### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs M

ay 8, 2001
RODERICK D. COBB v. STATE OF TENNESSEE Appeal from the Criminal Court for Shelby County No. P-20203 Chris Craft, Judge

No. W1999-00655-CCA-R3-CD - Filed June 8, 2001

The issue raised i

n this appeal is

whether the trial court properly denied the Appellant/Petitioner’s post-conviction petition? After a review of the record in this cause, the b riefs of the parties and applicable law,

we affirm the tri

al court’s judgm

ent. Tenn. R. App. P. 3; Ju

dgment of the Crim

inal Court is Affirme

d.
L. T ERRY L AFFERTY , S R
. J., delivered the opinion of the court, in which A LAN E. G LENN , J., joined. D AVID H. W ELLES , J., not pa rticipati ng. Brett B. Stein, Memphis, Tennessee, for the appellant, Roderick D. Cobb.
Paul G. Summers, Attorney General and Rep

orter; Kim R. Helpe

r, Assistant Attorn

ey Genera l; and Elaine Sanders, Assistant District Attorney General, for the appellee, State of Te nnessee. OPINION
HISTORICAL BACKGROUND Petitioner, Roderick C ob b, appeals as of right from the Shelby County Criminal Court’s denial of his post-conviction relief petition from his conviction of murder first degree for which he is presently serving an effective sentence of life without parole. Petitioner contends that his plea of guilty was not knowingly and voluntarily entere d in that he felt threatened by a She lb y County deputy jailer.
In December 1996, Petitioner was indicted for the premeditated murder of

Sherry Goodman, a Sh elby County

Deputy, in A

ugust 1996. The tr

ial court appointe

d Mr. William D. Masse y to represent Petitioner in this

cause. Petitioner proceeded to trial in August 1997, in which the State was seek ing t he d eat h pe nal ty. The guilty plea transcript reflects that close to the end of the State’s proof in chief, Petitione

r elected to plea

d guilty to mu

rder first deg

ree and that a se

ntence of lif

e without parole would be imposed.-2-

In seeking thedeath penalty , the State was relying

on three aggr

avating circum

stances, to wit; (1) the victim was a law enforcement officer or peace officer in the performance of her duties; (2) the killing or murder was done while the defendant was in custody; and (3) the murder was for the purpose of avoiding lawf

ul arrest and prosecution of the matter that he was arrested on at the time of the murder. It was the theory of the State, that Petitioner ha d been arres ted for some unrelated crim e and whi le being transported by Deputy Goodman to the county jail, he shot and killed her while in the squad car. In accepting the plea of guilty by the trial court, the State relied on all of the testimonythat had been heard up to the entry of the

plea. The State a

dvised the trial co

urt it would callas its last witness, D

r. O. C. Smith, Assista

nt Shelby Count

y Medical E

xaminer, who would have testified that Deputy Goodman died from two gunshot wounds. Deputy Goodman died as the result of the first shot to the back of her head and it was Dr. Smith’s op inion th is shot originated from the back of the passenger compartment of the squa d car. As to th

e second shot, Dr.

Smith would testify that Deputy

Goodman was shot in

the left cheek w

hile laying

on the passenge

r seat. Petitioner was standing directly outside the passenger window firing down through the glass and striking Deputy Goodman. Petitioner stipulated afactual basis fo r a plea was pre

sent, coupled with the proposed testimony of Dr. Smith.
Prior to running of the statute of limitations for post-conviction pr

oceedings in

August 1998, Petitioner filed a petition for post-conviction relief with the Shelby County Criminal Court Clerk alleging: (1) denial of ef fective assistan

ce of counsel; (

2) the c onviction was based upon the unconstitutional failure of the pr osecution to disclose to defendant evid ence favorabl

e to defendant; and (3) other grou

nds. Afte

r a preliminary

review, the tria

l court appointed M

r. Brett Stein to represent Petitioner. On June 18, 1999, Petitioner filed a n amended petition

enlarging on t

he claim of ineffective assistance of counsel in that his court ap pointed counsel fa

iled to properly

investigate the case to substantiate Petitioner’s theory that the homicide was the result of a drive by shooting by another party.
EVIDENTIARY HEARING
Petitioner commenced his testimony by stating as to why Mr. Mas sey, his court appointed att orn ey, failed to

adequately represent

him. Apparently, it was Petitioner’s theory that some other person killed Deputy Go odman in a d rive by shooting. Petitioner stated Mr. Massey could ha ve brought up issues in the courtroom -- I was threatened during my stay in the jail. As to the facts of the case, Petitioner testified:
“If I hadn’t been

threatened or

anything like that, then probably could have proceeded with tr ial as planned, with no problem. But with me being threatened and o the r issues being brought up, I didn’t feel like I had no c ha nce. I just di d what they wanted me to do. They wanted me to sign papers; I signed papers.”
Under further direct q

uestioning, Petiti

oner testified tha

t Mr

. Masse

y did investigate the case, and talked to him about h is defense theor

y of a drive

by shooting . Also, Mr. Massey kept him informedof the results

of the investigation and even filed a motion to suppress his statements made-3-

to the police. In conclusion , Petitioner stated

he did not plead g

ulity becau

se he was afrai

d of getting the death penalty, he was afraid of being killed while in the county jail. During cross-examination, Petitioner identified a deputy jailer by the name of J. Q. Irvin as the one who threa

tened him. Petitione

r stated he told his i

nvestigator, Ron

Lex, about the th

reats. Petitioner acknowledged

that Mr. Massey and the investigator contacted the deputy’s office about these alleged threats and tried to get the matter taken care of. Also, Petitioner testified that he neve r told anybody he wanted to g

o ahead and plead guilty because he was sca red to be in the jail. When questioned about his guilty plea before the trial court, Petitioner acknowledged he was asked about the voluntary entry of his plea, the quality of his attorney’srepresentation , and his right to

continue on withthe trial. He did no t tell the sentenci

ng judge of the

threats because he felt there was nothing the judge could have

done. Also, Petition

er stated he did no

t answer the judg

e’s questions enti

rely tru thf ull y. Likewise, Pe titioner a greed he did n ot allege any question concerning the voluntary entry of his plea in the petition for post-conviction relief.
At the conclusion of P

etitioner’s testim

ony, the tria

l court granted

the State’s motion to dismiss the petition. The trial court found Petitioner failed to prove his allegations as contained in the petition for

post-conviction relief. As to Petitioner’s guilty plea, the trial court could not, based on Petitioner’s testimony, determine if Petitioner lied at the evidentiary hea ring or at theguilty plea proceedings.
LEGAL AN ALYSIS
Petitioner asserts that the trial court, by virtue of its authority to assure the interests of justice, and to prevent the appearance of any impropriety , should have issued a subpoena to cau se the deputy jailer who alleged to ha

ve coerced Peti

tioner into pleadin

g guilty, to appear at the continued hearing for th e pu rpose of questioning as to the said allegations. The State counters that the trial court properly denied the petition for relief since Petitioner failed to prove b y clear and convincing evidence that his guilty plea was not entered voluntarily and knowingly.
Because thi s pet ition was filed in 19 98, it is governe

d by the prov

isions of the 1995 Pos

tConviction Procedure Act. A ccordingly

, Petitio ner bears the burden of establishing, at the evidentiary

hearing, his f

act ual allegations by clear and convincing evidenc e. Tenn. Code Ann. § 40-30-210(f) (1997). Evidence is clear and convincing when there is no serious or

substantial doubt about the correctness of the conclusions drawn from the evidence. Hicks v. State, 983 S.W.2d 240, 245 (Ten n. Crim. App. 1998). This court is bound b

y the trial c

ourt’s findings o

f fact u nless w e conclude that the evidence in the record preponderates against those findings. Id. See Fields v. State, 40 S.W.3d 450 (Tenn. 2001).
We agree with the trial court’s findings of fact and conclusions of law that Petitioner had totally failed to meet his burden of ineffective assistance of counsel on the par t of his appointed counsel. Although the petition alleges ineffective assistance of counsel, Petitioner’s own testimony does not support such complaint.-4-

Tennessee Code A

nnotated § 40-30-

204(d) provides:
The petitioner shall include all claims known to the pet itioner for gran ting post-conviction r elief and shall ve

rify under

oath that all such claims are included.
Petitioner’s original p etition for relief nor its amendment raised an allegation as to the involuntariness

of the Petitioner’s plea

of gu ilt y. Notwithstanding this omission, the trial court heard testimonyfrom the Petitioner as to why he e

ntered a plea of

guilty. I n its findings of f

act, the trial court found that, other than the bald assertion of the Petitioner that he had been threatened, there was no other evidence to support this allegation. Further, Petitioner lied to the tri al court atthe guilty plea proceedings a

nd failed to

advise the judge of any threats. The trial court found Petitioner’s testimony less than credible.
When the accused op ts to plead guilty, the plea must be voluntarily, understanding ly, and knowingly entered to pass constitutional muster. Boykin v. Alabama, 395 U.S. 238, 244, 89 S .Ct. 1709, 1713, 23 L.Ed.2d 274 (1969). In Tennessee, a plea must be made voluntarily

and with full understanding of its consequences. Hicks v. Sta te, 983 S.W.2d at 246; State v. Neal, 810 S.W.2d 131, 134-3 5 (Tenn. 199 1). Entry of a gui lty plea const itutes a wai ver of const itutiona l righ t s including the privil ege against self-incrimination, the right to confront witnesses, and the right to a trial by jury, or as in this case, to complete an on-g oing trial. Boykin, 395 U.S. at 243, 89 S.Ct. at 1714.
In d et ermining whethe r a plea of guilt

y was volunta

rily, under

standingly

, and intelligent

ly entered, this

Court, like the trial court, must consider all of the relevant circumstancesthat existed when the plea was entered. State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995). Tenn. R. Crim. P. 11 and our supreme court’s decisions in State v. Mackey, 553 S.W.2d 337 (Tenn. 1977), and State v. McClintock, 732 S.W.2d 268 (Tenn. 1987), control the guilty plea process in Tennessee. Trial courts are requ

ired to adhere su

bst antially

to the procedure prescribed in the rule. A submission heari ng tr anscript must establish on its face that the trial court substantially complied withthe requirement

s of Rule 11, Boykin v. Alabama, and the teachings of Mackey and McClintock

. Hicks v. State, 983 S.W.2d at 247.
From our review of the gui lty plea pro ceed ings in t his reco rd, the tri al c our t th rou ghly, substantially, and overwhelming complied with the mandates of Rule 11, and the requirements of Mackey and McClintock. Also, the trial court meticulously went over with Petitioner the negotiated plea agreement papers setting forth Petitioner’s trial rights and the consequences of entering a plea of gu ilt y.
Petitioner asserts that

in all fairness,

the trial court should have exercised its inherent power to sum mon the all eged dep uty t o as cert ain the val idi ty of any threats that might have induced an involuntary

plea of guilt. However, Petitioner fails to cite any authority for such process. I

t would seem if any fault lies, it rests with Petitioner. Certainly, if Petitioner had any complaint about the-5-

vo luntariness

of his plea, he should have alleged the same in this petition. Thus, Petitioner coul d have presented proof in support of such allegation. We find no merit to this issue.
CONCLUSION
The evidence in this record overwhel ming su pports the post-conviction court’s findings. Petitioner received effe

ctiv e ass ist ance of co uns el a nd e nte red h is gu ilt y ple a in tel lig ent ly, kno win gly, and voluntarily. We affirm the post-conviction court’s denial of Petitioner’s request for post-conviction relief.

___________________________________ L. TERRY LAFFERTY, SENIOR JUDGE