### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs D ec em be r 15, 200 4

STATE OF TENNESS EE v . JASO N BRIAN HARGRO VE
Appeal f romthe Circ uit Court for Marshall County No.15505 Charles Lee , Judge

No. M2003- 00333-CCA -R3-P C - F iled May 5, 2005

The pe titioner, J ason B rian Ha rg rove, ple d g uiltyto multi ple counts of thef t and burg lary

and wa s order ed to serve an ef

fec tive sentenc e of twe nty (20) y ear s. This Court affirmed his sente nce on d ir e c t a p p e a l. Se e St a te v

. Ja s o n B r ian H ar g r o v e , N o

. M 2 0 0 1

- 0 1 5 79-CCA-R3-C D , 2 0 0 2 WL 1585638 (Tenn. Crim. App., at N ashville, J uly 18, 2002). The pe titioner filed a timely petition for po st- c on vic tio n r e lie f, a lle g ing ine ff e c tiv e a ssi sta nc e of c ou ns e l a t tria l a ndarg uin g that hi s g uil ty plea wa s not knowingly

and voluntarily

enter ed. After a he aring , the post-conviction court denied the petition. On appeal, the petitioner challeng es the denial of the petition for post-convic tion relief based on a

claim of inef

fec tive assistance of counse l. He also a rg ues that the holding in B lakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), require s a re ducti o n i n his sentence . For the follow in g r e a s o n s , w e a f

f irm th e d e c is io n o f th e p o s t- c o n v ic ti o n c o u r t a n d d e c li n e to mo difythe petitioner’s sente nce.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Tr ial Co ur t i s A ffirm e d.

J ER R Y L. S MI TH , J ., delivere d t h e o p i nion of the court, in which J OHN E VE R E TT W I LLI A M S and N OR MA M C G EE O G LE , J J ., joined.

Merrily n Fe irman, Assistant Public Defe nder, Nashville, Tenne ssee, f or the a ppellant, J ason B rian Har g rove. Paul G. Summers, Attorney Gene ral & Reporter ; Mic helle Chapman McI ntire, Assistant Attorney Gene ral; Mike McCowe n, District Attorney Gene ral a nd Weakley

E. Ba rnar d, Assi s t ant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.-2- OP IN ION

Fa ctual B ackg round

The fa cts underlying the petitioner’s c onvictions were summarized by this Court on di rec t
app e a l a s f

oll ow s:

Be tween midnig ht and 7:00 a.m. on Fe bruary 27, 2001, the [ petitioner], along wi th t wo oth e r ind ivi du a ls, bu rg lari zed e ig hte e n ve hic le s a ndsto le nu me ro us ite ms of persona l pr operty from the vehicles. They also stole three vehicles, two of which they drove t o a m u ddy

field and a

bandoned a fter the vehicles be came stuck in the mud. The three men wer e appr ehende d when they returne d to the field to retrieve the abandone d vehicles. The police off icer who ar rested the men noticed that “all thre e defe ndants had a n excessive amount of m ud on them and that the field was muddy .” Mo re ov e r, the of

fi c e r ob se rv e d that the tr io wa s in po sse ssi on of so me of the pr op e rt y that was e arlier

stolen from the other

vehicles.

As a result, on April 25, 2001, the [petit ioner] ple d g uiltyto three c ounts of the ft of pr op e rt y va lue d be tw e e n $1 ,0 00 a nd $1 0, 00 0, a Cla ss D fe lon y ; tw o c ou nts of t h ef t of prope rty

valued be tween $500 and $1,000, a Class E fe lony ; eig hteen counts of automobil e b u rg lary , a Class E fe lony ; and twelve c ounts of theft of property valued less than $500, a

Class A misdemeanor. The pa rties stipulated that the [petiti oner] is a Rang e I I multipl e off

ender

.
I n sen t e n c i n g t h e [p e t i t i o n e r ], t h e tr i a l c o u r tf o u n d n o m i t i g a t i n g f

a c t or s. Howeve r, t h e court c oncluded that f our enha nceme nt fac tors applied to the [petit ioner]: (1) the [petitioner] has a previous history of c riminal convictions or criminal behavior in addition to those nece ssary to establish the appropriate ra ng e; (8) the [petitioner] has a pre vious his t o ry o f u nwillingness to comply with the conditions of a sente nce involving rele ase in the community ; (13) the instant fe lony

was c ommitt ed w h ile on community corr ections; and (20) the [petiti oner] was

a dju dic a t e d t o h a v e c o m m i t t e d a d e l i n q u e n ta c to r

a c t s a s a j u v e n i l e t h a tw o uld constitute a fe lony

if committed by

an adult. Af

ter c onsidering these fa ctors, the trial court sente nced the [petit ioner] t o s i x y ear s incarc eration for ea ch Class D fe lony conviction, two y ear s for e ach Class E fe lony conviction, and e leven months and twenty -nine day s for each Class A m isdemeanor conviction. The tria l court further order ed that the Class D fe lony sentenc es be serve d consec utively to eac h other, the Cla ss Ef e l o n y s e n t e n c e s b e s e r v e d c o n c u rr e n t l y w i t h e a c h o t h e r

b u tc o n s e c u t i ve ly to the Class D felony

sentenc es, and the Class A misdemeanor sentenc es be ser ved-3-

concur rently with eac h other and concur rently with the C lass E felony sentenc es for a total ef fec tive sentenc e of twe nty y ear s incarc eration.

Sta te v. Jaso n B ri a n H arg ro ve , 2 00 2 WL 15 85 63 8, a t *1. Th e pe tit ion e r ap pe a le d his se nte nc e to this Court. On direc t appea l, this C ourt aff irmed the pe titioner’s sentenc e. I d. at *4.
Subsequently , the petitioner filed a pro se petition for post-conviction relief , alleg ing va

rious ins ta nc e s w hic h, he arg ue d, a moun ted to in e ff e c tiv e a ssi sta nc e of

c ou ns e l. T he pe tit ion e r a lso arg ued th at his g uiltyplea wa s not knowingly and voluntarily

enter ed. The post-conviction court appointed counse l and held an e videntiary hearing on the petition.

Proof at the Post-Conviction Hearing
The petiti oner testified that, while hi s case was still in gene ral sessions court, trial counsel met with him a “couple of times” in the courtroom. Acc ording to the petitioner, trial counse l assured him that the trial court would run his se ntence s concur rently so that he would only

have to se rve a tot a l of e ig ht ( 8) y e ars in c on fi ne me nt. Af te r the pe tit ion e r’ s c a se wa s tr a ns fe rr e d to c ir c uit c ou rt , the pe tit ion e r t e sti fi e d th a t tria l c ou ns e l me t w ith the pe tit ion e r l e ss tha n f ive tim e s f

or app ro xima te ly fiftee n (15) to twenty

(20) minutes on ea ch occ asion. During one of the se mee tings, the pe titioner claims that trial counse l went over the charg es wit h him and told him t hat he would r ece ive an e ight (8) y ear sentenc e “by

law.”
The pe titioner also testifi ed t h at t ri al counsel did not conve y a plea offe r to him, but the petitioner admitted that trial counse l told him if he entered an open plea he would rec eive a n eig ht (8 ) y e ar s e nte nc e

. Th e pe tit ion e r a lso c la ime d that tr ia l c ou ns e l to ld h im i t w ou ld b e a wa ste of tim e to proce ed to trial bec ause he would rec eive an eig ht (8) y ear sentenc e re g ardle ss of whethe r he ple d g uil ty or wa s c on vic te d a t tria l. Ac c or din g to the pe tit ion e r, tr ia l c ou ns e l in fo rm e d h im that he wo uld g o to boot camp and that he would be re lease d in six (6) months, reg ardle ss of his sentence . The petitioner st ated that if he had known he would r ece ive a twe nty -y ear sentenc e, he w ould not have pled g uilty

. Howeve r, t he petiti oner admitted that trial counsel e x plained to him that it was the trial court’s de cision whether

to run the sentenc es conse cutively or conc urre ntly

. The pe titioner also claimed that h e i n fo rmed trial c ounsel about his first suicide attempt du ri ng on e of

the ir me e tin g s a t th e ja il a ndthat tria l c ou ns e l e ve n s a w the ba nd a g e s o n h is wrist s. Further, the pe titioner claimed that he was a dmitted to a mental healt h fa ci lityafte r his second suicide attempt. The pe titioner claimed he notified trial counse l of the sec ond suicide attempt and the fa ct that he wa s underg oing me ntal health tre atment. The pe titioner testified that h e t o l d trial counsel that he was taking anti-depr essants.
The pe titioner testified that he told tria l c ounsel that his mother died approximately two (2) months prior to the offe nses in question and that trial counse l was supposed t o b ring this piece of inf o r mati o n to th e c o u r t’ s a tt e n ti o n , b u t f a il e d to d o s o

. O n c r o s s

- e xa mi n a ti o n , th e petitioner admitted that he had be en committing c rimes long befor e his mother died.-4-

The pe titioner stated that he was unawa re that trial counsel knew any of t he victim s until t he

se nte nc ing he ari ng

. Th e pe tit ion e r s ta te d th a t, h a d h e kn ow n th a t tria l c ou ns e l w a s a c qu a int e d w ith

so me of the vic tim s, he wo uldha ve a sk e d f or ne w c ou ns e l.

Trial counsel for the petitioner t estified that he had been prac ticing law since 1992 a nd that he devote d approximately fiftee n (15%) to twenty -five ( 25%) pe rce nt of his prac tice to criminal defe nse work. Trial counsel was appointed to r epre sent the petitioner while the case was in g ener al sessions court and he continued to repre sent the petitioner throug h his direct appe al. Trial c ounsel

rec alled mee ting with the pe titioner at least once befor e his ca se wa s bound over to the gra nd jury

a ndapp ro xima te ly thr e e tim e s wh ile the pe tit ion e r w a s h ou se d in the Ma rs ha ll Co un ty

Jail prior to his plea. Tria l counsel testified that he filed a m o t i o n for discove ry and met with the District Attorney assig ned to the petitioner’ s case

.
Trial counse l stated that he c onvey ed the State’ s offe r of settlement to the petitioner as soon as he r ece ived it. He explained to the petitioner that the State’ s offe r would re quire the petitioner to enter a n open plea

to the indictment, but that the State was goi n g t o dismiss six teen ( 16) of the fifty (50) c ounts in ex chang e for the plea. T rial counse l remembe red te lling the pe t i tioner that an op e n p le a wa s a gu ilt y ple a

. Tria l cou ns e l tes tif ie d tha t he e xpla ine d to the pe tit ion e r the po ssi ble rang e o f p u n is h me n t th a t h e c o u ldr e c e iv e f o r e a c h c o u n t o f

th e in d ic tm e n t an d th a t s o me o f the offe nses could be me rg ed tog ether . T ri al co u n s el specific ally denied telling the petitioner that he

was g oing to g o to boot camp if he pled g uilty . Specifica lly , trial counsel r eca lled that the petitioner

“ wa s a c c us e d o f co mmi tti ng the se of fe ns e s whi le he wa s o n s ome fo rm of pr ob a tio n” a nd , b e c a us e of that, he w as “not e ligible f or a se cond shot at boot ca mp.”

Trial counse l also testified that he “ never ” promises a ny thing to a client reg arding a sente nce. Specifica lly , he denie d promising the pe titioner that he would re ceive an eig ht (8) y ear sentenc e as pa rt of the ple a a g re e me nt. F urthe r, he re c a lle d g oin g thr ou g h th e c on se c uti ve se nte nc ing statut e with the petitio n er an d ex p l aini ng the re asons that the court could choose to run the sentenc es
consec utively . Trial counse l also remembe red e x plaining to the petitioner that it wa s within the trial court’s discr etion whether to run the sentenc es conse cutively or con cu rr en t l y . Trial counse l

reme mbere d that, despite his eff ort s to expl ain the sente nces to the pe titioner, during the plea colloquy , the petitioner indicated that he thought that the sentenc es would run c oncurr ently . At that time, both the trial court and trial counsel e x plained to the petitioner tha t the trial court wa s responsible for

making that determination. The petitioner then indicated that he under stood that the

manner of ser vice of

his sentence was to be de termined by the trial cour

t.

Trial counse l admitted that at s ome poi nt during the proceeding s he dis cover ed that he knew three of the pe titioner’s victims. He opined that he rea liz ed he knew the victims as soon as he r ead the i ndict me n t. H e e xp la in e d h is r e lati o n s h ip w ith th e v ic ti ms d u r in g th e h e ar in g

. T r ia l c o u nsel testified that he ate bre akfa st at a loca l diner and that v i ct i m Ke n Adcoc k was ofte n there . Trial

c ou ns e l expla ine d tha t the re we re se ve ra l lar g e ta ble s at the din e r wh e re g ro up s of me n a te br e akf a st toge ther, whe re some of the men kne w ea ch other and some did not. Trial c ounsel denied ha ving any type of social or business rela tionship with Mr. Adcock. Trial counse l also stated that he kne w-5-

victim C h ar l i e W h i tworth bec ause he play ed g olf with Mr. Whit worth on at lea st two occa sions during a g roup g olf trip wher e appr ox imately twenty -eig ht (28) people went to play g olf out-of-sta te. Trial counsel also admitted that he was distantly rela ted t o victim Marg are t Tyree by marria g e. Tria l

c ou ns e l ag a in sta te d tha t he ha d no type of bu sin e ss or pe rs on a l re la tio ns hip wi th an y of the vic tim s and stated tha t he informed the petitioner of his intera ctions with the victims not long after he re ad the ind ic tme nt. Tria l c ou ns e l c la ime d th a t hi s k no wl e dg e of the vict ims didno t a ff e c t hi s repr esentation of the petitioner.

Trial counse l also testified that he wa s not awar e that the pe titioner had attempted suicide wh ile in the c ou nty

ja il. F urthe r, he fe lt that th e pe tit ion e r wa s men ta lly c omp e te nt to as sis t w ith his defe nse. Trial counsel stated t hat he was also unawa re that the petitioner’s mother ha d died or that the petitioner wa s taking any medication.

Af te r l is ten in g to the e vid e nc e , th e po st- c on vic tio n c ou rt dis mis se d th e pe tit ion fo r p os tconviction re lief, making the following finding s of fa ct and c onclusions of law:

Now, ther e ar e basica lly - - there are sever al fac ts that a re in dispute. Among tho se are wh eth er or not th e de fe nd a nt w a s p ro mis e d b y his la wy e r o f a

c e rt a in

ou tc ome in the pr oc e e din g if on ly he wo uld e nte r a ple a of g uil ty a ndsu bmi t hi mse lf t o a h ea ri n g.

Th e Cou rt

make s th e sp e c if

ic fi nd ing of

fa c t th a t no pr omi se s w e re ma de to the def endant by his counsel of re cord at the time.

. . . .
The de fenda nt alleg es that there was some c onflict of intere st betwee n trial counsel a nd some of the victims in this matter.

Th e re is n o p ro of

that th e re wa s a ny

c on fl ic t of in ter est o r r e la tio ns hip betwee n trial counsel a nd any of the victims in thi s matter that would ha ve ca used him to question whether he should proc eed f urther w it h h i s re p rese ntation of the defe ndant.
Along those lines, this is a small community , and when - - I believe the re w as

- - I do n’ t r e c a ll the sp e c if

ic nu mbe r. Th e re we re qu ite a nu mbe r o f v ic tim s in thi s
case . I know there wer e at lea st 18 or 19 potential sepa rate people in her e, if I

am not g oing to know some of t hose people. I would be very

surprised if a ny

body who lived in this countywouldn’t know some of those pe ople.

The fa ct that y ou may

on occas i o n eat in proximi ty in the same re staurant
certainly does not establish any specia l relations h ip, and I am awa re of the-6-

description which [ post-conviction counse l] g av eo f th ea c ti v it ie s at H e le n ’ s B rea

kfus Shop. There is just no conflict that ha s been e stablished.

I n a d d it io n to th a t, th e d e f e n d a n t h a s th e b u r d e n o f

p r o v in g th a t th e r e ma y have be en a di ff

er ent out come. Eve n if there had bee n some proof in mitigation offe red by the C ourt in the s entenc ing he aring conce rning the def endant’ s mother’s death, that would ha ve had no outc ome - - that would not have be en found to be a mitigating fac tor, and would have had no eff ect upon the out come of

the judg ment of the c ourt as to the leng th or how those ca ses should have be en run.

The St a te h a s ap tl y p o in te d o u t in th is h e ar in g , a s it w o u ld h a v e at that hearing, that appar ently the relationship of t he def endant to his mother has not be en direc tly corr elated to his criminal activity

. So in short, the Court finds that the defe ndant has failed to c arry his burden of p ro o f t hat his counsel is ineff ective in not pursuing and pre senting any mental health def

iciencies t h at would have aff ecte d his plea or pr esenting any proof reg arding mitigation in that are a. The re w as no conf lict of interest.

And the def

endant ha s failed to prove that there was a ny promises [si c] made t o h i mw h i c h c a u s e d h i mt o e n t e r h i s p l e a o f g u i l t y.

Th e Cou rt

fi nd s th a t c ou ns e l f

or the de fense ha s p e rf

orme d a bo ve tho se standards w hich one would normally expect an d is outli ned in the ca se of B axter versus Rose. And c onsequently , the def endant’ s petition must fail.
The pe titioner filed a timely notice of a

ppeal. On appea l, he challeng es the post-c onviction court’s dismissal of the pe tition for post-conviction relief and ar g ues that his gu i l t yplea wa s not knowing ly

and voluntarily

enter ed bec ause of ineffe ctive assistanc e of c ounsel. He a lso arg ues that the holding in Blakely

v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), require s a re duction in his sentence.

An a ly sis

Post-Convi ction Standard of Re view

To s u s ta in a p e ti ti o n f

o r p o s t- c o n v ic ti o n r e li e f, a d e f e n d a n t mu s t p r o v e h is o r h e r fa ctual alleg ations by

clea r and c onvincing evidenc e at a n evidentiary hearing. See Tenn. Code Ann. § 40- 3 0 -1 1 0 (f ); M o m o n v

. S t at e, 1 8 S

. W

. 3 d 1 5 2 , 1 5 6 (T en n

. 1 9 9 9 ). T h e p o s t -c o n v i ct i o n co u rt ’s fi n d i n gs of fa c t ar e c on c lus ive on app e a l unle ss the e vid e nc e pr e po nd e rate s o the rw ise . Se e Sta te v. B ur ns , 6 S. W.3 d 4 53 , 4 61 (T e nn . 1 99 9) . D uring ou r r e vie w o f the iss ues rai se d, we wi ll a ff or d th os e fi n d i n gs o f f

ac tt h e w ei gh to f a j u ryv er d i ct , an d t h i s C o u rt i s b o u n d b y t h e t ri al co u rt ’s fi n d i n gs unless the evidenc e in the re cord pr eponderates ag ainst those finding s. See He nley v. State, 960-7-

S.W. 2d57 2, 57 8 (T e nn

. 19 97 ); Al le y v. Sta te , 95 8 S.W. 2d 13 8, 14 7 (T e nn

. Cr im. Ap p. 19 97 ). Th is Court may

not r ewe igh or re- evaluate the evidenc e, nor substitut e its infe renc es for those dr awn by the post-conviction court. See State v. Honey cutt, 54 S.W .3d 762, 766 (Tenn. 2001). All questions

conce rning the cr edibilityof the witnesse s, the weig ht and value to be g iven their testimony , and the fa c tua l is su e s r a ise d b y

the e vide nc e are to b e re so lve d b y the tr ia l ju dg e , n ot the app e llate c ou rt s. See Momon, 18 S.W .3d at 156; Henley , 9 6 0 S

. W

. 2 d at 578-79. How ever , the post-conviction court’s c onclusions of law a re revie wed unde r a pur ely de novo standa

rd with no presumption of

corr ectne ss. See Fie lds v. St ate, 40 S.W.3d 450, 458 (Tenn. 2001).

I neff ective A ssistance of Counsel
When a petitioner see ks post-conviction re l i ef on the basis of ineff ective a ssistance of counsel, the pe titioner bear s the burden of showing that (a) the servic es re ndere d by trial counsel

wer e def icient and ( b) that the de ficient pe rf o rm an ce wa s prejudicia l. See Powers v. State, 942 S.W

. 2 d 5 5 1, 558 (Tenn. Crim. App. 1996) . I n order to demonstrate de ficient pe rformance , the petitioner must show that the servic es re ndere d or the a dvice given w as below “ the ra ng e of competenc e dema nded of attorney s in c riminal case s.” Ba x ter v. Rose, 523 S.W .2d 930, 936 (Tenn. 1975). “B eca

use a petitioner must e stablish both prong s of the test to pr evail on a c l ai m of ineffe ctive assistanc e of c ounsel, failure to prove e ither def icient per formanc e or resulting prejudice provides a suf

ficient ba sis to deny

relief on the claim.” H enley , 960 S.W .2d at 580.

As no te d a

bo ve , th is C ou rt

wi ll afford the po st- c on vic tio n c ou rt ’s fa c tua l f ind ing s a pr e s u mp ti o n o f

c o rr e c tn e s s , r e n d e r in g th e m c o n c lu s iv e o n ap p e a l u n le s s th e r e c o r d p r e p o n d e rate s ag ainst the court’ s findings. See id. at 578. Howeve r, our supreme court has “ determined that issues of def icient perf ormanc e by

counsel a nd possible prejudice to the defe nse ar e mix ed questions of law and fa ct . . . ; t h u s , [ ap p ell ate] review of [these issues] i s de novo” w ith no presumption of

corr ectne ss. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

F urthe rm or e , o n c la ims of ine ff e c tiv e a ssi sta nc e of c ou ns e l, the pe tit ion e r i s n ot e nti tle d to the be ne fi t of

hin ds ig ht. Se e Ad kin s v

. Sta te , 91 1 S.W. 2d 33 4, 34 7 (T e nn . Crim. Ap p. 19 94 ). Th is Court may

not second-g uess a rea sonably -base d trial strateg y , and we cannot g rant re lief base d on a sound, but u nsucce ssful, tactica l decision made during the course of the proc eeding s. See id. Ho we ve r, su c h d e fe re nc e to t he ta c tic a l de c isi on s o f c ou ns e l app lie s o nly if c ou ns el mak es th os e decisions af

ter a dequateprepa

ration for the case

. See Cooper v. State, 847 S.W .2d 521, 528 (Tenn. Crim. App. 1992).

On app e a l, the pe tit ion e r a rg ue s that tr ia l c ou ns e l wa s ine ff e c tiv e fo r the fo llo wi ng re a so ns : (1) tria l counsel failed t o inform t he petiti oner that he was acquainted with some of t he victim s; (2) trial counsel f

ailed to inform the c ourt that the petitioner ha d mental hea lth i s s u es ; an d (3 ) trial counsel fa iled to inform the petitioner of the conseque nces of his g uilty plea, making the plea invalid.-8-

Once a gu i l ty

plea ha s been e ntere d, eff ectivene ss of counsel is re levant only to the extent that it a ffe cts the voluntariness of the plea. I n this re spect, such claims of ineffe ct i v e a s s i s t ance
ne c e ssa ri ly imp lic a te the princ ipl e that g uil ty ple a s be vo lun tari ly a ndint e lli g e ntl y ma de . Se e Hi ll v. L ockhar

t, 474 U.S. 52, 56 (1985) (c iting North Carolina v. Alford, 400 U .S. 25, 31 (1970)). As stat e d a bo ve , in or de r t o s uc c e ssf ull y c ha lle ng e the e ff

e c tiv e ne ss o f c ou ns e l, the pe tit ion e r mus t d e m o n s tr a t e t h a t c o u n s e l ’ s r e p r e s e n t a t i o n f e l l b e l o w t h e r a n g e o f

c o m p e t e n c e d e m a n d e d o f a t t o r n e ys in criminal ca ses. See B axter, 523 S.W .2d at 936. Under Strickland v. Washington, 466 U.S. 668, 694, 687 (1984), the pe titioner must establish: (1) deficie nt repre sentation; and (2) prejudice resulting from the de ficienc y

. Howeve r, i n the contex t of a g uiltyplea, to satisfy the sec ond prong of Strickland, the petitioner must show that “ther e is a rea sonable proba bilitythat, but for counse l’s

e rr or s, he wo uldno t ha ve ple a de d g uil ty a ndwo uld ha ve ins ist e d o n g oin g to t ri a l.” Hi ll, 47 4 U .S. at 59; see a lso W alton v. State, 966 S.W .2d 54, 55 (Tenn. Crim. App. 1997)

. When analy zing a g uiltyplea, we look to the fede ral stand ar d an n ounced in B oykin v. Alabama , 395 U.S. 238 (1969), and the State standard se t out in S tate v. Mac key , 553 S.W .2d 337 (Tenn. 1977) . State v. P et t u s , 9 8 6 S

. W.2d 540, 542 (Tenn. 1999). In Boy kin, the United States Supreme Court held that ther e must be an a ffirma tive showing in the trial court that a g uilty plea wa s voluntarily

and knowingly

g iven bef ore it ca n be ac cepte d. Boy kin, 395 U.S. at 242. Sim ilarly , our Tenne ssee Supre me Court in Macke y require d an af

firmative showing of a voluntary and knowledg eable g uiltyplea, na mely , that t he def endant ha s been ma de aw are of the sig nificant conseque nces of

such a ple a. Pettus, 986 S.W .2d at 542.

A plea is not “voluntary ” if it r esults f rom ignor ance , misunderstanding , coer cion, inducements, or thr eats. B lankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The trial c ourt
mus t de te rm ine if

the g uil ty ple a is “ kn ow ing ” by qu e sti on ing the de fe nd a nt to make su re he fu lly understands the plea a nd its consequenc es. Pettus, 986 S.W .2d at 542; Bla nkenship, 858 S.W .2d at 904.

The tra nscript from the g uiltyplea he aring herein re veals that the tria l court ca ref ully and

corr ectly informed the pe titioner reg arding his constituti onal ri gh t s, and spec ifically asked if he understood that he w as wa iving those rights by pleading g uilty . The pe titioner respond ed i n the aff irm at i v e. Fu rt her, he stated that he unde rstood the plea a g ree ment and the sig nificanc e of the g uiltyplea he aring , and wa s entering his guilty p l ea v o l untarily . The only misunderstanding expressed by

the petitioner a t the g uiltyplea hearing involved the diffe renc e betwe en conc urre nt and

c on se c uti ve se nte nc ing . Wh e n th e pe tit ion er expre sse d h is m isu nd e rs ta nd ing be tw e e n th e te rm s, both trial counsel and the trial court took the tim e to explain the differ ence to the petitioner. The trial court made it clear

to the petitioner that he w as plea ding g uilty to the open indictment and that the sentenc e would be de termined by the trial court at a later

dat e. T h e t ri al court a lso ex plained the possibili ty

that the sentenc es could run e ither conc urre ntly o r c onsecutively . The pe titioner indicated his understanding of the situation be fore ag ree ing to ple ad g uilty

. Acc ording ly , we determine that the petitioner’s g uiltyplea wa s knowing and voluntary

.-9-

The pe titioner claims that trial counsel wa s ineffe ctive bec ause he fa iled to inform the petitioner that he w as ac quainted with some of the vic t i m s , p ro mised the petitioner an e ight- y ear sentenc e, a n d f

a il e d to n o ti f

y th e tria l c o u r t o f h is me n ta l h e a lth is s u e s

. T h e r e c o r d d o es not preponde rate ag ainst the finding that trial counsel wa s eff ective. I mplicit in t he post-convic tion court’s f indings a nd conclusions was that the court acc redited the testimonyof trial counse l rather than that of the pe titioner. As stated previously , cre dibilit y determinations are entrusted to the tria l court. Odom, 928 S.W.2d 18, 2 3 (T en n

. 1 9 9 6 ). The post-c onviction court ac cepte d as true the testimonyof trial counse l conce rning the circ umstances of the plea and the c onversations leading up to that decision, including the fa ct that t rial counsel did not promise t hat t he petiti oner w ould rec eive a particular sente nce a s a res u l t o f h i s p lea, wa s not awar e of a ny mental hea lth problems of the petitioner and notified th e p et itioner that he wa s acqua inted with severa l of the victims. At the hearing, the petitioner failed to show that trial counsel did not notify him that c ounsel knew se vera l of the vic tim s. Th e te sti mon y of tr ia l c ou ns e l w a s in dir e c t c on fl ic t wi th that of the pe tit ion e r i n th is reg ard a nd was a ccr edited by the trial court. M o re o v er, the trial counsel testified that he was

un a wa re that th e pe tit ion e r h a d a ny me nta l he a lth iss ue s th a t w ou ld h a ve wa rr a nte d me nti on ing to the trial court. The re cord not only supports the determination of the post-conviction cour t, but the petitioner has a lso failed to establish that he suffer ed any prejudice as a r esult of trial counse l’s repr esentation a nd failed to show that there was a rea sonable probability that but for trial c ounsel’s

e rr or s h e wo uldno t ha ve ple a de d g uil ty bu t wo uld ha ve g on e to tr ia l. Th is iss ue is w ith ou t me ri t.
Application of B lakely

v. Washington

Next, the petit ioner contends that the United States Supreme Court’ s decision in Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), r equire s a reduc tion in his se ntence beca use the trial court, r ather

than a jury , utiliz ed statutory enhanc ement fa ctors to incre ase his sentence bey ond the pre sumptive mini m u m

. Further, the pe titioner arg ues that B lakey prohibits the imposi tion of

c on se c uti ve se nte nc e s b y the tr ia l c ou rt . T he Sta te arg ue s th a t th e pe tit ion e r h a s w a ived th is arg ument by

failing to raise the c lai m i n his post-conviction petition or on direct a ppeal. F urther, the Sta te arg ue s th a t B lake ly do e s n ot a

pp ly to c a se s o n c oll a te ra l a tta c k a ndis n ot subj ect to retroa ctive application.
Subsequent to the submission of thi s case to the cou rt fo r co n sideration the Te nnessee Supreme Court de cided that Blakely does not a ffe ct the Tenne ssee sentenc ing proce dures at all. See State v. Edwin Gomez, ___ S. W .3d ___, No. M2002-01209-SC-R11-CD, 2005 WL 856848 (Tenn. Ap r. 15 , 2 00 5) (Inte rp re ting Boo ker v. U. S.,

__ _ U .S.

__ _, 12 5 S. Ct. 73 8 ( 20 05 ). Th is i ssu e is the re fo re wi tho ut m e ri t.-10- Conclusion

For the re asons stated a

bove, the judg ment of the lowe r court is affirmed.

___________________________________ J ERRY L . SMI TH, JUDGE