         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs May 13, 2009

                    TROY TACKETT v. STATE OF TENNESSEE

                   Direct Appeal from the Circuit Court of Warren County
                          No. F-10387 Larry B. Stanley, Jr., Judge



                    No. M2008-02075-CCA-R3-PC - Filed August 14, 2009


Pursuant to a plea agreement, the Petitioner, Troy Tackett, pled guilty to one count of rape of a child
and two counts of aggravated sexual battery, and the trial court ordered him to serve twenty years
in the Tennessee Department of Correction. The Petitioner then filed a petition for post-conviction
relief claiming that he received the ineffective assistance of counsel and that his guilty plea was not
knowingly and voluntarily entered. The post-conviction court denied relief after a hearing, and the
Petitioner now appeals. After a thorough review of the record and applicable law, we affirm the
judgment of the post-conviction court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID H. WELLES and
ALAN E. GLENN , JJ., joined.

Philip Clemons, McMinnville, Tennessee, for the Petitioner, Troy Tackett.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
Clarence E. Lutz, Assistant Attorney General; Lisa Zavogiannis and Dale Potter, District Attorneys
General for the Appellee, State of Tennessee.


                                             OPINION
                                              I. Facts
                                          A. Plea Hearing

        At the Petitioner’s plea submission hearing, the State offered the following factual basis for
the Petitioner’s plea:

       On July 14, 2005[, the Petitioner] was caught in bed with a child. He was engaged
       . . . with the child in intercourse or attempted intercourse at that point in time. He
       was caught by the child’s mother. The mother witnessed the incident, asked [the
        Petitioner] what was going on. She was shocked after observing it. After
        confronting [the Petitioner, the Petitioner] got up and fled the scene and left the State
        of Tennessee and . . . went to the State of Ohio . . . .

The Petitioner pled guilty to rape of a child and to two counts of aggravated sexual battery. In
response to the trial court’s inquiries, the Petitioner said he understood the facts the State would have
to prove in order to convict him of the charges to which he pled guilty. The Petitioner confirmed
he was satisfied by his trial counsel’s services and that he was pleading guilty “freely and
voluntarily.” When the trial court asked whether was pleading guilty because he was guilty of the
facts the State proffered, the Petitioner’s trial counsel said

        Your Honor, we’re going to enter a best interest plea. [The Petitioner] believes [the
        State’s proof at trial] would be sufficient if the Jury believed the mother and the Jury
        believed the victim, that it’s more than likely he would be convicted. His exposure
        was significant due to the nature of the crime and child rape and I think maybe three
        aggravated sexual batteries. I went over that with him, concurrent versus consecutive
        and these things and he would have a defense, his testimony, but he decided it would
        be in his best interest to take this plea offer.

The trial court then asked the Petitioner whether, essentially, his pleas were “no contest,” and the
Petitioner responded affirmatively.

        Pursuant to the plea agreement, the trial court sentenced the Petitioner to twenty years for his
rape of a child conviction and to ten years each for his two aggravated sexual battery convictions.
The trial court ordered the sentences to be served concurrently, for a total effective sentence of
twenty years.

                                        B. Post-Conviction Hearing

        The Petitioner filed a timely petition for post-conviction relief, claiming he received the
ineffective assistance of counsel, his conviction was based on a coerced confession, and his guilty
plea was not knowingly and voluntarily entered. The post-conviction court appointed counsel for
the Petitioner, and the Petitioner amended his petition to add the claim that his guilty plea to rape
of a child lacked a factual basis. The post-conviction court held a hearing on this petition where the
Petitioner and his trial counsel testified. The Petitioner testified his trial counsel failed to adequately
confer with him prior to his guilty plea, that his guilty pleas were unknowingly and involuntarily
entered because his trial counsel failed to provide the Petitioner with sufficient information and
because his guilty plea to rape of a child lacked a factual basis.1


        1
          W e have omitted from these facts the testimony presented pertaining to allegations not pursued by the
Petitioner on appeal. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W .2d 417, 419
(Tenn. 1989).



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        The Petitioner testified that the only time his trial counsel (“Counsel”) visited him was one
week before his plea date and that he did not receive any discovery materials before this visit. He
said Counsel brought him the victim’s mother’s statement, but he never received any other item of
the State’s evidence against him. The Petitioner acknowledged that the statement alleged that he lay
underneath the victim and fondled the victim on a bed and that both the Petitioner and the victim
were unclothed. He testified that he understood that the victim’s mother would probably testify to
the contents of the statement, but he did not agree that he and the victim were unclothed. The
Petitioner recalled that Counsel told him he could serve fifty-six years in jail if convicted of each
crime with which he was charged. He was not sure whether Counsel explained the plea agreement
and its consequences.

        The Petitioner testified he did not want to take the plea agreement because he did not
understand how the State could charge him while having so little evidence against him. Although
the Petitioner said he would not have accepted the plea agreement if he had fully understood the
agreement, he said that he understood the terms of the plea agreement. Petitioner said the single
meeting with Counsel lasted ten minutes, and the next time he saw Counsel was a month later at his
plea hearing. The Petitioner was very dissatisfied with Counsel’s performance; he testified that
“[T]he man didn’t work for me. He wasn’t trying to help me do [anything]. He didn’t investigate
[anything]. He didn’t do [anything].”

        On cross-examination, the Petitioner said he could not recall whether Counsel went over the
plea agreement with him. Reviewing a copy of his plea agreement, the Petitioner confirmed the plea
agreement listed the offenses to which he was pleading guilty, the possible sentences he would
receive, and the collateral consequences of his child sex convictions. He also confirmed he signed
the plea agreement. The Petitioner acknowledged that, during his plea submission hearing, the trial
court verified that Counsel had explained the plea agreement to the Petitioner and that the Petitioner
understood the charges to which he was pleading guilty, the evidence the State would have to present
to convict him of each charge, and the possible sentences he could receive.

        Deputy Sheriff Jason Rowland testified he worked as an investigator in Warren County’s
District Attorney’s office when the Petitioner was charged with these crimes. Officer Rowland did
not interview the victim because an independent agency specializing in child sex abuse victims
interviewed the victim instead. The officer believed the agency made a videotape of the victim’s
interview. The officer did not interview the Petitioner because the Petitioner invoked his right to
counsel when approached for an interview. Officer Rowland spoke with the victim’s mother several
times, and he believed he obtained a written statement from one of those conversations.

        On cross-examination, Officer Rowland testified the victim’s mother filed the initial
complaint against the Petitioner, saying she witnessed the Petitioner, who was babysitting her
daughter, have sexual contact with her daughter. The officer said evidence existed that the Petitioner
tried to place his penis inside the victim during this contact. After the victim’s mother filed her




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complaint, the officer attempted to locate the Petitioner but found the Petitioner had fled the state.
Officer Rowland testified that, of the child rape cases he had dealt with, he considered the case
against the Petitioner particularly strong because of the eye-witness, the victim’s mother.

        Counsel testified he had practiced as a public defender since 1998, and he represented the
Petitioner in 2005 when he was charged with the crimes underlying this appeal. Counsel recalled
visiting the Petitioner “at least twice” while the Petitioner was in jail. Because his office files a Rule
16 motion for discovery “in every case,” Counsel believed his office filed one in the Petitioner’s
case. He explained that the State typically offers a plea deal when it discloses the Rule 16 material
and that he believed the State did so in the Petitioner’s case. Counsel could not recall whether the
victim’s mother’s statement was the only piece of evidence the State had against the Petitioner.
Counsel said his office typically sends the State’s discovery material to the defendant and later meets
with the defendant to discuss the State’s plea deal. He recalled that he visited the Petitioner in jail,
explained the State’s evidence to him, explained the State’s plea deal, and answered the Petitioner’s
questions.

        On cross-examination, Counsel elaborated that he had exclusively practiced criminal law
since 1984. Given the high volume of cases he had dealt with in his career, he did not recall each
issue of each case. Counsel did, however, recall that the Petitioner rejected the State’s plea offer
when he first visited the Petitioner. Because the Petitioner wanted to go to trial, Counsel arranged
to meet with the Petitioner again to discuss their trial strategy. When Counsel arrived for this
meeting, the Petitioner informed Counsel that he had spoken with his family and decided to accept
the State’s plea deal. Counsel described the Petitioner’s change in position as “just like night and
day.” Counsel said he asked the Petitioner whether he was sure he wanted to accept the deal, and
the Petitioner responded affirmatively. Reviewing a copy of the Petitioner’s plea of guilty and
waiver of rights, Counsel recalled that he went over the document with the Petitioner.

        At the conclusion of the hearing, the post-conviction court concluded that the Petitioner’s
conviction for rape of a child did not lack a factual basis, that the Petitioner’s guilty plea was
knowingly and voluntarily entered, and that his trial counsel was effective. Accordingly, the court
denied the petition for post-conviction relief and later issued a written order to that effect. It is from
this judgment that the Petitioner now appeals.

                                              II. Analysis

      On appeal, the Petitioner contends that he is entitled to post-conviction relief because: (1)
Counsel failed to provide the effective assistance of counsel; and (2) his guilty plea was not
knowingly and voluntarily entered.

       In order to obtain post-conviction relief, a petitioner must show that his or her conviction or
sentence is void or voidable because of the abridgment of a constitutional right. T.C.A. § 40-30-103
(2006). The petitioner bears the burden of proving factual allegations in the petition for post-
conviction relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006). Upon review,


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this Court will not re-weigh or re-evaluate the evidence below; all questions concerning the
credibility of witnesses, the weight and value to be given their testimony and the factual issues raised
by the evidence are to be resolved by the trial judge, not the appellate courts. Momon v. State, 18
S.W.3d 152, 156 (Tenn. 1999); Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). A post-
conviction court's factual findings are subject to de novo review by this Court; however, we must
accord these factual findings a presumption of correctness, which can only be overcome when a
preponderance of the evidence is contrary to the post-conviction court's factual findings. Fields v.
State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction court’s conclusions of law are
subject to a purely de novo review by this Court, with no presumption of correctness. Id. at 457.

                               A. Ineffective Assistance of Counsel

        The Petitioner contends Counsel was ineffective because he visited with the Petitioner only
once, a week before the Petitioner’s trial date. The State responds that Counsel visited the Petitioner
only once because the Petitioner accepted a plea deal before Counsel’s investigation was fully
underway, and, furthermore, that the Petitioner presented no proof of information withheld from the
Petitioner that would have caused the Petitioner to reject the State’s plea deal.

       The post-conviction court found that, before the Petitioner accepted the State’s plea offer,
Counsel was preparing for trial. Noting that Petitioner failed to present proof that, had Counsel
conducted further investigation, he would not have pled guilty, the post-conviction court denied post-
conviction relief based on Counsel’s performance.

         The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9, of the Tennessee Constitution.
State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999);
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following two-prong test directs a court’s
evaluation of a claim for ineffectiveness:

       First, the [petitioner] 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 [petitioner] by the Sixth Amendment.
       Second, the [petitioner] must show that the deficient performance prejudiced the
       defense. This requires showing that counsel’s errors were so serious as to deprive the
       [petitioner] of a fair trial, a trial whose result is reliable. Unless a [petitioner] makes
       both showings, it cannot be said that the conviction or death sentence resulted from
       a breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417, 419 (Tenn.
1989).

       In reviewing a claim of ineffective assistance of counsel, this Court must determine whether
the advice given or services rendered by the attorney are within the range of competence demanded


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of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail on a claim of ineffective
assistance of counsel, a petitioner must show that “counsel’s representation fell below an objective
standard of reasonableness.” House v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Strickland,
466 U.S. at 688 (1984)).

        When evaluating an ineffective assistance of counsel claim, the reviewing court should judge
the attorney’s performance within the context of the case as a whole, taking into account all relevant
circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim.
App. 1988). The reviewing court must evaluate the questionable conduct from the attorney’s
perspective at the time. Strickland, 466 U.S. at 690; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).
In doing so, the reviewing court must be highly deferential and “should indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional assistance.” Burns, 6
S.W.3d at 462. Finally, we note that a defendant in a criminal case is not entitled to perfect
representation, only constitutionally adequate representation. Denton v. State, 945 S.W.2d 793, 796
(Tenn. Crim. App. 1996). In other words, “in considering claims of ineffective assistance of counsel,
‘we address not what is prudent or appropriate, but only what is constitutionally compelled.’”
Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States v. Cronic, 466 U.S. 648, 665 n.38
(1984)). Counsel should not be deemed to have been ineffective merely because a different
procedure or strategy might have produced a different result. Williams v. State, 599 S.W.2d 276,
279-80 (Tenn. Crim. App. 1980). The fact that a particular strategy or tactic failed or hurt the
defense does not, standing alone, establish unreasonable representation. House, 44 S.W.3d at 515
(citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)). However, deference to matters of strategy
and tactical choices applies only if the choices are informed ones based upon adequate preparation.
House, 44 S.W.3d at 515.

         If the petitioner shows that counsel’s representation fell below a reasonable standard, then
the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694; Nichols v. State, 90 S.W.3d 576, 587
(Tenn. 2002). This reasonable probability must be “sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994). In the
context of a guilty plea as in this case, the effective assistance of counsel is relevant only to the
extent that it affects the voluntariness of the plea. Therefore, to satisfy the second prong of
Strickland, the petitioner must show that “there is a reasonable probability that, but for Counsel’s
errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart,
474 U.S. 52, 59 (1985); see also Walton v. State, 966 S.W.2d 54, 55 (Tenn. Crim. App. 1997).

        The Petitioner contends Counsel inadequately conferred with him before he pled guilty,
meeting with him only once before his trial date. The post-conviction court rejected the Petitioner’s
claim of ineffective assistance, finding that, before the Petitioner accepted the State’s plea deal,
Counsel was preparing for the Petitioner’s trial. Further, the post-conviction court found that the
Petitioner presented no proof that, had Counsel acted differently, the outcome of his case would have
been different. Indeed, Counsel testified that he met with the Petitioner at least twice, and the


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Petitioner offered no proof of information Counsel withheld from him that would have prevented
the Petitioner from pleading guilty. In our view, therefore, the record does not preponderate against
the post-conviction court’s findings. See Fields, 40 S.W.3d at 456-57. The Petitioner failed to
demonstrate by clear and convincing evidence his contention that Counsel failed to adequately confer
with him. See T.C.A. § 40-30-110(f).

       We conclude therefore, that the Petitioner failed to demonstrate that Counsel’s services fell
outside the range of competence normally required of attorneys in criminal trials. See Baxter, 523
S.W.2d at 936. Moreover, the Petitioner does not offer any information withheld from him that
would have induced him to reject the State’s plea deal and, thus, fails to demonstrate how Counsel’s
conduct prejudiced him. Strickland, 466 U.S. at 694; Hill, 474 U.S. at 59; Walton, 966 S.W.2d at
55. Having failed to demonstrate either prong of the Strickland standard, the Petitioner has not met
his burden of showing he is entitled to post-conviction relief based upon Counsel’s performance.
Id. He is not entitled to relief on this issue.

                               B. Involuntary & Unknowing Plea

        The Petitioner contends his guilty plea was not knowingly and voluntarily entered because:
(1) he was inadequately informed of the State’s case against him before he pled guilty; and (2) his
guilty plea to rape of a child lacked a factual basis. We address each contention in turn.

       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 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); see also Chamberlain v. State, 815 S.W.2d 534, 542 (Tenn. Crim. App. 1990).
The circumstances relevant to a guilty plea 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) (citing Caudill v. Jago, 747 F.2d 1046,
1052 (6th Cir.1984)). A plea resulting from ignorance, misunderstanding, coercion, inducement, or
threats is not “voluntary.” Id.

        “Whether a guilty plea meets the constitutional standards of voluntary and knowing is a
mixed question of law and fact.” Jaco v. State, 120 S.W.3d 828, 830 (Tenn. 2003) (citing United
States v. Gray, 152 F.3d 816, 819 (8th Cir. 1998)). This Court reviews mixed questions of law and


                                                 7
fact de novo with a presumption of correctness “given only to the post-conviction court’s findings
of fact.” Id. (citing Fields, 40 S.W.3d at 458).

                               1. Information Provided by Counsel

        The Petitioner argues first that his guilty plea was involuntary and unknowing because
Counsel failed to obtain the State’s evidence against him before he advised the Petitioner to plead
guilty. The State responds that the Petitioner received discovery materials before he pled guilty in
spite of the fact that he pled guilty before either party’s investigation was fully underway. The State
also notes that the Petitioner failed to present any information that, had he possessed such
information before he pled guilty, would have caused the Petitioner to reject the State’s plea deal.

        The post-conviction court rejected the Petitioner’s claim that his guilty pleas were not
knowingly and voluntarily entered, and it made several factual findings. The court found that the
Petitioner was advised of the consequences of pleading guilty and that the Petitioner failed to present
any evidence that his guilty plea was coerced. Indeed, our review of the record indicates that the
Petitioner failed at his post-conviction hearing to present evidence of information that, had he
possessed such information before he pled guilty, would have prevented his guilty plea. The
Petitioner also failed to present any evidence that his guilty plea was coerced. Further, during his
plea submission hearing, the trial court explained the Petitioner’s charges and the consequences of
pleading guilty, and the Petitioner informed the court he understood. The record, therefore, does not
preponderate against the post-conviction court’s factual findings. See Fields, 40 S.W.3d at 456-57.

        After reviewing the totality of the circumstances, we agree with the post-conviction court that
the Petitioner has failed to prove that his guilty pleas were not knowingly and voluntarily entered.
The trial court clearly and accurately explained to the Petitioner the charges to which he was
pleading guilty and the consequences of pleading guilty. The Petitioner indicated that he understood
the court’s explanation, and nothing in the record indicates the Petitioner did not, in fact, understand
the charges he faced. Also, the Petitioner acknowledged that, before he pled guilty, he knew that the
only evidence the State had against him was the victim’s mother’s statement. Moreover, the
Petitioner offered no evidence of information discovered after he pled guilty that would have induced
him to reject the plea deal. Therefore, the Petitioner fails to support his claim that the limited
information he possessed about the evidence supporting his charges made his plea involuntary and
unknowing. Further, the Petitioner presented no evidence that his guilty plea was the result of threats
or coercion. Blankenship, 858 S.W.2d at 904. Under these circumstances, we conclude that the
Petitioner’s guilty pleas were knowingly and voluntarily entered. See Turner, 919 S.W.2d at 353.
The Petitioner is not entitled to relief on this issue.

                         2. Factual Basis for Rape of a Child Guilty Plea

       The Petitioner contends his guilty plea to rape of a child lacks a factual basis because no
evidence that the Petitioner sexually penetrated the victim was presented at the Petitioner’s plea
submission hearing. As an additional consequence, he argues, his guilty plea to rape of a child was


                                                   8
not knowingly and voluntarily entered. The State, characterizing the Petitioner’s contention as an
objection to the sufficiency of his indictment for rape of a child, responds first that the Petitioner
waived his objection to the sufficiency of his indictment when he pled guilty. The State contends
also that, even if the Petitioner properly preserved this issue, the victim’s mother’s statement notified
the Petitioner of a possible rape of a child charge. Because the Petitioner objects to his guilty plea
and not his indictment, we will address the Petitioner’s claim as an objection to the factual basis of
his guilty plea and not as an objection to the sufficiency of his indictment.

        At the conclusion of the Petitioner’s post-conviction hearing, the post-conviction court
rejected the Petitioner’s claim that his guilty plea to rape of a child lacked a factual basis, finding that
the Petitioner “knew very well what the statement of the victim’s mother was and that she had seen
him in the act of sexual activity and sexual intercourse with the minor child. That was not any
surprise to the defendant.” As we explain below, however, a claim that a petitioner’s guilty plea
lacked a factual basis is not properly brought in a petition for post-conviction relief.

        Tennessee Rule of Criminal Procedure 11 outlines the warnings a trial court should issue a
defendant seeking to enter a guilty plea, and it instructs the trial court to make several determinations
about the guilty plea. Tenn. R. Crim. P. 11. One such determination the trial court must make is
whether the guilty plea has a factual basis. Tenn. R. Crim. P. 11. The requirements of Rule 11,
however, are based on statute rather than either the U.S. or State Constitutions. Further, this Court
has previously determined that Rule 11’s factual basis requirement exceeds the scope of Boykin v.
Alabama, the U.S. Supreme Court case describing the U.S. Constitution’s restrictions on guilty pleas.
Roger Steve Yant v. State, No. M2007-01936-CCA-R3-PC, 2008 WL 5330459, at *8 (Tenn. Crim.
App., at Nashville, Dec. 22, 2008) (citing State v. Frazier, 784 S.W.2d 927, 928 (Tenn. 1990), perm.
app. denied (Tenn. May 11, 2009). The requirement that a factual basis accompany a guilty plea is
not, therefore, a constitutional claim. Id. As such, a claim that a guilty plea lacks a factual basis is
not properly raised in a post-conviction petition. See T.C.A. § 40-30-103. The Petitioner’s claim
that his guilty plea to rape of a child lacked a factual basis, therefore, is not cognizable in a post-
conviction proceeding. Id. Accordingly, he is not entitled to relief on this issue.

                                             III. Conclusion

       After a thorough review of the record and relevant authorities, we conclude that the Petitioner
received the effective assistance of counsel and that the Petitioner’s pleas were knowingly and
voluntarily entered.      Accordingly, we affirm the post-conviction court’s judgment.


                                                            __________________________________
                                                               ROBERT W. WEDEMEYER, JUDGE




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