IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

May 19, 2010 Session

DARRELL JOHN PENNER v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Perry County

No. 1009 Timothy L. Easter, Judge

No. M2009-00670-CCA-R3-PC - Filed September 9, 2010

A Perry County grand jury indicted the Petitioner, Darrell John Penner, for two counts of

rape of a child. The Petitioner pled guilty to aggravated sexual battery, and the trial court

sentenced him to ten years at 100% in the Department of Correction. The Petitioner filed a

petition for post-conviction relief, claiming that he received the ineffective assistance of

counsel and that his guilty plea was not knowingly and voluntarily entered. The postconviction court denied relief after a hearing, and the Petitioner now appeals. After a

thorough review of the record and applicable law, we affirm the judgment of the postconviction court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which DAVID H. WELLES

and JERRY L. SMITH, JJ., joined.

Larry Joe Hinson, Jr., Hohenwald, Tennessee, for the Appellant, Darrell John Penner.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;

Clark B. Thornton, Assistant Attorney General; Kim R. Helper, District Attorney General;

Stacey B. Edmonson, Assistant District Attorney General, for the Appellee, State of

Tennessee.

OPINION

I. Facts

A. Guilty Plea

This case arises from allegations that the Petitioner had a sexual relationship with one

of his children who was under the age of thirteen. At the Petitioner’s guilty plea hearing the
State’s attorney summarized the facts underlying the Petitioner’s conviction as follows:

[I]n September 2002, [the Petitioner] had unlawful sexual contact with one of

his children, a child under the age of thirteen years old, who had a date of birth

of May 12 of 1998. During counseling for the treatment with the counselor,

th

[the Petitioner] informed the counselor, and then who was required by law to

notify the authorities of the admission, the Department of Children Services,

along with Investigator Barry Carroll with the district attorney’s office, began

an investigation of the matter. And after being advised of his Miranda warning,

[the Petitioner] gave a confession to both the DCS representative and

Investigator Carroll admitting that he had had unlawful sexual contact with this

child under thirteen years of age.

Pursuant to a plea agreement, the Petitioner pled guilty to one count of aggravated sexual

battery, a Class B felony, and the trial court sentenced him to serve ten years in the Tennessee

Department of Correction. During the plea hearing, the trial court listed the Petitioner’s rights

and asked the Petitioner whether he understood them, and the Petitioner responded in the

affirmative. Further, the Petitioner testified that he understood he was waiving those rights

by moving forward with the negotiated plea agreement. The Petitioner agreed that he

understood the elements of the charge against him, the negotiated plea agreement, and the

details of the sentence. He stated that he understood the consequences of his plea and the

conviction. The Petitioner confirmed that his signature was on both the jury trial waiver and

the negotiated plea agreement and that he reviewed both documents with his attorney. Finally,

the Petitioner denied any use of alcohol or drugs that might impair his judgment and testified

that he was voluntarily entering his guilty plea.

B. Post-Conviction Hearing

The Petitioner filed a petition for post-conviction relief, and an amended petition,

claiming that he received the ineffective assistance of counsel and that his guilty plea was not

knowingly and voluntarily entered. The post-conviction court held an evidentiary hearing

wherein the following evidence was introduced:

The Petitioner’s attorney (“Counsel”) testified he represented the Petitioner and

negotiated his plea agreement, although he was not present at the hearing where that guilty

plea was entered. At the hearing, the Petitioner was represented by Counsel’s co-counsel.

Counsel recalled that, before the plea negotiations in this case, he received discovery from the

State that included: (1) a police interview with the Petitioner that resulted in an admission

against interest; (2) a police interview with the Petitioner’s wife; and (3) information that the

Petitioner “had, or was about to, attend a mental health facility.” Counsel could not recall

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whether the Petitioner was seeking mental health treatment on his own volition or as a result

of a third party request. Counsel learned through communication with the mental health

facility that the Petitioner “had a sexual deviancy,” and there was concern about his treatment

“because he was basically defending himself for his actions.” Counsel recalled that after

psychological testing the Petitioner was diagnosed as a pedophile and an exhibitionist. The

Petitioner was also diagnosed with a generalized anxiety disorder; however, Counsel said

“there was nothing to indicate that [the Petitioner] couldn’t appreciate right from wrong or he

had any serious mental defect.” Counsel also testified that he did not notice any mental issues

in his interactions with the Petitioner. Based upon this, Counsel did not file a motion to

determine the Petitioner’s competency. Counsel explained this decision saying, “Based upon

my interviews and consultations with [the Petitioner], he seemed very lucid, very – he

understood what he was facing, he was able to respond to me in an intelligent manner. And

then after I read [the mental health facility] reports, I would not have any factual basis to

question his competency.”

The Petitioner’s post-conviction attorney then provided Counsel an assessment

indicating the Petitioner was an individual with “severe and persistent mental illness.”

Counsel testified that he had never seen the document before and that the document would

probably not have changed his case strategy because the Petitioner specifically requested a

plea agreement, stating that he did not want to go to trial. Counsel acknowledged, however,

that he probably would have investigated further if he had seen this assessment.

Counsel recalled that the Petitioner was charged with two counts of rape of a child, and

the Petitioner’s wife was charged as a co-defendant. Counsel agreed that there was no

physical evidence in this case and that the State’s case rested on corroboration testimony.

Counsel said that, although another attorney did the research on corroboration testimony, he

provided the Petitioner with that research and, after the Petitioner read it, Counsel discussed

with the Petitioner the law as it related to the Petitioner’s case. Counsel said that he

anticipated that the testimony necessary to corroborate the Petitioner’s confession would have

come from the Petitioner’s children, the Petitioner’s wife, and church members, to whom the

Petitioner’s had made incriminating statements. Counsel did not interview the children or the

Petitioner’s wife, but did review the interview of the Petitioner’s wife that the police

conducted. The interview revealed that the Petitioner’s wife observed the Petitioner,

unclothed, take their children into a bedroom and, on another occasion, take the victim outside

in the dark without explanation. Counsel explained that he did not interview the Petitioner’s

family because the Petitioner was adamant he did not want his wife to face a trial or

conviction and did not want his children involved in any way. “[The Petitioner] said they had

suffered enough, he was trying to protect them.”

Counsel testified that he was unaware of any threats made to the Petitioner regarding

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the loss of his children in the event he did not cooperate.

On cross-examination, Counsel testified that he had practiced law for thirty-three years.

Counsel said that, during his entire representation of the Petitioner, the Petitioner was

consistent in his request that Counsel negotiate a plea rather than take the case to trial.

Counsel’s co-counsel, who was present at the guilty plea hearing and who conducted

the research on corrobation testimony, testified that he worked in Counsel’s office and

researched accomplice testimony for the Petitioner’s case. He also was with the Petitioner on

the day he plead guilty:

[W]e were hoping to enter the plea and get 30 days to respond – to

report. I think [the Petitioner] said he had to wrap his business up. We got here

that day, I spoke to the District Attorney about it, and we actually researched

the law and found that since it was non-probatable offense, that he would not

be able to enter the plea that day and then remain free on bond.

However, there was some concern[] that there would be a new judge in

January, and the deal was so lenient, that if we went to a different judge, that

that judge would not accept the plea bargain and would reject that plea.

Co-counsel also remembered that the Petitioner was nervous when the hearing to accept his

guilty plea was moved until after lunch. The Petitioner’s reaction did not raise any questions

in Co-counsel’s mind as to the Petitioner’s ability or willingness to plead guilty but, rather,

indicated to Co-counsel that the Petitioner was nervous about whether the judge would accept

the negotiated plea agreement. Co-counsel did not specifically recall going over the plea

agreement with the Petitioner, but maintained that the Petitioner never indicated he did not

understand the agreement. Co-counsel testified that had the Petitioner indicated any lack of

understanding, Co-counsel would not have allowed the Petitioner to proceed with the guilty

plea.

Bill Saul testified that he had known the Petitioner since 1999 and they were part of

the same church community. Saul said that the church advocates that its members should

submit to laws and the government unless “it would violate our conscience.” Saul became

aware of the Petitioner’s conduct and said that the church community, out of concern for the

Petitioner and his family, felt he needed to seek professional help. When asked if the church

community had a position on the criminal matter, Saul responded:

You know, I have a little bit of difficulty in answering that. I don’t

recall that we sat down and said, “Now, this is the thing for you to do plead

guilty,” on the basis that he had confessed some sins. What I’ve heard here

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today is new to me; what I’ve already heard.

But on the basis of what he had confessed to me, well, if that was true,

well, then the only thing to do would be to confess guilty.

Saul agreed that the church community would not necessarily want “its dirty laundry aired”

but said that the church community would not take steps to prevent it either. Saul agreed that

he was present for meetings between Counsel and the Petitioner and did not recall any

discussion about whether or not the Petitioner should go to trial. Saul said that it was

“advantageous” for the Petitioner to plead guilty rather than go to trial because the incidents

would be less public. Saul speculated that the effect of the Petitioner’s actions on his family

and church community were a significant weight on the Petitioner. Saul recalled hearing that

the Petitioner was having difficulty contacting Counsel but was never present for any of those

phone calls.

On cross-examination, Saul testified that he never told the Petitioner he needed to

plead guilty for the benefit of the community and that he never told him he needed to confess

for the benefit of the community.

Susan E. Franks, an investigator with the Department of Children’s Services (“DCS”),

testified that she investigated allegations that the Petitioner engaged in oral sex with his fouryear old daughter. Supporting the allegation were statements from the Petitioner and his wife,

who witnessed the first incident when she saw the Petitioner with his penis in the victim’s

mouth when the victim was four months old.

Franks said that a formal forensic interview was never conducted with the victim, and,

when she interviewed the victim at the home, the victim did not disclose anything. A physical

examination of the victim was also conducted and the genital exam was normal.

On cross-examination, Frankstestified thatshe had been a DCS investigator for almost

thirteen years and, based upon that experience, she has found that, unless the sexual abuse is

an acute rape, 95 to 98 percent of the time genital exams come back normal.

Barry Carroll, an investigator for the District Attorney’s Office, testified that he

interviewed both the Petitioner and his wife about these charges. Carroll stated that he did

not find any physical evidence of the charges during his investigation. Carroll denied ever

telling the Petitioner that “it would go easier on him if he just accepted it and did what was

asked of him” or that, if he did not cooperate, he would lose his children. Carroll said that the

extent of his investigation was the interviews and that he was unaware of anyone, other than

Franks, investigating the charges.

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The Petitioner testified he hired Counsel based upon a recommendation from a deacon

from the Petitioner’s church. The Petitioner said that he met with Counsel three or four times

in his office and twice in court. These discussions all focused on the guilty plea negotiation.

The Petitioner stated that it was due to Counsel’s “pressure and coercion” that he did not

pursue a trial, explaining:

Well, he was – well, he would just – for one thing, he would never speak

of, he would never – never wanted to speak of going to trial. I mean, he would

speak about it, but he didn’t want to go into it. Like, if I asked him – I

remember asking him about it, and he said, “Oh, you don’t want to put your

daughter on the stand, do you?”

And I was like, No, I don’t want to.

And then I would try to ask more about it, and he wouldn’t even answer

my questions; he just – he gave me the cold shoulder, and I couldn’t go into it

with him.

The Petitioner did not recall Counsel explaining what the State would have to prove

in order for a jury to find him guilty of the charges. The Petitioner said that Counsel

mentioned corroboration but he did not understand what Counsel was talking about. The

Petitioner admitted that he did not ask Counsel to explain it to him but said this was because

Counsel was “very controlling,” and it was difficult to ask Counsel questions.

The Petitioner testified that he had been a member of the Mennonite community for

his entire life and was taught to cooperate with the law and not to hinder it in any way. The

Petitioner recalled meeting with Carroll and being advised he had the right to remain silent,

but he said he did not understand that. He said he felt “compelled to be there and to speak”

based upon the way Carroll presented himself. The Petitioner recalled that Carroll showed

him his badge and gun and said, “I’m authorized by the State of Tennessee to use this weapon

if necessary. I want to make sure you understand who I am.”

The Petitionersaid that the investigation regarding these charges began because he was

seeking mental health treatment for depression, anxiety, and panic attacks. The Petitionersaid

that, during the time of the investigation and plea, he was taking antidepressants but did not

recall whether he told Counsel he was on medication. During this time, the Petitioner was

also attending regular mental health appointments that he initiated with the support of his

church. The Petitioner testified that he was diagnosed as manic-depressive with an anxiety

disorder, but that, with continued treatment, he had a good prognosis for recovery. The

Petitioner said he did not discuss his mental health treatment with Counsel because Counsel

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told him, “Your part is to make sure you go to all your appointments, and my part is to

negotiate with the D.A.”

The Petitioner testified that, from the beginning, Counsel advised that taking a plea

agreement was his only option. He also said there was pressure placed on him regarding the

charges against his wife:

[From] my understanding, it came through DCS that I would need to take the

guilty plea before they – otherwise they would prosecute my wife and they

would put up the children for adoption; you know, basically what I – in my

words, “on the open market.”. . .And my wife conveyed this to me, and she was

very, very concerned about it, because we were very scared about, you know,

the children losing their mother as well.

The Petitioner testified that his church is a very “tight” organization where the church

leaders have “authority over the congregation.” Church members are obligated to follow the

recommendations of the church community and a church member did not do as they

instructed, they were subject to excommunication. The Petitioner said that excommunication

of a family member would negatively impact the family, and it was not something he wanted

for his wife and children.

The Petitioner did not recall any specific conversations with Counsel regarding

evidence or discovery. The Petitioner denied ever telling Counsel he wanted to plea or that

he was not interested in going to trial. The Petitioner testified that he could not reach Counsel

by phone for almost three months. Once he finally reached Counsel, the Petitioner met him

at his office and Counsel told him they had reached a plea agreement, and the Petitioner

would be going to prison in two days. The Petitioner said:

And that was the shock of my life right there, because I didn’t know anything for

several months, hadn’t hardly talked to him. . . . he asked if I was ready to go,

and I said, ”No, I was not interested in taking a plea,” and so then they put it off.

The Petitioner admitted that, even though he was on antidepressants at the time, he

agreed at the plea hearing that he was not on medication that altered his ability to make a

decision. He explained he only agreed because he did not know “the importance of the

details.” The Petitioner said he did not want to plead guilty but felt he had to in order to

protect his wife and children. The Petitioner described his mental state at the guilty plea

hearing:

And one side of me screamed that this is ridiculous, I can’t be doing this, this is

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not right, I can’t believe that I’m being forced into this. And then the other side

was screaming back and saying I don’t know what else to do; there’s not the

slightest hope of anybody trying to help me, you know, and go in any other

direction.

The Petitioner said that he did not discuss these thoughts with Counsel, explaining these ideas

were simply what went through his mind during the hearing.

On cross-examination, the Petitioner agreed that there were four court appearances

with Counsel rather than two as he had previously testified, which meant he met with Counsel

at least seven or eight times during the course of the case. The Petitioner acknowledged that

an employee of DCS never directly told him DCS was going to take his children, and that he

was relying on his wife’s statements in believing DCS would do so. The Petitioner said he

was not sure whether he specifically told Counsel he did not want a plea, but that was what

was “in [his] mind.” He said that he was intimidated by Counsel, who seemed “very cold and

austere,” and that he took the plea because he was trying to be “cooperative.” The Petitioner

agreed that he never requested a new attorney but emphasized that, because he had agreed for

Counsel to represent him throughout the proceedings, he thought it was his “Christian duty”

to honor that agreement.

The Petitioner agreed that the trial judge reviewed his rights and that the Petitioner, at

the guilty plea hearing, testified that he understood the rights, but he explained that he only

did so “to get the plea bargain.” He felt the plea was his only option. The Petitioner agreed

he answered in the affirmative to all of the trial judge’s questions about whether he

understood the plea, the conviction, and his rights because he felt “that’s what was expected

of [him].” “I can’t say I didn’t have any understanding, but it was my intention to take the

plea bargain and that was, you know, because I didn’t know what else to do.”

At the conclusion of the hearing, the post-conviction court took the petition under

advisement and later issued an order denying post-conviction relief. It is from this judgment

that the Petitioner now appeals.

II. Analysis

On appeal, the Petitioner contends Counsel failed to provide effective assistance and

his conviction is the result of an involuntary plea. The State responds that Counsel’s

performance was not deficient and that the Petitioner’s guilty plea was knowingly and

voluntarily entered.

In order to obtain post-conviction relief, a petitioner must show that his or her

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conviction or sentence is void or voidable because of the abridgment of a constitutional right.

T.C.A. § 40-30-103 (2006). The petitioner bears the burden of proving factual allegations in

the petition for post-conviction relief by clear and convincing evidence. T.C.A. § 40-30-

110(f) (2006). Upon review, when post-conviction proceedings have included a full

evidentiary hearing, as was true in this case, the trial judge’s findings of fact and conclusions

of law are given the effect and weight of a jury verdict, and this Court is “bound by the trial

judge’s findings of fact unless we conclude that the evidence contained in the record

preponderates against the judgment entered in the cause.” Black v. State, 794 S.W.2d 752,

755 (Tenn. Crim. App. 1990). Thus, this Court will not re-weigh or re-evaluate the evidence

below; all questions concerning the credibility of witnesses, the weight and value to be given

their testimony and the factual issues raised by the evidence are to be resolved by the trial

court judge, not the appellate courts. Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999);

Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). A post-conviction court’s conclusions

of law, however, are subject to a purely de novo review by this Court, with no presumption

of correctness. Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001).

A. Ineffective Assistance of Counsel

The right of a criminally accused to representation is guaranteed by both the Sixth

Amendment to the United States Constitution and article I, section 9, of the Tennessee

Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d

453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following

two-prong test directs a court’s evaluation of a claim for ineffectiveness:

First, the [petitioner] mustshow that counsel’s performance was deficient. This

requires showing that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the [petitioner] by the Sixth

Amendment. Second, the [petitioner] mustshow that the deficient performance

prejudiced the defense. This requires showing that counsel’s errors were so

serious as to deprive the [petitioner] of a fair trial, a trial whose result is

reliable. Unless a [petitioner] makes both showings, it cannot be said that the

conviction or death sentence resulted from a breakdown in the adversary

process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417, 419

(Tenn. 1989).

In reviewing a claim of ineffective assistance of counsel, this Court must determine

whether the advice given or services rendered by the attorney are within the range of

competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail

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on a claim of ineffective assistance of counsel, a petitioner must show that “counsel’s

representation fell below an objective standard of reasonableness.” House v. State, 44 S.W.3d

508, 515 (Tenn. 2001) (citing Strickland, 466 U.S. at 688).

When evaluating an ineffective assistance of counsel claim, the reviewing courtshould

judge the attorney’s performance within the context of the case as a whole, taking into account

all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753 S.W.2d 148,

149 (Tenn. Crim. App. 1988). The reviewing court must evaluate the questionable conduct

from the attorney’s perspective at the time. Strickland, 466 U.S. at 690; Hellard v. State, 629

S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court must be highly deferential and

“should indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Burns, 6 S.W.3d at 462. Finally, we note that a

defendant in a criminal case is not entitled to perfect representation, only constitutionally

adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In

other words, “in considering claims of ineffective assistance of counsel, ‘we address not what

is prudent or appropriate, but only what is constitutionally compelled.’” Burger v. Kemp, 483

U.S. 776, 794 (1987) (quoting United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)).

Counsel should not be deemed to have been ineffective merely because a different procedure

or strategy might have produced a different result. Williams v. State, 599 S.W.2d 276, 279-80

(Tenn. Crim. App. 1980). The fact that a particular strategy or tactic failed or hurt the defense

does not, standing alone, establish unreasonable representation. House, 44 S.W.3d at 515

(citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)). However, deference to matters of

strategy and tactical choices applies only if the choices are informed ones based upon

adequate preparation. House, 44 S.W.3d at 515.

If the petitioner shows that counsel’s representation fell below a reasonable standard,

then the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694; Nichols v. State, 90

S.W.3d 576, 587 (Tenn. 2002). This reasonable probability must be “sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875 S.W.2d 662,

665 (Tenn. 1994).

The Petitioner argues that Counsel did not completely explain the corroboration

requirements for accomplice testimony or protect the Petitioner’s due process rights by

making sure the State could establish corroborating evidence to support the Petitioner’s

confession. In regard to this issue, the post-conviction court found:

The proof at the evidentiary hearing establishes that the State had sufficient

evidence to independently corroborate the Petitioner’s confessions. According

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to the DCS investigator, the Petitioner’s wife had observed him having oral sex

with the victim. Smith and Wood were aware of this eye witness testimony as

well as the information that the Petitioner had confessed to other members of

his community. This Court is satisfied that had this matter proceeded to trial

the State would very likely have been able to succeed in getting this

independent evidence before the fact finder which would have resulted in a

conviction of Child Rape.

On all disputed issues between [Counsel], Wood and the Petitioner on this

issue, the Court finds [Counsel’s] and Wood’s testimony more credible. They

did what they were asked to do - get the Petitioner the best plea agreement they

could and avoid a trial.

Our review of the record supports the conclusions of the post conviction court. The

Petitioner admitted to his church community, family, and investigators that he had engaged

in sexual conduct with his daughter, the victim. The Petitioner’s wife also gave statements

consistent with the Petitioner’s confession. She said that she had seen the Petitioner engage

in oral sex with the victim when she was an infant. Further, she witnessed the Petitioner take

her daughters into a bedroom unclothed. On another occasion, she witnessed the Petitioner

take the victim outside in the dark without explanation. The Petitioner was also diagnosed,

based on mental health testing and assessment, as a pedophile and an exhibitionist, which is

consistent with his admissions and the charges against him. While a conviction cannot be

supported solely on uncorroborated admissions to a crime, it requires only “slight evidence”

which may be either direct or circumstantial, to corroborate a confession and sustain a

conviction. State v. Alec Joseph Mesot, No. M2006-02599-CCA-R3-CD, 2008 WL 732151,

at *3 (Tenn. Crim. App. March 14, 2008) no perm. app. filed; State v. Ellis, 89 S.W.3d 584,

600 (Tenn. Crim. App. 2000).

As to Petitioner’s claim that Counsel did not explain corroboration testimony to him,

the Petitioner testified that Counsel spoke with him about corroborative evidence, but he did

not understand it and did not seek further clarification of the information or tell Counsel he

did not understand. The post-conviction court found Counsel’s testimony was credible and

found that the Petitioner had not demonstrated by clear and convincing evidence that

Counsel’s representation rose to the level of ineffective assistance or that it prejudiced the

Petitioner. We conclude the evidence does not preponderate against the post-conviction

court’s findings. The Petitioner is not entitled to relief on to this issue.

B. Guilty Plea

The Petitioner next contends his guilty plea was not knowingly and voluntarily entered

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due to his mental illness and pressure placed upon him to protect his family.

When evaluating the knowing and voluntary nature of a guilty plea, the United States

Supreme Court has held that “[t]he standard was and remains whether the plea represents a

voluntary and intelligent choice among the alternative courses of action open to the

defendant.” North Carolina v. Alford, 400 U.S. 25, 31(1970). The court reviewing the

voluntariness of a guilty plea must look to the totality of the circumstances. See State v.

Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995); see also Chamberlain v. State, 815

S.W.2d 534, 542 (Tenn. Crim. App. 1990). The circumstances include:

[T]he relative intelligence of the defendant; the degree of his familiarity with

criminal proceedings; whether he was represented by competent counsel and

had the opportunity to confer with counsel about the options available to him;

the extent of advice from counsel and the court concerning the charges against

him; and the reasons for his decision to plead guilty, including a desire to avoid

a greater penalty that might result from a jury trial.

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (citing Caudill v. Jago, 747 F.2d

1046, 1052 (6th Cir. 1984)). A plea resulting from ignorance, misunderstanding, coercion,

inducement, or threats is not “voluntary.” Id.

In the case under submission, the post-conviction court found:

After a close review of the transcript of the plea hearing, it appears the Trial

Court was very thorough in his explanations of the various rights of the

Petitioner and the rights that the Petitioner would be giving up by pleading

guilty. The transcript does not reveal that the Petitioner did not understand

these rights.

The record establishes that trial counsel explained the plea agreement and the

resulting consequences to the Petitioner before the Petitioner entered his plea.

Additionally, it does not appear from the record that the Petitioner’s plea was

the result of pressure or force to accept the plea agreement. The Petitioner’s

current position on this point is inconsistent with the credible testimony of the

Petitioner’s trial counsel as well as the Petitioner’s admissions to the trial judge

at the time he entered his plea that his actions were knowingly and voluntarily

made. The Petitioner’s remarks made at the plea hearing indicate that he was

fully aware of the nature and the consequences of the plea and that he made a

knowing, intelligent, and voluntary decision to accept the agreement.

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At the Petitioner’s guilty plea hearing, the Petitioner testified that his plea was

voluntarily made. Counsel testified that he reviewed the Petitioner’s mental health records

and there was nothing to indicate incompetency and, furthermore, based on his own

interaction with the Petitioner he found no basis to question th Petitionre’s competency.

Counsel described the Petitioner as lucid and recalled that the Petitioner’s responses to

Counsel were intelligent, which is consistent with the Petitioner’s responses to the trial court

during his guilty plea hearing. The post-conviction court found the Petitioner’s responses to

the trial court at his plea hearing reflected his understanding of his rights. The Petitioner

acknowledged that he testified at the guilty plea hearing that he understood the plea, sentence,

and conviction. He explained to the post-conviction court that he pled guilty not because he

“didn’t have any understanding,” he intended to take the plea because he did not know what

else to do.

The Petitioner relies specifically on an unsigned document stating that the Petitioner

was “a person with severe and persistent mental illness” to support his claim that his plea was

involuntary due to mental incompetency. This document was introduced at the postconviction hearing through Counsel who testified that he had never seen it. There was no

testimony, expert or otherwise, explaining the document, where it came from, who

administered the test it documented, or how its contents would relate to the Petitioner’s

competency to enter a guilty plea. Thus, the evidence of record does not preponderate against

the post-conviction court’s findings, but supports the findings of fact and conclusions of law

reached by the post-conviction court.

Finally, the Petitioner claims that his plea was not voluntary because “he was under

great strain from those whom he wanted to protect.” The post-conviction court specifically

accredited Counsel’s testimony that he was unaware of any threats made to the Petitioner in

regard to the loss of his children. Further, the post-conviction court found the Petitioner’s

testimony at the guilty plea hearing credible when he testified that his plea was voluntary. It

is not the province of this court to re-weigh a trial court’s credibility determination, as that

decision is best made by the trial court. State v. Holder, 15 S.W.3d 905, 912 (Tenn. 1999).

Moreover, there was no evidence introduced at the post-conviction hearing, other than the

Petitioner’sstatements,supporting coercion from DCS or the District Attorney’sinvestigator.

Co-counsel testified that he reviewed the plea agreement with the Petitioner prior to the plea,

and the Petitioner did not indicate he did not understand. The Petitioner also testified that he

did not tell Co-counsel or Counsel that he did not want to plead guilty or did not understand

the plea, the conviction, or his rights. Finally, we note that at the guilty plea hearing the trial

court was very thorough in its explanation of the Petitioner’s rights. The Petitioner testified

that he understood and stated that he was entering the plea voluntarily.

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Following our review of the record, we conclude that the Petitioner has failed to

establish that the proof preponderates against the findings made by the post-conviction court

that his plea was entered knowingly and voluntarily.

III. Conclusion

After a thorough review of the record and relevant authorities, we conclude that the

post-conviction court properly dismissed the Petitioner’s petition for post-conviction relief.

Accordingly, we affirm the judgment of the post-conviction court.

_________________________________

ROBERT W. WEDEMEYER, JUDGE

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