         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs April 9, 2002

                    NAKIA RUMPH v. STATE OF TENNESSEE

                  Direct Appeal from the Circuit Court for Madison County
                          No. C-01-44    Clayburn Peeples, Judge



                     No. W2001-02066-CCA-R3-PC - Filed April 19, 2002


The Appellant, Nakia Rumph, appeals from the dismissal of his petition for post-conviction relief.
In 2000, Rumph pled guilty to two counts of aggravated sexual battery and was sentenced to eight
years imprisonment on each count. On appeal, Rumph challenges the validity of his guilty plea upon
grounds of: (1) voluntariness and (2) ineffective assistance of counsel. After review, we affirm the
judgment of the Madison County Circuit Court dismissing the petition.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which DAVID H. WELLES and JAMES
CURWOOD WITT, JR.,JJ., joined.

Mechelle Story, Taylor and Associates, Jackson, Tennessee, for the Appellant, Nakia Rumph.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Braden H.
Boucek, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and
Alfred Earls, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                            OPINION

                                       Factual Background

        In August 1999, the Appellant was indicted on two counts of aggravated sexual battery. He
was declared indigent, and the public defender’s office was appointed to represent him. Thereafter,
conflicts arose between the Appellant and his attorney. On January 31, 2000, the day before trial was
to begin, the Appellant requested that his attorney be discharged and another lawyer be appointed
to represent him. The trial court refused to discharge the Appellant’s attorney. Later that same day,
the Appellant entered a guilty plea to two counts of aggravated sexual battery and received eight
years on each count.1 The Appellant’s pro se petition for post-conviction relief was filed on
February 1, 2001. After counsel was appointed to assist the Appellant, an evidentiary hearing was
conducted on July 24, 2001. Thereafter, the post-conviction court dismissed the Appellant’s
petition. This timely appeal followed.

                                                   ANALYSIS

        In order to succeed on a post-conviction claim, the Appellant bears the burden of showing,
by clear and convincing evidence, the allegations set forth in his petition. Tenn. Code Ann. § 40-30-
210(f) (1997). The Appellant’s claim of ineffectiveness of counsel and involuntariness of his guilty
plea, as set forth in his petition, stem from the following allegations:

         (1) the Appellant was intimidated by trial counsel and as a result of this intimidation
         he entered into a plea agreement with the State; and

         (2) the Appellant was not given the opportunity to review his discovery materials and
         as a result he was not aware of the evidence that would have been presented against
         him if the matter proceeded to trial.

         In evaluating the knowing and voluntary nature of a guilty plea, the United States Supreme
Court 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, 91 S. Ct. 160, 164 (1970). 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); see also Chamberlain v. State, 815 S.W.2d 534, 542 (Tenn. Crim. App. 1990).
Indeed, a "court charged with determining whether . . . pleas were 'voluntary' and 'intelligent' must
look to various circumstantial factors, such as 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).

         Once a guilty plea has been entered, effectiveness of counsel is relevant only to the extent
that it affects the voluntariness of the plea. In this respect, such claims of ineffective assistance
necessarily implicate the principle that guilty pleas be voluntarily and intelligently made. Hill v.
Lockhart, 474 U.S. 52, 56,106 S. Ct. 366, 369 (1985) (citing North Carolina v. Alford, 400 U.S. at
31, 91 S. Ct. at 164).



         1
          Becau se the A ppe llant failed to include in the record the plea agreement documents or the judgment of
conviction form s, we are unab le to determine wh ether the Appellant’s eight-year sentences were ordered to be served
con currently or co nsecutively.

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        To succeed in a challenge for ineffective assistance of counsel, the Appellant must
demonstrate that counsel’s representation fell below the range of competence demanded of attorneys
in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984), the Appellant must establish: (1)
deficient representation and (2) prejudice resulting from the deficiency. In the context of a guilty
plea, to satisfy the second prong of Strickland, the Appellant 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. at 59, 106 S. Ct. at 370; Walton v. State, 966 S.W.2d
54, 55 (Tenn. Crim. App. 1997).

        The issues of deficient performance by counsel and possible prejudice to the defense are
mixed questions of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). “A trial court’s
findings of fact underlying a claim of ineffective assistance of counsel are reviewed on appeal under
a de novo standard, accompanied with a presumption that those findings are correct unless the
preponderance of the evidence is otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001)
(citing Tenn. R. App. P. 13(d)); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However,
conclusions of law are reviewed under a purely de novo standard, with no presumption of
correctness. Fields, 40 S.W.3d at 458.

                                 I. Intimidation by Trial Counsel

         In the present case, the Appellant first contends that his plea was involuntary because his trial
counsel coerced him into pleading guilty. Specifically, the Appellant contends that his attorney told
him on the day before trial was to begin, he was going to “lose the trial and to be a man about it and
take” the plea offer. Thereafter, the Appellant requested that his attorney be discharged. The trial
court denied this request. The Appellant subsequently pled guilty to two counts of aggravated sexual
battery.

       After review, the post-conviction court found the Appellant's plea to be voluntary and
explained its reasoning as follows:

        1. The Petitioner has failed to demonstrate by clear and convincing evidence that he
        was in any way denied a right or had any right infringed that is guaranteed under the
        Constitution of the United States or of the State of Tennessee.

        2. The court finds that the Petitioner made a knowing and voluntary guilty plea and
        that the plea was in no way the result of pressure placed upon him by counsel or the
        Court.

        3. Counsel’s advice to the Petitioner to take the State’s offer was entirely within the
        realm of counsel’s legal obligation and cannot be undue influence.




                                                   -3-
       4. The Petitioner was fully advised of all constitutional rights and the State’s plea
       offer and fully understood his actions in pleading guilty and understood the
       consequences of those actions.

       5. Both counsel and the court fully explained the Petitioner’s rights and the plea
       agreement and the consequences of the plea.

         The record indicates that the trial court questioned the Appellant extensively as to whether
his plea was made with knowledge and understanding. At the post-conviction hearing, trial counsel
testified that she did not force the Appellant to take the plea, but rather, told the Appellant that, in
her professional opinion, it was his in “best interest” to accept the State’s offer. The post-conviction
court obviously credited trial counsel’s testimony that she did not place undue influence upon the
Appellant to plead guilty. Because we do not revisit the issue of credibility on appeal, we defer to
the post-conviction court's ruling in that regard. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim.
App. 1990). We conclude that the record fully supports the findings of the post-conviction court that
the Appellant has not proven by clear and convincing evidence that his guilty pleas were
involuntarily made. Therefore, this issue is without merit.

                                      II. Discovery Materials

        Second, the Appellant contends that he did not receive effective assistance of counsel, and
thus his plea was not voluntary, because he “did not have good communications with his attorney
at the trial level and as a result, the Appellant was not adequately advised of the evidence to be
presented against him at a trial in this matter.” The post-conviction court concluded that the
Appellant received the competent assistance of counsel, and consequently, entered his plea
knowingly and voluntarily, finding that, “counsel obtained discovery and discussed the State’s case
with the Petitioner. And discussed the Petitioner’s options and would have continued to fully and
competently represent the Petitioner had he opted to go to trial.”

        The proof does not preponderate against these findings. Trial counsel testified at the post-
conviction hearing that she went through discovery materials “piece by piece” with the Appellant,
and that the Appellant “did not want his discovery materials in the jail because of the nature of the
offense; . . . he didn’t want the inmates to discover materials that would implicate him in an
aggravated sexual battery.” The post-conviction court obviously credited trial counsel’s testimony
that she reviewed discovery materials with the Appellant, and therefore, the Appellant was
adequately advised of the evidence to be presented against him at a trial in this matter. Again,
because we do not revisit the issue of credibility on appeal, we defer to the post-conviction court's
ruling in that regard. Black, 794 S.W.2d at 755.

         Accordingly, we find that the Appellant has not proven by clear and convincing evidence that
trial counsel’s performance was outside the range of competence demanded of attorneys in criminal
cases. The Appellant certainly has failed to show evidence that “but for counsel’s errors, he would



                                                  -4-
not have pleaded guilty and would have insisted on going to trial.” In sum, the Appellant has failed
to prove ineffective assistance of counsel.

                                          CONCLUSION

        Based upon the foregoing, we find that the post-conviction court did not err in ruling that the
Appellant’s plea was knowingly, intelligently, and voluntarily entered or that he received the
effective assistance of counsel. Accordingly, the judgment of the post-conviction court is affirmed.




                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE




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