# FILED
March 11, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIM INAL APPEALS OF TENNESSEE

AT NASHVILLE NOVEMBER 1998 SESSION

JERRY E. BIGGS, * C.C.A. # 01C01-9711-CR-00514 Appellant, * DAVIDSON COUNTY VS. * Hon. Cheryl Blackbu rn, Judge STATE OF TENNESSEE, * (Post-Conviction) Appellee. *

For Appellant : For Appellee : Jeffery S. Frensley John Knox Walkup 211 Third Avenue North Attorney General and Repor ter P.O. Box 198288 Nashville, TN 37219-8288 Daryl J. Brand Senior Counsel Criminal Justice Div

ision 425 Fifth Avenue North Nashville, TN 37243 Roger Moore Assistant District A

ttorney General Washington Square, Suite 500 222 Second Avenue North Nashville, TN 37201

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, PRESIDING JUDGE2 OPINION The petitioner, Jerry E.Biggs, appeals from the tr ial court's denial of his application for post-con viction relief. In thi s appeal of right, the sing le issue presented for review i s whether the trial c ourt erred by concludi ng that the guilty pl ea of the petitioner was know ingly and voluntar

ily made.
We affirm the judgment of the trial court.
On January 12, 1996, the petiti oner entered a guilty plea to theft of more than $1,000 but less than $10,000, a Class D felony. As a p art of the plea agreement, the state volunta rily dismissed other burglary and theft charg es. The petitioner received a R ange II, five-year s

entence, to be served in the Department of Correction. At the time, the petitioner was on parol e 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 conten ds that his counsel was ineffective for advising him that, becaus e the parole violation hear ing had not yet been held, his sent ence could be concurrent if the j udgment form was silent in that regard. The petitioner claims that he w ould not have entered into the plea agreement had he understood that the sentences would not be c oncurrent.

At the conclusion of the evidentiary hearing, the t rial court accredited the testimony of the petitioner' s trial counsel, a ve teran public defender, who st ated that his file records w

ould have reflected any r equest on the part of the petitione r for a concurrent sentence. The trial judge ruled that there was a "clear discussion in the guilty plea trans

cript of the sentence and how [ ] by operation of law it would be3 consecutive to any unfini shed sentences of the petitioner." The trial court concluded that the plea was knowi ngly and voluntari ly made and more specificall y 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 s entencing issue during

the submission proceeding and had a duty to do so. The state ar gues to the contrary.
When a petitioner seeks post-convicti on 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 atto rneys in criminal cases." Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Second, he must show that the deficienci es "actually had an adver se effect on the defense." Strickland v. Washington , 466 U.S. 668, 693 (1984). Shoul d 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 coun sel, he would not have entered the plea and w ould have insisted on go ing to trial. Hill v. Lockhart , 474 U.S. 52, 59 (1985). In Henderson v. State , 419 S.W.2d 176, 17 8 (Tenn. 1967), our supreme court ruled that a plea agreement which i ncluded concurrent sentencing for an offense committed w hile the defendant was on parole for a prior crime, rendered the plea v oid. When the accused enters a plea wherei n 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 pet itioner and the other parties clearly ag reed to concurrent sentencing

.4 Under our statutory law, the petitioner bears the burden of proving his allegations by clear

and convincing evi dence. Tenn. Code Ann. § 40-30-210(f).On appeal, the findings of fact made by th e trial court are concl usive and will not be disturbed unless the evi dence contained in the record pr eponderates 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 determin ation on the validity of a guilty plea rests

upon whether it was know

ingly and voluntar

ily 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 tha t the petitioner was aware of his constitutional rights , he is entitled to no reli ef. 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 (quot ing Boykin v . Alabama , 395 U.S. 238, 242-43 (1969)).

While it could have been more clearly stated, the transcript of the g uilty plea hearing suggests

that "by operation of law" the sentence would be consecut ive. The state and the petitioner agr eed that the sentencing court would leave the judgment form silent on the iss ue of consecutive sentence, appar ently to accommodate his request to rec eive a Department of Correc tion sentence rather than a sentence with the Cor rections Corporation of Ameri ca. Obviously, the petitioner demonstrated knowledge on the subject: "I'm a hun dred percent sure TDOC will accept me." From this and other portions of the record, we are persuaded that the petitioner kn ew and understood the terms of the plea agreement. That is, that he was wi lling to accept the ri sks of the silent record. Thus , the5 petitioner has not demonstrated hi s claim by clear and c onvincing evidence

.
In summary, the evidence does no t preponderat e against the fi ndings made by the trial court at the conclusion of the evidenti ary hearing. Accor dingly, the judgment is affirmed.

________________________________ Gary R. Wade, Presiding Judge CONCUR:

_____________________________ John H. Peay, Jud ge

_____________________________ Jerry L. Smith, Judge