# FILED
July 16, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE AT JAC KSON JULY 1997 SES SION
CLAUDE LEE TODD, ) ) NO. 02C01-9609- CR-00295 Appellant, ) ) SHELBY COUNTY VS. ) ) Hon. Carolyn Wade Blackett, STA TE OF TENN ESSEE, ) Judge ) Appellee. ) (Post-Conv iction)

FOR THE APPELLA NT : FOR THE A PPELLEE : AR CH B. BOY D, III JOHN KNOX WALKUP 217 Exchang e Avenue Attorney Gen eral and Repor ter Memphis, TN 38105 CL IN TO N J . M OR GAN Assistant Att orney Gener al 450 James Roberts on Parkway Nashvil le, TN 37243-0493 WILLIAM L. GIBBONS Distric t Attorney General JAM ES J. CHA LLEN, III Assistant

DistrictAttorney G eneral Criminal Jus tice Comp lex, Suite 30 1 201 Poplar Avenue Memphis, TN 38103

OPINI ON FI LED:

AF FIRMED

JOE G. RI LEY, JUDGE2 OPINION

The petitioner, Claude Lee Todd, appeal s an order of the Criminal Court of Shelby County denying his petition for post-conviction relief. On ap peal, petitioner challengesthe valid ity

of guilty pleas entered i n 1973 allegi ng he was not adv ised (1) of his rig ht against s elf-incrimi nation, and (2) that t he guilty pleas could be used to enhance punishment on subsequent co nvictions . We affirm the judgment of the trial cour t.

CASE HISTORY

In 1968, peti tion er ple d guil ty to gr and larce ny and third degre e bur glary. He pled guilty

to numerous other

offenses in 1973. In 1980, petitioner w as convic

ted by a ju ry of a rmed robb ery an d hab itua l crim inal ity. Subs eque ntly, he filed a petiti on for post-conviction relief within the statutory period challengi ng the val idity of theguilty pleas entered i n 1968 and 1973, rely ing upon Boyk in v. Alabam a , 395 U.S. 238, 89 S.Ct. 1709 , 23 L.Ed.2d 274 (1969). The trial court denied t he petition w ithout a hearin g, find ing that B oykin was not retro spec tive in applicati on and could not be used to inva lidate the 1968 guilty pleas. The tri al court further denied relie f as to the 1973 guilty pleas on the basis of laches. Petitioner

then appealed thedismissal of his petition. This Court agreed that Boykin is prospect ive in appl ication only and did not const itute grounds for relief as to the 1968 pleas. Clau de T odd v. State , C.C.A. No . 02C01-9204-C R-00083 (Tenn. Crim. App. filed November 18, 1992, atJackson). Howeve r, this Cou rt found that the record did not conclusiv ely show that petitioner

was not ent itled to rel ief on the 1973 guilty

pleas. Id . The Court re manded for an evidentiar y hearing on the 1973 pleas. Id

. Evidentiar

y hearing s were hel d. The trial cour t, pursuant to Blan kens hip v. State , 858 S.W.2d 897 (Tenn. 1993), and State v. Ne al , 810 S.W.2d 131 (Tenn.3

1991), found that the 1973 gui lty p lea proceeding s substantial ly compli ed with requirements

set forth in Boykin . Therefore, the tr ial cou rt found t hat the alleg ed omission of warnings concern in g petitioner’s righ t against s elf-incrimi nation was harmless error, at best. From this ruling, petitioner brings this appe al.

STA NDA RD FOR R EVIEW
The trial judge's findings of f act on post-conviction hearings are conc lusive
on appeal unless t h e eviden ce preponderates otherwis e. Butler v. State , 789 S.W.2d 898, 899-900 (Tenn. 1990); Adki ns v. State , 911 S.W.2d 334, 354 (Tenn. Crim. App. 1994). The trial court’s fin dings of fact are af forded the weight of a jury verdict, and this Cour

t is bound by

the trial court’s findings unless the evidence in the record prepo nderates agai nst those finding s. Dixon v . State , 934 S.W.2d 69, 72 (Tenn. Crim. App. 1996). This Court may not reweig h or reevaluate the evidence, nor substitu te its inferenc es for those draw n by the trial judg e. Massey
v. State , 929 S.W.2d 399, 403 (Tenn. Crim. App. 199 6); Black v. State , 794 S.W.2d 752, 755 (Tenn. Cri m. App. 19 90). Questions conc erning the c redibilit y of witnesses

and the wei ght and val ue to be given t o their testi monyare resolved by the trial co u rt, not this court. Black v. State , 794 S.W.2d at 755. The burden of establishingthat the evi dence preponderates otherwis e is on petiti oner. Id

.

EN HAN CE ME NT PO TE NT IAL

Petitioner

clai ms that his 1973 guilty pleas are invalid be cause th e trial jud ge did not inform him that th e pleas could later be used against him to enhance punishmenton subsequent convictions . The alleged fail ure of the trial court, upon accepting petitioner' s pleas of gui lty tofe lonies w hich became predi cate offenses for the habitual criminal conviction, to advise the pet itioner that these convic tion s mightbe used to enhance pu nishmentimposed in any future procee dings is not a constit uti onal issue an d canno t be con sidered in a post -convictio n procee ding.4

Coker v. State , 911 S.W.2d 357, 363 (Tenn. Crim. App . 1995); Housler v . State , 749 S.W.2 d 758, 760 (Tenn. Cr im. App. 1988); State v. Ev ans , 669 S.W.2d 708, 71 3 (Tenn. Crim. Ap p. 1984). This i ssue is w ithout merit.

RIGHT AGAI NST SELF- INCRIMIN AT ION

Petitioner

insi sts th at the 1973 guil ty pleas ar e void purs uant to Boyki n v. Alabama becaus e the tr ial j udge d id not inform h im o f hi s ri ght aga ins t se lfincriminati on when the pl eas were en tered. In Boykin , the Unite d State s Supreme Court held it to bereversi ble error for a trial j udge to accept a plea of guilty without first determining on the record if the defendant ha s voluntarily and understandingly waived his constitutiona l rights

. 395 U.S. at 244, 89 S.Ct. at 1712- 13. The federal constitutiona l r ights that a re implicate d when a g uilty pl ea is entered i n a state criminal trial are the priv ilege ag ainst compulsor y self-inc rimination, t he right to trial byjury, an d the right

to confront one’s accusers. 39 5 U.S. at 243, 89 S.Ct. at 1712. However, “ Boykin does no t require separate enumerat ion of each rig ht waived and separate waivers as to each [right].” Fontaine v. United States , 52 6 F.2d 514, 516 (6th Cir. 1975), cert. denied , 424 U.S. 973, 96 S.Ct. 1476, 47 L.Ed.2d 743 (1976); Blan kens hip v. State , 858 S.W .2d a t 904 . W hat i s requ ired by Boykin is that “no gui lty plea b e accepted w ithoutan affi rmative sh owing t hat it was intellig ent and voluntary.” Id . In order to determine if a guilty

plea is voluntary an d intellige nt, the court mu st look to several f actors, includin g: the relat ive intellig ence of the defendant; the degre e of his familiari ty with criminal pr

oceedings; w hether he was repr esented by compet ent counsel and had the opp ort unity to confer with counsel about the opt i ons availabl e to him; the ex tent of advice fr

om counsel and the court conce rning t he charges against him; and the reason s for his decision toplead guil ty, incl uding a desi re to avoi d a greater penalty that might result from a jury trial. Blankenship v. State , 858 S. W .2d at 9 04 (citin g Caudill v. Ja go , 747 F.2d 10 46 , 1052 (6th Cir. 1984)). Mor e specificall y, the record must show “su bstantial compliance”with the Boykin mandate. Id . at 905; State v. Ne al , 810 S.W.2d at 134. In the order dis missing thepet iti on for post-conviction relief, the trial court1 Walker Gwinn was petitioner’s attorney at the time th

e guilty pleas we re take n in Judge Arthur Faquin’s court in 1973. Gwinn testified that it was his usual p olicy to advise his clients of their right against self-incrimination whene ver therewas a possibility of going to tri al. H e also testified that at the time the guilty pleas were entered, Judge Fa quin was adhering to the standards set forth in Boy kin

. 2 Apparently, no tra

nscript of theguilty

plea pro ceeding

was ava ilable due to the lapse of time between the guilty pleas and the filing of the post-conviction petition.

5 found that the guil ty plea was in substanti al compliance w ith Boykin . Th e co urt concluded that even w ithout a speci fic warni ng ofthe right against compulsory sel fincriminati on , t he guilty pleas wer

e otherwi se voluntar ily and i ntelligent ly entered. The trial court further found that any omission of

an explic it warni ng concerni ng the right against sel f-incriminati on was, at most, h ar mless. In so concluding, t he trial court found: [p]etitioner’s testimony an d pro se brief reflect i ntelligenc e and unders tandin g. He has made no claims, and the re cord in no way indicates, that he was

incompetentor

mentally impaired at the time in question. Pet itio ner was ex perienced and famili ar with the criminal justice system. He was repr esented by

experienc ed counsel and had adequate opportunity

to discuss his options. The record indi cates exten sive advice by courtand counsel: ( 1) Petitioner had three public defenders over

the life of the proc eedings; (2 ) the acknow ledgments of rights i n the signed petition of waiver of jury tr ial and acceptan ce of guilty plea ; (3) Mr . Gwi nn’s statements about hi s general p olicy, a s w e ll as those of JudgeFaquin’s ;[ 1 ] and (4) t he asse rtions in Judge Faquin’s order that

Petitioner ha d been fully adv ised and understood whathe will ingly waived . Pet itioner’ s decision t o accept sentenci ng recommendationson eight felonies, among them concur rent three (3 ) year sentences on multiple charges of assault with intent to murder, rather than going to trial, c ertainly represents a voluntary and intellig ent choice of acti on. Each of these finding s is adequat ely suppor ted by the record. Althou gh it is impos sible to asc ertain wi th cer tain ty whet her or not the t rial judge or petitioner’s attorney informed p etitioner i n 197 3 of his right against compulsory self-incri mination, 2 we conclude that t he trial cour t did noterr in findi ng that the 1973 guilty pleas were otherwise intelligent, voluntary, and in substantia l compliance w ith Boykin . This issue is wit hout merit.

CONCLUSI ON

Petitioner’s claim that hi s 1973 guilt y pleas are invali d because of the tri al6

judge’s failure to advise him of the en hancement pote ntial f orsubsequent convicti ons is not a prope r issue in a post-conv iction proceeding. Furthermore , the trial court’s findi ng that the 1973 g uilt y pleas were intelligent, voluntary, and in substantial compliance w ith Boykin is clearl y supported by the record. Acco rdin gly, the judgment of the t rial court is affirmed.

JOE G. RILEY , JUDGE

CONCUR:

JOE B. JONES, PRESIDING JU DGE

DAVID H. WELLE S, JUDGE