### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs A ugust 14, 2002 JOHN DAVID NEB LETT v. STATE OF T ENNESSEE Direct Appeal from the Circuit Court for Montgom ery County No. 40000562 John H. Gasaway, III, Judge

No. M2001-02450-CCA-R3-PC -Filed September 16, 2002

The petitioner originally

pled guilty to ag gravated vehicular homicide, vehic ular assault, and second offense drivi ng on a revoked license. The trial court sentenc ed him to an effective sentence of twenty-four

ye ars. The

effec tive sente

nce wasaffirmed on direct appeal . The pet itioner so ught pos tconviction relief, alleging an unknowing g uilty plea and ineff

ective assistance of

counsel. The postconviction court denied

relief. In thi s appeal, the petitioner contends the post-conviction court erred in summarily dismissing the petition based solely upon the g uilty plea transcript. We disag ree and affirm the judgment of the post-conviction court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed J OE G. R ILEY , J., delivered the opinion of the court, in which D AVID G. H AYES and N ORMA M C G EE O GLE , JJ., joined. Grego ry D. Smith, Cla

rksville, Tenness ee, for

the appe llant, John D avid Neb lett. Paul G. Summers, Attorney Gene ral andReporter; Kim R. Helper, Assistant Attorney Gene

ral; John Wesley Carney , Jr., Distr

ict Attorn ey Genera l; and C. Daniel Brollier, Assistant District Attorney General, for the appellee, State of Te nnessee.

OPINION We summarize the following underly ing facts fro m this court’s opinion in the petitioner’s direct appeal. See Statev. John D. Neblett , C.C.A. No . 01C01-98 05-CC-002 31, 1999 Te nn. Crim. App. LEXI S 934 (Tenn. Crim. App. Sept. 24, 1999, at Nashville), pe rm. to app . denied (Tenn. 2000). In August 1997, the intoxicated petitioner failed to observe a highway

stop sign and collided witha car driven by

Glenda Atkins. Glenda Atkins's husband, a pas senger, was killed. Glenda Atkins was hospitali zed and required surgery to remove glass from her leg. Petitioner a dmitted-2-

driving while intoxicated and acknowledged his responsibility for Stephen Atkins's death in a statement to the Tennessee Highway Patrol. Petitioner had three prior DUI convictions in addition to several other misdemeanor convictions. As stated, petitioner pled g uilty to agg

ravated vehicular ho micide, vehicular assault, and second offense driving on a revoked license and rec eived a n effective sentence of twenty -four ye ars.

ANALYSIS On app eal, the petitioner contends the post-conviction court improperly dismissed his petition for post-conviction relief by

relying strictly upon the

transcript of the guilt y plea sub miss ion h earing. Based upon the record before

this court, we consider the allegation inaccur ate and otherwise without merit. A. Procedural History of this Appeal Peti tion er's counsel filed his brief on February 26, 2002. The

basic pr emise set forth in the brief was that the post-conviction court erred in dismissing the post-conviction petition based upon its examination of the guilty plea tra nscript withoutgiving the petitioner the opportunity to be heard. On March 28, 2002, the

state fil ed a motio n in this court indicating there was an evidentiary hearing in the post-con

viction c ourt, and

the state sought to suppleme

nt the re cord with

a transc ript of thi s evidentiary he aring. We granted the motion. A tran sc ript of the

evidenti ary

hearing was subsequently

filed, wh ich tran script re

flects a hearing in which b oth the petitioner and his trial counsel testified; it was agreed a transcript of the guilty plea submission hearing would subsequently be filed and considered by the post-conviction court; and counsel would then be allowed to argue the case. The parties, on a subsequent date, appeared before thepost-conviction court and were advised the guilty plea transcript had been filed and reviewed by

the court. They

declined the opportunity to review the g uilty plea transcript prior to the post-conviction court's ruling. Present appellate c ounsel was also petitioner's counsel in the proceedings below. The state filedits appellate brief on May 16, 2002, and made reference to the suppleme ntal record conta inin g the tr anscri pt of t he evi denti ary hearin g. A repl y brief was not fi led by pet itio ner's counsel. The case was then submitted to this panel for determination. It, therefore, appears the basis of re lief sought by the

petitione r in his brief, namely , summary dismissal without the

opportuni

ty to be hear d, is pate ntly without me

rit. We fur

ther note the absence of a reply brief seeking relief on any other basis. Nevertheless, the record pre sently before the court is adequate for us to review the post-c onv iction court's determinations regarding ineffective assistance of

counsel and voluntariness of the guilty plea. We, there

fore, pr oceed w ith our an aly sis.-3-

B. Standard of Review The trial judge's findings of fact on post-conviction hearings are conclusive on appealunless the evidence preponderates otherwise. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). The trial court’s findi ngs of fact are afforded the weight of a jury

verdict, and this court is bound by the trial court’s findings unless the evidence in the rec ord preponderates agains t those findings. Henley v. State , 960 S.W.2d 572, 578 (Tenn. 1997). For a petitio n er to successfully overturn a conviction based on ineffective assistanc e of counsel, the petitioner must first establish that the services rendered or the advice givenwas below “the range of competence de man de d of attorneys in cr iminal cases.” Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Sec o nd, the petitioner must show that the deficiencies “actually had an adverse effect on the defe nse.” Strickland v. Washington , 466 U.S. 668, 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Petitioner also con tends his pl ea was involuntary and unknowing. Our supreme court has state d the f ollo wing:

The cases of Boy

kin v. Ala bama and State v. Mackey

are the landmark

constitutional cases for analyses of g

uilty pleas. Boy

kin v. Ala bama , 395 U.S. 238, 89 S . C t. 170 9, 2 3 L. Ed. 2d 274 (1969) (federal standard); Statev. Mackey , 553 S.W.2d 33 7 (Tenn. 1977) (st ate standard ). In Boy

kin , the Uni ted States Supreme Court held that before a trial judge ca n accept a guilty plea , there must be anaffirmative showing that it was given intelligently

and vo lu nt ar il y. Id . at 242, 89 S. Ct. at 1711 , 23 L. Ed. 2d at 279. I n order to find that the plea was entered "intelligently " or "voluntarily ," the court must "canvass[ ] the matter with the accused to make su

re he ha s a full un derstanding of w hat the pl ea conn otes and o f its consequences ." Id . at 244, 89 S. Ct. at 1712, 23 L. Ed. 2d at 280 (emphasis added). Likewise, in Mackey , this Court held t hat "t he reco rd of ac ceptan ce of a d efenda nt's plea of gu il ty m us t a ff

ir ma ti ve ly d em on st ra te th at hi s d ec is io n w as bo th vo lu nt ar y an d knowledgeable, i.e., that he has been made awareof the significant consequences of such a plea . . . .” 553 S.W.2d at 340.
State v. Pettus , 986 S.W.2d 540, 542 (Tenn. 1999). C. Post -Convict

ion Hearing

Testim ony
The petitione

r testified trial co

unsel met with him

only once in the jail prior to the guilty plea; he signed document s without r

eading them bec ause

he was without his eyeg

lasses; he conceded that he wa s a wa re he wa s w ai vi ng hi s r ig ht to ju ry t ri al wh en he pl ed gu il ty; and he sta ted that if counsel had explained that sentencing would have been conducted by the judge

even if he had been found guilty at a jury trial, he

would have pr oceed ed to trial. On cross-examination, the petitioner-4-

conceded he expressed his desire to plead guilty from the time he was arrested and was aw are of the charges in which he was pleading guilty at the time he executed the plea agree ment. The petitioner, however, stated counsel never explained the potentialranges of punishment, and petitioner thought he would receive a twelve-y ear sentence.
Trial counsel testified he could not recall the numbe r of times he met with petitioner. How ever, counsel testified the case was presented by information at petitioner's behest be caus e petitioner "wante d to plead

guilty ," "g o to prison ," and " get it over with" without having to await the action of the grand jury . Counsel further testified he explained the guilty plea f ormto the petitioner, including the waiver of a jury trial. Counsel further explainedit was his n ormal pra ctice to e xplain the range of punishm

ent, and h e was “a bsolutely [certain ]” he did so

on this occ asion. Cou

nsel said the petitioner never informed him he was unable to rea d without glasses.
The transcript of the guilty plea submission heari ng rev eals t hat the tr ial cour t thoroug hly explained all aspects of the guilty plea to petitioner, including, but not limited to, a discussion of the follo wing: (1) an " open plea , meaning there is no recomm

ended se ntence. It will be up to the judge ;" (2) a range of punishment of fifteen to twenty -five ye ars for aggra vatedvehicular homicide, two to f our year s for v ehicular assault, and up to eleven months and twenty -nine days for second offense driving on a revoked license ; (3) the waiver of various rights by pleading guilty , including the right to trial by jury; and (4 ) w he th er pe ti ti on er wa s " fr ee ly a nd vo lu nt ar il y" p le ad in g gu il ty .
Petitioner indicated an appropr

iateresponse to each inquiry , thereby indica ting his understanding of his rights and desire to plead guilty . The trial c ourt, immediately after its colloquy with the petitioner, found the plea to be "freely , voluntarily and knowing ly" ente red.
D. Our Determination The post- convicti on court, after r eceivin g the ev

idence a t the post- convic tion evidentiary hearing and after examining the transcript of the guilty plea

submission hearing, found that petitioner understood all the circumstances surrounding his guilty plea, including the possible penal ties that-5-

he faced. The post-conviction court further found that

petitioner had not established any deficiency by trial counsel and

further failed to establish any pr

ejudice as a result of trial counsel's per formance.
The evidenc e befor

e this cou

rt does not prepond

erate a gainst t he findin gs of the

postconviction court. Accordingly , we affirm the judgment of the post-conviction court.

___________________________________ JOE G. RILEY, JUDGE