            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE             FILED
                          APRIL 1998 SESSION
                                                       August 27, 1998

                                                   Cecil W. Crowson
WALTER KENDRICK,            *                     Appellate Court Clerk
                                 C.C.A. # 01C01-9703-CR-00107

             Appellant,     *    DAVIDSON COUNTY

VS.                         *    Hon. Walter C. Kurtz, Judge

STATE OF TENNESSEE,         *    (Post-Conviction)

             Appellee.      *




For Appellant:                   For Appellee:

Greg King, Attorney              John Knox Walkup
222 Second Avenue North          Attorney General and Reporter
Suite 360-M
Nashville, TN 37201              Deborah A. Tullis
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 Cordell Hull Building, Second Floor
                                 425 Fifth Avenue North
                                 Nashville, TN 37243

                                 Tom Thurman
                                 Assistant District Attorney General
                                 Washington Square, Suite 500
                                 222 Second Avenue North
                                 Nashville, TN 37201-1649



OPINION FILED:__________________________



AFFIRMED



GARY R. WADE, JUDGE
                                        OPINION

              The petitioner, Walter Kendrick, appeals the trial court's denial of his

petition for post-conviction relief. The issue presented for review is whether his

pleas of guilt were knowingly and voluntarily entered with the effective assistance of

counsel. We find no error and affirm the judgment of the trial court.



              On February 23, 1994, the petitioner entered best interest pleas of

guilt to two counts of felony murder, one count of especially aggravated kidnapping,

and one count of especially aggravated robbery. The trial court imposed

consecutive life sentences for each murder and concurrent forty-year sentences for

the kidnapping and robbery convictions. On direct appeal, the sentences were

affirmed. State v. Walter E. Kendrick, No. 01C01-9408-CR-00297 (Tenn. Crim.

App., at Nashville, Oct. 25, 1995). There was no application for permission to

appeal to the supreme court. This court determined that the defendant qualified for

consecutive sentencing as both a dangerous offender and "an offender whose

record of criminal activity is extensive." Tenn. Code Ann. § 40-35-115(b)(2), (4).



              Initially, the state sought the death penalty. Two attorneys

represented the petitioner. One was retained and the other appointed. In the

petition for post-conviction relief filed December 11, 1995, and amended by

appointed counsel three months later, the petitioner contended, among other things,

that trial counsel was ineffective in that his Alford plea had not been knowingly and

voluntarily entered. The petitioner claimed that his trial counsel had failed to

adequately investigate his competency and had failed to extend to him the

opportunity to pursue a jury trial. The petitioner also contended that the trial court

failed to adequately advise the petitioner of his constitutional rights before the guilty

plea was entered and complained about his trial counsel's advice on a post-


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sentencing motion to withdraw the guilty pleas.



              At the evidentiary hearing, the petitioner testified that his attorneys

failed to conduct any investigation and were hesitant to proceed to trial. He claimed

that they believed he would be executed if he insisted on a trial and gave advice to

"cop-out." The petitioner insisted that he was confused about the pleas of guilt and

was under the impression that he would receive a jury trial after the guilty plea

hearing. He remembered filing a motion to withdraw his guilty plea and claimed he

was advised to present the issue in a post-conviction petition.



              Attorney Doug Love, who was retained to represent the petitioner at

trial, testified that the guilty pleas were in the best interest of the petitioner. He

denied advising the petitioner that he could plead guilty and receive a jury trial later

and recalled "[he] told me many times that he did not want to go in front of a jury

[and t]here is no question in my mind about that at all." He stated that there was no

legal basis for the petitioner's motion to withdraw his pleas of guilt, that the proof

against the petitioner was strong, and that the petitioner did not want to face a trial.



              Attorney Patrick McNally, who was appointed to assist in the

representation of the petitioner at trial, agreed that the state's proof against the

petitioner was strong. He testified that one or more co-defendants had been willing

to testify against the petitioner and that the victim's jewelry and the murder weapon

had been recovered from the petitioner's apartment. It was his opinion that the state

could have proved three aggravating circumstances. McNally testified that the

petitioner was not mentally retarded, had been determined competent to stand trial,

and was both eligible for and likely to receive the death penalty. He recalled talking

at length with the petitioner about entering guilty pleas and remembered that


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Attorney Love unsuccessfully argued the motion to withdraw the guilty pleas.



              The trial court concluded that the petitioner was competent at the time

of his plea and fully understood the entire proceedings. The petitioner had

undergone a psychological examination by experts before his guilty plea and was

deemed competent to stand trial. The trial court ruled that trial counsel had not

been deficient by failing "to press his requested motion to withdraw his guilty plea"

and determined that the motion would not have been granted even if it had been

timely filed and aggressively pursued.



              In this appeal, the petitioner maintains that he was not fully aware of

the direct consequences of his plea. More specifically, he contends that he was not

properly advised by the trial judge of the mandatory minimum and maximum

penalties. The petitioner insists that his trial counsel was deficient for misleading

the petitioner into believing that the case would proceed to a jury trial.



              As the petition in this case was filed after May 10, 1995, the petitioner

has the burden of proving allegations by clear and convincing evidence. Tenn.

Code Ann. § 40-30-210(f). The findings made by the trial court are conclusive on

appeal unless the evidence preponderates against those findings. Butler v. State,

789 S.W.2d 898 (Tenn. 1990).



              In Boykin v. Alabama, 395 U.S. 238 (1969), the Supreme Court

required that the record affirmatively show that each defendant knowingly,

voluntarily and understandingly entered his pleas of guilt. The record must

demonstrate that the defendant understood that he waived his privilege against

compulsory self-incrimination, his right to a trial by jury, and his right to confront his


                                             4
accusers. Id. at 243. Most importantly, 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 (1970); State v. Mackey, 553 S.W.2d 337

(Tenn. 1977).



              In our view, the record establishes that the pleas were knowingly and

voluntarily made. The petitioner has also failed to demonstrate that he was

incompetent to stand trial or that he was unaware or misinformed of his right to a

jury. In short, he has failed to meet his burden of proof.



              In order for the petitioner to be granted relief on grounds of ineffective

counsel, he must establish that the advice given or the services rendered were not

within the range of competence demanded of attorneys in criminal cases and that,

but for his counsel's deficient performance, the result of his trial would have been

different. Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975); Strickland v. Washington,

466 U.S. 668 (1984). This two-part standard, as it applies to guilty pleas, is met

when the petitioner establishes that, but for his counsel's errors, he would not have

pled guilty and would have insisted on a trial. Hill v. Lockhart, 474 U.S. 52 (1985).

The transcript of the guilty plea establishes that the petitioner was adequately

advised of each of his rights. The record does not support the petitioner's

contention that he was tricked into pleading guilty by his attorneys on the promise

that there would eventually be a jury trial.



              Accordingly, the judgment is affirmed.



                                           ________________________________
                                           Gary R. Wade, Judge



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CONCUR:



_____________________________
Thomas T. W oodall, Judge



_____________________________
L.T. Lafferty, Special Judge




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