### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d onBr ie fs S ep te m be r 26, 200 7

TIMM Y C HARLES M CD AN IEL v. STA TE OF TEN NES SEE
Appeal f rom the Cr im inal Cou rt for Ham ilton Coun ty No. 258844 Don W. P oole, Judge

No. E2007-00113-CC A-R3- P C - F iled Novem ber 9, 2007

The pe titioner, Timmy

Charles McD aniel, ente red ple as of g uilty to f irst deg ree felony

murder a nd
e sp e c ia lly a g g ra va te d b ur g lary

in e xch ang e fo r c on c ur

re nt s e nte nc e s o f lif

e wi tho ut t

he po ssi bil ity of par ole and 12 y ear s, respe ctively . Following his incar cer ation, the petitioner filed a petition for post-conviction re lief alleg ing that his guilty pleas we re n ot knowingly and voluntarily

enter ed beca use he w as denie d the ef

fec tive assistance of counse l. I n this a ppeal, he cha lleng es the de nial of his petition for post-conviction re lief and r easse rts his cl ai m t h at his guilty pleas we re not knowing ly , voluntarily , and intellige ntly enter ed. F inding no e rror , we a ffirm the judg ment of the tr ia l c ourt

. Tenn. R. App . P . 3; Judgme nt of th e Cr im inal Cou rt A ff irm ed

J A M ES C UR WO OD W I TT , J R ., J ., delivere d the opinion of the cour t, in which J OS EP H M. T I PTON , P.J ., and N OR MA M C G EE O G LE , J ., joined.

B ri an S. F inl ay , Ch a tta

no og a , T e nn e sse e , f

or the a pp e lla nt, Ti mmy

Cha rl e s Mc Da

nie l.

Rob e rt E. Coo pe r, Jr., Attor

ne y Ge ne ra l & Re po rt e r; Sop hia S

. L ee, As sis tant A tto rn e y Ge ne ra l; Willi a m H. Cox, Di str ic t Attor ne y Ge ne ra l; and Ne a l Pin ks ton , As sis tant D ist ri c t A tto rn e y

Ge ne ra l, for the a ppellee, State of

Tenne ssee.
OP IN ION On August 24, 2005, the petitioner enter ed plea s of g uilty to firs t deg ree felony murder a nd espec ially

ag g ravated burg lary . Pursuant to a plea a g ree m en t wi t h the state, the de fe nd ant r e c e ive d co nc ur re nt se nte nc e s of lif

e wi tho ut t

he po ssi bil ity

of pa ro le and tw e lve y e ars

. On Ma y 10 , 2 00 6, the pe tit ion e r f

ile d a pr o se pe tit ion

fo r p os t- c on vic tio n r e lie f a lle g ingthat he did not knowingly

and voluntarily

plead guilty , that his arre st was unlawf ul, that his statement to police
was not voluntar ily g iven, that the prosec ution f ailed to disc lose exculpatory evidenc e, that he wa s de nie d th e e ff

e c tiv e a ssi sta

nc e of c ouns e l, a

nd tha t he wa s me nta lly

inc omp e te nt t o e nte r h is p le a s. Th e po st- c on vic tio n c ourt dis mis se d th e pe tit io ner’ s cla ims re latin g to h is a rr e st a nd state me nt t o-2-

police and a

ppointed counsel. Subsequently , the petit ioner’s a ppointed counsel filed notice that the pro se pe tition would not be ame nded.

Th e fa c ts of thi s c a se , a s summa ri zed by the pr os e c uto r at th e tim e of the g uil ty ple a s, are a s f oll ow s: [T] he State’s pr oof would have shown that o n the 9th of De cembe r 2002, Mary

L ou Wojcik’s ne ighbor , at the reque st of her sister, went to ch ec k on Mary

L ou at her

residenc e in Mountain Shadows. And when she ar ri v ed at the re sidence , she found that the door had bee n pried ope n, sta n ding pa

rtially open. She ente red to investig ate a nd fo un d the vic tim ’s pa

rt ia lly nu de bo dy

lyingin t

he bathr oo m w ith
sever e injuries, blood all over the place

. . . .
I t turns out that the vic tim .

. . appar ently . . . laid [si c] dead in he r home f

o r approx imately

24 to 30 hours befor e she w as d i s co v er ed by

the neig hbor. . . . [D] uring the cour se of the investigation, [ the Hamilton County Sheriff’ s Depa

rtment] learned that a pickup truck had be en in the ar ea on that particular night, ha d been de scribed a s having a woode n bed in it, and that was a lead. Eventually , they followed that lead and develope d [t he def endant] as
a su sp e c t. [The defe ndant] was an ex-boy friend to the da ug hter of [the vic tim ] an d a

pp are ntl y he and so me of his bu dd ie s h a d c ome up from Tunne l Hill, Georg ia, on the nig ht of this murder, he ha ving the intent to burg larize this house belong ing to [t he victim]. He . . . broke into [the house] with a c rowba r that he’ d broug ht to the scene , enter ed the house , found the victim in the bathroom [and] sl ashed he r throat with a knife

.

Af te r s he fe ll to t

he fl oo r, our p ro of

wo uld d e m o n s t r a t e t h a t h e s t o mp e d o nh e r , b r e a k i n g b o n e s i n s i d e h e r b o dy, brea king he r sternum, c ontinued to inflict injuri es , knife injuries on the victim, slashing her throat. Ag ain, we would show that there wer e two slash wounds to her throat approxim ately three and a half

inches de e p, pr a c tic a lly

c utt ingof

f he r he a d. Al so , she ha d sta b w ound s to her a bdomen ar ea. . . .

F or tun a te ly , th e polic e we re a ble to l oc a te

. . . p a lm prints and fing erpr ints that subsequently turned out to belon g to the defe ndant in this case.-3- . . . . [The defe ndant] went back to Tunne l Hill after the mur der, buried the murde r we apon . . . , burne d his clothing a nd then took off to Florida a

nd spent some time there

.
L ater , he c[a]me back to Tun n el Hi l l . . . where law
e nf or cem ent of

fi c e rs in t

hat juri sd ic tio n .

. . loc a te d h im at th is
re sid e nc e . T he fi rst thi nghe sa id t o th e m w he n th e y wa lke d in

is I know why

y ou’re here , beca

use of the w oman that I

killed. They broug ht him back .

. . to Chattanoog a

. . . wher e he g ave a n extensive . . . confession as to the f acts. . . .
The a g g ravating f

actor in this case . . . wa s the injuries inf lic te d to the vic timthat w e re fa r in exc e ss of

wh a t w a s r e qu ir e d to produce death, the he inous nature of this killing. The defe ndant, by his own admission, abused the victim’s body sexually afte r having slashed her

numerous times, cut her

throat, dig ital penetr at i o n

. For those fac ts . . . we soug ht the [death penalty ] i n this case.

At the evidentiary hear ing, the petitioner abandoned half of his claims and pursue d only his claims that he was m entally incompetent to plead guilty , that his trial counsel we re i n e f f e c t i v e f o r f a i l i n g t o r e qu e s ta

m e n t a l e v a l u a t i o n , an d

t h a th i s p l e a s w e r e n o tkn o w i n g l y, vo lun tari ly , a

nd int e lli g e ntl y

e nte re d. Th e pe tit ion e r t e sti fi e d th a t on the da y he e nte re d h is p le a s, he ha d be e n in court fo r ne arl y fi ve ho ur s and that the tr ia l judg e “ wa s ove rr uli ng a ll the mot ion s in my case .” The petiti oner, w ho claimed he was “ very tired and ve ry

stressed out,” stated that he “ was rea dy to go, I wa s re ad y to ge t the case over w ith.” He state d that he did not understand the conseque nces of

the trial cour

t’s ruling s and that he “ never understood the whole plea itself.” He
c on c e de d, “ Ikn e w that I

woul d b e g oin g to p ri so n f or the re st o f my

lif e ,” but c la ime d th a t he did not comprehe nd that he wa s fore g oing his rig ht to appea l. When asked why he told the trial cour

t that he un de rs tood th e con seq uen c e s o f t he ple a , th e pe tit ion e r s tate d th a t he “ wa s ti re d, [he ] fe lt threatened, [he] was under pressure and stressed and very depre ssed and [he] was just rea dy to ge t the ca se over

with.” Duringcross-e x amination, the petitioner a dmitted that the two attorne y s appointed to repre sent him visit ed him numerous times duringhis pretrial inca rce ration. He a lso conce ded that h e w a s aw ar e t h a t h e h a d b e e n c h ar g e d w i t hf i r s td e g r e e m u r d e r

an d w a s f a c i n g t h e d e a t hp e n a l t y. He a cknowledg ed that his trial counse l went over the State’s evidenc e with him and that they filed numerous motions on his behalf. The pe titioner al s o ac k n owledg ed that his trial counse l had revie wed the te rms of t he plea ag ree ment with him and had expl ained to him the conse quence s of pleadingg uilty . The pe titioner testified that it was his choice to plead guilty , explaining, “I f we had went to trial, I

would have lost.”T h e p e tit io n e r h a s a b a n d o n e d the re m a ind e r o f his c la im s o n a p p e a l. 1

-4- One of the petitioner’s tria l attorney s testified that he had be en appointed a s second chair afte r the State filed its notice of intent to seek the death penalty

. He state d that he and his c ocounsel met with the pe titioner more than 30 times prior to the entry of his g uilty

pleas. The y

went
ov e r e ve ry

thi ngthe y ha d r e c e ive d f

ro m th e State a s w e ll a s a ll that th e y ha d d isc ov e re d dur ingthe ir own investig ation. Counsel stated that afte r the trial co u rt denied the motion to suppress the peti tioner’s stateme nt, the petitioner appr oache d them and stated his intent to chang e his plea a nd
acc ept the plea

offe r fr o m t h e S tate. Counsel testified that a me ntal evaluation of the petitioner established that the pe titioner wa s co m p et ent to stand trial. He stated that he e ncoura g ed the petitioner to wait a day

befor e cha

ng ing his plea

but the petitioner insisted on pleadingg uilty that d ay. The post-c onviction court denie d the petition in an extensive written order filed af ter the conc lusion of the hear ing. The post-conviction court de termined that the pe titioner had fa iled to establish any

of his claims. The c ourt conc luded that mental eva luations prior to the entry of the pe tit ion e r’ s p le a s e sta

bli sh e d th a t he was comp e te nt t o p le a d guil ty . T he c ourt a lso fo un d th a t,
c o n tr ar y to th e p e ti ti o n e r ’ s a ll e g a ti o n , h e r e c e iv e d thr e e c o mp le te me n ta l e v a lu a ti o n s p r io r to the
e n t r y o f h i s p l e a

. F i n a l l y , t h e c o u rtd e t e r m i n e d t h a tt h e p e t i t i o n e r ’ s p l e a s w e r e k n o w i n g l y, voluntarily , and intellige ntly enter ed.

I n this appea l, the petit ioner contends that the pos t-conviction cour t erre d by denying his petition for post-conviction relief . He c ontends that he did n o t knowingly , voluntarily , and intelligently

plead guilty

beca use he w as unaware of the c onsequenc es of his plea s and bec ause he
w a s “ t i r e d

an d s tr e s s e d ” a tt h e t i m e h e a g r e e d t o p l e a d g u i l t y. 1

T h e p e ti ti o n e r

b e ar s th e b u r d e no f

p r o v in g th e a ll e g a ti o n s in h is p o s t- c o n v ic tion petition by

clea r and c onvincing evidenc e. T. C. A. § 40-30- 110(f) (2006). “Evidenc e is clea r and convi n c in g w h e n

th e r e is n o s e r io u s o r

s u b s ta n ti a l d o u b t a b o u t t h e c o r r e c tn e s s o f

th e c o n c lu s ions drawn from the e vidence .” Hi c k s v . S tate , 983 S.W .2d 240, 245 (Tenn. Crim. App. 1998) . On
a pp e a l, t he fi nd ing s o f f

a c t ma de by

the tr ia l c ourt

are c on c lus ive and

wi ll n ot b e dis tur

be d unle ss the evidenc e conta ined in the re cord pr eponder ates ag ainst them. Br oo k s v . S tate , 756 S.W .2d 288, 289 (Tenn. Crim. App. 1988)

.

Due proce ss de mands that a g uilty plea be enter ed voluntarily , kno wi n gl y , and understanding ly

. S

ee Boyk in v. Alabama , 395 U.S. 238, 242-44 (1969). “ [T] he cor e re quirement of Bo y k in is ‘that no g uilty

plea be acc epted without an affirmative showing that it was intellig ent and voluntary .’” B l a n k

e n s h i p v . Stat e , 8 5 8 S

. W

. 2 d

8 9 7 , 9 0 4 (T en n

. 1 9 9 3 ) ( qu o t i n g Fontaine v. United States , 526 F.2d 5 14, 516 (6th Cir. 1975)). The plea must repr esent a “voluntary

and intelligent c hoice a

mong the alternative course s of action open to the defe ndant.” North C arolina
v . A lfo rd , 4 00 U. S. 2 5, 31 (1 97 0) . Aple a is i nv olu nta ry if the a c c us e d is inc omp e te nt or on ly “ if it is the product of ‘ ignor ance , incomprehe nsion, c oerc ion, te rror , inducements, [or] subtle or blatant threats.’” Blan k

e ns hip , 8 5 8 S

. W

. 2 d

at 9 0 4 (q u o t i n g Bo

y k in , 395 U.S. at 242-43).-5- I n this case , the petit ioner testified that he made the choice to plead guilty based upon his be lie f t

hat he c ou ld n ot b e su c c e ssf ul at tr ia l. A lth ou g h h e c la ime d th a t he did no t c omp le te ly understand the conseque nces o f h is pleas, the petitioner a cknowledg ed that he kne w he would be g oing to pr ison for the re st of h i s l i fe . He c oncede d that his trial counsel had f ully explained the conseque nces of

the guilty pleas to him. Counsel testi fied that he and his co-c ounsel had discussed the entire ty

of the State’s e vidence with the petitioner and that it was the petitioner’s c hoice to plea d g uil ty . T he tr ans c ri pt o f t he ple a su bmi ssi on e sta bli sh e s th a t th e pe tit ion e r w a s a dv ise d o f t he fu ll panoply of his rig hts befor e entering his pleas. The trial court a lso specifica lly advised the pe titioner that he wa s f

or e g oin g the ri g ht t o a

pp e a l, e xpla ini ng , “ Yo ur

ple a tod ay me ans the re wi ll b e no tr ia l, there will be no appea l, y our ca ses will all be over today .” The petiti oner stated at that time that he was fu l l y awa

re that he was g iving up his rig ht to appeal. More over, nothingin the transcr ipt
s ug g ests that the petitioner’s ple as we re the product of “ ‘ig noranc e, incompre hension, coe rcion, terror , inducements, [or] subt le or blata nt threats.’” Bl ank

e ns hip , 858 S.W .2 d

at 9 0 4 (q u o t i n g Bo

y k in , 395 U.S. at 242-43). Unde r these c ircumstance s, the petitioner has failed to establish by clea r and convincingevidenc e that his g uilty pleas we re not knowing ly , voluntarily , and intellige ntly enter ed.

Acc ording ly , the judg ment of the post-c onviction court is aff irmed.

___________________________________ J AMES CURW OOD WI TT, J R., J UDGE