### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON KEVIN WASHINGTON v. STATE OF TENNESSEE

Circuit Court for Madison County

No. C-00-145

No. W2000-02736-CCA-R3-PC - Filed February 1, 2002

ORDER

The Appellant, Kevin Washington, appe als from the dismiss al of his p etition for postconviction relief by the Madison County Circuit Court. On appeal, the Appellant contends that trial counsel never informed him that his “packaged” plea agreem ent inclu ded a ple a of guilty to Class C theft of property and, therefore, his plea w as involuntarily ent ered. We fi nd this contention without merit. The judgment of the post-conviction court is affirmed pursuant to Rule 20 of the Rules of th

e Tenne ssee Cour

t of Crimina

l Appeals

. Under the terms of a negotiated plea agreement, the A ppellant pled guilty to one coun t of theft of property over $10,000, t wenty-eight counts of Class E forgery, and twenty-four counts of Class D forgery. The Appellant, a Range II multiple offe nder, was sentenced to eight years for thef t of property, six years for each Class D fo

rgery c ount, and four

years f or each Class E for

gery cou nt. The tria l court or dered th e theft c onviction

to run con secutive

to one cou

nt of ClassE forgery and all other counts to r un concurrent, for an effective twelve-year sentence. On May 4, 2000, the Appe llant fi led a petition for post-conviction relief, which was amended on August 10, 2000, following appointme

nt of coun sel.
A hearing was held on September 12, 2000, at which time the Appellant and Appellant’s trial counsel were called as witnesses. The Appellant ac knowledged that he was aware o f the 1997 indi ctment

for thef t which ch arged him with exe rcising c ontrol ove

r a 1993 Lexus veh

icle, sto le n from California andvalued at over $10,000. The Appellant also admitted that he was in possession of the sto len vehic le in Madis on County. He argue s, however, that he was not aware that his plea a greemen tincluded this offense. The Appellant recalls at the guilty plea hea ring the Assistant District Attorney adv i sing the court that the plea agreement included the offe nse of theft of the Lexus; he also recalls signing a plea agreement which included the offense of the ft of property over $10,000; and finally, he recalls the trial judge pronouncing him guilty of theft. In response, the Appellant now states that “he wasn’t in [his] right state of mind,” and that he w as “sh ocked” and “afraid.” Appellant’s trial counsel testified that he “ to ok great care to make sur e that [A ppellant ] full y understood” the plea agreement, and that the Appe llant had no “objections about the theft ” charge.-2-

In denying the Appellant’s petition, the post-conviction court found: [Trial counsel] testified that Petitioner requested that counsel negotiate a ple a barga in agreement

that would “take care

of” all of Peti

tioner’spending c ases. [T rial cou nsel] fu rthert estified that he thoroughly explained the 12 year sentence @ thirty-five percent to se rve in the Department of Corrections to Petitioner. Moreover, [trial counsel] further testified that it is his practiceto thoroughly go over a pl ea barg ain agreement

with his clients and to explain all the rights that his clients are waiving with respect to a guilty plea. In order to succeed on a post-conviction claim, the Appe llant bears the burden of showing by clear and convincing evidence, the allega tions set forth in his petition. Tenn. Code Ann. § 40-30- 210(f) (1997). The Appellant argues that his guilty plea was not voluntary, knowing, and intellige nt. The established test for d

etermini ng the val

idity of the

guilty plea

is “whethe

r the ple a repre sents a voluntary and intel ligent ch oice amo ng the alt ernativ e course s of actio n open to the defendant.” Hill v. Lockhart, 474 U.S. 5 2, 56, 106 S. Ct. 366, 369 (citing North Carolina v. Alford , 400 U.S. 25, 31, 91 S.Ct. 160, 164 (1970)). The Appellant also argues that trial cou nsel’s ine ffectiv eness le d to his involuntary plea. To succeed in a challenge fo

r ineffe ctive as sistance

of counse l, the App ellant mus t establish (1) deficient representation and (2) prejudice resulting from the deficiency. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984).
The Appellant has not proved the allegations set forth in his petition by clear and convincing evidenc e. Moreo ver, the

record does not pr

eponder ate aga inst the post-conviction court’s finding with rega rd to the me

rit of thos e allega

tions. The judgme

nt of the M adison Cou

nty Circuit C ourt is affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals. It appearing that the Appellant is indigent, costs of thi s appeal will be paid by the State of Tennessee.

________________________________ ________ __ _ DAVID G. HAYES, JUDGE

__________________________ __________________

_ GARY R. WADE, PRESIDING JUDGE

___ ________ _______________________________ _ DAVID H. WELLES, JUDGE