        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON

                          JULY SESSION, 1997


JOHN C. RHEAUME,             )
                                                              FILED
                                  C.C.A. NO. 02C01-9607-CR-00246
                             )                                September 12, 1997
      Appellant,             )
                             )                                Cecil Crowson, Jr.
                             )    SHELBY COUNTY               Appellate C ourt Clerk
VS.                          )
                             )    HON. JOSEPH B. BROWN, JR.
STATE OF TENNESSEE,          )    JUDGE
                             )
      Appellee.              )    (Post-Conviction)


               ON APPEAL FROM THE JUDGMENT OF THE
                CRIMINAL COURT OF SHELBY COUNTY


FOR THE APPELLANT:                FOR THE APPELLEE:

JAMES A. COHEN                    JOHN KNOX W ALKUP
200 Jefferson Avenue, Suite 925   Attorney General and Reporter
Memphis, TN 38103
                                  JANIS L. TURNER
                                  Assistant Attorney General
                                  425 5th Avenue, North
                                  Nashville, TN 37243

                                  JOHN W. PIEROTTI
                                  District Attorney General

                                  ALANDA HORNE
                                  Assistant District Attorney General
                                  Criminal Justice Complex, Suite 301
                                  201 Poplar Street
                                  Memphis, TN 38103



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                 OPINION

       The Petitioner appeals as of right the trial court’s denial of his petition for

post-conviction relief. The Petitioner pleaded guilty pursuant to a plea agreement

to one count of aggravated rape and one count of aggravated robbery. He was

sentenced to twenty years incarceration for the aggravated rape and twelve years

for the aggravated robbery, to be served concurrently.



       The Petitioner was convicted on September 21, 1992. He filed a pro se

petition for post-conviction relief on January 13, 1995, within the three-year

statute of limitations applicable to petitions filed before May 10, 1995. See Tenn.

Code Ann. § 40-30-102 (repealed 1995); § 40-30-201 (Supp. 1996). Counsel

was appointed and an amended petition was filed on May 15, 1996. The trial

court dismissed the petition after an evidentiary hearing conducted on January

4th and 24th, 1996. The Petitioner now appeals the trial court’s denial of his

petition and raises two issues: (1) That he was denied the effective assistance

of counsel; and (2) that he did not voluntarily, knowingly and understandingly

waive his rights when he entered his guilty plea. We affirm the judgment of the

trial court.



       The facts supporting the Petitioner’s guilt reveal that a white male fitting the

Petitioner’s description accosted a woman as she was leaving her home in

Memphis, Tennessee at approximately 6:45 in the morning. She described him

as a white male wearing a ski mask, who appeared to be in his early to mid

twenties. He was approximately 5'6" to 5'7" tall. He wore a blue baseball cap



                                          -2-
with an insignia, a brown leather jacket, brown and green camoflauge pants,

white Converse tennis shoes, a brown gun holster and black gloves.



      The perpetrator had a silver revolver and forced the wom an to go back into

her house. W hile there, he rifled her purse and took two gasoline credit cards

and two twenty dollar bills. He forced the woman at gunpoint to walk through

every room in the house. In one room, he directed the victim to get telephone

cord with which he tied her up. The assailant put the woman on the bed and put

a pillowcase over her head. He fondled her buttocks and genitals over her

clothes, then fondled her breasts. He allowed the victim to go to the bathroom

and took off the pillowcase and the cord around her hands because she agreed

to cooperate. He smoked a cigarette. He made the victim take off her top and

put on a camisole he found in a drawer. The perpetrator digitally penetrated the

victim anally, had her perform fellatio twice, and penetrated the victim with his

penis three times. The victim noted her clock during the assault, which occurred

between 8:07 a.m. and 8:17 a.m. After the sexual assault, the perpetrator

instructed the victim not to look at him while he dressed himself. He threw a

towel to the victim and told her to pull up her pants and get a shirt for herself. At

approximately 9:30 a.m., he put the victim in a storage closet face down with her

arms and legs bound. She remained there until approximately 12:45 p.m. The

victim noted that her car had recently been stolen and recovered three times and

she had noticed the smell of smoke and a body odor like her assailant’s in the car

when it was returned.



      The perpetrator left the house in the victim’s car, a 1991 maroon Mazda

Protege, but returned it later that morning. While the victim’s neighbor was car

                                         -3-
pooling his children to school, he saw the perpetrator in the victim’s car as it

pulled into her driveway. He saw the man leave the car in the driveway and walk

down the street. The neighbor called 911 and gave a description of the man as

white, between 5'7" and 5'9" tall, with dark hair and a slight mustache, who

appeared to be in his early twenties. The perpetrator was wearing combat type

boots, green pants and a brown jacket. Police officers met the neighbor at his

home to investigate the report. After leaving his house and going to his office,

the neighbor saw the suspect at a local supermarket. Police officers were

contacted again and they arrested the Petitioner.       Both the victim and the

neighbor identified the Petitioner as the assailant. Police officers recovered a

blue baseball cap, tennis shoes, a brown leather jacket, dark brown gloves, a pair

of camoflauge pants, a sleeveless shirt, white underwear and a Halloween mask

from a search of the Petitioner’s home.



      In the Petitioner’s first issue, he contends that his appointed counsel

provided ineffective assistance. He notes that the State provided counsel with

an extensive list of witnesses and that counsel did not contact most of the State’s

witnesses. He next contends that after counsel received items from the State

through a discovery request, she merely told the Petitioner that they were the

materials she had received. He claims that counsel did not explain any of the

documents to him. The Petitioner also alleges that defense counsel failed to

discuss results of blood and hair sample tests. Furthermore, he argues that he

pleaded guilty only because defense counsel “threatened” him with an eighty-

year sentence. Finally, he contends that he was not properly informed because

he attended only two court proceedings.




                                        -4-
      In determ ining whether counsel provided effective assistance at trial, the

court must decide whether counsel’s performance was within the range of

competence dem anded of attorneys in criminal cases. Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975). To succeed on a claim that his counsel was

ineffective at trial, a petitioner bears the burden of showing that his counsel made

errors so serious that he was not functioning as counsel as guaranteed under the

Sixth Amendment and that the deficient representation prejudiced the petitioner

resulting in a failure to produce a reliable result. Strickland v. W ashington, 466

U.S. 668, 687, reh’g denied, 467 U.S. 1267 (1984); Cooper v. State, 849 S.W.2d

744, 747 (Tenn. 1993); Butler v. State, 789 S.W .2d 898, 899 (Tenn. 1990). To

satisfy the second prong the petitioner must show a reasonable probability that,

but for counsel’s unreasonable error, the fact finder would have had reasonable

doubt regarding petitioner’s guilt. Strickland, 466 U.S. at 695. This reasonable

probability must be “sufficient to undermine confidence in the outcom e.” Harris

v. State, 875 S.W.2d 662, 665 (Tenn. 1994).



      W hen reviewing trial counsel’s actions, this court should not use the benefit

of hindsight to second-guess trial strategy and criticize counsel’s tactics. Hellard

v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors should be

judged at the time they were made in light of all facts and circumstances.

Strickland, 466 U.S. at 690; see Cooper 849 S.W.2d at 746.



      This two part standard of measuring ineffective assistance of counsel also

applies to claims arising out of the plea process. Hill v. Lockhart, 474 U.S. 52

(1985). The prejudice requirement is modified so that the petitioner “must show




                                        -5-
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.” Id. at 59.



       At the hearing on the petition, counsel testified that she requested and

received discovery from the State. She met with the Petitioner, discussed the

meaning of the items received as well as the theory of the case. She testified

that the Petitioner sent her a letter detailing his version of the facts. He claimed

that he had a personal relationship with the victim and that they were involved in

a scheme to steal computer equipment from a school. W hen the Petitioner

backed out of the plan, the victim then fabricated the charges against him.

Counsel attempted to contact a person the Petitioner had named in the letter but

could not locate anyone with the name she was given. Counsel did contact

several other witnesses the Petitioner gave, but they were of no assistance in the

case. Finally, counsel admitted to not contacting the police officers listed as

witnesses for the State because “the police officers don’t want to talk to us and

we generally don’t contact them.” She did state that she contacted persons at

the rape crisis center and the University of Tennessee toxicology laboratory.



      Counsel noted that the Petitioner was uncooperative and threatened to

withhold the names of possible witnesses. Counsel sent the Petitioner a lengthy

letter that refers to the Petitioner’s lack of cooperation with her. The letter stated:

“I hope that you will make an attempt to try to help me defend you against a case

in which you are facing a possible forty (40) year consecutive to forty (40) years

sentence. The state’s proof is very strong.” The Petitioner contends that counsel

misrepresented the possible sentences he would receive if he went to trial and

was convicted and that the above statement in counsel’s letter suggested he may

                                          -6-
receive an eighty-year sentence. Counsel was not asked to explain the contents

of the letter on direct or cross-examination at the post-conviction hearing.

Counsel did testify that her calculation of the sentencing ranges and the

possibility of consecutive sentencing were fifteen to twenty-five years for

aggravated rape as a range I offender and twelve to twenty years for the

aggravated robbery as a range II offender. Counsel testified that she discussed

with the Petitioner these potential sentences and the possibility of consecutive

sentencing for an effective term of forty-five years. Furthermore, the transcript

of the Petitioner’s guilty plea proceeding reflects that he was aware that “[e]ither

I accept this [plea agreement] or I take a chance of getting 45 years.” Although

the letter suggests an eighty-year sentence, there is other evidence in the record

that contradicts the information in the letter, namely, that counsel calculated a

possible forty-five year sentence and that the Petitioner was aware of this when

he entered his guilty plea. W e are mindful that there must be proof that counsel

made errors so serious that she was not functioning as counsel as guaranteed

under the Sixth Am endment. Strickland, 466 U.S. at 687. There is evidence that

counsel took measures to correct a prior error in calculating the potential

sentence.



      The Petitioner claim s that counsel did not inform him of the forensic testing

that was conducted and that the semen sam ple obtained from the victim did not

conclusively prove he was the perpetrator. However, counsel testified that she

discussed possible DNA analysis with the Petitioner to confirm the identity of the

assailant and also informed him of the negative consequences if he, indeed,

matched the sam ple. The record reflects that counsel requested time to discuss

DNA testing with her client. Counsel testified that the Petitioner refused the test.

                                        -7-
      Finally, counsel testified that she met with the Petitioner sixteen times in

addition to his court appearances. She also stated that she was prepared to go

to trial on the case when a plea agreement was reached that same day.



      The trial court found that “Ms. Brown, counsel for the defendant, had

conducted or did conduct an above-average defense of this particular individual.”

In a post-conviction proceeding under the Act applicable to this case,         the

petitioner must prove the allegations in the petition by a preponderance of the

evidence. Davis v. State, 912 S.W .2d 689 (Tenn. 1995); Adkins v. State, 911

S.W.2d 334, 341 (Tenn. Crim. App. 1994). In appellate review of post-conviction

proceedings, the trial court’s findings of fact are conclusive unless the evidence

in the record preponderates against the findings. Cooper v. State, 849 S.W.2d

744, 746 (Tenn. 1993); Butler v. State, 789 S.W .2d 898, 899 (Tenn. 1990). On

its face, counsel’s letter presents a potential sentence that is in error. However,

the trial court found that the evidence showed that the Petitioner discussed with

counsel his potential sentences that he was “reasonably put on notice” regarding

the correct range of sentences to be imposed if he went to trial and was

convicted. Consequently, no prejudice resulted from counsel’s erroneous letter.

The court found that counsel adequately investigated relevant witnesses and

noted the Petitioner’s failure to cooperate with counsel. Also, counsel consulted

with the Petitioner on numerous occasions. Finally, the court concluded that the

Petitioner was familiar with the criminal justice system from his prior convictions

and that “[t]he court, quite frankly, does not believe many of the assertions given

by the defendant during the course of these proceedings.” W e cannot conclude

that the evidence presented by the Petitioner preponderates against the findings

of the trial court.   Therefore, we agree that the Petitioner has failed to

                                        -8-
dem onstrate that counsel’s perform ance fell below the required standard or that

he was prejudiced by counsel’s actions. This issue is without merit.



      Next, the Petitioner asserts that he did not voluntarily, knowingly or

intelligently enter his plea of guilty. In Boykin v. Alabama, 395 U.S. 238 (1969),

the United States Supreme Court held that the record m ust show that a guilty

plea was made voluntarily, understandingly and knowingly. In Boykin, the Court

held that an entry of a guilty plea effectively constituted a waiver of the

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

one's accusers, and the right to trial by jury. Id. at 243. If a guilty plea is not

voluntary and knowing, it has been entered in violation of due process and is,

therefore, invalid.



      A voluntary plea cannot be found from a silent record. Boykin, 395 U.S.

at 242. Pursuant to its supervisory power, our supreme court has imposed more

stringent standards for trial courts to employ when advising defendants during

guilty pleas to provide an adequate record that will insure constitutional

compliance.      State v. Mackey, 553 S.W.2d 337 (Tenn.1977).              However,

post-conviction relief may be granted only if a conviction or sentence is void or

voidable because of a violation of a constitutional right. Tenn. Code Ann. §

40-30-105 (repealed 1995). As was pointed out in State v. Neal, 810 S.W .2d 131

(Tenn. 1991), violation of the advice litany required by either Mackey or

Tennessee Rule of Criminal Procedure 11 which is not linked to a specified

constitutional right is not cognizable in a suit for post-conviction relief. See State

v. Prince, 781 S.W .2d 846 (Tenn.1989). Moreover, it is the result, not the




                                         -9-
process, that is essential to a valid plea. Johnson v. State, 834 S.W.2d 922, 923-

24 (Tenn. 1992). The critical inquiry is whether the Petitioner had knowledge of

certain rights and waived those rights knowingly and voluntarily, not whether the

trial court was the source of that knowledge.



         The Petitioner’s first contention regarding his guilty plea is that he felt

coerced into the plea agreement because counsel “threatened” him with an

eighty-year sentence. Although there is evidence of a letter from counsel that

suggests an eighty-year sentence, counsel testified that she discussed the

appropriate sentences with the Petitioner.        The transcript of the guilty plea

proceeding reflects that the Petitioner was concerned with a trial in which “I take

a chance of getting 45 years.” The Petitioner was accurately informed of the

possible punishment before him if he went to trial and he chose instead to take

the   effective sentence of twenty years pursuant to the plea agreement.

Certainly, the prospect of serving forty-five years incarceration is daunting, but

the option to go through a trial or to plead guilty does not constitute coercion that

makes a plea involuntary. See Neal, 810 S.W .2d at 135. This issue is without

merit.



         Secondly, the Petitioner claims that he did not understand the rights he

was surrendering in his guilty plea. At the proceeding in the trial court, the trial

judge and the Petitioner had the following exchange:



         BY THE COURT:
         Q:    Do you understand that you have a right to plead not guilty and
         go to trial before a jury and be represented by your lawyer, cross-
         examine, subpoena, testify on your own behalf, although you would not
         be required to, appeal if you lost, be represented free of charge by a

                                           -10-
      lawyer on appeal, challenge the sufficiency of the State’s evidence, the
      manner in which they obtained their evidence.
            You’re giving up all these rights by pleading guilty. Do you
      understand that?

      A:    No. I was informed by my public defender that I would not be
      pleading guilty, that I would just be accepting the time.


      At that point, the trial court and the Petitioner entered into a lengthy

colloquy explaining that he was entering a plea pursuant to North Carolina v.

Alford, 400 U.S. 25, 91 S. Ct. 160 (1970). Alford provides that “[a]n individual

accused of crime may voluntarily, knowingly, and understandingly consent to the

imposition of a prison sentence even if he is unwilling or unable to admit his

participation in the acts constituting the crime.” 400 U.S. at 37; 91 S.Ct. at 167.

After the trial court explained the Alford plea, a recess was had in which counsel

met with the Petitioner to review the plea agreement. However, the Petitioner

contends that his answer “no” was in response to whether he understood the

rights he was relinquishing.



      Although a review of the guilty plea proceeding reveals that the focus of the

extended dialogue regarded the Petitioner’s understanding his Alford plea, the

trial court did state on the record the rights he was relinquishing. The record from

the Petitioner's guilty plea shows that the Petitioner was addressed personally in

open court by the trial judge and was advised of all his constitutional rights as

mandated by Boykin. It does appear that the trial court failed to comply with the

Mackey and Rule 11(c) requirements. The Petitioner argues that his answer to

the questions demonstrates that he was not entering into his plea knowingly,

voluntarily and intelligently. However, after reviewing the record, the Petitioner's

statements seem to stem more from a desire to be uncooperative than from not


                                        -11-
understanding. The Petitioner later answered that he freely and voluntarily was

choosing not to go to trial. Counsel for the State voir dired the Petitioner at

length, going over his waiver of rights form and the judgm ent forms for the

offenses. The Petitioner indicated his understanding of and assent to the terms

and thus, chose to proceed with the guilty plea. The Petitioner was allowed to

confer with counsel to review the forms and the guilty plea he signed. The

Petitioner acknowledged in open court that he had read, understood and signed

his waiver of rights form. The Petitioner was informed both about the nature of

his plea and sentences and about the consequences of his actions. This is

sufficient to demonstrate that the Petitioner also knowingly and intelligently

entered his plea.



      At the post-conviction hearing, the trial court found that from an

examination of the proof, the Petitioner did voluntarily enter a guilty plea.

Furthermore, the trial judge expressly stated that the Petitioner’s credibility was

extremely lacking. The trial court found that by assessing the testimony in the

record and assessing the Petitioner’s demeanor, regarding the voluntariness of

his guilty plea, “[i]t wasn’t that he did not know what was going on. He didn’t want

to accept what was going on.” The evidence in the record clearly does not

preponderate against the trial court’s findings. This issue has no merit.



      Therefore, we affirm the judgment of the trial court denying the petition for

post-conviction relief.




                                        -12-
                         ____________________________________
                         DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JOE B. JONES, PRESIDING JUDGE


___________________________________
JOE G. RILEY, JUDGE




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