             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                              FILED
                                         AT KNOXVILLE                       August 26, 1999

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



MICHAEL L. DICKERSON,                )
                                     )        C.C.A. No. 03C01-9808-CC-00306
      Appellant,                     )
                                     )        Cocke County
v.                                   )
                                     )        Honorable Ben W. Hooper, II, Judge
STATE OF TENNESSEE,                  )
                                     )        (Post-Conviction)
      Appellee.                      )




FOR THE APPELLANT:                            FOR THE APPELLEE:

MICHAEL L. DICKERSON, pro se                  PAUL G. SUMMERS
Northeast Correctional Complex                Attorney General & Reporter
P. O. Box 5000
Mountain City, TN 37683                       ERIK W. DAAB
(On Appeal)                                   Assistant Attorney General
                                              425 Fifth Avenue North
EDWARD C. MILLER                              Nashville, TN 37243-0493
District Public Defender
1232 Circle Drive, Suite 350                  AL C. SCHMUTZER, JR.
P. O. Box 416                                 District Attorney General
Dandridge, TN 37725-0416                      125 Court Avenue, Room 301-E
(At Trial)                                    Sevierville, TN 37862

SUSANNA L. THOMAS                              JAMES B. DUNN
Assistant District Public Defender             Assistant District Attorney General
102 Mims Avenue                                339-A East Main Street
Newport, TN 37821-3614                         Newport, TN 37821
(At Trial)




OPINION FILED: _________________________________


AFFIRMED


ALAN E. GLENN, JUDGE
                                        OPINION

       The petitioner, Michael L. Dickerson, appeals from the dismissal of his petition for

post-conviction relief, which alleged that he was forced by his attorney into pleading guilty

to the offense of aggravated assault, of which he was not guilty. As a result, he claims

that his counsel was ineffective and that the guilty plea should be set aside. Based upon

our review of the record, we affirm the order of the trial court dismissing the petition.



       In Cocke County, the petitioner was charged first with aggravated assault. As a

result, he retained counsel, whom he now complains provided ineffective legal assistance.

The petitioner’s attorney met with him regarding the charge and spoke with several

witnesses. Counsel’s conclusion was that it was a “winnable” case. However, the

petitioner was then indicted on numerous auto theft charges. The plea bargain offer from

the prosecutor was for all charges, including the aggravated assault, of which the petitioner

now claims he was not guilty, the pending auto theft cases, and for any other offenses, as

then uncharged, which had been committed prior to the plea bargain agreement.



       The written plea agreement, dated May 29, 1996, and signed by both the petitioner

and the prosecutor, sets out that the petitioner agreed to plead guilty to the following

charges:

                     6314 - Aggravated Assault

                     6540 - Theft over $1,000

                     6541 - Theft over $1,000

                     6542 - Theft over $10,000

                     6543 - Theft over $10,000

                     6544 - Theft over $10,000

                     6659 - Stalking.



       Upon the petitioner’s pleas of guilty to these charges, the prosecution was to

recommend to the court the following sentences:

                     6314 - Six years at 30%

                                              2
                     6540 - Four years at 30%

                     6541 - Four years at 30%

                     6542 - Six years at 30%

                     6543 - Six years at 30%

                     6544 - Six years at 30%

                     6659 - Eleven months and twenty-nine days.



       Of these sentences, indictments 6540, 6541, 6543, 6544, and 6659 were to be

served concurrently with each other and concurrently with the sentences imposed in

indictments 6314 and 6542. The sentences imposed in indictments 6314 and 6542 were

to be served consecutively with each other. Handwritten under the petitioner’s signature

on the plea agreement is the following statement:

              It is agreed that the state shall not seek indictment nor shall
              the state prosecute any offense against this defendant on any
              crime involving theft committed prior to this date.



       On the same day, the petitioner, his counsel, and the prosecutor, signed the waiver

of jury trial and guilty plea. This form stated:

                 Comes the defendant Michael Lynn Dickerson and
              voluntarily waives his right to a trial by jury and asks this Court
              to try his case both as to guilt and punishment. The right to a
              jury trial has been fully explained to him and he understands
              the consequences in giving up this right.

                 Further, the Defendant acknowledges that he has been fully
              advised of all the elements of the crime(s) charged against
              him. He understands that the State must prove each element
              beyond a reasonable doubt to a moral certainty before he can
              be found guilty. He understands that he has the right to
              confront and cross-examine witnesses against him. Also, he
              understands the range of penalties for the crime(s). He knows
              he has a Constitutional Right to stand on his plea of not guilty
              and make the State prove his guilt. That if he is found guilty,
              he has a right to appeal the decision; at which time it could be
              reversed or dismissed. All of these rights he gives up if he
              pleads guilty.

                Understanding all of this, the Defendant voluntarily pleads
              guilty to the offense(s) of:

              6314 - Aggravated Assault
              6542 - Theft over $10,000
              6541 - Theft over $1,000
              6540 - Theft over $1,000


                                              3
              6543 - Theft over $10,000
              6544 - Theft over $10,000
              6659 - 11/29 Stalking

              and requests the Court to accept it. He has not been forced to
              make this plea, nor has he been threatened or promised
              anything that would cause him to enter this plea. He
              understands that there may or may not be a recommendation
              made to the Court about sentencing which the Court may
              accept or refuse.



This plea was accepted by order signed by the trial judge, and the petitioner was

sentenced to the punishment as set out in the plea agreement and the waiver. However,

prior to accepting the petitioner’s pleas of guilty, the trial court questioned him at length

regarding his pleas.



       During the guilty plea proceedings in this matter, the trial court advised the petitioner

in detail as to his constitutional rights in the process. In response to specific questions

from the trial court, the petitioner stated that he understood he was receiving a six-year

sentence for the aggravated assault charge and that he had not been threatened or

coerced into entering a plea of guilty. Further, in response to the trial court query as to

whether he was “freely and voluntarily” entering a guilty plea in the aggravated assault

case because he was guilty, the petitioner responded, “Yes, sir.” The prosecutor then

advised the court that, had the aggravated assault case gone to trial, the State’s proof

would have shown that on May 8, 1994, the petitioner threw gasoline on Edna Webb and

tried to ignite a cigarette lighter to set her on fire. The trial court asked the petitioner if he

understood that these were the facts the State would have tried to prove had the case

gone to trial, and he responded that “they would have tried.” The trial court then discussed

each of the additional charges, asking the petitioner about his understanding of what the

State would have tried to prove in each case, had they gone to trial. The petitioner told the

court that he was entering pleas of guilty in each of the cases because he was guilty of the

offenses. Counsel for the petitioner then advised the court of the agreement that, in

exchange for the petitioner’s pleas of guilty in all of the cases, the State had agreed not to

prosecute him in other cases for which he had not yet been charged and, further, that a

sentence which the petitioner was to receive in Hamblen County would be run concurrently


                                                4
with the sentences the petitioner was receiving in Cocke County.



       Finally, in response to the court’s question as to whether Edna Webb had sustained

injuries as the result of being doused with gasoline, the prosecutor informed the court that

Ms. Webb was present in the courtroom. In response to the court’s question as to whether

she wished to speak, Ms. Webb stated:

              Well, number one, Your Honor, it didn’t happen on May the
              8th; it happened on my birthday, May the 9th, and on Mother’s
              Day. That’s all I’ve got to say. I’ve got to say one thing, I do
              love my boy regardless of what he done [sic] to me.



       Thus, based upon the documents executed by the petitioner as part of the guilty

plea agreement, and the testimony at the plea hearing, it is clear that the petitioner freely

and voluntarily entered pleas of guilty to the charges against him, including the aggravated

assault. Further, based upon the statement of Ms. Webb to the trial court, it is clear that

the State had a prosecutable case as to the aggravated assault.



       On December 17, 1997, following the petitioner’s filing of his petition for post-

conviction relief, the trial court held a hearing in the matter. Counsel who had represented

the petitioner at the guilty plea was the first witness. He testified that he talked with

witnesses in the aggravated assault case and felt that it was “winnable.” However, the

petitioner was then charged with a series of car thefts, the proof consisting of tape

recordings. Further, there were other potential charges in various counties, as well as

pending cases in Hamblen County. As a result, defense counsel met with the prosecutor

regarding the disposition of the cases. However, the prosecutor would not deal separately

with the aggravated assault case. Counsel then met with the petitioner and told him that

the State would not deal separately with the aggravated assault, which counsel told the

petitioner was a winnable case. The petitioner told counsel that he would not plead guilty

to the aggravated assault. Counsel testified that he discussed the guilty plea process with

the petitioner, but that the ultimate decision was the petitioner’s as to what to do.



       In State v. Hodges, 815 S.W.2d 151 (Tenn. 1991), the court set out the limited


                                             5
options available to a defendant who has admitted to the court his guilt in the proceeding:

              Once a criminal defendant has solemnly admitted in open
              court that he is in fact guilty of the offense with which he is
              charged, he may not thereafter raise independent claims
              relating to the deprivation of constitutional rights that occurred
              prior to the entry of the guilty plea. He may only attack the
              voluntary and intelligent character of the guilty plea by showing
              that the advice he received from counsel did not meet
              appropriate standards.

Hodges, 815 S.W.2d at 153.



       In this case, there is nothing more that could have been done by the trial court to

ensure that the petitioner was knowingly, freely, and voluntarily entering pleas of guilty to

the charges against him. The petitioner executed all of the documents required by the

court prior to its acceptance of the guilty pleas and, further, told the court that he was guilty

of all of the charges, including the aggravated assault. The complainant as to that charge

was present at the time of the guilty plea and, in response to an inquiry from the trial court,

made out a colorable claim as to the aggravated assault. The prosecutor did not give the

defense attorney the option of contesting the aggravated assault charge and pleading

guilty to the other charges. In fact, the defense counsel’s assessment of the aggravated

assault case, believing it to be “winnable,” echoes that of the petitioner.



       The petitioner attempts to isolate the aggravated assault charge from the others and

have us consider whether his counsel’s performance was adequate as to that charge.

However, he ignores the fact that the State would not allow that charge to be isolated. The

petitioner had to either plead guilty to all charges or go to trial on them. The State had

other charges which could have been brought against the petitioner but were not, as the

result of the plea bargain agreement. Thus, we agree with the trial court that the actions

of counsel on behalf of the petitioner were within the range of competence required by

Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975).



       For these reasons, we affirm the order of the trial court in dismissing the petition for

post-conviction relief.




                                               6
                                  _____________________________________
                                  ALAN E. GLENN, JUDGE


CONCUR:




____________________________________
JAMES CURWOOD WITT, JR., JUDGE




____________________________________
JOHN EVERETT WILLIAMS, JUDGE




                                  7
