IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

September 13, 2005 Session

ERIKA LOUISE BUNKLEY PATRICK v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Dyer County

Nos. C00-168A, C01-376A, C01-476A Lee Moore, Judge

No. W2004-02217-CCA-R3-PC - Filed January 24, 2006

Petitioner, Erika Louise Bunkley Patrick, appeals the post-conviction court’s dismissal of her petition

for post-conviction relief in which she alleged that her pleas of guilty were not voluntarily and

knowingly entered into and that her trial counsel rendered ineffective assistance in the negotiation

and entry of her pleas. After a thorough review of the record, we affirm the judgment of the postconviction court.

Tenn. R. App. P. 3, Appeal as of Right; Judgment of the Circuit Court Affirmed

THOMAS T. WOODALL,J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN

EVERETT WILLIAMS, JJ., joined.

Fannie J. Harris, Nashville, Tennessee, for the appellant, Erika Louise Bunkley Patrick.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; C.

Phillip Bivens, District Attorney General, Karen Waddell Burns, Assistant District Attorney General,

for the appellee, the State of Tennessee.

OPINION

I. Background

On June 12, 2000, Petitioner and Christopher Patrick were indicted for first degree felony

murder in case No. C00-168A. Petitioner had been released on bond in that case when she was

indicted on October 8, 2001, in case No. C01-376A on two counts of the sale of over 0.5 grams of

cocaine, a Class B felony, and one count of the sale of less than 0.5 grams of cocaine, a Class C

felony. Petitioner was also indicted on December 10, 2001, in case No. C01-476A, on one count of

possession of over 0.5 grams of cocaine, a Class B felony, and one count of simple possession of

marijuana, a Class A misdemeanor. On January 22, 2002, the State filed a notice of intention to seek

the death penalty in case No. C00-168A. At the time of the incidents, Mr. Patrick, Petitioner’s codefendant, was Petitioner’s boyfriend, but the couple married prior to the guilty plea submission

hearing.
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On April 8, 2003, Petitioner entered into a negotiated plea agreement in settlement of case

Nos. C00-168A, C01-376A, and C01-476A. Pursuant to the plea agreement, Petitioner entered a

plea of guilty to the lesser included offense of second degree murder in case No. C00-168A, and the

trial court sentenced her as a Range I standard offender to fifteen years. At the plea submission

hearing, the State offered the following factual basis for the plea. At the time of the incident,

Petitioner and Mr. Patrick were caring for the victim, two-year-old Carlos Olden. On January 9,

2000, Petitioner took the victim to his grandmother’s house for the afternoon. Mr. Patrick and Mrs.

Olden, the victim’s grandmother, stated that the victim was healthy when he was returned to

Petitioner’s care. Mr. Patrick said that he and Petitioner were alone with the victim during the

evening of January 9, 2000. Late that evening or during the early morning hours of January 10,

2000, Mr. Patrick said that he heard “whipping sounds” coming from the victim’s bedroom, and that

Petitioner and the victim were alone in the room. Mr. Patrick then heard a loud noise comparable

to something hitting the floor. Petitioner called out to Mr. Patrick and told him that something was

wrong with the victim. Mr. Patrick said that the victim was in a “coma like state,” and he called 911.

The victim never regained consciousness and died the next day. The autopsy report reflected that

the victim died of blunt trauma to the head, and that the injuries had been inflicted a short time

before medical personnel arrived in response to the 911 call. Mr. Patrick said that he helped

Petitioner fabricate a reason for the victim’s injuries, and that he and Petitioner agreed to say that the

victim had fallen out of his bed. Petitioner said that his initial statement to the police was not

truthful. 

At the plea submission hearing, the State said that the charges in case Nos. C01-376A and

C01-476A arose out of a series of arranged buys by police officers utilizing a confidential informant.

In Case No. C01-376A, the State offered as proof in count one of the indictment that on July 6, 2001,

two confidential informants were searched and provided money with which to purchase drugs. The

informants went to Petitioner’s home and told Mr. Patrick that they wanted to buy an “eight ball”

of crack cocaine. Mr. Patrick told the two men that the cocaine would cost $160.00. Petitioner took

the money from the confidential informants, went into the bedroom and retrieved the cocaine, and

handed the cocaine to one of the informants. The substance purchased from the Patricks tested

positive for cocaine and weighed 1.1 grams. In count two, the State submitted that on July 18, 2001,

the confidential informants returned to Petitioner’s home and bought six rocks of crack cocaine,

weighing 1.0 gram, for $70.00. In count three of the indictment, the State offered as proof that a

confidential informant asked Petitioner for $60.00 worth of crack cocaine. Petitioner went into

another room and returned with one rock of cocaine weighing 0.4 grams and took the informant’s

$60.00 in exchange for the drugs.

In case No. 476A, the State offered as proof that Officers Jim Joyner and Tod Thayer went

to Petitioner’s and Mr. Patrick’s residence to serve a capias based on the prior sales of cocaine to the

confidential informants. The officers observed in plain view a quantity of crack cocaine on the

kitchen stove, and a bag of marijuana and a postal scale on the coffee table. The officers also found

a large amount of cash in the kitchen and on Mr. Patrick.
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Petitioner entered a plea of guilty to the charged offenses in case No. C01-376A and to count

one of case No. C01-476A. An order of nolle prosequi was entered as to count two of the

indictment, simple possession of marijuana, in case No. C01-476A. Pursuant to the terms of the plea

agreement, the trial court sentenced Petitioner to twelve years for each of her Class B felony drug

convictions and six years for her Class C felony drug conviction. The trial court ordered Petitioner’s

sentences in case Nos. C01-376A and C01-476A to be served concurrently with each other but

consecutively to her sentence for the second degree murder conviction.

During the guilty plea submission hearing, Petitioner affirmed that she understood that by

entering her pleas of guilty she was waiving her right to trial by jury, the right to confront the

witnesses against her, and the right to subpoena witnesses to appear and testify on her behalf.

Petitioner stated that she understood she was giving up her right to appeal, and her right of

representation of counsel at a trial and on appeal. Petitioner stated that she understood the range of

punishment that she might receive if tried and convicted of each charged offense. Petitioner affirmed

that the information supplied by the State in support of her convictions was correct, and that she was

voluntarily pleading guilty of her own free will and choice. Petitioner stated that her attorneys had

answered all of her questions about the guilty plea submission process, and that she was satisfied

with counsel’s representation. Petitioner affirmed that she was not under the influence of alcohol,

drugs, or other forms of medication. Petitioner stated that she understood the length of her sentences

and the release eligibility dates attributed to her conviction of each offense.

II. Post-Conviction Hearing

Petitioner filed a petition for post-conviction relief on March 22, 2004 alleging that her pleas

of guilty in case Nos. C00-168A, C01-376A, and C01-476A were not voluntarily and knowingly

entered into and that her trial counsel rendered ineffective assistance of counsel during the

negotiation and entry of her pleas.

Petitioner said that she retained William Randolph as trial counsel when she was arrested on

the felony murder charge. Petitioner said that after the State filed its notice of intention to seek the

death penalty, the trial court found her to be indigent and appointed Mr. Randolph to represent her

on the murder charge as lead counsel. The trial court appointed Tod Taylor, an assistant public

defender, to serve as co-counsel. Jim Horner, the district public defender, was appointed to represent

her on the drug charges in case No. C01-476A, and Mr. Randolph was appointed to represented her

on the remaining charges in case No. C01-376A.

Petitioner said that she received a note from Mr. Patrick on April 7, 2003, in which he said

that he was accepting an offer of settlement in connection with the felony murder and drug charges,

and that he was “sorry.” Petitioner said that Mr. Randolph visited her that night at jail. He told her

that the State had offered a settlement of the charges against her, which included a recommended

sentence of twenty-five years for the felony murder charge and eight years for each of the Class B

felony drug charges. Petitioner said that she did not want to accept the offer because she was

innocent of the felony murder charge. Petitioner said that Mr. Randolph called the prosecutor and
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offered to settle the charges by increasing the sentences for the Class B felony drug charges to twelve

years and decreasing the felonymurder sentence to fifteen years, and the State agreed to the proposed

settlement offer. Petitioner said that Mr. Randolph told her she would die if she did not accept the

offer. Mr. Randolph called Petitioner’s mother, and Petitioner talked to her about the offer of

settlement. Petitioner said that Mr. Taylor disagreed with some of the terms of the State’s offer, but

Mr. Randolph was the lead attorney.

Petitioner said that none of her attorneys wanted to talk about the drug charges during their

meetings and focused instead on the felony murder case. Petitioner said that Mr. Horner wanted her

to enter a plea of guilty to the drug charges and provide evidence against Mr. Patrick, but Petitioner

refused. Petitioner said that she knew the drug charges carried a sentencing range of between eight

and twelve years, but she did not understand the various offender classifications. 

Petitioner said that she first saw the final plea agreement approximately ten minutes before

the plea submission hearing. Petitioner said that Mr. Randolph read the plea agreement form to her,

but she was groggy from the aftereffects of Visteril and Benadryl which she had taken the night

before. Petitioner said that Darla Hardin, an L.P.N. at the county jail, gave her several days worth

of the medicine at one time when she was not going to be making rounds for a few days. Petitioner

said she saved the medicine and took multiple doses, generally on the weekends. Petitioner said that

she did not tell the truth when she told the trial court that she was not on medication at the time of

her plea submission hearing.

Petitioner said that before the plea submission hearing Ms. Hardin was concerned that

Petitioner was suicidal and referred her to Pathways for a mental evaluation. Petitioner said that a

doctor or psychiatrist at Pathways prescribed Paxil and Hydroxyzine for her, but she did not tell her

attorneys that she was taking this medicine.

On cross-examination, Petitioner said that she met several times with all three of her

attorneys about the felony murder and drug charges. Petitioner said that several proposed offers of

settlement were discussed before April 8, 2003, and she understood the potential sentences contained

in the State’s recommendations. Petitioner agreed that she never denied that she was guilty of the

drug charges, but she denied that she used the drug charges to gain a more favorable sentence on the

felony murder charge. Petitioner said that she discussed release eligibility dates and consecutive

sentencing with her attorneys. On redirect examination, Petitioner reiterated that she accepted the

State’s offer of settlement in order to avoid the death penalty.

Felicia Taylor, Petitioner’s cousin, said that Petitioner was lethargic and drowsy during a

couple of her visits with Petitioner at the county jail. Ms. Taylor said that Petitioner told her she was

on medication, but Ms. Taylor did not know what medicine Petitioner was taking. Ms. Taylor said

that Ms. Hardin would give out multiple doses of Benadryl, and Petitioner kept a bag of pills under

her bunk bed. 
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Captain Larry Bell, with the Dyer County Sheriff’s Department, testified that all visitors to

the jail were required to sign in. According to the register, Mr. Randolph visited Petitioner twentythree times between January 2003 and April 2004. Captain Bell said that random searches of the

inmates’ cells were performed, and no pills were ever found in Petitioner’s cell. 

Ms. Hardin testified that her duties at the Dyer County Jail included responding to sick calls,

distributing medications, and arranging for inmate visits to medical personnel in the community.

Ms. Hardin said that she was authorized to distribute over-the-counter medications such as Tylenol

and Benadryl, but she denied that she gave Petitioner more than one Benadryl tablet at a time. Ms.

Hardin said that following Petitioner’s examination at Pathways in late October 2001, Petitioner was

prescribed Paxil, Trazodone and Hydroxyzine. Petitioner refused to take the medicine and executed

a refusal of medical services form on January 18, 2002. Ms. Hardin said that she did not give

Petitioner any Benadryl during the evening of April 7, 2003.

The affidavit of Mary Bunkley, Petitioner’s mother, was entered as an exhibit without

objection by the State. In her affidavit, Ms. Bunkley stated that Petitioner seemed drugged or sleepy

when she visited her daughter at the jail, and Ms. Bunkley told Petitioner to stop taking the medicine.

Ms. Bunkley stated in her affidavit that Mr. Randolph called her on April 7, 2003, and told her that

Petitioner had to plead guilty to the felony murder charges “or she was going to be executed.” Ms.

Bunkley said that Mr. Randolph told her that Mr. Patrick was going to testify at trial that Petitioner

had inflicted the injuries that led to the victim’s death. Ms. Bunkley said that Mr. Randolph told her

that they only had one hour to decide what to do and asked her to talk to Petitioner. Ms. Bunkley

stated that Petitioner was crying and upset, but she agreed to help “Mr. Randolph coerce [Petitioner]

to plead guilty” because she was afraid that Petitioner “would be executed for something she did not

do.”

Mr. Randolph testified that he met with Petitioner frequently during the pendency of the

charges, and he gave her his cell phone number so that Petitioner or her family members could

contact him at any time. Mr. Randolph said he hired an investigation team who interviewed

Petitioner several times. The investigators also interviewed potential mitigation witnesses in

preparation for the sentencing phase of the trial. Mr. Randolph said that he discussed the

investigation team’s progress reports with Petitioner and gave her copies of his file.

Mr. Randolph said he and Mr. Taylor filed approximately thirty-one motions including a

request for a mental evaluation. Mr. Randolph, however, arranged for Dr. Pamela Abule to perform

a preliminary mental evaluation of Petitioner. Dr. Abule found no sign of severe medical disorder

or defect in Petitioner and concluded that Petitioner was competent to stand trial. Mr. Randolph said

that he told Petitioner about Dr. Abule’s conclusions, and Petitioner laughed and said she knew she

was all right. Petitioner agreed to withdraw the motion requesting a mental evaluation. 

Mr. Randolph said that he reviewed the victim’s autopsy report and interviewed Dr. O. C.

Smith concerning his findings. Mr. Randolph said that the medical proof was not very favorable.

In addition, Petitioner had made some comments to other people that were damaging to her case.
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Mr. Randolph said that several offers of settlement were discussed in the months preceding

the plea submission hearing. Initially, before the notice of intent to seek the death penalty was filed,

the State offered to dismiss the felony murder charge if Petitioner testified against Mr. Patrick. Mr.

Randolph learned that the same offer was extended to Mr. Patrick, and Mr. Randolph explained to

Petitioner that “it would be a race to the courthouse,” and “whichever one got to the courthouse first

. . . would get the deal.” Petitioner refused to accept the offer because she did not want to testify

against Mr. Patrick, and she did not believe that Mr. Patrick would accept the State’s offer.

After Petitioner was indicted on the drug charges, Mr. Randolph said that the State offered

to settle all of the charges with a recommended sentence of ten years on the Class B felony drug

charges, and a plea of guilty to the lesser offense of criminally negligent homicide with a

recommended sentence of two years. The State’s offer was contingent on Petitioner’s testifying

against Mr. Patrick. Mr. Randolph said that Petitioner was agreeable to the length of sentences

offered by the State but again refused to cooperate in the State’s case against Mr. Patrick. The State

then filed a notice to seek the death penalty. Mr. Randolph said that, at this point in time, the

prosecutor told him that the State would not recommend less than twenty-five years on any lesser

included offense of felony murder or ten years on the Class B felony drug charges if Petitioner

continued to refuse to cooperate. Petitioner refused the offer, and Mr. Randolph said that he

concentrated on preparing for trial.

When he learned on April 7, 2003, that Mr. Patrick had agreed to testify against Petitioner,

Mr. Randolph immediately drove to the Dyer County Jail. He said that he and Petitioner called

Petitioner’s mother, and they discussed the ramifications of Mr. Patrick’s plea agreement with the

State during a three-way conversation. Mr. Randolph said that he asked Petitioner what she wanted

to do. Petitioner said that she would agree to no more than seventeen years on a lesser included

offense of the felony murder charge and ten years on the Class B felony drug charges in exchange

for entering pleas of guilty. Mr. Randolph said that he called the prosecutor and suggested that

Petitioner serve less time on a lesser included offense of the felony murder charge in exchange for

serving maximum sentences on the Class B felony drug charges, and the State accepted the offer.

Mr. Randolph said that he reviewed the proposed sentences and the release eligibility dates with

Petitioner at length. Mr. Randolph said that Petitioner understood their discussion and corrected him

one time when he stated the wrong eligibility date. Mr. Randolph denied that he told Petitioner that

she only had one hour to make up her mind.

Mr. Randolph said that he and Mr. Taylor reviewed the proposed plea agreement with

Petitioner again before the guilty plea submission hearing on April 8, 2003. Mr. Randolph said that

Petitioner did not appear sleepy or groggy on the morning of the plea submission hearing.

Mr. Taylor testified that Petitioner did not appear to be under the influence of any drugs on

April 8, 2003, and understood that entering a plea of guilty was in her best interest.
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Mr. Horner testified that Petitioner never said she was not guilty of the drug charges and did

not express an interest in proceeding to trial on these charges. Mr. Horner said that everyone’s focus,

including Petitioner’s, was on the murder case.

At the conclusion of the evidentiary hearing, the post-conviction court found that Petitioner

had voluntarily and knowingly entered into her plea agreement, that she was well informed of the

issues surrounding her cases, and that she understood the nature and consequences of her plea. The

post-conviction court further found that Petitioner failed to establish by clear and convincing

evidence that she was under the influence of medication when she entered into her plea. The postconviction court also found that Petitioner’s counsel rendered effective assistance in the negotiation

and entry of Petitioner’s plea of guilty.

III. Standard of Review

A petitioner seeking post-conviction relief must establish his allegations by clear and

convincing evidence. Tenn. Code Ann. § 40-30-210(f)(1997). However, the trial court’s application

of the law to the facts is reviewed de novo, without a presumption of correctness. Fields v. State, 40

S.W.3d 450, 458 (Tenn. 2001). A claim that counsel rendered ineffective assistance is a mixed

question of fact and law and therefore also subject to de novo review. Id.; State v. Burns, 6 S.W.3d

453, 461 (Tenn. 1999).

When a petitioner seeks post-conviction relief on the basis of ineffective assistance of

counsel, he must establish that counsel’s performance fell below “the range of competence

demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). In

addition, he must show that counsel’s ineffective performance actually adversely impacted his

defense. Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 2067, 80 L. Ed. 2d 674

(1984). In reviewing counsel’s performance, the distortions of hindsight must be avoided, and this

Court will not second-guess counsel’s decisions regarding trial strategies and tactics. Hellard v.

State, 629 S.W.2d 4, 9 (Tenn. 1982). The reviewing court, therefore, should not conclude that a

particular act or omission by counsel is unreasonable merely because the strategy was unsuccessful.

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Rather, counsel’s alleged errors should be judged

from counsel’s perspective at the point of time they were made in light of all the facts and

circumstances at that time. Id. at 690, 104 S. Ct. at 2066.

A petitioner must satisfy both prongs of the Strickland test before he or she may prevail on

a claim ofineffective assistance of counsel. See Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997).

That is, a petitioner must not only show that his counsel’s performance fell below acceptable

standards, but that such performance was prejudicial to the petitioner. Id. Failure to satisfy either

prong will result in the denial of relief. Id. Accordingly, this Court need not address one of the

components if the petitioner fails to establish the other. Strickland, 466 U.S. at 697, 104 S. Ct. at

2069. In cases involving a guilty plea, the petitioner must show prejudice by demonstrating that, but

for counsel’s errors, he or she would not have pleaded guilty but would have insisted on going to
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trial. See Hill v. Lockhart, 474 U.S. 42, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985); Bankston

v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991).

IV. Ineffective Assistance of Counsel

A. Failure to Investigate Drug Charges

Petitioner argues that all three attorneys rendered ineffective assistance of counsel because

they failed to investigate the drug charges before Petitioner entered her plea of guilty to the charges.

Mr. Randolph testified that he was appointed to represent Petitioner on the drug charges in case No.

376A, and Mr. Horner was appointed to represent her on the possession charges in case No. 476A.

Mr. Randolph said that he discussed the drug charges with Petitioner, including the range of

punishment. Mr. Randolph said that Petitioner admitted she was guilty on the drug charges and

never indicated that she wanted to proceed to trial on those charges. Mr. Randolph said that

Petitioner told him that “she had been selling drugs because that was the only way she had to make

money because she lost her job at the nursing home due to” the murder case. Mr. Randolph testified

that in August 2002, months before Petitioner entered her pleas of guilty, Petitioner asked Mr.

Randolph to negotiate a lower sentence for the felony murder charge by offering a higher sentence

for the drug charges. 

Mr. Horner testified that he discussed the evidence in case No. 476A with Petitioner, and

explained to Petitioner that the State was making any plea agreement on the felony murder charge

contingent on entering a plea to the drug charges.

Mr. Taylor said that although he was appointed to represent Petitioner on both the murder

and the drug charges, the murder charge was his main focus because it was scheduled for trial first.

Mr. Taylor agreed that limited attention had been paid to preparing the drug charges for trial.

The post-conviction court found that the evidence presented at the evidentiary hearing did

not support a finding that Petitioner’s attorneys “failed to evaluate the evidence on the drug charges.”

Relying on State v. Gaston L. Edison, No. 02-C01-9109-CR-00209, 1992 WL 156032 (Tenn.

Crim. App., at Jackson, July 8, 1992), no perm. to appeal filed, Petitioner argues that her attorneys

had a duty to investigate the drug charges regardless of her admission of guilt as to these charges.

In Edison, a panel of this Court noted that “the constitutional right to the effective assistance of

counsel has encompassed the pre-trial investigation of the facts and circumstances surrounding the

crime alleged in the charging instrument.” Id., 1992 WL156032, at *6 (citations omitted). In

fulfilling this duty, counsel “‘should interview not only his own witnesses, but also those the [State]

intends to call, when they are accessible.’” Baxter, 523 S.W.2d at 933 (quoting United States v.

DeCoster, 487 F.2d 1197, 1203-04 (1973)). An accused’s admission of guilt or desire to plead guilty

does not relieve counsel of a duty to conduct pre-trial investigation. Gaston L. Edison, 1992 WL

156032, at *7.
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Other than an allegation that her attorneys failed to adequately investigate the drug charges

before she entered her plea of guilty, however, Petitioner has not shown that a more through

investigation would have benefitted Petitioner or provided a possible defense. The two-part

Strickland test is “applicable to ineffective-assistance claims arising out of the plea process,” and a

petitioner must establish that she was prejudiced by her counsel’s failure to investigate. Hill, 474

U.S. at 57-58, 106 S. Ct. at 370. In the context of a guilty plea, “where the alleged error of counsel

is a failure to investigate or discover potentially exculpatory evidence, the determination whether the

error ‘prejudiced’ the [petitioner] by causing him to plead guilty rather than go to trial will depend

on the likelihood that discovery of the evidence would have led counsel to change his

recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction

whether the evidence likely would have changed the outcome of a trial.” Id. at 59, 106 S. Ct. at 370-

371.

The evidence does not preponderate against the post-conviction court’s finding that

Petitioner’s attorneys did not render ineffective assistance of counsel in the investigation of her drug

cases. Moreover, even if the scope of counsel’s investigation of Petitioner’s drug charges was

deficient, Petitioner has failed to show what a more thorough investigation would have revealed or

that Petitioner would have insisted on proceeding to trial on the drug charges. The post-conviction

court found:

It also appears from the testimony of all the parties that the offer of settlement that

[Petitioner] accepted was an offer to settle all of the cases pending against her. Her

plea agreement to fifteen years on a second degree murder charge necessarily

included a plea on the pending drug cases. The plea of second degree murder with

a fifteen[-]year sentence was not available unless she did, in fact, plead guilty to the

drug charges. It appears to the Court, however, that [Petitioner] was well aware of

the fact that she could go to trial on all of her cases had she chosen to do so.

Based on our review of the evidence presented at the evidentiary hearing, we cannot conclude

that Petitioner was prejudiced by any deficiency in the extent of her attorneys’ investigation of the

drug charges prior to the entry of her pleas of guilty. Petitioner is not entitled to relief on this issue.

B. Coercion During Plea Negotiations

Petitioner argues that Mr. Randolph’s representation fell below reasonable standards because

he used her mother’s influence to help him coerce Petitioner into entering pleas of guilty to the

felony murder and drug charges. Mr. Randolph testified that he had known Ms. Bunkley for

approximately twenty years, and Ms. Bunkley had been involved in Petitioner’s case from the

beginning. Mr. Randolph stated that he called Ms. Bunkley while he was with Petitioner on April

7, 2003, and that the three of them discussed Petitioner’s options. At the end of their three-way

conversation, Mr. Randolph said that he asked Petitioner, “what will you do?” Petitioner responded

that she would “do something like seventeen [for the felony murder charge] plus ten or something

like that [for the drug charges].” With this authorization, Mr. Randolph contacted the prosecutor and
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eventually negotiated recommended sentences of fifteen years for the murder charge and twelve

years for the drug charges. Mr. Randolph testified that he did not tell Petitioner that she had only

one hour to make a decision, and he did not tell her that she would die if she decided not to accept

a plea agreement.

The post-conviction court found that Mr. Randolph did not coerce Petitioner into entering

a plea of guilty. The post-conviction court accredited the testimony of Petitioner’s attorneys

concerning the sequence of events which occurred on April 7 and April 8, 2003, thereby implicitly

finding that Ms. Bunkley’s testimony was not credible. The post-conviction court found that,

[b]oth of [Petitioner’s] trial attorneys indicated that although [Petitioner] was advised

of the fact that she faced execution on a death penalty case, that they did not threaten

her with death. Trial counsel stated specifically that [Petitioner] was advised that her

case did not look good since her husband had agreed to testify against her. Trial

counsel indicated that on April 8, 2003, [Petitioner] did not appear to be under the

influence of any drug. Mr. Taylor stated that [Petitioner] was coherent and

understood the situation. Mr. Randolph also indicated that she understood what was

happening.

Based on our review, we conclude that the evidence does not preponderate against the postconviction court’s findings that Petitioner’s counsels’ representation did not fall below the

reasonable standard demanded of defense attorneys. Petitioner is not entitled to relief on this issue.

C. New Factual Allegations

Petitioner raises for the first time on appeal several new factual allegations supporting her

ineffective assistance of counsel claim. That is, Petitioner argues that Mr. Randolph rendered

ineffective assistance of counsel by failing to obtain a written copyof Mr. Patrick’s second statement

to the police. She also argues that Mr. Randolph failed to adequately review the statement before

advising Petitioner to enter a plea of guilty, and that he implied to Petitioner that she should admit

as true the factual basis for her pleas as presented by the State at the plea submission hearing when

Petitioner believed that the facts were false. Petitioner also contends for the first time on appeal that

Mr. Horner rendered ineffective assistance of counsel because he was not present at the plea

submission hearing, and Mr. Taylor’s assistance was ineffective because he implicitly advised

Petitioner that she should not tell the trial court that she had ingested Benadryl and Visteril before

the hearing.

A petition for post-conviction relief is a single claim for relief under the Post-Conviction

Procedure Act even though the violation may be proved by multiple acts or omissions on the part

of counsel. Thompson v. State, 958 S.W.2d 156, 161 (Tenn. Crim. App. 1997) (citations omitted);

Cone v. State, 927 S.W.2d 579, 581-82 (Tenn. Crim. App. 1995). Thus, all factual allegations must

be presented in one claim. See Tenn. Code Ann. § 40-30-106(d). A petitioner may not relitigate a

claim of ineffective assistance of counsel “by presenting new and different factual allegations” on
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appeal. Thompson, 958 S.W.2d at 161; Roger Clayton Davis v. State, No. 03C01-9902-CR-00076,

2000 WL 21307 (Tenn. Crim. App., at Knoxville, Jan. 14, 2000), perm. to appeal denied (Tenn.

Sept. 5, 2000).

It appears that Petitioner’s additional factual allegations supporting her claim of ineffective

assistance of counsel, which were not raised in her petition for post-conviction relief, are in response

to testimony developed at trial. Furthermore, Petitioner did not make a motion for the postconviction court to consider these additional factual allegations as a basis to prove ineffective

assistance of counsel. The post-conviction court did not make any findings of fact on the factual

allegations Petitioner now raises. See Tenn. R. App. P. 36(a) (No “relief may be granted in

contravention of the province of the trier of fact.”). Consequently, these issues have been waived.

See Cone, 747 S.W.2d at 357.

V. Guilty Plea

Petitioner argues that she could not make an informed choice as to whether or not to accept

the State’s offer of a plea agreement because her attorneys’ advice was based primarily on Mr.

Patrick’s second statement to the police which Petitioner contends was not reviewed by her

attorneys. Petitioner submits that the evidence is clear that she always maintained that she wanted

to proceed to trial on her charges, and that but for the “inadequately prepared advice of her counsel”

she would not have entered a plea of guilty.

When an accused enters a plea of guilty, constitutional considerations mandate that the plea

be voluntarily, understandingly and knowingly entered. See Boykin v. Alabama, 395 U.S. 238, 243,

89 S. Ct. 1709, 1713, 23 L. Ed. 2d 274, 279 (1969); State v. Mackey, 553 S.W.2d 337 (Tenn. 1997).

By entering a plea, the defendant waives certain constitutional rightsincluding the privilege against

self-incrimination, the right to a trial by jury, and the right to confront witnesses. Boykin, 395 U.S.

at 243, 89 S. Ct. at 1714. The defendant’s waiver of these constitutional rights may not be presumed

from a silent record. Id. A plea cannot be voluntary if the accused is “incompetent or otherwise not

in control of his mental facilities” at the time the plea is entered. Blankenship v. State, 858 S.W.2d

897, 904-05 (Tenn. 1993) (quoting Brown v. Perini, 718 F. 2d 784, 788 (6th Cir. 1983)). The trial

court must ascertain if the defendant fully understands the significant consequences of his or her

plea. State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1977). The trial court may consider a number of

factors including the defendant’s relative intelligence, his or her familiarity with criminal

proceedings, whether the defendant was represented by competent counsel and had the opportunity

to confer with counsel about options, the advice give by counsel and the trial court about the charges

against the defendant and the penalty to be imposed, and the defendant’s reasons for pleading guilty.

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

The post-conviction court found that the trial court advised petitioner during her plea

submission hearing of her right to trial by jury, her right to confront and cross-examine witnesses,

and her right against self-incrimination. The post-conviction court further found that:
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Petitioner was questioned carefully about other issues to make sure that she fully

understood what she was doing. [Petitioner] testified under oath that she understood

the various ranges of punishment if she were tried and convicted as charged.

[Petitioner] also stated under oath that her attorneys had answered all of her questions

that she had about her plea of guilty. She stated further that her attorneys had done

everything that she had asked and expected them to do in preparing her cases, and she

was satisfied completely with the way she had been represented by both Mr.

Randolph and Mr. Taylor.

The post-conviction court further found that Petitioner “had a clear understanding of the

maximum consecutive sentences from both the testimony [of] trial counsel and from the transcript

of the guilty plea . . . and that [Petitioner] was well-informed of the issues in her cases, and she

understood fully the nature and consequences of her plea.”

Based on our review of the record, we conclude that the evidence does not preponderate

against the post-conviction court’s finding that Petitioner voluntarily, knowingly and intelligently

entered her pleas of guilty to all of the charged offenses. Petitioner is not entitled to relief on this

issue.

CONCLUSION

After a thorough review, we affirm the judgment of the post-conviction court.

___________________________________ 

THOMAS T. WOODALL, JUDGE