IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 3, 2003, at Jackson

ANDREW LEVI JEFFERSON v. STATE 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 Jefferson, appeals from the Davidson County Criminal Court’s denial

of post-conviction and habeas corpus relief. In his amended, combined petitions for relief, the

petitioner challenges his 2001, guilty-pleaded convictions of second degree murder and attempt to

commit especially aggravated robbery. On appeal, the petitioner claims post-conviction relief

because his trial counsel were ineffective in failing to defeat the transfer of the petitioner’s case from

juvenile court to criminal court, in preventing the petitioner from testifying at the transfer hearing,

by failing to investigate and discover the petitioner’s mental status, and in failing to present a critical

issue in pretrial motions. Also, the petitioner claims that his guilty pleas were involuntary and

unknowing and that he was denied due process because he was not allowed to testify in the juvenile

court transfer hearing. In his joined claim for habeas corpus relief, the petitioner claims that,

because of errors in the transfer from juvenile court, the criminal court lacked jurisdiction to

adjudicate his case. Based upon our review, we find no reversible error and affirm the actions of the

post-conviction court.

Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

JAMES CURWOOD WITT,JR.,J., delivered the opinion of the court, in which JOSEPH M. TIPTON and

DAVID G. HAYES, JJ., joined.

Dwight E. Scott, Nashville, Tennessee, for the Appellant, Andrew Levi Jefferson.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General;

Victor S. Johnson, III, District Attorney General; and James H. Todd, Assistant District Attorney

General, for the Appellee, State of Tennessee.
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OPINION

 I. Conviction Proceedings.

The underlying offenses relate to the shooting death of Julius Talley. The petitioner,

born August 8, 1981, was seventeen years of age on January 19, 1999, when the underlying offenses

were committed, and on June 10, 1999, when the juvenile court transferred his case to criminal court.

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) (proscribing first degree felony murder), and one count of

attempt to commit especially aggravated robbery, id. §§ 39-13-403 (proscribing especially

aggravated robbery as a Class A offense), -12-101 (attempt), -12-107 (grading 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 entered guilty pleas in criminal court to second degree murder and

attempt to commit especially aggravated robbery. Pursuant to the plea agreement, he was sentenced

as a Range I offender to the minimum Class A sentence of fifteen years for second degree murder

and to the maximum Class B sentence of twelve years for attempt to commit especially aggravated

robbery. See id. § 40-35-112(a)(1), (2) (2003) (delineating sentencing ranges). These Department

of Correction sentences were imposed to run concurrently.

 a. Transfer Proceeding.

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 about the petitioner’s involvement in the homicide and attempted robbery, the prosecutor

presented the petitioner’s juvenile court file and asked the court to consider it as evidence. The

juvenile court judge took “a few minutes to go through the files . . . to see . . . the prior record and

. . . prior treatment efforts and the things that the code instructs me to look at.” After a recess, the

judge reconvened the hearing, set bond, and concluded the hearing. The juvenile court then entered

an order transferring the petitioner’s case to criminal court. In the order, the court recounted its

review of the transfer considerations mandated by Tennessee Code Annotated section 37-1-134(b).

The court found that the petitioner was seventeen years old when the offenses were committed, that

he was not committable to an institution for the mentally ill or retarded, that he 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[ennessee] C[ode]

A[annotated] [s]ection 37-1-134 regarding the appropriateness of transfer.” 

 b. Suppression Proceeding.

Following the transfer to, and the indictment in, criminal court, the petitioner’s

counsel moved to suppress the petitioner’s January 21 and 25, 1999 statements on the grounds that

they were obtained in violation of his rights pursuant to the Fifth, Sixth, and Fourteenth Amendments

to the United States Constitution and Articles 1, 7, and 8 of the Tennessee Constitution. The motion
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alleged that the petitioner’s statements to police officers on both days, and to an assistant district

attorney general on January 25, 1999, were rendered in violation of the principles of Miranda v.

Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). From evidence presented at the suppression hearing,

the trial court made the following findings of fact. Acting upon information supplied by an

accomplice to the shooting of Mr. Talley, officers visited the petitioner’s home on January 21, 1999.

The petitioner “agreed to accompany [the officers] downtown to answer some questions.” At the

Criminal Justice Center (CJC), the petitionermade statementsimplicating himselfand “accompanied

[an officer] to a location to obtain the alleged murder weapon.” Thereafter, the officer took the

petitioner home. After acquiring new information about the crime, 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 proceeded downtown to the [CJC].” The officer testified that after arriving at the

CJC, he read the petitioner his Miranda rights and that the petitioner waived the rights and gave a

tape-recorded statement. The officer then arrested the petitioner and took him to the Juvenile

Detention Center, where after the Miranda rights were again explained and waived, an assistant

district attorney general interviewed him. 

In its order denying suppression, the criminal court found that, despite the petitioner

having been placed in handcuffs while being transported to the CJC on January 21, the petitioner was

under no restraint while being questioned and, accordingly, was not in custody when interrogated

on January 21, 1999. Based on that finding, the court then denied suppression of the January 21

inculpative statement. 

The court then turned to consider whether the petitioner effectively waived his

Miranda rights before giving the inculpative statements on January 25. The court considered the

petitioner’s background and his ability to read and write, accredited the testimony of the police

officer who described the petitioner’s demeanor during the waiver process, and found that the

petitioner “voluntarily waived his Miranda rights in both statements given on January 25, 1999.”

 c. Guilty Plea Proceeding.

On January 17, 2001, the petitioner entered into a plea agreement which called for

a reduction of the felony murder charge to second degree murder with a minimum Range I, Class

A sentence of fifteen years in the Department of Correction. Also, the petitioner agreed to plead

guilty to attempt to commit especially aggravated robbery and to serve a maximum Range I, Class

B sentence of twelve years concurrently with the second degree murder sentence. On January 18,

2001, the trial court engaged the petitioner in a thorough inquiry about his desire to plead guilty and

his waiver of various procedural rights. The petitioner acknowledged that his attorneys had

discussed the case with him and that he had neither lingering questions nor complaints about

counsel’s service. The trial judge explained the terms of the plea, including the statutory provision

that the second degree murder sentence would be served at 100 percent, and the petitioner

acknowledged that he understood the terms. The judge explained the petitioner’s rights to be tried

by a jury, to be represented by counsel, to confront adverse witnesses, to compel the testimony of

witnesses, to avoid self-incrimination, to testify in his own behalf, and to appeal any adverse
1

A 1995 psychological evaluation report contained in the record reveals that the petitioner’s full scale

intelligence quotient (IQ) score is 65, placing him in a classification of mild mental retardation. The evaluator found,

however, that the petitioner “often steals from others, . . . prefers to be around others who get into trouble,” has no

remorse for wrongful or illegal behavior, is “highly oppositional and . . . likely to be openly defiant toward authority,”

and has a “high level of homicidal ideation and violation of the rights of others.” The evaluator determined that the

petitioner, at age twelve years and eleven months, “likely presents a threat to the community.” 

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adjudications. The petitioner acknowledged that he understood these rights and that he wished to

waive them in exchange for the plea arrangement. The petitioner acknowledged that he attained the

eighth grade in school, could read and write, 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

statement. The petitioner affirmed that he was pleading guilty freely and voluntarily.

II. Post-Conviction Proceeding.

At the post-conviction evidentiary hearing held on May 10, 2002, the petitioner’s trial

attorneys testified. The petitioner’s juvenile court counsel characterized the transfer proceeding in

juvenile court as being one where “basically, the issue is whether the juvenile system can handle the

child given the factors of the child and the child’s background history versus whether a child needs

to be in the adult system.” Counsel reviewed with the petitioner his juvenile court history. In 1995,

he had been transferred to criminal court on another homicide charge that was later dismissed.

Following that, he was adjudicated delinquent in juvenile court for committing aggravated robbery

and attempted homicide, and he was committed to a state juvenile institution. The petitioner was

on “after-care” from that institution when he committed the instant offenses. Counsel testified that

the petitioner’s prior institutional placement was the “most intensive and severe” form of

rehabilitation available in the juvenile justice system. Counsel admitted that she saw nothing else

appropriate and available to the petitioner through the juvenile system.1 Counsel testified that even

after she had spent 25 to 30 hours conferring with the petitioner, he presented no signs of mental or

psychological impairment and that he merely wanted to waive any objection to the transfer to

criminal court in exchange for a lower bond. Counsel did not recall whether the petitioner requested

to testify at the transfer hearing, but she testified that she normally would advise against a juvenile’s

testimony in such a situation.

In criminal court, counsel moved to suppress the petitioner’sthree pretrial statements.

She did not recall discussing with the petitioner the possibility of appealing the suppression ruling,

but notwithstanding, she believed that an appeal would have been futile. She admitted that in the

suppression proceeding, she did not raise the issue of how much time had elapsed with the petitioner

in custody before the statements were given. Counsel testified that the state had evidence other than

the petitioner’s statements that inculpated him in the instant offenses.

Counsel testified that she read the plea agreement to the petitioner and that he seemed

to understand, although counsel was then unaware of the petitioner’s IQ score. She admitted that

knowledge of the IQ score might have affected the way she explained things to the petitioner.

Nevertheless, counsel discussed possible theories of defense and explained the theory of criminal
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responsibility, which the petitioner apparently understood. Counsel sought no psychological

evaluation because the petitioner gave no indication of any mental health issue. 

The petitioner testified at the evidentiary hearing that he asked his lawyer whether he

could testify at the transfer hearing; however, he admitted that had he testified, he would have

repeated the account he gave in his pretrial statements. He testified that he had attended special

education classes and had difficulty reading. 

The petitioner testified that on January 25, 1999, he stayed at the CJC about six or

seven hours before being booked into the juvenile facility. He acknowledged that counsel visited

him seven or eight times before the plea hearing but denied that he understood everything she told

him. He testified that he told counsel that he wanted to go to trial but that she overcame his will to

do so when she told him that if he were convicted of first degree 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 denied that counsel discussed lesser-included offenses with him.

He claimed that he thought the effective fifteen-year sentence would be served at thirty percent. 

In its written order denying post-conviction 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

complied with the law when it transferred the petitioner’s case to criminal court and, moreover,

found that the petitioner “failed to show how [his] lack of testimony [at the transfer hearing]

rendered the outcome of the transfer hearing unreliable.” The court ruled that the petitioner also

failed to show that he was prejudiced by his lack of testimony at the transfer hearing. The postconviction court found that trial counsel had adequately prepared the case 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 transfer to criminal court was proper, the post-conviction court held that the

criminal court had jurisdiction over the petitioner and his case; it thus denied habeas corpus relief.

 III. Post-Conviction Procedure.

The post-conviction petitioner bears the burden of proving his or her allegations by

clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f) (2003). On appeal, the appellate

court accords to the lower court’s findings of fact the weight of a jury verdict, and these findings are

conclusive on appeal unless the evidence preponderates against them. Henley v. State, 960 S.W.2d

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

 IV. Adjudication of the Petitioner’s Claims.

a. Ineffective Assistance of Counsel.
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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 United States

Constitution and Article I, section 9 of the Tennessee Constitution. See Baxter v. Rose, 523 S.W.2d

930 (Tenn. 1975). He claims that counsel was ineffective in failing (1) to press the juvenile court

on the issues whether the petitioner’s prospects for rehabilitation in the juvenile system and his mild

mental retardation defeated the state’s effort to transfer the case to criminal court, (2) to present the

petitioner as a witness in the transfer hearing, (3) to discover and exploit the petitioner’s mild mental

retardation as a means of defending the charges in criminal court, (4) to adequately advise the

petitioner prior to entering into a plea agreement, particularly with respect to the possibility of

facilitation as lesser-included offenses of the charged offenses, and (5) to raise the issue of length

of detention in the motion to suppress.

 

In determiningwhetherthe evidence preponderates against the post-conviction court's

findings that the petitioner received effective assistance of counsel, this court considers (1) whether

counsel's performance was within the range of competence demanded of attorneys in criminal cases,

Baxter v. Rose, 523 S.W.2d 930, 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 Powers v. State, 942 S.W.2d 551, 557 (Tenn. Crim. App. 1996). We need

not address these components in any particular order or even address both if the petitioner fails to

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

In evaluating counsel's performance, this court should not examine every allegedly

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 concern should be the

fundamental fairness of the proceeding whose result is being challenged. Id. This court should not

second-guess tactical and strategic decisions by defense counsel. Henley, 960 S.W.2d at 579. 

Instead, this court must reconstruct the circumstances of counsel's challenged conduct and evaluate

the conduct from counsel's perspective at the time. Id.; see also Irick v. State, 973 S.W.2d 643, 652

(Tenn. Crim. App. 1998). However, this court's deference to counsel's tactical decisions will depend

upon counsel's adequate investigation of defense options. Burger v. Kemp, 483 U.S. 776, 794, 107

S. Ct. 3114, 3126 (1987). 

Even if the petitioner establishes that counsel’s performance was not within the

requisite range of competence, he must also demonstrate a reasonable probability that the result of

the proceeding would have been different but for the defective performance of counsel. Henley, 960

S.W.2d at 580. The prejudice prong of the Strickland test “continues to be the primary hurdle to

be cleared in Sixth Amendment assistance of counsel cases,” but “[t]his obstacle . . . is not

insurmountable.” Profitt v. Waldron, 831 F.2d 1245, 1251 (5th Cir. 1987). 

A court must consider the totality of the evidence before the judge or

jury. Some of the factual findings will have been unaffected by the

errors, and factual findings that were affected will have been affected

in different ways. Some errors will have had a pervasive effect on the
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inferences to be drawn from the evidence, altering the entire

evidentiary picture, and some will have had an isolated, trivial effect.

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

In cases involving a guilty plea or plea of nolo contendere, the petitioner claiming

ineffective assistance of counsel must show prejudice by demonstrating that, but for counsel’s errors,

he would not have pleaded guilty but would have insisted upon going to trial. See Hill v. Lockhart,

474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985); Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim.

App. 1991).

 (1), (2)

First, we review the complaints that counsel failed to adequately oppose the transfer

from juvenile court by neglecting to present options for juvenile rehabilitation programs and to

establish the petitioner’s IQ score of 65. When considering a transfer of a juvenile to adult

disposition in criminal court, the court is mandated to consider certain factors:

In making the [transfer] determination required by subsection (a), the

court shall consider, among other matters:

(1) The extent and nature of the child's prior delinquency

records;

(2) The nature of past treatment efforts and the nature of the

child's response thereto;

(3) Whether the offense was against person or property, with

greater weight in favor of transfer given to offenses against the

person;

(4) Whether the offense was committed in an aggressive and

premeditated manner;

(5) The possible rehabilitation of the child by use of

procedures, services and facilities currently available to the court in

this state; and

(6) Whether the child's conduct would be a criminal gang

offense, as defined in § 40-35-121, if committed by an adult.

Tenn. Code Ann. § 37-1-114(b) (2001) (emphasis added). In the present case, the petitioner argues

that the juvenile court failed to make any findings about his prospects for rehabilitation through the

juvenile justice system and that his counsel failed to press the issue. Implicit in the petitioner’s

position is the claim that, had counsel advanced the issues of the aptness of juvenile programs and

the circumstance of the petitioner’s mild mental retardation, the juvenile court would have denied

the transfer request. The petitioner argues that because counsel failed to highlight his low IQ score,

the juvenile court was unaware that it was empowered to grant psychological or mental examinations

for the child. See id. § 37-1-128(e) (2001).
2We are aware that the record contains no psychological report on the petitioner more recent than the 1995

report that was a part of his juvenile history; however, our task in this post-conviction proceeding is to determine whether

the evidence preponderates against the post-conviction court’s finding that the petitioner failed to carry his burden of

proving his claims by clear and convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2003). In other words, he

failed to introduce evidence at the post-conviction evidentiary hearing to show that his psychological, mental, or

rehabilitative status was different in 1999 than it was in 1995. 

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In our view, although the juvenile court could have made more specific factual

findings relative the statutory factors for transferring a juvenile to criminal court, that court did

review the evidence, including the petitioner’s prior juvenile court record, and based upon all the

evidence, it essentially determined that any factors favoring a juvenile disposition of the case were

overcome by the factors indicating the aptness of a transfer. Moreover, we must 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 to

criminal court. In essence, the juvenile court had exhausted its available remedies and had

previously failed to rehabilitate a young man who posed a violent threat to the community. Thus,

the petitioner has failed to demonstrate the requisite prejudice. Moreover, we discern no deficient

performance of counsel in failing to take actions to exploit the petitioner’s mental limitations and

his rehabilitation potential. Given the petitioner’s dismal chances of prevailing on the transfer issue,

we must defer to counsel’s strategic choice to pursue the petitioner’s request by using the opportunity

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

We believe the overwhelming evidence favored transfer of the petitioner to criminal

court,2

and the petitioner’s desire to obtain a lower bond fueled a strategy of acceding to the state’s

transfer request once the state had established the probability that the petitioner was involved in the

crimes. That strategy logically embraced the tactic that the petitioner should avoid testifying. His

testimony would commit the petitioner to a sworn, on-the-record account of his role in the crimes,

and in any event, it likely would have been futile to testify. Thus, testifying presented a nothing-togain, something-to-lose scenario. The “something to lose” seems particularly poignant when we

consider that, had the petitioner testified, he would have adopted and essentially galvanized his

pretrial inculpative statements, which in criminal court he later tried to have suppressed. Thus, the

petitioner has demonstrated no lower-court error in finding that his juvenile court counsel rendered

effective assistance at the transfer hearing.

(3)

The petitioner claims that trial counsel were ineffective in failing to discover his mild

mental retardation and in failing to employ it as a defense theory in criminal court. We agree that

trial counsel should have been aware of the petitioner’s IQ score, but we discern no prejudice in

failing to discover or utilize the mental status as a defense strategy. The petitioner did not establish

at the evidentiary hearing below how any mental limitation or psychological condition would have

affected his culpability for the present crimes or would have impaired his competency to participate

in the criminal court proceedings. Counsel’s testimony, accredited by the post-conviction court,
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showed that despite many substantive discussions with the petitioner, counsel perceived no basis for

thinking him mentally deficient or even for seeking a mental or psychological evaluation. Thus, the

post-conviction record fails to establish that the petitioner was prejudiced 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

failed to explain his legal circumstances and, in particular, failed to advise him that a trial could

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 felony as an offense punishable in an offense

class next below that of the charged offense); State v. Burns, 6 S.W.3d 453, 466-67 (1999)

(establishing facilitation as a lesser-included offense of the charged offense when complicity is an

issue).

Assuming that counsel did not impart this information to the petitioner, and even if

that lapse equates to deficient performance, we are unpersuaded that the petitioner has shown

prejudice as contemplated by Strickland. The petitioner was otherwise fully advised of his legal

circumstances, including the nature of the state’s theory of his responsibility for the crimes of

another. Furthermore, by our reckoning, the plea agreement was very favorable to the petitioner.

The petitioner was fully aware that through this plea agreement he avoided the risk of life

imprisonment. He failed to convince the post-conviction court that had he been informed about

facilitation as a lesser-included offense, he would have eschewed the plea and gone to trial. The

evidence does not preponderate against this finding. 

(5)

In his next claim of ineffective assistance, the petitioner argues that trial counsel were

remiss in not using Tennessee Code Annotated section 37-1-115 as a basis for the suppression of his

pretrial statements. That section provides: 

(a) A person taking a child into custody shall within a

reasonable time:

(1) Release the child to such child's parents, guardian or other

custodian upon a promise by such person or persons to bring the child

before the court when requested by the court unless such child's

detention 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

detention or shelter care facility designated by the court or to a

medical facility if the child is believed to suffer from a serious
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physical condition or illness which requires prompt treatment. A

person taking a child into custody shall give notice thereof, together

with a reason for taking the child into custody, 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 shall be filed as soon as possible

but in no event later than two (2) days after the child is taken into

custody excluding Saturdays, Sundays and legal holidays.

(b) If a parent, guardian or other custodian, when requested,

fails to bring the child before the court as provided in subsection (a),

the court may issue its warrant directing that the child be taken into

custody and brought before the court.

Tenn. Code Ann. § 37-1-115(a), (b) (2001) (emphasis added); see id. § 37-1-127(c) (2001)

(providing that "[a]n extra-judicial statement, if obtained in the course of violation of this part or

which would be constitutionally inadmissible in a criminal proceeding, shall not be used against [a

child]").

The petitioner relies upon his testimony that on January 25, 1999, he spent up to two

and one-half hours at the CJC, where he was interrogated and gave an inculpative statement, before

being brought to the juvenile center, where he was again interrogated and gave another statement.

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 prejudiced by counsel’s

failure to raise the statutory issue in the motion to suppress. First, our supreme court has held that

Code section 37-1-127(c) guarantees only that a juvenile's statements taken in violation of section

37-1-115 will not be used against him or her in a proceeding in juvenile court. Colyer v. State, 577

S.W.2d 460, 462 (Tenn. 1979) (emphasis added). In addition, the petitioner failed to show by clear

and convincing evidence that the lapse of time between taking him into custody and delivering him

to the juvenile center was unreasonable. 

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

“inquiry is whether the reasonable time requirements of the statute have 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 strikingly

analogous to Lundy: 

At the time police received information about Willie Lundy, they did

not have probable cause to make an arrest, although they did have an

adequate basis for further investigation. Moreover, individual
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interrogation of Lundy was a reasonable method of investigation

under the circumstances. Within minutes of being picked up from

school, Lundy volunteered an incriminating response to his mother'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 beyond that

period of time, the admissibility of subsequently seized evidence is

not at issue. Lundy was turned over to the jurisdiction of juvenile

court less than five hours after leaving school. Under the particular

facts of this case, we hold that this was a reasonable 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 custody on January 25; however, the custody probably commenced when the petitioner

completed his first statement on that date. Sometime later, apparently less than six or seven hours,

he was taken to the juvenile 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 a failure 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 suppression motion is meritorious). 

Thus, we hold that the record supports the post-conviction court’s determination that

the petitioner failed to establish ineffective assistance of counsel.

 b. Involuntary, Unknowing Guilty Pleas.

The petitioner next claims that his guilty pleas should be vacated because his pleas

were unknowing and hence involuntary. To be sure, a guilty 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 constitutional rights before entering pleas of guilt.

Included among those required warnings are the right against self-incrimination, the right to confront

witnesses, and the right to a trial by jury.” Charlton v. State, 987 S.W.2d 862, 866 (Tenn. Crim.
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App. 1998). Our supreme court has identified several relevant factors in determining whether a plea

is voluntary and intelligent:

[A] court charged with determining whether those pleas were

"voluntary" and "intelligent" must look to various circumstantial

factors, such as the relative intelligence of the defendant; the degree

of his familiarity with criminal proceedings; whether he was

represented by competent counsel and had the opportunity to confer

with counsel about the options available to him; the extent of advice

from counsel and the court concerning the charges against him; and

the reasons for his decision to plead guilty, including a desire to avoid

a greater penalty that might result from jury trial. 

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

 Although, based upon the IQ score, the petitioner’s intelligence is less than

formidable, the other Wallen factors support a finding that the petitioner’s plea was knowing and

voluntary. The petitioner had been involved previously with proceedings in juvenile court and had

experienced a previous transfer of a homicide case to criminal court, albeit one in which the charge

was dismissed. Based upon the record before us, the petitioner was represented by competent

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 responded affirmatively – not perfunctorily – that he understood his

rights and that he waived them. Although he maintained in the post-conviction hearing that he did

not understand that the second degree murder sentence must be served at 100 percent, the plea

documents reveal otherwise. The petitioner, in his evidentiary hearing testimony, even

acknowledged that trial counsel had imparted to him an accurate description of the second degree

murder sentence. Also, the trial court expressly informed the petitioner during the plea colloquy that

the fifteen-year sentence entailed a requirement of 100 percent service. The petitioner told the

trialcourt that he understood this provision. Finally, it is apparent on the record that the petitioner

reasonably agreed to the plea arrangement in order to avoid a possible life sentence. 

Under all of the circumstances, we conclude that the post-conviction court was

justified in determining that the guilty pleas were made knowingly and voluntarily. 
3

After reviewing the history of both the federal and state constitutional guarantees of the right to testify, the

Momon court stated, “[T]he right of a criminal defendant to testify in his or her own behalf is a fundamental

constitutional right.” Id. at 161. Then, the court added, “Since the right to testify at one's own trial is a fundamental

right, it follows that the right may only be waived personally by the defendant.” Id. at 161 (emphasis added).

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c. Denial of Right to Testify at Transfer Hearing.

Citing Momon v. State, 18 S.W.3d 152 (Tenn. 1999), the petitioner asserts that he was

denied his right to testify in his juvenile court transfer hearing. In Momon, our supreme court held

that “a criminal defendant's right to testify is a fundamental constitutional right guaranteed both by

Article I, section 9 of the Tennessee Constitution and by the Fifth and Fourteenth Amendments to

the United States Constitution . . . [, and a]s such, the right must be personally waived by the

criminal defendant.” Id. at 155. We find nothing in the record to indicate that the defendant

personally waived his testimony at the transfer hearing. 

Assuming, purely for purposes of argument, that Momon even applies to proceedings

other than to a trial on a criminal charge,3 we have no doubt that a denial of the right was harmless

beyond a reasonable doubt. See id. at 166-67 (“[D]enial of the right to testify has been appropriately

characterized as a trial error which is subject to the harmless error doctrine.”). The petitioner

testified at the post-conviction evidentiary hearing that at the transfer hearing he would have testified

along the lines of his inculpating pretrial statements. Thus, we are at a loss to see how such

testimony would have altered the juvenile court’s decision to transfer the case to criminal court.

Furthermore, as we have mentioned above, the juvenile court clearly had unsuccessfully utilized its

most severe and intensive programs as a means of rehabilitating an offender who is inveterately

prone to violent behavior. The evaluation report before the juvenile court said that the petitioner

prefers to associate with other law-breaking peers, he is “highly oppositional and . . . likely to be

openly defiant toward authority[,] . . . has a high level of homicidal ideation in violation of the rights

of others [,] . . . has little or no empathy for [his victims, and] . . . is a threat to the community.”

Faced with this sanguine portrayal of an intractably violent person, we are confident that the juvenile

court would have transferred the case to criminal court despite the testimony the petitioner says he

would have offered. Thus, he did not establish by clear and convincing evidence that a denial of

his right, if any, to testify at the transfer hearing would have resulted in a juvenile court disposition

of his case.

 e. Habeas Corpus Claim.

When counsel amended the post-conviction petition, he included a claim that the

petitioner was entitled to habeas corpus relief because the conviction court lacked jurisdiction. He

based this argument upon his underlying claim that the juvenile court transfer proceeding was infirm.

First, we are constrained to point out that merely appending a claim in habeas corpus

to a petition brought pursuant to the Post-Conviction Procedure Act, Tenn. Code Ann. §§ 40-30-101
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et seq. (2003) invites futility. Tennessee law requires that habeas corpus claims comply with a

statutorily prescribed regimen.

(a) Application for the writ shall be made by petition, signed

either by the party for whose benefit it is intended, or some person on

the petitioner's behalf, and verified by affidavit.

(b) The petition shall state:

(1) That the person in whose behalf the writ is sought, is

illegally restrained of liberty, and the person by whom and place

where restrained, mentioning the name of such person, if known, and,

if unknown, describing the person with as much particularity as

practicable;

(2) The cause or pretense of such restraint according to the

best information of the applicant, and if it be by virtue of any legal

process, a copy thereof shall be annexed, or a satisfactory reason

given for its absence;

(3) That the legality of the restraint has not already been

adjudged upon a prior proceeding of the same character, to the best

of the applicant's knowledge and belief; and

(4) That it is first application for the writ, or, if a previous

application has been made, a copy of the petition and proceedings

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 petition, the petitioner has failed to comply with the

requirements set forth in Code section 29-21-107(a) and provisions (1), (3), and (4) of subsection

29-21-107(b). “[T]he procedural provisions of the [habeas corpus] statutes are mandatory and must

be followed scrupulously.” Archer v. State, 851 S.W.2d 157, 165 (Tenn. 1993). Thus, the postconviction (habeas corpus) court was warranted in dismissing the claim based upon procedural

deficiency.

The habeas corpus claim is also, however, lacking in its substantive merit. “[T]he

writ of [habeas corpus] will issue in Tennessee only when it appears upon the face of the judgment

or the record of the proceedings upon which the judgment is rendered that a convicting court was

without jurisdiction or authority to sentence a defendant, or that a defendant's sentence of

imprisonment or other restraint has expired.” State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000)

(quoting Archer, 851 S.W.2d at 164). “A void judgment is one in which the judgment is facially
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invalid because the court lacked jurisdiction or authority to render the judgment or because the

defendant's sentence has expired.” Taylor v. State, 955 S.W.2d 78, 83 (Tenn. 1999). In contrast,

“[a] voidable conviction or sentence is one which is facially valid and requires the introduction of

proof beyond the face of the record or judgment to establish its invalidity.” Ritchie, 20 S.W.3d at

630 (quoting Taylor, 955 S.W.2d at 83). Facial invalidity means that the “fact [depriving the court

of jurisdiction] must appear clearly and indisputably either on the face of the judgment or in the

original trial record before a writ of habeas corpus can issue from a Tennessee court.” Ritchie, 20

S.W.3d at 633.

The petitioner claims that because the juvenile court failed to consider all of the

factors for transfer to criminal court, the transfer order is void, and hence, the criminal court lacked

jurisdiction to adjudicate the petitioner’s case. We conclude, however, that the juvenile court’s

transfer order reflects a complete adjudication of the transfer issue. Thus, the claimed defect does

not appear on the face of the record and, therefore, cannot give rise to a claim in habeas corpus. 

Additionally, we have elsewhere in this opinion rejected the claim that any defect

attends the transfer proceeding in juvenile court. For this reason, as well as those stated immediately

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