### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE October 28, 2003 Se ssion

MacARTHUR EN GLISH v. STATE OF TE NNESSEE
Direct Appeal from the Criminal Court for Hawkins County

No. 7914 James E. Beckner, Judge

No. E2 003-0 0935- CCA-R3 -PC January 13, 2004

The petitione

r appea ls the denial of

his petition for post-conviction relief from his guilty pleas to two counts of felony reckle ss endang erment, arguing that thepost-conviction court erred in finding he received the effective assistance of counsel and that his guilty ple as were knowingly , voluntarily, and intelligently enter

ed. Following our review, we af firm the denial of the petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

A LAN E. G LENN , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and J OSEPH M. T IPTON , J., joined. Paul G. Whetstone, Mosheim, Tennessee, for the appellant, MacArthur Eng lish.

Paul G. Summers, Attorney Gene ral and Reporter; Renee W. Turner, Assistant Attorney Genera l; C. Berkeley

Bell, Jr., District Attorney Gene ral; and Victor

J. Vaughn, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

FACTS

OnOctober 12, 2001, the petitioner, MacArthur English, pled guilty to two counts of felony reckle ss endang erment, a Class E f elony , in exchange for

concurrent one-y

ear sentences to be served
on supervis ed proba

tion. The r

ecord r eflects that on April 29, 2001, the petitione r was invo lved in
analtercation at a convenience store in Haw kins County, during which he waved a pistol in the direction of at least one adult and two small children. At the guilty plea hearing, trial counsel stipulated to the submission of the written offense report in lieu of the State’s formal presentation of the evidence. The aff

idavit of complaint accompany ing the petitioner’s arrest warra nt contains the follow

ing rec itation of

facts by the inves tigating

office r:2 Gary Boggs states that on April 29, 2001 at about 5:00 p.m

. he w as at Lakeview Gr

ocery ne ar Rogersville, in Hawkins Cou nty , TN when [the p etitioner

] came in the stor

e. Mr. B oggs s aid

he asked [the petitioner] if he had been trying to g et his (Mr. Bogg[s’]) wife to go out with him

. Mr. Boggs said that [the petitioner] then pushed and punched him and then a fight ensued. Cathy Lawson, who is a clerk at Lakeview Groc ery, said that she was attempting to break up the fight and [the petitioner] grabbed her by the throat and told her to get outof his face. She said that the fight broke up and that both parties went out side [sic] and Gary started to lea ve and [the petitioner] got inhis car. She stated that then [the petitioner] exchang ed words with Dennis Boggs, who had pulled into the parking lot. She sa

id that [the petitioner] then reached un der the seat of his ca r and pull ed out a silver pistol and started waving it around over the c ar and ye lled at Gary and told him thatit wasn’t over and that he wa s dead. Sh e said that [the petitioner] then

left the s tore. De

nnis Bog gs als o gave a statement that he saw [the petitioner] pul l the gun from the car and
wave it around. I feel there is sufficient probable cause to charg e [the petitioner] with Assault and Reckless Endangerment.

Follo wing the preliminary he aring, the petitioner was bound over to the g rand jury, whic

h indicted him on two counts of felony re ckless endangerment based on his pointi ng the gun in the direction of the two children. It was to these two off enses that the petitioner pled guilty on October 12, 2001.

OnOctober

19, 2001, a

pproximate ly

one week after entering his guilty

pleas, the petitioner file d a motion for withdrawal of guilty plea pursuant to Rule 32(f) of the Tennessee Rules o f Criminal Procedure, which the trial court dismissed without a hearing on January 17, 2002. The petitioner then filed a petition for p ost-c onviction relief on October 11, 2002, and an amended petition on February

26, 2003, claiming that his guilty ple as were no t k no wi ng ly, voluntarily, and intellig ently

entered and that his trial counsel provided ineffective assistance by , inter alia , failing to adequa tely prepare for trial and

inform him of the full consequences of his pleas, including the fa ct that he would b e rende

red infa mous, lo se hi s r ig ht to vo te , a nd no lo ng er be al lo we d t o c ar ry a firearm.

Trial counsel testified at the February 28, 2003, evidentiary

hearing that she w as licen sed to practice law in Tennessee, but was currently teaching ethics and criminal law at Southeastern Career Coll ege in Davidson County and pursuing a franchise opportunity

in a preschool. As a consequence, she was, at the time of t

he hear ing, “f airly inactive ” as a pr

acticing lawy er, wor king on only

t wo cases which she retained from her former law practice

in East Tennessee. Trial counsel testified the petitioner retaine d her to r

eprese nt him on the

instant ca se, as we ll as o n some unrelat ed matter s. Trial counsel t

estified she had g one to tria

l in only one prev ious crimi

nal case at th e time the3

petitioner entere d his plea s, but it wa s also apparent from her testimony that she had

represented a number of

criminal defenda nts in matte

rs which had been

resolve d without tr

ials.

Trial counsel testified she investigated thecase an d regu larly met with the petitioner during the course of her representation, ac kn owle dging that she did not file any motions. She said the petitioner was a successful businessman, but unable to read or write, and

he “used plain English.” Therefore, rather than giving him documents to read, she spent time reading verbatim to him from the releva nt docume

nts in the c ase. Tri al counse l said she owned a

current copy

of Tennessee Code Annotated

at the time

she repr esented the petiti oner, an

d recal led havin

g read the statut e on reckless endangerment. However, she did not recall having re ad State v. Ramsey , 903 S.W.2d 709 (Tenn. Crim. App. 1995), a case cited in the annotations for Tennesse e Code Annotated section 39-13-103, the reckle ss endang erment st atute, f or the pr oposition that multiple

convicti ons for

reckle ss endangerment

are not justified when a defendant’s rec kless conduct, although victimizing more than one person, is part of one continuous course of conduct.

Trial counsel testified she interviewed the State’s witnesses, including some who were not present at the preli minar y hearing, visited the convenience store whe re the incident oc curred , but did
no ttake any

measure ments, an d intervie wed the w

itnesses w

ho were prepar ed to te stify

on th e petitioner’s behalf. A ccording to her recollection, her investigation revea led that the incident involved the petitioner being attacked by a “much younge r and stronger individual” upon his entry to the convenience store, a physical fi ght ensu

ing in wh ich anoth er man a

nd a woma

n joined in agains tthe petitioner, the petitioner retreating to his car whe re he had one or two people in the car with him, and one of the men following the petitioner to his car. Trial counse l also believed the petitioner returned to the store after the initial incident, but no criminal charges ha d resulted from his return trip. She acknowledged the State’s version of the incide nt, supported by

three wi tnesses, included the petitioner’s having waved a g un in the direction of an

adult and two children

under the age of five. She said she had feared the petition er would be charged with agg ravated assault of a minor, and the assistant district attorney g eneral had in fact discussed amending the indictmen

t to include charges of agg

ravated assault. Trial counsel stated that she was familiar with the defenses of self-defe nse , justific ation, an d necess ity, but did not t hink the pe

titioner had any

legitima te de fense to the charges of reckless e ndangerment involving the two children. On her advice, th e petitioner saw a social worker or psy chologist, but she never

discusse d the option of havin g him examined by a fore nsic psychiatrist to determine whe ther he had had

a reasonable fear of imminent danger.

Trial counsel testified she believe d the State ’s witnes ses would have been more credible at trial than the petitioner’s, and informed the pe titioner o f that fa ct after meeting with him an

d his witnesses on October 1. She explained:

As I re call, as we pr

epared for tria l in this case, I talked to [the petitioner] about my conce rns that there was - - Basically , he had a set of witnesses and the state had a set of witnesses, and they were say ing very opposite s ets of thin

gs b ut saying

them cons istently . My4 concern, and one that I

discu ssed

at le ngth with [t he petitio ner], was that our set of witnesses would not be as credible as the state’s set of witnesses.

Alth ough the petiti oner expr essed a d esire to go to trial , his primary conce rn, during the “multiple conversations” trial counsel had with him, wa s to avoid

spending any time in jail

because he had custody of

his young daug

hter at the time. Trial counsel testified: [The petitione

r] is a conf

licted ind ividual, b

ut from m y perspective, that was the concern that I found, or I perce ived to be an overridingconcern over and above other th in gs . T he re wo ul d b e d ays when I spoke to [the petitioner] when havinghis say in court was the very most import

ant thing and his str

ong bel ie f tha t he would be vindicated. And then on other da ys when he w ould say to me it’s most important – the most important thing is that I not go to jail.

Trial counsel t

estified that she e ntered i nto plea negotia

tions with the State, w

hich ultima

tely resulted in the offer of

full probation in exchange for the petitioner’s pleading guilty to two cou

nts of felony reckle ss endang erment. Althoug h she had no specif ic memory

of her c onversa

tion with the petitioner about entering into plea negotiations, she said she had never entered into or concluded plea negotiations without

the consent of a client and, thus, could not imagine that she had done so inthis case . Trial c ounsel ac knowledg ed her bi lling sta tement did

not reflec t any char

ges for conversations with

the petitione

r betwee n Octobe r 1 and October 12, the date he enter ed his gu ilty pleas. Sh e w as ce rt ai n, ho we ve r, th at sh e h ad ne ve r g on e t en da ys withouttalking to the petitioner during the course of her representation and explained that she had had many conversations with the petitioner via cell phone from her car or home, which wer e not always r

eflected on the billing statement.

Trial counsel t

estified she discu ssed all

of the options with the petitioner, including the risks and benefits of proceeding to trial or ac cepting the plea agre ement. She believed that a loss at trial “would almost ensure a jail sentence and [the petitioner] was very concerned.” She said she arrived late to court on the morning that the petitioner pled guilty , to find him upset that she had not yet arrived. She sat

with the petitioner in the back of the courtroom and went over the plea agre ement with him, rea ding ve rbatim tohim

from the negotiated plea ag reement and plea of guilty, before the petitioner entered his pleas. The petitioner answered the tr ial court inthe affirmative when asked if he understo od what he

was doing

in pleadi ng gui lty and if he was satisfied with her representation. However, after the ple as were en tered, the petitioner became upset upon learning some of the consequences of his pleading guilty and expressed a des ire to w ithdraw his guilty plea s. Trial counsel described what occurred:

A If I mig ht back up , [the peti

ti oner], dur

ing the t ime perio d in whichIwas talking to him about the waiver of rights and negotiated plea agreement, seemed ag

itated and distracted. And I wa s concerned5 that he was not fully

understa nding or fully focused on the discussion we were h aving.
Q Yes, ma’ am.
A I’d had the conversation with him prior to this time b

ut not with the documents in front of me and not doing it in the formal way that Iwas doing it. And he seemed to lack some understanding and f ocus on the morning of the plea.

And you asked me earlier

if I was late to court and I do recall
now that I was late to court, and I think that that was at least a part of the source of his agitation. He was here , his lawyer wa sn’t, he didn’t kn ow wh er e I w as an d t ha t - - a nd th e d ay p ro gr es se d t ha t w ay.
After he enter ed his plea he b ecame

extremely upset that he

had been render ed infamous, had lo st his abili ty t o carry

a firearm, and had lost his ability -- some other ability , I can’t remembe r. He was upset about a se

t of things that I had not told him about and that he
was not awar

e of. And he said to me that he, you know, ba sed on that and those very important thing s, he felt like he would rather just go to trial, he didn’t know about those things, and I ha dn’t told him.

Trial counsel testified she approached the trial judge in chambers and asked that he c onsider allowing the petitioner to withdraw his pleas so that he could go to trial. She said the trial judge explained to her that his rule was to allow the withdrawal of the plea bu t revoke t he bond of the defenda nt, which meant

that the p etitioner

would hav e to go to

jail and remain there without bond for five days until his trial date. Wh en she informed the petitioner of the judge’s rule , he decided not to withdraw his pleas but was “very upset.”

Trial counsel testified

that she had “some concerns” about whether the petitioner

was under the influence of

drugs a t the time h e enter

ed his ple as. However, the petitioner told the trial court during his colloq

uy t hat h e was not, and she had “no basis to believe otherwise.” Although tria l counsel acknowledged the petitioner ga ve appropriate responses to thetrial court, w hen aske d if it was clea r to her that his plea s were k nowing a nd volunta

ry , she res

ponded a s follows:

Iwas conc erned, a s I stated e arlier, that he seemed agitated, unable to focus, and, wel l, ju st -- and possibly not fully

present for whatever reason. So yes, he

answered the ques ti on s a pp ro pr ia te ly, butI had known him for ma ny months at that point, and I was concer ned abou t his facu lties in tha

t moment.6

Trial counsel acknowledged, however, that she did not express any of her concerns to the trial court. She testified she did not discuss with the petitioner the possibility of his being place d on probationfollowing

a conviction at tri al or his a ppellate rights, other tha

n his rig ht to fi le a postconvictionpetition after entering his pleas of guilty

. She ackn owledg ed she did

not go ov er with

the petitioner what was required of him in his probation order.

Tennessee Attorney

William Zi erer te stified he filed a Ru

le 32(f)motion to withdraw guilty plea on October 19, 2001, at the request of the petitioner. Zierer said thepetitione r, who wa s “quite agitated,” conta cted h im at some p oint after e nteri ng his gu ilty pleas an d told him tha t he “re ally didn’tunderstand the consequence of what he did that day, . . . that what he

got was different than what he understood it to be.” Although the petitioner was not clear about the dates, he g ave Zierer the impression that time was of the essence. Therefor e, Zie rer fil ed the motion as soon as he possibly coul d, witho ut examining the cour t file. Z ierer te stified he was satis fied from his conversations with the petitioner that he had not understood what he was doing when he pled

gu il ty.
Pearl Levine, the petitioner’s probation off icer, testifi ed th at when she met with the petitioner to go over the

rules of probation with him, t

he petitioner “wa s shocked at almost every sta tement.” She said she at first b elieved he was on

ly pretendi

ng not to u

ndersta nd, but, as time progressed, she
cameto believe that he, in fact, “truly didn’t know what was going on” when she initially explained the rules to him. Carolyn Diane Eng

lish, the petitioner’s ex-wife, testified she was married to the petitioner for twenty-five y

ears and maintained a cordial rel ationshi p with him. She said she assisted the petitioner in his mulch business by doing his bookke eping and rea ding and advising him about documents he received in the course of the business. She acknowledged the petitioner owned and operated a successful business.

The petitioner

testified he told trial counsel he wanted to go to trial. He said trial counsel was pleased after in terview ing his witnesses a

nd told him

she thought they ha

d “a real good case a

nd she thought things w ould be jus t f

ine.” He stated that his trial date was October 17, but trial counsel
ca lled him sometime around October 6 and told him they w ould be going to court on October 1 2

. When he arrived

to court that day, he wa s under the impression that he and trial counsel were g oing to discuss whether to

post pone “this 12 th date to later on.” However, when trial counse l arrived shortly after 9:00 a .m., she sat with him in the back of the courtroom and explained that they were going to take the pl ea bargain they had talked about and that he would receive a y ear’s probation. The petitione

r testifie d that tria

l counsel told him to “

just say y es, sir, or no, sir , to [the tri al court ’s] questions” and that “when they called us, that’s what we did.”

The petitioner testified

he did not know what a fe lony was and t hought h e was ple ading g

uilty to a misdeme anor. He

said trial cou nsel neve r explaine d the cons equenc es of his g uilty pleas to h im, and he answer

ed the tr ial cour t’s questi ons appro

priately because trial cou nsel told h

im to do so. He claimed he did no t unde

rsta nd wh at he

was d oing and d id not real ize he could have asked questions of the trial court. He said he told the trial court he had not used any dru gs durin g th e previous7

twenty-four

hours, in spite of

having been on M ethadone

at the time

he enter ed his pleas, be cause he thought the court meant only illegal drugs, not med ication. T he petitioner acknowledged trial counsel did not tell

him to lie to

the trial court an d testi f ied that h e agre ed to plea d guilty , in spite of having wanted to go to trial, because of his desire to avoid serving any time in jail. He conceded he had previously bee

n charged with assault and appear ed in general sessions court before a judge. He said, however, that he did not remember the judge h aving a

dvised him

of his rights in that case.

The post-conviction court filed a detailed and extensive written order on April 14 , 2003, denying the petition for post-conviction relief. Among other findings, the c ourt determined that trial counsel was well-prepared for the case, provided “superior represe ntation,” and “accomplished an outstanding result” for the petitioner. The court found that any err or in the fact that the petitioner pled guilty to two counts of reckless endangerme nt was harmless because the petitioner receive d no additional time for t

he secon d count, a

nd it could

not be u sed as additional enhancement in any future proceeding against him. The post-conviction court

further found tha

t the petit ioner’s guilty pl e as were voluntarily , understandingly , knowingly, a nd intelligently made. The reafter, the petitione r filed a timely appeal t o this cour

t.

ANALYSIS

I. Post-Conviction Standard of Review

The post-conviction petitioner bears the b urden of proving his allegations by clear and convincing evidence. See Tenn. Cod e Ann. § 40 -30-210( f). When a n evident iary hearing is held inthe post-conviction setting, the findings of fact madeby t he court are con clusive on appea

l unless the evidence preponderates against them. See Tidwell v. State , 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate revi ew involves purely fac tual issues, the appellate court should not reweigh or reeval uate the evidence. See Henley v. State , 960 S.W.2d 572, 578 (Tenn. 1997). However, review of a trial c ourt’s a

pplication of th e law to the fact s of the c ase is de novo , with no presumption of
correctness. See Ruff v. Sta te , 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel, which presents mixed questions of fact and law, is reviewed de novo , with a presumption of correctness given only

to the p ost-conv iction court's findings of fact. See Fields v. State , 40 S.W.3d 450, 4 58 (Tenn . 2001); Burns v. State , 6 S.W.3d 453, 461 (Tenn. 1999).

II. Ineffective Assistance of Counsel

To establish

a claim of ineffe ctive as sistance

of counse l, the petitioner has the burden to show both that tria l counse l’s perfo rmance was deficient and that counsel’s de ficient performance prejudiced

the outcome of the proceeding. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 206 4, 8 0 L. Ed. 2d 674 ( 1984); see State v. Taylor , 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that

same standard for determining ineffe ctive assistance of counselthat is app lied in federal cases also applies in Tennessee ). The Strickland standar d is a two-

prong te st:8 First, the de fe ndant must show that counsel’s performance was deficie nt. This requires showing that counsel made error s so serious that couns el was not fu nctio ning as the “co unsel ”gu ar anteed the defendant by the Sixth Amendment. Second, the defendan t must show that the d

eficien t perfor mance pr ejudice d the def

ense. Th is requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose r esult is reliable.
466 U.S. at 687, 104 S. Ct. at 2064.

The deficient per formance prong of the test is satisfied by showing that “counsel’s acts or omissions were so

serious as to fall below an objective standard of reasonableness under prevailing professional norms.” Goad v. Sta te , 938 S.W.2d 363, 369 (Tenn. 1996) (citi ng Strickland , 466 U.S. at 688, 104 S. C t. at 2065; Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong of the test is satisfied by showing a r ea so na bl e p ro ba bi li ty, i.e., a “probability suff icient to undermine confidence in the outc ome,” tha t “but for counsel’ s unprofe ssional e rrors, the result of th e proceeding would have been different.” Strickland , 466 U .S. at 694, 104 S. Ct. at 2068. In the context of a guilty plea, the petitione r must show a reasonable probability that were it not for

the defi ciencie s in
coun sel’s representation, he would not have pled guilty but would instead have insisted o n proceeding

to trial. Hill v. Lockart , 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985); House v. St

ate , 44 S.W.3d 508, 516 (Tenn. 2001).

III. Claims of Ineffective Assistance of Counsel

The petitione

r argu es trial c ounsel w as d eficient for failing to adequately prepare and investig ate the case. Sp ec if ic al ly, he contends that trial counsel was deficient for fa iling to file any motions, investigate whether self-defense wa s a viable defense, or research thestatute on reckle ss endang erment. He additionally arg ues that trial counsel was deficient for allowing him to enter an illegal plea to two counts of reckle ss endang erment in spite of h aving c oncerns

about his m ental sta

te at the time he entered

the plea s, and for

failing to inform h

im of the f

ull conse quence s of his g

uilty pleas. The petitioner asse rts that hi s “desir

e to go to trial was prejudic ed as the direct r esult of h is attorney’s f

ailure to effectively

represent his interests.”

Inits order deny

ing post-conviction relief, the post-conviction court found there was a “real danger”that, had the petitioner gone to trial, “he would have be en convict ed, received a gre ater sentence and gone to jail.” The court found that trial counsel had achieve d “an outs tanding result for the petitioner” and concluded that counsel’s alleged

deficiencies in, among other things, fa iling to investig ate the defense of self-defe nse and necessity

or to have the petitioner examined by a forensi c psychiatrist did not amount to viable issues in the case. The post-conviction court’s order states in p ertinen

t part:

Just because there we re some th ings abo ut straig ht p robat ion the petitioner did not like is no reason to grant post conviction relief. The9 petitioner had had prior experience in some criminal charges with the courts. [Trial counsel] had accomplished an outstanding result for the petitioner. One would have to say that such was the resu lt of superior representation.

The re was a real danger that ha d the petitioner gone t o tria l before a jury that he would ha ve been convicted, receive d a grea ter sentenc e and g one to jai l.

It was the p etitioner ’s i nfor med decision to plead guilty . And
as he advise d the cour

t no forc e, coer

cion or pr omises we

re made to induce th e plea ot

her tha[n ] the clea

rly stated a greement.

Inattacking[tria l counsel’s] representation issues were raised about the warr ants in the General Sessions Court, dou ble jeopa rdy in the multiple counts, con sider at io n o f s el f d ef en se an d n ec es si ty, validity of the indictment, jury venire , psychiatric e valuation and request s for jury

instructi ons.
None of these

issues we

re viabl e then nor a

re they viable now.
If there is any

error in the fa ct that pe titioner p leaded g

uilty to and was sente

nced for two count s of reckless end anger ment it is harmless error. Petitioner received no additional time for the second count, and since both counts arose out of the same inc ident, t he
s econd count does not qualify for additional enhancement in an y future proceeding ag ainst petitioner.

There certainly c ould have been no better result achieved for the petitioner.

This court finds that under the guidelines and require m ents of Baxte r v. Rose , 523 S.W.2d 930 (Tenn. 1975) and Strickland v

. Washin gto n , 466 U.S. 668 (1984) the petitioner was afforded effective assistanc e of coun sel in all a spects of his representation by [tria l cou nsel]

. We conclude that the record supports the post-conviction court’s finding that the petitioner received the effective assistance of counsel

. Trial counsel’s testimony re vealed that she met regula rly with the petiti oner, spoke with him frequ

ently , and kep t him infor

med of the

progre ss in h is case, including the plea negotiations on his behalf . Her investigation included interviewing witnesses and visiting the location where the incident took place. Based on

her investigation, she believed that the State’s witnesses would be m ore cred ible than the petitioner’s witnesses and10

informed the petitioner accordingly . Trial counsel testified that the petitioner’s primary concern, as expressed to her, was that

he not spend any time in jail. She said she discuss ed the ri sks and be nefits of accept ing the p lea off

er vers us proce eding to

trial, an d the peti tioner chose to plead g

uilty to avoid spending time in jail away from his daughter.

Trial counsel testified she went over the plea bargain, waive r of righ ts and gu ilty plea with the petitioner and

ex pl ai ne d t o h im th e r ig ht s h e w as re li nq ui sh in g b y pl ea di ng gu il ty. Although the petitioner was agitated on the morning he ente red his pleas, and she had some concerns he was not focusing properly a

nd might be under the influence of drugs, she had no basis to believe he was lying when he to ld th e t ri al co ur t h e h ad no t c on su me d a ny d ru gs or al co ho l d ur in g t he pr ev io us tw en tyfour hours and attributed a

good deal of his agitation to her late arrival to court that morning . Even if the petitioner were distracted and agitat ed on Oct ober 12 when trial counsel explained the plea agreement

to him, his own testimony , as well as that of trial counsel, revealed that trial counsel had already discussed the plea agreement with him on a previous date. We cannot, therefore, conclude that trial counsel was deficient for failing to inform the trial court of her vague conc erns about the petitioner’s mental state, or in allowing him to enter his guilty pleas.

The petitioner

also arg ues that tr ial couns el was de ficient f or allowi ng him to p lead gu

ilty to two counts of

reckle ss endang erment a rising o ut of a sin gle cou rse of condu

ct, in contravention of State v. Ramsey , 903 S.W.2d 709 (Tenn. Crim. App. 1995). In Ramsey , this court reversed two of
a defenda nt’s thre e convictions for r eckless e ndange rment, c oncluding

that bec ause the

reckle ss endangerment

statute prohibits a course of conduct as opposed to an individual act or resu lt, the defendant’s reckless driving that endangered passeng ers in two separate vehicles, close in time and distance to each other, constituted a single offense of reck le ss endangerment. Id. at 712-13. However, we noted that under different circumstance s, multiple convictions might be warranted , writi ng: “We need not fashion a blanket rule that provides that a defe ndant’s continuous operation of a v eh ic le ma y only result in one act of reckle ss endangerment under the statute. Many scenarios could be created where such a rule would not be prudent.” Id. at 713 (emphasis in original). Ac co rd in gl y, in State v. Christopher Clay Kennedy , No. 01C01-9601-CC-00038, 1997 WL 137426, at **2-3 (Tenn. Crim. App. Mar. 27, 1997), we upheld separate conviction s f

or reck less endangerment

based on a defendant’s continuous operation of a vehicle when the proof showed that the second a

ct occur red two b locks fr

om the fir st, and the

defenda nt “had ti me betwe en the two

acts to get control of his car and to think about what he was doing .” Id. at *3.

The indictmen

t in this case charged the

defendant with one count of reckless endang erment for pointing a gun in the dire ction of Nicole Bo ggs a nd one co unt of reck

less endangerment for pointing a gun in the direction of Melissa Bogg s. The affidavit of the arresting off icer, submitted inlieu of the State’s formal presentation of proof, contains no mention of the children. Therefore, it is not clear from the record whether the de fendant’s actions constituted one continuous course of conduct, such as to prohibit multiple convictions for reckless endangerment, or if his pointing the gun at the children occurred a t separate times, with a sufficient interval in between to support two separate counts of reckless endang erment.11

Regar dless of wheth er the e

vidence supporte d multiple c onviction s, we ag ree with the postconvictioncourt that

the petit ioner is no t enti tled t o post -conv icti on rel ief on this claim . Alt hough
we disagree that the petitioner’s second c onviction could not b e used for enhanc ement pur poses in any future proceeding, see Tenn. Code Ann. § 40-35-106(b)(4) (stating that convicti ons for mu

ltiple felonies committed as single course of conduct constitute one convicti on for pur

pose of determining prior convicti ons, but tha

t acts re sulting in

threate ned bodily

conduct shall not be

construe d as a single course o f conduct), the tr ial cour t corre ctly observed that the second c onviction did not re sult inany additional time for the petitioner. Moreover, by pleading guilty to the offe

nses, the petitioner essentia lly a dmitted the

facts required to support his convictions. See State v. Pettus , 986 S.W.2d 540, 542 (Tenn. 1999) (“The principle is well-settled in Tennessee jurisprudence that the voluntary entry of an informed and counseled guilty plea co nstit

utes an a dmission of

all fact s necess ary

to convict and waives all non-jurisdictional de fects a nd constitutional irregularities which may have existed prior to the e ntry of the g ui lty plea.”). I

n Pettus , our supr

eme cour t conclud ed that a defendant who pled guilty to a Class B f

elony of possession of coc aine with intent to sell waived the right t o chal lenge the convi ction and sentenc e on the ba sis that the indictmen

t failed t o specify the amount of cocaine possessed. Id. In reaching this conclusion, the Pettus court noted the “give and take” pr ocess inv olved in pl ea barg ain neg otiations:

The nature of the plea-barg ain process in general, and the trial court’s order in particular, supports this conclusion. First , it is commonly

known that the plea-barg a in proce ss involve s a cert ain amount of “give and take” so as to rea ch a resolu

ti on that is
ac ce ptable

to both the State and the defendant. Often, thi s process includes exagger

a tion or understatement of the facts and circumstances of the offense.

Id. at 543 (emphasis added).
Thus, we conclude that the petitioner has not met his burden o f s ho wi ng by c lear and convincing evidence either that his tr ial couns el was de ficient f or allowi ng him toplead guilty to two counts of reckless endangerment, or that he would not have pled guilty but instead would ha v e proceeded

to trial had counsel informed him that he

could not b e convicted of two counts of reckle ss endangerment

based on a single course of conduct. The petitioner, therefore, is not entitledto postconvicti on relie f on the ba sis of inef fective assistanc e of coun sel.
IV. Voluntariness of Guilty Pleas

The petitioner also contends his guilty ple as were not knowing ly, voluntar

ily, or intelli gently entered. In su

pport, he points to the

fact tha t he is illite

rate, a ble to unde

rstand on ly “plain English,” and appear ed to trial counsel to lack understanding and focus on t

he mornin

g he en tered hi s pleas. The petitioner

concedes the transcript of the guilty plea hearing presents the “illusion of a voluntary and intellig ent plea

” but asse

rts t hat h e was only following trial counsel’s advice without understandingwhat he w as doing . He fur ther ass erts that

the only reason he allowe d his guil ty pleas12

to stand “was his fear of his bond being r evoked, and of the

negati ve conse quence s that woul d result for his four-year-old daughter.”

When analyzing a

guilty plea, w e look to the federalstandard announced in Boykin v. Alabama , 395 U.S. 23 8 , 89 S. Ct. 170 9, 23 L . Ed. 2d 274 (1969), a nd the sta te standa rd set out in State v. Mackey , 553 S.W.2d 337 (Tenn. 1977). Pettus , 986 S.W.2d at 542. In Boy kin , the United States Supreme

Court held that there must be an affirmative showing in the trial court tha t a guilty plea was voluntarily and knowingly given be fore it can be accepted. 395 U.S. at 242, 89 S. Ct. at 1711. Similarly

, the Ten nesse e Supreme Court in Mackey required an affirmative showing of a voluntary and knowledgeable guilty plea, namely, tha

t the defendant has been made awar e of the significant

consequences of such a

plea. Pettus , 986 S.W.2d at 542. A plea is not “volunta ry” if it results from ig

norance , misunderstanding , coerc ion, induc ements, or threa ts. Blanke

nship v. Sta

te , 858 S.W.2d 897, 904 (Tenn. 1993). The trial cou rt must determ ine if

the gui lty plea i s “kno wing” by questioning the defendant to make sure he or she fully understands

the plea and

its conse quence s. Pettus , 986 S.W.2d a

t 542; Blanke

nship , 858 S.W.2d at 904.

Becau se the plea must represent a voluntary and intelligent choice among the a lternatives availab le to the def

endant, the trial court may look at a number of circumstantial factors in making this determination. Blanke nship , 858 S.W.2d at 904. Thes e factor s incl ude: ( 1) the defend ant's relative intellig ence; ( 2) his fa miliarity with criminal proceedings; (3) whether he was represented by compete nt counse l and had t

he oppor tunity to confer with counsel about alternatives; (4) the advice of counse l and the c ourt abou t the cha rges a gainst h imand the penalty to be imposed; and (5) the defendant’s reasons for plea ding g uilty , includin

g the de sire to avoid a gr

eater p enalty

in a jury trial. Id. at 904-05.

The record in this case shows that the post-conviction court considered the appropr iate factors in determining whether the petitioner’s pleas wer e knowing , intellig ent, and volun tary . With respec t to this cla

im, the pos t-conviction cour t’s orde r states i n pertine nt part:
The petitioner does not read and write al th ough he is a successful business man. [Tria l counsel ] read

him verba

tim all documents pertaining to the case and explained them in detail.

At the evidentiary he aring it has been sugge sted that the petitioner d oesn’t understand things well and didn’t understand the plea, the allocution and the consequences of his plea.
However, in his direct examination of the petiti oner, po st convictioncoun sel used m ore com plica ted an d tech nical langua ge thanused by the cour

t at the taking of

the guilty plea . The petitioner understood

all of his examination and the cross-examination without
an y di ff ic ul ty.13 The petitioner clearly

unders tood all the questions and statemen ts by the court whe

n he entered his plea. The transcript of the allocution consisting of t en (10) pages demonstrates the understanding of the petitioner bey ond question.

I n this transcript the petitioner assures the court tha t h e understands all aspe cts of the plea and that he is completely satisfied with his representation by [trial counsel].

The post-convict io n court further found that the petitioner had prior experience s with the criminal court, that

there was a “real dang er” the petitioner would have been convicted a nd received a harsher sentence had he g one to trial, and that it was his informed decision to plead guilty

. The record supports the post-conviction court’s findings and conclusions with resp ect to this claim. As the post-conviction court noted, the petitioner informed the trial court at the guilty plea hearing that he had not

been coerced or promised any thing in exchange for his pleas, was not under the influence of drugs or alcohol, was satisfied with counsel’s representation, understood the charges to which he was pleading, and wished to plead guilty. The fact that the petitioner may not have k nownor been i

nformed of the fu ll conditions of his pr

obation do es not re

nder his g

uilty ple a s unknowing and involuntary. I n a recently

released case, our supreme c ourt held that a defendant need not be informed of all the criteria affecting his rele ase on parole in order for his guilty plea to have been knowingly , voluntarily, a n d intelligently enter

ed. See Jaco v. Stat

e , ___ S.W.3d ___, 2003 WL 2287691, at *1 (Tenn. Dec. 5, 2003). We conclude, likewise, that the petitioner need not have knownof the full ramifications of his conviction and sentence, i.e. , that he would be rendered infamous , would be unable to vote, and would be prohibited from carry ing a weapon, i n or der to enter kn owing, voluntary

, and inte lligent g

uilty pleas.

The petitioner explained

at the pos t-conviction hear ing why he chose to plead g

uilty in spite of his des ire to g o to trial:

A Well, [trial co unsel ] had -- She had explained me -- when she said that they [sic] was always a c hance in any , no matter how good you r case is, they

[sic] is a ch ance tha

t yo u could g o to jail. I

n my situation, I co

uldn’t --I co

uldn’t g o to jail.
Q What was your situation?

A Well, I’ve got a

child. We live --Just me and h er lives [s ic] in my house. An

d, you know, I

told [trial counsel], you know, I couldn’t go to jail. I didn’t have nobody [sic] to watch her.14

It is clear from the r

ecord that t

he pet itioner made a knowing, voluntary , and intelligent choice among the choices available, opting to ac cept the plea bargain due to his desire to a void the risk of serving any

time in jail. Therefore, he is not entitled to post-conviction relief on this claim

. CONCLUSION

We conclude the petitioner failed to m eet his burden of demonstrating by clear and convincing evidence that he was denied the effe ctive assistance of trial counsel. We further conclude that the petiti oner’s g

uilty pleas were knowing and voluntary . Accordingly , we affirm the denial of post-conviction relief.

___________________________________ ALAN E. GL

ENN, JUDGE