Rigger v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
May 25, 2010 Session

PATRICK JOSEPH RIGGER v. STATE OF TENNESSEE

Appeal from the Criminal Court for Knox County
No. 90084 Mary Beth Leibowitz, Judge

No. E2009-01052-CCA-R3-PC - Filed September 10, 2010

The petitioner, Patrick Joseph Rigger, appeals from the Knox County Criminal Court’s denial
of post-conviction relief from his general sessions court guilty-pleaded convictions of
misdemeanor evading arrest and misdemeanor possession of a weapon. Although the post-
conviction court determined that the Knox County General Sessions Court’s procedure of
communicating to defendants en masse the litany of constitutional rights prior to accepting
pleas of guilty did not satisfy the rigors of due process principles, the post-conviction court
denied relief to the petitioner. The petitioner appeals and claims that the lower court erred
in failing to find that his guilty pleas were involuntary, unknowing, and/or unintelligent. He
also claims that the warrant alleging his illegal possession of a weapon inadequately charged
an offense and that his actual innocence of that charge entitled him to post-conviction relief.
Because the record supports the post-conviction court’s order, we affirm.

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

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

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and Jason Hunnicut, Assistant
District Attorney General, for the appellant, State of Tennessee.

Mark E. Stephens, District Public Defender, for the appellee, Patrick Joseph Rigger.

OPINION

The petitioner’s October 7, 2008 petition for post-conviction relief in the Knox
County Criminal Court challenged misdemeanor convictions imposed by the Knox County
General Sessions Court on October 8, 2007.1 On September 16, 2007, the petitioner was
charged by warrants obtained in the general sessions court with failure to provide evidence
of compliance with the financial responsibility law, evading arrest, unlawful possession of
a weapon, and a roadway lane violation. He was arrested on October 5, 2007, and he pleaded
guilty to misdemeanor evading arrest and unlawful possession of a weapon during his first
appearance in the general sessions court on October 8, 2007.

In the post-conviction evidentiary hearing, the petitioner testified by deposition
that he was 33 years of age and had received an eighth grade education. He testified that he
was arrested on Friday, October 5, 2007, and was held in custody from 10:00 a.m. on October
5 until he appeared in the Knox County General Sessions Court on Monday morning,
October 8. He stated that he had been taken before a magistrate at 3:00 a.m. on Saturday,
October 6, but because the video camera provided for recording the appearance was
inoperable, the arraignment was postponed until Monday, October 8. The petitioner testified
that he had not been informed of the nature or the number of the charges until he was taken
to court on October 8. He testified that he arrived in court on that day with a group of 50 to
60 prisoners and that he was arm- and leg-shackled to another prisoner. He recalled that he
was seated in a row of inmates “[t]wo or three rows back” and that the guards told the
prisoners, “Sit down; shut up and look straight ahead.” He stated that the prisoners were told
to make no eye contact with anyone and to avoid communicating with anyone in the
audience, upon penalty of being sent back to the penal farm. He described the court room
as being packed, containing “roughly around 200 maybe.”

The petitioner testified that, after sitting in the court room for a while, he
“flagg[ed] down” a man he believed was an attorney; the petitioner at first believed the man
was his lawyer, but before the pleas were arranged, the man introduced himself as an
assistant district attorney general. When asked in the deposition whether he worked out his
cases, the petitioner, who was on parole for burglary at the time, responded, “I did.” He
testified that the prosecutor told him that upon approval of the plea agreement, he “would get
time served and [would] go home” that day. The petitioner agreed to plead guilty to
misdemeanor evading arrest and unlawful possession of a weapon in exchange for an
effective 11-month, 29-day suspended sentence and the dismissal of the other two warrants.

The warrant forms contained in the record show the petitioner’s signatures on
the waivers of the right to counsel and of grand jury indictments and jury trials. The
petitioner also signed a more extensive waiver of rights form. He testified that he did not

1
Tennessee Code Annotated section 40-30-104 provides: “Petitions challenging misdemeanor
convictions not in a court of record shall be filed in a court of record having criminal jurisdiction in the
county in which the conviction was obtained. . . .” T.C.A. § 40-30-104(a).
-2-
read the warrants but admitted that he “possibly” had the opportunity to do so. The petitioner
acknowledged his signature on each waiver line but claimed that he had signed where the
prosecutor had indicated by making an “x” mark near each line. He testified that he declined
to read the waiver language because he “was trusting this guy.” He stated that he thought the
waiver of rights form that he signed was a forfeiture of the weapon. He testified that, other
than his signatures, the handwriting on the various forms was inserted by someone other than
himself.

He testified that the judge explained the prisoners’ rights to the “whole
courtroom,” amidst much talking and other noise. Later, the general sessions judge engaged
him in a dialogue about his charges and pleas, but the petitioner testified that he did not
approach the bench; rather, he “stood up right where [he] was” when his name was called
and was still handcuffed and shackled to his neighbor in the seating row. The petitioner
testified that he was not asked whether he wanted an attorney or whether he wished to waive
his constitutional rights. He testified that the general sessions court judge told him that “if
you want to stay out of jail, don’t get in trouble, that’s all you got to do.”

The petitioner exhibited to his testimony a transcript of the colloquy between
himself and the general sessions court judge. In the transcript, the general sessions court
judge, apparently addressing a number of defendants in the courtroom, advised the
addressees of the right to counsel, the standard of probable cause for preliminary hearings,
the role of the grand jury and the right to grand jury consideration, the right to jury trial, the
State’s burden of proof, the right to confront witnesses testifying against them, the right to
compulsory process, the right to testify and to not testify, the rule of unanimity of a jury’s
verdict, the right to appeal, and the possibility that a conviction could aggravate the
punishment levied in any future convictions. The transcript then moves to the individual
colloquy after the petitioner’s name was called:

[Prosecutor]: Patrick Rigger. Your Honor, Mr. Rigger is
pleading guilty to unlawful possession of a weapon, a C
misdemeanor, forfeit the weapon, time served; also pleading
guilty to . . . evading arrest[,] 11/29 all time suspended; the other
two charges will be dismissed.

[Judge]: Mr. Rigger, do you understand the rights [I] went over
with you?

[Petitioner]: Yes sir.

[Judge]: The DA has announced two of these cases are being

-3-
 dismissed[;] you will be pleading guilty to evading arrest, 11
months 29 days unsupervised probation. You got to stay out of
trouble and pay the court costs. Your weapons possession will
be time served[,] but you have to forfeit the weapon. Do you
understand? [It m]eans you got to stay out of trouble for 11
months[,] 29 days. If you don’t[,] you’re going to be . . . like
these other people that have been coming up here and messing
up[. D]o you understand? So it’s up to you[;] if you want to
stay out of jail[,] don’t get in trouble[;] that’s all you got to do.
How do you plead, guilty or not guilty?

[Petitioner]: Guilty.

[Judge]: Find you guilty[,] the judgment of the court. Good
luck to you.

The petitioner testified at the evidentiary hearing that he had been on parole
successfully since February 7, 2006, and that he did not believe that his possession of a rifle
violated his parole’s prohibition of possessing a deadly weapon. He testified that he would
not have pleaded guilty in the general sessions court had he known that the convictions
would result in a parole revocation or a federal charge.

On cross-examination, the petitioner admitted that, prior to October 8, 2007,
he had been in court several times. He agreed that, in 1999, he had pleaded guilty to burglary
charges in the Knox County Criminal Court and that the judge had appointed him an attorney
at that time. He further acknowledged that he had always had counsel appointed for him in
all of his other charges prior to October 8, 2007, all of which were filed in Knox County.

The petitioner testified that he could read and write and that he answered, “Yes,
sir,” when the general sessions court judge asked him whether he understood the rights that
were read to him.

The petitioner was released from custody on October 8, 2007, but subsequently,
his previous parole was revoked, and he was charged in federal court with possessing a
firearm as a convicted felon.

Samara Manning testified on behalf of the State in the post-conviction hearing
that she had been the petitioner’s parole officer since 2006. She said that the petitioner “did
very well on parole” until he failed to report on October 4, 2007. She testified that she had
informed the petitioner of the rules of his parole including the requirements that he not

-4-
violate any laws and that he not own or possess any type of deadly weapon. She stated that
the original parole violation report was engendered by the petitioner’s failure to report as
scheduled on October 4, 2007, as well as his failure to report his October 5 arrest, about
which she was informed due to the arrest “show[ing] up on arrest reports.” When asked
whether she would have filed the violation report without the petitioner’s being convicted,
Ms. Manning stated that she “requested the warrant before [she] even knew there were
convictions.” She explained that she prepares parole violation reports and submits them to
“Nashville. Nashville issues the warrant[s].” Ms. Manning recalled that the petitioner was
not apprehended on the violation warrant until April 11, 2008 and that, before the
Department of Correction held the revocation hearing in June 2008, she had obtained copies
of the petitioner’s October 2007 conviction judgments and forwarded them to the
Department.

On cross-examination, the petitioner’s counsel asked whether the general
sessions court judge’s comment about the petitioner’s avoiding jail by staying out of trouble
was accurate. Ms. Manning responded, “No, it wouldn’t have been. But then again even if
he – the charges had been dismissed in court, it wouldn’t have been accurate, sir.” She then
testified that the October “charges” were part of his parole violations but that the convictions
themselves were not. She testified that, had he been acquitted of the October 5, 2007
charges, she would have proceeded “anyway and even proceeded with the evading arrest and
unlawful possession of the weapon as well as the roadway [violation] and lack of insurance.
I could have proceeded . . . even if they had been dismissed in a court . . . and would have.”
She testified that she could have proceeded because the standard of proof in a parole
revocation proceeding – preponderance of the evidence – is less than proving the case
beyond a reasonable doubt, the standard used in a criminal case tried in a court. She added,
nevertheless, that the failure to report on October 4, 2007, was “in and of itself” a basis for
parole revocation. She testified that in the revocation proceeding the petitioner did not
challenge the allegations of “technical” violations of parole.

Upon reopening his proof, the petitioner called Isaac Murkle to testify. He
testified that he worked as a technology specialist for the public defender’s office. He stated
that the public defender – the petitioner’s counsel – asked him to determine from the
audiotape of the petitioner’s appearance in general sessions court on October 8, 2007, the
time elapsed during the general sessions court judge’s individual colloquy with the petitioner.
He testified that he determined that the individual colloquy, including the assistant district
attorney’s introduction of the case, lasted one minute and 12 seconds. The colloquy between
the judge and the petitioner lasted 39 seconds.

In its April 21, 2009 order denying post-conviction relief, the post-conviction
court held that the general sessions court en masse “readings of rights [fell] short of Due

-5-
Process guarantees.” The court held, however, that petitioner’s plea was knowing and
voluntary, and on that basis, it denied relief.

In elucidating its holdings, the court noted that a court entertaining a guilty plea
should inform the defendant of his rights, “of what the plea connotes[,] and of its direct
consequences.” The court further noted, however, that conveying this information to
defendants en masse may satisfy applicable requirements “so long as the number involved
is not so great as to make individual understanding unlikely, and provided each defendant is
addressed individually to establish on the record the understanding and agreement of each
defendant.” The court found that, in the defendant’s case, the general sessions court’s litany
of rights was delivered when “over one hundred (100) people were present in the court
room.” The post-conviction court noted that during such an en masse reading by the court,
“people exit and enter the courtroom, talk amongst each other, attorneys shuffle papers, and
discuss the day’s business.” The court also cited the unavailability of an assistant public
defender in the general sessions court on October 8, 2007, as well as the delay of an hour
between the en masse reading and the submission of the petitioner’s plea. On these bases,
the post-conviction court held that the general sessions court made an “insufficient attempt
to comport with [Tennessee Rule of Criminal Procedure] 11, Boykin [v. Alabama, 395 U.S.
238, 242 (1969)], and Howell [v. State, 185 S.W.3d 319, 331 (Tenn. 2006)].”

The general sessions court’s deficient procedure notwithstanding, the post-
conviction court found that the petitioner “possessed adequate knowledge concerning his
rights and the magnitude of their waiver to enter a knowing and voluntary plea.” The court
cited the petitioner’s signature denoting his waiver of constitutional rights, and it referred to
the petitioner’s “extensive history in the criminal court system” that included his submission
of 11 guilty pleas between 1995 and 2007. The court also relied upon the petitioner’s
admission that “he had the opportunity to read the warrants . . . but that he chose not to avail
himself of the opportunity to do so.”

The post-conviction court further rejected the petitioner’s claim that he was
misled when the general sessions court and the prosecutor failed to inform him of the
consequences of his guilty pleas. The court concluded that the petitioner’s parole revocation
and his subsequent federal charges were collateral to the direct consequences of his guilty
pleas and that neither the general sessions court nor the prosecutor were obliged to inform
him of these consequences.

The petitioner’s timely appeal followed the denial of post-conviction relief.
On appeal, the petitioner claims that his guilty pleas were not knowingly, voluntarily, and
intelligently entered, that the warrant for unlawful possession of a weapon failed to allege
a criminal offense, and that he was actually innocent of the unlawful possession of a weapon.

-6-
We will consider each claim in turn, with a few well-settled principles in mind.

A post-conviction petitioner bears the burden of proving his or her allegations
by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006). On appeal, the appellate
court accords to the post-conviction court’s findings of fact the weight of a jury verdict, and
these findings are conclusive on appeal unless the evidence preponderates against them.
Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631
(Tenn. Crim. App. 1997). By contrast, the post-conviction court’s conclusions of law receive
no deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453
(Tenn. 2001).

Post-conviction relief is available only “when the conviction or sentence is void
or voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103.

I. Petitioner’s guilty plea as voluntary, knowing, and intelligent

The petitioner claims that his pleas were unknowing and unintelligent because
the general sessions court’s en masse procedure was deficient and not communicative, the
court’s individual colloquy with the defendant did not serve to inform him of the nature of
the charges against him, and the court’s references to avoiding jail by staying out of trouble
veiled his vulnerability to parole revocation and the filing of federal charges.

“The validity of a guilty plea is a mixed question of law and fact.” Jeffery
Aaron Lane v. State, --- S.W.3d ---, No. E2007-00032-SC-R11-PC, slip op. at 6 (Tenn. July
14, 2010) (citing Jaco v. State, 120 S.W.3d 828, 830 (Tenn. 2003). “Whether a plea was
knowing and voluntary is an issue of constitutional dimension because ‘[t]he due process
provision of the federal constitution requires that pleas of guilty be knowing and voluntary.’”
State v. Wilson, 31 S.W.3d 189, 194 (Tenn. 2000) (quoting Johnson v. State, 834 S.W.2d
922, 923 (Tenn. 1992)).

A defendant who enters such a plea simultaneously waives
several constitutional rights, including his privilege against
compulsory self-incrimination, his right to trial by jury, and his
right to confront his accusers. For his waiver to be valid under
the Due Process Clause, it must be “an intentional
relinquishment or abandonment of a known right or privilege.”
Consequently, if a defendant’s guilty plea is not equally
voluntary and knowing, it has been obtained in violation of due
process and is therefore void.

-7-
Boykin v. Alabama, 395 U.S. 238, 243 n.5 (1969) (citation omitted). Thus, “a claim . . . that
a plea was not voluntarily and knowingly entered, implicates his due process rights and
therefore falls squarely within the ambit of issues appropriately addressed in a
post-conviction petition.” Wilson, 31 S.W.3d at 194. A plea “may not be the product of
‘[i]gnorance, incomprehension, coercion, terror, inducements, [or] subtle or blatant threats.’”
Id. at 195 (quoting Boykin, 395 U.S. at 242-43); see also State v. Mellon, 118 S.W.3d 340,
345 (Tenn. 2003) (“Certainly, a plea is not ‘voluntary’ if it results from ignorance,
misunderstanding, coercion, inducements, or threats.”) (citing Blankenship v. State, 858
S.W.2d 897, 904 (Tenn. 1993)); see Sexton v. State, 151 S.W.3d 525, 532 (Tenn. Crim. App.
2004) (stating that “the nature of the proceeding, the exchange between the trial court and
the petitioner, and the relatively beneficial plea agreement reflect the petitioner’s knowledge
and understanding that [his] constitutional rights relative to the trial process were not to be
asserted by [him] any further”).

In Boykin, the United States Supreme Court said that the trial court must
question the defendant to ensure that he or she understands that, by entering the guilty plea,
he or she is waiving the privilege against self-incrimination, the right to a jury trial, and the
right to confront his accusers. Boykin, 395 U.S. at 243-44. To the extent that a claim is
founded upon a failure to inform the accused that his guilty plea waives certain rights, the
three rights specified in Boykin form the constitutional touchstone for post-conviction relief
purposes. See Howell v. State, 185 S.W.3d 319, 331 (Tenn. 2006). The entitlement to being
informed of other rights or of certain consequences of the plea emanates from our procedural
rules and the Tennessee Supreme Court’s supervisory power, see Tenn. R. Crim. P. 11(c)(1)-
(5); State v. Neal, 810 S.W.2d 131, 135-36 (Tenn. 1991); State v. Mackey, 553 S.W.2d 337
(Tenn. 1977); however, the claim of a lack of information about these rights is not, apart
from a claim of involuntary and unknowning guilty plea, per se cognizable in a post-
conviction proceeding, see, e.g., Jaco, 120 S.W.3d at 831; Rocky Hipps v. State, No.
03C01-9807-CC-00237, slip op. at 6 (Tenn. Crim. App., Knoxville, Sept. 28, 1999). That
said, we know that in evaluating the knowing and voluntary nature of the appellant’s pleas,
this court must look to the totality of the circumstances. State v. Turner, 919 S.W.2d 346,
353 (Tenn. Crim. App. 1995). We also recognize that a trial court’s failure to comply with
the non-constitutional provisions of Rule 11(c)(1)-(5) “may contribute to the totality of the
circumstances” that reflects an unknowing or unintelligent guilty plea. Powers v. State, 942
S.W.2d 551, 555 (Tenn. Crim. App. 1996) (citing Kenneth Knox Gaddis v. State, No.
03C01-9303-CR-00064 (Tenn. Crim. App., Knoxville, Jan. 4, 1993)). Our supreme court
has noted, however, that

[a]bsolute literal compliance with the advice to be given by the
trial court is not required. Rather, the trial court must

-8-
 substantially comply with [the] mandates. A trial court
substantially complies with these mandates when it expresses
the sense of the substance of the required advice to a defendant
who is seeking to plead guilty.

Howell, 185 S.W.3d at 331 (citations omitted).

In the present case, the rights of confrontation, to jury trial, and to freedom
from compelled self-incrimination were read to the prisoners, including the petitioner,
assembled before the general sessions court on October 8, 2007. The privilege to be free
from self-incrimination was expressed in terms of the petitioner’s having the right to refuse
to testify. The court did not inquire of the petitioner about whether he wanted counsel to be
appointed and did not advise the petitioner about the nature of the pending charges.

A certain duality usually guides the determination whether an accused’s guilty
plea is made knowingly and intelligently; it entails an examination of the accused’s
understanding of (1) the nature of the rights being waived and (2) certain consequences that
emanate from the proposed conviction. In the present case, the petitioner claims that he was
uninformed as to both facets, leveling various claims against the validity of his guilty pleas.
These claims may be organized around our supreme court’s regimen of circumstantial
factors, see Blankenship, 858 S.W.2d at 904, for analyzing whether a guilty plea is voluntary
and intelligent:

1) the defendant’s relative intelligence; 2) the defendant’s
familiarity with criminal proceedings; 3) the competency of
counsel and the defendant’s opportunity to confer with counsel
about alternatives; 4) the advice of counsel and the court about
the charges and the penalty to be imposed; and 5) the
defendant’s reasons for pleading guilty, including the desire to
avoid a greater penalty in a jury trial.

Howell, 185 S.W.3d at 331 (citing Blankenship, 858 S.W.2d at 904).

A. The petitioner’s relative intelligence

The record does not well inform us about the intelligence of the petitioner. He
had completed the eighth grade and testified that he could read and write. Although he
testified at the evidentiary hearing that he did not understand many of the concepts employed
by the general sessions court during its en masse reading, his testimony was otherwise
reasonably articulate in describing the circumstances of the October 8 hearing. In the general

-9-
sessions court judge’s individual colloquy with the petitioner, the petitioner responded, “Yes,
sir,” when the judge asked whether the petitioner understood his rights as explained in the
en masse reading. In our view, the petitioner did not establish that he was not cognitively
capable of entering an informed, knowing, and intelligent guilty plea, but we do not weigh
this factor heavily on the State’s side of the evaluation ledger.

B. Petitioner’s familiarity with criminal proceedings

The petitioner’s familiarity with criminal proceedings weighs heavily in favor
of a conclusion that the petitioner’s guilty pleas were voluntary, knowing, and intelligent.
Although the petitioner had not appeared in court for several years prior to October 8, 2007,
the post-conviction court found that he nevertheless was armed with the personal experience
of pleading guilty in 11 prior criminal cases, and the petitioner testified that he had been
appointed counsel on each such prior case. Such personal experience undoubtedly enabled
the petitioner to better comprehend the proceedings on October 8.

Relatedly, the petitioner maintains on appeal that he did not effectively waive
his rights via the waiver documents he signed. Although the petitienor testified that he read
neither the warrants nor the documents he signed, he did not deny that he had the opportunity
to do so. The petitioner articulated no obfuscation by the assistant district attorney general
with whom he dealt, and the petitioner had approximately an hour between the time he signed
the documents and his individual colloquy with the judge. We infer that the petitioner relied
heavily upon his prior experiences with pleading guilty in expediting his pleas on October
8, 2007, without reading the warrants or waivers.

C. Availability, competency, and advice of counsel

In his brief, the petitioner strongly prefaced his challenge to his guilty pleas on
the basis that he was not represented by counsel. We find no indication in the record that
either the attending assistant district attorney general or the general sessions court judge
asked the petitioner whether he wanted an attorney appointed to represent him. We know
that, prior to appearing in court on October 8, 2007, the petitioner signed an affidavit of
indigency prefatory to having counsel appointed. We conclude, however, that the record fails
to evince a basis for impugning the convictions on the ground that the petitioner was denied
the assistance of counsel.

The petitioner signed waivers of his right to counsel. The language of one such
waiver was printed on a page that apparently was separate from the warrant form, and the
waiver stated that the petitioner “voluntarily waive[d] all of the above rights,” including the
right to “have an attorney represent [him]” and to have an attorney appointed if he could not

-10-
afford one. The petitioner signed the waiver on October 8, 2007, apparently after the general
sessions court explained to the assembled prisoners, including the petitioner, the right to
counsel and the right to have counsel appointed if necessary. In addition to signing the
waivers of counsel, the petitioner had pleaded guilty in 11 criminal cases prior to October 8,
2007, and he had been appointed counsel on each such prior case. We must recognize that
most waivers of the right to counsel are submitted by defendants who, at the time of waivers,
are not represented by counsel, and yet courts routinely accept waivers and, if applicable, the
ensuing guilty pleas tendered voluntarily by competent, informed defendants. The attorney
waiver in the present case is not anomalous. The record in the present case supports the post-
conviction court’s conclusion that the defendant validly waived his right to counsel. As such,
we do not weigh the lack of representation by counsel in favor of the petitioner.

D. Advice of the court

The nuances of the petitioner’s claims under the rubric of being uninformed
or misinformed by the general sessions court are manifold. As we noted above, the petitioner
did not have the advice of counsel. Moreover, he complains that he never received a copy
of the warrants and that no one explained to him the nature of the charges filed against him.
We recognize that the petitioner’s arraignment scheduled for October 6, 2007, was canceled
due to a malfunction of recording equipment. We also recognize that neither the transcript
of the en masse proceeding nor that of the general sessions court judge’s individual colloquy
with the petitioner shows that the petitioner was informed of the nature of the offenses with
which he was charged. The post-conviction judge, however, determined essentially that the
petitioner’s familiarity with the criminal justice system in Knox County and his prior use of
appointed counsel equipped him to understand, assimilate, and respond to the information
that was presented or availed to him on October 8, 2007. We cannot say that the record
belies these determinations.

By his own testimony, the petitioner revealed that the prosecutor who dealt
with him on October 8, 2007, accurately informed him of the charges. The petitioner
intelligently discussed with the prosecutor the issue whether the evading arrest charge should
be a felony or a misdemeanor. His understanding of the forfeiture of the weapon indicates
comprehension of the weapon possession charge. The record supports the view that the
petitioner was willing to expedite the general sessions court process in order to gain his
immediate release from confinement, and he achieved that goal.

At one point in the petitioner’s brief, he states that neither the en masse reading
nor the individual colloquy communicated to him that by pleading guilty he would be
waiving his various constitutional rights. Although we agree that such language does not
appear in the transcripts of those two proceedings, the waiver of constitutional and other

-11-
rights as a function of a guilty plea was stated in the separate rights waiver form that the
defendant signed. As indicated above, we see no reason to minimize the efficacy of the
written waiver.

The petitioner next relies upon the post-conviction court’s agreeing with him
that chaos prevailed in the general sessions court during the latter court’s reading to the
prisoners en masse to support his claim that the procedure was ineffectual to inform him of
his constitutional rights. The post-conviction court found that, during the reading, the
courtroom contained a large number of people, attorneys moved about, and people entered
and left the court room and engaged in conversation. The post-conviction court concluded
that the general sessions court’s procedure on October 8, 2007, was deficient by the measure
of due process and Tennessee Rule of Criminal Procedure 11. Nevertheless, the post-
conviction court held, the petitioner was adequately informed and knowing when he entered
his pleas.

Our supreme court has said that

a trial court substantially complies with the mandates of Boykin,
Neal, and Rule 11 of the Tennessee Rules of Criminal Procedure
when the trial court communicates the entire litany of rights and
other required information “to multiple defendants in the
presence of their respective attorneys, so long as the number
involved is not so great as to make individual understanding
unlikely; and provided that each defendant is addressed
individually to establish on the record the understanding and
agreement of each defendant.”

Howell, 185 S.W.3d at 332 (quoting Neal, 810 S.W.2d at 137-38). “Therefore,” the court
added, “while we caution trial courts against conducting group plea hearings, such hearings
do not constitute per se violations of Boykin, Neal, and Rule 11 of the Tennessee Rules of
Criminal Procedure.” Id. at 332.

The post-conviction court’s determination that the en masse proceeding was
essentially inimical to “individual understanding” does not equate, in this instance, to a
determination that the petitioner did not understand the constitutional implications of his
plea. See Johnson v. State, 834 S.W.2d 922, 925 (Tenn. 1992) “It is the result, not the
process, that is essential to a valid plea. The critical fact is the defendant’s knowledge of
certain rights, not that the trial judge was the source of that knowledge.” Id. at 924. “[T]he
petitioner actually may have been aware of his constitutional rights even though the trial
court failed to advise him of them and failed to determine at the plea hearing that petitioner

-12-
was aware of his rights.” Id. at 925. That is exactly what happened in the petitioner’s case.
The post-conviction court determined that, despite the shortcomings of the en masse
proceeding, the defendant entered a valid plea. To put it more exactly, the post-conviction
court held that the petitioner failed to carry his burden of proving by clear and convincing
evidence that his plea was not voluntary, knowing, or intelligent.

Even when a post-conviction petitioner establishes “that the trial court failed
to advise the petitioner of his right against self-incrimination and that the trial court failed
to determine that the plea was knowing and voluntary,” the petitioner is not “ipso facto,
entitle[d] . . . to relief.” Id. Instead, such a showing “is sufficient to shift the burden of going
forward to the State,” and

[t]he State may rebut the allegation with proof of substantial
compliance with the advice requirement, which would show that
the petitioner was made aware of his constitutional rights, or the
State alternatively may show that the petitioner was aware of his
constitutional rights and that therefore the trial court’s failure to
give the mandated advice was harmless error.

Id. The post-conviction court took the latter track, and the record supports that court’s
determination that the State countered the petitioner’s evidence of a deficient en masse
hearing. See Neal, 810 S.W.2d at 139 (holding that when the petitioner establishes that the
trial court failed to inform him of his constitutional rights and that he would not have pleaded
guilty absent the omission, “then the burden shifts to the State to justify the error by
establishing through extrinsic evidence the defendant’s knowing and voluntary
relinquishment of the involved constitutional protections, despite the erroneous omission”).
In this case, “the [general sessions] court’s failure to advise [the petitioner] of . . .
constitutional right[s] was harmless error.” Johnson, 834 S.W.2d at 926.

We move now to consider the general sessions court’s handling of the
individual colloquy with the petitioner. The petitioner maintains that, in the colloquy, he was
both under informed and misinformed about important consequences of his convictions.
First, he claims that the general sessions court failed to inform him of the nature of the
charges and of the waiver effect of a guilty plea. We have already dealt with these claims
above and concluded that the petitioner is not entitled to relief on these issues. Second, the
petitioner claims that the court failed to inform him of his vulnerability to parole revocation
and/or the filing of federal charges based upon his pleading guilty and that the general
sessions court actually misinformed the petitioner about this vulnerability by telling the
petitioner that he could avoid jail by staying out of trouble.

-13-
 The United States Supreme Court, in Brady v. United States, 397 U.S. 742
(1970), mentioned that “[w]aivers of constitutional rights not only must be voluntary but
must be knowing, intelligent acts done with sufficient awareness of the relevant
circumstances and likely consequences.” Id. at 748; see also Blankenship, 858 S.W.2d at 904
(stating that, pursuant to Boykin, the trial court is obliged to “‘canvass[] the matter with the
accused to make sure he has a full understanding of what the plea connotes and of its
consequences’”) (quoting Boykin, 395 U.S. at 244). However, “[c]ourts are constitutionally
required to notify defendants of only the direct consequences–not the collateral consequences
–of a guilty plea.” Marcus Ward v. State, --- S.W.3d ---, No. W2007-01632-SC-R11-PC, slip
op. at 5 (Tenn., Jackson, July 7, 2010).2 “The most obvious ‘direct consequence’ of a
conviction is the penalty to be imposed. It is, therefore, well-recognized that the defendant
must be apprised of the sentence that he will be forced to serve as the result of his guilty plea
and conviction.” Blankenship, 858 S.W.2d at 905.

In Marcus Ward, our supreme court applied a distinction between direct and
collateral consequences that turned on whether the consequence was punitive. It held that,
on the one hand, a consequence of a guilty-pleaded conviction that was merely “remedial and
regulatory,” having “no effect on his range of punishment,” was a collateral consequence of
a guilty plea. Marcus Ward, --- S.W.3d at ---, slip op. at 8, 12. A trial court has no duty to
advise a guilty-pleading defendant of a collateral consequence of his plea. Id., slip op. at 6.
On the other hand, a “punitive” consequence of a guilty plea – one that entails “an additional
part of a defendant’s sentence” – is a direct consequence of the plea, and it imposes upon the
trial court “an affirmative duty to ensure that a defendant is informed and aware of the
[consequence] prior to accepting the plea.” Id. at __, slip op. at 14-17. Our supreme court
pointed to legislative intent as a primary consideration for assisting a court in deciding
whether a particular consequence of a plea is punitive and thus direct. Although legislative
intent may not be dispositive, the court said, it should be “afforded considerable deference”
such that “‘[i]f the intention of the legislature was to impose punishment, that ends the
inquiry.’” Id. at __, slip op. at 14-15 (quoting Smith v. Doe, 538 U.S. 84, 92-93 (2003),
(emphasis in Marcus Ward omitted). In Marcus Ward, the court looked to certain markers
of legislative intent: whether the legislature, in enacting provisions resulting in the

2
In Marcus Ward, the supreme court adjudicated an issue of the validity of guilty pleas and the
obligation of the trial court to inform a defendant of certain consequences of his pleas. A similar rule has
been applied to the advice rendered (or omitted) by a defendant’s attorney for purposes of evaluating a
constitutional claim of ineffective assistance of counsel, see, e.g., Adkins v. State, 911 S.W.2d 334, 359
(Tenn. Crim. App. 1994), but we note that the United States Supreme Court has commented that, at least in
the realm of ineffective assistance of counsel, “We, however, have never applied a distinction between direct
and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance’
required under Strickland [v. Washington], 466 U.S. [668], 689 [(1984)].” Padilla v. Kentucky, --- U.S. ---,
130 S. Ct. 1473, 1481 (2010).
-14-
consequence, declared its intent; whether the language used by the legislature indicates
“punitive intent”; and whether the legal provision at issue utilized the word “sentence” in
describing its effect. Id. The court also looked at the punitive “effect” of the statute in
question. Id., slip op. at 15.

In the present case, however, we need not determine whether the petitioner’s
state parole revocation or the filing of a federal weapons charge was a direct or collateral
consequence of his guilty pleas. We hold that the record fails to establish by clear and
convincing evidence that these post-plea events were consequences of the guilty pleas and/or
their resulting convictions.

The petitioner testified that his Tennessee parole was revoked and that federal
charges were filed as a result of his general sessions court convictions; however, the
remaining post-conviction evidence does not bear out these claims.

The petitioner’s parole officer testified that the petitioner failed to report to her
as required on October 4, 2007, and that she learned of the new warrants via an “arrest
report.” She testified that the parole revocation warrant was based, therefore, upon the
petitioner’s failures to report and to inform her office of his arrests as much as it was based
upon his pleas or convictions. Indeed, she testified that even had the petitioner been tried and
acquitted of the charges in general sessions court, she would have nevertheless proceeded
to have his parole revoked. Accordingly, we cannot say that the parole revocation was a
consequence at all of the guilty pleas or the resulting convictions.

Additionally, it appears that the federal weapons charge filed against the
petitioner was the result of his being a felon in possession of a deadly weapon. As such, the
charge was not a consequence of the petitioner’s guilty plea or his state weapons conviction.
The federal government was free to file the federal weapons charge against the petitioner
even absent his pleading guilty in the general sessions court.

Moreover, the fact that neither the parole revocation nor the federal weapons
charge was a consequence, either direct or collateral, of the petitioner’s pleas is further
demonstrated by the fact that a grant of post-conviction relief from the guilty-pleaded
misdemeanor convictions in this case would not result in the removal of either the parole
revocation or the federal charge. Based upon these determinations, the general sessions court
was not obliged constitutionally to advise the petitioner about his vulnerability to parole
revocation or the filing of a federal charge.

The question remains, then, whether the general sessions court, although not
obliged to advise or inform the petitioner about parole revocation or a federal charge, actually

-15-
misinformed the petitioner about these possibilities. The petitioner cites that court’s
reference to the petitioner’s staying out of jail by staying out of further trouble as inaccurate
and misleading. We disagree that the general sessions court judge’s comments to this effect
embraced consequences beyond the probation that he was imposing, and even if the
comments could be construed more broadly, as the petitioner urges, they came after the
petitioner made his plea arrangement.

In his individual colloquy with the petitioner, the judge told him, as the
petitioner alleges, “So it’s up to you[.] [I]f you want to stay out of jail[,] don’t get in trouble,
that’s all you got to do.” These comments must be placed in context, however, by
considering the statements made by the judge immediately before the above statements:

You got to stay out of trouble and pay the costs. Your weapons
possession will be time served but you have to forfeit the
weapon. Do you understand? Means you got to stay out of
trouble for 11 months 29 days. If you don’t[,] you’re going to
be going like these other people that have been coming up here
and messing up, do you understand?

Clearly, based upon the full statements of the judge, the comment that staying out of trouble
was all the petitioner had to do was in reference to the petitioner’s avoiding revocation of his
new probation. We cannot fathom how the comment, in context, could be understood to
mean that the petitioner, in pleading guilty, was somehow galvanized from any further
repercussions of his October 5, 2007 conduct.

Furthermore, the petitioner had bargained with the prosecutor for a plea deal
that would allow him immediate release from custody, his avowed goal at the time. Even if
the judge’s “all you got to do” comment could be construed as having application broader
than the probation being then imposed, we reject the notion that, but for this comment, the
defendant would have eschewed the pleas. Also, we cannot see that the comment in any way
induced the petitioner to plead guilty or in any way beguiled him into departing from a course
he would otherwise have pursued. In other words, even if the comment could be construed
as misinformation, it was harmless beyond a reasonable doubt. See Marcus Ward, --- S.W.3d
at ---, slip op. at 17-18 (applying constitutional harmless error analysis to a
Boykin/Blankenship error). In consequence, we see nothing in the general sessions court’s
individual colloquy with the petitioner that weighs in favor of a finding that the petitioner’s
guilty pleas were not knowingly, intelligently, and voluntarily entered. Indeed, this factor
weighs in favor of the State.

-16-
 E. Petitioner’s reasons for pleading guilty

Next, we consider the petitioner’s reasons for pleading guilty. The petitioner
argues that the desire to avoid a greater penalty in a jury trial did not factor into his decision
to plead guilty. Although such may be true, the gravamen of the matter is that he opted for
a disposition of his charges that minimized penalties and provided for dismissal of some
charges. In fact, the plea agreement provided for no additional penalties other than paying
costs, forfeiting the weapon, and completing 11 months and 29 days of unsupervised
probation. The plea agreement offered obvious benefit to the petitioner, and he affirmatively
took action to claim that benefit.

“[A] defendant who acts in his own best interest, voluntarily and
intelligently pleading guilty to a charge for which there is little
factual foundation, and waiving any objection to the charge, and
who later attempts to attack the plea for which he bargained, has
no basis for a constitutional challenge to the conviction. He has,
at best, invited error, and, at worst, attempted to manipulate the
court.”

Powers v. State, 942 S.W.2d 551, 555 (Tenn. Crim. App. 1996) (quoting Kenneth Knox
Gaddis v. State, No. 03C01-9303-CR-00064 (Tenn. Crim. App., Knoxville, Jan. 4, 1993)).
We believe this evaluation factor weighs in favor of the State.

Having thoroughly examined the five Howell factors, our conclusion here is
that the record supports the post-conviction court’s determination that the petitioner was
adequately informed to make a voluntary, knowing, and intelligent plea and that any
shortcomings in the general sessions court’s procedure are either not cognizable in a post-
conviction proceeding or were harmless beyond a reasonable doubt.

II. Validity of warrant charging unlawful possession of a weapon

In his next issue, the petitioner claims that the warrant charging illegal
possession of a weapon failed to allege a criminal offense. The affidavit of complaint for
this warrant described the police officer’s stopping the petitioner’s vehicle and observing a
“Glen Field .22, serial number 27316841, in the back seat of the vehicle. There was
ammunition available for it. . . . . Records revealed the defendant to have a felony drug
conviction from 09-16-1998.” The petitioner claims that the warrant fatally failed to allege
that he carried the weapon with the intent to go armed, citing Tennessee Code Annotated
section 39-17-1307. That code section proscribes as an offense a person’s carrying “with the
intent to go armed a firearm.” T.C.A. § 39-17-1307(a)(1). The offense described in Code

-17-
section 39-17-1307(a)(1) is a Class C misdemeanor. Id. § 39-17-1307(a)(2)(A). As an
alternative to the crime defined in subsection (a)(1), Code section 1307 also proscribes the
possession of “a handgun” by a person who has been convicted of a felony drug offense. Id.
§ 39-14-1307(b)(1)(B). This offense is a Class E felony. Id. § 39-17-1307(b)(2).

“A warrant of arrest is an order, in writing, stating the substance of the
complaint, directed to a proper officer, signed by a magistrate, and commanding the arrest
of the defendant.” Id. § 40-6-201. “The written examination shall set forth the facts stated
by the affiant or affiants that establish that there is probable cause to believe an offense has
been committed and that the defendant committed it.” Id. § 40-6-204. Tennessee Rule of
Criminal Procedure 3 provides:

The affidavit of complaint is a statement alleging that a person
has committed an offense. It must:

(a) be in writing;

(b) be made on oath before a magistrate or a neutral and
detached court clerk authorized by Rule 4 to make a probable
cause determination; and

(c) allege the essential facts constituting the offense
charged.

Tenn. R. Crim. P. 3. The petitioner posits that the affidavit of complaint failed to satisfy the
combined requirements of these Code sections and Rule 3 and that, accordingly, the resulting
warrant was void “and all subsequent proceedings are invalidated.” The State argues that the
issue is waived by virtue of the guilty pleas and that the warrant on the weapon possession
charge was, at any rate, valid.

First, we must reject the State’s claim that the issue was waived upon the
petitioner’s guilty pleas. Certainly, a valid guilty plea “constitutes an admission of all facts
necessary to convict and waives all non-jurisdictional defects and constitutional irregularities
which may have existed prior to the entry of the guilty plea.” State v. Pettus, 986 S.W.2d
540, 542 (Tenn. 1999). However, “a guilty plea waives only non-jurisdictional defects.”
Edwards v. State, 269 S.W.3d 915, 921 (Tenn. 2008). For this reason, a guilty plea does not
confer jurisdiction upon a trial court that otherwise lacked jurisdiction. Id. The essence of
the petitioner’s challenge to the warrant is that it is void and that, therefore, the general
sessions court lacked jurisdiction to enter a conviction. Because the petitioner’s claim
challenges the jurisdiction of the general sessions court, it was not waived by his pleading

-18-
guilty, and we move on to analyze the validity of the warrant.

We hold that the affidavit of complaint in the warrant was sufficient to charge
a violation of Tennessee Code Annotated section 39-17-1307(a)(1) – carrying a firearm with
the intent to go armed. The warrant alleged a violation of section 39-17-1307 and the
commission of a Class C misdemeanor; subsection (a)(1) is the only offense described in
section -1307 that is classified as a Class C misdemeanor. As such, we believe that the
statutory reference, together with the factual allegations, gave the petitioner adequate notice
of the charged offense. In Tennessee, an indictment as a charging instrument is sufficient
if it references the appropriate statute and otherwise meets the statutory requirement for an
indictment. State v. Carter, 988 S.W.2d 145, 149 (Tenn. 1999) (citing State v. Hill, 954
S.W.2d 725, 726-27 (Tenn. 1997)). We believe that the requirements for a warrant are no
more demanding than are those for an indictment. See Berry v. City of Memphis, 354 S.W.2d
71, 72 (Tenn. 1961) (holding that a warrant alleging merely a “Vio. Sec. 759, Indecent
Conduct” was sufficient to put Berry on notice “that he must expect proof of having
committed one or more of the five acts constituting the offense” and was, therefore,
“sufficient and valid”).

In adjudicating a warrant charging exceeding the speed limit, our supreme
court has said,

“The declaration should state the cause of action clearly,
explicitly, and briefly.

“But how clear and explicit must the statement be? No more
than to convey a ‘reasonable certainty of meaning,’ and ‘by a
fair and natural construction,’ to show a substantial cause of
action. No cavil, or straining, or criticism, is to be allowed as
ground of exception, if the statement is intelligible enough,
according to the ordinary meaning of the language used.”

Guidi v. City of Memphis, 263 S.W.2d 532, 534 (Tenn. 1953) (quoting Caruthers History of
a Lawsuit, Gilreath’s Revision, Seventh Edition, § 108, p. 114). We conclude that the
affidavit of complaint in the present case satisfies this description. See Guidi, 263 S.W.2d
at 535 (“Moreover we think the language in the warrant is sufficient notice to the defendant
that he was arrested for exceeding the speed limit as fixed by the laws and ordinances of the
City of Memphis. We are justified in the assumption that the defendant was driving an
automobile when he was arrested and held a driver’s license which authorized him to operate
it. It is not unreasonable to suppose that operators of motor-propelled vehicles in Memphis
and Shelby County are fully cognizant of all traffic laws in said city, including the limit as

-19-
to the speed of such vehicles.”); State v. David Nathaniel Cope, No. E2006-01005-
CCA-R3-CD, slip op. at 4 (Tenn. Crim. App., Knoxville, Sept. 19, 2007) (finding that
although warrant alleging driving under the influence failed to allege that Cope drove in “any
of the locations required under the DUI statute for the commission of that offense,” warrant
was sufficient and valid because it could be inferred from the language in the affidavit of
complaint that he drove “on the road or on the premises of the apartment complex”), perm.
app. denied (Tenn. 2008).

III. Actual innocence of unlawful possession of a weapon

In his final issue, the petitioner claims post-conviction relief on the ground that
he is actually innocent of the offense alleged in the weapon possession warrant. In his brief,
his entire argument on this point is the following:

[The weapon possession w]arrant . . . states that the officers
observed an unloaded rifle in the back of [the petitioner’s]
vehicle. It was not a crime in September of 2007 for [the
petitioner] to possess an unloaded rifle. In order for [the
petitioner] to be guilty, he would have had to carry the rifle with
the intent to go armed. [The] warrant . . . does not contain facts
stating that [he] intended to go armed. Thus, he is factually
innocent.

This issue as framed brings to mind interesting issues such as whether the claim is justiciable
in a post-conviction proceeding, see Dellinger v. State, 279 S.W.3d 282, 291 (Tenn. 2009)
(noting that the justiciability of free-standing actual innocence claims as part of a collateral
attack was “‘left open’ and ‘unresolved’” in the wake of Herrera v. Collins, 506 U.S. 390
(1993) (quoting House v. Bell, 547 U.S. 518, 554-55 (2006)), and whether the otherwise
valid guilty plea on weapon possession foreclosed the claim, see Pettus, 986 S.W.2d at 542
(holding that “the voluntary entry of an informed and counseled guilty plea constitutes an
admission of all facts necessary to convict”). We do not address these issues, however,
because the argument on the issue contains no citation to authority. For that reason, we
conclude that this issue is waived. See Tenn. R. Ct. Crim. App. 10 (stating that issues not
supported by citation to authority are waived). Thus, no post-conviction relief is implicated
in this third and final issue.

V. Conclusion

The petitioner failed to establish his claims in the post-conviction court by clear
and convincing evidence or to carry his burden on appeal. The record supports the denial of

-20-
post-conviction relief and reveals that although the Knox County General Sessions Court’s
procedure in handling guilty pleas on the day of the petitioner’s appearance was deficient by
the standards of due process and of Tennessee Rule of Criminal Procedure 11, the petitioner
was otherwise informed and did submit voluntary, knowing, and intelligent guilty pleas to
valid arrest warrants. His claim of actual innocence is thwarted by his failure to cite to
authority. Accordingly, the order of the post-conviction court is affirmed.

_________________________________
JAMES CURWOOD WITT, JR., JUDGE

-21-