# FILED

August 16, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT JACKSON JULY 1999 SESSI ON

BRADLEY GREEN, ) ) Appellant, ) No. 02C01-9809-CR-00300

) ) Shelby County v. ) ) Honorable Carolyn Wade Blackett, Judg e STATE OF TENNESSEE, ) ) (Post-Conviction) Appellee. )

For the Appellant : For the Appellee : Michael E. Scholl Paul G. Summers 200 Jefferson Avenue, Suite 202 Attorney General of Tennessee Memphis, TN 38103 and R. Stephen Jobe Assistant Attorney Gener al of Tennessee 425 Fifth Avenue North 2nd Floor, Cordell Hul l Building Nashville, TN 37243-0493 William L. Gibbons District Attorney General and Michael H. Leavitt Assistant District A

ttorney General Criminal Justice Comple x, Suite 301 201 Poplar Avenue Memphis, TN 38103

OPINION FILED:____________________

AFFIRMED Joseph M. Tipton Judge2 O P I N I O N

The petitioner, Bradley Gr een, appeals as of right from the Shel by County Criminal Court’s deni al of post-conviction re lief from his 1993 convictions for felony murder a nd espec ially aggrava ted robb ery for whic h he is pre sently ser ving an ef fective sentence of life imprisonment. The petit ioner contends (1) that his guilty pleas w

ere not knowingly and v

oluntarily entered and ( 2) that he received the i neffective assistance of counsel by his attorney ’s misadvice regar

ding parole eligibi lity. We affirm the trial court.

The petitioner and a co-defendant, Dar ryl Wallace, were jointly indicted for and pled guilty to firs

t degree murder, especiall y aggravated rob bery, and criminal trespassin g. The guil

ty plea hear

ing transc ript reflec

ts that on Ma

y 30, 1992, the victim, Erving Manis, was closing the Bargain Center at the Southgate Shopping Center. He carried a money bag w ith the day’s receipts , and an unarmed security g uard had gone to the car. While the victim was locking the door, the petitioner and Wallace, each armed with a revolv

er, approached him. Wallace took the money from the victim and shot the victim several times while he was on the ground. The state’s proof would circumstantially sho

w that the petitioner tr

ied to fire a shot but that the g un misfired. The two ran from the scene and brok e into an apartment, where they were arrested. The petitioner had prior conv ictions involvi ng the use of or the threat of vi olence, an aggravating circumstance that exposed him to the death penalty. The petitioner’s sentences of life for the first degr ee murder, fifteen years for the especially aggrav ated robbery, a nd thirty d ays for th e crimina l trespas s are to be served con currentl y.

The gist of the petitioner’s c laims is that the trial court intimidated him and that one of his attorneys told him that he would only ha ve to serve 19.6 ye

ars and maybe as little as twelve years, both of which were incorrect. At the evidentiary hearing, the petitioner te stified that he had no trouble w ith his attorneys and w

as3

satisfied with their pr

eparation before trial. He s aid that he rejected the state’ s offer of consecutive sentences. He also said that he knew he was going to lose the case because of the evidence agains t him. He stated that on the morni ng of trial, the state offered concurrent sentences. He s aid that Brett Stein, one of his at torneys, said that he would serve 19.6 years and that with good and honor time, he might serve as little as twelve years . The petitioner testified that w hen he got to prison, he found out that he would not be released for “thirty something years.” He said that he would not knowingly have pled guilty w

ith that much time in confinement.

The petitioner testified that w hen he was testifying at the guilty plea hearing, the trial judg e intimidated him by advi sing him of the crime of perjur y and of the consequences of him committing perjury in his testi mony. The petitioner said that he was not threatened by the trial judge but that the j udge was intimidating , and the petition er wanted to get off the witnes s stand in a hurry.

Brett Stein testified that he and L arry Nance were appointed to represent the petitioner. He said that an office fire destroyed his fil e regarding the case, an d he had very little i ndependent recollection of the ev ents. However, he s

tated that he made no mention of 19.6 years or tw elve years to the peti

tioner. He said he mentioned no numbers, although he acknowledged on cross-exami nation that some mention might have been “possible.” R egarding parole, he sai d that he usually woul d tell a defendant that the defendant would “see day light again.” He s

aid that the petitioner pled g uilty to avoid exposure to t he death pena lty. Finally, he said th at he did not f ind the trial judge to be intimidating and, in any event, thought his remarks regarding perjury were irrelevant to the plea process.

Larry Nance testified that he had no recollection of a disc ussion regarding any specific number of years before parole. He said he nev er mentioned nineteen4

years to the petitioner and did not recall Mr. St ein mentioning any figur e. He testified that it was his pract ice to tell inquiri ng defendants that he could not say when they would be paroled and that it was up to the parole board.Mr. Nance testified that he believed that the petitioner pled guilty because of the possibility of the death penal ty. He said that the shell casi ng in the petitioner’s g un had an impression as if the petitioner had attempted to shoot but that the gun had not fired.

The guilty plea hearing transcript reflects that the trial court and Mr. Stein discussed with and que stioned the petitioner at leng th regarding his under

standing of his constitutional rig hts, the consequences of wai ving those rights , the nature of the offenses, the sentences involv ed, the facts in the case, and the peti tioner’s desire to enter guilty pleas. Under oath, the petitioner s tated that he understood the proceedings, had no questi ons about them, and freely and v oluntarily wanted t

o enter guilty pleas. The petitioner also testified that he w as pleading guilty

because if he went to trial, he would be found gu ilty and wou ld get the death pe nalty.

In the present case, the trial court filed an eleven page Findings of Fact and Conclusions of Law denying the petitioner post-conviction relief. Relevant to this appeal, the tri al court stated the following:

Turning to Petitioner’s allegations, Petitioner a sserts that the trial court was unduly co ercive by asserting possible criminal charges against the Petitioner if he were later to claim his counsel ineffective. Duri ng the guilty pleas, the trial court judge e xpl ained the importance of being truthful to Petitioner while under oath and carefully explained to Petitioner that this was his day in court. There fore, Petitioner had an opportunit y to tell the truth, make any c omplaints about his legal representation or ask any questions in open court. The trial judge warn ed the Petitioner that he wo uld be committing perjury if he were dishonest with the court. There is no evide nce of t he trial court being undul y coercive. Therefore, this issue is w ithout merit. Petitioner

further states that the a lleg ed threat by the trial court judge inhibited the voluntariness of the Petit ioner’ s plea. However, th e Petitio ner was spe cificall y asked by t h e5 Court and his lega l c ounsel whether the guil ty plea was voluntaryand the respo nse bythe Petitioner was in the affirmative. Further, Petitioner clearly, stated at the beginning of the guilty plea that hi s atto r ney had explained all of his rights, expla ined t he charges in the indictment s, the lesser included offenses and had specifically int erviewe d the witnesses given by the Petitioner. There is nothing in the record to indica te t hat Petitioner’s attorney told Petitioner that he w o uld recei ve parole on a life sentence in nineteen (19) years. Th ere was also no evidence that Petitioner ’s at torne y attempted to tell Petitioner

about the exact time whic h would be served at th e Tennessee Department of Corrections. Ther efor e, th ese allegations

by Petitioner are without merit and are hereby dismissed. The trial court carefully explai ned t o Petitioner his constitutional rightsbefore accepting his gui lty plea. The trial court advised Petitioner that he had a right to plead not guilty, a right to a public and speedy trial by jur y, a ri ght to confront and cross-examine any state witness, a right against selfincrimination. In co nsi deration of these facts, the evidence establishesthat the trial court took g reat care [i]n ensuring that Petitioner

was well advi sed and aware of his constit utional rights. The Petitioner freely and v oluntarily, understa nd ingly, knowingly, advisedly an d inte lligently wai ved his rights and entered his guilty

plea . Accordingly, thi s Court finds that Petitioner’s allegation that he entered his guil typlea involuntarily i s without merit.

It is obvious that the tr

ial court accredited the petitioner’s testimony at the guilty plea hearing and the testimony of the petitioner’s attorneys at the evidentiary hearing. The burden was on the petitioner in the tri al court to prove his claims by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). On appe al, the trial court’s findings are conclusive unless we determine that the evidence preponderates against them. Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). Questions concer ning the credibility of the w

itnesses, the weight and value to be given their testimony, and the factual issues raised by the evidence are to be resol ved by the trial cour

t. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).

First, we note that the petitioner’s testimony at the guilty plea hear ing “constitutes a formidable barrier” to his claim that he was coerced into pleading guilty in6

that “solemn declarations in open court carry a strong presumption of verity.” Blackledge v. Alli son , 431 U.S. 63, 75, 97 S. Ct. 1621, 1629 (1977). The guilty pl ea hearing transcript full

y supports the trial c

ourt’s conclusion that the petitioner’s guilty pleas were knowing ly and voluntarily entered. In fact, the petitioner ’s testimony at the evidentiary hearing

does not purport to show otherwise. As for the cl aim that the petitioner was advised that parole eligibility would occur in 19.6 years, the trial court was entitled to accredit the testimony of the petitioner’s attorneys. W ith such accreditation, the record does not preponderate against the trial court’s finding that the attorneys did not misadv ise the petitioner about parol e. In consideration of the foregoing and the record as a whole, we affirm the judg ment of the trial court.

__________________________ Joseph M. Tipto n, Judge

CONCUR:

___________________________ James Curwood W itt, Jr., Judge

___________________________ John Everett W illiams, Judge