1 As grounds for her p etition, the appel lant cont ends that t his “[c] ourt’s opi nion overl ooks a material fact and misapp lies a material proposition of law.” See Tenn. R. App. P. 39 (a)(1) and (3). Specificall

y, the appellant

complains that

(1) thi s court’s op inion i naccurately stated t hat the appellant

faile d to incl ude a copy of the transcri pt of the al leged guilty pl ea hearing i n the record; (2) as there is no Tenness ee case on this m atter, this court should apply the law of Daye v. Com mon wealth , 467 S.E.2d 2 87 (Va. Ct. App. 1996), holding that the entrance of a guil ty pl ea after a j ury verdi ct is moot; and (3) “thi s Court misunderstands t he reach of the d ouble jeopar dy prov isions of the Unite d Sta tes a nd T enn ess ee C ons titution s.” W e den y the p etition on all grounds other than the vol untariness o f her guilty pl ea. Specifically, the appellant i nsists that, as there is no Tennessee law on point, this court apply the law of Vi rginia to the fact

s of the present

case regardingthe effect of a guil ty pl ea entered fol lowing a j ury tr ial. As the appell ant fail ed to incl ude this poi nt in her origi nal argument and as she relies on sec ondary au thority cited to by this court in its op inion, this issu e is not a ground for a petition to rehear. See Nashvill e v. Stat e Board of Equalization , 210 Tenn. 587, 618, 360 S.W.2d 458, 472 (1962) (petition for reheari ng not used for p urposes of reargui ng case on points al ready consi dered and determined,unless new and deci sive author ity has been discovered, which was overlook ed by the court). Next, the appellant asserts that this court “misunderstands t he reach of the d ouble jeopar dy provi sions of th e United Stat es and Tennessee Constitutions.” Again, th e appellant merely reargu es a point of law alr eady consider

ed and denied b y this court. Id. This issue is also not a ground for a petition to rehear.



## IN THE COURT OF CR IMINAL A

PPEALS OF TENN ESSEE AT KNOXVILLE

ALIC IA SH AYNE L OVE RA, ) ) No. E1999-01964-CCA -R3-PC Appellant ) ) SEVIER COUNTY vs. ) ) Hon. REX H. OGLE Judge STATE OF TENN ESSEE, ) ) (POST-CONVICTION) ) Appellee )

ORD ER O N PE TIT ION TO RE HEAR

A petition to rehear has been filed on behalf of the appellant, Alicia Shayne Lovera, pursuant to Rule 39, Tenn. R. App. P., to have this court reconsider its opinion pr eviously filed in this case on January 4, 2000. 1 

## After consideration of the same, this c ourt is of the opinion that the petition should be granted to address one allegation, i.e. , whether the appellant’s guilty plea was knowingly and v

oluntarily entered.

The appellant contends that this “ [c]ourt’s opinion over looks a material fact and misapplies a material pr oposition of law” in that this court’s opinion inaccurately stated that the appellant failed to include a copy of the transcript of the guilty plea heari ng in the record. See Tenn. R. App. P. 39(a)(1) and (3). 

# FILED

February 11, 20

00 Cecil Crowson, Jr. Appellate Court Clerk

## 2 The record received by the assigned panel contained only two volumes. The appellant claims that “Volume III” includes the plea heari ng transcript and must have been lost or mispl aced. Although Volume III w as located with the post-conviction recor

d for the appellant’s co-defendant, Br ett Rae, it does not contain the plea transcript . However, the appel lant’s plea hearing tr anscript, filed as exhibit 1 in her ev

identiary hearing, w

as also located with the Rae record. In light of the transcript an d in the interest of justice,we grant the petition to reconsider whether the appellant’s plea was kno wingly and vol untarily entered.

Again, the appellant assert s that her guilty pl ea was involuntarily and unknowingly enter

ed because the trial court fail ed to advise her of her rig hts to “knowingly, intelligently, and voluntarily waive cross-examination of witnesses, jury trial and the right against self-incrimination.” See Appellant’s Brief at 24 (citing Boykin v . Alabama , 395 U.S. 238 (1969); McCarthy v. United States , 394 U.S. 459 (1969)). The appellant also alleges that (1)

she received no consideration for entering the plea; (2) her state of mind pr ecluded a knowing and voluntary plea; (

3) trial counsel failed t o explain a sentence of life w ithout parole; (4) she was not informed that she was entitl ed to a hearing prior to imposition of sentence; and (5) she was coerced by threats of new evidence against her.

In the present case, the post-c onviction court concl uded that the appellant received the competent assistance of counsel and, consequently, entered her

plea knowingly and

voluntarily. A t

rial court’s findings

of fact in the postconviction hearing are conclusive on appeal unless the evidence in the record preponderates against those find ings. See Henley v. State , 960 S.W.2d 572, 578-79 (Tenn. 1997); Clenny v. State , 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978 ), cert. denied , 441 U.S. 947, 99 S. Ct. 2170 (1 979). The record supports the post-conviction cour t’s findings. Excer

pts from the transcript of the joi nt guilty plea hearing of the appellant and h er co-defendant, Brett Rae, rev eal that the trial court advised both co-defendant Rae and the appe llant of their automatic right to appeal and the w aiver thereof by enteri ng a guilty plea, t heir right to a separate sentencing hearing and waiver thereof by entering a guilty plea, their2 In State v. Neal , 810 S.W.2d at 137-38, our supreme court not ed that i t is "su bstanti al compliance" wi th Mackey "if the e ntire lita ny of rig hts a nd ot her re quire d exp lanat ory info rm ation is com mu nica ted in open cour t sim ultan eou sly to m ultiple defe nda nts in the p rese nce of the ir respectiv

e attorney

s, so long as t

he number involved is not so gr eat as to make indi vidual understandi ng unlikely; and pr ovided that

each defendant i s addressed individuall y to est ablish on the reco rd the un derstan ding and agreem ent of ea ch defe ndant."



## 3 rights to trial by jury and the confrontation of witnesses, and that a life sentence in Tennessee means service of at least twenty-five years before reaching parole eligibility. The fact

that the court first address ed co-defendant Rae and then the appellant is of no consequence. 2 

## See State v. Neal , 810 S.W.2d 131 (Tenn. 1991), overruled on other gr ounds by , Blankenship v. State , 858 S.W.2d 897 (Tenn. 1993). Moreover, i f the proof establishes that the appell ant was aware of her constitutional rig hts, she is entitled to no r elief. Johnson v. State , 834 S.W.2d 922, 926 (Tenn.1992). Our review of the entire record establis hes that the appellant’s guilty plea was entered voluntarily, knowingly and with full awareness of her constitutional rights.

For these reasons, we find without merit the chall enge presented in the appellant’s petition to rehea r regarding the v oluntary nature of her gui lty plea.

The petition to rehear is other wise denied.

PER CURIAM (Hayes, Tipton, and Welles, JJ)