### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Septem ber 18, 200 2 Session

CHARJ ORAY P . WEIR V


### . STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Wilson County

No. 98-1597 J. O. Bond, Judge

No. M2002-00079-CCA-R3-CD - F iled December 30, 2002

The Petitioner

was indic ted for f

irst deg ree mur der. Purs uant to a p lea ag reemen t, he pled guilty to seconddegree murder, and received a sentence of fifteen y ears to servein the Tennessee Department of Correct ion. The Pe

titioner t hen file d a petitio n for post

- conv iction relief, alleging that he was denied effective assistance of counse l resulting in an unknowing and involuntary guilty plea. The
tr ial cou rt dismissed the petition based on its untimely filing. However , our Court reversed that findi ng. The Petitioner filed an amended petition, and following an evidentiar y hea ring, the trial
court denied the request for post-conviction relief. The Petitioner now a ppeals, arguing that the trial
court erred by denying him post-conviction relief. Finding no error, we a ffirm the judgment

of the trial court.

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

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which T HOM AS T. W OODA LL and J AMES C URWOOD W ITT , J R ., JJ., joined.

Brody N . Kane, Lebanon, Te nnessee, for the appellant, Charjoray P. Weir.

Paul G. Summers, Attorney Gene ral and Repor

ter; David H. Find

ley , Assistan

t Attorne y General ; Tom P. Thompson, Jr., District Attorney General; and Robert Hibbe tt, Assistant District

Attorney General, for the appellee, State of Te nnessee.

OPINION

I. FACTUAL

BACKGROUND

A. Guilty Plea Hear

ing

On January 22, 1999, the Petitioner pled guilty to second de gree murder, and pursuant to the plea agree

ment, the trial cou rt senten ced the Pe

titioner t o fiftee n ye ars inca

rcera tion. At the

ple a hearing, the following dialogue transpired between the trial court and the Petitioner:-2-

Q. Tell us your full leg al name, Mr. Weir? A. Charjoray P. Weir. Q. Case number 98-1597. I’m looking at a Request for Acceptance of a P lea of Gu il ty, Petition to Wai ve Tr ial by Jury and to Waive an Appeal. Is that y our signatu re on this document ? A. Yes, sir. Q. Did y ou go ove r it and re ad it bef

ore you signe d it? A. Yes, sir. Q. Did y ou talk to y

our lawy er about it? A. Yes, sir. Q. Do y ou have a

ny q uestions y ou want to

ask your attorney or to a sk me about what you’re doing

here? A. No, sir. Q. Are you u nder t he inf luenc e of any type of drug, m edici ne or an ything? A. No, sir. Q. So you feel l ike you kn ow wha t you’re d oing? A. Yes, Sir. Q. An d i s yo ur pl ea of

gu il ty v ol un ta ry? A. Yes, sir. Q. How old are y ou? A. Tw en ty.
Following the above dialogue, the prosecution stated what it would attempt to prove if the

case were taken to trial. The trial court then to ld th e P et it io ne r t ha t h e d id no t h av e t o p le ad gu il ty, that he had the

right to a trial. T he court also told the Petitio ner that

if the ca se were

taken to t rial, he would hav e the oppo

rtunity to cross-examine the State’s witnesses and the right to subpoena his

own witnesses. The Petitioner stated that he wished to waive his righ t t o a tr ia l a nd pl ea d g ui lt y. He maintained that he understood his sentence.

B. Post-Conviction Hearing

The following proof was presented at the hea ring on the petition for post-conviction relief. Counsel who represented the Petitioner at the time of his guilty plea testifiedthat she had worked forth e public defender’s office for three ye ars. She recalled that during her time at the publi c defender’s office, she only worked on one other homicide case beside s the Petit ioner’s case. She testified that she h ad neve r taken a homicide

case to t rial. Coun sel testif

ie d that in ad

dition to working for thre e y ears in th e public d efende r’s offi ce, she a

lso was in p

rivate p ractic e for

a yea r. She stated that during her y ear in private practice, she only worked on one criminal case.

C ounsel testified that she had reviewed the Petitioner’s file prior to the hea ring. She acknowledged

that the Petitioner was indicted in October 1998. Counsel testified that she met with the Petitioner

on December 11, 1998 at River Bend, but she could not recall how long the meeting lasted. She state d that at th is first me eting, s he obtained and too k notes on “basic info rmation”-3-

regarding the offense resulting in the Petitioner’s incarce ration. Counsel did no t recall if she met withthe Petitioner again while he was at River Be nd. Counsel testifi ed that she thought she met withthe Petitioner on another occasion, possibly at the jail. She testified that her notes indicate d that she met with the Petitioner on at least two occasions prior to the court date.

Counsel testifi ed that her notes indicated that on December 11, 1998 she discussed a plea offer with the Petitioner. She state d that she “must hav e talked

to him quite

a w hi le be ca us e [ th ey] would have talked ab out a lot of dif ferent things.” Counsel testified that she was “sure that [she]
must ha ve” d iscussed the indictment with the Petitioner because that is her “standard proce dure.” She stated, “ In fa

ct I’ m sure we

probably didthat the v ery

first time we met, be

cause w hat I would al wa ys do when I would meet with a cli ent initia lly i s, whethe

r it was a complain t or indict ment I would alw ay s . . . rea

d it aloud to

them and d

iscuss wit h them w hat th e charge was, wha t the state would have to prove against them, what the possible punishment would be, and I would usually

. . . maybe discuss . . . what of fer might come from the state.”

Counsel testified that if she was preparing for a trial in a homicide case, there would be “an in-depth investigation of all the facts.” However, she stated that such an investigation is no t a lw ays necessary when a defendant wants to plead guilty . Counsel testifi ed that she would refer cases to investigators rather

than inve stigatin g herse

lf. She sta ted that so me of

her notes in this case appeared
to be “written either by L

arry or Gary Ma c” Foster. From her notes, counsel de termined that Foster must have been with her at River Bend.

Counsel testified that

she quest ioned the Petitioner

about witn

esses, a nd the Petitioner sa

id that he thought the victim beat him with brass knuckles two weeks prior to the offense in this case. She stated that she had

a list of w itnesses a s to the all eged b rass knuckles beating and that Marcus Carey was one of those w itnesses. Counsel a cknowle dged th at there

was nothing in her

notes to indicate that any investiga

tion was done regarding Care y, that any

phone calls werema de to Ca re y,
or that any statement wa s taken from Carey . She testified that also o n the lis t of witnesses were Kendra Bass, LaShelta Cason, Billy Clark, Ethel Neal, Betty Petty, and a boy

named Booky

or Bu ck y. Counsel stated that the name Lavoris Martin wa s in Gary Mac ’s notes. She testified that she could not find in her notes the name Maurice McGowan. Counsel testified that L atoya Ande

rs o n
was also listed in her notes as a witness. She testified that she did not see any thing in her notes that reflected that she had talked

to any of the wit nesses. C ounsel te stified,“ The [D]efe ndant in this case pled so quickly we didn’t pre pare the case for trial.”

Counsel testified that the Pet itioner did n ot always want to plea d guilty, but the Petitioner

never told her that he wante d to go to t

rial. She testifie d that the

Petitioner

told her th at the vic tim had a gun. Couns el agreed that the re was a short time

from the indictmen

t until the g

uilty plea in this case. She stated

that she d

id not conf

er with the attorn ey

that rep resente d the Petiti oner in general sessions. Accord

ing to co unsel’s n otes, the

Petitioner

waived h

is r ight to a preliminary hearin g. Counsel agreed that the Petitioner only had the benefit of what the State’s case would be when making h

is plea a nd not the b enefit o f a prelim in ar y h earing or any investigation from the public defender’s office. She stated that she di d not know if it would have been helpful for the-4-

Petitioner to have had the be

nefit of investig ators tal

king to so me of the

potentia l witnesse s. Counsel acknowledged

that she filed a motion for discovery , bu t she did no t specifically r ecall any other motions.

Counsel did not re call dis cussi ng w ith the Peti tioner op tions reg arding

suppress ing his
statemen t. She testified that it would have been part of her “normal procedu

re” to a dvise def endants of the eleme

nts of each charge, but she stated that she would not have necessarily documented that she did so. She testified that she did not speak to any witnesse s regarding the bras s knuckle

incident

. Counsel acknowledged that two guns and a knife were found in the victim’s car, but she did not talk
to anyone to ver

ify how the g

uns got there. She testified that the Petitioner did nottell her about any threats that wer

e made a gainst h im. Counsel testified that it would have been part of her “normal procedure” to talk to the Petitioner about the requirements of ente ring a knowing plea.

Counsel testified about her discussions with the Petitioner regarding h is plea a

greem ent. Alth ough sh e coul d not recall exact ly what wa s dis cusse d, she state d the f ollo wing: I would have gone over

. . what kind of evidence [the State] had against him, what the [S]tate would have to prove and then I would expla

in to him . . . wh at the pos sible punishmen

ts for that was, if he went to tri al and wa s found g uilty . Then I

would discuss the plea and every thing having to do with . . . second degree murder . . . what he would be pleading to, the knowing killing of another . And that he would get the minimum of the range, fifteen to twenty -five. That the DA had offered the minimum of fifteen , but that . . . he woul d have to s erve ei ghty -five pe rcent of that b efore he would ever be considered for any type of par

ole. She stated that although she could not recall, she was “sure [she] must have” discussed with the Petitioner how provocation and voluntary manslaughter would have affected the case.

Regarding the actual plea agreement, c ounsel stated that she alwa ys r ead the p lea ag

reemen ts to defenda

nts and then asked them if they understood every

thing. She stated, “I neve r let anybody plead that didn’t understand what they were getting themselves into.” Counsel testified that she was “sure” she did legal research on the c ase. She could not recall how much time she spent on the case.

On cross-e

xamination, counsel t

estified that she isan assoc iate dea n at the Na shville

School of Law and that s he had be en there for a litt le over a ye ar. She te st ified that she work ed on “we

ll over a th ousand criminal c ases” while she was at the public defender’s offic e. Counsel stated that there was handwriting in the Petitioner’s file other than her own. She stated that Gary Mac Foster probably helped with the Petitioner’s case. She did not recall if Foster met with any of the witnesses in this case. Counsel testified that she di scussed the possibility of a self-de fense claim with the Petitioner.

Counsel testifie d that she

was appo inted to thi s case at the end of November

1998, and that she met with

the Petitioner on December 11, 1998. According to counsel, the State made a plea offer shortly after her first

meeting with the Pe

titioner. Sh e noted that the Pe titioner w as orig inally charged wi th f irst degree murder, and the off er was for the Petitioner to plead to second deg ree-5-

murder and serve fifteen y

ears in prison. Cou nsel testi fied that the offer was presented to the Petitioner on January 15, 1999 in the Wilson County jail.

Counsel testified that it was the Petitioner’s decision to accept the offer by the State and that she didnottell him to ta

ke the of fer. She stated tha

t she was willing to t

ake the Pe

titioner’ s case to trial. Counsel did not recall the Petitioner saying tha

t he did not understand anything about the plea agree ment. She maintained t hat if the Petitioner had said that he did not understand the plea agreement, she would not have let him plead. Counsel testified that the Petitioner never indicated that he did not understand any part of the plea process or that he did not w ant to plead guilty. She didnot reca

ll that the Petitioner

had any complain ts about he

r not inter viewing witnesse s. She also didnot reca

ll any family members suggesting that the Petitioner not plead guilty. Counsel stated tha t all discovery wa s completed before the plea agr eement.

Marcus Carey

testifie d that he w as a

witness to the shooting in this case. Accordingto Ca re y, he, the Petitioner, LaShelta Cason, and Kendra Bass were standing on the Petitioner’s mother’s f ront porch about to le ave to go to the movies. He

recalled that the

y then “saw

[the victim] come up the hill in the projects.” Carey testified that he kne w that the Pet itioner and the victim had been in a prio r alter cation, so he told the Petitioner that they should leave . He testified that they stopped a t Bass’s house and he and the Petitioner went inside so Carey could get a jacket and a

“cold drink.” Carey testifie d that whe

n they came out of the hou se, he “h

eard Ke ndra say ing some thing,” so he told the Petitioner to “get in the car and don’ t even wo

rry about it.”He rec alled tha t the “who le time” they were getting

in the car, Bass “was doing some a rguing or some talking to somebody down the street.”

Carey testifie d that as he was t rying to g et in the car, the victim’s mother “walked up the street” and Bas s and Caso n went insi de the hou se. He sta te d tha t the n ext

thing he knew, the Petitioner and the victim were arguing. Car ey testified that the

victim appeared

to be “reaching for something or trying

to grab [the Petitioner] or something like that.” Carey testified that prior to the altercation, he had se en the victim in his car possibly looking for something . Carey stated tha t he heard a shot and looked up to see the victim walking down the sidewalk and the Petitioner and his uncle “fighting over the g un.”

Carey testified that the Petitioner did not appear to be the aggr essor in the situation. He stated that

they “aske d [the victim] nicely not to come up the street and when he came up the stree t that’s when [the Petitioner and the vi ctim] start

ed arg uing, a nd all this. ” Carey

noted tha t the victi m
was bigger than the Petitioner and that the Pe

titioner w as “sca

red” of the victim . On cros sexamination, he testified that he never saw the victim with a weapon.

Kendra Bass testified that she had known the Petitioner for most of her life. She stated that she lived with

her husba

nd Marcu s Carey . Bass te stifie d that on th e night of the offense, she, the Petitioner, Carey, a

nd Cason were al l gett ing read y to go out to eat . She rec alled tha t the four some stopped at her house “to get a coke.”Bass reported that as they were entering the house, “wor ds started going back and forth.” She testified tha t the Petitioner and the victim were arguing and tha t-6-

she said, “just leave us alone, don’t nobody start shooting or whatever

. . . .” Bass testified that she was unlocking the door to her house when she observe d the vict

imwalk t o his car and go thro ugh his trunk. She

reporte d that she

went into t

he house and call ed 911. B ass testif ied that sh

e did not go back outside.

Bass testifie d that she

gave a statemen t to police . Howeve

r, sh e stated

that s he was never contacted by any one else for information about the incident. Bass testified that she would have been willing to talk about

what she had obse

rved. On cross-e xamination, Bass ac

knowledg ed that sh

e did not witness the actual shooting. She also stated that she did not see the victim with a gun.

LaShe lta Cason testified that on the night of the offense, she, the Petitioner, Carey, a nd Bass

were all about

to go out. She testified that she was dating the Petitio ner at the time. Ac cording to Cason, before going out, they stopped at Bass’s house to get somet hing to drink. She sta

ted, “We all got out of the car, [and] a conflict got started between [the Petitioner] and [the victim].” Cason testified that Bass went inside the house to call the police, and Cason followed her. She r eported that it d id not appe ar as if the Petitioner wanted to “start something” with the victim. Cason acknowledged that the victim was quite a bit bigg er than the Petitioner.

Cason testified that she gave a statement to police, but was not contacted by defense counsel. She stated that

she would have been willing to provide defense c ounsel with information about the incident

. On cross-examination, Cason acknowledged that she did not actually see the shooting and that she did not

see the victim with a

weapon. She also

stated that she d

id not see the Petitio ner with a weapon. Cason testified that before the shooting, she sa w the victim looking through his car.

The Petitioner testified that he was twenty-three-yea rs-old at the time of

the post-conviction hearin g. He testifiedthat another attorney

represented him at the genera l sessions level. He stated that the first time he me

t counsel was while

he was in River Bend. The Petitioner recalled that a man accompanied

counsel t o the pris on. He te stified th at he trie d to ask coun sel about his case and the possibility

of a self-defense arg

ument. The Petitioner stated, the “only thing the y ke pt telling me if I go to trial I’m g oing to get a life sentence a nd so I needed t o take fifteen y ears at eighty -five percen t. He recalled that he met

with coun sel for a

pproximate

ly an hour on that day. T

he Petitioner testified that he told counsel about potential witnesses and told her about a prior incident where the victim alle gedly

hit the Peti

tioner with brass k

nuckles.

The Petitioner testified that he also talked to counsel on the day that h e accepted the plea agree ment. He stated that the first time he appeared in court bef ore Judge Bond was whe n he acceptedt he plea agreement. The Petitioner r eported that the first time he heard of the offer w a s the day he a

ccepted the plea agreement. He maintained that he did not meet with counsel between the visit at River Bend and when he pled gu ilty. The Petitioner stated that before he accepted the plea, counsel talked to him about the offer. Ho wever, he contends that he did not understand “becau se the only thing that wa s on [his] mind” was the thought that if he went to trial he was going
to get a life sentence. The Petitioner testified that he contin ued to ask coun sel about

the possib ility-7-

of a self-d efense argument. He testified that on the day he pled guilty, he spoke

to counsel for about thirty minutes.

The Petitioner testified tha t he never saw the indictment. He stated that counsel did not explain to him how self-defense would work or the elemen ts of voluntary manslaug

hter. The Petitioner maintains that he was never told that he could be convicted of a lesser offense if he proceeded

to trial. He maintains that he would not h ave pled guilty if he had been informed that he might have been convicted of a lesser off ense at trial. He stated that he did not believe he had any other options other than accepting the fifteen y ear plea agree

ment.
Regarding the nigh

t of the of

fense, t he Petition

er testif ied that he, Cason, Carey and Bas s were about to go out to dinner and the movies. He reported

that the foursome was at his mother’s house when they saw

the victim drive “up the hill.” The Petitioner stated tha t the four some wen

t to Bass’s house to g et something to drink. Acco rding to the Petitioner, when they came outside, the victim’s mother began

telling the Petitioner

that he should have left her son alone. The Petitioner testifie d that Car

ey told him toget in the car. He stated that he was going to get in the ca r, but the victim and his mot

her kept walking towards h

im. The Pet

itioner r eported that he sa id something to the victim which “got him hot.” He reported that he stepped out into the street and was surrounded by the victim, the victim’s mother, and the victim’s uncle.

The Petitioner testified that they wer e “having words” when he saw the victim

“reach for a gun.” He stated that he believed that his actions were taken in self -defense. The Petitioner testified that he saw the victim’s nephew “Bookie” pick up the victim’s gun and leave after the shooting. He testified that “no body

[was] in terviewed about nothing.” He maintained that he wa s not advised regarding lesser- included offenses and what the State had to prove in his case. He also stated that counsel did not review the range of punishment that he could face. When asked if he made a knowledg eable

choice to plead guilty , the Petitioner stated, “I was sca red, sir. I was sca red bec ause I didn’t want to get no life sentence. I had two kids I had to get

home to, so I took the

fifteen, what they was telling me to take.” He testified that he did not feel like counsel properly represented

him. The Petitioner reported that he did not havethe benefit of knowing what the witnesses would testify to at trial or the benefit of any investigation by the de

fense.

On cross-e xamin ation, the Petitioner acknowledged that he shot the victim but claimed it was in self-defense. He agr

eedthat none of the witnesses that testified at thepost-conviction hearing saw the victim with a weapon. T he Pe titioner viewed in court a copy of the plea agreement. He acknowledged

that it was signed on January

15, 1999. He also acknowledged that he pled g uilty on January 22, 1999. The Petitioner

then tried to say that he ple d guilty on the same da y that he signed the agreement. He stated that if he did sign on a different day , he did “not remember seeing it.”

The Peti tio ner admitted that when he pled guilty , he told the trial court that he understood the plea agreement. Howeve r, he testified that he had problems reading the document andonly plead because counsel i nformed

him that oth

erwise he would be facing life imprisonment. He testified that he told the trial court

that he had re ad the doc

ument bec ause he w as “sca red.” T he Petition

er also-8-

admitted that he tol d t he trial court that he had talked to counsel about the plea ag reement. The Petitioner acknowledged

that he to ld the trial court that he did not have any questions regarding the plea agree

me nt. The Pe

titioner s tated, “ At the time I guess I knew wha

t I wa s doing, I to ok th e fifteen, it wasn’t no life sentence.” He also stated that his plea “was voluntary

with the evidence [he] knew.”

On re-direct, thePetitioner testified that he told the trial court that he read the plea agree ment because he did not want anyone

to know that he could not read. The Petitioner testified that counsel “read it back there and told [him] what [he] had to do on it and stuff.” He stated that he was aware that he might have been

convicted of a lesser-included offense butthen stated that he did not know that at the time.

II. AN ALYS IS

The Petitioner

argue s that due

to ineffe ctive as sistance

of counse

l, he did not e nter a voluntary and knowing guilty

plea. Specifically , he contends that he was not properly advised as to the evidence against him and the option of proceeding to trial and asserting tha t he had acted in selfdefense. In or

der to obtain post-conviction relief, a petitioner must show that his or her conviction

or sentence is void or voidable because of the abridgme nt of a constitutional right. Tenn. Code Ann. § 40-30-203. The petitioner bears the burden of proving factua l alleg ations in th

e petitionfor postconviction relief by c lear and convincing evidence. Id. § 40-30-210(f). A post-conviction court’s factual findings are subject to a de novo review b y th is Court; however, we must accord these factual findi ngs a p re su mp ti on of co rr ec tn es s, wh ic h i s o ve rc om e o nl y w hen a prep onderance of the evidence is contra

ry to the post-conviction court’s factual findings. Fields v. State , 40 S.W.3d 450, 456 (Tenn. 2001). A post-conviction cour t’s con cl us io ns of

la w a re su bj ec t t o a pu re ly de novo review by this Court, with no presumption of correctness. Id. at

457. The Tennessee Supreme Court has held that the issue of ineffective assistance of counsel is a mixed question of law and fact and, as such, is subject to de novo review. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999).

The right of a criminally accused to representation is guar anteed by both the Sixth Amendment

to the United States Constitution and Article I, Section 9 of the Tennessee Constitution. Id. ; Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). This right to representation includes the right to “reasonably

effective” assistance. Burns , 6 S.W.3d at 461. In reviewing a claim of ineffective assistanc e of coun sel, this Court m ustdetermine whether the advice g iven or services rendered by the att orney are wi thin the ran ge of competence demanded of attorne ys i n crimina

l cases. Baxter , 523 S.W.2d at 936. To prevail on a claim of ineffective assistance of counse l, a petitioner
must show that “counsel’s representation fell below an obje ctive standard of reasonableness,” Strickland v. Washington , 466 U.S. 668, 688 (198 4), and t hat this performance prejudiced the defense, resulting in a failure to produce a reliable result. Id. at 687 ; Cooper v. State , 849 S.W.2d 744, 747 (Tenn.1993). To satisf y the requir

ement of prejudic e, a petitioner mus t show a re asonable prob ability

that, but f

or counse l’s unre asonable

error, the fac t finder w ould have had rea sonable doubtregarding the petitioner’s g uilt. Strickland
, 466 U.S. a t 695. This reasona

ble proba bility must-9-

be “sufficient to un dermine con fidence in the outcome.” Id. at 694; see also Harris v . State , 875 S.W.2d 662, 665 (Tenn. 1994).

This standard also applies to claims arising out of the plea proce ss. Hill v. Lockh art , 47 4 U.S. 52, 58 (1985). To satisfy the r equirement of prejudice in a case involving a guilty plea, the petitioner must demonstrate a

reasonable probability

that, but for

counsel’ s error s, he or sh

e “would not have pleaded guilty

and would have insisted on going to trial.” Id. at 59.

When evaluating an ineffective a ssis tance o f coun sel cl aim, t he revi ewing c ourt s houl d jud ge the attorney’s pe

rformance within the context of the case as a whole, taking into account all relevant circumst ances. Strickland , 466 U.S. at 690 ; State v. Mitchell , 753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court must evalua te the ques tionable conduct from the attorney ’s perspective at the time. Strickland , 466 U.S. at 690; Cooper , 849 S.W.2d a t 746; Hellard v. State
, 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the revie wing court must be highl y defer ential and “should indulge a strong presumpt

ion that c ounsel’s conduct f alls within th e wide range of

reasona ble professional assistance.” Burns , 6 S.W.3d at 462. Counsel should not be deemed to have been ineffective merely

because a different proce dure or strategy

might have produced a differe nt result. Williams v. Sta

te , 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980).

In order to

sati sfy constitu ti on al st an da rd s, a p le a o f g ui lt mu st be en te re d k no wi ng ly, voluntar ily and intelligently. See Boykin v. Alabama , 395 U.S. 238, 243 (1969). This includes an intentional relinquishment or aband onment of known constitutional rights, i ncluding the right against compulsory

self-incrimination, the right to confront witnesses, and the right to a trial by jury. Bates

v. State , 973 S.W.2d 615, 624 (Tenn. Crim. App. 1997). “‘[T]he standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open
to the defendant.’” Powers v. State , 942 S.W.2d 551, 556 (Tenn . Cri m. App . 1996 ) (quo ting Alford
, 400 U.S. at 31). “When a competent petitioner knowingly and voluntarily choosesa lawful course of action or defense strategy , counsel is essentially bound by that decision.” Zago

rski v. Sta te , 983 S.W.2d 654, 658-59 (Tenn. 1998).

In determining whether the petitioner’s guilty pleas were knowing and voluntary , this Court must look at the totality of the circumstances. State v. Turner , 919 S.W.2d 346, 353 (Ten n. Crim. App. 1995); Chamberl ain v. Stat e , 815 S.W.2d 534, 542 (Tenn. Crim. App. 1990). In doing so, we may review

any rele vant evidence in the record, including the post-c onviction proceedings. Turner , 919 S.W.2d at 353. [A] court charged with determining w hether [the] pleas were “voluntary ” and “intellig ent” must look to v arious c ircumsta ntial factors, suc h as the r ela tiv e intelligence of

the defe ndant; the degre e of his f

amiliarit y w ith criminal

procee dings; whether he was represented by

competent counsel and had th e opportu nity to confer withcounsel about the options available to hi m; the ex tent of advice from counsel and the cour

t concer ning the charg es aga

inst him; and the r

easons f or his dec ision to plead guilty, including

a desire to avoid a greater penalty that migh t result from a jury trial.-10-

Blanke nship v. Sta

te , 858 S.W.2d 897, 904 (Tenn. 1993).

In this case, the post-conviction court concluded that the Petitioner receive d effective assistance of co unsel and that he consequently e ntered his pleas knowingly and voluntarily. The record indicates that

before accepting the Petitioner’sguilty plea, the trial court asked the Petitioner if he re ad his plea agreement, if he talked to c ounsel about the plea, and if he understood his plea. The Petitioner responded affirmatively to these questions. The Petitioner was then informed of the State’s factual allega

tions and h

is right t o a trial. The Petiti oner mai ntained t hat he und

erstood h is sentence and pled guilty

.

We find nothi ng in

the record to indicate that the trial court erred in finding that counsel was effectiveand that

the Petitioner’s guilty plea was ente red know ingly

and volun

tarily . Accor

ding to the trial court, there is nothing unusual about a lawy er not writing every

thing that is sai d t o a defendant in his or her notes. The tria l court sta ted that th e Petitione

r appea red to have understood his plea ag

reemen t. Althoug

h counsel could

not speci fically

recall s ome of he

r conver sations with the Petitioner, she maintained that it was her normal procedu re with defendants to read the indictmen t, discuss the charges, discuss what the State would have to prove , a nd discuss possible punishments. She also testified that in the case of plea agreements, she would alway s go over the plea agreement with the defendants and ma ke sure that they

understo od what every

thing me ant. We agree with the tr

ial cour t that ther e is nothin g in the r

ecord to indicate that coun sel was de

ficient i n this case or that the Petitioner’s plea was not entered knowing ly and voluntarily

. Accordingly , the judgment of the trial court is AFFI RMED.

___________________________________ ROBERT W. WEDEMEYER, JUDGE