IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MARCH 1999 SESSION
FILED
June 18, 1999
Cecil Crowson, Jr.
MARIO PERKINS, )
Appellate Court Clerk
)
Appellant, ) No. 02C01-9805-CR-00127
)
) Shelby County
v. )
) Honorable Bernie Weinman, Judge
)
STATE OF TENNESSEE, ) (Post-Conviction)
)
Appellee. )
For the Appellant: For the Appellee:
Randall B. Tolley Paul G. Summers
242 Poplar Avenue Attorney General of Tennessee
Memphis, TN 38103
Michael E. Moore
Solicitor General
J. Ross Dyer
Assistant Attorney General of Tennessee
450 James Robertson Parkway
Nashville, TN 37243-0493
William L. Gibbons
District Attorney General
and
Alanda Horne
Assistant District Attorney General
201 Poplar Avenue
Memphis, TN 38103
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The petitioner, Mario Perkins, appeals as of right from the Shelby County
Criminal Court’s denial of his petition for post-conviction relief. The petitioner was
originally charged with aggravated robbery and first degree murder, but he pled guilty to
aggravated robbery and second degree murder pursuant to a plea bargain. He was
sentenced as a Range I, standard offender to eight years for the aggravated robbery
conviction and as a Range III, persistent offender to forty-five years for the second
degree murder conviction. The sentences were ordered to be served concurrently in
the custody of the Department of Correction. The petitioner now presents the following
issues for our review:
(1) whether his guilty plea1 was knowing and voluntary; and
(2) whether he received the ineffective assistance of
counsel.
We affirm the trial court’s denial of post-conviction relief.
At the evidentiary hearing, the petitioner testified that he was sixteen at
the time he entered his guilty plea. He said he met with his attorney one time before
the guilty plea hearing. He said he agreed to a sentence as a Range III offender
because the trial judge threatened to sentence him to life without parole if he did not
make a decision and plead guilty that day. He said he thought he would serve forty-five
percent of his sentence, not eighty-five percent. He stated that he did not remember
having any discussions with the trial court or with his attorney regarding the offense
being a Class A felony. He said the trial court told him that the state would try the
aggravated robbery case first and if he was convicted, they would use that conviction
against him in the murder case.
1
Although the petition for post-conviction relief refers to both of the petitioner’s convictions
upon guilty pleas, the petitioner’s proof and argument and the trial court’s decision focus only on the plea
to second degree murder. We will review that decision.
2
On cross-examination, the petitioner admitted that he confessed to killing
the victim. He said he knew he would be facing the possibility of life without parole if he
went to trial. He said his attorney spoke with him every time he was in court and came
to see him once in jail to discuss the case. He stated that he did not understand the
judge’s explanation of his sentence because the judge told him two different things. He
said that it was not until after he signed the plea agreement that the judge told him that
a jury would decide his sentence if he went to trial, not the judge. He admitted that he
told the judge that he did not have any questions and that his attorney had done
everything he wanted him to do. He testified that after he had time to think about it, he
wished he had not entered the guilty plea because he did not want to serve forty-five
years as a Range III offender. He admitted that on the day of the plea hearing, he did
not want to go to trial and face the possibility of life without parole.
The petitioner’s father, Randy Perkins, testified that he asked the judge at
the plea hearing how the petitioner could receive a Range III sentence as a first-time
offender. He testified that the judge told him that the state would try the aggravated
robbery case first then use that conviction against the petitioner in the murder case. He
said the judge explained that if the petitioner was found guilty at trial, he would
sentence him to life without parole. Mr. Perkins testified that a trial court clerk spoke to
them outside the courtroom during a recess and told them that they should not go to
trial because of what the judge would do. He stated that the clerk told them that the
judge would be very hard on the petitioner at trial. He testified that he remembered the
judge indicating that a decision on the plea had to be made that day or the state would
go to trial and the offer would be revoked.
On cross-examination, Mr. Perkins admitted that he did not tell the judge
about his conversation with the court clerk. He said he must have lied to the judge
when he said he was satisfied with the representation of the petitioner’s attorney.
3
The petitioner’s attorney testified that he discussed the state’s offer with
the petitioner and the possibility of success at trial. He said he believed he shared
discovery with the petitioner. He stated that he visited the petitioner several times in jail
and spoke with the petitioner’s parents several times. He said that he explained to the
petitioner the state’s offer of pleading guilty to second degree murder with a forty-five
year sentence as a Range III offender and that he asked the judge to explain it again at
the plea hearing. He stated that because he was uncertain whether the petitioner
understood what he was doing, he also explained the offer to the petitioner’s parents
and let them discuss it with the petitioner. He said he discussed with the petitioner the
ramifications of going to trial, but he never threatened or coerced the petitioner into
pleading guilty. He said the prosecutor told him that the state would try the aggravated
robbery case first then use that conviction to get a sentence of life without parole in the
murder case. He said he explained this to the petitioner and his family. He stated that
at the time the pleas were entered, he was satisfied that both the petitioner and his
family understood the plea agreement.
On cross-examination, the attorney testified that he did not present the
state’s offer to the petitioner immediately because he thought it was a bad offer. He
said he tried to get a better offer from the state, but he took the offer to the petitioner
when he was unsuccessful. He said he explained to the petitioner that his options were
to either accept the agreement or to go to trial. He said he did not believe that the state
filed a notice of intent to seek enhanced punishment, and he said the petitioner did not
have a criminal record. He testified that he did not recall the judge putting any pressure
on the petitioner to accept the plea agreement. He said he believed the judge decided
that once he set a trial date, the petitioner could not change his mind and try to accept
the plea because the offer would no longer stand. He admitted that the state usually
made that determination. He said it would have been pointless to request additional
4
time for the petitioner to consider the plea because the petitioner and his family had
already agreed to accept it.
The trial court denied the petition. It found that the petitioner freely and
voluntarily entered his guilty plea after being fully advised of his rights by his attorney
and by the court. It also found that the advice given and the services rendered by the
petitioner’s attorney were within the range of competence demanded of an attorney in a
criminal case.
I. GUILTY PLEA
The petitioner contends that his plea was not voluntary because (1) he
was pressured and coerced by the trial court into accepting the plea agreement, (2) he
was confused by the trial court’s explanation of his sentence, and (3) the trial court did
not require the state to file notice of its intent to seek enhanced punishment as required
by Tenn. Code Ann. § 40-35-202(a). The state contends that the petitioner’s plea was
knowing and voluntary and that the trial court painstakingly and accurately explained to
the petitioner and his parents the ramifications of pleading guilty and the ramifications
of going to trial. The state argues that it was not required to submit notice of intent to
seek enhanced punishment.
The transcript of the guilty plea hearing reflects that the trial court
thoroughly explained to the petitioner the constitutional rights he was waiving by
pleading guilty and that the trial court complied with Rule 11, Tenn. R. Crim. P. See
Johnson v. State, 834 S.W.2d 922 (Tenn. 1992); State v. Neal, 810 S.W.2d 131 (Tenn.
1991). Furthermore, nothing in the record indicates that the petitioner was coerced or
threatened by the trial court. The petitioner asserts that the trial court threatened to
sentence him to life without parole if he elected to go to trial. However, at the plea
hearing, the trial court specifically stated, “Now, if you’re convicted of anything less than
5
murder in the first degree, I would sentence you. And if you were convicted of murder
in the first degree, the jury would sentence you.” Later, the petitioner’s father asked the
trial court whether it had stated that it would sentence the petitioner to life without
parole if the petitioner went to trial and was convicted of first degree murder. The trial
court stated, “Well, no, no I didn’t . . . . The jury would do the sentencing in the murder
case, not me. The jury would do that.” The record also reflects the following colloquy
between the trial court and the petitioner at the beginning of the plea hearing:
COURT: I’m not at all going to suggest that you need to
have a trial in this case. I’m not, at all, suggesting that you
shouldn’t have a trial. I just want to make sure that you
understand what you are doing and that you make the
choice that you want to make, after you’re informed and
know what’s going on. Do you understand that?
PETITIONER: Yes, sir.
Nothing in the record supports the petitioner’s contention that he was coerced and
threatened by the trial court into accepting the plea agreement.
The petitioner also contends that he was coerced by the trial court
because the trial court told him that the state would try the aggravated robbery case
first, and if he was convicted, the state would use this to get a sentence of life without
parole in the murder case. The record reflects that the prosecutor explained that the
state intended to do just that. Rather than coercing the petitioner, the trial court was
merely explaining to the petitioner the potential ramifications of a trial.
The petitioner argues that his plea was not knowing because he did not
understand his sentencing range. However, the record reflects that the petitioner was
adequately apprised of the fact that he would serve eighty-five percent of his sentence.
Although at one point during the guilty plea hearing the trial court misstated that the
petitioner was to serve forty-five percent of his sentence, the trial court later instructed
the petitioner and his parents that he would serve eighty-five percent of his sentence,
and the following colloquy occurred:
6
COURT: . . . . So we know for sure, that if he doesn’t
misbehave and lose all his credits, that when he’s served
eighty-five percent of forty-five years, he will have served his
time and he’ll be out. Not on parole, he’ll be released.
PETITIONER’S FATHER: But, okay then, we going [sic] to
accept the time, then.
....
PETITIONER’S FATHER: We agree upon it.
COURT: . . . . Mr. Mario Perkins, you understand what we’ve
done and you agree with this guilty plea; is that correct?
PETITIONER: Yes, sir.
The record reflects that the petitioner was correctly apprised that he would serve eighty-
five percent of his sentence and that the petitioner agreed that he understood the
sentence and accepted the plea agreement.
Finally, the petitioner contends that the trial court did not require the state
to submit notice of its intent to seek enhanced punishment ten days before the guilty
plea hearing, as required by Tenn. Code Ann. § 40-35-202. We believe that the
petitioner misapprehends the purpose of Tenn. Code Ann. § 40-35-202. That statute
deals with the requirement of advanced notice by the state of its intent to use a
defendant’s previous convictions to enhance the sentence. The purpose of the statute
is to provide fair notice to a defendant that he or she is exposed to a greater sentence
due to his or her previous criminal convictions. See State v. Adams, 788 S.W.2d 557
(Tenn. 1990). In the present case, the petitioner did not have any prior convictions;
rather, the petitioner agreed upon a sentence in an enhanced range as a part of his
plea agreement to second degree murder. Under these circumstances, Tenn. Code
Ann. § 40-35-202 is not applicable. This issue is without merit.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
The petitioner contends that his attorney was ineffective. Specifically, he
argues that his attorney did not adequately inform him of the consequences of his plea.
7
The petitioner also makes myriad other statements with respect to what his attorney did
or did not do, but he does not articulate in what way his attorney’s actions were
deficient or how he was prejudiced. The state contends that the trial court correctly
concluded that the petitioner received the effective assistance of counsel. We agree.
In a post-conviction case, the petitioner must prove his grounds for relief
by clear and convincing evidence. Tenn. Code Ann. § 40-35-210(f). To establish the
ineffectiveness of counsel, the petitioner must show that counsel’s performance was
deficient and that the deficiency resulted in prejudice. Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); State v. Melson, 772 S.W.2d 417, 419 n.2
(Tenn. 1989). Relative to a claim that a guilty plea resulted from the ineffective
assistance of counsel, the petitioner must show that but for counsel’s errors, he would
not have pled guilty and would have insisted upon going to trial. Hill v. Lockhart, 474
U.S. 52, 59, 106 S. Ct. 366, 370 (1985); Bankston v. State, 815 S.W.2d 213, 215
(Tenn. Crim. App. 1991). On appeal, we are bound by the trial court’s findings of fact
unless we conclude that the evidence in the record preponderates against those
findings. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). In this respect,
the petitioner, as the appellant, has the burden of illustrating how the evidence
preponderates against the judgment entered. Id.
The petitioner’s trial attorney testified that he explained the state’s offer to
the petitioner and that he requested that the trial court explain the offer to the petitioner
at the plea hearing. He testified that he also explained the offer to the petitioner’s
parents and asked them to discuss it with the petitioner to ensure that the petitioner
understood the offer. He testified that he explained to the petitioner the ramifications of
going to trial. The attorney testified that he did not request additional time for the
petitioner to consider the offer because both the petitioner and his father stated that
they wanted to accept the offer. We conclude that the petitioner has not demonstrated
8
that the record preponderates against the trial court’s finding that he received the
effective assistance of counsel.
In his brief, the petitioner also makes the following statements with
respect to his attorney’s performance: (1) the attorney could not remember whether he
shared discovery with the petitioner, (2) the attorney stated that he did not know
whether the petitioner understood what he was doing, (3) the attorney first told the
petitioner that both cases would be tried at the same time but later told the petitioner
that the state would try the aggravated robbery case first, (4) the attorney could not
remember when he received the plea offer from the state, (5) the attorney did not
immediately take the offer to the petitioner, (6) the attorney told the petitioner that he
would have to go to trial if he did not accept the offer, (7) the attorney admitted that the
state did not file notice of its intent to seek enhanced punishment and that he did not
object to this, (8) the attorney allowed the petitioner to plead guilty to a sentence above
his range, but he did not have any authority for allowing the petitioner to do so, (9) the
attorney only met with the petitioner once, and (10) the attorney did not inform the
petitioner of the state’s offer until the day of the hearing.
The petitioner makes no argument with respect to how these alleged
actions by his attorney were deficient or how he was prejudiced by them. We note that
some of the allegations listed in the petitioner’s statements are directly contradicted by
the proof in the record. In any event, the statements do not rise to the level of
allegations that would entitle the petitioner to relief because the petitioner has not
shown that the evidence preponderates against the trial court’s finding of effective
assistance.
In consideration of the foregoing and the record as a whole, we affirm the
trial court’s denial of post-conviction relief.
9
__________________________
Joseph M. Tipton, Judge
CONCUR:
___________________________
Gary R. Wade, Presiding Judge
___________________________
Thomas T. Woodall, Judge
10