# FILED
October 28, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JUNE 1998 SESSION

DWIGHT A. MAYTON, ) ) C.C.A. NO. 01C 01-9708-CC-00376 Appellant, ) ) CANNON COUNTY VS. ) ) HON. DON R. ASH, STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPE LLANT: FOR THE APPELLEE: Donald M. Bulloch, Jr. JOHN KNOX WALKUP P. O. Box 398 Attorney General & Repor ter 301 North Spring St. Murfreesboro, TN 37133-0398 DEBORAH A . TULLIS Asst. Attorney General Cordell Hull Bldg., 2nd Fl. 425 Fifth Ave., North Nashville, TN 37243 William Whitesell District Attorney General David L. Puckett Asst. District Attor

ney General 303 Rutherfo rd County Judicial B ldg. Murfreesboro, TN 37130

OPINION FILED:

AFFIRMED JOHN H. PEAY, Judge2 

### O P I N I O N

The petitioner

pled guilty to second -degree murder on May 27, 1977, and
was sentenced to twenty y ears incarceration. On M ay2 4, 1979, the petitioner filed a post-convictionpetition alleging that his plea was not entered voluntarily and that he was de nied the ef fective assistance of counsel.On June 13, 1979, the petitioner filed a motion to withdraw his post-conviction petiti on; however, no or d er was ever entered acting upon this motion. On July 17, 1995, the petitioner filed a “motion for writ of error
coram nobis” to vacate th e judgment. On February 11, 1997, the petitioner filed an amended petition for post-conviction relief alleging that his plea was n ot volun tary, understandin g, and knowing and that he r ec e ived ineffective assistance of counsel. Followingan evidentiaryhearing on May 19, 1997, the post-conviction court denied his petition. It is from this denial that the petitioner now appeals.

Af ter a review of the recor

d and applicable law, w e find no merit to the petition er’s appe al and th us affi rm the jud gment of the court below.

The petition er’s convictions stem from his involvement in the murder of Tom Alroy Ra ines on October 22, 1976. The petitioner p led guilty and was sentenced to a term of twenty years. Although the petitioner has served this sentence in its entirety, he is currently serving a sentence for other crimin al charges. The convicti on that the petitioner

is challenging in this appeal was used to enhanc e the sentence he is currently serving.

When the petitioner was indicted, the court appointed attorney Bill Bry son to represent him. Boyd Bryson was also retained toassist in petitioner’s representation. These two attorneys were later allowed to w ithdraw from the case after peti tioner retained1 The petitioner testified in a deposition taken on Decemb er 19, 1996. This evidentiary depos ition was or dered b y the post-c onviction c ourt. 3 another attorney, Scott Daniel, as his represent ative. The petitioner has t estified, by deposition 1 , that Scott Dan iel was reta ined bec ause of the attit udes and ineffe ctive assistance of the earlier attorneys as well as their lack

of investigationinto the case. The petitioner

has also testified that when Sc ott Daniel was retain ed, he conducted a limited investigation. Approximately tw o weeks after Mr. Danie l was retained, the State offered the petitioner a plea bargai n sentence of twenty yea r s. Later that same day, the petitioner, without any

advance notice, was

taken to Cannon County to appear in court.

When the petitioner arriv ed at the courthouse, t he at torney for the state
once again advised him to pl ead guilty. (The recor d indicates that p etitione r’s counsel
was present.) At that point, the petitioner and his wife were given so m e time alone together to discuss his options. During thediscussion, the petitioner testified that he had found a pint of bourbon in a desk drawer in the office w here he and his wife had been left to talk. The petitioner proceeded to dri nk approximately half of the pi nt and went into the courtroom a few moments later. Accordi ng to the petitioner, at no point did his attorney explain to him who would impose sentence on him if he were found guilty by a jur y, the difference between first and second-deg ree murder, the minimum and maxi mum sentence of first and second-degree murder, the right to plead not guilty, the ri ght t o a speedy trial, the State’s burden of proof beyond a reasonable doubt, the right to the assistance of counsel at trial, the right to confront and cross-examine all of the St ate’s witnesses, the right to call and present his own witnesses, the presumption of innocence, t he right to remain silent or that a sec ond-degree murder convi ction could be used against petitioner later

to enhance a subsequent sentence.

The petitioner contends that not only did his attorney fail to adv ise him of2 Petitioner admits that his attorney, Scott Daniel, did offer t o take the case to trial. However, petitioner tes tified Mr. D aniel also s aid som ething to the effect tha t petitioner ha d to cons ider the twe nty years bei ng offered by the State or the li

fe sentence tha

t was supposedly

threatened b

y the Sta

te if t he petitioner did not

take the pl ea bargain. 4 these rights, the judge w ho accepted petitioner’s gu ilty plea also failed to advise him of these rights. The petitioner asserts that ha d he kno wn of thes e rights, h e would ha ve requested a jury trial rathe r than entering a guilty plea. The petitioner also points to the court transcript of the entry of the guilty plea whe re the judge asked the petiti oner, “[h]as anybody forced you to enter this pl ea of guilty against your wi ll?” The transcript describes the petitione r ’s answer as “(No audible response.)” The judg e goes on to ask, ”[t]he q uestion is whether or not y ou’re doing this vol untarily and of your ow n free will an d accord. Are you doi ng that?” Th e petitioner answered “[o]f my

own free will? . . . Yes sir.” The petitioner contends it was the sum of all these fact ors - no advance notice gi ven of court appearance, no explanation of the aforementioned rights, pres sure by the attorney forthe State and the ineffective assi stance ofhis own counsel - that forced him to plead guilty and render hi s plea involuntary and unknowing. 2

The transcript from the entry of the guilty plea, wh ich was attached as an exhibit to this procee ding, revealed that the petitioner stated he understood the proce eding and he was satisfied with Mr. Daniel’s representation. The petitioner a ls o stated the plea was entered v oluntarily and of his own free will.The petitioner further agreed that the maximum and minimum sentence which co uld b e imposed had been explained to him. The petitioner then pled guilty to second-degree murder.

“In pos t-conv iction relief proceeding s the petitioner has the burden of proving the allegations in his [or her] petition by a preponderance of the evidence

. ” McBee v. State , 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, the factual findings of the trial court in he arin gs “are conclusive on appeal unless the evidence5

preponderatesagainst the judgment.” State v. Buford , 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983).

As the petitioner’s guilty plea was entered on May 27, 1977, the validity of his plea is determined under the s tandards set out

in Boykin v. Alabama , 395 U.S. 238, 239, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). See Clark v. State , 800 S.W.2d 500 (Tenn. Crim. App. 1990). In Boykin , the United States Supreme Cour t held that there are three federal constitutional rights involved “in a w

aiver that takes

place when a plea of guilty is entered in a state criminal trial”: the privilege against compulsory self-incri mination, the right to a trial by jury, and the right to confront one’ s accus ers. 395 U.S. at 243. The court further held that the waiv er of these rights

cannot be presumed by a silent r ecord. Id. However, this C

ourt has held that Boykin did not create a procedural requirement that the se thre e rights must be explained to the defendant and the d efendant waive these rightsbefore a trial judge can ac cept a defendant’s guilty plea. Clark , 800 S.W.2d at 504. “ Boykin simply requires that the transcript of a gui lty plea proceeding affirmativel y show that ‘the defendant voluntarily and understandingly enter ed his plea of

guilty.’” Id. (citing Boykin , 395 U.S. at 244).

The United States Supreme Court ha s held that the standard in deter mining whether a guilty plea is voluntary and knowing is “whether the plea represents a voluntary and intelligent choic e among the alt ernative courses of action open to the defendant.” North Carolina v. Alford , 400 U.S. 25, 31, 91 S.Ct. 160, 164 , 27 L.Ed.2d 162, 168 (1970). In addition, this Court has held that: the failure of a trial judge t o advise a defendant of his priv ilege against compulsory sel f-incrimination prior to Mackey did not , as a matter of l aw, cause a defendant’s c

onviction to become constitutiona lly infirm. If the record of the se ntencing hearin g,as here, affirmatively shows that the defendant’s ‘plea represent[ed] a volunta ry and inte lligent ch oice amo ng altern ative courses o f action open to t he defe ndant’, the def endant’ s conviction is valid. I n other words, ‘[s]pecific judicial incantatio n of3 In fact, this w as petitione r’s third app earanc e facing charge s in a crim inal court. 6 constitutional rights

is not the litmus test under ’ the Constitution or Boykin

. Clark , 800 S.W.2d at 505 (citation s omitted).

The petitioner is arguing that the court’s failure to advi se him of the rights set out earlier rende rs his guilt y plea involuntary and unknowing. In li ght of the aforementioned law, the petitioner’s content io n is without merit. The r ecord of the petitioner’s plea subm iss ion hearing, in conjuncti on with the fact that this w as not the petitioner’s first experience in a courtroom, 3 affirmatively shows the petitioner’s plea

was a voluntary and intell igent choice. A t the guilty plea hearing the petitioner affirmatively stated that he understood he had a rig ht to a jury trial, the charge against him, the meaning of his guilty

plea, that his plea was voluntary, his ri ght to compel the attendance of witnesses, his ri ght to confront those witne sses, and the maximum and mini mum s entences which might be impos ed. In fa ct, the on ly right the petition er wa s no t specifically questioned about was the right against self-i ncrimination. As stated earlier, this ground alone is no t enough to render a conviction invali d. See Blankenship v. State , 858 S.W.2d 897, 905 (Tenn. 1993); Clark , 800 S.W.2d at 505.

In light of

these fa cts, it is clear the petitioner has not met his burden of pr oof. The post-conviction cour t found that petitioner’s plea w as voluntarily and k nowingly

made. Th is findin g is conclu sive unles s the pet itioner p roves, by a preponderance of the evidence, that the finding is erroneous. See Buford , 666 S.W.2d at 475. The petitioner has not met this burden. It is obvious that the trial court canvassed the matter with the accused to make sure he had a full understanding of what his plea connoted and its direct consequences. Therefo re, the petit ioner’s pl ea was4 Petiti oner contends t hat because it was not made clear th at a conviction could be used in a later pr oceeding to enha nce the punishment fo r subsequent off enses, his pl ea is not v alid. In support of this argument, petit ioner ci tes State v. McClintock , 732 S.W.2d 268, 273 (Tenn. 1 987). It is true that state l aw requires a defendant who pl eads guilt y be inf ormed that the r

esulti ng convicti on may be used later as the basis for enhan cem ent. See McClintock , 732 S.W.2d at 273. However , thi s rule was ann oun ced ten ye ars a fter p etition er ple d guilt y and, as it is n ot retr oac tive, d oes not a pply in p etition er’s case. See Clark , 800 S.W .2d at 503 ; Blan ken ship , 858 S.W.2d at 905 n.6. 7 voluntary and knowing. See Blankenship , 858 S.W.2d at 904. 4

The petitioner further contends that he would not have pled g uilty but for the ineffe ctive assistance of his counsel. In reviewing this contention, this Court must determine whether the advice g iven or services render ed by the attorney

are within the range of competence demanded of attorneys in cr imina l cas es. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a cl aim of ineffective counsel, a petiti oner “must show that counsel’s represe ntatio n fell below an objectiv e standard of reasonbleness ” and that this performance prejudic ed the defense. There must be a reasonable probability that but for the counsel’s error the result of the proceeding would have been different. Strickland v. Washi ngt on , 466 U.S. 668, 687-88, 692, 694, 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984); Best v. State , 708 S.W.2d 421, 42 2 (Tenn. Cr im

. App. 1985).

To satisfy the requirement of prejudice, the petiti oner would have had to demonstrate a reasona ble proba bility tha t, but fo r counsel ’s errors, he would no t have pled guilt y and would have insisted on going to t rial. See Hill v. Lockhar t, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ; Banksto n v. S tate , 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991).

We find nothing in the record t o support the petitioner ’s c laim that his counsel was ineffective. The post-conviction judge held that the petitioner “recei ved effect ive assistance of counsel and that, based upon this plea and the statements, that8

[sic] he was satisfied with the representation of Mr. Daniel at that time.” The record f ully supports the findings of the post-conviction court.

At the guilty plea hearin g the trial judge asked the petitioner, “[n]ow, Mr. Daniel has been representing you for some several weeks now. Are y ou satisfied with whathe’s done to represent you?” The petitioner responded, “[y]es, sir, I’m sa tisfi ed.” The judge then asked Mr. Dani el if he felt that he had investi gated the case. Mr. Dani el responded, “[y]es, sir, very thor oughly, your Honor.” In fact, the petitioner testified in his deposition that Mr. Daniel had investigated the case and offered to take the case to trial.

In light of these facts, it is clear the petitioner has failed to carry his burden of proving his allegations by a preponderance of the evidence. The petitioner cl earl y received effective assistance of counsel.

In sum, we agree with the post-conviction c ou rt ’s findings that the petitioner ’s p lea was voluntaril y, understandingly , and knowingly made and that the petitioner

received effective assistance of counsel. We affirm the po st-conviction court’s denial of this petition.

______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ JOSEPH M. TIPT ON, Judge

______________________________9

DAVID G. HAYES, Jud ge