         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs September 12, 2006

         CHRISTOPHER NEIL SCHULTZ v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Davidson County
                        No. 2003-A-432   J. Randall Wyatt, Jr., Judge



                    No. M2005-02464-CCA-R3-PC - Filed January 5, 2007


On March 3, 2004, Petitioner, Christopher Schultz, pled guilty to two counts of first degree murder.
The trial court sentenced Petitioner to serve two concurrent life sentences. On November 30, 2004,
Petitioner filed a petition for post-conviction relief which the post-conviction court subsequently
denied. In this appeal, Petitioner argues that the post-conviction court erred in denying him post-
conviction relief because his guilty pleas were not knowingly and voluntarily entered. After a
thorough review of the record, the judgment of the post-conviction court is affirmed.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which DAVID H. WELLES and JERRY
L. SMITH , JJ., joined.

Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Christopher Neil Schultz.

Robert E. Cooper, Jr., Attorney General and Reporter; C. Daniel Lins, Assistant Attorney General;
Victor S. (Torry) Johnson III, District Attorney General; and Kathy Morante, Assistant District
Attorney General, for the appellee, the State of Tennessee.

                                             OPINION

I. Guilty Plea

         At the guilty plea proceedings, the trial judge explained to Petitioner that he was pleading
guilty to two counts of first-degree murder, and that as a result he would be required to serve
concurrent life sentences and would not be eligible for parole until after service of fifty-one years.
Petitioner acknowledged that he understood what he was pleading guilty to and the sentence he
would receive in exchange for his plea. The trial judge then explained that Petitioner had a right to
a trial by jury. The judge described the process of selecting a jury and conducting a trial, along with
the presumption of innocence cloaking Petitioner, the State’s burden of proof, the right to present
evidence, and the right to confront the witnesses against him should Defendant opt for a jury trial.
Petitioner again acknowledged his understanding of these rights and his understanding that by
entering a plea of guilty he was relinquishing these rights.

        Petitioner acknowledged that he had read over the guilty plea petition in detail with his
lawyer. He affirmed that his lawyer had explained the provisions of the petition to him, and that he
had signed the petition acknowledging his understanding of the provisions as well as his actions in
entering a guilty plea. He affirmed that his decision to enter a guilty plea was voluntary. Petitioner’s
trial counsel acknowledged that he had spoken to Petitioner, and that Petitioner’s plea was
voluntarily, knowingly, and understandingly entered after discussion with counsel. Trial counsel
expressed his own reservations about the plea, but Petitioner re-affirmed that it was his own personal
decision, and that he was making the decision voluntarily.

       Following the guilty plea colloquy, the following facts were stipulated:

       The proof in this case would show that on November 25th of 2002, witnesses saw an
       individual, a male, go up to a car, which was parked in the Outer Limits’ parking lot,
       which is a club here on Nolensville Road in Davidson County, Tennessee. They
       watched as this individual went up to the automobile that was parked, stand near it
       and fire five to six times into that automobile. There was a pause, perhaps for
       reloading, and then there were additional shots. The individual who was doing the
       shooting very calmly stopped, reached to the ground and picked up something
       believed to be shell casings, again, according to several eyewitnesses. That
       individual then got into the passenger side of a Saturn vehicle, which was parked
       nearby.

       One of the witnesses was a security guard, who was employed by Outer Limits, who
       witnessed this. He immediately got into his vehicle, which just so happened to have
       a video camera in it. He followed the vehicle as it drove out of the parking lot. he
       followed it for quite some ways onto the interstate. He was able to get the license
       plate on the video, as well as some depiction of the individual who was sitting in the
       passenger side of the car, who was, in fact, the shooter. He eventually was - - had to
       stop pursuit of that vehicle because it had pulled into what he believed was a dead[-
       ]end lane and he was afraid for his safety. This information, including the video tape
       and the statements of other witnesses, were given to the police.

       The police were able to locate the identity of that vehicle. It belonged to the mother
       of the co-defendant in this case, Maurice Tyler. It was learned, however, that the
       mother had, in fact, given that car to this defendant, Mr. Schultz. Mr. Schultz was
       brought in for questioning. He admitted that the Saturn, in fact, was his car. He, at
       that point, denied involvement with the shooting. He denied that there was anybody
       else in the car, although, again, witnesses and the videotape indicated that
       involvement.



                                                  -2-
       Additional evidence, including various statements that were taken by witnesses,
       caused the police to believe that the shooter in this case was, in fact, Mr. Tyler. They
       were able to determine that one of the victims, Mr. Monte Campbell, the male victim,
       had a few years before, committed a home invasion of Defendant Tyler’s home in
       Lewisburg, Tennessee. Mr. Campbell did approximately three years in prison for that
       crime. However, on the day that the plea in that case was taken, Mr. Tyler was heard
       by a police officer, a Lewisburg police officer, to say that he was going to kill Mr.
       Campbell when Mr. Campbell was released from prison. In fact, Mr. Campbell had
       been released from prison just a short time prior to this murder. The other victim,
       Ms. Kyra Carew, was simply an innocent victim who was in the wrong place at the
       wrong time and Mr. Tyler simply did not care, because it is the State’s belief that he
       was out on a revenge killing to kill Mr. Campbell.

       Therefore, it is the State’s proof - - it would be the State’s proof at trial, which is
       currently set a short time from now, that Mr. Tyler was the shooter, Mr. Schultz was
       the driver of the vehicle and, in fact, drove the getaway car after these two victims
       were murdered.

       I would state for the record that, quite obviously, Mr. Tyler has been severed and his
       case will go forward. I would also point out that family members of both victims are
       here in the Court today and obviously are aware of this plea.

       The trial judge clarified that Petitioner was being convicted on a theory of criminal
responsibility in that, as the driver of the getaway car, he aided and abetted the shooter, Mr. Tyler.
Based on the stipulated facts, Petitioner stated that he was pleading guilty to two charges of first
degree murder.

II. Post-Conviction Hearing

        At the post-conviction hearing, Petitioner testified that six months after the incident, he was
incarcerated and awaiting trial at the Criminal Justice Center (CJC) when he gave a statement to
Detective Crumby confessing his involvement in the murders. He said that his lawyer was not
present and he was on medication at the time of his confession. Petitioner could not remember what
medicine he was taking.

        Petitioner said that when he entered his guilty plea, “[he] thought [he] was pleading to
actually being the shooter in the case. And, the only reason [he] was pleading to that was [be]cause
[he] was being threatened.” He explained that he was being personally threatened by his co-
defendant, Mr. Tyler. These threats were also the reason he testified that he was the shooter at Mr.
Tyler’s trial. He said that members of Mr. Tyler’s “entourage” or “crew” were present at every court
appearance. Petitioner said that although the stipulated facts clearly indicated he was being
convicted for his role as driver, he was “medicated” and “didn’t really think . . . that he was suppose
to be listening to that.” He thought he was pleading guilty to being the shooter based on prior


                                                 -3-
discussions between he and counsel. He assumed that counsel had relayed their discussions and
reached an agreement with the district attorney. Petitioner said that he would not have agreed to two
life sentences for driving a car.

        Petitioner testified that as a youth he had been treated for mental illness. He said that in the
months leading up to his guilty plea hearing and at the hearing, he was on various forms of
medication which “really slowed [him] down” and made him less coherent. At the time of his plea,
Petitioner felt “depressed” and “threatened,” and like “if [he] didn’t accept the plea, then something
would of happened to [him] or [his] family.” Petitioner said that although he denied being forced
to plead guilty at his hearing, this denial was out of fear that Mr. Tyler would do something to hurt
him if he reported the threats.

         On cross-examination, Petitioner testified that he did not tell his attorney that he was being
threatened in prison out of fear that he would be assaulted by Mr. Tyler. He did request that the
prison authorities move him to another area, but because he did not specify the reason for his
requests to be moved, he was repeatedly placed in proximity to Mr. Tyler. He was finally moved
to solitary or maximum security after he was involved in several fights. He reiterated that he would
not have plead guilty had it not been for the threats he was receiving from Mr. Tyler. Neither the
State, the detectives, or the attorneys involved threatened or pressured Petitioner to plead guilty.

        Petitioner’s trial counsel, Jonathan Wing, testified that he had been an attorney at the public
defender’s office for nine years, practicing solely criminal law. During his representation of
Petitioner, he determined Petitioner to be a “very rational” and “competent” individual. He said that
the case was unusual because from the beginning Petitioner wanted to plead guilty to being the
shooter. He was concerned about this because the State’s theory was that Petitioner was the driver,
not the shooter, and all the evidence indicated that Mr. Tyler was the shooter.

        Because of his difficulty in comprehending Petitioner’s decision to plead guilty, trial counsel
arranged for Petitioner to be examined by a psychiatrist. The psychiatrist found Petitioner
“intelligent” and “articulate” and reported no mental deficiency that would serve as a defense in
Petitioner’s case or explain his decision to plead guilty to something he did not do. Trial counsel
repeatedly advised Petitioner that he was making a bad decision by pleading guilty to a life sentence
in what was a “pretty defensible case.” He told Petitioner that it would be “terrible” to take the
blame for someone else. Petitioner persisted in wanting to plead guilty, and said he wanted to be
sentenced to a mental health treatment facility.

        Trial counsel said that although Petitioner never said that he was being threatened, he
suspected that he was and asked Petitioner, as often as possible, whether this was the case. Petitioner
maintained his guilt and never acknowledged any threats. Trial counsel said that prior to entering
his guilty plea, Petitioner had many visitors at the CJC. Most of the visitors were members of Mr.
Tyler’s family as were most of the telephone calls Petitioner received. There were no visits by
Petitioner’s own family members. Trial counsel continued to try to persuade Petitioner not to plead
guilty because of threats or pressure. He also spoke with the District Attorney’s office to try and


                                                  -4-
work out a deal based on his belief that Petitioner was being pressured. The State agreed to sever
the defendants only if Petitioner agreed to plead guilty to being the driver, not the shooter. Trial
counsel and Petitioner discussed the agreement and exactly what Petitioner would be pleading guilty
to, including the State’s stipulated facts, should Petitioner go forward with the plea. When asked
if Petitioner understood the stipulated facts and the charges against him, trial counsel stated, “I can’t
imagine he didn’t know.”

III. Analysis

        Petitioner claims that he is entitled to post-conviction relief because his guilty pleas were not
knowingly and voluntarily entered. Specifically, he argues that he entered a guilty plea as a direct
result of Mr. Tyler’s threats and assaults against his person. He relies on medical records from his
incarceration as proof that he was being threatened and assaulted by Mr. Tyler at the CJC. Petitioner
also argues that because the CJC failed to act to protect him from Mr. Tyler’s threats and assaults
by routinely placing Petitioner and Mr. Tyler in close proximity to one another, the State is
responsible for the threats which induced Petitioner to plead guilty.

        Under our statutory law, the petitioner bears the burden of proving the allegations in his post-
conviction petition by clear and convincing evidence. T. C. A. § 40-30-110(f) (2003). “Evidence
is clear and convincing when there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.” Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App.
1998). On appeal, the findings of fact made by the post-conviction court are conclusive and will not
be disturbed unless the evidence contained in the record preponderates against them. Brooks v. State,
756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the petitioner to show that the
evidence preponderated against those findings. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim.
App. 1978).

        In Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), the United
States Supreme Court ruled that defendants should be advised of certain constitutional rights before
entering pleas of guilt. Included among those are admonitions regarding the right against self-
incrimination, the right to confront witnesses, and the right to trial by jury. Boykin, 395 U.S. at 243,
89 S. Ct. at 1712. “[T]he core requirement of Boykin is ‘that no guilty plea be accepted without an
affirmative showing that it was intelligent and voluntary.’” Blankenship v. State, 858 S.W.2d 897,
904 (Tenn. 1993) (quoting Fontaine v. United States, 526 F.2d 514, 516 (6th Cir. 1975)). The plea
must represent 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, 27 L. Ed. 2d 162
(1970). If the proof establishes that the petitioner was aware of his constitutional rights, he is not
entitled to relief. Johnson v. State, 834 S.W.2d 922, 926 (Tenn. 1992). A plea which is the product
of “ignorance, incomprehension, coercion, terror, inducements, [or] subtle or blatant threats” is not
voluntary. Boykin, 395 U.S. at 242-43, 89 S. Ct. 1712.




                                                  -5-
        In accepting a guilty plea, the trial court must ascertain whether the defendant fully
understands the significant consequences of his or her plea. State v. Pettus, 986 S.W.2d 540, 542
(Tenn. 1999). In making this determination, the trial court may consider a number of factors
including the defendant’s relative intelligence, his or her familiarity with criminal proceedings,
whether the defendant was represented by competent counsel and had the opportunity to confer with
counsel about options, the advice given by counsel and the trial court about the charges against the
defendant and the penalty to be imposed, and the defendant’s reasons for pleading guilty. Blakenship
v. State, 858 S.W.2d at 904.

       The post-conviction court found as follows:

       The Court finds that the Petitioner asserts that his plea of guilty was involuntary
       based on the physical harm and threatened physical harm from Mr. Tyler and his
       cohorts. The Court relies on its above findings that the Petitioner was fully aware of
       the rights he was waiving by entering the guilty plea, as well as the consequences of
       entering the guilty plea. The Court finds that the Petitioner never informed the Court,
       his attorney, the staff at CJC, the investigators, or anyone of any threats of violence
       he received prior to or on the day of the plea. The Court finds that the Petitioner
       acknowledged that he was pleading guilty of his own voluntary decision. The Court
       finds that Mr. Wing also acknowledged that after talking with the Petitioner and
       going over the plea petition on the day of the plea, he believed that the Petitioner was
       pleading guilty of his own voluntary decision. The court is of the opinion that the
       Petitioner understood that entering a plea of guilty was his own decision and that no
       one could force or compel him to enter the plea of guilty. The Court is of the opinion
       that the Petitioner’s decision to plead guilty and accept a life sentence, although not
       the decision completely endorsed by his attorney, was nevertheless his decision and
       entered with full awareness of his rights and the resulting consequences. The Court
       is of the opinion that the Petitioner’s decision to plead guilty represents a voluntary,
       knowing, and intelligent choice among the alternative courses of action available to
       the Petitioner.

       Upon reviewing the grounds contained in the Petition and considering the proof at
       the hearing, the Court is of the opinion that, for the aforementioned reasons, the
       Petition for Post-Conviction Relief should be denied.

        It is our view that nothing in the record preponderates against the post-conviction court’s
findings. As such, the post-conviction court properly denied the petition. The record of the guilty
plea proceedings reflects that Petitioner voluntarily plead guilty. He affirmed the facts as stipulated
by the State. He acknowledged that he understood the charges against him as well as his right to a
trial in order to defend himself against those charges and confront his accusers. He further
acknowledged that he was relinquishing those rights by submitting a guilty plea.




                                                 -6-
        The record from the post-conviction hearing likewise reflects that Petitioner’s plea was
voluntary. Specifically, the record indicates that Petitioner was represented by competent counsel
with extensive experience. Trial counsel hired a psychiatrist to examine Petitioner prior to his plea
in order to determine whether he was capable of making a rational decision. Both trial counsel and
the psychiatrist found Petitioner to be competent, rational, and capable of making a knowing,
voluntary decision. The psychiatrist also found Petitioner articulate and intelligent. Trial counsel
and Petitioner had several discussions in which trial counsel pleaded with Petitioner to go to trial and
forego his guilty plea. Despite the evidence and trial counsel’s extensive efforts to persuade him
otherwise, Petitioner insisted on proceeding with his guilty plea.

        As noted by the post-conviction court, trial counsel testified that it was his opinion that
Petitioner’s plea was knowingly and voluntarily entered. Although Petitioner now contends that his
plea was involuntarily entered because it was given under threats of assault and actual assault from
Mr. Tyler, and that the State enabled these threats, he failed to inform anyone of this fact prior to
entering his guilty plea. Additionally, although Petitioner offers his medical records as proof that
the State was aware he was being assaulted by Mr. Tyler, there is nothing in the medical records
linking Mr. Tyler with Petitioner’s injuries. Applying the above stated principles, we conclude that
Petitioner has failed to establish by clear and convincing evidence that his pleas were involuntarily
entered. Accordingly, Petitioner is not entitled to relief.

                                          CONCLUSION

       For the foregoing reasons, the judgment of the post-conviction court is affirmed.


                                                        ___________________________________
                                                        THOMAS T. WOODALL, JUDGE




                                                  -7-
