### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs M arch 13, 2002 COREY L. MA LONE v. STATE OF TENNESSEE Direct Appeal from the Criminal Court for Davidson County No. 97-A-69 J. Randall Wyatt, Jr., Judge

No. M2001-02133-CCA-R3-PC - Filed March 22, 2002

The petit ioner originally pled guilty, pursuant to a negotiated plea agreement, to second degree murder and especially aggravated robbery f or an effective sentence of twenty years. The petitioner filed a post-conviction relief petition, which was denied by the post- convicti on court. In this ap peal, the petitioner contends (1) he received ineff ective assistance of counsel, and (2) his guilty pleas were unknowingly and involuntarily entered. After review, we a ffirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed J OE G. R ILEY , J., delive

red the o pin ion of the court, in which T HOMAS T. W OODALL and J OHN E VERETT W ILL IAMS , JJ., joined. Mike Anderson, Nashville, Tennessee, for the appe llant, Corey L. Malone. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney Genera l; Victor S. (Torry) Johnson, III, District Attorney General ; and Ky mberly Haas, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION POST-CONVICTION HEARING TESTIMONY Trial counsel testified she represented the petitioner at a trial which re sulted in a hung ju ry. She continued representing the petitioner as they prepared for retrial. After negotiat io ns, the petitioner entered a plea of guilty

to second de gree murder and especially aggravated robbe

ry for agreed concurrent sentences of twenty years to be

served at one hundred percent. She stated she was aware petitioner had suffered from depression and cocaine abuse and had been hospitalized during the pendenc y of

his c as e; she secured a psy chological examination; and the petitioner had been prescribed

Prozac, though he did not appear t o take it regularly . She explained, however, she b elievedthe petitioner was competent, sane, and fully aware of the details of the plea agreement
.-2-

She further explained the psyc hological examination was sought in an attempt to establi sh “that h

is IQ was such that we could use that as an explanation for his [inculpatory ] statement to the police,” not to establish he was incompetent or insane. The pe ti tioner testified he informed trial counsel he was suffer ing from depression. He further stated that although he was taking Prozac, he wa s not allowed to take it while in custody prior to the plea accept ance he aring b ecause

jail officials did not have a doctor’s statement. The petitioner stated the Prozac would give him “a balance,” a nd without it, he was in “a depressed mode all the time,” giving him “a sense of just like I didn’t care, y ou know.” On cross-examination, the petitioner conceded his trial counsel advised him the plea was for “twenty years a t one hundred percent,” and he knew at the time of the plea acceptance he aring that he was pleading guilty

and receiving an effective sentence of twenty years. H owever, he stated he “just didn’t understand that [he] might have to serve a hundred perce nt of [his] sentence.” The transcript of the guilty plea hearing reveals that both the prosecutor, when announcing the plea, and the trial court, when advising the petitioner about the sentence , expr essly stated the twenty-year sentence was “a t one hundred percent.”

I. INEFFEC TIVE ASSISTAN CE OF COUN SEL The petitioner contends he received ineff ective assistance of counsel. We disagree

. A. Standard of Review This court reviews a claim of ineffective assistance of counse l under the standards of Baxter v . Rose , 523 S.W.2d 930 (Tenn. 1975), and Strickland v. Washington , 466 U.S. 668, 104 S. Ct

. 2052, 80 L. E

d. 2d 674 ( 1984). Th

e petition er has th e burden to prove th at (1) the attorney ’s performance

was deficient, and

(2) the deficient

performance resulted in prejudice to the de fendant so as to deprive him of a fair trial. Strickland , 466 U.S. a t 687, 104 S. Ct. at 2064 ; Goad v. Sta te , 938 S.W.2d 36 3, 369 (Te nn. 1996) ; Butler

v. State , 789 S.W.2d 898, 899 (Tenn. 1990). In Hill v. Lockhart , 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), the Supreme Court applied the twopart Strickland standard to ineffective assistance of counsel claims arising out of a guilty ple a. The Courtin Hill modified t

he preju dice re quireme

nt by requiring a peti

tioner to s how that th

ere is a reasona ble pro b ability

that, but f

or counse l's err ors, he w ould not ha

ve plead ed guilt y a nd would have insisted on

going to trial. 474 U.S. a

t 59, 106 S. Ct . at 370; Hicks v. St ate , 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998). The trial judge's findi ngs of fact on post-con viction he arings are con

clusive o n appea

l unless the evidence preponderates otherwise. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). This court may notreweigh or reevaluate the evidence, nor substitute its inferences for those drawn by the trial judge. Statev. Honey

cutt , 54 S.W.3d 762, 766 (Tenn. 2001)

. Questionsconcer ning the credibi lity-3-

of witnesses and the weight and value to be given to their testimony a re resolved by

the trial cou

rt, not this court. Burns , 6 S.W.3d at 461. B. Analysis Trial counsel testified sh e discussed details of the plea agree ment with the petitioner prior to the hearing, and she informed him he would serve a minimum of seventeen yea rs , w hi ch is ei gh tyfive percent of twenty

years. See Tenn. Cod

e Ann. § 40 -35-501(

i). She fu rther sta ted she had no difficul ty communic ating w ith him; he was competent to enter the plea; and he was “cry stal clear” the minimum sentenc e he woul d serve w as seven teen y ears. The petitioner conceded he had “seve ral discussio ns” with trial counsel prior to the plea hearing conce rning the details of the negotiated plea and was told by counse

l that the plea was twenty years a t one hundred percent. The trial co urt entere d detailed written findings of fact which expressly accredited the testimonyof trial counsel and found no deficiency in trial counsel’s performance. The evidence does not preponderate against these finding s. This issue is without merit.

II. VOLUNTA RINESS OF P LEA The petitioner contends his plea was not entered knowingly or voluntarily. We disagr ee. A. Standard of Review The United States Supreme Court in Boykin v. Alaba ma , 395 U.S. 238, 243, 89 S. Ct. 1709, 1713, 23 L. Ed. 2d 274 (1969), noted that a guilty plea must be knowing and voluntary. To ensure that guilty pleas are entered “knowingly and intelligently,” Boykin instructs the trial

court to discuss withthe accused the consequences of the decision. Id . at 244, 89 S. Ct. at 1712. Tennessee has likewise recognized the requirement of a knowing and voluntary guilty plea. See State v. Mackey , 553 S.W.2d 337, 340 (Tenn. 1977). B. Analysis Although the pet itioner contendshe was un able to un derstan d the eff ective le ngth of his sentence, he conceded that trial cou nsel and t he trial j udge i nformed

him he wasto serve

twenty yearsat one hundred per

cent. The petitioner, however, explained he did not understand the meaning of one hundred pe

rcent be cause he

only finished the eighth grade. He sa id he erroneously

told the trial court he understood the sentence length because he was in a state of depression. In its finding s, the tria

l court c oncluded

“the pet itioner understood

his righ ts and the terms of the agr eement, an d h e k no wi ng ly, vo lu nt ar il y, and intelligently c hose to forego . . . another jury trial and plead guilty

under the agreed terms.” The evidence does not pre pondera te aga inst these findings. This issue is without merit.-4-

Based on the foregoing, we affirm the judgment of the trial cour t.

___________________________________ JOE G. RILEY, JUDGE