# FILED

January 12, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON NOVEMBER 1997 SESSION

CAVIOUS M. WATKINS, * C.C.A. # 02C01-9701-CR-00031

Appellant, * SHELBY COU NTY VS. * Hon. James C. Be asley, Jr., Judge STATE OF TENNESSEE, * (Post-Conviction)

Appellee. *

For Appellant : For Appellee : Garland Erguden John Knox Walkup Attorney Attorney General and Repor ter 242 Poplar Avenue Memphis, TN 38103 Clinton J. Morgan Counsel for the State 450 James Robertson Parkwa y Nashville, TN 37243-0493 Janet Shipman Assistant District A

ttorney General 201 Poplar Avenue, Third Fl oor Memphis, TN 38103

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, JUDGE2 OPINION The defendant, Cavious M. Watkins, appeals the tr ial court's denial of his petition for post-conv iction relief. In this appeal of right, the defendant contends that his p leas were n either kn owingly nor vo luntaril y made due to the ine ffecti ve assistance of counsel. We find no error and affirm the j udgment of the trial court.

Indicted on two counts of especi ally aggravat ed robbery and one count of felony murder, the petitioner entered into a plea agreement, acknowledging his guilt on each count. On June 1, 1995, the trial court impos ed Range I, twenty-

fiveyear sentences on each of the tw o robberies. A life sentence w as imposed for the felony murder. The sentences are to be served concurrentl y.
On April 26, 1996, the petitio ner filed a pro se petition for postconviction relief, claiming that his guilty pleas were neither freely nor intelligently made due to the ineffective assistanc e of his retained trial couns el. An amendment to the petition included the specific allegation that the pe titioner had been misinformed by his trial counsel as to his release eligibility date.He contended that he entered his plea based upon information that he would be eligible for release much sooner than as later determi ned through the Department of Corr ection.
The petitioner was sev enteen years of age at the time of his plea and had completed the ninth grade. There was testimony that he had understood his prison sentence would l ast approximately sev enteen years; however, he later learned that with maxi mum good time credits, his mi nimum sentence would be twenty-two years. While acknowledging that his trial counsel had met with him regularly to provide progress reports on his case, the petitioner testified that, in general, he

did not under

stand the natu re of the proc eedings ag ainst him.3 Trial counsel testified that he had learned through his inv estigation that the evidence against the petitioner was over whelming. He learned that the defendant and each of his two co-defendants had admitted their participation in the crimes to the police. There w as a videotape of the car the defendants used in the commission of the crimes. The v ictim who had survi

ved the robbery wa

s able to identify the petitioner as one of the robbers. Trial counse l asserted that the only defense possible was to req uire the state to meet its bur den of proof on each of the elements of the crime. He expr essed particular concern about the possibility of consecutive sentencing had a trial been demanded and recalled that the petitioner, when apprised of the results of the investigation, ex pressed a genuine desire t o plead guilty so as to avoid a more onerous result.

Trial counsel specificall y denied having informed the petitioner that he would be eligible for release within seventeen years. He testified that it was his understanding that a life sentenc e would consist of twent y-five years. Tr

ial counsel claimed that it ha d been hi s policy to inform c lients th at releas e eligibili ty is solely determined by the Department of Co rrection and potentially influenced by overcrowding, ea rned sentence credits, or o ther incentives.
In its findings of fact and conclus ions of law, the trial c ourt determined that the petitioner's only complaint was that his t rial counsel had represent ed that he would be eligible for parole in seventeen year s. Otherwise, the petitioner had no quarrel with the q uality of his work.The court observed that tr ial counsel had represented the petitioner ov er a period of two year

s, had fully investigated the matter, and had adequate prior e xperience by his par

ticipation in a number of murder trials. The trial court generally accredited the testimony of trial counsel, determining that the petitio ner had failed to meet his burden of pro ving that the4 pleas were not knowi ngly or voluntar ily made. Implicit in

the holding is that the petitioner was unable to establish to the satisfaction of the trial judge that he had been misinformed by his counsel about the release eligibi lity date.

In order f or the pet itioner t o be grant ed relief on ground s of inef fective counsel, he must establish that the advice given or

the services rendered were not within the range of competenc e demanded of attorneys in crimi nal cases and that, but for his counsel's deficient performance, the result of his tr ial would have been different. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975); Stricklan d v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). T his two-part standard, as it applies to g uilty pleas, is met w hen the petitioner establishes that, but for his counsel's errors , he would not have pled g uilty and would hav e insisted on a trial. Hill v. Lockhart , 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985). "Gross misadvice concerning

parole eligibility

can amount to ineffective assist ance of counsel." Sparks v. Sowders , 852 F.2d 882, 885 (6th Cir. 1988); see generally Adkins v. State , 911 S.W.2d 334 (Tenn. Crim. App. 1994) (holding failure of counsel to advise d efenda nt as to co llateral effect s of guilt y plea is no t ineff ective assistance).
The burden is on the petitioner to show that the evidence preponderates against the findi ngs of the trial judge. Clenny v. State , 576 S.W.2d 12 (Tenn. Crim. App. 1978). Otherwise, the findings of fa ct by the trial court are conclusive. Graves v. State , 512 S.W.2d 603 (Tenn. Crim. App. 1973). In postconviction claims, the credibility of the w itnesses and the weight and value to be given their testimony

is within the exc

lusive authority of the

trial court. Taylor v. State , 875 S.W.2d 684, 68 6 (Tenn. Crim. App. 1993).5 Here, the petitioner testified that his true release eli gibility date w as 2029, almost thirty-four y ears after his pleas. That date i s erroneous as acknowledged by the pe titioner in his appellate

brief; thus, the testimony di d not enhance the petitioner's credibility. The trial court deemed as significant th e fact that no other witnesses t estified on behalf of the petitioner as t o his release eligibi lity date allegations even thou gh trial counsel had cons ulted with other members of the petitioner's family pri or to the acceptance of the plea ag reement. We cannot disagree with the tr

ial court's rationale. The record suggests that the petitioner may still be confused about his rel ease eligibility date. From all of this, it is our view that the petitioner has been unable to d emonstrate that the evidence pr eponderates against the finding made by the trial court that he had been represen ted within professional guidelines.

It follows then that the petitioner has failed to demonstrate that his plea was involuntary

or unknowing. In Boykin v . Alabama , 395 U.S. 238 (1969), the United States Supreme Court r uled that defendants should be advis ed of certain of their constitutional rights before entering pleas of guilt. Included amo ng those required warnings are the right agains t self-incrimination, the r ight to confront witnesses, and the rig ht to a trial by jury

. Id. at 243. The overr iding Boykin requirement is that the g uilty plea must be know ingly and voluntar

ily made. Id. at 242-44. If the proof established that the petitioner was aw are of his constitutional rights, he is entitle

d to no relief. Johnson v. State , 834 S.W.2d 922, 926 (Tenn. 1992). "[A] plea is not 'v oluntary' if it is the product of '[i]gnorance, inc omprehension, coercion, terror, induc

ements, [or] subtle or blatant threats ....'" Blanken ship v. State , 858 S.W .2d 897, 904 (T enn. 1993) (quo ting Boykin , 395 U.S. at 242-43).

The petitioner asserts that his plea was neither knowing nor voluntary6 because he pled guilty e xpecting to serve

a seventeen year sentenc e rather than a twenty-two y

ear sentence. As we hav e previously determi ned, however, the petitioner has failed to meet his burden of showing that the ev idence preponderates against the trial cour

t's findings. The trial c

ourt found, and we have agr eed, that the petition er's trial counsel d id not err oneousl y inform t he petit ioner he wo uld serve only a seventeen year

sentence. Moreover, thepetitioner admitted at the postconviction hearing that when he entered his pleas, he had understood he would receive a life sentence and t wo concurrent twenty

-five year sentences; he further admitted that he understood each of his rights at that time. Thus, the record indicates a knowing and voluntary plea.

Accordingly, the j udgment is affirmed.

________________________________ Gary R. Wade, Judge CONCUR:

_____________________________ David G. Hayes, Judge

_____________________________ Joe G. Riley, Judge