# FILED
July 10, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE AT JAC KSON APR IL SESSION, 199 7

AL BERT LEWIS, ) ) No. 02C01-9512 -CR-00394 Appellant ) ) SHELBY COUNTY vs. ) ) Hon. BERNIE WEINMAN, Judge STA TE OF TENN ESSEE, ) ) (Post-Conviction) Ap pellee ) ) (Three cou nts of A ggravated ) Rape; One Co unt Aggravated Ro bb er y) For the Appell ant : For the Appell ee : JAM ES A . COHEN CHA RLES W. BUR SON Attorney at Law Attorney Gen eral and Repor ter 200 Jefferson Avenue Suite 925 SARA H M. BRA NCH Memphis, TN 38103 Assistant Att orney Gener al Criminal J ustice Div ision 450 James Roberts on Parkway JEAN NE REA Nashvil le, TN 37243-0493 Attorney at Law 6000 Poplar Avenue Suite 401 WILLIAM GIBBONS Memphis, TN 38117 Distric t Attorney General REGINA LD HENDER SON Asst. Dist rict Attor ney General Shelby County District Attorney's Office Criminal J ustice Complex 201 Poplar Avenue, Third Floor Memphis, TN 38103

OPINION FILE D: AFFIRMED

David G . Hayes Judge2 OPINION
The appellant, Alber

t Lewis, appeals from the dis missal of his pet ition for post-convi ction reli ef. On December 17, 1991, the appellant pled guilt y in the Shelby Count

y Crimi nal Court to three counts of ag gravated rape, and, on January 10, 1992, to one cou nt of aggravated robbery. He received a sentence of twenty years for each ag gravated rape convi ction and a senten ce of eight years for th e aggrav

ated robbery

convicti on. All senten ces were ordered to run concurrently . On March 2, 1994, the appell ant filed a petiti on for post-conv iction relief alleg ing that his

guilty pleas wer

e not entered know ingly and voluntar ily and that he receiv

ed the ineffective assistance of coun sel. Specifically, he contends that his pleas were not voluntary because neither counse l nor the trial court advised him of his Fifth Ame ndment right against self-incriminatio n. In reference to his ineffective assistance o f counsel claim, he alleges t hat trial counsel failed to file pre-tr ial motions, fail ed to interv iew potenti al witnes ses, and misinfor med him of his release date. The post-conviction court conducte d an evidentiary hearing and den ied relief. The app ellant now appeals this denial.
At the post-conv iction heari ng, the appell ant's trial counsel testi fied that she filed motions for

discover

y, investigated the charges ag ainst her cl ient, and intervi ewed potential witness es. Moreover, counsel t estified that she reviewed with the appellant the implications of waiving his rig ht to a jury trial, including his right that he could not be co mpelled to incr iminate himself. Trial counsel denied making any promise to the appellant concerning the length of time he would serve. The t ranscript of the December 17, 1991 , guilty plea hearing reflects that the a ppel lant

was spec ific all y ad vi sed b y th e tr ial jud ge o f hisrig ht ag ainst se lfincri mina tion . The Stat e con cede s, ho wever, that the t rans cript of t he Ja nua ry
10, 1992, plea hear ing does not i ndicate that the a ppellant, on that occasion,3

was adv ised of his ri ght against self-incri mination by t he trial ju dge.
In denying relief, the post -convic tion court ac credited the te stimony of the appellant's tr ial counsel and concluded that "at the time the [appe llant] entered his guil ty plea he und erstood his r ight agai nst self-incr imination and he en tered his guil ty plea freel y and vol untarily ." The court further found that trial counsel "appropriately

investi gated the case" and did not misi nform the appellant as to his period of i ncarceration

.

When this court undertakes review of a lower court's decis ion on a petition for post -convic

tion relief, th e lower court's finding s of fact are giv en the weight of a jury verdict and are conclusive on appeal absent a finding that the evidence preponderates agai nst 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 r

ecord reflects

that the appellan t was not ad vised of his right against self-incrimination at the January 10, 1992, guilty plea hearing, the record is clear t hat the appellant was informed of and had acknowl edged this s ame right twenty- four days earl ier. Moreover, the pr oof establishes th at trial co unsel explained to

the appellant hi s right a gainst sel f-incriminati on in addition t o other constitutional rights h e was rel inquishingby enteri ng a plea of gui lty. In Johnson v. State , 834 S.W.2d 922, 924 (Tenn. 1992), our supreme court r eiterated the prin cipa l tha t "f or a p lea t o be k nowin g and inte llige nt th e acc used must have certain know ledge reg arding . . .the [constitut ional] protec tions afforded the accused." The court distinguishe d the fact that a def endant may be aware of his constitutional rights even though n ot advised t hereon. Id . at 925. Additionally, if an al leg atio n that thedefen dant was not a dvi sed o f hisrig ht ag ainst se lfincriminati on is supported by the ev idence, the burde n 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 r ebut the alleg ation wit h proof that "the [defendant]4

was aware of his consti tutional ri ghts and that t herefore the tri al court's failure to give themandated advic e was harml ess error. " Id . If, as in the case at bar, the record show

s by clear

and convinc ing evi dence that the plea was know ing and voluntary , then the appella nt is not enti tled to reli ef. Id . The record i ndicates that the appellant under

stood his ri ght against self-incri mination and that hi s guilty plea s were e nter ed kn owingl y and vo lunt arily. Afte r revie wing th e rec ord, we cannot conclude t hat the eviden ce preponderates against the post-convi ction court's findin gs. Accor dingly , we find no er ror of law mandating rev

ersal of the court's judg ment. The post-conv iction cour t's denial of the appellant's pet ition for post-convi ction reli ef is affirmed.

____________________________________ DAVID G. HA YES, Judge
CONCUR:

________________________________ JOSEPH M. TIPTO N, Judge

________________________________ W ILLIAM M. BARKER, Judge