FILED

July 10, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON 

 APRIL 1997 SESSION

JOHN L. EARNEST, )

)

Appellant, ) No. 02C01-9604-CR-00114

 )

) Shelby County

v. ) 

) Honorable Carolyn Wade Blackett, Judge

)

STATE OF TENNESSEE, ) (Post-Conviction)

) 

Appellee. )

For the Appellant: For the Appellee:

Craig v. Morton, II Charles W. Burson

212 Adams Avenue Attorney General of Tennessee

Memphis, TN 38103 and

Deborah A. Tullis

Assistant Attorney General of Tennessee 

450 James Robertson Parkway

Nashville, TN 37243-0493

John W. Pierotti, Jr.

District Attorney General

and

Rhea Clift

James J. Challen, III

Assistant District Attorneys General

201 Poplar Avenue

Memphis, TN 38103

OPINION FILED:____________________

AFFIRMED

Joseph M. Tipton

Judge
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O P I N I O N

The petitioner, John L. Earnest, appeals as of right from the Shelby

County Criminal Court’s denying him post-conviction relief from his second degree

murder conviction and resulting forty-year sentence in 1991 upon his plea of guilty. The

petitioner contends that he received the ineffective assistance of counsel and that he

did not knowingly and voluntarily enter his guilty plea. He asserts that his counsel was

ineffective because (1) a hearing was not conducted on several motions, (2) a motion to

compel the state to answer the motions was never filed by his counsel, (3) the mental

evaluation conducted was incomplete, and (4) his attorney only sought to negotiate a

plea rather than preparing for trial. The petitioner also claims that he did not knowingly

and voluntarily enter his guilty plea because the trial court did not advise him that he

was waiving the right to appeal his sentence or that there would be no further trials of

any kind by entering a guilty plea. Initially, we note failure to give advice not required by

Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1719 (1969), does not, per se,

warrant post-conviction relief because the omission does not, by itself, rise to the level

of constitutional error. See T.C.A. § 40-30-105; State v. Prince, 781 S.W.2d 846, 853

(Tenn. 1989); State v. Neal, 810 S.W.2d 131, 140 (Tenn. 1991). 

The petitioner and his trial attorney were the only witnesses to testify at

the post-conviction hearing. Essentially, the petitioner sought to show that his trial

counsel should have sought suppression of his written statement to police at a hearing,

sought a mental evaluation, consulted with him and conducted a more thorough

investigation, and should not have coerced him into pleading guilty by telling him that he

could receive either a life sentence or the death penalty. He also claimed that a mental

evaluation was never conducted on him and that he was never advised that he was

waiving his right to appeal. The petitioner admitted that trial counsel visited him in jail a
3

lot and that he did not tell his counsel about any witnesses because he did not have

any. 

The petitioner’s trial counsel testified, at length, as to what was done

leading up to the guilty plea, including advising the petitioner that he would waive the

right to appeal his sentence by entering the plea. She said that she visited the

petitioner several times in jail and corresponded by phone and by mail. Trial counsel

stated that she spoke to the victim’s family and that at least three people witnessed the

defendant shoot the victim. She also stated that a social worker conducted a social

investigation on the petitioner, that a mental evaluation of the petitioner was conducted

at Midtown Mental Health, and that the results of the evaluation showed that the

petitioner was competent to stand trial. Trial counsel stated that she filed a motion to

suppress the petitioner’s statement to police but did not proceed to a hearing because

the petitioner admitted shooting the victim and because she was seeking a reduction of

the offer of a forty-year sentence by the state. She testified that she believed that the

state had a strong case against the petitioner and that had the petitioner gone to trial,

he would have likely been convicted of first degree murder and received a greater

sentence. 

After the evidentiary hearing, the trial court entered a nine-page order that

included findings of fact and conclusions of law. The trial court concluded that trial

counsel had performed competently and that the petitioner knowingly and voluntarily

entered his plea. Essentially, the trial court found that the petitioner had not sufficiently

proven his factual allegations. In this appeal, the petitioner is asserting that we should

accept his testimony and proof over that of his trial counsel. Our scope of review is not

that broad.

First, this Court cannot reweigh or reevaluate the evidence; nor

can we substitute our inferences for those drawn by the trial

court. Second, questions concerning the credibility of the

witnesses, the weight and value to be given their testimony,
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and the factual issues raised by the evidence are resolved by

the trial court, not this Court. Third, the appellate has the

burden in this Court of illustrating why the evidence contained

in the record preponderates against the judgment entered by

the trial judge.

Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).

In this respect, the petitioner fails to show how the trial court’s findings are

incorrect. Moreover, we conclude that the evidence of record does not preponderate

against the trial court’s findings. In consideration of the foregoing, and the record as a

whole, the judgment of the trial court is affirmed. 

 

Joseph M. Tipton, Judge 

CONCUR:

 

David G. Hayes, Judge 

 

William M. Barker, Judge