IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE
January 4, 2000
OCTOBER SESSION, 1999 Cecil Crowson, Jr.
Appellate Court Clerk
ALICIA SHAYNE LOVERA, *
* C.C.A. No. 03C01-9901-CC-00030
Appellant, *
* SEVIER COUNTY
vs. *
* Hon. REX H. OGLE, Judge
STATE OF TENNESSEE, *
* (Post-Conviction)
Appellee. *
For the Appellant: For the Appellee:
Douglas A. Trant Paul G. Summers
Attorney for the Appellant Attorney General and Reporter
900 S. Gay Street, Suite 1502
Knoxville, TN 37902 Ellen H. Pollack
Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243-0493
Alfred C. Schmutzer, Jr.
District Attorney General
Sevier County Courthouse
125 Court Avenue, Suite 301-E
Sevierville, TN 37962
OPINION FILED:
AFFIRMED
David G. Hayes, Judge
OPINION
The appellant, Alicia Shayne Lovera, appeals from the trial court’s denial of
her petition for post-conviction relief. In November 1994, the appellant was charged
with the first degree premeditated murder of her husband Kelly J. Lovera. A Sevier
County jury found the appellant guilty of the offense charged. Prior to the
sentencing hearing, the appellant, pursuant to a negotiated plea with the State, pled
guilty to first degree murder in return for a sentence of life with the possibility of
parole. The appellant filed a pro se petition for post-conviction relief, alleging, inter
alia, ineffective assistance of trial counsel. The petition was amended following
appointment of counsel. After a hearing on the petition, the Sevier County Criminal
Court dismissed the petition. This appeal follows.
After review of the record, we affirm.
Background
On November 6, 1994, United States Park Rangers located a Jeep at the
bottom of a one hundred foot embankment on U.S. Highway 441. Inside the Jeep,
they discovered the body of the deceased, Kelly J. Lovera. The deceased had
multiple wounds to the head. An investigation ensued resulting in the arrest of the
appellant and Brett Rae, the co-defendant in this case and the alleged lover of the
appellant.
The appellant and her co-defendant were jointly tried. A jury found both the
appellant and her co-defendant guilty of first degree murder. Although the death
penalty was not sought, the State had provided notice that it was seeking a
sentence of life without the possibility of parole. On the morning of the sentencing
2
hearing, the appellant entered into an agreement with the State which provided that
she would plead guilty to first degree murder in exchange for a sentence of life with
the possibility of parole. In return, the State relinquished the right to seek a
sentence of life without parole. The judgment form also reflects that the appellant
waived her right to file either a direct appeal or a collateral post-conviction attack of
her conviction.1
On March 12, 1997, the appellant filed the instant petition for post-conviction
relief. The petition may be generally summarized as alleging (1) trial counsel was
ineffective for failing to advise her of issues viable for direct appeal of her conviction;
(2) her plea was coerced and involuntary; and (3) that her conviction is void as
violating the protection against double jeopardy.2
A hearing was held on the petition on December 17, 1998. The appellant
testified that she was originally represented by retained counsel, who “did absolutely
no preparation for almost nine months.” After retained counsel was permitted to
withdraw, the court appointed the Office of the Public Defender as substitute
counsel. The appellant explained that she only met with the public defender
“several times.” She admitted that “I know he tried to get it delayed so that he could
have more time to prepare. As far as what he actually did to prepare I’m not
knowledgeable enough to know exactly what he did.” The appellant continued to
provide illustrations of her counsel’s alleged ineffectiveness including, his advice
encouraging her to testify at trial, his failure to object to hearsay testimony, and his
failure to prepare for the sentencing hearing. She conceded that counsel did advise
1
Neither a tran scrip t of the guilty ple a hea ring n or a c opy of the p lea ag reem ent is
prov ided in the re cord on ap pea l.
2
Included within the petition are numerous claims of error, including but not limited to:
(1) The appellant was questioned by police after she requested counsel; (2)
Bruton violations; (3) Brady issues; (4) failure to grant change of venue; (5)
prosec utorial m iscondu ct; (6) failure to object to h earsay; (7 ) denied rig ht not to
testify; (8) trial counsel misstated facts; (9) search warrant invalid; (10)
unconstitutional search of her person; (11) range of punishment jury instruction.
3
her that issues regarding the search of her apartment could be raised on appeal in
addition to challenging the results of the “Luminol” test introduced at trial which
established the presence of blood at the crime scene.
With regard to her guilty plea, the appellant stated that, when first
approached by counsel about the possibility of a plea immediately following the
jury’s verdict, she informed counsel that she “couldn’t answer him . . .she couldn’t
even think much less give him an answer.” The next morning, when counsel again
questioned the appellant about the plea, she responded that “I thought I probably
ought to keep whatever rights I had left. . . .” The appellant stated, that counsel
informed her that the State had new evidence against her and that if she accepted
the plea bargain she would be able to see her children within the next ninety days.
She averred that trial counsel informed her that she “would probably do eighteen”
years on a sentence of life with the possibility of parole and that she later discovered
that she would have to serve a minimum twenty-five years before reaching parole
eligibility. The appellant conceded that she agreed to accept the plea agreement,
however, she did “not really” understand that she was relinquishing her right to a
direct appeal, post-conviction relief, and habeas corpus relief. She admitted that
she understood that she was pleading guilty to the offense although she had been
found guilty by a jury, specifically she inquired if she could plead no contest instead
of pleading guilty. The appellant admitted that the trial court informed her of her
rights, including her right to appeal. She stated that, in hindsight, she “gained
absolutely nothing” from her plea and that “[she] would have been a whole lot better
off to let you all give me life without parole, because then I wouldn’t have waived all
my rights.”
On cross-examination, the State elicited from the appellant that she was an
honor student in high school and, after graduating, attended college for one and
one-half years. She conceded that her trial counsel filed an interlocutory appeal on
4
the search and seizure issue and that he had informed her that this issue was
meritorious for appeal.
The appellant’s trial counsel testified on behalf of the State. Counsel stated
that, after being appointed to represent the appellant, he met with her “on numerous
occasions” to discuss her case, specifically on the issue of her testifying. Counsel
stated that he “never told her she had to testify” and that “[s]he never told [him] she
did not want to testify.” Indeed, he remarked that the appellant “always did want to
get up and tell her side of the story.” Counsel explained that, after the guilty verdict
had been returned by the jury, he discussed a plea agreement with the State
wherein the appellant would agree to a sentence of life with the possibility of parole
in exchange for waiving the right to challenge the conviction on appeal. When he
presented the offer to the appellant, counsel reviewed “specific issues” that were
cognizable on appeal. The appellant agreed to relinquish her right to appeal in
exchange for accepting a sentence of life with parole. Counsel informed her that
“an earliest eligibility for parole [was] at twenty-five years.” As an additional
condition of her acceptance, although not specifically a part of the plea, an
arrangement was made for the appellant to visit with her children on at least one
occasion within ninety days following entry of her plea. Counsel stated that the trial
court also clearly advised the appellant of the effect of her plea for future challenges
to the conviction.
Regarding potential aggravating and mitigating proof for the sentencing
hearing, counsel remarked:
. . .we discussed this was a difficult case to mitigate after the jury had
rendered their judgment. It’s unlike most other cases I’ve ever dealt
with where you’ve got an obvious explanation for you client’s behavior
and somehow you can explain that to the jury.
But basically, you know, we had prepared, were prepared to present
evidence of course of the untimely and unfortunate death of Brent Mills
who she was very close to as well as other evidence regarding her, the
person she was. That was presented, a lot of it, in the guilt/innocence
5
phase, as to just what an outstanding person she was particularly in
high school as I remember. And we had teachers of hers in high
school that would testify as to her outstanding character in high school.
Her current employer at the time just prior to her incarceration that
would testify as to her good character, that she was a good worker and
that sort of thing.
After hearing closing argument of respective counsel, the trial court stated its
findings of fact and conclusions of law on the record:
. . .[T]he issue is whether or not she knowingly and voluntarily waived
her rights to appeal and agreed to a life sentence as opposed to life
without parole. At that juncture right or wrong she stood guilty of First
Degree Premeditated Murder. The evidence that had gone into the
trial of this case was overwhelming against her. She was caught in lie
after lie and in all candor the Court would have to say that her memory
at least is pretty selective as she sits here today. She says that she
didn’t understand this and she didn’t understand that but she was the
one that brought up about a nolo plea to her attorney. The Court finds
she is very intelligent, that she knew what was going on.
...
Prior to taking this plea agreement,. . . this Court went through those
rights very specifically with Mrs. Lovera and asked her and gave her
every opportunity to discuss with the Court those issues. And she said
certainly in there that [counsel] had done the best that he could. . . .
...
But to say . . . that [counsel] should have guaranteed her any outcome
on appeal certainly is not correct. . . .[I]n effect it is asking [counsel] . . .
to be a fortune teller. And unfortunately for Mrs. Lovera she had to
make a decision then. She had to either go to a hearing on life without
parole or take a life sentence. . . . I am satisfied that she understood
what was going on. Obviously she wasn’t happy . . . but happy is not
what first degree murder trials are about. She made some tough
choices both during the trial, she got caught in some very horrendous
lies that destroyed her defense. And she comes back in here today
and tries to lie again.
...
And it is clear that Mrs. Lovera always has a lot to say but she has
always got caught up in her own misstatements and she has here
today. Her evidence is not credible as to what she says [counsel] did
or did not tell her. The Court finds that [counsel] has been very
credible and did everything that he could do. He fully advised her of
her right to appeal. She and I discussed that and she waived her
rights to appeal. She and I discussed that and she waived her rights
to appeal in exchange for a life sentence and that’s what she got.
The Court finds that the petition for post-conviction relief and or
habeas corpus is completely without merit and the same is hereby
dismissed . . . .
6
Analysis
I. Waiver of Right to Post-Conviction Remedies
As part of the appellant’s guilty plea, she agreed to waive her right to both a
direct appeal of her conviction and her right to pursue post-conviction remedies.
Obviously from the posture of this case, this waiver provision was not enforced
against the appellant as she did seek post-conviction relief. Thus, the initial inquiry
before this court is whether this proceeding was properly entertained by the trial
court and, subsequently, whether this cause is properly before this court. After
consideration of constitutional principles, we conclude that this case is properly
before this court.
Although a criminal defendant may waive the right to a direct appeal as part
of a plea agreement,3 we conclude today that a defendant may not waive his or her
right to post-conviction remedies as part of a plea agreement. But see State v.
John Joseph Villaneuva, C.C.A. No. 93 (Tenn. Crim. App. at Knoxville, May 30,
1991), perm. to appeal denied, (Tenn. Jan. 6, 1992) (upholding waiver of right to
raise ineffective assistance of counsel claim in post-conviction proceeding). Post-
conviction proceedings are significantly different from a direct appeal. Unlike a
direct appeal, a post-conviction proceeding provides a means of collaterally
attacking the constitutional validity of a conviction. See generally Tenn. Code Ann.
§ 40-30-203 (1997). And, although, generally, a guilty plea entered on the
3
Plea bargains are contractual in nature and therefore, the “negotiated plea represents a
bargained for quid pro quo.” See Unite d Sta tes v. Esc am illa, 975 F.2d 568, 571 (9 th Cir. 1992 ).
Thu s, a p rovis ion in th e plea agre em ent w aiving the d efen dan t’s righ t to pu rsue a dire ct ap pea l is
a barga ined for ele men t of the agr eem ent. See United States v. Gonzalez, 981 F.2d 1037 (9 th Cir.
1992). T his provisio n is enfor ceable a s long as the waive r is know ing and vo luntary. See State
v. McKissack, 917 S.W .2d 714, 715 (Tenn. Crim . App. 1995) (footnote omitted). See, e.g., United
State s v. M arin , 961 F.2d 493, 496 (4 th Cir. 1992 ); United States v. Bolinger, 940 F.2d 478, 480
(9 th Cir. 1991).
7
competent advice of counsel will be held to waive the majority of the fundamental
protections afforded by the Constitution,4 a guilty plea cannot waive jurisdictional
defects. Additionally, a guilty plea cannot waive those constitutional challenges to
the resulting conviction if the plea itself was not knowingly and voluntarily entered
upon competent advice of counsel. If post-conviction remedies could be waived, a
defendant would be precluded from challenging an involuntary guilty plea or one
entered upon the ineffective assistance of counsel. It would be unconscionable and
against the public policy of this state to insulate a conviction from such challenges.
Accordingly, we hold that the portion of the judgment in the case sub judice waiving
the appellant’s right to make application for post-conviction relief is void and
unenforceable. See, e.g., Majors v. State, 568 N.E.2d 1065, 1067-1068 (Ind. Ct.
Ap. 1991); Hood v. State, 890 P.2d 797, 798 (Nev. 1995). Cf. United States v.
Astacio, 14 F. Supp.2d 816, 818-819 (E.D. Va. 1998) (holding, even where a
defendant has waived his statutory right to bring a § 2255 motion, he may
nonetheless raise claims of ineffective assistance of counsel and the voluntariness
of the guilty plea) (citing United States v. Wilkes, 20 F.3d 651, 652- 653 (5 th Cir.
1994); United States v. Pruitt, 32 F.3d 431, 432-433 (9 th Cir. 1994); United States v.
Abarca, 985 F.2d 1012, 1014 (9 th Cir. ), cert. denied, 508 U.S. 979, 113 S.Ct. 2980
(1993)).
II. Effect of Guilty Plea
Preliminary to our review of the voluntariness of the guilty plea, we address
the precise posture of this case. Based upon her entry of a guilty plea following a
jury verdict, the appellant argues that her conviction violates the protections against
4
A guilty plea made voluntarily, understandingly, and knowingly effectively constitutes a
waive r of th e con stitutio nal rig hts a gains t com puls ory se lf-inc rim inatio n, the right to conf ront o ne’s
accusers, and the right to trial by jury, and, except under limited exceptions, the right to direct
appea l. See gene rally Tenn. R. Crim . P. 11(c); 37(b)(2).
8
double jeopardy. The Fifth Amendment to the United States Constitution and Article
1, Section 10 of the Tennessee Constitution protects the accused (1) against a
second prosecution after an acquittal; (2) against a second prosecution after
conviction; and (3) against multiple punishments for the same offense. State v.
Denton, 938 S.W.2d 373, 378 (Tenn.1996). Double jeopardy becomes a factor only
when the defendant faces retrial or multiple punishments for the same crime.
Accordingly, the appellant’s argument based on the constitutional protection against
double jeopardy is without merit.
There are no limitations under the Tennessee Constitution, Criminal Code, or
Rules of Court which would per se prohibit the entry of a guilty plea after a jury
verdict had been returned.5 A guilty plea is in itself a conviction and is conclusive as
to the defendant’s guilt. Thus, under the circumstances before us in this case, we
construe the appellant’s subsequent entry of a guilty plea to effectively supercede
the jury verdict of first degree premeditated murder. 6 Cf. Haskins v.
Commonwealth, 500 S.W.2d 407, 408-409 (Ky. App. 1973). But see Daye v.
Commonwealth, 467 S.E.2d 287, 289 (Va. Ct. App. 1996) (entry of guilty plea after
jury verdict is moot). The effect of the guilty plea is to nullify, for all practical
purposes, the guilt phase of the trial. Thus, when examining her guilty plea for
constitutional infirmities, the reviewing court places the appellant in the same
posture as if she had not proceeded to trial.
5
The provision in Rule 11 requiring notice to the court of the existence of a plea
agreem ent prior to trial is n ot a bar to e ntering a g uilty plea but rath er, “subs ection (e) (5) . . .
permits the trial judge to impose reasonable pretrial time limits on the court’s consideration of plea
agreements, a practice which will allow maximum efficiency in the docketing of cases proceeding
to trial on pleas of not guilty.” See Advisory C omm ission Co mm ents, Te nn. R. C rim. P. 11 .
6
It is without doubt that plea bargaining is an important and widely utilized tool of the
crimina l justice syste m for resolving p rosecu tion quick ly and econ omic ally. See Blackledge v.
Allison, 431 U.S. 63, 97 S.Ct. 1621 (1977). By entering into a plea agreement, a defendant
admits guilt of the substantive offense often, as in the present case, in excha nge for a more
lenient sen tence. T he cou rts mu st enforc e the def endan t’s prom ise, unless otherwis e show n to
be involuntary or unknowingly entered, in order to carry out the policies that underlie plea
bargain ing. See gene rally People v. Fearing, 442 N.E.2d 939, 941 (Ill. App. 1982).
9
III. Post-Conviction Claims
Based upon our ruling that the appellant’s conviction for first degree murder
stems from her plea of guilty to that offense rather than from a jury verdict, our
review is limited to the voluntary nature of the plea and the ineffective assistance of
counsel regarding the plea. Specifically, in her petition, the appellant alleges that
double jeopardy bars her conviction and her plea was involuntary because counsel
had failed to advise her of the waiver of her constitutional rights, counsel failed to
inform her of viable issues for appeal, counsel misinformed her as to her parole
eligibility date, counsel failed advise her of and failed to prepare for a sentencing
hearing, and she was coerced into entering the plea out of fear of not being able to
visit with her children.
A trial court’s findings of fact in a post-conviction hearing are conclusive on
appeal unless the evidence in the record preponderates against those findings.
See Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990); Clenny v. State, 576
S.W.2d 12, 14 (Tenn. Crim. App. 1978), cert. denied, 441 U.S. 947, 99 S.Ct. 2170
(1979). Allegations of deficient performance of counsel and possible prejudice to
the defense are mixed questions of law and fact. See State v. Brenda Anne Burns,
No. W1996-0004-SC-R11-CD (Tenn. at Jackson, Nov. 8, 19990 (for publication).
Although we perform a de novo review of the issue, the appellant must still establish
his or her allegations by clear and convincing evidence. See Tenn. Code Ann. § 40-
30-210(f) (1997).
Once a guilty plea has been entered, effectiveness of counsel is relevant only
to the extent that it affects the voluntariness of the plea. In this respect, such claims
10
of ineffective assistance necessarily implicate the principle that guilty pleas be
voluntarily and intelligently made. See North Carolina v. Alford, 400 U.S. 25, 31, 91
S.Ct. 160, 164 (1970).
In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366 (1985), the United States
Supreme Court addressed the issue of alleged involuntary guilty pleas resulting from
erroneous or negligent advice by trial counsel. The result reached was the
formulation of a merger of the Strickland test for ineffective assistance and the
traditional requirements for a valid guilty plea. The Strickland test provides that, to
prevail on a claim of ineffective counsel, the defendant must establish that (1) the
services rendered by counsel were deficient and (2) he/she was prejudiced by the
deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 2064 (1984); Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993). As
applied to guilty pleas, the first prong, deficient performance remains the same, i.e.,
counsel failed to exercise the customary skill and diligence that reasonably
competent counsel would provide under similar circumstances. See Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975); Walton v. State, 966 S.W.2d 54, 54-55 (Tenn.
Crim. App. 1997). However, the prejudice requirement focuses on whether
counsel’s ineffective performance affected the outcome of the plea process. Hill v.
Lockhart, 474 U.S. at 58, 106 S.Ct. at 370. In other words, in order to satisfy the
prejudice requirement, the defendant must show that there is a reasonable
probability that, but for counsel’s errors, he would not have pled guilty and would
have insisted on going to trial. Id.; See also Walton, 966 S.W.2d at 55.
Generally, the “prejudice” inquiry will closely resemble the inquiry engaged in
by courts reviewing ineffective assistance challenges to convictions obtained
through a trial. Hill v. Lockhart, 474 U.S. at 59, 106 S.Ct. at 370. Indeed, the focus
is not only upon the actual “error” committed by counsel, but whether had counsel
acted competently (1) would counsel have changed his recommendation as to the
11
plea or (2) would the competent performance have been likely to change the
outcome of a trial. See Hill v. Lockhart, 474 U.S. at 59, 106 S.Ct. at 370-371.
In the present case, the post-conviction court concluded that the appellant
received the competent assistance of counsel and, consequently, entered her plea
knowingly and voluntarily. A trial court’s findings of fact in a post-conviction hearing
are conclusive on appeal unless the evidence in the record preponderates against
those findings. See Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Clenny
v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978), cert. denied, 441 U.S. 947, 99
S.Ct. 2170 (1979).7 The appellant has failed to include the transcript of prior
proceedings, specifically a transcript of the guilty plea proceeding, in the record
before this court. See Tenn. R. App. P. 24(b). This Court, therefore, is precluded
from conducting an appropriate review on appeal. See State v. Ballard, 855
S.W.2d 557 (Tenn.1993). Accordingly, "[i]n the absence of an adequate record on
appeal, this court must presume that the trial court's rulings were supported by
sufficient evidence." State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App.1991).
Additionally, in evaluating the knowing and voluntary nature of a guilty plea,
the United States Supreme Court held, "[t]he standard was and remains whether the
plea represents a voluntary and intelligent choice among the alternative courses of
action open to the defendant." North Carolina v. Alford, 400 U.S. at 31, 91 S.Ct. at
164. In making this determination, the reviewing court must look to the totality of
the circumstances. State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App.1995),
perm. to appeal denied, (Tenn.1996). See also Chamberlain v. State, 815 S.W.2d
7
Notwithstanding this general rule, in State v. Brenda Anne Burns, No. W1996-00004-SC-
R11-CD (T enn. at Jackson, No v. 8, 1999) (for publication), our supreme court held that “[c]ases
that involve mixed questions of law and fact are subject to de novo review.” (citing Harries v.
State , 958 S.W .2d 799, 802 (Tenn. Crim . App. 1997)). Specifically, the supreme court
determined that issues involving alleged deficient performance of counsel and possible prejudice
to the defe nse are mixed question s of law an d fact. See State v. Brenda Anne Burns, No.
W1996-00004-SC-R11-CD. Although we perform a de novo review of the issue, the appellant
mus t still establish his o r her allega tions by clea r and co nvincing e vidence . See Tenn. Code Ann.
§ 40-30-210(f) (1997).
12
534, 542 (Tenn. Crim. App.1990), perm. to appeal denied, (Tenn.1991). Indeed, “a
court charged with determining whether ... pleas were "voluntary" and "intelligent"
must look to various circumstantial factors, such as the relative intelligence of the
defendant; the degree of his[/her] familiarity with criminal proceedings; whether
he[/she] was represented by competent counsel and had the opportunity to confer
with counsel about the options available to him[/her]; the extent of advice from
counsel and the court concerning the charges against him[/her]; and the reasons for
his[/her] decision to plead guilty, including a desire to avoid a greater penalty that
might result from a jury trial.” Blankenship v. State, 858 S.W.2d 897, 904
(Tenn.1993).
With these criteria considered, we conclude that the record supports the trial
court’s findings that counsel had informed the appellant of her right to appeal
(including possible issues for appeal), provided relevant sentencing information, and
properly advised her regarding the waiver of her constitutional rights. The record
supports the trial court’s conclusion that the appellant’s guilty plea was knowingly
and voluntarily entered upon the competent advice of counsel.
After a full consideration of the record, we conclude that the appellant has
failed to establish either prong of the Hill v. Lockhart test. For these reasons, we
affirm the judgment of the trial court.
____________________________________
DAVID G. HAYES, Judge
13
CONCUR:
_______________________________________
JOSEPH M. TIPTON, Judge
_______________________________________
DAVID H. WELLES, Judge
14
Alicia Shayne Lovera v. State
Combined Opinion