### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs M arch 4, 2 003
TERRELL BURGES S v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County No. P22629 Chris Craft, Judge

No. W2002-00826-CCA-R3-PC - F iled July 2, 2003

The petit ioner, Te rrell B urgess , appeals the Shelby County Criminal Court’s denial of his petition for post-conviction relief from his guilty pleas to first degree

felony murder , aggravated robbery, a

nd two counts of aggravated a s sault and his resulting effective sentence of life plus ten yea

rs in the Depart ment

of Corre ction (DO C). He co ntends (1 ) that he receiv ed the ine

ffectiv e assis tance o f counsel and (2) that his attorney c oerced him into pleading guilty

. We affirm the trial court’s denial of the petition. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which D AV ID H. W ELL ES and J AMES C URWOOD W ITT , J R ., JJ., joined.

Robert L ittle, Map lewood, N

ew Jersey , for the

appella nt, Terr ell Burg ess.
Paul G. Summers , Attorne y General and Repor

ter; P. Robin Dixon, Jr., A ssistant A ttorney Genera l; William L. Gibbons, District Attorney General; James Morton Lammey , Jr., Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

. OPINION

This case relates to the kidnapping and killing of D orothy Webb er. The p etitioner was origina lly charged with first degree felony murde r during the perpetration

of a kidnapping, especially aggravated kidn apping, especially aggravated robbe

ry, and two counts of a

ggravated assault. During his trial, the

petitione r acce pted a ple a offer

from the s ta te, and the tri al court held a guilty plea hearin g. The state gave the following ac count of the crime s: In t

he earl y morning hours of A

ugust 12, 1995, the petitioner and two codefendants arrived at 2316 Clear park in Me

mphis dre ssed in Krispy Kreme Donut Company unifor ms. They engag ed Ms. Webber in a conversation and entered her home. The three pointed

guns at Ms. Webber, Leslie Webber , Jr., and Leslie Webber, Sr., whom they also struck

with a gun. They

put Ms. Webber

into her Toyota Camry

and drove her to TK’s Tire Store. They then moved he r to the Elvis Pres ley I

nn and back to the tire store. The next day, the-2-

defendant and three oth er peopl e drove t o Mississipp i and lef

t Ms. Webbe

r’s body by a small fa rming ro ad in DeSoto County. The state told the trial court that Dr . O. C. Smith would have testified at

trial that the victim was suffocated by heavy duct tape that had been placed over her nose

. The petitioner filed a petition for post-conviction relief, claiming that he re ceived the ineffective assistance of

counsel b ecause

his attorn ey did not pre

pare ad equatel y f or trial, improper

ly advised him about

his relea se elig ibility

from the D OC, and did

not challenge venue. I

n addition, he claimed that his attorney c oerced him into ple ading g

uilty by h aving a

codefe ndant’s a ttorney talk to him about the strength of the state’s case and by showing him gruesome photographs that would have be en inadmi ssible at t rial.

At the evidentiary he aring, the petitioner testified that he requested copies of the indic tment, arrest war rant, po li ce re po rt , p re li mi na ry h ea ri ng tr an sc ri pt , a nd au to ps y re po rt fr om hi s a tt or ne y, which were never provided. He said, t hough, t hat h is attorne

y g ave him c opies of h

is and his codefe ndants’ statements to the police. He said that his attorney never challenged venue a nd that his attorney should have

d one so because the state never e stablishe d that the victim wa s killed in Tennessee.

The petitioner testified that Serg eant Dwi ght Woods t old him that he would be convicted of manslaughter

and receive a ten-y

ear sentence

if he cooperated and gave a statement. He said that because Sgt. Woods was also an African-American, he trustedhim and g ave the s tatement . He said that he told his attorney about this and wa nted Sgt. Woods subpoena ed to a he aring o n a motion to suppresshis statem

ent. He said that his attorney did not call Sgt. Woods to testify and objected w hen the state subpoenaed Sgt. Woods as a witness. He said that his attorney w as unprepared for trial because the attorney did not

get discovery , did not investigate the charges ag ainst him, and went into court “barehanded.”

The petitioner testified that his attorney we nt over the facts of the case and his and the codefe ndants’ statemen

ts with him. He sa

id that his attorney made motions on his behalf a nd gave him copies of the motion s. H e said that his attorney discusse d the state medical examiner’s testimonywith him and asked a former medical examiner to rebut that testimony. He said that at the beginning of trial, his attorney showed him photog raphs of the victim’s badly decomposed body and implied that the photogra

phs would

be used as evidence against him. He said he ne ver discussed the admissibility

of the photographs with his attorney and was not aware if h is at torney made a ny motions to su

ppress the photog

raphs.

The petitioner testified that the state was seeking the death penal ty. He sai d that altho ugh the state off

ered to l et him plea

d guilty in exchange for a

sentence of life without the possibility of parole, he decided to go to trial. He said that his attor ne y s topped the

trial twic e in orde

r to try to convince him to plead guilty. He sa id that on the first occasion, his attor ne y i ntroduced him to Coleman Garre tt and Kevin Reed, his codefendants’ attorney s, and commented that because Mr. Garret twas Afr ican-Am erican , th e petitioner might believe Mr. Ga rrett’s opinion about the evidence. The petitioner testified that Mr. Garrett told him he had not knownthe state had as much damaging-3-

evidence as it did. He said that Mr. Garrett’s comments ha d a slight impac t on him but that he decided to continue with the trial.

The petiti oner tes ti fied that his attorney stopped the trial again before the state medica l examiner testified andpresent

ed him with

a new ple a offer

of life w ith the pos sibility of parole plus ten years. He said that he refused the o ffer a nd that his attorney g ot angry , began banging on a conference

room table, and stated

that he did not want to go to his grave knowing that the petitioner got the deat h penalty . He said

that his at

torney left the r oom to speak

with the pe

titioner’ s family and that Patsy

Webber, t

he defe nse’s jur y c onsultant , entere d the room to calm thing s down. He

said that his attorney

showed hi s father

some gr uesome photogra

phs of the victim’ s body and t old his father that the petitioner would get the death pena lty if the jury

saw the photographs. He said that his father began pressur ing him to accept the plea offer. He said

his father told him that the plea was
a blessing and that if he did not accept it, it would be like slapping his father in the f ace. He said that he was menta

lly stressed , that he f

elt like his attorney and his fa mily had turned ag ainst him, and that he decided to accept the state’s offe r.
The petitioner testified that his attorney spe nt only one or two minutes reviewing the p le a offer with him. He said that

his attorney said he would se rve twenty- five yea

rs at thirty perce

nt for the life sent

ence and thirty

percen t of the te n-y ear sen

tence. He said he

did not com

putehow much time he would actually se

rve when he entered

the plea but thought he would serve twenty -five ye ars before becoming

eligible for par ole. He s aid that w

hile he wa s in prison , he lear ned that h e would
serve a minimum of fifty-one y ears for the murder conviction. He said th at he lied during t he guilt y plea h earing w hen he told the tr ial co urt th at he u nders tood what h e was do ing.

On cross-examination, the petitioner acknowledged that he was under oath at the guilty plea hearing and that

he swore to tell the truth. He also acknowledged testifying a tthe hearing that the victim d ied in Tennessee. He said that he lied at the hearing because, “in so many

wor ds,” hi s attorney told him to. He said tha t his attor ney told him tha

t his testimo ny h ad to match the state medical examiner’ s testimony in order to get

the sentence in the plea offer. He a cknowledged that
as a result of accepting the plea of fer, three or four charg es against him were dismissed. On redir

ect, the petitioner testified that hi s mi nd was “f oggy ” during the guil ty p lea hea

ring and that he f

elt frustra ted and de

prived of his jury trial.

The petitione

r’s t rial at torney testified that he ha d been a defense attorney for thirty-seve

n years, ha d practiced criminal law for the past twenty or twenty-five

years, a nd was retained by the petitioner’s father. He said that he had tried four or f ive capital cases and at least twenty murder
cases. He said that the state indicted the petitioner on eight counts but that the petitioner

pled guilty to four and

the other s were d

ismissed. He said tha

t he init iall y thought the state’ s case would not support a death penalty conviction but that as he learned more about the state’s theory and obtained di sc ov er y, he saw a strong case with a hig h probability of conviction and the imposition of the death penalty.-4-

The petitioner’s attorney

testified that he visited the pet ition er several times in jail before t rial. He said he obtaine d discove ry and maile d a copy

of ever yth ing to the petit ioner an d th e petitioner’s father. He said that even if the petitione r did not have a

copy of the ind

ictment, h e told the petitione

r about the charg es. He said that he thought he provided a copy

of the autopsy re

port to the petitioner but that

he might be wrong. He said that in his meetings with the petitioner, they went over the petitioner’s and codefendants’ stateme nts and that they discussed th e suppression hearin g. He said that they a lso discussed venue and that he told the petitioner venue was not an issue because the crime bega

n in Tennessee.

The petitioner’s attorney

testified that he and the petitioner talked about the state medical examiner’s testimony, which would be that the victim was dea d when her bo dy was dumpe d in Mississippi and that the victim’s death took a period of time, qualify ing it as an especially

heinous crime. He said that he told the petitioner that Dr. Charles Harlan agreed to listen to the state medical examiner’s testimony and provide rebuttal testimony if possible. He said

that Dr. H arlan la

ter told h im t hat he could not rebut the medical examiner’s assessment of the time of death, a mong other things. He said that

he and the petitioner

discusse d the petitioner ta king the stand and that the st

ate would have use d the petitione r’s pretrial statement to the police against him. He said that the petitioner was mistaken about the photo graphs of the victim and that the trial court had ruled that
some of them could not be shown to the jury a t trial. He said, though, that some of the photographs may have been admissible at the petitioner’s sentencing he aring. He said he showed th ose photographs to the petitioner’s father.

The petitioner’s attorney

testified that he and the petitioner spoke throu gh out the trial and that he never tried to mislead the petitioner or his father. He a dmitted telling the petitioner that he di d notwant to go to his grave knowing that the petitioner had g otten the death penalty , but he said he
was only try

ing to save the petitioner’s life. He said he advised the petitioner that the petitioner was going to be conv

icted an d probab ly s entenced to death . He said that he had tried the case all week before the guil

ty plea hearing, that the state had one more witness to examine before ending its proof, and that he had no witnesses to call other than the petitioner.

The petitioner’s attorney

testified that he discussed the sentence with the petitioner and never told the petiti oner tha

t the life sentenc e would be

served a t thirty percen t. He said the petiti oner must have confused the life sent ence with the ten -y ear sen tence, w hich the p etitioner

would ser

ve at thir ty perc ent. He said t hat he tol d the petitioner he did not know

how much t

ime the pe

titioner w ould have to serve for the li f

e sentence but that it was “certainly up around fifty y

ears.” He said he appro ached t he sta te abo ut a pl ea and n ever to ld th e peti tion er to l ie at t he guil ty plea he aring.

On cross-examina tion, the petitioner’s attorney acknowledged that he approac hed the petitioner repeat edly to discuss a plea. He said that the petitioner did not want to plead guilty and that he asked Coleman Garrett to talk to the petitioner. He said he did a good

job at tria

l and cro ssexamined the state ’s witnes ses as we ll as anyone c ould have. He said that the defense was “getting killed” at trial, that he gave the petitioner his opinion about the case, and that the petitioner decided-5-

to plead guilty. He said the petitioner was a very stoic and quiet person, who spoke deliberately a nd seriously. He said the pe

titioner understood what was going on during the guilty plea he aring.

The petitioner’s attorney

testified that he told the petitioner there was a possibility of getting outof prison with a life sentencebut that there would be no chance of relea se with a sentence of life withoutparole. He said

that he to ld the pet

itioner th at not all

of the photographs would be admitted into evidence but that the ones that were admitted w ould hurt the petitioner’s case. He said that grueso me photographs were admitted into evidence bef ore the petiti oner ple d guilty and that h

e did not show any of the photog raphs to the petitioner when they discussed the guilty plea

. Joseph Amos, the petitioner’s father, testified t hat he was present throughout the trial and that he attended his son’s guilty ple a hearing. He said he hi red the p etitioner ’s attorn ey to repres ent his
son for $10,000, to be paid as $5,000 up front and $5,000 at the end of the trial. He said that during the trial, the petitioner’s attorney telephoned and asked for more money but thathe refused to pay any additional money

until the attorney finished the ca se.
Mr. Amos testified that he thought it was peculiar that the state had two attorney s whereas the petitioner’s attorney

represented the petitioner with only the aid of a jury

consultant. He said that during the trial, the peti tion er’s at torne y asked hi m to s peak wi th th e peti tion er abou t accep ting a plea offer because a life

sentence would be better than a death sentenc e and because the petitioner
was being a “dumbass” for refu sing to plead guilty . He said that the petitioner’s attorney showed him some g

ruesome photogr aphs, whi ch influe

nced him to pe rs ua de th e p et it io ne r t o p le ad gu il ty. He said he told the petitioner that if he were on the jury and saw t he photog raphs, he would give the petitioner the death penalty . He said the photographs showed a mostly nude body that was swollen from the sun and hadsevera

l “erupt ions” on it. He said the petitioner’s attorney led him to believe that the jury definitely

would see the photographs. He said the petitioner still refused to accept a plea offer at that time.

Mr. Amos testified that on three occasion s du ring the trial, the petitioner’s attorney talked withthe petiti oner abo

ut pleadi ng gui lty but that the petitione r stil l refused. He said that on the fourth day of trial, the

petitioner’s attorney showe d the gruesome photographs to the petitioner. He said that Ms. Webber, the jury consultant, then spoke pr ivately with the petitioner and that the petitioner accepted the plea offer. He said the petitione

r seeme d to be ple ading g uilty in respon se to pr essure and in order to please his family . He said he and the petitioner’s attorney coerce d th e petitioner into plea ding guilty . He said

he thoug ht the pet itioner’ s attorne

y w anted the

petitione r to plead guilty in orde

r to expedite the case.

On cross-examination, Mr. Amos acknowledged that numerous people counse led and gave the petitioner advice about the guilty plea . He said that when his son accepted the plea offer, the trial
was almost over and the petitioner’s attorney had pretty much done

his job. He said that at the time, he wa s g la d t he pe ti ti on er ha d p le d g ui lt y an d a vo id ed th e d ea th pe na lt y.-6-

In denying

the petition for post-conviction relief, thetrial court expressly accr

edited the trial at to rn ey, who testified at the evidentiary he aring that he received discover y, ga ve copies of discovery to the petition er and the p etitioner’s father, cross-examined the state’s witnesses, and hire d a jury consultant

and forensics expert for the petitioner’s trial. The trial court determined that the attorney
was thoroughly pr

epared for trial and did an excellent job. The trial court also a ccredited the attorney’stestimony that he never told the petitioner that the petitioner would serve the life sentence at thir ty percent. In a ddition, the trial court noted that it informed the petitioner at the guilty plea hearing that his sentence would be “life plus ten years in the state penitentiary” and that it nev er told the petitioner

he would be eligible for release a fter serving thirty

percent of that sentence. Regarding the petitione

r’s claim that his attorney should have contested venue, the trial court held that there was
no merit to the issue because the proof showed that an element of the felony murder, i.e., the kidnapping, took place in Shelby County.

As to the petitioner’s claim that he was coerced into pleading guilty

by his attorney ’s having another attorne y ta lk to him about the state’s e

vidence , the tria

l court no ted that Co leman Ga rrett did nottestify at the evidentiar y hearing and that, in any eve

nt, the petitioner had failed to show how Mr. Garrett’s talking to him rendered his guilty plea i n valid. Reg arding

the petiti oner’s c laim that h is attorney coerced him intopleading guilty by showing him inadmissible, gr uesome photographs of the victim, the trial court noted that no hearing on the photogra phs was ever held during the trial; that the petitioner pled guilty be fore the state med ical examiner, who had taken the photographs, testified; and that the petitioner had failed to make the photographs part of the post-conviction record. As a result, the trial court ruled that the petitioner had failed to demonstrate that the photographs would have been inadmissible and, therefore, that his attorney improperly used them

t o persuade the petitioner to plead guilty.

In order for

a petitioner to succeed on a post-conviction claim, the petitioner must show the allegations se t f or th in hi s p et it io n b y c lear and conv incing evidence. Tenn. Code Ann. § 40-30-210(f). A trial court’s findings of fact in a post-conviction hearing are conclusive on appeal unless the evidence in the record prepo nderates against those findings. See Butler v . State , 789 S.W.2d 898, 899 (Tenn. 1990). This court may not reweigh or reevaluate the evidence, no r substitute its inferences for those drawn by the trial court. Henley

v. State , 96 0 S.W. 2d 572, 579 (Tenn. 1997). Questions concerning the credibility of witnesses and the weight and value to be given to their testimony are

resolved by the tria

l court, not this court. Id. Post-conv iction re lief may only be given if

a convic tion or se

ntence i s void or voidab le because of a violation of a constitutional right. Tenn. Code Ann. § 40-30-203.

I. INEFF

ECTIVE ASSISTA NCE OF C OUNSEL

The petitioner contends that he received the

ineffective assistance of counsel beca use his trial attorney fa

iled to prepa

re for tr ial adeq uately , imprope

rly advised h

im that he w ould

serve his life sentence at thirty

percent, and did not object to venue. The state contends that the petitioner received the effective assistance of counsel. We ag ree with the state.-7-

Under the Sixth Ame

ndment, when a cla

imof ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that counsel’s performance wa s deficient and (2) that the deficiency

was prejudicial in terms of rendering a re asonable probability that the r esult of the trial was unreliable or the proceeding s fundamentally unfa ir. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 20 64 (1984) ; see Lock hart v. F retwell , 506 U.S. 364, 368-72, 113 S. Ct. 838, 842-44 (1993). The Strickland standard h as been app li ed t o t he r igh t t o co uns el u nde r ar ti cle I, section 9 of the Tennessee Constitution. State v. Melson , 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

In Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided t ha t at to rn eys should be held to the general standard of whethe r the services rendered wer e within the range of competence demanded of attorney s in criminal cases. Further, the co urt st ated t hat th e range of competence was to be measured by the duties and criteria set forth in Beasley v. United States , 491 F.2d687, 696 (6th Cir. 1974), and United States v. DeCoster , 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also, in reviewing counsel’s conduct, a “fair assessment of attorney performance requires that every e ffort be made to eliminate the distorting effects of hindsig ht, to reconstruct the circumstances of counsel’s challenged c onduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland , 466 U.S. at 689, 104 S. Ct. at 2065; see Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982). Thus, the fact that a particular strategy

or tactic failed or even hurt the defense does not, alone, support

a claim of ineffective assistance. Deferen ce is m ade to trial strat egy or tactical choices if they

are informed ones based upon adequate pr eparation. Se e Hellard , 629 S.W.2d at 9; DeCoster , 487 F.2d at 1201. On appeal, we are bound by the trial court’s findings of fact unless we

conclude that the e vidence in the record preponderates against those findings. Fields
v. State , 40 S.W.3d 450, 4 56 (Tenn . 2001). B ecause they relate t o mixed ques tions of la

w and fa ct, we review th e trial court’s conclusions as to whether counsel’s perf ormance was deficient and whether that deficiency

wa s prejudicial under a de novo standar d with no pr

esumption

of corr ectness

. Id. at 457. Regarding the petiti oner’s a rgumen t that his a ttorney didnotprepare adequately for trial, the trial court accredited the trial attorney ’s testimony and ruled that the petitioner was well-represented at trial. We a

lso note that the petitioner never claimed at the evidentiary hearing that his attorney ’s inadequa te trial preparationcaused him to plead guilty . To the contrary , he claims that his attorney coerced him into ple ading g

uilty . Thus, the

petitione r has fa il ed to sho w that his attorney’s performanc e wa s deficie nt or that a

ny d eficien cy affec ted the ou

tcome of his case . As to his argument that his trial attorney improperly advised him about

his sentence release eligibility , the trial court again accredited the

a ttorney, who testified that he ne ver told the petitioner he would be eligible for releas e after

serving only thirty percen t of his lif e sentence. The

petitione r has fa iled to show that h

e rece ived the i neffective assis tance of counsel. Regarding the petiti oner’s c laim that h is att orney wa s inef fecti ve for f aili ng to ch allen ge venue, Tenn. Code Ann. § 39-11-103(c) provides that when an offe nse begins in Tennessee and is completedin another state, venue lies in the county where the offens e bega n. See also Tenn. R. Crim. P. 18(d) (providing that offenses “committed wholly or in part outside the state, under circumstances that gi ve this state jurisdiction to prosecute the offender, may be prosecuted in any-8-

county in which an element of the offense occurs” ). In this case, the petitioner was charged

and pled guilty to first degree felony

murder during the perpetration of a kidna pping. At the guilty

plea hearin g, the state’s presentation of the facts revealed that the petitioner kidnapped the victim from her home in Shelby County , Tennessee. Thus, the petitioner’s attorney correctly a

dvised him

that
venue for the first degree felony murder charge was prope r in Shelby

County, reg ardless of where the victim was killed.

II. KNOWING, INTELLIGENT, AND VOLUNTARY PLEAS
Next, the petitioner claims that he was c oerced

into plea ding guilty

because his trial attorney used a codef

endant’ s attorne

y to influenc e him and s howed him grueso me, in admissible p hotographs of the victim. The state claims that the pe titi oner has failed to show that his guilty pleas were coerced. We agree

with the state.

In order for a conviction based upon a guilty

plea to c omport wit

h due pro cess, the

plea must be voluntarily, knowingly , and understandingly entered. Boy

kin v. Ala bama , 395 U.S. 238, 242-44, 89 S. Ct. 1709 , 1712 (1969). A guilty plea is not voluntary “if it is the product of ‘[i]gnoranc e, incomprehension, coercion, terror, inducements, [or] subtle or blatant threats . . . .’” Blanke nship
v. State , 858 S.W.2d 897, 904 (Tenn . 1993 ) (quo ting Boy kin , 395 U.S. a

t 242-43, 8 9 S. Ct. at 1712). The standard for assessing the validity of a guilty ple a

is “‘whether the plea represents a voluntar y and intelligent choice among the alternative c ourses of action open to the defendant.’” Id. (quoting North Carolina v. Alford , 400 U.S. 2 5, 31, 91 S. C t. 160, 164 (1970)). “[T]he record of acceptance of a defendant’s pl ea of g

uilty must affirmatively demonstra te that his decision was both voluntary and knowledgeable, i.e., that he has been ma de aware of the significant

consequences of such a plea; otherwis e, it

will not amount to an ‘intentional abandonment of a known right.’” State v. Mackey , 553 S.W.2d 337, 3 40 (Tenn . 1977). T o assess wheth er a pet itio ner ent ered a k nowin g, vo lu nt ar y, and intellig ent guil

ty p lea, this court must consider the totality of the circumstances. State v. Turner , 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995).

The petitione

r testified that his attorne

y a sked Cole

man Garr ett, a co defenda

nt’s attor ney , to talk with him an d that Mr. Garret ttold him the state had damaging evidence against him. However, the p etitio ner also testified that Mr. Garrett’s statements had a small impact on him and that he decided to continu e with his t

rial. Thu s, the pet

itioner ha s failed t

o show that h

is attorney’s use

of Mr. Garret

tresulted in his guilty plea. A s to the photographs, the trial court noted that the petitioner d id not include the photographs in the record and fa iled to show that they would have bee n inadmissib le at trial. Therefore, it determined that the petitioner had failed to demonstrate that his attorney’sus e of the photographs in order to get him to plead was imprope r. We believe that the evidence does n ot pre ponde rate aga inst the t rial court’s findings. Neither the photogra phs nor a transcript of any hea

ring on their admissibility has been included in the record on appeal. Thus, the petitioner has failed to show th at his atto rney ’s use of

photogr aphs to pe rsuade h im to plead

guilty was improper.-9-

We note that

the law iswell-settled that “a guilty plea is not rendered involuntary by the fact that the accused is faced with an election between a possible death sentenc e on a ple a of not g uilty and a lesser sentence upon a guilty plea.” Bratton

v. State , 477 S.W.2d 754, 757 (Tenn. Crim. App. 1971); Parham v. State , 885 S.W.2d 375, 381 (Tenn. Crim. App. 1994); see Alford , 400 U.S. at 31, 91 S. Ct. at 164; Hicks v. St ate , 983 S.W.2d 240, 248 (Tenn. Crim. App. 1998). In fact, in order for
a defendant to make “‘a voluntary and int elligent

choice among the alternative cour ses of action’ availab le to him, cou

nsel mu st a dvise the accused, among other things, of the choices that are availab le to him as well as the probable outcome of t hese choices.” Parham , 885 S.W.2d at 384 (quoting Alford , 400 U.S. at 31, 91 S. Ct. at 164). If an attorney be

lieves it to be in the defendant’s best interest to plead g

uilty , the atto

rney should advise the defendant to do so. Id. In so adv isin g, the attorney may

use reasonable persuasion to con vince the de fendant to accept his or her advice. Id. In this case, the petitioner’s trial attorney believe d that if th

e petitioner conti

nued with the trial , the jury woul d convict him of first degree murder and impose the de ath penalty. Althoug h the petitioner contends that he never wanted to plead guilty and was coerced, we

note that he rejected all plea offers of life without the possibility of parole before trial, but

after hearing

nearly a ll of the state’s proof, he agreed to plead to a sentence of life with the possibility of parole. Given the

totality of the circumstance s, the pet itioner ha s failed t

o show tha

t his guilt y pl eas were not knowi ng ly, intelligently, and voluntarily entered.

Based upon the foregoing and the record as a whole, we affirm the trial cour t’s denial of the post-conviction petition.

___________________________________ JOSEPH M. TIPTON, JUDGE