FILED

April 3, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

NOVEMBER SESSION, 1996

PHILLIP MARK NUNLEY, ) C.C.A. NO. 01C01-9602-CC-00066

)

Appellant, )

)

) GRUNDY COUNTY

VS. )

) HON. BUDDY D. PERRY

STATE OF TENNESSEE, ) JUDGE

)

Appellant. ) (Post-Conviction Relief)

FOR THE APPELLANT: FOR THE APPELLEE:

ROBERT S. PETERS CHARLES W. BURSON

Swafford, Peters & Priest Attorney General and Reporter

100 First Avenue, S.W.

Winchester, TN 37398 EUGENE J. HONEA

Assistant Attorney General

450 James Robertson Parkway

Nashville, TN 37243-0493

J. MICHAEL TAYLOR

District Attorney General

THOMAS HEMBREE

Assistant District Attorney

2nd Floor Lawyers Building

Jasper, TN 37347

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
-2-

OPINION

Appellant Philip Mark Nunley appeals from the dismissal of his petition

for post-conviction relief. On March 23, 1993, Appellant pled guilty to seconddegree murder and especially aggravated robbery. Appellant received a

sentence of twenty-five years imprisonment for second-degree murder and

twenty years imprisonment for especially aggravated robbery. The sentences

were ordered to be served concurrently for an effective sentence of twenty-five

years. On July 10, 1993, Appellant filed a petition for post-conviction relief,

alleging ineffective assistance of counsel and that he involuntarily entered his

guilty plea. The post-conviction court dismissed his petition, finding

Appellant’s petition without merit. On appeal, Appellant argues that his guilty

plea was involuntarily entered. For the reasons discussed below, we reject

Appellant’s claim and affirm the decision of the post-conviction court.

Appellant maintains that his guilty plea was not voluntarily, intelligently,

or knowingly entered because the trial court did not fully complying with Rule

11 of the Tennessee Rules of Criminal Procedure by inquiring of Appellant

whether his willingness to plead guilty resulted from prior discussions between

the district attorney and the defendant or his attorney. In addition, he claims

that because of time pressures and the unavailability of his family to help him

make a decision, Appellant was unable to make a voluntary, intelligent

decision. 

In Boykin v. Alabama the United State Supreme Court held that an

accused’s guilty plea must be voluntarily, knowingly, and understandingly
-3-

entered before a conviction resting upon a guilty plea may comply with due

process. 395 U.S. 238 (1969). In Boykin, the Supreme Court stated that a

guilty plea constituted a waiver of various rights and that it would not presume

a waiver of the following federal constitutional rights from a silent record:

(1) The privilege against compulsory self-incrimination;

(2) The right to trial by jury; and

(3) The right to confront one’s accusers.

Id. at 242. Thus, Boykin placed a premium on the record showing sufficient

waiver of specified rights.

Exercising its supervisory power to ensure that the courts of this State

afford fairness and justice to defendants in criminal cases, the Tennessee

Supreme Court in State v. Mackey, 553 S.W.2d 337, 341 (Tenn. 1977),

required stricter standards than those mandated by the Boykin decision. 

Mackey requires that trial judges, in accepting pleas of guilty in criminal cases

to substantially adhere to the following procedure:

The court must address the defendant in open court and inform him of,

and determine that he understands:

(a) The nature of the charges brought against him

and the mandatory minimum penalty provided by

law, if any, and the maximum possible penalty; and

that a different or additional punishment may result

by reason of prior convictions or other factors;

(b) If he is not represented by counsel, that he has a

right to be so represented and that if he cannot afford

counsel, counsel will be appointed;

(c) That he has the right to plead not guilty, the right

to be tried by a jury, the right to the assistance of

counsel at trial, the right to confront and crossexamine witnesses, and the right not to incriminate

himself;
-4-

(d) That if he pleads guilty, that there will be no trial

except to determine his sentence; and 

(e) That if he pleads guilty, the court or the state

may ask him questions about the offense to which he

pleaded, and that if he answers under oath his

answers may later be used against him in a

prosecution for false statement or perjury, and that

prior convictions may be used to set the sentence.

(f) The court shall not accept a plea of guilty without

first, by addressing the defendant personally in open

court, determining that the plea is voluntary and not

the result of force of threats or of promises apart from

a plea agreement. The court shall also inquire as to

whether the defendant’s willingness to plead guilty

results from prior discussions between the District

Attorney General and the defendant or his attorney.

Id. at 341.

The Mackey requirements have been adopted into Rule 11 of the

Tennessee Rules of Criminal Procedure. In State v. McClintock, 732 S.W.2d

268, 273 (Tenn. 1987), the Supreme Court of Tennessee pronounced the

additional requirement that the trial court make clear to the guilty-pleading

defendant that the resulting judgment of conviction may be used in a

subsequent proceeding to enhance the defendant’s punishment for

subsequent offenses. Thus, Boykin, Mackey, McClintock, and Rule 11 of

Tennessee Rules of Criminal Procedure govern the validity of guilty plea

proceedings.

As the Supreme Court of Tennessee noted in State v. Prince, 781

S.W.2d 846, 853 (Tenn. 1989), some of the mandated Mackey advice is not

required by Boykin but represents a supervisory pronouncement of the court. 

The Court stated “any other requirem ent of Mackey in excess of Boykin is not

based upon any constitutional provision, federal or state. It follows, that any

omissions, not required in Boykin may be relied upon on direct appeal in
-5-

appropriate cases but such omissions have no validity on the first or any

subsequent post-conviction proceeding.” Id. at 853.

From the transcript of the guilty plea proceeding, it is clear that the trial

judge went to exhaustive measures to ensure that Appellant’s plea was

voluntary. Addressing Appellant in open court, the trial judge informed

Appellant that he had the right to plead not guilty and that he had the right to a

trial by jury, insisting that the State of Tennessee prove beyond a reasonable

doubt that he was guilty. The trial judge further informed Appellant of his right

to an attorney at trial, his right to confront and cross-examine the witnesses

against him, his right against self-incrimination, and the right to subpoena

witnesses to testify on his behalf. The trial judge inquired of Appellant whether

anyone had forced him to plead guilty. Appellant answered “no.” Appellant

indicated that he understood the rights he was waiving. It does appear that

the trial court failed to ask Appellant whether his willingness to plead guilty

resulted from discussions between he and the district attorney or his attorney

and the district attorney. However, this is a supervisory, non-constitutionally

based instruction required by Mackey, and relief may be given in a postconviction hearing only if a conviction is void or voidable because of a violation

of a constitutional right. See Tenn. Code Ann. § 40-30-203 (Supp. 1996); 

Prince, 781 S.W .2d at 853. Therefore, this issue has no merit.

Neither did Appellant’s alleged time pressures, lack of family input, or

coercion on the part of counsel result in his guilty plea being involuntary. 

Appellant claims that he and his attorney barely discussed the guilty plea

offered by the State and that he was forced into accepting the plea minutes
-6-

before the plea was entered. He also maintains that the trial court pressured

him and his attorney to come to a quick decision because the judge wanted to

begin court promptly at 9:00 a.m. In fact, Appellant testified at the hearing on

the petition for post-conviction relief that he was told about the possibility of

pleading guilty the Friday before the Monday he pled guilty. During his

negotiations with the State which began on Friday and ended on Sunday,

counsel informed Appellant of the plea and the strength of the State’s

evidence against Appellant. While it is true that the trial judge stated at the

hearing that if he had been asked for more time Monday morning, he would

not have granted it, such a request was never m ade and no such pressure

was exerted by the court. In addition, while Appellant complains about his

lack of access to family input, his mother did visit him at jail the Sunday before

his plea was entered. Although his mother testified that they did not discuss

the plea at that time, they certainly had the opportunity to do so. After having

observed the trial and conviction of Appellant’s co-defendant brother, and

considering the even greater weight of evidence against Appellant, counsel

believed that it was in Appellant’s best interest to accept the plea offered by

the State. Counsel was entitled to use reasonable persuasion when making

his recom mendation. State v. Parham, 885 S.W.2d 375, 384 (Tenn. Crim.

App. 1994).

We conclude that Appellant’s plea was voluntarily, intelligently, and

knowingly entered and that the evidence produced by Appellant does not

preponderate against the findings of the post-conviction court. Accordingly,

the judgment of the post-conviction court is affirmed.
-7-

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

JOHN H. PEAY, JUDGE

___________________________________

DAVID H. WELLES, JUDGE