         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs May 18, 2004

                  VENESSA BASTON v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Morgan County
                            No. 8773-B    E. Eugene Eblen, Judge



                                  No. E2003-02471-CCA-R3-PC
                                          June 9, 2004

The petitioner appeals the denial of her post-conviction relief petition relating to her guilty plea to
felony murder for which she received a life sentence. On appeal, the petitioner contends: (1) she
received ineffective assistance of counsel; and (2) her guilty plea was unknowingly and involuntarily
entered. We affirm the judgment of the post-conviction court.

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

JOE G. RILEY , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and ALAN E.
GLENN , J., joined.

Jeffery H. Wicks, Kingston, Tennessee, for the appellant, Venessa Baston.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
J. Scott McCluen, District Attorney General; and Frank A. Harvey, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

         The petitioner pled guilty to felony murder and received a life sentence as a result of her
participation in the robbery and homicide of the victim, Charles Farley McCann, on November 19,
2000. See Tenn. Code Ann. § 39-13-202(a)(2). According to the state’s recitation of the facts at the
plea hearing, co-defendant Jamie Miller told the petitioner and co-defendants Glenn Holt and Gerald
Dixon that she was angry with the victim because she had been charged with theft of his property.
Although the recitation at the guilty plea hearing does not identify the relationship of the parties
involved, the testimony at the post-conviction hearing combined with the state’s recitation of the facts
at the sentencing hearing indicate Dixon was the petitioner’s boyfriend, Holt was the petitioner’s son,
and Miller was Holt’s girlfriend. Miller informed them that the victim kept “quantities of money
hidden in his home.” The petitioner and the co-defendants planned to rob the victim, and Miller
expressed her desire to kill the victim.
       The petitioner and the co-defendants traveled to the victim’s residence in the petitioner’s
vehicle. Upon arriving, the petitioner and Holt entered the residence while Miller and Dixon
remained inside the vehicle. While inside the residence, the victim was subjected to a physical attack
which resulted in his death, and various items belonging to the victim were taken from the residence.
Upon leaving the residence, the petitioner and the co-defendants divided the proceeds from the
robbery and destroyed evidence.

                          I. POST-CONVICTION RELIEF HEARING

         At the post-conviction relief hearing, the forty-three-year-old petitioner testified defense
counsel was appointed to represent her after her arrest, and defense counsel first met with her in
order to inform her of the appointment. The petitioner stated defense counsel next met with her for
five to ten minutes one to two weeks prior to the scheduled trial date. The petitioner further stated
defense counsel did not explain the charges or any possible defenses, and defense counsel did not
review the co-defendants’ statements or any other discovery materials with her.

        The petitioner testified regarding a statement which she gave to the police prior to her arrest.
She recalled that police officers came to her residence and asked her to give a statement. Upon
arriving at the police station, the petitioner decided not to give a statement and the officers told her
that she could leave. The petitioner stated the officers then attempted to prevent her from leaving
and had her vehicle towed. The petitioner further stated that upon returning to her residence, an
officer refused to allow her to enter the residence. The petitioner then returned to the police station
and gave a statement.

        The petitioner testified that when she gave the statement to the police, she was under the
influence of morphine, M.S. Contin, and “nerve medicine.” The petitioner stated she was not “out
of it” due to the medication, but she was nervous and frightened when she gave the statement. The
petitioner further stated she did not lie to the police and that she did not read her statement. The
petitioner explained she did not relay this information to defense counsel because she was unable
to reach him.

        The petitioner testified defense counsel first approached her with a plea offer on February
20, 2002, the day she entered the plea. The petitioner stated she and defense counsel never discussed
a plea prior to that date. Defense counsel and his secretary read the plea agreement to the petitioner.
The petitioner stated defense counsel informed her that she would receive a sentence of twenty-five
years at 30% with credit at “three for one.” The petitioner testified she entered the plea because she
had been taken off of her medication a few weeks prior to the plea hearing and was frightened. She
stated she did not understand the charges to which she pled. The petitioner further stated defense
counsel instructed her to answer “yes” to the trial court’s questions at the plea hearing.

       Defense counsel testified he met with the petitioner on three or four occasions at the county jail.
They discussed the case in detail during each meeting, including the felony murder and aggravated
robbery offenses charged in the indictment, and possible defenses. Defense counsel further stated he


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conducted discovery and reviewed these materials with the petitioner along with the co-defendants’
statements to the police.

         Defense counsel recalled that the petitioner and her son, co-defendant Glenn Holt, each gave
a statement to the police maintaining that the other had killed the victim. Each co-defendant
admitted to the aggravated robbery but denied the homicide. Defense counsel stated he and the
petitioner discussed her statement. Defense counsel learned the petitioner was not in custody when
she gave the statement and she signed both the statement and a waiver of rights form. Defense
counsel also found no evidence of coercion and stated he was unaware of any grounds upon which
to file a motion to suppress the petitioner’s statement.

         Defense counsel testified he received a plea offer from the state after his second or third
meeting with the petitioner. According to the offer, if the petitioner pled guilty to felony murder as
alleged in the indictment, the state agreed to refrain from seeking a sentence of life without parole
and agreed to drop pending aggravated arson cases and other charges collateral to the instant case.
Defense counsel stated the prosecution refused to agree to a plea to a lesser offense because they felt
they had a strong case. At the petitioner’s request, the state agreed to refrain from entering into a
more favorable agreement with the petitioner’s son. The petitioner’s son was subsequently convicted
at trial of felony murder and received a life sentence.

        Defense counsel explained to the petitioner the fact that her son was the person who actually
killed the victim was not a defense to felony murder due to her involvement. Defense counsel
informed the petitioner that a life sentence is sixty years at 85%, which is approximately fifty-one
years, but he could not guarantee she would serve only fifty-one years. After defense counsel
explained the terms of the plea agreement to the petitioner, she agreed to enter the plea. Defense
counsel testified the petitioner was able to communicate with him and seemed “oriented.” He did
not recall the petitioner complaining about her medication.

        Defense counsel stated that had the petitioner gone to trial on the felony murder charge, the
state planned to seek a sentence of life without parole. He further stated that had the petitioner been
convicted of the aggravated arson charges, the trial court would have likely “stacked” the sentences
and ordered her to serve the sentences at 100%. According to defense counsel, co-defendant Dixon
was convicted of a lesser charge and received a five-year sentence. Defense counsel further stated
that co-defendant Miller was convicted of a lesser charge and received a three-year sentence.

       In denying relief, the post-conviction court found the petitioner received effective assistance
of counsel; she was not under the influence of drugs when she entered the plea; and she knowingly
and voluntarily entered the plea.

                                  II. STANDARD OF 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.


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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. Jaco v. State,
120 S.W.3d 828, 830 (Tenn. 2003). 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).

                       III. INEFFECTIVE ASSISTANCE OF COUNSEL

        The petitioner contends she received ineffective assistance of counsel with regard to her
guilty plea. Specifically, the petitioner maintains defense counsel failed to review the co-defendants’
statements and other discovery material with her, failed to explain any possible defenses, and failed
to adequately inform her of the terms of the plea agreement. The petitioner also contends defense
counsel was deficient in allowing her to plead guilty to an offense requiring her to serve at least fifty-
one years. We disagree with her assertions.

         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).

       In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court required that the
services be rendered within the range of competence demanded of attorneys in criminal cases. 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 counsel’s perspective at the time.” Strickland,
466 U.S. at 689, 104 S. Ct. at 2065; see Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002).

        The petitioner bears the burden of proving by clear and convincing evidence the factual
allegations that would entitle the petitioner to relief. Tenn. Code Ann. § 40-30-110(f) (2003). 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.

        In denying relief, the post-conviction court implicitly accredited defense counsel’s testimony
that he reviewed with the petitioner the co-defendants’ statements and other discovery materials,
discussed possible defenses, and informed the petitioner her assertion that her son was the actual


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triggerman was not a defense to the charge. The petitioner maintained defense counsel informed her
that pursuant to the plea agreement, she would receive a twenty-five-year sentence at 30% and three
for one credits in prison. However, the post-conviction court implicitly accredited defense counsel’s
testimony that he explained the terms of the plea agreement to the petitioner and informed her she
would receive a life sentence of sixty years at 85%. The evidence does not preponderate against the
post-conviction court’s findings.

        The petitioner further maintains defense counsel was ineffective in allowing her to enter into
a plea agreement to felony murder with a life sentence, which, in essence, meant she would be
ninety-two years old before being eligible for release. Pursuant to the plea agreement, the state
dismissed pending aggravated arson cases and other charges relating to this case. At the petitioner’s
request, the state also agreed to refrain from negotiating a more favorable plea agreement with her
son. Defense counsel testified he explained the terms of the plea agreement and the sentence to the
petitioner, who then agreed to enter the plea. We recognize that even with the dismissal of the other
charges pursuant to the plea agreement, the petitioner will in all likelihood spend the remainder of
her life in confinement. However, we are unable to conclude this fact alone renders defense
counsel’s performance deficient. This issue is without merit.

                 IV. UNKNOWING AND INVOLUNTARY GUILTY PLEA

       Due process demands that a guilty plea be entered voluntarily, knowingly, and understandingly.
Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). The plea is
involuntary if the accused is incompetent or “only if it is the product of ‘ignorance, incomprehension,
coercion, terror, inducements, [or] subtle or blatant threats.’” Blankenship v. State, 858 S.W.2d 897,
904 (Tenn. 1993) (quoting Boykin, 395 U.S. at 242-43).

        In determining whether a guilty plea comports with due process, the court must assess
whether it “represents a voluntary and intelligent choice among the alternative courses of action open
to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
The court must consider all of the relevant circumstances that existed when the plea was entered,
including the defendant’s intelligence, familiarity with criminal proceedings, representation by
competent counsel with whom the defendant had the opportunity to confer, the advice of counsel and
the court concerning the charges, and the reasons for entering the guilty plea. Blankenship, 858
S.W.2d at 904; State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995).

         A defendant’s testimony at a plea hearing that his or her plea is voluntary is a “formidable
barrier in any subsequent collateral proceedings” because “[s]olemn declarations in open court carry
a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S. Ct. 1621, 52 L.
Ed. 2d 136 (1977).

        The petitioner, who was forty-one years old when she entered the plea, submits she would
not have pled guilty had she known she would be ninety-two years old before she would be eligible
for release from prison. However, in denying relief, the post-conviction court implicitly accredited


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defense counsel’s testimony that he explained the terms of the plea agreement to the petitioner and
informed her that she would receive a life sentence of sixty years at 85%. Furthermore, our review
of the guilty plea hearing reflects the trial court expressly advised the petitioner her sentence would
be calculated at “60 years less 15% . . . about 51 years.” According to defense counsel’s testimony,
the petitioner was also involved in negotiating the terms of the plea agreement. Defense counsel
stated the petitioner requested the prosecution refrain from negotiating a more favorable agreement
with her son, and the prosecution agreed to that request. Thus, the evidence does not preponderate
against the findings of the post-conviction court.

       Our review of the plea hearing further reveals the petitioner knowingly and voluntarily
entered the plea. At the plea hearing, the trial court explained the indicted charges, recounted the
possible sentence for each charge, and informed the petitioner of the charge to which she was
pleading. The petitioner informed the trial court she and defense counsel discussed the case and she
understood the charges and the plea agreement. The post-conviction court also examined the plea
hearing in finding the petitioner knowingly and voluntarily entered the plea. The evidence does not
preponderate against the post-conviction court’s findings.

        In contending her plea was unknowing and involuntary, the petitioner notes the convictions
and sentences received by her co-defendants. However, the record indicates that co-defendant Holt,
who was convicted of felony murder and received a life sentence, was tried after the petitioner
entered her plea. Furthermore, the record does not indicate whether co-defendants Miller and Dixon,
who were convicted of lesser offenses and received lesser sentences, were tried before or after the
petitioner’s plea. The record before us also indicates their involvement in the offenses was less than
the petitioner’s involvement. Therefore, we decline to consider the co-defendants’ sentences in
determining whether the petitioner knowingly and voluntarily entered the plea.

       Based upon our review of the record, we affirm the judgment of the post-conviction court.



                                                       ____________________________________
                                                       JOE G. RILEY, JUDGE




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