             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON

                          APRIL 1997 SESSION
                                                   FILED
                                                       July 10, 1997

JOHN L. EARNEST,             )                    Cecil Crowson, Jr.
                                                   Appellate C ourt Clerk
                             )
             Appellant,      )    No. 02C01-9604-CR-00114
                             )
                             )    Shelby County
v.                           )
                             )    Honorable Carolyn Wade Blackett, Judge
                             )
STATE OF TENNESSEE,          )     (Post-Conviction)
                             )
             Appellee.       )


For the Appellant:                For the Appellee:

Craig v. Morton, II               Charles W. Burson
212 Adams Avenue                  Attorney General of Tennessee
Memphis, TN 38103                        and
                                  Deborah A. Tullis
                                  Assistant Attorney General of Tennessee
                                  450 James Robertson Parkway
                                  Nashville, TN 37243-0493

                                  John W. Pierotti, Jr.
                                  District Attorney General
                                          and
                                  Rhea Clift
                                  James J. Challen, III
                                  Assistant District Attorneys General
                                  201 Poplar Avenue
                                  Memphis, TN 38103




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                       OPINION



              The petitioner, John L. Earnest, appeals as of right from the Shelby

County Criminal Court’s denying him post-conviction relief from his second degree

murder conviction and resulting forty-year sentence in 1991 upon his plea of guilty. The

petitioner contends that he received the ineffective assistance of counsel and that he

did not knowingly and voluntarily enter his guilty plea. He asserts that his counsel was

ineffective because (1) a hearing was not conducted on several motions, (2) a motion to

compel the state to answer the motions was never filed by his counsel, (3) the mental

evaluation conducted was incomplete, and (4) his attorney only sought to negotiate a

plea rather than preparing for trial. The petitioner also claims that he did not knowingly

and voluntarily enter his guilty plea because the trial court did not advise him that he

was waiving the right to appeal his sentence or that there would be no further trials of

any kind by entering a guilty plea. Initially, we note failure to give advice not required by

Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1719 (1969), does not, per se,

warrant post-conviction relief because the omission does not, by itself, rise to the level

of constitutional error. See T.C.A. § 40-30-105; State v. Prince, 781 S.W.2d 846, 853

(Tenn. 1989); State v. Neal, 810 S.W.2d 131, 140 (Tenn. 1991).



              The petitioner and his trial attorney were the only witnesses to testify at

the post-conviction hearing. Essentially, the petitioner sought to show that his trial

counsel should have sought suppression of his written statement to police at a hearing,

sought a mental evaluation, consulted with him and conducted a more thorough

investigation, and should not have coerced him into pleading guilty by telling him that he

could receive either a life sentence or the death penalty. He also claimed that a mental

evaluation was never conducted on him and that he was never advised that he was

waiving his right to appeal. The petitioner admitted that trial counsel visited him in jail a




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lot and that he did not tell his counsel about any witnesses because he did not have

any.



              The petitioner’s trial counsel testified, at length, as to what was done

leading up to the guilty plea, including advising the petitioner that he would waive the

right to appeal his sentence by entering the plea. She said that she visited the

petitioner several times in jail and corresponded by phone and by mail. Trial counsel

stated that she spoke to the victim’s family and that at least three people witnessed the

defendant shoot the victim. She also stated that a social worker conducted a social

investigation on the petitioner, that a mental evaluation of the petitioner was conducted

at Midtown Mental Health, and that the results of the evaluation showed that the

petitioner was competent to stand trial. Trial counsel stated that she filed a motion to

suppress the petitioner’s statement to police but did not proceed to a hearing because

the petitioner admitted shooting the victim and because she was seeking a reduction of

the offer of a forty-year sentence by the state. She testified that she believed that the

state had a strong case against the petitioner and that had the petitioner gone to trial,

he would have likely been convicted of first degree murder and received a greater

sentence.



              After the evidentiary hearing, the trial court entered a nine-page order that

included findings of fact and conclusions of law. The trial court concluded that trial

counsel had performed competently and that the petitioner knowingly and voluntarily

entered his plea. Essentially, the trial court found that the petitioner had not sufficiently

proven his factual allegations. In this appeal, the petitioner is asserting that we should

accept his testimony and proof over that of his trial counsel. Our scope of review is not

that broad.

              First, this Court cannot reweigh or reevaluate the evidence; nor
              can we substitute our inferences for those drawn by the trial
              court. Second, questions concerning the credibility of the
              witnesses, the weight and value to be given their testimony,


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              and the factual issues raised by the evidence are resolved by
              the trial court, not this Court. Third, the appellate has the
              burden in this Court of illustrating why the evidence contained
              in the record preponderates against the judgment entered by
              the trial judge.

Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).



              In this respect, the petitioner fails to show how the trial court’s findings are

incorrect. Moreover, we conclude that the evidence of record does not preponderate

against the trial court’s findings. In consideration of the foregoing, and the record as a

whole, the judgment of the trial court is affirmed.




                                           Joseph M. Tipton, Judge



CONCUR:




David G. Hayes, Judge




William M. Barker, Judge




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