### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ugus t 19
, 200 3 S es sio n

DON NA JEAN SEX TON v. S TAT E OF TEN NES SEE

Appeal f romthe Circ uit Court for Carte r County No. S12429 Lyn n W. Brow n, Jud ge

No. E2002-02313-CC A-R3- P C April 14, 2004

The pe titioner, Donna Jean Sext on, appea ls from the judgme nt of the Carter CountyCircuit Court deny ing he r post-convic tion relief f rom her c onvictions for first deg ree mu rder and ag g rava ted rob b e r y

. T h e p e ti ti o n e r c o n te n d s th a t ( 1 ) th e p o s t- c o n v ic ti o n c o u r t e rr e d b y c o n c lu d in g th a t he r amende d, compre hensive pe tition was invalid because it was not proper ly verifie d under oath; (2) she re ceived the ineff

ective a ssistance of c ounsel bec ause he r attorne y s misinformed her a s to the l e n g t h o f h e r s e n t e n c e f

o r f i r s t d e g r e e m u r d e r ; a n d ( 3 ) h e r n o l o c o n t e n d e r e p l e a s w e r e n o tk n o w i n g l y, intelligently
, and voluntarily made beca use the trial court never informed her that she was wa iving

co n s t i t u t i o n al ri gh t s an d t h er e w as an i n s u ff i ci en tfa ct u al b as i s fo r t h e p et i t i o n er ’s p l ea s

. Al t h o u gh

we c onclude that the a mended pe tition was not p ro p er l y verifie d, we c onclude the tr ial court

co rr ec t l y p ro ce ed ed o n al l i s s u es ra i s ed b y t h e pe t i t i o n er

. W e a l s o h o l d t h at t h e t ri al co u rt ’s fi n d i n gs and conc lusions relative to the petitioner’ s claims are aff irmed.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

J OS EP H M. T I PTON , J
., d el i v er ed t h e opinion of the c ourt, in which J OHN E VE R E TT W I L L I AMS and A L AN E. G L EN N , J J ., joined.

Kenne th F. I

rvine, Jr., Knox ville, Tennesse e, for the appe llant, Donna Jean Sex ton.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a nd Re po rt e r; Re ne e W. Tu rn e r, As sis ta nt A tto rn e y Ge ne ra l; J oe C. Crumley , J r., District Attorney Gene ral; and K enneth Cars o n Ba ldwin, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

The pe titioner pled nolo contende re to the char g ed offe nses of felony murder a nd ag g ravated robbery . Pursuant to the plea a g ree ment, the trial court sentence d the petitioner to life wi th the possibili ty

of pa ro l e fo r t he murde r and e ight y ear s for the a g g ravated robbe ry , to be serve d

concur rently in the Depa

rtment of Corre ction (DOC).-2-

The pe titioner’s convictions re sulted from the killing a nd robbery of the victim, an e mploy ee at a c onvenienc e store in June 1993. At the plea he aring , the state p re sented a nd the def endant sti pu la te d to the fo llo wi ng su mma ry of the fa c ts s ur

ro un din g the of

fe ns e s:

Miss Sexton wa s criminally responsible as the law define s cr iminal responsibilityfor the mur der of – of Mrs. Montg omery

there at the marke t, the murder w ith which she’s char g ed. She did not, howeve r, it’s not the state’s theory
, it would not be our proof that she wa s the person who c ommitt ed the murde r; but, tha t – but – a nd that she wa s more than a

m er e p er s on who was pr esent. B ut, that she was what used t o be called an aider and abetter to that murder. .

. . But, a g ain, she fee ls tha t it’s important, and – and w e ag ree that she wa s not the person who sta

bbed Mrs. Montg omery , that – that ca u s ed the fa tal wound upon M rs. M ontgome ry

. We believe that that was done by her companion in this crime Matne y Putman.
At the post-conviction evidentiary hearing, the petitioner testified that she sig ned a sta tement that her a tto rn e y ha d pre pa re d o n h e r a c c e pta nc e of

the ple a a g re e me nt, wh ic h s ta te d th a t sh e wo uld

rec eive thirty y ea rs i n prison when she pled nolo contende re a nd that anything less would be deter mined at the discre tion of the parole board. She said she sig ned the state ment in front of one of he r atto rn e y s, Ma

rk Sla g le , who pr e pa

re d it . Sh e sa id s he didno t le arn that he r s e nte nc e wa s si xty y ear s until she went to priso n

. S h e s ai d she would have g one to trial if she ha d known that the sentenc e for

life in prison was sixt y

y ear s. On cro s s -ex amination, she admitted that one of her

rea sons for not g oing to tria l was to avoid the possibilityof re ceiving the dea th penalty

.
The re cord r efle ct s t h at the petitioner ha d been in c ustody since 1991. She said that he r pa ro le eli gibi li ty

da te ha d b e e n s e t f

or 20 28 , b ut the re c or d r e fl e c ts tha t se nte nc ing c re dit s w ill shorten the time.

Robert J

. J essee , co-c ounsel for the petitioner at the time of he r plea ag ree ment, testified that he told the petitioner that the stat e’ s p l ea o ff er was g ood and that she should take it to avoid the possibili ty

of re ceiving the dea th penalty

. He said he tol d her that there wer e no assur ance s about when she would g et out of pr i s o n

. He s aid he e x plained to the petitioner tha t the plea a g ree ment sti pu la te d th a t sh e wo uldre c e ive a c on c ur re nt s e nte nc e fo r the a g g ra va te d r ob be ry c ha rg e . He sa id evidenc e increasing the cha nce tha t the petitioner would re ceive the dea th penalty if she we nt to trial included the following : the victim wa s a y oung mother; the killing was brutal, almost c utting off the victim’s head; and w hen the pe titioner’s ac complice sug g ested c alling the resc ue squad to help the victim, the petitioner had re sponded, “L et the bitch die.” He sa id that based on these fac ts, the jury might have imposed the dea th penalty if the ca se had g one to trial.

Mr. Slag le testified that he dr afte d the Acc eptanc e o f Plea Ag ree ment that the petitioner signe d and that it stated there was no g uara ntee the pe titioner’s prison sentenc e would be le ss than thirty y ear s. He said the pe titioner g ave a n incriminating statement to police about her involvement-3-

in the crimes and that their defense would have been “battere d woman sy ndrome” if they had g one to trial, althoug h he questi o ned the likelihood of succ ess. He sa id that the petitioner could ha ve
rec eived the de ath pena lty wi t h P u t n am ’s testimonyag ainst her but that he did not believe the probability was very high. He said he did not want to take a chanc e on the pe titioner rec eiving the de a th pe na lty , esp e c ia lly wh e n she ha d alr e a dy a dmi tte d in vo lve me nt i n th e kil lin g . H e sa id h e tol d the petitioner she w as g ambling w ith her l ife if she rejected the state’s offer. He ac knowledg ed that the petitioner wa s interested in the a mount of time she would be re quired to spend in prison when they discussed the state’s offe r of life with the possibili ty of parole

. He said that he kne w that a life sentenc e with the possibilityof par ole was sixtyy ear s. He s ai d t h at i n the statement of the plea

a g re e me nt he dr a ft e d, he wa s try ing to co nv e y to the pe tit ion e r tha t th e re wa s n o g ua ra nte e sh e wo uld only serve nineteen y ear s, the amount of time D OC personne l ha d previously told him people ha d b ee n serving on a life se ntence . He sa id, however , that based upon f urther disc ussions with t he prosec uting a ttorney

and DOC pe rsonnel, he told the petitioner that she c ould not ex pect to g et out of pr iso n b e fo re thi rt y

y e ars

.
On cr oss-examination, Mr. Sl ag le testified that he w rot e o u t the ag ree ment betwee n the petitioner and the state and tha t he had the pe titioner sign it to preve nt a future ineffe ctive assistanc e of counse l claim. He sa id the provision that the petitioner would s er v e t h i rt y y ear s was base d on what the DO C told hi m. He ac knowledged
, t houg h, that conflicting lang uag e existed in the ag ree ment beca

use another sentenc e provided that the petitioner was “not g uara nteed to re ceive any term of imprisonment less than thirty y ear s and that any

rele ase date ea

rlier is strictly at t he discre tion of the pa role boa rd and the g overning power s of the State of Te nnessee .” He also acknow ledg ed that the trial court ne ver a ddresse d the leng th of a sente nce f or life with the possibilityof par ole at the plea he aring

.
The tra nscript from the plea hearing r efle cts that the assistant district attorney stated that the petitioner would not be e ligible f or par ole until she serve d thirty y ear s in prison. I t a lso r efle cts that the trial court informed the pe titioner of her constitutional rig hts but did not specif ically state that she wa s waiving them.

The trial c ourt found that the pe titioner’s amende d petition was not proper ly verifie d under oath an d d ismiss ed the pe tition. The court, howeve r, ruled on the petitioner’s c laims in the event that the petition was found to be pr operly verifie d by

this court.

Relative to the ineff

ective assistance of counse l, the trial court a cknowledg ed that the petitioner’s a ttorney s provided her with conflicting parole elig ibility in f o rma ti o n an d th at h e r o rig ina l

re le a se e lig ibi lit y da te wo uld ha ve oc c ur re d af te r se rv ing sixty pe rc e nt of sixty y e ars , i. e ., thi rt y -s ix y ear s. I t found, thoug h, that althoug h the petitioner’s pa role e ligibility

at the time of the hearing w as set for 2028, her r elea se elig ibilit y would occur

afte r ser ving twe nty -five y ear s if she obtained nor mal sentenc e re duction cre dits. Also, the t ri al court was not convinced of the truth of the pe titioner’s

c la im tha t sh e wo uldha ve g on e to t ri a l if sh e ha d k no wn that her sen ten ce was e ff e c tiv e ly sixty y ear s. The trial c ourt found that the pe titioner had not bee n prejudice d by her attorney s’ advice and

c on c lud e d th a t sh e didno t r e c e ive the ine ff e c tiv e a ssi sta nc e of

c ou ns e l.-4-

Relative to the validity

of the petitioner’s nolo c ontender e pleas, the trial court noted tha t the transcript of the plea hearing did not contain expli cit waiver s by the petitioner of he r constitutional rig hts. Howeve r, it also noted that the petiti o n er wa s advised of a ll her constitutional rig hts as require d by

Boy kin v. Alabama, 395 U .S. 238, 89 S. Ct. 1709 (1969), and found t hat t he tra nscript ref lected tha t the petitioner knew she wa s g iving up those rig hts by pleading nolo contender e. The trial court c oncluded that the tr anscript, trial counsel’s advising her of he r alternatives, and he r desire

no t to c ha nc e the de a th p e na lty sh ow e d th a t th e pe tit ion e r kno wi ng ly , in te lli g e ntl y , a ndvo lun tari ly enter ed her

pleas. I n this respe ct, although not ing that the s tipulation of facts at the plea hearing w as

“ no t a pa rt ic ula rl y c le ar s tip ulatio n, ” it b e lie ve d that the sti pu la tio n ind ic a te d c ri min a l r e sp on sib ili ty for the acts of another

. The trial court conclude d that any defic iency

in the fac tual basis for the ple as d i d n o tr e n d e r

t h e m i n v o l u n t ar y.

I. P ETIT ION VE RI F IED UN DE R O AT H
The pe titioner contends that the tria l court er red in ruling that her c omprehe nsive, amende d petit i o n wa s n o t valid. The re cord r efle cts that at the e videntiary hearing, the trial court told the petitioner’s counsel that the comprehensive pe tition fil ed by counsel wa s not verified unde r oath a s require d by

law. Counsel r eplied that he had ce rtified in the petition that the alleg ations were true

a ndc or re c t to the be st of his kn ow le dg e a ndbe lie f. Ho we ve r, the tr ia l c ou rt be lie ve d th e c e rt if

ic a te to be insufficie nt, although it noted that the petit ioner’s pr evious pro se a mended pe tition remained valid beca

use it was verified under

oath. I n any event, the trial court ruled on all the issues pursued by the petitioner a t the evidentiary hearing.

Pursuant to the 1995 Post-Convi ction Procedur e Ac t, petitions and amendments to petitions must be verifie d under oa th:

The pe tition e r

s h a ll in c lu de alleg ations of fa ct supporting eac h claimf o r r e li e f s e t f o r th in th e p e ti ti o n a n d a ll e g a ti o n s o f f a ct explaining why

eac h g round for

relief was not pre vi ously

prese nted in a ny ear lier proce eding

. The petition a nd any amen d ed p eti tion shal l b e v e r if

ie d u n d e r o a th

. A f f id a v it s , r e c o r d s o r

o th e r e v idence available to the petiti o n er supporting the a lleg ations of the petition

ma y be a tta c he d to it.

T.C.A. § 40-30-104( e).

Th e pe tit ion e r r e lie s u po n d ic tum in R og e r H arris v. Sta te , E 19 99 -0 20 56 -C CA -R 3- PC, Unicoi County (Tenn. Crim. App. July28, 2000), to support her c laim that counsel’s c ertification

su ff ic e s u nd e r the ve ri fi c a tio n r e qu ir e me nt o f the Pos t- Con vic tio n Pr oc e du re Ac t. In Ro g e r H arris, the tr ia l c ou rt

su mma ri ly dis mis se d th e Ma

rc h 1 99 5 p os t- c on vic tio n p etition a ndits a me nd me nts beca use they wer e not ver ified b y oath or a ffirma tion. This court and the state note d that the verific ation by

oath re quirement wa s not e ffe ctive until May 1995 and did not a pply to Harris’s case

. Th is c ou rt

he ld tha t th e tr ia l c ou rt

inc or re c tly app lie d th e oa th re qu ir e me nt an d re ma nd e d th e c a se-5-

for f urther pr ocee dings. H oweve r, t his court then discussed the signific ance of counse l’s having

certified that he ha d investigated all the fa cts and the a lleg ations were true a nd corr ect to the be st of his kn ow le dg e a ndbe lie f. I t st a te d th a t th e c e rt if ic a tio n s a tis fi e d th e ve ri fi c a tio n b y oa th require ment. I t a lso state d that absent prope r verification, it would be appr opriate f or the trial c ourt to g ive the pe tit ion e r the op po rtun ity to m a ke a

pr op e r o a th. We n ote a s si g nif ic a nt th a t th e sa me trial court a nd counsel in Rog er H arris are be fore us in the prese nt case

.
Counsel’s certificate in the pr esent c ase in the a mended, co m p rehe nsive petition is as fo llo ws :

I

. . . do here by certify that I have investiga ted all of the a bove fa c ts an d do he re by sta te the fo re g oin g is t ru e a ndc or

re c t to the be st of my knowledg e and be lief. My inv es t igation and rese arc h have been done in close c o n s ultation with the petitioner, Ms. Donna Sex ton.

I a lso c e rt if

y that I ha ve tho ro ug hly

inv e sti g a te d th e po ssi ble

c on sti tut ion a l vi olatio ns a lle g e d b y Ms. Se xton a nd

an y o th e r po ssi ble g rounds that Ms. Sexton may have for relief

. I have disc ussed all the g r o u n d s I h a v e d i s c o v e r e d w i t h M s

. S e xt o n

. T o t h e be st o f m y knowledg e I

have r aised a ll non -frivolous constit utional gr ounds

war rante d by exis ting law or a good f

aith arg ument for the e x tension, modification, or re versa l of exis ting law which Ms. Sex ton has. I am
awa re tha t an y ground not raised sha ll be fore ver ba rre d by the application of T.C.A. § 40- 30-206(g ), or its prede cessor provision,

a ndha ve e xpla ine d th is t o M s. Se xton. Th is wai ver prov isi on is limit ed by sever al decisions of the Tennesse e Supreme Court which have r ecog nized a very

limit ed exception to the rule of waiver

.
Other tha n certify ing the truth of t he allegations to the best of counsel’s knowledg e and be lief, the

certificate g ener ally

conforms to the cer

tif icate r equire d of post-convic tion counsel by supreme c ourt

ru le . Se e Te nn . S. Ct. R. 2 8, § 6 (C )( 2) -( 4) , A pp e nd ix C.

Given the f

act that a petitioner is e ntitled to only one post-convic tion case, the purpose of the supreme c ourt rule a nd appendix are obvious – they ensure that all possible claims are investiga ted by counsel and all arg uable constitutional c laims are pr esente d to the trial court f or consider ation. The r u le
, th e r e f

o r e , g u id e s c o u n s e l f

o r th e p e ti ti o n e r ’ s b e n e f

it

. O n th e o th e r

h a n d
, th e s tatu to ry
re qu ir e me nt tha t th e a lle g a tio ns be ve ri fi e d u nd e r o a th i s in te nd e d to se rv e e nti re ly dif fe re nt i nte re sts

. I ts goa l is to d e te r o r to r e d u c e in te n ti o n a ll y f a ls e a ll e g a ti o n s p r im ar il y ma d e b y p e ti ti o n e r s by exposi ng them to ag g rava t ed p erjury char g es pursua nt to T.C.A. § 39-16-703. The e x pecte d

re du c tio n in fa lse c la ims sh ou ld l e a ve the c ri min a l justi c e sy ste m with mor e tim e a nd re so ur c e s to de a l w ith arg ua

bly le g iti ma te po st- c on vic tio n c la ims

.-6-

I n this reg ard, w e re spectfully disag ree with the dictum in Harr is relative to counse l’s

certification. We c onclude that the require ment under T.C.A. § 40-30-104( e) that alleg ations of a petition an d an y am en dments be verified under oath is not satisfied by

counsel’s c ertification. Whether pre pare d b y a p et i t i o ner or by counsel, the pe tition and its amendments must be verified under oath.

Although the compre hensive petition in the prese nt c ase was not verified unde r oath, we do not believe the c ircumstance s justified lim iting the petitioner’s claims. The trial court did not notify the petitioner of its conc erns until the evidentiary hearing. Mor eover , the t rial court noted that the petitioner’s pre vious pleading s had bee n verifie d und er oath. The trial c ourt ea silycould have allowed the petitioner to ve rify the compre hensive petition. I n any event, it took sworn testimony from the petitioner and her trial attorney s relative to the pe titioner’s claims. We conclude that the

c ir c ums ta nc e s ju sti fy

the pe tit ion e r’ s c la ims be ing he ardon the ir me ri ts.

II. IN EF F EC TIV E A SSIST AN CE OF CO UN SEL

The pe titioner contends that her g uiltypleas re sulted from the ineffe ct i v e as sistance of counsel because her counsel m isadvised her about the leng th of her life sentenc e whe n they told her that she would ser ve thirty y ear s. She asserts that he r attorney ’s advice conce rning the sentenc e wa s misleading

. She claims not to have understood the actua l se ntence being imposed and that if she ha d known, s h e w o u ld h a v e g o n e to tria l. T h e s tate r e s p o n d s th a t th e r e c o r d s u p p o r ts th e tria l court’s fi nd ing s.

When a claim of ineffe ctive assistance of counsel is ma de, the burden is upon the petitioner to show (1) that c ounsel’s performanc e was defic ient and (2) that the deficiency was prejudicial. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); State v. Melson, 772 S.W .2d 417, 419 n.2 (Tenn. 1989) . To satisfy the re quirement of pr ejudice w hen the pe titioner enter ed g uiltypleas, the pe titioner must demonstrate a r easona ble probability that, but for counse l’s

err ors, she would not have pled g uiltyand would have insisted on going to trial. See H i l l v. L ockhart, 474 U.S. 52, 59, 106 S. C t. 366, 370 (1985); B ankston v. S t at e, 815 S .W.2d 213, 215 (Tenn. Crim. App. 1991)

.

I n Ba x ter v. Rose, 523 S.W .2d 930, 936 (Tenn. 1975) , our supre me court decided tha t attorney s should be held to the g ener al standar d o f whe ther the se rvice s rende red w ere within the

ra n ge o f co m p et en ce d em an d ed o f at t o rn ey s i n cr i m i n al ca s es

. Fu rt h er , t h e c o u rt s t at ed t h at t h e r an ge of c omp e te nc e wa s to be me a su re d b y the du tie s a ndc ri te ri a

se t f orth i n B e a sle y

v. Un ite d St a te s, 491 F.2d 687, 696 (6th Cir. 1974)
, and United States v. DeCoster, 487 F .2d 1197, 1202-04 (D.C. Cir. 1973). Also, in r eviewing counsel’s c onduct, a “ fair a ssessment of attorne y perf ormanc e re quires that every

eff ort be made to eliminate the distorting e ffe cts of hindsig ht, to reconstruc t the circ umstances of

counsel’s challeng ed conduc t, and to evalua te the conduc t from counse l’s perspe ctive at the time.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; se e Hellar d v. State, 629 S.W .2d 4, 9 (Tenn. 1982)

.-7-

The burde n was on the pe titioner in the trial court to prove by clea r and convincing evidenc e the fa ctual alleg ations that would entitle her to r elief. T.C.A. § 40-30-110( f) ( 2003). On a ppeal, we

are bound by

the trial court’s finding s of fa ct unless we c on cl u d e t h at t h e evide nce in the r ecor d pr e po nd e rate s a g a ins t th os e fi nd ing s. Se e F ie lds v. Sta te , 4 0 S. W.3 d 4 50 , 4 58 (T e nn . 2 00 1) . T hu s, the pe tit ion e r n ow ha s th e bu rd e n o f i llu str a tin g ho w the e vid e nc e pr e po nd erat es a g a ins t th os e finding s. Howeve r, we revie w the court’s conclusions re g arding the ef fec tiveness o f counsel de novo with no presumption of corr ectne ss because it involves a mi x ed question of l aw a nd fac t. I d.

For parole purposes, a

life se n t en ce is computed as six ty y ear s. See T.C.A. § 40-35- 501(h)( 1). At the time of the p et i t ioner’s of fense s, relea se elig ibilit y for a life sentenc e wa s desig nated by

statute to occur

afte r ser ving sixtyperc ent of the sentenc e, i.e., thirty -six y ear s. See T.C.A. § 40-35-501( f) ( Supp. 1992). Also, a prisoner could earn sentence reduction cr edits for such things a s g ood behavior

and involvement in work, e ducational, and vocational prog rams. See, e.g
., T.C.A. § 41-21-236. W e note, by compar ison, that beg inning less than a month after the pe titioner’s offe nses, althoug h the orig inal rele ase elig ibilit y date rema ined thirty -six y ear s, a life se ntence for murder r equire d imprisonment for at lea st twenty -five y ear s reg ardle ss of the amount of e arne d sentenc e re duction cre dits. S ee T .C.A. § 40-35-501(g )(1) (Supp. 1993).

Unquestionably
, the advice t he attorney s g ave the petitioner was conflicting and somewhat incorre ct. The pe titioner was not advised tha t her statutory rele ase e l i gi b i l i ty

would occur

afte r
se rv ing thi rt y -s ix y e ars

. I n re vie wi ng the a tto rn e y s’ a dv ic e in thi s ca se , we are re min de d of the la te Justi c e Joe H e nry ’s c omm e nt tha t “ the re are fe w p ra c tic ing a tto rn e y s, oth e rw ise kn ow le dg e able in criminal law, or

judge s at any

level, who ha ve a c omplete under standing of” pa role proc edure s and rela ted matters. F arris v. St ate, 535 S.W.2d 608, 613 (Tenn. 1976). Howeve r, we conclude that the petitioner wa s not prejudiced by the advice she re ceive d.

I nitially , we note tha t the rec ord re fl ec ts that all persons involved in the plea pr ocess we re considering actua l confineme nt time. At the post-c onviction hear ing, the petitioner wa s confusing the leng th of the s entenc e with the l eng th of ac tual confine ment. Thus, it is understandable tha t the trial court discr edited her claim that she would not ha ve pled g uiltyif she had know n the sentenc e
wa s e ff e c tiv e ly sixty y e ars . A s f

or th e amo un t of

tim e thepe tit ion e r w a s e xpe c tin g to s e rv e in confine ment, the trial court computed the ac tual confine m en t t o be twenty -five y ear s, within the

ra n ge t h at t h e pe t i t i o n er ’s co u n s el p ro j ec t ed

. T h e re co rd d o es n o tp re p o n d er at e a gai n s tt h i s fi n d i n g, and we co n cl ude that the tria l court prope rly held that the petitioner w as not prejudice d by her counsel’s a dvice.

III . K NO WI NG , V OLU NT AR Y, AN D I NT ELLI G EN T P LEA

Th e pe tit ion e r c on te nd s th a t th e re c or d doe s not de mon str a te that her de c isi on to p le a d n olo contende re w as knowing , voluntary , and intellige nt relative to her relinquishi ng her rights a nd the fac tual basis for plea ding. We c onclude that he r plea s were validly enter ed.-8-

First, the pe titioner states that the rec ord ref lects that the trial court infor med her of var ious rig hts but did not tell her that she w as wa iving those rights in the p l ea p ro ce s s

. I n Boy kin v. Alabama , 39 5 U. S. 238, 243, 89 S. C t. 1709, 1712 (1969), the Supre me Court stated that entry of a g uiltyplea e ffe ctively

constituted a wa iver of the rig ht ag ainst compulsory self-inc rimination, the rig ht to confront one’ s acc users, a nd the right to trial by a jury . The c ourt held that a va lid waiver of such r ights re quired the intentional relinquishment or abandonment of the rig hts and that such a waiver may not be pre sumed from a

silent recor d. I d.

We b e lie ve the re c or d r e fl e c ts tha t th e pe tit ion e r kn ow ing ly re lin qu ish e d h e r B oy

kin ri g hts

e ve n th ou g h th e tr ia l c ou rt didno t e xpre ssl y

de te rm ine he r u nd e rs ta nd ing that sh e wa s w a ivi ng tho se rig hts. The trial court ex plained the Boy kin rig hts to the petit ioner in terms of a trial upon a plea of

no t g uil ty . It to ld h e r tha t he r nol o c on te nd e re ple a wo uldre su lt i n h e r b e ing fo un d g uil ty a ndwo uld allow the prose cutor to as k h er q uestions which she would be require d to answer . The pe titioner stated that she unde rstood. Although suc h a docume nt is not in the rec ord, the pe titioner told the

c ou rt that sh e ha d r e a d, or

ha d h a d ex pl ain ed to her, a pe tit ion fo r a c c e pta nc e of a ple a of no lo contende re a nd waiver of rights and that she ha d understood it. She told the trial court that she ha d no questions reg arding the petition.

Our supre me court has noted that “it is clea r under fede ral law ‘that B oykin does not require separ ate e n u m eration of eac h rig ht waived a nd separ ate wa ivers as to e ach [of the thre e rig hts] .’” Bla nkenship v. State, 858 S.W .2d 897, 904 (Tenn. 1993) (quoting Fontaine v. United S t ates, 526 F.2d 514, 516 ( 6th Cir. 1975)). I n other wor ds, no particular litany is nece ssary

for c onstitut ional validity . We believe that the nature of t he procee ding, the exchang e between the trial court a nd the petitioner, and the re l atively benef icial plea a g ree ment ref

lect the pe titioner’s knowledg e and understanding that her c onstitut ional rig hts relative to the tria l proce ss were not to be asserted by her any further

. The pe titioner asserts that an insuffic ient fac tual basis was pre sented at the plea he aring

re la tiv e to h e r g uil t f

or the of fe ns e s f or wh ic h sh e ple d no lo c on te nd e re

. She a sse rt s th a t sh e sh ou ld be entitled to withdraw her ple as. The fac tual basis require ment for a g uilty or nolo contender e plea primarily exis ts to ensure that a d ef en dant’s plea

is made with an unde rstanding that the admitted

c on du c t a c tua lly

c on sti tut e s the of

fe ns e that is c ha

rg e d. Se e Mc Carthy v. Un ite d Stat e s, 39 4 U .S. 459, 466-67, 89 S. Ct. 1166, 1171 (1969). I n other wor ds, the fact u al b as i s focuse s upon a defe ndant’s under standing about the applica ble law in re lation to the fac ts being admitted. State v. L ord, 894 S.W.2d 312, 316 (Tenn. Crim. App. 1994).

Th e pr os e c uto r t old

the c ou rt that the pe tit ion e r a ide d a ndabe tte d in the mur de r o f the vic tim at a mar ket. He sta ted that she wa s not the person who stabbed the vic tim but t hat she wa s more than

a mer e per son who was present. He stated that the s tabbing was done by the petitioner’s c ompanion, Matney Putman. W e note that upon inqui ry , t h e p eti tioner’s c ounsel advised the c ourt that he believed the state’s proof could re su l t i n a guilty

verdic t for first de g ree murder a nd ag g rava ted robbery . We believe that the rec ord suffic iently shows a fa ctual basis re lative to the murder char g e. Obviously , though, the re w as no mention of an ag g ravated robbe ry . Howeve r, an insuff icient fa ctual-9-

basis does not, per se , rise to the leve l of a c o n s t i tutional violation relative to a plea being involuntary , unknowing , or not unde rstood. See, e.g ., Powers v. State, 942 S.W .2d 551, 555 (Tenn. Crim. App. 1996). We note that the petitioner’s “Ac cepta nce of Plea Ag ree ment” re flec ts that she

un de rs too d th a t sh e wa s ple a din g no lo co nte nd e re to fe lon y mur de r. She did no t tes tif y a t the po stconviction hea

ring reg arding any lack of understanding that she had rela tive to her plea to ag g ravated robber y

. W e co n cl u d e that the r ecor d does not support a c laim that the failure to establish a suff i ci en t fac tual basis for a

plea to ag g ravated robbe ry contributed in any

way to the petitioner’s decision to plead nolo c ontender e.

I n consideration of the fore g oing and t he record as a whole , the judg ment of the trial c ourt is affirme d.

___________________________________ J OSEPH M. TI PTON, J UDGE