. The only proof that Mr. Floyd advances is that he does not
        remember the events up to the plea. The record and evidence show that a mental
        evaluation was completed February 3, 1998, and that the plea was entered on April
        28, 1998. The report of the mental evaluation . . . determined that the Defendant was
        “capable of defending himself in a court of law and that he understands the charges
        pending against him and the consequences of those charges.” This report further
        advises that the Defendant “can advise and participate in his own defense.” The
        medical records of the Cannon County Jail . . . evidence that upon Mr. Floyd’s arrest
        in May of 1997, that he exhibited certain antisocial behavior which was explained by
        his arrest on these serious charges and his admitted overdosage of prescription drugs
        shortly before that arrest. This record demonstrates that some dosages of Paroxetine
        and Risperidone were provided to the Defendant at the jail in May 1997. Mr. Floyd
        may have received these medications from time to time over the next eleven months
        that he remained incarcerated in the Cannon County Jail prior to his plea but no
        record demonstrates these medications in the month of April 1998 when the plea was
        entered. The Court transcript of the entry of the plea . . . demonstrates the dialogue
        that occurred between the Defendant and the Court. This dialogue exhibits a person



                                                  -4-
       who is fully informed of the charges, his rights and one who knowingly, intelligently
       and voluntarily had waived those rights in exchange for this plea agreement.


                                              Analysis

        In post-conviction proceedings, the Appellant must prove the allegations contained in the
petition by clear and convincing evidence. TENN. CODE ANN . § 40-30-210(f) (1997). Moreover,
the findings of fact of a trial court have the weight of a jury verdict and are conclusive on appeal
unless the evidence preponderates against its judgment. Tidwell v. State, 922 S.W.2d 497, 500
(Tenn. 1996). This court may not reweigh or reevaluate the evidence or substitute its inferences for
those drawn by the post-conviction court. Questions concerning credibility of witnesses and the
weight and value to be given their testimony are for resolution by the post-conviction court. Black
v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).

       Guided by these considerations, we acknowledge that to satisfy constitutional standards of
due process, a guilty plea must be entered knowingly, intelligently and voluntarily. Boykin v.
Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712 (1969). In evaluating the knowing and voluntary
nature of a guilty plea, the United States Supreme Court held, "[t]he standard was and remains
whether the plea represents a voluntary and intelligent choice among the alternative courses of action
open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164 (1970). This
includes the accused’s understanding of the rights and circumstances involved and whether the
accused, understanding his or her rights, nonetheless, opts to waive or relinquish those rights. State
v. Mackey, 553 S.W.2d 337, 340 (Tenn. 1977). In making this determination, the reviewing court
must look to the totality of the circumstances. State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim.
App. 1995), perm. to appeal denied, (Tenn. 1996); see also Chamberlain v. State, 815 S.W.2d 534,
542 (Tenn. Crim. App. 1990), perm. to appeal denied, (Tenn. 1991). Of particular import are the
defendant’s demeanor and the dialogue between the court and the defendant during the plea hearing.
See generally Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993).

         It is well-established that a plea taken while a defendant is incompetent violates due process
of law. See generally Godinez v. Moran, 509 U.S. 394, 396, 113 S. Ct. 2680, 2685 (1993)
(defendant may not plead guilty unless entered competently). A defendant is incompetent to stand
trial if he lacks sufficient present ability to consult with his lawyer with a reasonable degree of
rational understanding, or he lacks a rational and factual understanding of the proceedings against
him. See State v. Blackstock, 19 S.W.3d 200, 205 (Tenn. 2000) (citing State v. Black, 815 S.W.2d
166, 174 (Tenn.1991) (quoting Mackey v. State, 537 S.W.2d 704, 707 (Tenn. Crim. App.1975)); see
also Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788, 789 (1960) (ability to consult with
lawyer and a "rational as well as factual understanding of the proceedings")). However, a
defendant’s use or non-use of psychotropic drugs does not mean that the plea was not knowingly,
intelligently, and voluntarily entered. The important aspect of the taking of a plea, irrespective of
whether a defendant is on medication, is whether the defendant was capable of entering a plea in
accordance with his careful consideration of the plea, his knowing and intelligent waiver of his


                                                 -5-
rights, and with full knowledge of the consequences of his voluntary plea and waiver of rights. See
generally Tenn. R. Crim. P. 11.

        The record supports the findings and conclusions of the post-conviction court. Indeed, the
transcript of the guilty plea hearing reveals:

         (1) the Appellant exhibited no unusual behavior;

         (2) the Appellant indicated a comprehension of the rights about to be relinquished
         and of the nature and consequences of the charged offenses;

         (3) the Appellant responded intelligently to the questions posed by the court; and

         (4) the Appellant acted rationally and informed.

The Appellant’s responses to the plea colloquy were entirely responsive, appropriate, intelligent, and
in this court’s opinion, made in a knowing, willing and voluntary manner. The record does not
reflect that the Appellant was suffering from any adverse effects, such as confusion, resulting from
the ingestion of or failure to ingest prescribed medications. Although the record does indicate that
the Appellant suffered from some psychotic symptoms and was prescribed several psychotropic
medications for his condition, there is no indication that on the date his pleas were entered the
medications or lack thereof had any effect on his cognitive abilities. Moreover, at the guilty plea
hearing, the Appellant did not exhibit any behavior that would have placed the trial court, defense
counsel, or the State on notice that the Appellant was not competent or that his plea was not made
knowingly and voluntarily. In fact, there is no evidence before us that supports a finding that the
Appellant was laboring under a disability of any kind during the guilty plea hearing.6

        Based upon the foregoing, we conclude that the Appellant has failed to carry his burden of
establishing his claims. Moreover, we cannot conclude that the evidence preponderates against the
post-conviction court's findings of fact. As such, we find no error of law mandating reversal of the
court's judgment. Accordingly, we affirm.




         6
           See, e.g., State v. Jayson Soriano, No. M1999-00999-CCA-R3-PC (Tenn. Crim. App. at Nashville, June 30,
2000) (guilty plea competently entered despite defendant’s claim of incompetency due to failure to take medication);
Lawrence Strickland v. S tate, No. E1999-00119-CCA-R3-CD (Tenn. Crim. App. at Knoxville, Apr. 12, 2000) (guilty
plea knowingly entered despite defendant’s claim that he was under influenc e of medic ation); John D . Barron v . State,
No. M1998-00031-CCA-R3-PC (Tenn. Crim. App. at Nashville, Dec. 29, 199 9) (guilty plea c ompeten tly entered de spite
defendan t’s claim of inco mpetenc y due to failure to take medic ation); Samuel D . Curry v. State , No. 02C01-9508-CR-
00219 (Tenn. Crim. App . at Jackson, M ay 24, 19 96), perm. to appeal dismissed, (Tenn. Jun. 28, 1999) (transcript of
guilty plea hearing confirmed court’s conclusion that plea was competently entered despite defendant’s allegation that
nurse administered overdose of medication).

                                                          -6-
      ___________________________________
      DAVID G. HAYES, JUDGE




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