IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
NOVEMBER 1998 SESSION
March 11, 1999
Cecil W. Crowson
JERRY E. BIGGS, * Appellate Court Clerk
C.C.A. # 01C01-9711-CR-00514
Appellant, * DAVIDSON COUNTY
VS. * Hon. Cheryl Blackburn, Judge
STATE OF TENNESSEE, * (Post-Conviction)
Appellee. *
For Appellant: For Appellee:
Jeffery S. Frensley John Knox Walkup
211 Third Avenue North Attorney General and Reporter
P.O. Box 198288
Nashville, TN 37219-8288 Daryl J. Brand
Senior Counsel
Criminal Justice Division
425 Fifth Avenue North
Nashville, TN 37243
Roger Moore
Assistant District Attorney General
Washington Square, Suite 500
222 Second Avenue North
Nashville, TN 37201
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
The petitioner, Jerry E. Biggs, appeals from the trial court's denial of
his application for post-conviction relief. In this appeal of right, the single issue
presented for review is whether the trial court erred by concluding that the guilty plea
of the petitioner was knowingly and voluntarily made.
We affirm the judgment of the trial court.
On January 12, 1996, the petitioner entered a guilty plea to theft of
more than $1,000 but less than $10,000, a Class D felony. As a part of the plea
agreement, the state voluntarily dismissed other burglary and theft charges. The
petitioner received a Range II, five-year sentence, to be served in the Department of
Correction. At the time, the petitioner was on parole for a prior sentence for
aggravated robbery and faced detainers in Williamson County, Tennessee, Florida,
and Alabama.
In this petition for post-conviction relief, the petitioner contends that his
counsel was ineffective for advising him that, because the parole violation hearing
had not yet been held, his sentence could be concurrent if the judgment form was
silent in that regard. The petitioner claims that he would not have entered into the
plea agreement had he understood that the sentences would not be concurrent.
At the conclusion of the evidentiary hearing, the trial court accredited
the testimony of the petitioner's trial counsel, a veteran public defender, who stated
that his file records would have reflected any request on the part of the petitioner for
a concurrent sentence. The trial judge ruled that there was a "clear discussion in
the guilty plea transcript of the sentence and how [] by operation of law it would be
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consecutive to any unfinished sentences of the petitioner." The trial court concluded
that the plea was knowingly and voluntarily made and more specifically ruled that
"the petitioner was not credible on any issue regarding [his attorney's]
representation."
In this appeal, the petitioner argues that the sentencing court failed to
address the consecutive sentencing issue during the submission proceeding and
had a duty to do so. The state argues to the contrary.
When a petitioner seeks post-conviction relief on the basis of
ineffective assistance of counsel, he must first establish that the services rendered
or the advice given was below "the range of competence demanded of attorneys in
criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Second, he
must show that the deficiencies "actually had an adverse effect on the defense."
Strickland v. Washington, 466 U.S. 668, 693 (1984). Should the petitioner fail to
establish either factor, no relief is warranted. As to guilty pleas, the petitioner must
establish a reasonable probability that, but for the errors of his counsel, he would
not have entered the plea and would have insisted on going to trial. Hill v. Lockhart,
474 U.S. 52, 59 (1985). In Henderson v. State, 419 S.W.2d 176, 178 (Tenn. 1967),
our supreme court ruled that a plea agreement which included concurrent
sentencing for an offense committed while the defendant was on parole for a prior
crime, rendered the plea void. When the accused enters a plea wherein all parties
agree to a lesser sentence than is permissible by law, "the accused should be
allowed to withdraw his plea." Id.; see State v. Burkhart, 566 S.W.2d 871 (Tenn.
1978); Terry L. Charlton v. State, No. 01C01-9701-CC-00002 (Tenn. Crim. App., at
Nashville, Aug. 20, 1998). In each of these cases, the petitioner and the other
parties clearly agreed to concurrent sentencing.
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Under our statutory law, the petitioner bears the burden of proving his
allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). On
appeal, the findings of fact made by the trial court are conclusive and will not be
disturbed unless the evidence contained in the record preponderates against them.
Brooks v. State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on
the petitioner to show that the evidence preponderates against those findings.
Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).
The overriding determination on the validity of a guilty plea rests upon
whether it was knowingly and voluntarily entered. State v. Neal, 810 S.W.2d 131,
139-40 (Tenn. 1991), overruled in part by Blankenship v. State, 858 S.W.2d 897
(Tenn. 1993). If the proof establishes that the petitioner was aware of his
constitutional rights, he is entitled to no relief. Johnson v. State, 834 S.W.2d 922,
926 (Tenn. 1992). "[A] plea is not 'voluntary' if it is the product of '[i]gnorance, [or]
incomprehension ....'" Blankenship, 858 S.W.2d at 904 (quoting Boykin v. Alabama,
395 U.S. 238, 242-43 (1969)).
While it could have been more clearly stated, the transcript of the guilty
plea hearing suggests that "by operation of law" the sentence would be consecutive.
The state and the petitioner agreed that the sentencing court would leave the
judgment form silent on the issue of consecutive sentence, apparently to
accommodate his request to receive a Department of Correction sentence rather
than a sentence with the Corrections Corporation of America. Obviously, the
petitioner demonstrated knowledge on the subject: "I'm a hundred percent sure
TDOC will accept me." From this and other portions of the record, we are
persuaded that the petitioner knew and understood the terms of the plea agreement.
That is, that he was willing to accept the risks of the silent record. Thus, the
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petitioner has not demonstrated his claim by clear and convincing evidence.
In summary, the evidence does not preponderate against the findings
made by the trial court at the conclusion of the evidentiary hearing. Accordingly, the
judgment is affirmed.
________________________________
Gary R. Wade, Presiding Judge
CONCUR:
_____________________________
John H. Peay, Judge
_____________________________
Jerry L. Smith, Judge
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