### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs M

ay 8, 2001

MICHAEL THOMAS v. STATE OF TENN ESSEE

Appeal from the Criminal Court for Shelby County No. 22071 James C. Beasley, Jr., Judge

No. W2000-01886-CCA-R3-PC - Filed July 11, 2001

The Defendant, Michael Thomas, appeals as of right from the denial of post-conviction relief after

an evidentiary hearing. On appeal, he asserts that his g uilty plea was notknowing and voluntary and that he was denied the effective assistance of counsel. We find no merit to the Defendant’s assertions; thus, w

e affirm the judg

ment of the trial c

ourt.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

D AVID H. W ELLES , J., delivered the opinion of th e court, in which A LAN E. G LENN , J. and L.T. L AFFERTY , S R .J., joined.

Charles W. Gilchris

t, Jr., Memphis, Tenne

ssee, for the app

ellant, Michael T

homas.

Pa ul G. Summ ers, Attorney General and Rep

orter; Kim R. Helpe

r, Assistant Attorn

ey Genera

l; William L. Gibbons, Dis trict Attorney

General; and Pau

la Wulff, Assis

tant D istrict Attorney General, for the appellee, State of Tennessee.

OPINION

On July 31, 1997, the Defendant was indicted for first degree murder. He subsequently pled guilty to the lesser included offense of second degree murder on August 25, 1999, in exchange for

a fifteen year sentence. At the plea hearing , the Defendant indic

ated that he unde

rstood the rights he was giving up by pleading guilty , that he wanted to plead guilty in exchange for a fiftee n year sentence as a violent offender, and that he was satisfied with the representation of his attorney. The trial court accepted

the Defendant’s plea and sentenced him to the agreed upon sentence of fifteen years in the Department of Correction as a violent offender.

On October 20, 1999, the Defendant fi led a pro se

petition for post-conviction relief; the petition was later

amended with the a

ssistance of coun

sel, and an evidentiary hearing was held on March 30 and June 30, 2000. At the evidentiary hearing, the Defendant testified that he entered an-2-

Alford plea tosecond degree murder in exchange for

a fifteen y

ear sentence b

ecause he felt t

hat it

was in his best interest. However, the Defendant asserted that he thought he was pleading as a Range I, standard offender, with release eligibility after serving thirty percent of his sentence. Although he admitted that the trial court informed him that he was pleading as a violent offe

nder, he nevert

heless thought that he could be released from prison after serving thirty percent of his sentence. The trial court never stated dur

ing the plea hea

rin g that he would have

to serve one hundr

ed percent of his sentence. He claimed that his counsel told him he could be released after serving thirty percent of his sentence and

that she never informed him that he would be required to serve his entire sentence. According to the Defendant, if he had understood that he would have to serve his entire fifteen year sentence, he would not have accepted the plea offer. The Defendant also complained that his counsel never obtained a motion hearing and that she did not adequately investig ate his case.

Diane Thackery, the De fenda nt’s appointed trial counsel, testified that she has been practicing law for twelve years, ten of which have been spent at the public defender’s office. She explained that she was able to negotiate

a plea agreement with the State for the Defendant to receive the minimum sentence for second degree murder in exchang e fo r his plea. She asserted that she explained to the Defendant that he would serve his sentence at one hundred percent. According to Ms. Thackery, she joked with the Defendant

about him being the age that she is now when he was released from prison.

Ms. Thacker y testified th at it was al ways the Defenda nt’s desir e to plead gui lty and not go to trial and that the State had always indicated that it would settle. However, Ms. T hacke ry was prepared to represent the Defendant had the case gone to trial. She testified that motions had been filed in the Defendant’s case, and they we re scheduled to b

e heard on the da

y of trial. B ecause

the Defendant

did not go to

trial, the motions were never heard. Ms. Thackery stated that she visited the Defendant in jail about once a month, and the De

fendant called h

er office fre

quently to talk about the case. Ms. Thackery said that she kept the Defendant

apprized about his case, and the Defendant cooperated

with her during their visits and phone conversation s. Sh e did not request a mental

e valuation for the Defendant because she did not feel that one was necessary . She sai d that th e Defendant was smarter than the average individual whom she represented.

To sustain a petition for post-convict ion relief, a defendant must prove his or her factual allegations by clear and convincing evidence at an e videntiary hearing. Tenn. Code Ann. § 40-30- 210(f); Momon v. State

, 18 S.W.3d 152, 156 (Tenn. 1999). Upon rev iew, this Court will not reweigh or reevaluate

the evidence below; all questions concerning the credibility of witnesses, the weight and value to be given their testimony, and the factual issues raised by the evidence are to be resolvedby the trial judge, not the appellate courts. Momon , 18 S.W.3d at 156; Henley v. State , 960 S.W.2d 572, 578-79 (Tenn. 1997). The trial judge’s findings of fact on a petition for post-conviction relief are afforded the weight of a jury ve rdict and ar e c onclusive on appeal unless the evidence preponderates against those findings. Momon , 18 S.W.3d at 156; Henley , 960 S.W.2d at 578-79.

Following the evident iary hearing i n this cas e, the trial judge specifically found that the Defendant

“entered his

guilty plea freely a

nd voluntary without any threats or coerc ion after being-3-

fully advised of

his rights by not only the Judge but based on testimony by counsel.” He

found no deficiencies in Ms. Thackery’s representation of the De fendant, and

he thus denied the Defendant post-conviction r

elief. We find no e

rror in the trial ju

dge’s actions.

VOLUNTARY AND KNOWING GUI LTY PLEA When a guilty ple

a is entered, a defendant waives certain constitutional rights, including the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront witnesses. Boykin v. Al abama , 395 U.S. 238, 243 ( 1969). “A p lea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains butto give judgment and determine punishment.” Id. at 242. Thus, in order to pass constitutional muster, a gui lty p lea mus t be vol unt ari ly, u nde rst and ingl y, and intelligently entered. See id. at 243 n.5; Brady v. United States , 397 U.S. 742, 747 n.4 (1970). To ensure that a guilty plea is so entered,

a trial court must “canvass[ ] the matter with the accused to make sure he [or she] has a full understanding of

what the plea connotes and of its consequence[s].” Boykin , 395 U.S. at 244. The waiver of constitutional rights will not be presumed from a silent record. Id. at 243.

In State v. Mackey , 553 S.W.2d 337 (Tenn. 1977), the Tennessee Sup reme Court set for

th the procedure for trial

courts to follow in Tennessee when accepting guilty pleas. Id. at 341. Prior to accepting a guilty plea, the trial court must address the defendant personally in open court, inform the defendant of the consequences of a guilty plea, and determine whether the defendant understands those consequences. See id. ; Tenn. R. Crim. P . 11. A verba tim record o f the guilty ple a proceedings must be made and must inclu

de, without limitatio

n, “(a) the cour

t’s advice to

the defendant, (b) the inquiry into the voluntariness of the plea includi ng any plea a greement and into the defendant’s understanding of the consequences of his entering a plea of guilty , and (c) the inquiry into the accuracy of a guilty

plea.” Mackey , 553 S.W.2d at 341.

However, a tr ial cou rt’ s fa ilu re t o fo llo w th e pro cedu re m and ate d by Mackey do e s not necessarily

entitle the defendant to post-conviction relief. See State v. Prince , 781 S.W.2d 846, 853 (Tenn. 1989). Only if the violation of the adv ice lit any re qui red b y Mackey or Tennessee Rule of Criminal Pro ce dure 11 is linked to a specified constitutional right is the challenge to the plea cognizable

in post-conviction proceeding s. See Bryan v. Sta te , 848 S.W.2d 72, 75 (Te nn. Crim. App. 1992). “Whether the additional requirements of Mackey were met is not a constitutional issue and cannot be asserted collaterally.” Johnson v. State , 834 S.W.2d 922, 925 (Tenn. 1992).

The record i n this case reveals that the trial court followed the procedure mandated b y Mackey when it accepte

d the Defendant’ s guilty

plea. At the plea hearing, the Defendant asserted that he understood the rights he wa s giving up and th

at he wanted to

plead guilty. He asserted that he und erstood that he was pleading guilty to second degre e murder in exchange for a fifteen yea r sentence as a viol ent offender . However, he now claims that he thought he would be eligible for release after serving thirty percent of his sentence. Ms. Thackery, the Defendant’ s trial counsel, testified that she explained to the Defendant that he was pleading as a violent offender and that he would have to serve his

entire sentence. The trial court accredited the testimony of the Defendant’s trial counsel and concluded that the Defendant knew full well what he was doing when he entered-4-

the plea. We conclude that the evidence does not preponderate against this determination. Acco rdi ngly, we hold

that the trial court did not err by denying the Defendant post-conviction relief based upon the involuntary nature of his guilty ple a.

INEFFECTIVE ASSISTANCE OF COUNSEL The Defendant also asserts that his trial counsel was ineffective. He claims that his counsel failed to adequately explain the plea agreement, that she failed to inve

stigate his case properly, that she did not obtain an

y evidentia

ry hearing

s, and that she fai

led to communicate

with him.

Both th e Sixth Amendment to the United States Constitution and Article I, § 9 of the Tennessee Constitution g uar antee a defendant the right to representation by c ounsel. See State v. Burns
, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose , 523 S.W.2d 930, 936 (T enn. 1975). This right to counsel includes the right to effective counsel. See Burns , 6 S.W.3d at 461; Baxter
, 523 S.W.2d at 936; Strickland v. Washington , 466 U.S. 668, 686 (1984).

To d etermine w hether counsel provided effective assistance at trial, the court must decide whether counsel’s performance was within the range of competence de manded of

attorneys i

n criminal cases. Baxter , 523 S.W.2d at 936; Hicks v. State , 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). To succeed on a claim that his or her counsel was ineffective at trial, a defendant

bears the burden of showing that counsel made errors so serious that he or she was not functioning as counsel

as guaranteed under the Sixth Amendment and that the deficient rep resentat ion prejudiced the defendant resulting in a fa

ilure to produce a reliable result. Strickland , 466 U.S. at 687 ; Burns , 6 S.W.3d at 461; Hicks , 983 S.W.2d at 245. To satisfy the second prong, the defendant must show

a reasonable pro

bability that

, butfor counsel’s unreasonable error, the fact finder would have had reasonable

doubt regarding the defendant’s guilt. See Strickland , 466 U.S. at 69 4-95. This reasonable

probability must be “sufficient to undermine confidence in the outcome.” Id. at 694; see also Harris v. State , 875 S.W.2d 662, 665 (Tenn. 1994); Owens v. State , 13 S.W.3d 742, 750 (Tenn. Crim. App. 1999).

When reviewing trial counsel’s actions, this Court should not use the benefit of

hindsight to second-guess

trial strategy and criticize counsel’s tactics. See Hellard v. State , 62 9 S.W.2d 4, 9 (Tenn. 1982); Owens , 13 S.W.3d at 749. Counsel’s alle ged errors sho

uldbe judged at the time they

were made in light of all facts and circumstances. See Strickland , 466 U.S. at 690; Hicks , 983 S.W.2d at 246.

This two part standard

of measuring inef

fective assistan

ce of counsel als

o applies to claims arising out of the plea process. Hill v. Lockhart , 474 U.S. 52, 57 (1985). The prejudice requirement is modified so that the

defendant “must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. at 59; see also Hicks , 983 S.W.2d at 246.

We conclude that the Defe ndant failed to meet his burden of proving his trial counsel ineffective. Other than vague accusations, the Defendant offered no proof of how Ms. Thackery was-5-

ineffective. The Defendant’s vague accu sat ion s we re co ntr adi cte d by M s. T hack ery, who testified that she was prepared to r

epresen t the Defendant at trial, that she was prepared to argue pre-trial motions, t hat sh e kept the Defendant informed about his case, and that the Defendant understood what he was doing by pleading guilty. Again, the trial court accre dited the te stimony of Ms. Thackery and found that the Defendant was not entitled to post-conviction relief. We find no error in this determination.

The judgment of the trial court is affirmed.

___________________________________ DAVID H. WELLES, JUDGE