# FILED
December 18, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE OCTOBER 1998 SESSION

CHAUNCEY R. GORDON, ) ) No. 01C01-9710-CC-00483 Appellant, ) ) Giles County v. ) ) Hon. Robert L. Jo nes, Judge STATE OF TENNESSEE, ) ) Appellee. ) (Post-Conviction)
For the Appellant : Joseph W. Henry, Jr. 119 South First Street Pulaski, TN 38478-0458 For the Appellee : John Knox Walkup Attorney General and Repor ter and Karen M. Ya cuzzo Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 T. Michael B

ottoms District Attorney General and Richard H. Dunavant Assistant District A

ttorney General Giles County Courthouse P.O. Box 304 Pulaski, TN 38478-0304

OPINION FILED:

AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The petitioner appeals the denial of his petition for post-conv iction relief. On January 2, 1991, the petiti oner pled guilty to one count of first degree murder and one count of second degree murder. He received an agreed sentence of life plus twenty-fi ve years, re spectivel y. The pet itioner n ow attacks the validi ty of that guilty plea, arguing that the pl ea was not voluntaril y, knowingly , and understandingly made. Upon a complete review of the record, we conclude that the evidence does not preponderate against the tri al court’s findings. Thus,we affirm the dismissal of the petition.

FACTS

In October 1989, the petitioner shot and killed his gi rlfriend and her mother. A Giles County G rand Jury indicted him on two counts of first degr ee murder. The district attorney’s office sought the death pena lty. Through extensive negotiations, the petitioner’s appointed coun sel secured a plea agreement that allowed the petitioner to plead guilty to one c ount of first degree murder and one c ount of second degree murder. The petitioner recei ved a life sentence and twenty-five years, r espectively, to
run conse cutively.
A. Guilty Plea Hearing

At the guilty plea hear

ing, the trial court a

ddressed numerous questions t o the petitioner to ascertain whether he understood the natur e of the proceedings and the waiver of his rig hts. The petitioner indicated that he did understand and that the pl ea was voluntary. He also expressed sati sfaction with his counsel ’s representation.

When the petitioner denied remembering the detail s of the crime itself due to intoxication, the tr

ial court inquired further into the circumstances surrounding the plea. The trial court’s i nquiry revealed that counsel had discussed and i nvestigated the1 Tes timo ny rev ealed that th e atto rney’s origin al cas e file h ad be en los t, and mo st like ly destroyed, due to the col lapse of an off ice buil ding in whi ch he was practi cing. 3 possibility of an intox

ication defense for the petitioner. Counsel’s investigation showed that the witnesses’ testimony would controv ert such a defense, not support it.

The trial court then confirmed that counsel had explained these things to the petitioner and that he stil l wished to enter the pl ea. The petitioner indicated that he did want to enter the plea. Thus, the trial court approv ed the agreement and the plea was entered.
B. Post-Conviction Hearing

At the post-conviction h earing, the trial cour t heard testimony from the petitioner’s appointed counsel at the trial level and the petitioner him self. The trial court also received the deposition testimony of Rudy Rains, the petitioner’s Adult Basic Education teacher, and Dr. Edw ard Bloser, a prison psy chologist. The trial c

ourt filed a written order of denial that included specific findings relating to each of the petitioner’s averments.

1. Trial Counsel

The petitioner’s trial att orney acknowledged little independent recollec tion of his discussions with the petitioner leading up to the plea. 1 However, his tes timony indicated appropriate prepar ation for a case of this magnitude.
There were extensive negotiations with the district attorney’s office in reaching the plea agreement . He recalled sever al meetings with the petitioner, the petitioner’s father, and other people associated with the petitioner’s family. He also remembered discussions with the petitioner about the deat h penalty aggravators, their possible applic ability, and the ra mifications o f proceeding to trial versus accept ing a plea agreement.4 The attorney recalled inv estigating the possibi lity of an intoxicati on defense. The investigation r evealed that the witness es, including two Tennes see Highway Patrol

Officers and an eyewitness to one of the shootings, did not s ee anything to indicate tha t the petitioner was si gnificantly impaired.
The attorney testified that he felt the petitioner understood the g uilty plea proceedings. He said tha t if he had any reservati ons about the petitioner’s abi lity to understand, he would have asked the trial court to be more specific, go into mo re detail, and use non-legal terminolo gy.
2. Rudy Rains Rudy Rains, the petiti oner’s Adult Basic Educati on teacher, testified by deposition regarding the petitioner’s current a cademic abilities and intel lectual capabilities in a class room setting. Mr. Rai ns characterized the peti tioner as “pretty smart” with “lots of common sense” compared to other inmates . It was his opinion that the petitioner suffered from a learning disability in readi ng and reading comprehensio n. However, Mr. Rains believed that if someone read the plea document to the pe titioner, he could understand it.

3. Dr. Edward Bloser

Dr. Bloser, a psychologist at the prison, testified by deposition that his department evaluated the petiti oner at the request of the educati onal staff. He said that the type of evaluation req uested is performed in cases of sus pected limited intellectual capacity. The results s howed a below third-grade spelling abil ity, a sixth-g rade math ability, and overal l comprehension and reading s kills at a fourth-grade level. The petitioner had a full-scale IQ score of fifty-eight. This placed h im in the mildly mentally retarded range. Howe

ver, Dr. Bloser ex

pressed deep reservations about relying on IQ tests and characterized them as very inaccur ate.5 Although the IQ test result placed the petitioner at a l evel of mild mental retardation and his comprehensi on level tested fairly low, Dr. Bloser di d not believe that the petitioner was mildl y mentally retarded. He said that the petitioner’ s IQ was higher than the average inmate, and hi s ability to comprehend w as at least the same as the average inmate.
4. Chauncey Gordon

The petitioner testified that he did not und erstand that he was originally charged with two counts of first degree murder and did not understand what he w as doing when he pled gui lty. He testified that hi s attorney knew he coul d not read and that the attorney read the documents to him. He said that although he did not underst and the a ttorney’s explanat ions of t he docum ents, he signed th em anyway.

The petition er testified th at he did not un derstand most of what the judge said to him at the plea hearing. He said that he did not understand th e judge’s explanation of the intoxic ation defense. He said that he ag reed with every thing that was said to him beca use “[i]t ’s embarr assing to s it in fron t of a lot of peop le and to say . . . ‘I can’t read’ or . . . ‘I don’t understand this.’”

The petitioner acknowledg ed that he answered the ques tions at the guilty plea hearing without be ing prompted by his attor ney. He conceded that he rec eived advice from a fellow inmate w ho convinced him that if he had gone to trial, he might not have been convicted of first degree murder.

5. Post-Convict ion Order of Denial The trial court found the petition to be without merit. Speci fically, it found that the petitioner’s respon ses at the guilty pl ea hearing and the entire r ecord indicate that the petitioner “understo od the nature of the charges aga inst him and all of his rig hts at the time the plea was enter ed.” The trial court noted th at the petitioner’s testimony at the post-conviction hearing was self-serving and not credible compared to his6

statements at the guilty plea hearing. The trial c ourt noted that neither Mr. Rains nor Dr. Bloser would characterize the petitioner as mildly mentally retarded. The trial court further noted that according t o their testimony, the peti tioner could understand w hat someone else read to him and woul d have understood questions asked by the court. The trial court concluded that the guilty plea w

as knowingly and v

oluntarily entered.

STANDARD OF REVIEW The trial court's findings of fact on post-conviction hearings are conclusive on appeal unles s the evidence preponderates otherwise. Butler v. State , 789 S.W.2d 898, 899 (Tenn. 1990); Adkins v. State , 911 S.W.2d 334, 341 (Tenn. Crim

. App. 1995). The burden of establishing that the evidence preponderates otherwise is on the petitioner. Henley v. State , 960 S.W.2d 572, 578 (Tenn. 1997); Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). This cour t may not reweigh or reevaluate the evidence,nor substitute its inferenc es for those drawn by the trial court. Henley v. State , 960 S.W.2d at 579; Massey v. State , 929 S.W.2d 399, 403 (Tenn. Crim. App. 1996); Black v. State , 794 S.W.2d at 755. Questions concerning the credibility of witnesses and the weight and value to be given to their testimony are resolved by the tri al court, not this court. Henley , 960 S.W.2d at 579; Black , 794 S.W.2d at 755.

CONCLUSION

This court has examined the ent ire record of this case i ncluding the transcript of the guilty

plea hearing, the post-co nviction hearing tr anscript, and the trial court’s order of denial. The ev idence does not preponderate agai nst the findings made by the trial court in its thorough order of denial.

In consideration of the foregoing and the record as a whole , we affirm the judgment of the trial court.78 _________________________ Joseph M. Tipton, Judge
CONCUR:

_________________________ Joe G. Riley, Judge

_________________________ James Curwood W itt, Jr., Judge