            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                     FILED
                               AT KNOXVILLE                         June 4, 1999

                                                                  Cecil Crowson, Jr.
                       FEBRUARY 1999 SESSION                      Appellate C ourt
                                                                      Clerk




GARY WAYNE LOWE,           )
                           )      C.C.A. No. 03C01-9806-CR-00222
      Appellant,           )
                           )      Anderson County
v.                         )
                           )      Honorable James B. Scott, Jr., Judge
STATE OF TENNESSEE,        )
                           )      (Post-Conviction Relief)
      Appellee.            )




FOR THE APPELLANT:                FOR THE APPELLEE:

Douglas A. Trant                  John Knox Walkup
900 South Gay Street              Attorney General & Reporter
Suite 1502                        425 Fifth Avenue North
Knoxville, TN 37902               Nashville, TN 37243-0493

                                  Erik W. Daab
                                  Assistant Attorney General
                                  425 Fifth Avenue North
                                  Nashville, TN 37243-0493

                                  James N. Ramsey
                                  District Attorney General
                                  127 Anderson County Courthouse
                                  Clinton, TN 37716

                                  Janice G. Hicks
                                  Assistant District Attorney General
                                  127 Anderson County Courthouse
                                  Clinton, TN 37716




OPINION FILED: ______________________________


AFFIRMED


L. T. LAFFERTY, SENIOR JUDGE
                                      OPINION

       The appellant, Gary Wayne Lowe, referred herein as “the petitioner,” appeals as of

right from the trial court’s dismissal of his petition for post-conviction relief. On July 17,

1979, the petitioner pled guilty to grand larceny before the Anderson County Criminal

Court. Pursuant to the plea agreement, the trial court imposed a three-year sentence in

the Department of Correction to run concurrently with a pending sentence. In June, 1988,

the petitioner filed a petition for post-conviction relief, alleging his 1979 guilty plea was

invalid, because he was not advised of his right against compulsory self-incrimination; nor

was he warned that the conviction could be used against him to enhance a future

sentence. Following an evidentiary hearing, the trial court denied relief.



       After a thorough review of the entire record, briefs of the parties, and appropriate

law, we AFFIRM the trial court’s judgment.



                             PROCEDURAL BACKGROUND



       The petitioner is presently serving a life sentence in the Department of Correction

as an habitual criminal resulting from his conviction for automobile burglary. This Court

affirmed the petitioner’s conviction, State v. Gary Wayne Lowe, No. 100 (Tenn. Crim. App.,

Knoxville, December 18, 1981), per. app. denied (Tenn. 1982). The petitioner filed a

petition for post-conviction relief challenging his burglary conviction and habitual criminal

sentence, which, upon denial by the trial court, was affirmed by this Court. Gary Wayne

Lowe v. State, No. 139, 1985 LEXIS 3081 (Tenn. Crim. App., Knoxville, April 10, 1985).

On August 26, 1987, the petitioner filed a second post-conviction petition alleging that an

unconstitutional jury instruction was given during the habitual criminal phase of his trial.

He also alleged that his habitual criminal sentence was invalid, because his prior grand

larceny conviction was void, due to the fact that it was an unconstitutional plea. The

petitioner alleged in his guilty plea proceedings that he was not advised of his right against

self-incrimination and was not warned that the conviction could be used to enhance his

punishment for a future crime. This Court reversed the dismissal and remanded for an

                                              2
evidentiary hearing. State v. Gary Wayne Lowe, No. 192, 1989 WL 34842 (Tenn. Crim.

App., Knoxville, April 12, 1989). The Supreme Court granted the state’s application on the

question of a jury instruction in the habitual criminal phase. State v. Gary Wayne Lowe,

No. 192, 1990 WL 16821 (Tenn., February 5, 1990). The Supreme Court eventually

reversed this Court’s remand on the jury instruction issue and dismissed the petition for

failure to state a claim. Lowe v. State, 805 S.W.2d 368, 372 (Tenn. 1991).



       While the second petition for post-conviction was pending, the petitioner filed the

current petition in June 1988, again alleging the 1979 guilty plea was invalid for failure of

the trial court to advise him of his right of self-incrimination and failure to warn him that the

conviction could be used to enhance future sentences. The trial court dismissed this

petition, holding the petitioner was barred from collaterally challenging the prior guilty plea

based upon the Supreme Court’s dismissal of his second petition. Upon direct appeal, this

Court reversed the trial court’s judgment and remanded for an evidentiary hearing. Gary

Wayne Lowe v. State, No. 03C01-9702-CC-00049, 1997 LEXIS 1114 (Tenn. Crim. App.,

Knoxville, October 31, 1997). As can be seen, the petitioner has developed a substantial

appellate history in his quest for freedom.



                              POST-CONVICTION HEARING

                                        A. Guilty Plea



       In 1979, the petitioner, who has an eighth grade education and is a laborer by trade,

testified he pled guilty to grand larceny because of an accomplice’s testimony in a pending

trial. The petitioner contended his only involvement was that he was standing next to the

stolen truck, and he did not steal the truck. The petitioner acknowledged that the trial court

had presided over two previous criminal trials involving the petitioner. Also, the petitioner

had undergone a third trial before Chancellor Kidwell for a criminal offense. The petitioner

recalled the trial court advised him about the habitual criminal act, but he did not know what

it meant.




                                               3
       Ken Krushenski, attorney, testified he was appointed to represent the petitioner and

negotiated a plea of guilty between the state and the petitioner. Since this plea was

entered in 1979, Mr. Krushenski had no independent recollection of the plea except from

his reading of the court files. Mr. Krushenski, who had represented other defendants in

Anderson County as well as other counties, followed certain procedures when representing

clients. It was Mr. Krushenski’s custom to review the facts of the case with each client.

After gathering the facts from witnesses and the state’s evidence, Mr. Krushenski would

give a defendant an idea of what the defendant could expect if he went to trial, or

alternatively, if there was a plea offer. As part of his procedures, Mr. Krushenski would

discuss the plea offer with a defendant, the potential witnesses’ testimony, and the

defendant’s own testimony.



       Mr. Krushenski testified he was confident that, on the guilty plea date, he and the

petitioner read the petition of waiver utilized in Anderson County, and he answered any

questions the petitioner might have had. During cross-examination, Mr. Krushenski

testified he would have discussed with the petitioner what was contained in the petition of

waiver form. Mr. Krushenski had no recollection of discussing with the petitioner his right

against self-incrimination, since the right was not set forth in the waiver petition.



       Ron Ridenour, attorney, testified he represented the petitioner in two criminal trials

prior to 1979. In the petitioner’s first trial, the petitioner was accused of receiving a stolen

Chevrolet Nova. At the conclusion of the state’s proof, the petitioner elected not to testify.

Prior to this decision, Mr. Ridenour discussed with the petitioner his right to testify or not

testify, and it was Mr. Ridenour’s advice that the petitioner not testify. Mr. Ridenour

recalled that a written waiver of rights form signed by the petitioner was introduced at trial.



       Mr. Ridenour testified the petitioner’s second trial occurred in December 1978, when

the petitioner was accused of breaking into a pickup truck in order to steal it. The petitioner

elected to testify in this second trial. Mr. Ridenour and the petitioner did not discuss the

petitioner’s right to testify or not, since it was never in doubt that the petitioner would testify.



                                                 4
       To assist the trial court in its determination of the issue, seven exhibits were

submitted by stipulation: (1) petition for waiver of jury trial and request for acceptance of

plea of guilty; (2) guilty plea transcript; (3) stipulation of facts; (4), (5), (6), and (7), certified

documents from the petitioner’s prior court cases.



       In a well-written opinion of findings of fact and conclusions of law, the trial court

denied the petition for post-conviction relief. The trial court found the guilty plea of 1979

was knowingly and voluntarily entered by the petitioner.



                                      B. LEGAL ANALYSIS



       The petitioner contends the trial court was in error for finding that the petitioner knew

of his right against self-incrimination and was waiving the same in his 1979 guilty plea. The

state counters that the guilty plea transcript, coupled with the petitioner’s experiences in

the criminal justice system, demonstrates the petitioner’s plea was knowing and voluntary.



       Findings of the post-conviction court are binding on appeal unless the evidence

preponderates otherwise. Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990); Harries v.

State, 958 S.W.2d 799, 802 (Tenn. Crim. App.), per. app. denied (Tenn. 1997). This Court

may not reweigh or reevaluate the evidence or substitute its inferences for those drawn by

the post-conviction court. Moreover, questions concerning the credibility of witnesses and

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.), per. app. denied (Tenn. 1990).



       When a defendant pleads guilty, he or she simultaneously waives several

constitutional rights, including the right against compulsory self-incrimination, the right to

a jury trial, and the right to confront and cross-examine witnesses. Boykin v. Alabama, 395

U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969); State v. Mackey, 553 S.W.2d

337, 339-40 (Tenn. 1977).           Also, in Mackey, our Supreme Court applied stricter

requirements than in Boykin for trial courts in accepting guilty pleas. Most of them were



                                                  5
incorporated in Rule 11, Tenn. R. Crim. P., as follows:

              (c)(3) That the defendant has the right to plead not guilty or to
              persist in that plea if it has already been made, and the right to
              be tried by a jury and at that trial the right to the assistance of
              counsel, the right to confront and cross-examine witnesses
              against him or her, and the right against compelled
              self-incrimination.

                                            ***

              (d) Insuring That the Plea Is Voluntary. The court shall not
              accept a plea of guilty or nolo contendere without first, by
              addressing the defendant personally in open court,
              determining that the plea is voluntary and not the result of
              force or threats or of promises apart from a plea agreement.
              The court shall also inquire as to whether the defendant's
              willingness to plead guilty or nolo contendere results from prior
              discussions between the district attorney general and the
              defendant or the defendant's attorney.

                                            ***

              (f) Determining Accuracy of Plea. Notwithstanding the
              acceptance of a plea of guilty, the court should not enter a
              judgment upon such plea without making such inquiry as shall
              satisfy it that there is a factual basis for the plea.



       In its findings of fact and conclusions of law, the trial court candidly admitted it failed

to advise the petitioner during his guilty plea proceeding that he was waiving any right of

self-incrimination. However, through extrinsic evidence, the state was able to establish the

petitioner’s prior knowledge of the right of self-incrimination, citing Johnson v. State, 834

S.W.2d 922 (Tenn. 1992) and State v. Neal, 810 S.W.2d 131 (Tenn. 1991). Thus, the

petitioner’s guilty plea was knowingly and voluntarily entered on July 17, 1979. Since this

plea was entered in July 1979, the requirements of Mackey and Rule 11, Tenn. R. Crim.

P., are applicable to this case.



       The petitioner contends his case is precisely on point with State v. Montgomery, 840

S.W.2d 900 (Tenn. 1992). In Montgomery, after considering the holdings of Neal and

Johnson, our Supreme Court reversed guilty pleas entered in 1973 stating: “However,

unlike the situation in Neal and Johnson, there is no evidence in this case that the

defendant was, in fact aware of the privilege against self-incrimination, despite his not

being advised of that right by the trial judge.” Montgomery, 840 S.W.2d at 902.



                                               6
       In Neal, 810 S.W.2d at 139-40, our Supreme Court stated:

                   In a case where the erroneous omission is the basis for
               relief under a post-conviction petition, the defendant-petitioner
               must allege and prove the omission, and that but for the
               omission the guilty plea would not have been entered. If this
               thesis is established prima facie, then the burden shifts to the
               State to justify the error by establishing through extrinsic
               evidence the defenda nt's knowing and voluntary
               relinquishment of the involved constitutional protections,
               despite the erroneous omission. If the State can demonstrate
               that the error was harmless beyond a reasonable doubt, then
               the judgment stands. If a reasonable doubt exists at the close
               of the proof, then the judgment must be set aside. (citations
               omitted).



       Therefore, if the state can establish that a petitioner was aware of his rights, he is

not entitled to relief regardless of whether the trial court informed him of all his rights.

Johnson v. State, 834 S.W.2d 922, 926 (Tenn. 1992).1                The result is substantial

compliance with the Boykin mandate.



       We find from this record that the state has successfully carried its burden by

extrinsic evidence that the petitioner at the time of his guilty plea, was aware of his right of

self-incrimination. The record establishes the petitioner proceeded to trial in October 1978

for the offense of receiving and concealing stolen property. The jury found the defendant

guilty of receiving stolen property and imposed a sentence of not more than three years

and not less than three years in the state penitentiary. Since the defendant did not testify

at this trial, the trial court instructed the jury:

               The defendant has not taken the stand to testify as a witness,
               but you shall place no significance on this fact. The defendant
               is presumed innocent, and the burden is on the State to prove
               his guilt beyond a reasonable doubt. He is not required to take
               the stand in his own behalf, and his failure to do so cannot be
               considered for any purpose against him, nor can any inference
               be drawn from such fact.



       The record establishes that a written statement given by the petitioner was




       1
           In Blankenship v. State, 858 S.W.2d 897, 906 (Tenn. 1993), the Supreme Court
reaffirmed Neal, “[b]ut we also indicated that ‘absolutely literal compliance with the advice
to be given is not required,’ so long as the ‘sense of the substance of the required advice
. . . is [expressed to an accused prior to his guilty plea]’” (quoting Neal, 810 S.W.2d at 137).

                                                  7
introduced at trial wherein the petitioner had signed an “Admonition and W aiver” of his

rights form which included the petitioner’s right of self-incrimination. The petitioner’s

counsel testified at the evidentiary hearing that he advised the petitioner of his right to

testify or not, but advised the petitioner not to testify.



       Also, the record reflects the petitioner proceeded to trial with the same attorney in

December 1978 for the offense of burglary third degree. The jury found him guilty of

attempt to commit a felony and imposed a sentence of six months. The petitioner testified

in this trial, and the trial court instructed the jury as to the credibility of the defendant as a

witness.



       The petitioner proceeded to trial on July 3, 1979, through another attorney, for the

offense of attempted murder first degree. The jury found the defendant guilty of aiding and

abetting David Graham in an assault with the intent to commit voluntary manslaughter and

imposed a sentence of ninety days and a fine of $500.



       At the guilty plea hearing on July 17, 1979, the trial court thoroughly informed the

petitioner of his rights prior to accepting his plea. The trial court informed the petitioner:

(1) the charges against him and that the state had the burden of proving them; (2) the

potential sentence and the sentence agreed upon in the plea agreement; (3) the

petitioner’s right to a trial by jury and the state’s obligation to prove the charges beyond a

reasonable doubt; (4) if the petitioner had fully discussed the charges with his attorney and

whether he was satisfied with his representation; (5) that the petitioner had a right to

confront the witnesses against him; (6) the conviction could be used to deem the petitioner

an habitual criminal in the future; (7) of the evidence against him; and (8) by pleading

guilty, the petitioner was waiving his right to appeal. Except for the advice against self-

incrimination, the trial court fully complied with the mandates of State v. Mackey, 553

S.W.2d 337, 339-40 (Tenn. 1977). The petitioner acknowledged that his plea was

knowing, intelligent, and voluntary. As to the petitioner’s reasons for pleading guilty, the

following colloquy took place between the trial court and the petitioner:



                                                8
              Q. Now are you pleading guilty to this charge of grand
                 larceny because you are in fact guilty of it?

              A. No, not really.

              Q. Why are you doing it?

              A. To keep from getting more time.

              Q. Huh?

              A. To keep from getting more time.

              Q. To keep from getting more time. You understand that
                 if these witnesses were called to testify in this case,
                 that a jury could convict you on the basis of this
                 evidence?

              A. Yes.

              Q. And that in spite of the fact that you say that this one
                 witness, Jimmy Maggard, is lying; that they might
                 believe him and not you? Is that the reason you are
                 pleading guilty?

              A. Yes.



       In conclusion, we are convinced that the petitioner desired to plead guilty, even in

the absence of the advice against self-incrimination, to obtain the certainty of his sentence

rather than have the jury impose a more severe sentence. We find the petitioner has failed

to carry his burden by a preponderance of the evidence that his plea of guilty was not

knowingly, intelligently, and voluntarily entered on July 17, 1979.



       The trial court’s judgment is affirmed.




                                          ________________________________________
                                          L. T. LAFFERTY, SENIOR JUDGE


CONCUR:



___________________________________
JERRY L. SMITH, JUDGE




                                             9
___________________________________
NORMA McGEE OGLE, JUDGE




                                 10
