         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs February 4, 2003

            RONGIE LELAND TAYLOR v. STATE OF TENNESSEE

                   Direct Appeal from the Circuit Court for Warren County
                     No. F-8152C    James L. Weatherford, Senior Judge



                    No. M2002-01780-CCA-R3-PC - Filed October 8, 2003


The post-conviction court denied the appellant’s petition for post-conviction relief following his
guilty plea to robbery with an agreed five-year sentence. In this appeal, the appellant argues: (1) his
guilty plea was not entered voluntarily and knowingly; and (2) his trial counsel failed to provide him
effective assistance relating to the entry of his plea. We affirm the judgment of the post-conviction
court.

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

JERRY L. SMITH, J., delivered the opinion of the court, in which DAVID H. WELLES and NORMA
MCGEE OGLE , JJ., joined.

Lisa Zavogiannis, McMinnville, Tennessee, for the appellant, Rongie Leland Taylor.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
Dale Potter, District Attorney General; and Thomas J. Miner, Assistant District Attorney General,
for the appellee, State of Tennessee.
                                            OPINION

         Pursuant to a plea agreement, the appellant pled guilty to simple robbery, a reduction from
the indicted charge of aggravated robbery, and received a five-year sentence as a Range I standard
offender. At the post-conviction hearing, he alleged his guilty plea was not entered voluntarily and
knowingly; neither the trial court nor his attorney advised him of his constitutional rights prior to
the plea; and his trial attorney was ineffective by failing to adequately investigate his case and
failing to explain the plea agreement to him. The post-conviction court denied his petition for post-
conviction relief, and this appeal followed.

                         PROOF AT POST-CONVICTION HEARING

        It was undisputed that the appellant was in a van with co-defendants Freddie Myer and
William Ramsey when they drove to a home in rural Warren County, where the appellant remained
in the van while the other men entered the home and committed a robbery. All three men were
charged with aggravated robbery and theft over $1,000. On September 26, 2000, the appellant pled
guilty to the reduced charge of robbery in exchange for a five-year sentence. At the post-conviction
hearing, the parties stipulated the tape recording of the appellant’s guilty plea was unavailable;
therefore, no transcript of the plea submission hearing was presented.

         The appellant testified he attended college for two years, but that his experience with the
judicial system was limited to two prior misdemeanor convictions. He stated his trial attorney
advised him he had the right to a trial or to plead guilty, but did not explain his constitutional rights
in detail. He said the trial judge who took his plea asked him if he understood his right to a jury
trial, but he did not recall the judge advising him of his right to an appeal or his right to call
witnesses. Regardless, he said he understood he had the right to call witnesses on his behalf and the
right not to testify if he so chose.

        The appellant indicated he received the state’s plea offer of a five-year sentence five days
before he entered his plea. The appellant said he told his attorney several times that he did not want
to accept the plea offer. According to the appellant, his trial counsel did not review the plea agreement
with him.

        The appellant stated that the first page of his plea document was “full of constitutional
amendments or rights,” but said he did not understand them. He conceded he noticed an error
regarding the length of his sentence as he was reviewing the document, and that the prosecutor
corrected the error when the appellant brought it to his attention. Further, he stated that when the
trial court asked him if he had problems with trial counsel, he responded he did not feel he had
enough time to prepare for trial. The appellant testified he entered his guilty plea because he felt
his case was “inadequately prepared” for trial and trial counsel had not sufficiently investigated his
case. The appellant said he reviewed his videotaped statement to law enforcement with trial counsel
in May. According to the appellant, the statement was coerced and given involuntarily because he
was intoxicated at the time of the statement. He told law enforcement that he was at the scene of
the crime, but did not participate in the offense. Although he said he was not aware his attorney had
filed a motion to suppress the statement, the record indicates a motion to suppress the statement was
filed a week before the appellant’s guilty plea.

         The appellant testified he did not see his attorney for months, and then, about a week before
trial, they had frequent contact over a period of four days during which trial counsel was “popping
in and out” and asking the appellant if he wanted to accept the state’s plea offer. According to the
appellant, it was four days before his guilty plea when trial counsel met with him and his co-
defendant Freddie Myers, who had just entered a guilty plea. During that meeting, Myers told the
appellant’s attorney the appellant “had no knowledge of the crime.” The appellant testified he did
not see any information about the co-defendant’s statements or other potential testimony until “a day
or two before” the plea hearing. He stated it was the day prior to his guilty plea when he learned of
the potential testimony of a witness who saw him driving the van on the day of the offense. He
testified his attorney should have interviewed co-defendant William Ramsey because Ramsey was
the driver of the van.

       The testimony of the appellant’s trial counsel was in many respects at odds with the
appellant’s testimony. Trial counsel testified it was his practice to advise clients of their rights and

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he followed this practice in the appellant’s case. He also testified that while he could not recall the
trial judge’s specific admonitions to the appellant at the time of his guilty plea, it was the trial
judge’s policy to read each defendant his rights and ask the defendant to respond as to whether or
not he understood his rights. Trial counsel stated the appellant entered his plea after the trial court
advised him of his constitutional rights. Trial counsel also said the plea document listed the
appellant’s constitutional rights, and that he did not think the appellant “had a problem knowing
what his constitutional rights were.”

         Trial counsel indicated the appellant had a difficult time deciding whether to plead guilty or
go to trial. He said the appellant repeatedly questioned him about the state’s evidence, and they had
numerous discussions regarding the facts of his case and whether he should enter a plea or go to
trial. He advised the appellant that if he did not accept the state’s plea offer, it could be withdrawn.

         Trial counsel testified he discussed the plea with the appellant on at least two or three
occasions. He stated he repeatedly advised the appellant that if he did not accept the offer, he could
go to trial. Trial counsel said any reservations the appellant had about his plea were resolved before
the plea was entered.

        Trial counsel testified he investigated the appellant’s case. Trial counsel’s time records
indicate he met with the appellant on numerous occasions and spent over seventeen hours on the
case in addition to court time. He stated he reviewed discovery, which included statements given
by the co-defendants. He also said he reviewed the appellant’s videotaped confession with the
appellant, and they had numerous conversations regarding his confession. According to trial counsel,
the appellant admitted he drove the van to the house, that he was aware his co-defendants were
planning a robbery, and that they were going to another town to commit a burglary when they were
arrested.

        While trial counsel did not recall speaking with all the witnesses on the state’s witness list,
he assumed that he did. He specifically recalled interviewing at least one officer and a witness who
said he saw the appellant driving the van shortly before the crime was committed. He knew the
victim testified at the preliminary hearing that she did not see the appellant. He stated that if the
case went to trial, there would probably have been a stipulation that the appellant remained in the
van.

        He testified he and the appellant discussed the potential testimony of the co-defendants. He
stated he met with the appellant and co-defendant Freddie Myers at the jail three days before the
appellant’s plea. He said Myers stated he would testify that the appellant was not involved with
planning the robbery, but that the appellant drove the van to the house and had some idea that a
robbery was going to be committed. Trial counsel indicated the charges against co-defendant
William Ramsey may still have been pending at the time the appellant pled guilty; and, if Ramsey’s
charges were pending at the time of trial, he could not have compelled Ramsey to testify.

       Freddie Myers testified at the post-conviction hearing that he spoke with the appellant’s trial
counsel three days before the appellant entered his plea. Myers said he told the attorney he would


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testify the appellant was not involved in the offense and was not aware of what he and Ramsey
intended to do.

        William Ramsey testified at the hearing that he tried to tell prosecutors the appellant was
asleep in the van at the time of the robbery, and that he tried to have a third party contact the
appellant’s trial counsel. Ramsey acknowledged charges were pending against him, and he was
represented by counsel at the time the appellant’s case was being prepared for trial. Ramsey stated
he would have been willing to testify for the appellant even if it meant testifying about his own
involvement in the offense.

       The post-conviction court denied the appellant’s petition for post-conviction relief after
finding trial counsel afforded the appellant with effective representation and the state proved the
appellant entered his plea voluntarily and knowingly.

                     POST-CONVICTION - STANDARDS FOR REVIEW

        The post-conviction judge’s findings of fact on post-conviction hearings are conclusive on
appeal unless the evidence preponderates otherwise. State v. Burns, 6 S.W.3d 453, 461 (Tenn.
1999). Those findings of fact are afforded the weight of a jury verdict, and this court is bound by
the findings unless the evidence in the record preponderates against those findings. Henley v. State,
960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997).
This court may not reweigh or reevaluate the evidence, nor substitute its inferences for those drawn
by the post-conviction court. State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn. 2001). However, the
post-conviction court’s conclusions of law are reviewed under a purely de novo standard with no
presumption of correctness. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

                      I. VOLUNTARY AND KNOWING GUILTY PLEA

        The appellant contends the post-conviction court erred in finding his guilty plea was entered
voluntarily and knowingly because neither the trial court nor his trial attorney advised him of his
constitutional rights before he entered his plea. We do not agree.

         The United States Supreme Court in Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709,
1713, 23 L. Ed. 2d 274, 279 (1969), held that defendants must waive certain rights in order for their
decision to plead guilty to be considered knowing and voluntary. These rights include the right to
a jury trial, the right to confront witnesses, and the right against self-incrimination. Id. These rights
cannot be validly waived without an intentional relinquishment, which cannot be presumed from
a silent record. Id. To ensure guilty pleas are entered “knowingly and intelligently,” Boykin
instructs the trial court to discuss with the accused the consequences of the decision. 395 U.S. at
244, 89 S. Ct. at 1712.

        When there is no adequate transcript to establish that a guilty plea complies with Boykin,
the burden is on the state to prove the plea was entered voluntarily, understandingly, and knowingly.
Chamberlain v. State, 815 S.W.2d 534, 540-41 (Tenn. Crim. App. 1990). While the State is not
entitled to a presumption to satisfy this burden, it may present extrinsic evidence such as the

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testimony of trial counsel. Id. at 541. The state must establish that the appellant was made aware
of his constitutional rights or that the appellant was independently aware of those rights. Johnson
v. State, 834 S.W.2d 922, 925 (Tenn. 1992).

        In the instant case, the appellant’s trial counsel testified he followed his usual practice in
advising the appellant of his constitutional rights. The attorney also indicated the trial court complied
with its standard procedure by questioning the appellant regarding his understanding of his
constitutional rights. The appellant further testified that he was aware of his right to a jury trial,
right to present witnesses on his behalf, and right not to testify. The appellant’s educational
background included two years of college. According to trial counsel, the appellant understood his
constitutional rights. Further, the record reflects that the document entitled “Plea of Guilty and
Waivers of Jury Trial and of Appeal,” which the appellant signed, specifically stated,

        I am pleading guilty to the offense or offenses to which I am charged. I understand
        that I could continue with a not guilty plea to any offense charged and that I have a
        right to a speedy and public trial by jury. I understand I have the right to be
        represented by an attorney in all stages of the proceedings against me and if I cannot
        afford an attorney, an appointed attorney would represent me without any cost to me.
        I understand that if I went to trial I or my attorney would have the right to question
        and cross-examine any witnesses that testified against me, that I could subpoena
        witnesses to testify for me and that I could not be forced to testify at trial and
        incriminate myself. I also understand that I have the right to have a jury impose any
        fine in excess of $50.00. I understand that by pleading guilty I give up or waive my
        right to a jury trial and all the above rights. I also understand that I am giving up my
        right to an appeal on all matters except those to be decided by the Court.



       The appellant’s testimony at the post-conviction hearing revealed he observed this language
when he reviewed the document before signing it, and that his review of the document was sufficient
to allow him to spot an error on the second page and question other provisions of the plea
agreement. Further, it can be reasonably inferred from his testimony that he had no questions about
the constitutional rights set forth in the document.

        The appellant maintains the trial court erred in considering the fact that the appellant attended
two years of college in determining the appellant’s plea was made voluntarily and knowingly.
However, we conclude relative intelligence and educational background are proper factors to
consider in determining whether a plea was knowingly and voluntarily entered. See Blankenship
v. State, 858 S.W.2d 897, 904 (Tenn. 1993).

         This issue is very much dependent upon the respective credibility of the appellant versus that
of his trial counsel. The post-conviction court found the state met its burden of proof in showing
the appellant knowingly and voluntarily entered the guilty plea, thus implicitly accrediting the
testimony of trial counsel. We conclude the post-conviction court did not err in making this
determination.

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                       II. INEFFECTIVE ASSISTANCE OF COUNSEL

       The appellant also argues the trial court erred in finding trial counsel afforded him effective
representation in entering his guilty plea. More specifically, he contends trial counsel did not
adequately investigate his case or prepare for trial, thus forcing him to enter the plea. This issue also
lacks merit.

         When a claim of ineffective assistance of counsel is made under the Sixth Amendment, the
petitioner bears the burden of proving (1) that counsel’s performance was deficient, and (2) the
deficiency was prejudicial in terms of rendering a reasonable probability that the result of the trial
was unreliable or the proceedings were fundamentally unfair. Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). This standard has also been applied to
the right to counsel under Article I, Section 9 of the Tennessee Constitution. State v. Melson, 772
S .W.2d 417, 419 n.2 (Tenn. 1989). When a petitioner claims ineffective assistance of counsel in
relation to a guilty plea, the petitioner must prove that counsel performed deficiently, and, but for
counsel’s errors, petitioner would not have pled guilty but would have, instead, insisted upon going
to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985).


        The petitioner bears the burden of proving by clear and convincing evidence the factual
allegations that would entitle petitioner to relief. Tenn. Code Ann. § 40-30-210(f). This court is
bound by the post-conviction court’s findings of fact unless the evidence preponderates against those
findings. Fields, 40 S.W.3d at 456 -57.

        Trial counsel testified he reviewed discovery, was familiar with the statements of the co-
defendants, and reviewed the appellant’s videotaped confession with the appellant. He stated he
interviewed the state’s witnesses and reviewed the state’s proof from the preliminary hearing. He
and the appellant also interviewed co-defendant Freddie Myers concerning his potential testimony.
Further, trial counsel stated he and the appellant repeatedly discussed the proof and whether the
appellant should accept the state’s plea offer. The appellant’s testimony indicated his trial counsel
reviewed his videotaped confession with him, met with him and Myers to discuss Myers’ potential
testimony, and informed him of the potential testimony of a witness who saw the appellant driving
the van just prior to the crime.

         Moreover, the appellant presented no proof at the post-conviction hearing to show trial
counsel failed to discover exculpatory evidence, or that the appellant was unaware of exculpatory
evidence when he pled guilty. Although he complains trial counsel failed to interview William
Ramsey, Ramsey’s testimony at the hearing established Ramsey was represented by counsel at the
time trial counsel was preparing for the appellant’s trial and Ramsey could not have been compelled
to testify for the appellant. Therefore, not only does the record support the post-conviction court’s
conclusion that trial counsel afforded the appellant with effective representation, but the appellant
failed to establish that counsel’s alleged deficient performance impacted his decision to plead guilty.
The trial court did not err in determining that the appellant failed to meet his burden of proving
ineffective assistance of counsel.

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                                        CONCLUSION


       The post-conviction court did not err in finding the appellant entered his guilty plea
knowingly and voluntarily, and in concluding trial counsel’s performance fell within the range of
competence demanded of attorneys in criminal cases. We affirm the judgment of the post-
conviction court.


                                                    _____________________________________
                                                    JERRY L. SMITH, JUDGE




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