            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE             FILED
                            OCTOBER 1997 SESSION
                                                         January 27, 1998

                                                        Cecil W. Crowson
STATE OF TENNESSEE                  )                  Appellate Court Clerk
                                    )    NO. 01C01-9610-CC-00427
             Appellee,              )
                                    )    MAURY COUNTY
V.                                  )
                                    )    Hon. James L. Weatherford
JERRY DALE DUFFEY                   )
                                    )    (Post Conviction)
             Appellant.             )
                                    )



For the Appellant                        For the Appellee

William C. Bright                        John Knox Walkup
Assistant Public Defender                Attorney General & Reporter
22nd Judicial District
209 W. Madison Street                    Karen M. Yacuzzo
Pulaski, TN. 38478                       Assistant Attorney General
                                         2nd Floor Cordell Hull Building
                                         425 Fifth Avenue North
                                         Nashville, TN. 37243-0943

                                         T. Michael Bottoms
                                         District Attorney General
                                         P.O. Box 459
                                         Lawrenceburg, TN. 38464

                                         Robert C. Sanders
                                         Assistant District Attorney General
                                         10 Public Square
                                         P.O. Box 1619
                                         Columbia, TN. 38402




OPINION FILED:______________________

AFFIRMED

WILLIAM M. BARKER, JUDGE
                                               OPINION

        The appellant, Jerry Dale Duffey, appeals as of right the Maury County Circuit

Court’s dismissal of his petition for post-conviction relief. On May 10, 1994, appellant

entered a plea of nolo contendere on the charges of theft over five hundred ($500)

dollars and deceptive business practices. The trial court sentenced the appellant to

two (2) years on the theft conviction and to six (6) months on the conviction of

deceptive business practices. The sentences were ordered to run concurrently to

each other and to sentences that the appellant was already serving for convictions in

Marshall County. 1 No direct appeal was taken from the Maury County convictions at

issue in this proceeding. 2

        After a careful review of the record, we find no reversible error and affirm the

judgment of the trial court.

        On November 22, 1995, the appellant filed a pro-se petition for post-conviction

relief alleging that: (1) His trial counsel was ineffective in the investigation and

development of his case; (2) The State prosecuted him on malicious grounds; and (3)

The trial court failed to follow Rule 11 of the Tennessee Rules of Criminal Procedure

in accepting his plea of nolo contendere.3 Through a newly appointed counsel, the

appellant filed an amended petition, containing the above stated grounds.

        Following an evidentiary hearing, the trial court dismissed appellant’s petition

upon finding no evidence of malicious prosecution and finding that the appellant’s

counsel provided the proper assistance as required under Baxter v. Rose, 523 S.W.2d


        1
          In a related case from Marshall County, the appellant was convicted by a jury on twenty-seven
(27) counts of theft of property by fraud and/or deceit. The trial judge, acting as a thirteenth juror,
reduced the number of convictions to twenty four and sentenced the appellant to fourteen (14) years and
one (1) month in the Tennessee Department of Correction. Those convictions were affirmed on direct
appea l to this Cou rt. See State v. Jerry Dale Duffey, No. 01C01-9501-CC-00017 (Tenn. Crim. App. at
Nash ville, July 26, 1995 ).

        2
         The appellant began serving his two (2) year sentence in the Tennessee Department of
Correction on May 10, 1994. By the time of his post-conviction hearing on July 23, 1996, he had
completed that sentence. Currently, he is still serving the fourteen (14) year sentence that he received
from conviction s in Mars hall Coun ty.

        3
       The appellant’s petition was filed under the Post Conviction Procedure Act of 1995. Tenn.
Code Ann. §§ 40 -30-201 -- 310 (Supp. 1996 ).

                                                    2
930, 936 (Tenn. 1975). As to appellant’s plea of nolo contendere, the trial court found

that the appellant was properly informed regarding the nature of the charges, the

penalties involved, and his constitutional rights of trial by jury, assistance of counsel,

and the right to plead not guilty. The trial court further found that there was a sufficient

determination of fact to support the acceptance of appellant’s plea.

       On appeal, the appellant contends that the trial court erred in denying his

petition for post-conviction relief based upon the ineffective assistance of his trial

counsel and his alleged unintelligent, involuntary plea of nolo contendere. Under the

Post Conviction Procedure Act of 1995, the appellant has the burden of proving those

allegations by clear and convincing evidence. See Tenn. Code Ann. § 40-30-210(f)

(Supp. 1996).

       The appellant first contends that he is entitled to post-conviction relief based

upon the ineffective assistance of his trial counsel. He argues that counsel provided

constitutionally deficient assistance by failing to interview the alleged victims or

witnesses and by failing to obtain discovery before advising the appellant to enter a

plea agreement. He further argues that he would not have entered his plea if counsel

had properly investigated the case to find that the State’s evidence was weak.

       This issue is without merit.

       To prevail on a claim of ineffective assistance of counsel, the appellant must

demonstrate by clear and convincing evidence that the advice or services provided by

his counsel fell below the range of competence demanded of attorneys in criminal

cases. See Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Moreover, he must

show “prejudice” by proving that, but for counsel’s incompetence, the result of the trial

proceeding would have been different. See Strickland v. Washington, 466 U.S. 668,

687-88, 692, 694, 104 S.Ct. 2052, 2064, 2067-68 (1984); Best v. State, 708 S.W.2d




                                             3
421, 422 (Tenn. Crim. App. 1985). 4 In cases involving a guilty plea or plea of nolo

contendere, the appellant must show “prejudice” by demonstrating that, but for

counsel’s errors, he would not have pled guilty and would have insisted upon going to

trial. See Hill v. Lockart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985);

Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991).

         The trial court found that the representation provided by appellant’s counsel did

not fall to the level of ineffective assistance. The trial court based its finding upon

evidence that appellant’s counsel provided competent advice and strategy in

explaining to the appellant the nature of the case, his constitutional rights, his option of

entering a plea agreement, and the risks of proceeding at trial.

         In post-conviction proceedings, the trial courts findings of fact “are conclusive

on appeal unless the evidence preponderates against the judgment.” See State v.

Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983). In appellant’s case, we find no

evidence to controvert the findings of the trial court. The record reflects that the

appellant’s counsel acted with reasonable diligence and competency in representing

the appellant before and during the plea hearing.

         At the time appellant was indicted and charged in Maury County, his counsel

was preparing a motion for a new trial in the related case in Marshall County. Counsel

advised the appellant that the facts involved in both cases were virtually identical and

that, in light of his convictions in Marshall County, the appellant risked being convicted

in Maury County if he took the case to trial.5 Counsel explained to the appellant that

by accepting the State’s plea agreement, he would receive an effective two (2) year



         4
         The Strickland standard has been applied to the right to counsel under Article I, Section 9 of the
Tenn essee Cons titution. See State v. Melson, 772 S.W .2d 417, 4 19 n.2 (T enn. 198 9), cert. denied, 493
U.S. 874 (1989).

         5
           The charges of theft and deceptive business practices arose from the appellant’s operation of a
cemetery and tombstone company in Marshall County, Tennessee. The appellant owned and operated
the b usin ess from 1992 until O ctob er 19 93. D uring that tim e, twe nty-se ven c usto me rs in M arsh all
County and two customers in Maury County complained that they never received the services or
tom bsto nes that th ey had purc has ed. T he ap pellan t’s de fens e in the Mar sha ll Cou nty trial w as th at his
com pany sale sme n were s olely respon sible for the theft and d eceptive busines s practice s.

                                                         4
sentence that would run concurrently to his sentence in Marshall County. Thus,

although counsel informed the appellant of his right to plead not guilty and to receive a

trial by jury, he encouraged the appellant to enter a plea of nolo contendere and

eliminate the possibility of receiving additional jail time.

        In reviewing counsel’s conduct, a “fair assessment of attorney performance

requires that every effort be made to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the

conduct from the counsel’s prospective at the time.” See Strickland, 466, U.S. at 689,

104 S.Ct. At 2065; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). We have reviewed

counsel’s conduct under those guidelines and we find no evidence to disturb the trial

court’s finding that appellant’s counsel provided competent representation.

        Having determined that appellant’s counsel provided reasonable and

competent representation, we conclude that a review of any alleged prejudice is

unnecessary.

        The appellant next contends that he is entitled to post-conviction relief based

upon a constitutionally invalid plea of nolo contendere. He argues that the trial court

failed to determine if a factual basis existed for his plea, thereby rendering it

involuntary and unintelligent.

        This issue is without merit.

        A challenge to a guilty plea or plea of nolo contendere is cognizable in a

petition for post-conviction relief where the petitioner asserts that his plea was made

contrary to the constitutional requirements of intelligence and voluntariness. 6 Rule 11

of the Tennessee Rules of Criminal Procedure sets forth strict guidelines for accepting

guilty pleas and pleas of nolo contendere to ensure that those constitutional



        6
          In the landmark cas e of Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23
L.Ed.2d 274 (1969), the United States Supreme Court held that in order for a guilty plea to be
constitutionally valid, the trial court must fully advise the defendant that he is waiving his privilege against
self-incrimination, his right to a trial by jury, and his right to confront his accusers. Under Boyk in, the
defendant must voluntarily enter his plea with the understanding that he is waiving those constitutional
rights. See id.

                                                       5
requirements are upheld.7

          Before a guilty plea or plea of nolo contendere may be accepted, the trial judge

“must address the defendant personally in open court and inform the defendant of,

and determine that he or she understands...” the nature of the charges, the range of

penalties associated with those charges, and the right to plead not guilty and proceed

with a trial by jury. See Tenn. R. Crim. P. 11(c). The trial judge must inform the

defendant that in a trial by jury, he has the right to receive legal counsel, to confront

and cross-examine witnesses, and to be free from compelled self-incrimination. See

id. Additionally, the trial judge must explain to the defendant that by entering a plea of

guilt or nolo contendere, the defendant is waiving his rights associated with a trial by

jury and may be questioned by the court regarding the offense at issue. See id.

          Rule 11 also requires the trial judge to determine if the defendant’s plea is

voluntary and accurate. To ensure that the plea is voluntary, the trial judge must

question the defendant in open court to find whether the plea is the result of any

threat, coercion, or promise apart from a plea agreement. See Tenn. R. Crim. P.

11(d). To ensure accuracy, the trial judge must review the facts of the case and

determine if there is a factual basis for the defendant’s plea. See Tenn. R. Crim. P.

11(f).8

          The appellant contends that his plea of nolo contendere is constitutionally

invalid because the trial court failed to determine if a factual basis existed for the plea.

He argues that the trial court’s alleged omission caused him to enter an involuntary

and unintelligent plea.

          We agree that under Rule 11, the trial judge was required to determine if a



          7
          Rule 11 essentially adopts the requirements established by our supreme court in State v.
Mackey, 553 S.W .2d 3 37, 3 41 (T enn . 197 7). Alth oug h tho se re quire me nts a re no t nec ess arily
constitutional in nature, they serve to ensure that a plea of guilt or nolo contendere is con stitutio nally
sound as being entered into voluntar ily, intelligently, and unde rstanding ly. See State v. Miller, 634
S.W .2d 615, 6 17-18 (T enn. Cr im. Ap p. 1981) .

          8
        See also State v. Turner, 919 S.W .2d 346, 3 52 (Te nn. Crim . App. 199 5); Cham berlain v. Sta te,
815 S.W .2d 534, 5 39 (Te nn. Crim . App. 199 0).

                                                       6
factual basis existed for appellant’s plea of nolo contendere. However, we find that

the trial judge made a sufficient inquiry of the underlying facts before accepting the

appellant’s plea. During the plea hearing, the trial judge questioned the appellant

about the charges and issues involved in the Marshall County case. Appellant’s

counsel responded that both the Marshall County case and the Maury County case

arose from appellant’s operation of a cemetery and monument company in Marshall

County. Counsel further explained that the present case involved the same “type”

business transaction, except that the victims lived in Maury County. From those facts,

the trial judge concluded that there was a sufficient basis for the appellant’s plea of

nolo contendere.

       Furthermore, the trial judge exercised great care to address the appellant in

open court and to explain the nature of the case, the possible penalties, and the

appellant’s constitutional rights. The trial judge informed the appellant that he had the

right to plead not guilty and to proceed with a trial by jury. Appellant was fully informed

that in a trial by jury he would have the right to legal counsel, the right to cross

examine any witness, and the right to be free of compelled self-incrimination. Under

oath, the appellant responded that he understood the proceedings, including his

constitutional rights, the nature of the charges, and the penalties available in his case.

       Next, the trial judge informed the appellant that by entering a plea of nolo

contendere, he was thereby waiving his right to a jury trial and would be subject to a

conviction and sentence by the court. The trial judge further explained that his plea

would allow the court and the State to question him regarding the charged offenses.

Appellant responded under oath that he understood the consequences of waiver and

that he nevertheless wished to enter his plea. Appellant assured the trial court that he

was fully capable of understanding the proceedings and that his plea was not the

product of any threats or coercion.

       Based upon the open court discussion, the trial court concluded that the



                                             7
appellant’s plea was voluntary and intelligent. We find no evidence to disturb that

finding and therefore conclude that the appellant’s petition for post-conviction relief

was properly dismissed.

       Accordingly, the judgment of the trial court is affirmed.




                                                 ____________________________
                                                 WILLIAM M. BARKER, JUDGE



CONCUR:


__________________________
JOE B. JONES, Presiding Judge


__________________________
JOE G. RILEY, JUDGE




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