        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs September 28, 2010

                  ALVIN T. MCGEE v. STATE OF TENNESSEE

              Direct Appeal from the Circuit Court for Marshall County
                     No. 2009-CR-16     Robert G. Crigler, Judge


               No. M2009-01850-CCA-R3-PC - Filed February 14, 2011


The Petitioner, Alvin T. McGee, filed for post-conviction relief from his convictions for
attempted burglary and vandalism between $500 and $1000, alleging that his guilty pleas
were not knowingly and voluntarily entered. The post-conviction court denied the petition,
and the Petitioner now appeals. Upon review, we affirm the judgment of the post-conviction
court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which JAMES C URWOOD
W ITT, J R., and C AMILLE R. M CM ULLEN, JJ., joined.

Christopher P. Westmoreland, Shelbyville, Tennessee, for the appellant, Alvin T. McGee.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Charles Frank Crawford, Jr., District Attorney General; and Weakley E. Barnard,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                  I. Factual Background

       On June 18, 2008, the Petitioner pled guilty to attempted burglary and vandalism
between $500 and $1000. The plea agreement provided that the Petitioner would be
sentenced as a persistent Range III offender to five years for each offense, forty-five percent
of which was to be served in confinement before the Petitioner became eligible for release.
The five-year sentences were to run concurrently with each other but consecutively to the
conviction for which the Petitioner was on parole at the time of the instant offenses. At the
plea hearing, the State recounted the factual basis for the pleas, maintaining that on March
25, 2008, the Petitioner and his co-defendant, Brandon Sanders, attempted to gain entry into
the pharmacy of the Marshall Medical Center. The “pharmacy door had been pried open and
. . . ceiling tiles had been removed outside the pharmacy . . . in an effort to try to gain entry
over the wall through the ceiling.” The Petitioner told police that Sanders was the “look-out”
and that they left when a hospital employee came by.

       Subsequently, the Petitioner filed a pro se petition for post-conviction relief, alleging
that his trial counsel was ineffective and that his guilty pleas were not knowingly and
voluntarily entered. As his chief complaint, the Petitioner maintained that he did not
understand the guilty plea proceedings because he was under the influence of prescription
medication at the time. The post-conviction court appointed counsel to assist the Petitioner,
but no amended petition was filed.

       At the post-conviction hearing, the only witness to testify was the Petitioner’s trial
counsel. Counsel, who had twenty years of experience in criminal defense work, stated that
he met with the Petitioner several times, spoke with witnesses, and examined the discovery
obtained from the State.

       Counsel recalled that he reviewed the State’s plea offer with the Petitioner. He said
the Petitioner did not want to go to trial. The Petitioner was especially concerned about the
statements the Petitioner and Sanders gave regarding the circumstances of the offenses.
Counsel stated that he talked with the Petitioner about the Petitioner’s addiction to
prescription medication and about how the Petitioner committed the instant offenses to
support that addiction. However, counsel did not believe the Petitioner took any prescription
medication prior to entering the guilty pleas.

        Counsel acknowledged that at the guilty plea hearing, the Petitioner told the trial court
that he had not taken any medication prior to the pleas. Counsel did not correct the
Petitioner’s answer even though he believed the Petitioner had taken an over-the-counter
antacid the night before the guilty pleas. Counsel said that an antacid would not have
affected the Petitioner’s comprehension of the guilty pleas. Additionally, counsel believed
that the Petitioner fully understood the guilty plea proceedings. Specifically, counsel stated
that the Petitioner “was obviously competent and he wasn’t under the influence of any type
of medication that I could see.”

       The Petitioner did not testify at the post-conviction hearing. However, he submitted
his medical history from the Tennessee Department of Correction, which indicated the
Petitioner had been prescribed busipone hydrochloride at the time of the guilty pleas.

       The post-conviction court entered an order denying the petition.              The court

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specifically accredited counsel’s testimony regarding the Petitioner’s understanding of the
guilty plea proceeding. The court noted that at the plea hearing, the Petitioner denied having
taken medication. Additionally, the court noted that at the plea hearing the Petitioner stated
he had no complaints about trial counsel’s representation and that he was knowingly and
voluntarily pleading guilty. On appeal, the Petitioner challenges the post-conviction court’s
ruling regarding the voluntariness of his pleas.1

                                              II. Analysis

       To be successful in his claim for post-conviction relief, the petitioner must prove all
factual allegations contained in his post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f) (2006). “‘Clear and convincing evidence
means evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.
App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).
Issues regarding the credibility of witnesses, the weight and value to be accorded their
testimony, and the factual questions raised by the evidence adduced at trial are to be resolved
by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997). Therefore, the post-conviction court’s findings of fact are entitled to
substantial deference on appeal unless the evidence preponderates against those findings.
See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

        When a defendant enters a plea of guilty, certain constitutional rights are waived,
including the privilege against self-incrimination, the right to confront witnesses, and the
right to a trial by jury. Boykin v. Alabama, 395 U.S. 238, 243 (1969). Therefore, in order
to comply with constitutional requirements a guilty plea must be a “voluntary and intelligent
choice among the alternative courses of action open to the defendant.” North Carolina v.
Alford, 400 U.S. 25, 31 (1970).

       In order to ensure that a defendant understands the constitutional rights being
relinquished, the trial court must address the defendant personally in open court, inform the
defendant of the consequences of the guilty plea, and determine whether the defendant
understands those consequences. See State v. Mackey, 553 S.W.2d 337, 341 (Tenn. 1977);
Tenn. R. Crim. P. 11(c). In determining whether the petitioner’s guilty pleas were knowing
and voluntary, this court looks to the following factors:

                 the relative intelligence of the [petitioner]; the degree of his


       1
           On appeal, the Petitioner apparently abandons his complaint regarding the effectiveness of trial
counsel.

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              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).

        The Petitioner complains “that the administration of Busipirone Hydrochloride, the
medication he was under the influence of according to the medical records, interfered with
his ability to understand his actions.” However, there is no proof in the record to support this
contention. The Petitioner correctly states that he had a valid prescription for busipirone
hydrochloride at the time his guilty pleas were entered. However, the records do not reflect
whether the Petitioner took the prescribed dosage before entering the pleas. Moreover, the
Petitioner did not testify regarding what effect, if any, the medication had on his ability to
understand the proceedings. Instead, trial counsel’s uncontradicted testimony, which was
specifically accredited by the post-conviction court, reflected that the Petitioner fully
understood the nature and effect of his guilty pleas and that he had coherent conversations
with counsel at the guilty plea hearing. Additionally, the post-conviction court found that
counsel effectively represented the Petitioner. Therefore, the Petitioner failed to meet his
burden of establishing that his guilty pleas were not knowingly or voluntarily entered.

                                       III. Conclusion

       We conclude that the record supports the post-conviction court’s finding that the
Petitioner knowingly and voluntarily entered his guilty pleas. Therefore, we affirm the
judgment of the post-conviction court.

                                                    _________________________________
                                                    NORMA McGEE OGLE, JUDGE




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