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

Briefs J une 3, 2003, at Jackson
ANDREW LEVI JEF FERSON v. STA TE OF TENNESSEE
Appeal from the Criminal Court for Davidson County No. 2000-A-253 Steve Dozier, Judge

No. M2002-01604-CCA-R3-PC - Filed December 12,2003

The petitioner, Andrew Levi Jeffer son, appeals from the Davidson County CriminalCourt’s denial of post- conv iction and habeas corpus relief. In his amended, c ombined petitions for relief, the petitioner challenges his 2001, guilty -pleaded convictions of seconddegre e murder

and atte mpt to commit especially a

ggravated robbery . On appeal, the petitioner claims post-conviction relief because his trial counsel were ineffective in failing to de feat the transfer of the petitioner’s case from juvenile court to criminal court, in preventing the petitioner from testifying

at the trans fer hea ring, by failing to investigate and discover the petitioner’s mental status, and in failing to present a critical issue in pretri al motions. Also, the p etitioner claims tha

t h is guilty plea s were involuntary and unknowing and that he was deni ed due pr ocess because

he was no

t allowed to testify in the juve

nile
cour t transfer hearing. I n his joined claim for habeas c orpus relief, the petiti oner cla ims that, because of err ors in the tran sfer fr om juvenile

court, the crimina

l court la cked jur isdiction t

o adjudica te his case. Based upon our review, we find no re versible error and affirm the ac tions of the post-con viction c ourt. Tenn. R. App.P. 3; Judg ment of t he Crim inal Court

is Affirme

d.

J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which J OSEPH M. T IPTON and D AVID G. H AYES , JJ., joined.
Dwight E. Scott, Nashville, Tennessee, for the Appellant, Andr ew Levi Jefferson.

Paul G. Summers, Attorney Gene ral & Reporter; Elizabeth

B. Marney , Assistan

t Attorne y General ; Victor S. Johnson, I

II , Dist rict Attorney Gene

ral; and James H. Todd, Assistant District Attorney General, for the Appellee, State of Tenne ssee.-2- OPINION

I. Convic tion Proce edings.

The underlying

offenses relate to the shooting death of Julius Talley. The pe titioner, born August 8, 1981, was seventeen years of age on January 19, 1999, when the underly ing offenses
were committed, and on June 10, 1999, when the juven ile cour t transfe rred his case to c

riminal c ourt. After the transfer, the petitioner was indicted on one count of first degree felony murder, see Tenn. Code Ann. § 39-13-202(a)(2) (2003) (proscr ibing first degree felony

murder), and one c ount of attempt to commit especially ag gravated ro b bery, id. §§ 39-13- 403 (pros cribing especia lly aggravated

robbery as a ClassA offense), -12-101 (attempt), -12-107 (g rading criminal attempt “one (1) classification lower than the most serious crime attempted”) (2003). He was nineteen years of age on January 17, 2001, when he e nteredguilty

pleas in c riminal c ourt to second degree murder a nd attempt to commit especially ag gravated robbery . Pursuant to the plea agreement, he was sentenc ed as a Rang e I o ffende

r to the minimum Class A sentence of fifteen years for second degree murder and to the maximu

m Class B sente

nce of tw elve y

ears fo r attempt to commit

especially a

ggravated
ro bb er y. See id. § 40-35-112(a)(1), (2) (2003) (delinea ting sentencing ranges). These Department of Co rr ec ti on se nt en ce s w er e i mp os ed to ru n c on cu rr en tl y.

a. Tran sfer P roceed ing.

On June 10, 1999, the Davidson County Juvenile Court conducted a hearing pursuant to Tennessee Code Annotated section 37-1-134(a) and to determine whether the “disposition of the [petitioner] shall be as if [he] were an adult.” Id. § 37-1-134(a) (2001). After presenting extensive evidence ab ou t t he pe ti ti on er ’s in vo lv em en t i n t he ho mi ci de an d a tt em pt ed ro bb er y, the prosecutor pr esentedthe petiti oner’s j uvenile c ourt file and aske d the cour

t to consid

er it as e vidence. Th e juvenile court jud ge took “a few minutes to g o throug

h the file s . . . to see . . . the prior record and

. . . prior t reatmen t effort s and the t

hings tha t the code instructsme to look at.” After a recess, the judge reconvened the hearing, se t bond, and concluded the hearing. The juvenile court then enter ed
an order transferring the petitioner’ s case to criminal court. In the order, t h e court r ecounte d its review of the transfer considerations mandated by Tennessee

Code Annotated section 37-1-134(b). The court foundthat the petitioner was seventeen y ears old when the offenses were c ommitted, that he was not committable to an institution for the mentally ill or retarde d, tha t h e committed the charged offenses, and that, upon examination of “the prior record of the [petitioner] and the prior treatment received by

the [petitioner],” the state “has met its burden under T[en nessee] C[od e] A[annotated] [s]ection 37-1-134 regarding the appropriatene ss of transfer.”

b. Su ppres sion Proce eding.
Following the tran sfer to, and the indictment in, crimina l court, th

e peti tioner ’s counsel moved to suppress the petitioner’s January 21 a nd 25, 1999 statements on the grounds that they were ob tained in

violation o f his rig

hts pursua nt to the F ifth, Six th , and Fou

rteenth Amendmen

ts to the United States Constitution and Articles 1, 7, and 8 of the Tennessee Constitution. The motion-3-

alleged that the petitioner’s statements to police officers on both da ys , and to an assistant district attorney general on January

25, 1999, were rendered i n violation of the principles of Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602 (1966). From evide nce pre sente d at th e supp ressi on hea ring, the tri al court

made the

following

finding s of fac t. Acting upon infor

mation sup

pli ed by a n accomplice to the shoo ting of M r. Talle y, o fficer s visited th

e petitioner’s hom

e on January 21, 1999. The petit ioner “agreed to acc ompany [the officers] downtown to answer some questions.” At the Criminal Justice Cen

ter (CJC), t

he petitio ner made statemen ts implicating himself an d “accompanied [an officer] to a location to obtain the alleged murder we apon .” Thereafter, the officer took the petitioner home. After acquiring new information about the c rime, the officer called

the petitioner
on January 25 and asked him “if he would come in for more questions.” The officer “picked up the [petitioner] and proc eeded downtown to the [CJC].” The officer testified that after arriving at the CJC, he rea

d the petitioner his Miranda rights and that the petitioner waived the rights and gave a tape-recorded

statemen t. The off

icer the n arres te d t he petitio ner and t ook him to the Juvenile Detentio n Center, where after the Miranda rights were again explained and wa ived, an assistant district attorney g eneral interviewed him.

In its order

denying suppression, the criminal court found that, despite thepetitioner having been placed in handcuffs while being transported to the CJC on January 21, the petitioner was under no restr aint while being q uestione d and, ac cording ly , was not in custody when interrog ated
on January 21, 1999. Based on that finding, the court then denied suppression o f the Janu ary 21 inculpative statement.

The court then turn ed to conside r whethe r the pet itioner e ffectiv ely waived h

is Miranda rights before giving the inc ulpative statements on January 25. Th e court considered the petitioner’s background and his ability to read and writ e, accredited the testimony of the police officer who described the petitioner’s demeanor during the waiv er process, and found that the petitione r “volunt arily waived h is Miranda rights in both statements given on January 25, 1999.”

c. Gui lty Plea Proce eding.

On January 17, 2001, the petitioner enter ed into a plea agreement which c alled fo r a reducti on of the f

elo ny murde

r charg e to seco nd degr

ee murde r with a min

imum Rang e I, Class A sentence of fifteen y

ears in the Department of Correction. Also, the peti tioner agreed to plead guilty to attempt

to commit e specially a

ggra vated ro bbery and to ser

ve a maximum

Range I , Class B sentence of twelve

years c oncurrently with the second degree murder sente nce. On January 18, 2001, the trial court engaged the pe titioner in a thorough inquiry a bout his desire to plead guilty a nd his waiver o f variou s procedu ral rights. The petitioner acknowledge d that his attorneys had discussed the case

with him an d that he h ad neit her lingering questions nor complaints about counsel’s service. Thetrial judge explained the terms of the plea, including the statutory provision that the second degree

murd er sentence would be served at 100 per cent, and the petitioner acknowledged

that he understood the terms. The judge explained the petitioner’s rig hts to be tried by a jury, to be re

presented by

counsel, to confront adv erse witnesses, to compel the testimony of witnesse s, to avoid self-incrimination, to testify in his own behalf, a nd t o appeal any

adverse1 A 1995 p sychological eval uation report containe d in t he reco rd rev eals that the petition er’s full scale

int elli gence quoti ent (IQ) s core i s 65, plac ing him i n a cl assi fi cati on of mi ld men tal ret ardation. The eval uator foun d, however, that the p etitioner “often ste als from others , . . . prefe rs to be arou nd o th ers who get int o trouble,” has no

remorse for wro ngful or illegal be havio r, is “highly opp osition al and . . . likely to be o pen ly defiant to ward autho rity,” and has a “h igh level of homicidal ideation and violat ion of the ri ghts of others .” The evaluator determined that t he petit ioner, at age t

welve y ears and el even months , “l ikel y presen ts a t hreat to the community .”
-4- adjudica tions. The petitioner acknowledged that he understo od these r

ights and that he wished to waive them in

exchange for the plea arra ngement. The petitioner acknowledg ed that he attained the eighth grade in school, could read and wr i te, and that he understood the plea documents. The prosecutor

stated in detail the factual basis for the pleas, and the petitioner confirmed the truth of

the st at em en t. Th e p et it io ne r a ff ir me d t ha t h e w as pl ea di ng gu il ty f re el y an d v ol un ta ri ly.
II. Post-Conviction Proceeding.

At the post-conviction evidentiary hearing held on May

10, 2002 , the peti tioner’s trial at to rn eys testified. The petitioner’s juvenile court counsel characterized the transfe r proce eding in juvenile court as being one where “ba sically, the issue is whether

the juvenile system can ha ndle the child giventhe factors of the child and the child’s backg round history versus whe

ther a child needs to be in the a

dult sy stem.” Cou

nsel reviewed with the pet itioner hi s ju ve ni le co ur t h is to ry. In 1995, he had been transferred to criminal court on a nother homicide charge that was later dismissed. Following that, he w as adjudi cated de linquent in

juvenile court for committing aggravated robbe ry and attempted homicide, and he was committed to a state j uv enile institution. The petitioner was
on “after-care” from that institution when he committed the instant offenses. Counsel testified that the petitione

r’s prior institution al place

ment was t

he “most intensi ve and severe” form of rehabilitation av ailable i

n the juven

ile justice sy stem. Couns el admitte d that she saw nothing else appropr iateand ava

ilable to the petiti oner thr

ough the juvenile sys tem. 1 Counsel testified that even after she hadspent 25 to

30 hours c onferr

ing with the petitioner, he presented no signs of mental or ps yc hologic al impairme

nt and tha

t he mere ly w anted to w aive any

objectio n to the tra

nsfer to criminal court in exchange for a lower bond. Counsel did not recall whether the petitioner requested to testify at the transfe

r hearing, but she testified that she normally would advise ag ainst a juvenile’s testimony in such a situation.

In criminal court, counsel moved to suppress the pet itioner’s three pretr

ial state ments. She did notrecall discu ssin g with the pe titi oner t he pos sibi lity of ap peali ng the s uppre ssio n ruli ng, butnotwithstanding, she believed that an appeal would have been futile. She admitted that in the suppression procee ding, she did not r aisethe issue

of how muc

h time had

elapsed withthe petitioner in custody

before the state ments were given. Counsel testified that the state had evidence other than the petiti oner’s s tatement s that incu lpated hi m in the inst

ant offe nses.
Counsel testified that she read the plea agre ement to the petitioner and that he seem e d to understa

nd, althou gh coun sel was th en unawa re of the petitione r’s I Q s core. She admitted that knowl edge of the I Q score might have affected the way she explained things to the petitioner. Neverth eless, c ounsel discussed possible theories of defense and explained the theory of criminal-5-

respon si bi li ty, which the petitioner apparently understood. Counsel sought no psyc hological evaluation because the petitioner gave no indication of any mental he alth issue.

The petitione

r testified at the evidentia

ry hearing that he a sked his lawyer w hether he could testi fy at the t ransfe r heari ng; ho wever, he admitted that had he testified, he would have rep eated the accou nt he gave in his pretrial statements. He testified that he had a ttended special education classes and had difficulty reading.

The petitioner testified that on January 25, 1999, he st aye d at the CJC about six or
seven hours before being booked into the juvenile fac ility. He acknowledg ed that counsel visited him seven or eight tim es befor e the ple a hearing but de

nied that he under stood eve

rything she

told him. He testified that he told counsel that hewanted to go to trial but t

hat she ov ercame

his will to do so when sh

e told him that if he were convicted of first degr ee murder, he would receive an automatic life sentence. The petitioner testified that he did not know the meaning of “facilitation”
as a lesser-included offense. He denie d that counsel discusse d lesser -include d offens es with him

. He claimed that he thought the effective fifteen-y ear sentence would be served a t thirty percent.

In its written order den ying post-c onviction relief, the trial court found that “the record is clear that

the juvenile court considered the entire juvenile file on the petitioner . . . when considering whether to transfer these cases.”The post-conviction court found that the juvenile court compli ed with the law when it transferred the petitioner’s ca se to criminal court and, moreover, found that the p etitioner “failed to show how

[his] lack of

testimo ny

[a t the t ransfe r heari ng] rendered the outcome of the t

ransfer he aring u

nreliab le.” The

court ruled that th

e petitioner also fa iled to show that he was prejudiced by his lack of testimony at the transf er hearing. The post

conviction court found that trial cou nsel had a dequate ly p repare d the cas e and advised the petitioner, and the petitioner failed

to show prejudice in support of his claim that counsel should have utilized
a statutory basis for

seeking suppression of the petitioner’s pretrial statements. Also, based upon its rulings that the tran sfer to criminal court was proper, the post-conviction court held that the criminal court ha

d jurisdic tion over

the petiti oner and

his case; it thus denied habeas corpus relief.

III. Pos t-Convic tion Procedure

. The post-conviction petitioner bears the burden of proving his or her allegations by clear and convincing e

vidence . Tenn. Co de Ann. § 4 0-30-110 (f) (20 03). On a ppeal, the appe

llate court accords to the lower court’s finding s of fac t the weig ht of a jur y ve rdict, and these findings are conclusive on appeal unless the evidence prepondera tes against them. Henley

v. State , 960 S.W.2d 572, 578- 79 (Tenn . 1997); Bates v. S tate , 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997).
IV. Adjud

ication of t

he Petitio ner’s Clai

ms.

a. I neffective Assis tance of

Counsel.-6- First, we address the petitioner’s claims that his convictions were the product of ineffective assistance of counsel, in contravention of the Sixth Amendment of the Unit ed States Constitution and Article I, section 9 of the Tennessee Constitution. See Bax ter v. Ros e , 523 S.W.2d 930 (Tenn. 1975). Heclaims tha t counsel was inef fective in failing (1) to pr ess the juvenile

court
on the issues whether the petitioner’s prospects for reha bilitation in the juve

nile sys tem and hi s mild mental retardation defeated the state’s ef fort to transfer

the case to crimina

l court, (2) to present the petitioner as a witness in

the tran sfer he aring, (3) to disc over and exploit the p etitioner ’s mild mental retardationas a means of defe nding the char ges in criminal court, (4) to adequately advise the petitioner prior to entering into a plea agr eement, particul arly

with respect to the possibility of facilita ti on as lesse

r-includ ed offe nses of the charg ed offe

nses, and (5) to ra ise the iss ue of len gth of deten tion in the m

otion to sup

press.

In determining whether the evidence pr eponder ates ag ainst the p ost-convicti on court' s findi ngs that the petitioner received effective a ssistance of counsel, this court

considers (1) whether
couns el's performance was within the rang e of competence demanded

of attorn ey s in crimin al case s, Baxter v. Rose , 523 S.W.2d 9 30, 936 ( Tenn. 1975), and (2) whether any deficient performance prejudiced

the petitioner. Strickland v. Washington , 466 U.S . 668, 687-79, 104 S. Ct. 2052, 2064-2069 (1984); see Powe rs v. State , 942 S.W.2d 551, 557 (Tenn. Crim. App. 1996). We need notaddressthese co mponents i n any particular orde

r or eve n addres s both if the

petitione r fails to meet his burden with respect to one. Henley , 960 S.W.2d at 580.

In evalua ting co unsel 's performance, this cour t should not

examine every

allege dly deficient act or omission in isolation, but rather in the context of the case as a whole. State v. Mitchell , 753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The primary c oncern should be the fundamental fairness of the proceeding whose result is being challenged. Id. This court should not second- guess t ac tical and strategic decisions by defense counsel. Henley , 960 S.W.2d at 579. Instead, this court must reconstruct the circumstances of counsel's challenged c onduct andevaluat e the conduct from counsel's perspective a t the time. Id. ; see also I

rick v. S tate , 973 S.W.2d 643, 652 (Tenn. Crim. App. 1998). Howeve r, this court's deference to c ounsel's tactical decisions will depend upon counsel' s adequa

te investi gation o f defen se options

. Burger v. Kemp , 483 U.S. 776, 794, 107 S. Ct. 3114, 3126 (1987).

Even if the pe

titioner e stabli shes that counsel’s performance was not within the requisite range of competence, he

must also demonstrate a

reasona ble proba bility that the r esult of the proceeding would have been different but for the defective performance of counsel. Henley , 960 S.W.2d at 580. The prejudice pro ng o f the Strickland test “co ntinues to

be the pr imary hurdle to be cleared in Sixth Amendment assistance of counsel cas es,” but “ [t]h is obstacle . . . is not insurmountable.” Profitt v. Waldron , 831 F.2d 1245, 1251 (5 th Cir. 1987).

A court must consider the totality of the evidence before the judge or ju ry. Some of the fa ctual findings will have been unaffected by the
errors , and factual findings that were affected will have been affected in different way s. Some errors will have had a pervasive eff ect on the-7- inferences to be drawn from the evidence, altering the entire evidentiary

picture, and

some will have

had an iso lated, tr

ivial eff ect. Henley , 960 S.W.2d at 580 (citations omitted).

In cases involving a guilty plea or ple a of nolo contendere , the petitioner claiming ineffective assistanc e of coun sel must sho w prejud ice by demonst rating that, but f

or counse l’s erro rs, he would not have pleaded guilty but would have insisted upon going to trial. See Hill v. Lockhar t , 474 U.S. 52, 59 , 106 S. Ct. 36 6, 370 (19 85); Bankston v. State , 815 S.W.2d 213, 215 ( Tenn. Crim. App. 1991).
(1), (2)

First, we review the compl aints that counsel f ailed to adequately

oppose the transfer from juvenile court by neglecting topr esent opt ions for ju

venile r ehabilita tion prog rams and to establish the petitioner’s IQ score of 65. When conside r ing a tr ansfer of a juve

nile to ad

ult disposition

in crimina

l court, th e court i s mandate d to consid er cer tain fac tors:

In making the [transfer] determination required by subsection (a), the court sha ll conside r, among other ma tters: (1) The extent and nature of the child's prior delinquency record s; (2) The natureof past tr

eatment e fforts and the nature of the child's response thereto; (3) Whether

the offense was against person or propert y, with greater weight in favor of transfe r gi ven to offenses against the person; (4) Whether the offense was committed in an agg ressive and premeditated manner; (5) The possibl

e rehabil ita tion of the child by use of procedu res, service s and facil ities curr ently available to the court in this state ; and (6) Whether the child's conduct would be a criminal ga ng offense , as defined in § 40 -35-121, if committed by an adult.

Tenn. Co de A nn. § 37 -1- 114 (b) (20 01) (em pha si s ad ded ). In the present case, the petitioner argues that the juvenile court failed to make any findings about his prospects for rehabilitation through the juve nil e justice system and that his counsel fa iled to press the issue. Implicit in the petitioner’s position is the claim that, hadcounsel advanced the issues of the aptness of juvenile prog rams and the circumstance of the petitioner’s mild mental retardation, the juvenile court would have denied the transfer request. The petitioner arg ues that because counsel failed to highlight his low IQ score, the juvenile court was unaware that it was empowered to grant psy chological or mentalexaminations for the child. See id. § 37-1-128(e) (2001).2 We are a ware t hat the recor d cont ains no psych olog ical report on th e pet it ioner

more re cent

tha n th e 1995 report that was a part

of his juveni le hi story ; however , our t ask in thi s post- convict ion proceedi ng is to deter mine whet her the evi dence pr epondera tes agai nst the post -con vict

ion c ourt ’s fi ndi n g th at t he pet it ioner

fai led t o carr y hi s bur den of proving his claim s by clea r and conv incing e viden ce. See Tenn. Cod e Ann. § 40-30-110(f) (2003 ). In other words, he fail ed to in troduce evi dence at t he post -convi cti on evi denti ary hear ing to show that hi s psychological, ment a l, or rehab ilitative status w as differe nt in 19 99 th an it was in 199 5.
-8- In our v i ew, although the juvenile court could have made mor e specific factual findi ngs relati ve the statut ory factor s for tra

nsferr ing a juv enile to c

riminal c ourt, tha

t court did review the evidence, including the petitioner’s prior juvenile c our t record, and based upon all the evidence, it

essentia lly determined that any

factors favoring a juvenile disposition of the case w ere overcom e by the factors indicating the aptness of a transfer. More over, we mus t agree with the assessment

of the petitioner’s juvenile court counsel that the evidence, including the prior record and evaluation report, showed that the juvenile court had little choice but to transfer the petitioner t o criminal court. In essence , t h e juvenile court had exhausted its available remedies and had previously failed to re

habilitate a

you ng man w ho posed a

violent thr

eat to the commu

nity . Thus, the petitioner has failed to demonstrate the requisite prejudice. More over, we discern no deficient performance

of counsel in failing to take actions to exploit the petitioner’s mental limitat i ons and his rehabilitation potential. Given the petitioner’s dismal chances of prevailing on thetransfer issue,
we must defe

r to couns el’s stra

tegic c hoice to pursue the

petitione r’s req uest by using the opportuni

ty to obtain a lower bond, which counsel was apparently successful in doing.

We believe the overwhelmingevidence favored transfer of the petitioner

to criminal court, 2 and the petitioner’s desireto obtain a lower bondfueled a strategy of acceding to the state’s transfer request once the state had established the probability that the petitioner wa s involved in the crimes. That strategy

logically e

mbraced the tactic that

the petiti oner shou

ld avoid te stify

ing. His testimonywould com

mit the pet

itioner to a sworn, on-the- record

accoun t of his role in

the crime s, and in any event, it likely would have been f utile to testify. Thus, testifying presented a nothing-togain, something-to-lose scenario. The “somethin g to lose” seems particularly poignant when we consider that, had the petitioner

t estified , he would

have adopted and

essentia lly g alvanize d his pretrial inculpat

ive state ments, which in criminal court he later tried to have suppressed. Thus, the petitioner has demon strated no lower- court er ror in finding that

his juvenile court counsel rendered effect ive as sist ance at the tr ansfer hearin g. (3)

The petitione

r claims t hat trial counsel w ere ineffectiv e in failing to discover his mild mental retardation and in failingto employ it as a defense

theory in criminal cour

t. We agree that trial counsel should have be en aware of the petiti oner’s IQ score , but we di scern no prejudic e in failing to discover or utilize the mental status as a defense strateg y. T he petitio ner did not establis h at the evidentiary he aring below how any mental limitation or psy chological condition would have affected his culpa bility for the p resent c rimes or w ould

have impa

ired his c ompetency to

particip ate in the criminal court proc eeding s. Counsel ’s testimo ny, accre dited by the post- convicti on court,-9-

showed that despite many substantive discussions with the petitioner, counsel pe rceived no basis for thinking him

mentally deficient or even for seeking a mental or psychological evaluation. Thus, the post-conviction record

fails to es tablish tha

t the petit ioner wa s prejudi ced by

counsel’ s failure

to discern and exploit his mental and/or psychological condition.
(4)

In his next ineffective assistance issue, the petitioner complains that his trial counsel failedto explai n his legal ci rcumstan ces and, in particular, fa

iled to ad vise him tha

t a trial c ould possibly result in the petitioner

being convicted of facilitation of the charged crimes. See Tenn. Code Ann. § 39-11-403 (2003) (proscribing facilitation of a f elony as an

offense punishable in an

offense class next below t

hat of the

charg ed offe

nse); State v. Burns , 6 S.W.3d 453, 466-67 ( 1999) (establishing facilitation as a lesser-included offe nse of the char ged of fense when compl

icity is an issue).
Assuming that coun sel did not impart this information to the petitione r, and ev en if that lapse eq uates to defic ient performance, we are unpe rsuaded that the petitioner has shown pr ejud ice as co nt em pl at ed by Strickland . The petitioner was otherwise fully advised of his legal circumst ances, includin g t he nature of the state’s theory of his responsibility for the crimes of another. Furthermore, by our reckoning, the

plea a greement was very favorable to the petitioner. The petitioner

wa s f ul ly aware that through this plea ag reement he avoided the risk of life imprisonment

. He failed to convince the post-conviction court that had he been infor med about facilitation as a less er-inc luded off ense, he would hav e eschewed th e plea and gone to trial. The evidence does not preponderate ag ainst this finding.
(5)

In his ne xtclaim of ineffective assistance, the petitioner argues that trial counsel were remiss in not using Tennessee CodeAnnotatedsection 3 7-1-115 a s a basis f or the sup pression of his pretria l stateme nts. That s ection pr

ovides:
(a) A person

taking a child into c

ustody shall withi n a reasonable time : (1) Relea se the child to su ch chi ld's parents, guardian or other custodian upon a pr

omise by such per son or per sons to bring th e child before the cour

t when re

quested b y th

e court u nless such child ' s dete nti on or shelter care is warranted or required under § 37-1-114;
or (2) Bring the

child before the court or deliver such child to a detent ion or shelter care facility designated by

the court or to a medical facility if the child is believed to suff er f rom a serious-10- physical c ondition or illness which requires prompt treatment. A person taking a child into custody sha ll give notice thereof, together with a re ason for

taking t he child in to cu st od y, to a parent, guardian
or other custodian and to the court. If the child is taken into custody pursuant to the provisions of § 37-1-113(a)(3) prior to the filing of a petition, a petition under § 37- 1-120 sha ll be file d as soon a s possible butin no event later than two (2) day s after the child is taken in

to custody excluding

Saturday s, Sunday s and leg al holida ys. (b) If a parent, g

uardian or other custodian, when requested, fails to bring the child before the court as provided in subsection (a), the court may issu e its w arrant direct ing t hat the child be ta ken into custody and brou ght bef

ore the c ourt.

Tenn. Code Ann. § 37-1-115(a), (b) (2001) (emph asis adde d); see id. § 37-1-127(c) (2001) (pro viding that "[a]n extra-judicial statement, if obtained in the course of violation of this part or which would be constituti onally inadmissib le in a crimin al pr ocee ding , sha

ll not be us ed ag ainst

[a child]").

The petitioner relies upon his testimony that on January 25, 1999, he spent up to two and one-half hours at theCJC, where he was interrogated and gave an inculpative statement, befor e being brought to the juvenile center, whe re he was a

gain interrog ated and

gave a nother st atement. The petitioner testified that, in total, six or seven hours elapsed between the time he was picked up at his residence and the time he was ultimately “booked” at the juvenile center.

In our view, the petitioner has failed to show that he was pre judiced by co unsel’s failure to raise the statutory issue in the motion to suppress. First, our supreme court has held that Code sec tion 37-1- 127(c) g uarantees only

that a juv enile' s stateme

nts taken in violation of section 37-1-115 will not be used a gainst him o r her i n a pro ceedin g in juveni le court

. Colyer v. State , 577 S.W.2d 460, 462 (Tenn. 1979) (emphasis added). I n addition, the petitioner failed to show by clear and convincing evidence that the lapse of

time betw een taking him int o custody and deliv ering h

im to the juvenile center was unreasonable.

When considering the suppression of a juvenile ’s post-custody

statemen t, the proper “inquiry is whether the reasonable time requirements of the statute ha ve been met and whether, under the totality of the circumstances, the defendant’s confession was the result of a knowing and intelligent

waiver of his constitutional rights.” State v. Lundy , 808 S.W.2d 444, 446 (Tenn. 1991). We believe that, in looking at the totality of the circumstances, the present case is striki ng ly analogous to Lundy :

At the time police received

in fo rm at io n a bo ut Wi ll ie Lun dy, they did nothave probable cause to make an ar rest, although they

did have an adequa te basis for further investigation. Mor eo ver, individual-11- interrogation

of Lundy

was a reasonab le method of investigation under the circumstances. Within minutes of being pi c ked up from school, Lundy

volunteered

an incri minating

response to his m other 's question. Upon arriving at the police station, Lundy was advised

of his rights and, within an hour and twelve minutes of

leaving school, he had made

a full statement of his involvement in Maxwell's death. Although his detention at the hands of the police lasted bey ond that period of time, the admissibility of subsequently seized evide nce is notat issue. Lundy

was turned over t o the juris diction of juvenile court less than five hours after leaving school. Under the particular facts of this cas e, we h old that thi s was a re asonable period of time under T[ennessee] C[ode] A[nnotated section] 37-1-115(a).
Lundy , 808 S.W.2d at 447. In the present case, it is difficult to determine when the petitioner was placed into custo dy o n January

25; howev er, the c

ustody probably commenced

when the petitioner completedhis first statement on that date. Sometime later, a pparent ly le ss than six or

seven hours, he was taken to t

he juveni le center. Based upon Colyer and Lundy , the petitioner has failed to show that had he raised the statutory issue in his motion to suppress, he would have prevailed. This failure equates to afailure to show prejudice pursuant to Strickland

. See Kimmelman v. Morrison , 477 U.S. 365, 375, 106 S. Ct. 2574, 2583 (1986) (where failure to litigate suppression is basis of ineffectiveness claim, defendant must also prove suppre ssion motion is meritorious).

Thus, we hold

that the record supports the post-conviction court’s determination that the petiti oner fa

iled to est ablish ine ffectiv e assista

nce of c ounsel.

b. In voluntar y, U nknowing Guilty Pleas.
The petitioner next claims that his guilty pleas should be va cated because his pleas
were unknowing and hence involuntary . To be sure, a g uilty plea must be made knowingly and voluntarily. Boykin v. Alabama , 395 U.S. 238, 242-44, 89 S. Ct. 1709, 1712 (1969). To that end, “defendants should be advised of certain of their co nstitutiona

l rights b efore e

ntering pleas of guilt. Included among those required warning s are th e right against self-incrimination, the rig ht to confront witnesse s, and the right to a trial by jury.” Charlton v. State, 987 S.W.2d 862, 86 6 (Tenn. Cr im.-12-

App. 1998). Ou

r suprem e court has identified several relevant factors in determining whether a plea is volunta ry and intelligent:
[A] court charge d w ith determining whether those pleas were "v ol un ta ry" and "intelligent" must look t o vari ous circumstantial factor s, such as the relativeintelligence of the defendant; the degree of his familia

rity with c riminal proceedings; whether he was represented

by c ompetent

counsel a nd had the

opportuni

ty to confer withcounsel a

bout the options ava

ilable to him; the extent of advice from counsel and the court concerning the c harges against him; and the reasons for

his decis ion to plea

d guilty , includin g a des ire to av oid a greater penalty

that might result from jury tr ial.

Wallen v. State , 863 S.W.2d 34, 38 (Tenn. 1993)

Al though, based up on the I Q score , the petitioner’sintellig ence is l ess th a n formid able, the other Wallenfactors support a finding that the petitioner’s plea wa s knowing an d
vo lu nt ar y. The petit

ioner ha d been inv olved pre

viously withproceedings in juvenile court and had experienced

a previous transfe

r of a hom

icide ca se to crim

inal cour t, albeit o ne in

which the ch arge was dismissed. Based upon the record before us, the pe titioner was represented by compe te nt counsel who conferred with him extensively. Counsel’s accredited testimony showed that counsel rendered intricate advice on the issues at hand. Moreover, the record of the plea-submission hearing belies the petitioner’s claim in his brief that “insufficient time was taken to ensure that the Petitioner understood what he was doing.” At the hearing , the trial court tediously explained the petitioner’s rights to him, and the petitioner resp onded af firmativ ely

– not perf unctorily – that he u

nderstoo d his rights and that he waived them. Although he maintained in the post-conviction hearing that he

did notunderstand that the second de gre e murder sentence must be served at 100 per cent, the plea document s reveal otherwise. The petitioner, in his evidentiary hearing testimony , even acknowledged

that trial counsel had

imparted to him an accurate description of the second de gree murder sentence. Also, the trial court expressly informed the petitioner during the plea colloquy that the fifteen-y ear sentence entailed a requir e men t of 100 percent service. The petitioner told the trialcourt that he understood this provision. Finally, it is appare nt on the record that the petiti oner reasonably

agreed to the plea arra

ngement in order to avoid a possible life sentence.

Under all of the circumstances, we conclude that the pos t-convic tion court was justified in determining that the guilty pleas were made knowingly and voluntarily.3 After reviewing t

he history of

both the federal and st ate constit utional guara ntees of the r ight t o testif y, the Momon cour t stated, “[T ]he righ t of a crim inal de fenda nt to te stify in his or her own behal f is a fundament al consti tut ional right .” Id. at 16 1. T hen, the cour t add ed, “S ince the right to testify at one's own tri al is a f undamental right , it foll ows that

the ri ght may only be wa ived pers onally by the defendant .” Id. at 161 (emphasis added).
-13- c. Deni al of R ight t o Test ify at Tran sfer He aring.

C iting Momon v. State , 18 S.W.3d 152 (Tenn. 1999), the petitioner asserts that he was deniedhis right to testify in his juvenile court transf er hearing. I

n Momon , our supr

eme cour t held that “a criminal defendant's right to testify is a fundamental constitutional right guaranteed both by Article I, section 9 of the Te nnessee Constitution and by the Fifth and Fourte enth Amendments to the United Sta

tes Constitu

tion . . . [, a

nd a]s such , the rig

ht must be p ersonally waived by the criminal d efendant.” Id. at 155. We find nothing in the record to indicate that the defenda nt personally wa

ived his testimony at the transfer hearing.

Assum ing, purely

for purp oses of a

rgumen t, that Momon even applies to procee dings other than to a trial on a criminal charge, 3 we have no doubt that a denial of the rig ht was ha rmless beyond a reaso nable

doubt. See id. at

166-67 (“ [D]enial of

the right to testif

y ha s been ap

propria tely characterized

as a trial error which is subject to the h armless error doctrine.”). The petitioner testified at the post-conviction evidentiary hearing that

at the tra nsfer he aring h

e would have testified along the lines o f his i nculpa ting pretrial statements. Thus, we are at a loss to see how such testimonywould have altered the juvenile cour t’s decis ion to tran sfer the case to c riminal c ourt. Furthermore, as we have mentioned above, the juvenile court clearly had unsuc cessfully

utilized its most severe and inten sive prog

rams as a means of rehabil itating a n offend er who is invetera

te l y prone to violent behavior. The eval uation rep ort before the juvenile court said that the petitioner prefers to associ a te with oth er la w-breaking peers, he is “hig hly oppositional and . . . likely to be openly defiant toward

authority[,] . . . has a high level of homicid al ideati on in viola tion of the rights of ot hers [,] . . . has little or no empathy for [his victims, and] . . . is a threat to the community .” Faced with this sanguine portray al of an i ntracta

bly violent pe

rson, we are con fident tha t the juve nile court would have tra nsferr ed the ca se to crim

inal cour t despite the testimony the petitioner say s he would have offered. Thus, he

did not establish by clear a nd convincing evidence that a denial of his right, if any , to testify

at the tra nsfer he aring w ould

have resulted in a juvenile court disposition of his case.

e. Habeas Corpus Claim.

When counsel amended the post-conviction petition, he incl uded a claim that the petitioner was entitled to habeas c orpus relief because the conviction court lacked jurisdiction. He basedth is ar gu me nt up on hi s u nd er lyi n g claim that the ju venile c ourt tran sfer pr

oceeding was in

firm.
First, we are constrained to point out that merely appe

nding a claim in habeas corpus to a petition brought pursuant to the Post-Conviction Procedure Act, Tenn. Code Ann. §§ 40-30-101-14-

et seq . (2003) invites fu

tility . Tennes see la

w requir es t hat habeas corpus claims comply with a statutorily prescribed r

egimen.
(a) Application for the writ shall be made by petition, signed either by t he party for whos e benef

it it is intended, or some person on the petiti oner' s behalf

, and ver ified by affida vit.
(b) The petition shall state:
(1) That the person in whose behalf the writ is sought, i s illega lly restraine d of

liberty, and the per son by whom and place where restrained, mentioning the name of such person, if known, and, if unknown, describing the person w ith as much particularity a s practicable;
(2) The caus e or pretense of such restraint acc ording to the be st in formation of the applicant, and if it be by virtue of any le gal proces s, a copy there of shall be annexed, or a satisfactory reason given for its absence;
(3) Th at the legality

of the restraint has not already been adjudged upon a p rior proc eeding

of the sa me char acter, to the bes t of the applicant's knowledge a nd belief; and
(4) That it is first application for the writ, or, if a previo us application ha s b ee n m ad e, a c op y of the pe titi on and procee dings thereon shall be produced, or satisfactory reasons be given for the failure so to do.

Tenn. Code Ann. § 29-21-107 (2000). By merely stating

the habeas corpus claim as an alternative claim for relief in his post-conviction petiti on, the petitioner has failed to comply with the require ments set forth in Code section 29-21-107(a) and provisions (1), (3), and (4) of subsection 29-21-107(b). “[T]he pro cedura l provision s of the [ha

beas cor pus] statutes a

re manda tory and must be followed scrupulously.” Archer v . State , 851 S.W.2d 15 7, 165 (Ten n. 1993). Thus, thepostconviction ( habeas corpus ) court was warranted in dismissing the claim based upon pr ocedural de fi ci en cy.
The habeas corpus claim is also, however , lacking in its substantive merit. “[T]he writ of [ habeas corpus ] will issue i n Tennes see only when it appears upon the face of the judgment
or the record of the proceeding s upon wh ich th e judgment is rendered that a convicting court was withoutju ri sd ic ti on or au th or it y to sentence a defendant, or that a defendant' s sentence of imprisonmentor other restraint has expired.” State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2 000) (quoting Archer , 851 S.W.2d at 164). “A void judgment is one in which the judg ment is fa cially-15-

invalid because the court lacked jurisdiction or authori ty to render the judgment or because the defendant's sentence

has expired.” Taylor v. S tate , 955 S.W.2d 7 8, 83 (Te nn. 1999) . In c ontrast, “[a] voidable conviction or sentence is one which is facially valid and requires the introduction of proof beyond the fa

ce of the record or

judgment to establish its invalidity.” Ritchie , 20 S.W.3d at 630 (quot ing Taylor , 955 S.W.2d at 83). Facial invalidity means that the “ fact [depriving the court of jurisdict ion] must appe ar clearly

and indisputably either on the fa ce of the judgment or in the original trial record before a writ of habeas corpus can issue from a T ennessee court.” Ritchie, 20 S.W.3d at 633.

The petitioner claims that becau se the juv enile court failed to consider all of the factors for tran sfer to c

riminal c ourt, the transfer order is void, and hence, the criminal court lacked jurisdiction to adjudic ate the p etitioner ’s case . We conclude, however, that the juvenile court’s transfer order r eflectsa comple

te adjudication of the transfer issue. Thus, the claimed defect does not appear on the face of the record and, therefore, cannot g ive rise to a claim in habeas corpus

. Ad di ti on al ly, we have elsewhere in this opinion rejected the c laim that any defect attends the tran sfer pr

oceeding in juve

nile cour t. For thi s reason , as well a s those sta ted immedi ately above, the habeas corpus claim must fail.

V. Conclusion.

We discern no basis for reversing the actions of the lower court and affirm the denial of post-conviction and habeas corpus relief.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE