# FILED
July 10, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COUR T OF CRIMIN AL APPEALS OF TENN ESSEE

AT JACKSON APRIL 1997 SESSIO N

JOHN L. EAR NEST, ) ) Appellant, ) No. 02C01-9604- CR-00114

) ) Shelby Count

y v. ) ) Honorab le Carolyn W ade Bla ckett, J udge ) STATE OF TENNESSEE, ) (Post-Conv iction) ) Appellee. ) For the Appell ant : For the Appell ee : Craig v . Morton, II Charles W. Burson 212 Adams Avenue Attorney Gen eral of Tennessee Memphis, TN 38103 and Deborah A. Tullis Assistant Att orney Gener al of Tennessee 450 James Roberts on Parkway Nashvil le, TN 37243-0493 John W . Pierotti, Jr. Distric t Attorney General and Rhea Cli ft James J. Chall en, III Assistant D istrict A

ttorneys G eneral 201 Poplar Av enue Memphis, TN 38103

OPINION FILE D:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The petitioner, J ohn L. Earnest, ap peals as of rig ht from the Shelby County Cr iminal Court ’s denying him post-conv iction rel ief from his second de gree murder conv iction and re sulting fort y-year sentence in 1991 upon his plea of g uilty. The petitioner co ntends that he rec eived the i neffective assis tance of counsel and t hat he did not know ingly and voluntar ily enter his guil ty plea. H e asserts that his counsel was ineffective becaus e (1) a heari ng was n ot conducted on sev eral motions, (2) a motion to compel the state t o answer t he motions wa s never fil ed by his c ounsel, (3) the mental evaluation c onducted was incomplete, and ( 4) his attor ney only sought to neg otiate a plea rather than preparing fo r trial. The petitioner also claims that he d id not knowingly and voluntar ily enter

his guil ty plea beca use the trial court did not advise him that he
was w aiving the right to appeal his s entence or that t here would be no further tri als of any kind by

entering a guilty

plea. Initi ally, w e note failure to g ive adv ice not req uired by Boyk in v. Alabam a , 395 U.S. 238, 243 , 89 S. Ct. 1709, 1719 (1969), does not, per se , warrant post-convi ction reli ef because the omissi on does not, by itself, ris e to the lev el of constitutional error. See T.C.A. § 40-30- 105; State v. Prince , 781 S.W.2d 846, 853 (Tenn. 1989); State v. Ne al , 810 S.W.2d 131, 140 (Tenn. 1991).

The petitioner and his trial attorney were the only witness es to testify

at the post-conv iction heari ng. Essenti ally, the petitioner so ught to show that his tri al
counse l should have sough t suppre ssion of his written s tatem ent to p olice at a hearin g, sought a menta l evaluati on, con sulted with him an d condu cted a m ore tho rough investig ation, and should not have coerced him into pl eading gui lty by telling him that he could receiv

e either a li fe sentence or the deat h penalty. He also clai med that a mental evaluation w

as never c onducted on him and tha t he was nev er advise d that he was waiving his right to appeal. The petitioner admitted that trial counsel visited him in jail a3

lot a nd th at he did n ot te ll his coun sel a bou t any wit ness es be caus e he d id no t have any.
The petitioner’s trial couns el testified, at length, as to what w as done leading up to the guilty

plea, includi ng advis ing the peti tioner that he w ould waive the right to ap peal his sentenc e by enteri ng the plea. She said that shevisited the petitioner se veral ti mes in jail and corresponded by phone and by mail. Trial counsel stated that she s poke to the vi ctim’s family and that at least

three people w itnessed the defendant shoot the v ictim. She al so stated that a s ocial wo rker conduct ed a social investig ation on the petit ioner, that a ment al evaluati on of the petitioner was conduc

ted at Midtow n Mental Heal th, and that the r esults of the evaluation show ed that the petitioner was competent to sta nd trial. Tr ial counsel stated that she fil ed a motion to suppress the petitioner’s statem ent to police but did not procee d to a hearing because the petitioner admitted shooting the victi m and because she was seeking a reduction of the offer of a forty-y ear sentence by the state. She t estified that she believed that the state had a strong case against the pet itioner and that had the p etitioner gone to trial, he would have likely

been convic

ted of first degree murder and rec eived a g reater sentence.

After the evid entiary hea ring, the t rial court entered a nine- page order t hat included finding s of fact and conclusi ons of law. The t rial court concluded that t rial counsel had perform ed competently and that the petitioner knowingly and voluntarily entered his plea. Essentially, the trial court fo und that the petitione r had not sufficien tly proven his factual allegations. In this app eal, the petitioner is asserting that we should accept his tes timony and pr oof over that of hi s trial c ounsel. Our s cope of review is not that broad. First, this Court cannot rew eigh or

reevaluatethe evidence; n or can we substi tute our inference s for those draw n by the tr ial court. Second, quest ions conc erni ng the credi bility of the witne sses, the weig ht and value t o be giv en their testi mon y ,4 and the factual iss ues raised by the evidenc e are resolv ed by the trial cour

t, not this C ourt. Third, t he appellate has t he burden in this Court

of illustrat ing why t he evidence c ontained in the record preponderates ag ainst the judg ment entered by the trial j udge. Black v. State , 794 S.W .2d 752, 755 (Tenn . Crim. App. 1990).

In this respect, the petitioner f ails to show how the trial court’s findings are incorrect. Moreover , we concl ude that the evi dence of record does not preponderate against the trial court’s findings. In consideration of the foregoing, and th e record as a whole, the j udgment of the tri al court is affirmed.

Joseph M. Tipton, Judge

CONCUR:

David G. Hayes, Jud ge

William M. Barker, Judg e