FILED

July 10, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

APRIL SESSION, 1997

ALBERT LEWIS, )

) No. 02C01-9512-CR-00394

Appellant )

) SHELBY COUNTY

vs. )

) Hon. BERNIE WEINMAN, Judge

STATE OF TENNESSEE, )

) (Post-Conviction)

Appellee )

) (Three counts of Aggravated

) Rape; One Count Aggravated

Robbery)

For the Appellant: For the Appellee:

JAMES A. COHEN CHARLES W. BURSON

Attorney at Law Attorney General and Reporter

200 Jefferson Avenue

Suite 925 SARAH M. BRANCH

Memphis, TN 38103 Assistant Attorney General

Criminal Justice Division

450 James Robertson Parkway

JEANNE REA Nashville, TN 37243-0493

Attorney at Law

6000 Poplar Avenue

Suite 401 WILLIAM GIBBONS

Memphis, TN 38117 District Attorney General

REGINALD HENDERSON

Asst. District Attorney General

Shelby County District Attorney's Office

Criminal Justice Complex

201 Poplar Avenue, Third Floor

Memphis, TN 38103

OPINION FILED: 

AFFIRMED

David G. Hayes

Judge
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OPINION

The appellant, Albert Lewis, appeals from the dismissal of his petition for

post-conviction relief. On December 17, 1991, the appellant pled guilty in the

Shelby County Criminal Court to three counts of aggravated rape, and, on

January 10, 1992, to one count of aggravated robbery. He received a sentence

of twenty years for each aggravated rape conviction and a sentence of eight

years for the aggravated robbery conviction. All sentences were ordered to run

concurrently. On March 2, 1994, the appellant filed a petition for post-conviction

relief alleging that his guilty pleas were not entered knowingly and voluntarily and

that he received the ineffective assistance of counsel. Specifically, he contends

that his pleas were not voluntary because neither counsel nor the trial court

advised him of his Fifth Amendment right against self-incrimination. In reference

to his ineffective assistance of counsel claim, he alleges that trial counsel failed

to file pre-trial motions, failed to interview potential witnesses, and misinformed

him of his release date. The post-conviction court conducted an evidentiary

hearing and denied relief. The appellant now appeals this denial. 

At the post-conviction hearing, the appellant's trial counsel testified that

she filed motions for discovery, investigated the charges against her client, and

interviewed potential witnesses. Moreover, counsel testified that she reviewed

with the appellant the implications of waiving his right to a jury trial, including his

right that he could not be compelled to incriminate himself. Trial counsel denied

making any promise to the appellant concerning the length of time he would

serve. The transcript of the December 17, 1991, guilty plea hearing reflects that

the appellant was specifically advised by the trial judge of his right against selfincrimination. The State concedes, however, that the transcript of the January 

10, 1992, plea hearing does not indicate that the appellant, on that occasion,
3

was advised of his right against self-incrimination by the trial judge. 

In denying relief, the post-conviction court accredited the testimony of the

appellant's trial counsel and concluded that "at the time the [appellant] entered

his guilty plea he understood his right against self-incrimination and he entered

his guilty plea freely and voluntarily." The court further found that trial counsel

"appropriately investigated the case" and did not misinform the appellant as to

his period of incarceration. 

 When this court undertakes review of a lower court's decision on a

petition for post-conviction relief, the lower court's findings of fact are given the

weight of a jury verdict and are conclusive on appeal absent a finding that the

evidence preponderates against the judgment. Clenny v. State, 576 S.W.2d 12,

14 (Tenn. Crim. App. 1978), cert. denied, 441 U.S. 947, 99 S.Ct. 2170 (1979). 

Although the record reflects that the appellant was not advised of his right

against self-incrimination at the January 10, 1992, guilty plea hearing, the record

is clear that the appellant was informed of and had acknowledged this same right

twenty-four days earlier. Moreover, the proof establishes that trial counsel

explained to the appellant his right against self-incrimination in addition to other

constitutional rights he was relinquishing by entering a plea of guilty. In Johnson

v. State, 834 S.W.2d 922, 924 (Tenn. 1992), our supreme court reiterated the

principal that "for a plea to be knowing and intelligent the accused must have

certain knowledge regarding . . .the [constitutional] protections afforded the

accused." The court distinguished the fact that a defendant may be aware of his

constitutional rights even though not advised thereon. Id. at 925. Additionally, if

an allegation that the defendant was not advised of his right against selfincrimination is supported by the evidence, the burden of proving a knowing plea

shifts to the State. Id. However, "it does not, ipso facto, entitle the [defendant]

to relief." Id. The State may rebut the allegation with proof that "the [defendant]
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was aware of his constitutional rights and that therefore the trial court's failure to

give the mandated advice was harmless error." Id. If, as in the case at bar, the

record shows by clear and convincing evidence that the plea was knowing and

voluntary, then the appellant is not entitled to relief. Id. The record indicates that

the appellant understood his right against self-incrimination and that his guilty

pleas were entered knowingly and voluntarily. After reviewing the record, we

cannot conclude that the evidence preponderates against the post-conviction

court's findings. Accordingly, we find no error of law mandating reversal of the

court's judgment. The post-conviction court's denial of the appellant's petition for

post-conviction relief is affirmed.

____________________________________

DAVID G. HAYES, Judge

CONCUR:

________________________________

JOSEPH M. TIPTON, Judge

________________________________

WILLIAM M. BARKER, Judge