# FILED
March 12, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JANUA RY 1998 SESSION
MICHAEL ALLEN UNDERWOOD, ) ) NO. 02C01-9701-CR-00032 Appellant, ) ) SHELBY COUNTY VS. ) ) HON. W. FRED AXLEY, STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPELLANT : DAVID M. LIVINGSTON 111 West Main Street Brownsville, TN 3

8012 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter KENNETH W. RUCKER Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General TERRELL L. HARRIS Assistant

District Attorney

General 201 Poplar Street, Suite 301 Memphis, TN 38103-1947

OPINION FI LED:

AFFIRMED

JOE G. RILEY, JUDGE1 No new proof was heard by a

greement of the

parties. 2 OPINION
The petitioner, Michael All en Underwood, appeals the tr ial court's denial of post-conviction reli ef. The trial court found the state met i ts burden of proving by clear and convincing evidence the petiti oner knowingly an d voluntarily pled guilty to vari ous offenses. The judgment of the trial c ourt is affirmed.

I.
In September 1986, the petitioner pled guilty to two (2) counts of burglary and one (1) count of receivi ng stolen property. H e was sentenced to concurr ent four (4) year sentences for the burglary charg es and one (1) year for rec eiving stolen property. In 1988, the petitioner filed a pos t-conviction petition

alleging his gui lty pleas were not knowingly and voluntarily entered and were constitutionally infirm since he was not advi sed of certain constitutional rights. The trial cour t held a hearing in June 1992, and found the pl eas to be valid. This Cour t remanded for a harmless error analy

sis as outlined in Johnson v. State , 834 S.W.2d 922 (Tenn. 1992). Michael Allen Underw ood v. State , C.C.A. No. 02C01-9207-CR00163, Shelby County (Tenn. Crim. App. filed June 2, 1993, at J ackson). Specifically we found the t rial court improperly placed the burden of proving the pleas were involunt

ary or unknowing

upon the petitioner instead of the s tate. The trial court subsequentl y reviewed the r

ecord and concluded any previous errors w

ere harmless because the ev idence showed clearly

and convincin gly that the petitione r was aw are of his con stitutional rights at the time his pleas were entered. 1 That ruling is the basis of this appeal.3 II
The United States Supreme Court i n Boykin v . Alabama , 395 U.S. 238, 244, 89 S.Ct. 1709, 1713, 23 L.Ed.2d 274 (1969), held that defendants must waive certain ri ghts in order for their decision to plead guilty to be considered knowing and voluntar

y. These rights incl ude the right to a jury trial, the right to confront witnesses, and the r ight against self-inc rimination. Id. These rights cannot be validly w

aived without an intent ional relinquishment, w hich cannot be presumed from a silent record. Id. To ensure guilty pleas are entered “knowingly and intelligently,” Boykin instructs the trial c ourt to discuss with the accused the consequences of the deci sion. 395 U.S. at 244, 89 S.Ct. at 1712. When a trial court fails to advise an ac cused of these rights, the bur den shifts to the state to prove a constitutional plea. Johnson v. State , 834 S.W.2d at 925. The f

ailure does not , in and o

f itself, entitl e the defe ndant to relief, however. Id. The state may prove by clear and convincing

evidence either substantial compliance with the advice requir ement by showing the pet itioner was made aware of his constitutional rights, or that the petitioner independe ntly knew of his constitutional rights, rendering the trial court’s omiss ion harmless. Id. The standard for determining subs tantial compliance or harmle ss error necessarily requi res inquiry into circumstantial factors sur rounding the plea. Blankenship v. State , 858 S.W.2d 897, 904 (Tenn. 1993), ( citing Caudill v. Jago , 747 F.2d 1046, 1052 (6th Cir. 198 4)). The relative int

elligence of the defendant, the degree of his familiarity with criminal proc

eedings, the opportunity to confer with competent counsel regarding plea options, the ex tent of advice from counsel and the court regarding the charges faced, and the desir e to avoid a greater punishment resulting from a ju ry trial are all relevant factors a court could use to find a “knowing” and “ intelligent” plea. Blankenship , 858 S.W.2d at 904.2 The opposite is also true; simply e

numerating the t

hree rights, wi

thout more, will not establish the pleas were voluntarily and knowingly entered. Blankenship , 858 S.W.2d at 905. 4 III.
The Tennessee Supreme Court establis hed guidelines for revi ewing guilty pleas in State v. Neal , 810 S.W.2d 131 (Tenn. 1991). The Court held that “absolutely literal compliance with the advice to be given is not required.” Id. at 137. “Substantial compliance” would suffice as long as the “sense of the substance of the required adv ice . . . is [express

ed to an accused prior to a pl ea of guilty].” Id. Blankenship v. State

presented our Supreme Court w ith a nearly identical situation to the case sub judice . Blankenship entered guil ty pleas without bei ng explicitly forew

arned that he had a right not t o incriminate himself. 858 S.W.2d at 899. The pleas were found in al l other aspects to be “know ing” and “voluntary.” Id. The Court found, based on federal law as well as its decision in Neal , a failure to precisely recite the three “ Boykin rights” does not automatically entitle a petitioner to rel ief from the effects of prior guilty pleas. Id. at 905. 2 The omission of advice regar ding the right agai nst self-incrimination w as found to be “at most, harmless” under th e facts and circumstances of the cas e. Id.

IV.
Upon remand, the trial court in this case found the state prov ed by clear and convi ncing evide nce the p etitione r was aware of his rights a nd, acco rdingly, ruled the guilty plea s knowing an d volunta ry. Specifically, the tria l court found the petitioner ple d guilty to similar

crimes four (4) years prior

to the pleas in the present ca se. At that time the petitioner was advised of his ri ght to plead not guilty and go to trial, rig ht to counsel, right to cross-examine witnesses, call witness es on his own behalf, and appeal. In addition he executed a wr itten waiver of var

ious rights. A simil ar written waiv er5

was executed by petitioner upon entry of the subject guilty pleas. The trial court found the petitioner to be less than credible and quoted numerous inconsistencies in his testimony. The trial cour t further noted the petitioner had graduated from high school and attended some college. When it examined the evidence as a whole, t he trial court concluded t he state had met its burden of proving by clear and convincing evidence substantial compliance and harmless error regarding the advice requirements.

V.

The tria l judge's f indings of fact on p ost-convi ction hea rings are co nclusive on appeal unless the evidence preponderates otherwise. Butler v. State , 789 S.W.2d 898, 899-900 (Tenn. 1990); Adkins v. State , 911 S.W.2d 334, 354 (Tenn. Crim. App. 1995). The tr ial court’s findings of fact ar e afforded the weight of a jury verdict, and this Court is bound by the trial court’s findings unless the evidence in the recor d preponderates against those findings. Henley v. State , S.W.2d (Tenn. 1997); Dixon v. State , 934 S.W.2d 69, 72 (Tenn. Crim. App. 1996). This Cour t may not reweigh or

reevaluate the evidenc e, nor substitute its inferences for those drawn by the tri al judge. Henley v. State , S.W.2d at ; Massey v. State , 929 S.W.2d 399, 40 3 (Tenn. Crim. App. 1996); Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Quest ions concerning the credibil ity of witnesses and the weight and value to

be given to their testimony are res

olved by the trial court, not this court. Henley v. State , S.W.2d at ; Black v. State , 794 S.W.2d at 755. The burden of establishing that the evidence preponderates otherwise is on petit ioner. Henley v. State , S.W.2d at ; Black v. State , 794 S.W.2d at 755.

We find the evidence doe s not preponderate against the trial court’s findings; therefore, the judgment of the trial court is AFFIRMED.6 __________________________ JOE G. RILEY, JUDGE

CONCUR:

______________________________ JOE B. JONES, PRESIDING JU DGE

______________________________ PAUL G. SUMM ERS, JUDGE