# FILED April 3, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE NOVEMBER SESSION, 1996 PHILLIP MARK NUNLEY, ) C.C.A. NO. 01C 01-9602-CC-00066 ) Appellant, ) ) ) GRUNDY COUNTY VS. ) ) HON. BUDDY D. PERRY STATE OF TENN ESSEE, ) JUDGE ) Appellant. ) (Post-Conviction Relief)

FOR THE APPELLANT : FOR THE APPELLEE : ROBERT S. PETERS CHARLES W. BURSON Swafford, Peters & Priest Attorney General and Repor ter 10 0 F ir st Av en ue , S .W. Winchester, TN 37398 EUGENE J. HONEA Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 J. MICHAEL TAYLOR District Attorney General THOMAS HEMBREE Assistant District A

ttorney 2nd Floor Lawyers B uilding Jasper, TN 37347

OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE-2- 

## OPINION

Appellant Phi lip Mark Nunl ey appeals fr om the dismissal of his pet ition for post- convicti on relief . On March 23, 1993, Appellant pl ed guilty to seconddegree murder and especi ally aggr avated robber

y. Appell ant receiv

ed a sentence of t

wenty-five years i mprisonment for s econd-degree murder and twenty year

s imprisonment for especial ly aggravated robbery. The sentences were ordere d to be served concurrently for an effective sentence of twenty-five years. O n July 10, 1 993, Ap pellant filed a petition for p ost-con viction relief, allegin g ineffe ctive as sistan ce of c ouns el and that he involun tarily en tered h is guilty plea. The post- convicti on court di smissed his pet ition, finding Appe llant’s petition w ithout me rit. On app eal, App ellant argu es that his guilty plea was involuntari ly entered. For t he reasons discussed below, we reject Appe llant’s claim and affirm the decis ion of the p ost-con viction cou rt.
Appellant m aintains that his guilty plea w as not voluntarily, intelligently, or kno wingly e ntered beca use th e trial co urt did n ot fully co mplyin g with R ule 11 of the Tennessee Rules of CriminalProcedure by i nquiring of Appellant whether his wi llingn ess to plead gui lty resulted f rom prior di scussions between thedistr ict

attorn ey a nd t he defen dant or h is attorn ey. In addi ti on, he c lai ms that be caus e of tim e pres sures and th e una vailability of his fa mily to h elp him make a decision, Appellant was u nable to make a vol untary, intell igent decision
.

In Boykin v . Al abama

the United State Supreme Court hel d that an
accu sed’s guilty ple a mu st be vo luntarily , know ingly, an d und erstan dingly-3-

entered befor

e a convict ion resti ng upon a guilt y plea may comply with due process. 395 U.S. 238 (1969). I n Boyk in , the Sup reme C ourt stated that a gui lty pl ea c onst it ute d a wa iv er of vari ous ri ghts an d th at it wo uldnot pre sume a waiver of

the foll owing federalconstit utional rights f rom a silent record: (1) The privil ege against compuls ory self-incri mination; (2) The right to trialby jury; and (3) The right to confront one’ s accusers.

Id. at 242. T hus, Boyk in placed a premium on the record showing s uffici ent waiver of specifi ed rights.

Exercisin g its supe rvisory pow er to ens ure that the courts of th is State afford fairness and j ustice to defendants i n criminal cases, the Tennessee Supreme Court in State v. Mackey , 553 S.W .2d 337, 341 (Tenn. 197 7), required st ricter

standards t han those mandated by t he Boyk in decision
. Mackey requires t hat tri al judges, in accepti ng pleas of gui lty i n criminal cases to substant ially

adhere to the followi ng procedure: The c ourt mu st addre ss the de fendan t in open c ourt and inform h im of, and determine that he understands: (a) Th e natu re of the charg es bro ught a gains t him and the mandatory mini mum penalty provi ded by law, if any, and the maxi mum possible penalt y; and that a d ifferent o r additio nal pu nishm ent m ay resu lt by reason of prior convi ctions or other factors; (b) If he i s not represented by counsel, t hat he has a right to be so repre sented and that if he cannot afford counsel, counselwill be appointed; (c) That he has t he right to plead not gui lty, the right to be tri ed by a jury , the ri ght to the assistance of counsel at trial , the right to confront and crossexam ine witnes ses, and the right no t to incrimina te himse lf;-4- (d) That i f he pleads gui lty, that ther e will be no trial except to determine his sentence; and (e) Tha t if he plead s guilty, the co urt or the sta te may ask him questions about the of

fense to whi ch he plead ed, an d that if h e ans wers u nder o ath his answers may later

be used against hi m in a prosecution for fal se statement or perjury , and that prior conv iction s may be used to set t he sentence. (f) The court

shall not

accept a plea of

guilty without first , by addressi ng the defendant personall y in open court, determining that the plea i s voluntar

y and not the result

of force of

threats or

of promises apar

t from a plea ag reeme nt. The c ourt sha ll also inquire as to whethe r the defe ndant’s w illingness to plead gu ilty results from prior

discussions between the Distri ct Attorney Ge neral and the d efendant or h is attorney. Id. at 341. The Mackey requirements hav e been adopted into Rule 11 of the Tennessee Rules of Cri minal Procedure. In State v. McClintock , 732 S.W.2d 268, 273 (Tenn. 1987) , the Supreme Court of Tennessee pronounced the additionalrequirement t hat the trial court make clear to t he guilt y-pleadi ng defendant that

the result ing judgment of convicti on may be used in a subsequent proceedi ng to enhance the defendant’s puni shment for subse quent o ffenses. T hus, Boyk in , Mackey , McClintock , and Rule 11 of Tennessee Rules of Cri minal Procedure gov ern the val idity

of guil ty plea proceedings.
As the Supreme Court of Tennesse e noted in State v. Prince , 781 S.W.2d 846, 853 (Tenn. 1989), some of the mandated Mackey advice is not required by Boyk in but repre sents a s uperviso ry pronou ncem ent of the c ourt. The C ourt stated “any othe r requirem ent of Mackey in excess of Boyk in is not based upon any consti tutionalprovisi on, federalor state. It fol lows, that any omissions, not

required i n Boyk in may b e relied upon on dire ct app eal in-5-

appropriate cases but such omissi ons have no vali dity on t he first or any subsequ ent post-conviction proceeding .” Id. at 853.

From the transcript of t he guilt y plea proceedi ng, it i s clear t hat the trial judge went to exhaustive measures to ensure t hat Appellant’s plea was voluntar y. Addressi ng Appellant i n open court, the tri al judge i nformed Appellant t hat he had the r ight to pl ead not guil ty and that he had the ri ght to a trial by jur y, insistin g that th e State of Ten ness ee pro ve bey ond a reaso nable doubt that he was guilt y. The tri al judge f urther i nformed Appellant of his r ight to an attorney at tr ial, hi s right t o confront and cross-examine t he witnesses against hi m, his ri ght against self-i ncriminati on, and the ri ght to subpoena witnesses to testif

y on his behal f. The tr ial j udge inquiredof Appellant whether anyone had forced hi m to plead guil ty. Appel lant answered “ no.” Appell ant indicated that he understood the ri ghts he was waiv ing. It does appear that the trial cou rt failed to ask Appella nt wheth er his willingn ess to ple ad guilty resulted f rom discussions between he and the di strict attorney

or his at

torney and th e distric t attorne y. How ever, th is is a su perviso ry, non -cons titutiona lly based instruc tion required by Mackey , and relief m ay be give n in a pos tconvicti on hearing onl y if a conviction is void or voidabl e because of a vi olation of a cons titutional right. See Tenn . Code Ann. § 4 0-30-20 3 (Sup p. 1996 ); Prince , 781 S.W .2d at 853 . There fore, this issu e has n o merit.

Neither di d Appellant’ s alleged t ime pressures, lack of family input , or coercion on the pa rt of couns el result in his guilty plea b eing involu ntary. Appellant cl aims that he and hi s attorney barely di scussed the guilty plea offered by

the State and t hat he was forced into accept ing the pl ea minutes-6-

before the pl ea was entered. He also maintai ns that th e trialcourt press ured him an d his attorn ey to com e to a quic k decisio n beca use the judge w anted to begin court promptly at 9:00 a.m. I n fact, Appel lant testifi ed at the heari ng on the petit ion for post-convi ction rel ief that he was told about

the possibi lity

of plead ing gu ilty the Fr iday be fore the Mond ay he p led gu ilty. Durin g his negotiations with the State which b egan on F riday and end ed on Su nday,
coun sel info rmed Appe llant of th e plea and th e stren gth of th e State ’s evidence agai nst Appellant . While it i s true that the tri al judge stated at the hearin g that if h e had been aske d for m ore tim e Mon day m orning , he wo uld not have gran ted it, such a reque st was never m ade and n o such pres sure was e xerted by the c ourt. In a ddition , while A ppella nt com plains abou t his lack of access to family input, his mo ther did visit him at jail the Sun day before his plea was entered. Alt hough his mother testifi ed that they did not di scuss the plea at

that ti me, they certainly had t he opportunit y to do so. After havi ng observed the t rial and convicti on of Appellant’s co-defendant brother , and consideri ng the even greater weight of evidence agai nst Appellant , counsel believed t hat it was

in Appella nt’s best

interest to accept t he plea offered by the State. Counsel was enti tled to us e reasonable per suasion when making his recom mend ation. State v. Parham , 88 5 S. W.2d 3 75, 384 (Ten n. C ri m. App. 1994 ).
We conclude that Appell ant’s pl ea was voluntarily, intell igently , and knowingly entered and that t he evidence produced by Appellant does not preponde rate against the findin gs of the post-co nviction court. Acco rdingly, the judgment of

the post-convicti on court is affirmed.-7- ____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ DAVID H. WELLES , JUD GE