### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs O ct obe r 3, 200 7

MA RTIN O WR IGHT v. STA TE OF TEN NES SEE

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty

No. 02-08614 P aula S kahan , Judge

No. W2006-02342-C CA-R 3-P C - F iled Janu ary 9, 2008

The pe titioner, Martino Wright, pled guilty to two co u n t s o f espe cially ag g ravated robbe ry

and

rec eived a

total effe ctive sente nce of thirteen a

nd one-ha lf y ear s incarceration in the Tennesse e De pa rtme nt o f C or

re c tio n. Th e re a ft e r, he fi le d a pe tit ion fo r p os t- c on vic tio n r e lie f, a lle g ingthat hi s
c ouns e l w e re ine ff

e c tiv e and

that a s a re su lt o f a

multit ud e of e rr or s h is guil ty

ple a wa s n ot a knowing and voluntary

choice . The post-c onviction court denie d the petitio n , and the pe titioner timely appea led. Upon re view of the rec ord and the parties’ briefs, we affirm t he judgment of the post-conviction cour

t.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Cr im ina l C our t i s A ffirm e d.

N OR MA M C G EE O G LE , J ., delivere d the opinion of the cour t, in which J ER R Y L. S MI TH and A L AN E. G L EN N , J J ., joined.

David Christensen, Me mphis, Tennessee , for the a ppellant, Martino Wrig ht.

Rob e rt E. Coo pe r, Jr., Attor

ne y Ge ne ra l and Re po rt e r; Sop hia S. L e e , As sis ta nt A tto rn e y

Ge ne ra l; Wil liam L . Gibbons, District Attorney Gene ral; and A nita Sp i n et ta, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.
OP IN ION

I. F ac tu al B ac kgr ound

The re cord r efle cts that on J une 24, 2002, whe n the petitioner wa s fiftee n y ear s old, he was char g ed with the espe cially ag g ravated rob b ery

of Rudolph Ross and Mary Ross. Couns el was appointed (he reina fter “

juvenile counse l”), a

nd a hea ring was c onducted to de termine whe ther the petitioner should be tried a s an adult. On J uly 3, 2002, the juvenile cour t issued an orde r transf

err ing the petitioner to cr iminal court. I n the orde r, the juvenile c ourt found that the pe titioner committed the delinquent ac ts c harg ed, he was “not committable to a n instit ution for the mentally reta rded orT he o ri gi nal p et i t i o n f o r p o st

- co nvi ct i o n rel i ef was f i l ed pro s e. Fo l l o wi ng t he ap p o i nt m ent of co unsel
, f o ur 1

a m e n d e d p e tit io n s w e re fi le d

.

W h i l e t h e pet i t i on s a l l eg ed addi t i on al i n s t an ce s of i n ef f ec t i v en es s , t h es e ar e t h e on l y c ompl ai n t s r ai s ed on 2

a p p e a l.

-2- mentally ill,” and “[t] he int ere sts of the community require [d] that said child be plac ed under leg al restra int or discipline.”

After the petitioner wa s transfe rre d to c riminal court, he was appointed counse l (here inafter “tri al counsel”). On the da y of trial, the pe titioner, fac ing two c ounts of espec ially ag g ravated

ro bb e ry , p le d guil ty

to b oth c ounts in e xchan g e fo r c on c ur re nt s e nte nc e s o f t

hir te e n a nd on e -h a lf y ear s incarc eration with release elig ibilit y afte r ser vice of one hundre d perc ent of the se ntence s.

Th e re a ft e r, the pe tit ion e r f ile d a pe tit ion fo r p os t- c on vic tio n r e lie f, a lle g ingthat hi s juve nil e counsel a nd t ri al co u n s el wer e inef fec tive. I n his petition, t he petitioner a lleg ed that his counsel

1

we re ine ff

e c tiv e by (1 ) f a ili ngto a dd

uc e su ff ic ie nt p ro of

of his me nta l re tard a tio n to pr e ve nt h is c a se from beingtransfe rre d from juvenile c ourt, (2) e rrone ously advising him that he could not testi fy at the transf er he aring
, and (3) inacc urate ly informing him of t he ti me he would se rve in c onfinement prior to par ole. 2

At the post-conviction hea ring , the petitioner testified that at the time of the offe nse he w as living with his g randf

ather and was in the ninth g rade at Booke r T. Washington Hig h School. The petitioner said that he w ent to school ever y day
, but he had problems “kee ping up with people.” H e explained that he stopped g oing to sc hool beca use “I was intellig ent but Ididn’t want to look like a fool by people sa y ing, w ell he intellige nt but he can’ t rea d or write.”
The pe titioner said that afte r juven i l e co u n sel was a ppointed, she met with him only once prior to the juvenile tra

nsfer hear ing. She a sked him if he could rea d or write, and he told her that he could no t

. Al t houg h counsel kne w that the petitioner w as in “re source ” cla sses, she neve r revie wed his ac ademic rec ords with him. The petitioner said that he did not understand what was happeningat the tra

nsfer hear ing. He maintained that juvenile counsel would not le t him testify at the tr ans fe r h e ari ng , e ve n th ou g h h e a sk e d if he c ou ld sa

y so me thi ng . Init ia lly , th e pe tit ion e r s a id that he did not rec all having been in juvenile c ourt befor e the instant ca se; howeve r, the pe titioner subsequently

conce ded that he ha d been in juvenile c ourt on a fe w occ asions.

After the petitioner wa s transfe rre d to criminal court, trial counsel was appointed to re prese nt him. The petitioner said that he never “had a relationship” w ith tria l c ounsel, and they met only on court dates. The pe titioner stated t hat he tried t o call trial counsel severa l times, but he wa s told that trial counsel would not acc ept collec t calls. The pe titioner testified that he a sked the trial c ourt for

a new attorney , but his request wa s denied.
The petiti oner said that he went for a mental eva luation, and he wa s told, “[Y] ou g uilty , ain’t

no thi ng wr on g wi th y ou

. An d I wa s tr y ingto t e ll the m a in’ t no thi ngwr on g wi th m e . Y ou kn ow , b ut,-3-

they was makingit seem like something w as wrongwith me.” He stated t hat after his evaluation he was found c ompetent to stand trial.

The p e ti ti o n e r s tate d th a t h e c le ar ly u n d e r s to o d th e c h ar g e s h e w a s f a c in g ; h o w e v e r, he “neve r knewthe laws a

bout the char g e” or how serious the char g es wer e. The petitioner said that at that time he did not rea lly know what a

trial was. While in jail, he was a dvised by other inmates that if he wer e innocent of the char g es he should “ take it to trial.” The petitione r s ai d t h at t ri al

c ouns e l di d n ot p re pa

re him fo r t ri a l. Spe c if

ic a lly , th e pe tit ion e r r e c a lle d th a t th e inm a te s to ld h im he nee ded t o we ar a suit and pick a jury . When he aske d counsel a bout the inmates’ advic e, trial counsel told him that he did n o t h av e t o we ar a sui t and that picking a jury did not matter. The petitioner stated that tria l counsel t ried to forc e him to understand what was ha ppening , but he went

a bo ut i t “ the wr on g wa

y .” Th e pe tit ion e r s a id, “ Yo u do n’ t pr e ssu re no thi ngon

me to t ry to m a ke me
un de rs tand

wh e n I kn owIc ou ldn ’t

un de rs tand .” Th e pe tit ion e r a sse rt e d h e tr ie d to te ll h is s tor y to trial counsel, but counse l did not believe him and told him that no one else would believe him. The petitioner said that he w as fr ustrated a nd confuse d.

Th e pe tit ion e r s tate d that he and tr ia l c ouns e l ne ve r dis c us se d wh a t his de fe ns e a t tr ia l w ou ld be. Tria l counsel told the petitioner that he w as fa cing a sente nce of fifty or six ty y ear s; the petitioner did not want to fac e such a leng thy sentenc e. A we ek bef

ore tria l, the petitioner re

jected an off er of fiftee n y ear s beca

use it was too much t ime to serve for something he had not done. The petitioner testified that trial c ounsel bec ame a ng ry when he reje cted the of

fer

. On the day

of trial, trial c ounsel came t o the petit ioner with the “same plea of fer as bef ore” and advise d him not to g o to trial. Ba sed upon trial counsel’s a ssuranc e that he c ould “make pa role,” the petitioner a g ree d to plead guilty to w h at h e b el i eved was an e ight- y ear sentenc e. When the petitioner ar

rived at the penitentiary
, he dis cover ed that he had rec eived a thirteen and one-ha lf y ear sentenc e on ea ch cha

rg e and that he would be el i gi b le for r elea se only afte r ser ving e ighty -five perc ent of the se ntence

. The petiti oner acknowle dg ed that he may have told the tria l court duringthe plea he aringthat he under stoo d the proc eeding s, but he maintained that he had not re ally understood what was happening . The pe titioner rec alled that at one point d u ri n g the g uilty plea he aring , he and tr ial

c ouns e l w e nt t o th e ba c k o f t he c ourt ro om. Th e pe tit ion e r s a id t hat tr ia l c ouns e l to ld h im:

[Y] ou don’t nee d to do this. I car e about y o u , m an , y ou g ot y our whole life a

head of y ou. And, he broug ht this other attorney in. . . . But he was tellingme, he sa id . . . [ t h e j u dg e] will give you all that time if y ou sign f

or it, y ou don’t nee d to do that. And, so, that’s when my a tto rn e y le ft the ro om. I do n’ t know

wh a t he , h e c a me ba c k w ith some pape rs in this hand. I g uess that was the same pa pers. And, he was say ing that he was g oing to help m e. So, that’s when I signe d the pa p e r s , w h e n h e w a s s ayin g s o me th in g a b o u t e ig h t y e ar s and make parole

.-4-

The pe titioner said he now r ealizes that by pleading g uilty to espec ially ag g ravated robbery
, he is not elig ible for pa

role.

Th e pe tit ion e r sa id that pa rt of his c on fu sio n wa s c a us e d by an e rr or

in t he jud g me nt f

or ms. Specifica lly
, one of the judgme nts of conviction ref lected that he had a thirteen and o n e- h al f y ear sentenc e to be se rved at one hundre d perc ent. Howeve r, the other judgme nt of conviction re flec ted that he wa s “mitigated” and was re quired to ser ve only twenty perc ent of the se ntence . He sa id that he did not rea liz e at the time that it was a n err or. The pe tit i o n er a cknowledg ed that a c orre cted judgme nt was ente red to re flec t a mandator y one hundre d perc ent servic e of both sente nces.

Th e pe tit ion e r’ s mo the r, L ind a Jone s, a lso te sti fi e d a t th e po st- c on vic tio n h e ari ng . Sh e sa id that so on a ft e r t he p eti ti on e r w a s c ha

rg e d, sh e sp ok e wi th t

he pe tit ion e r’ s juve nil e c ourt c ouns e l. J uvenile counse l t o l d J ones that she would obtain the pe titioner’s medica l rec ords, a medic al evaluation, and his family history . Howeve r, juvenile c ounsel did not men t i o n t he petitioner’ s
aca demic re cords.

After the petit ioner’s case was t ransf err ed to criminal court, J ones spoke with the petitioner’s trial counsel one or two times, a nd she told him that the petitioner ha d “mental be haviora l problems.” Jone s d id n ot g ive e ith e r j uv e nil e c ouns e l or tr ia l c ouns e l th e pe tit ion e r’ s me dic a l or a c a de mic

rec ords. J ones explained that counsel told her that they would obtain the re cords.
The pe titioner’s juvenile counsel t est ified at the post-c onviction hear ing that she was appointed to re prese nt the petitioner in J uly 2002. She said that the petit ioner was held only about ten day s prior to his transfe r to criminal cour t. J u v en i l e co u n sel ac knowledg ed that mental reta rdation i s a fac tor the juvenile c ourt consider s when de termining whether a tra nsfer should be

ma de . Sh e sa id that an I Q o f 6 0 is c on sid e re d “ mil dly re tard e d, ” wh ile an I Q o f 8 0 is c on sid e re d to be “low f

unctioning.” J uvenile counse l rec alled that she spoke with the petitioner’s mot her; ho we ve r, sh e c ou ld n ot r e c a ll w he the r t he pe tit ion e r’ s mo the r br ou g ht he r the pe tit ion e r’ s a c a de mic

re c o r d s

. Ju v e n il e c o u n s e l s tate d th a t u s u a ll y , if

a p ar e n t i s c o n c e r

n e d a b o u t a juv e n il e ’ s le v e l of functioning , the parent will bring her the juvenile’s acade mic rec ords. J uvenile counsel stated that she believe d during the cour se of he r re prese ntation she had re viewed “ all” of the pet i t ioner’s “re cords” and had spoke n with the prosec utor, police, a nd the petitioner’s pa

rents.

J uvenile counse l stated that she could not spec ifically reme mber s ome aspe cts of the petitioner’s c ase be cause her c ase r ecor ds had been s hredde d. Howeve r, she maintained that if the petitioner’ s m o t h er h ad broug ht her a copy of the pe titioner’s ac ademic r ecor ds or had made her

awa re of the petitioner’s low I Q, then juvenile counse l would have made the juvenile cour t awar e of the infor

mation. She stated t hat i f she knows a juvenile is in special e ducation cla sses, she obtains their ac ademic r ecor d s

. J u v en ile counsel opined that an I Q of 60 c ould have pr evente d the petitioner’s tra

nsfer to adult criminal court. How ever , she noted that a low I Q, standing alone, mig ht not be enoug h to warr ant commitment.-5-

J uvenile counsel stated t hat t he petiti oner chose not to testify in juvenile court. She said that juveniles ty

pically do not t es t ify

at transf er he aring s, opining that their te stimony could be use d ag ainst them in criminal court. When asked, juvenile counsel a cknowledg ed that Te nnessee Code Annotated se ction 37-1-134 pr ovides that statements made by a juvenile during a tra nsfer hear ing

are not admissible ag ainst a juvenile in cr iminal court. J uvenile counse l stated that she was sure that sh e ha d a dv ise d th e pe tit ion e r o f h is r ig ht t o a pp e a l th e juv e nil e c ourt ’s tr ans fe r or de r. Re g ard le ss, juv e nil e c ouns e l ma int a ine d that sh e pr e se nte d a t the tr ans fe r h e ari nga ll o f t he inf or matio n ava ila

ble to her.

Trial counsel testified that in Marc h 2003, he wa s appointed to repr esent the pe titioner. Trial counsel a sked for

an inves t i gat o r t o be appointed, a nd the trial cour

t gr anted the r equest. Tr ial counsel said that he filed di scover y motions and reviewe d all the di scover y materia ls. Trial counsel

rec alled that he me t with the petitioner approximat el y o n ce e very two months during the one and one-ha lf y ear s of hi s repr esentation. Trial counsel maintained that the pe titioner’s role a s the shooter was never disput ed. Moreove r, t he petiti oner a dmitted the robbery and ac knowledg ed that he shot the victims. Howeve r, the pe titioner t o l d counsel that another juvenile named “Kool- Aid” participated in the offe nse and dire cted him t o shoot the vi ctims. “Kool-A id” t old the petitioner that if he did not shoot the victims, “ Kool-Aid” w ould shoot him . The pe titioner was unable to provide any information leadingto the identity or whe rea

bouts of “Kool-A id.”

Trial counsel rec alled that althoug h the petitioner did not appea r to be hig hly

intelligent, he did not reca ll the petitioner “a s being handica pped.” N ever

theless, trial counse l reque sted that the peti ti on er un dergo a men tal eval uat io n. Th e pet it io ner w as o ri ginal ly sen t t o M id to wn M ental He a lth Center a nd later to Middl e Te nnessee Mental He alth I nstitut e. Eva luations from both fac iliti es conclude d that the petit ioner was competent to stand trial and that an ins anity defe nse could not be supported. F urther, the petitioner did not meet the standa rds for judicia l commitment.

Trial counsel rec alled that he spoke w ith J ones seve ral times duringhis repre sentation of the petitioner. Counsel stated that they may have disc ussed mental hea lth concer ns, but J ones’ pr imary fo c us wa s th e pe tit ion e r’ s b a il. Tr ia l c ouns e l sa id that Jone s wa nte d to h ir e a

fa mil y c ri min a l de fe ns e attorney , but the hiring of alter nate c ounsel neve r mater ialized.

Trial counse l testified that the State orig inally offe red a plea ag ree ment providing for a total

e ffec tiv e se nte nc e of

tw e nty -f ive y e ars to b e se rv e d at e ig hty -f ive or on e hund

re d p e rc e nt. Ne g oti a tio ns c on tin

ue d, and the State c on tin

ue d to l ow e r t

he tot a l e ff

e c tiv e se nte nc e fr om t

we nty to fiftee n y ear s. Trial counse l testified that the petitioner’s tria l was s et for Monda y , September 27, 20 04 . O n th a t date , th e State ma de ano the r o ff e r o f t hir te e n a nd on e -h a lf y e ars . T ri a l c ouns e l to ld the petitioner that it was ve ry lik el y h e would be convic ted at trial a nd could fa ce a

n eff ective sentenc e of f

orty y ear s with mandatory

service of eig hty -five pe rce nt.

Trial counse l discussed the plea ag ree ment and the trial with the petit ioner. He also broug ht in another e x perie nced a

ttorney to discuss options and likely outcomes with the petit i o n er . The pe tit ion e r s e e me d to un de rs tand the dis c us sio ns . T ri a l c ouns e l sa id t hat he re ma ine d c a lm a

nd did-6-

not raise his voice during his discussions wit h the petitioner. Tr ial counsel re commended that the petitioner ac cept the ple a ag ree ment. When the petitioner re alized that trial was i m minent, he beca me more w illing to acc ept the plea ag ree ment. Trial counse l advised the p et i t i o n er that even afte r serving eig hty -five perc ent of his se ntence , he would still be a y oung man when h e w as rele ased.

Trial counse l rec alled that the petitioner said that he pled guilty beca use he w as g uilty

and be c a us e he did

no t w ant to s e rv e fo rt

y or fi ft y y e ars in t

he pe nit e nti ary . T he pe tit ion e r a g re e d to

acc ept the off

er r ecommendingthe thirteen a nd one-ha l f y ear

sentenc es. Tria l counsel told the pe tit ion e r t

hat he wo uld

have to s e rv e a

min imum of

e ig hty -f ive pe rc e nt o f t

he se nte nc e in confine ment befor e bec oming e ligible f or par ole. Trial counsel said that he never tol d the petitioner that he wo uld se rv e on ly tw e nty pe rc e nt of his se nte nc e

. Th e pe tit ion e r und e rs too d that he w ou ld have to s e rv e on e hund

re d p e rc e nt o f h is s e nte nc e in c on fi ne me nt, wi th a po ssi ble re du c tio n to eig hty -five pe rce nt. Trial counse l stated that he had mistakenly marke d on one of the petitioner’s jud g me nts of

c on vic tio n th a t he wo uld

have to se rv e tw e nty

pe rc e nt o f t

he se nte nc e in c on fi ne me nt. Trial counse l admitted that the judgme nt form could have been c onfusing . Howeve r, trial counse l

no te d tha t whil e the pe tit ion e r wa s on the sta nd a t the ple a he ari ng , he ha d q ue sti on s a bo ut a po ssi ble fiftee n perc ent re duction in his sentence. Counsel r eca lled that t h e t ri al court took a break a nd allowed tria l counsel to ha ve additional discussions with the petitioner to ensure that he under stood the plea a g ree ment.

Trial counse l thought that ac ceptingthe plea a g ree ment “wa s the bes t d e c is io n [t h e p e ti ti oner]

ever made in his life .” He rec alled that the petitioner did not know “K ool-Aid’s” r eal name or whe re he lived and c ould not provide a descr iption of him. The investig ator’s attempts to find “Kool-Aid”

wer e unsucc essful. Thus, trial counsel concluded that for the petitioner to say “Kool-A id directe d him to do thi s when Kool-A id was not to be found wa s a hopele ss case .”

Trial counse l rec alled discussing the petitioner’s I Q and sa id that he thought he reme mbere d it being a s low as 60. Counsel explain ed that a defe nse of diminished ca pacity could have been

e xplor e d f ur the r; ho we ve r, ba se d upo n the pe tit ion e r’ s v e rs ion of e ve nts the fo c us wa s o n th e de fe ns e of dure ss. Trial counsel opined t hat he would not have c hang ed the wa y he dea lt with the petitioner if he had possessed the petitioner’s a cade mic rec ords. Trial c ounsel said, “Ha d Iknown of his school

re c or ds , I do n’ t th ink

that I wo uld have sp e nt a

ny mor e tim e be c a

us e the re wa s just no mor e tim e to be spent.”

B a se d u po n th e fo re g oin g , th e po st- c on vic tio n c ourt fo un d that the pe tit ion e r h a d n ot m e t hi s burden of proving that juvenile counse l or trial counse l had bee n ineffe ctive. The court fur ther found that the petit ioner’s guilty pleas we re know ingly and voluntarily

enter ed. On a

ppeal, the pe titioner challeng es the post-c onviction court’s ruling

.

II. Ana lys is-7-

To be succ essful in his claim for post-conviction relief , the petitioner must prove a ll factua l alleg ations contained in his post-conviction petition by clea r and convincing evidenc e. See T enn. Code Ann. § 40-30- 110(f) (2006). “‘Clea r and convincing evidenc e means evidenc e in which there is no serious or substantial d o u b t about the cor rec tness of the c onclusions drawn f rom the

e vid e nc e .’ ” State v. Ho lde r, 15 S.W. 3d 90 5, 91 1 (T e nn

. Cr im. Ap p. 19 99 ) (q uo tin g Ho dg e s v. S.C. To of & Co. , 833 S.W. 2d 89 6, 90 1 n.3 (T e nn . 199 2) ). I ssu e s re g ard ingthe c re dib ili ty of wi tne sse s, the weight and value to be a ccor ded their te stimony , and the f actua l questions raised by the evidenc e ad d u ce d at t rial ar e to be r esolved by the post-conviction cour t as the trier

of fa ct. See He nley

v. S t at e, 9 6 0 S

. W

. 2 d

5 7 2 , 5 7 9 (T en n

. 1 9 9 7 ). T h er ef o re , we af fo rd t h e p o s t -c o n v i ct i o nco u rt ’s fi n d i n gs of fa ct the we ight of

a jury verdic t, with such findings being conclusive on a ppeal a bsent a showing that the evidenc e in the re cord pr eponder ates a g ainst those finding s. I d. at 578.

A. I neff ective A ssistance of Counsel

A c la im o f i ne ff

e c tiv e a ssi sta

nc e of c ouns e l is a mixe d qu e sti on of law a nd fa c t. S e e State v. Bur ns, 6 S.W .3d 453, 461 (Tenn. 1999) . We will review the post-c onviction court’s finding s of fac t de novo with a pre sumption t hat those finding s are corr ect. See Fields v. S tate, 40 S.W.3d 450, 45 8 ( Te nn . 2 00 1) . H ow e ve r, we wi ll r e vie w the po st- c on vic tio n co ur t’ s c on c lus ion s o f l aw p ur e ly de novo. I d.
When a petitioner see ks post-conviction relief o n t he basis of ine ffe ctive assistanc e of counsel, “ the petitioner bear s the burden of proving both that counsel’s pe rfor mance was de ficient and that the de ficienc y

prejudice d the def

ense.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (c iti ngStr ic kla

nd v. Was hin g ton , 4 66 U. S. 6 68 , 6 87 , 1 04 S. Ct. 205 2, 20 64 (1 98 4) ). To e sta bli sh d ef i ci en tp er fo rm an ce , t h e p et i t i o n er m u s t s h o w t h at co u n s el ’s p er fo rm an ce wa s b el o w “ t h e r an ge of compe tence d emande d of attorne y s in criminal case s.” B axter v. Rose, 523 S.W .2d 930, 936 (T e nn . 1 97 5) . T o e sta

bli shpr e jud ic e , th e pe tit ion e r mus t show that “th e re is a re a so na ble pr ob a bil ity that, bu t fo r c ouns e l’ s un

pr of e ssi on a l e rr or s, the re su lt o f t he pr oc e e din g wo uld

have be e n d if

fe re nt. A re asonable probability is a probability s u ff

i cient to undermine confidenc e in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Be cause a petitioner must prove both prong s of the te st t o b e e nti tle d to po st- c on vic tio n re lie f, an ins uf fi c ie nt s ho wi ngof

e ith e r p ro ngis s uf

fi c ie nt b a sis to deny relief ; in fact, this court need not a ddress both components if there is an insufficient showing of one c omp o n en t

. Goad, 938 S.W.2d at 370. Moreover , in the context of a g uilty plea, “ the petitioner must show ‘pre judice’ by

demonstrating that, but for counsel’s e rror s, he would not have pleade d g uilty

but would have insisted upon g oing to tria l.” Hicks v. State, 983 S.W .2d 240, 246 (Tenn. Crim. App. 1998) ; see a lso Hill v. L ockhar t, 474 U.S. 52, 59, 106 S. C t. 366, 370 (1985).
The pe titioner first argues that his juvenile counse l was ineff ective by failing to present evidenc e of his mild mental reta rdation at the t ransf

er hearing and by advising him that he could not te sti fy a t th e tr ans fe r h e ari ngbe c a us e the te sti mony

c ou ld b e us e d a g a ins t hi m in c ri min a l c ourt

. First, we note that the petitioner failed to inc lude a transcr ipt of the transfe r hea ring in the rec ord for

our r e vie w. Se e Te nn . R. Ap p. P. 2 4( b) . F ur the rm or e, at the p os t- c on vic tio n h e ari ng , juve nil e
co u n s el t es t i fi edt h at s h e c o u l d n o tre ca l l s p ec i fi ca l l y

wh at o cc u rr edat t h e t ra n s fe r h ea ri n g.-8-

Howeve r, she state d that if the petitioner or his mother had made her a war e of the petitioner’s menta l reta rd at i o n , she would have made the juve nile court a war e of the issue. Ba sed upon the re cord b efor e us, we cannot de duce what evidenc e wa s befor e the juvenile c ourt at the tra nsfer hear i n g. Reg ardle ss, the rec ord re flec ts that the juvenile court ha d befor e it evid e n c e reg ardingthe petitioner’s extensive recor d of juvenile off enses a nd conclude d that b as ed u pon the statutory criter ia, the petitioner should be tra

nsfer red to c riminal court. B ased upon the rec ord bef ore us, the petitioner has fa iled to establish that counsel wa s ineffe ctive.
Additionally , the petitioner c omplains that juvenile counsel err oneously advised him that he sh ou ld n ot t e sti fy

a t th e tr ans fe r h e ari ngbe c a us e his te sti mony

c ou ld b e us e d ag ain st him in a du lt

cr i m i n al co u rt

. Ho we v er , t h e p et i t i o n er fa i l edt o s h o w h o w h e w as p re j u d i c e d b y n o t t es t i fy i n g. Acc ording ly , the petitioner is not entitled to relief on this issue.

Th e pe tit ion e r c on te nd s th a t tr ia l c ouns e l w a s ine ff e c tiv e fo r f

a ili ngto a c c ur a te ly

inf or m hi m
a bo ut th e am ount o f t ime he wo uld have to s e rv e be fo re be c omi nge lig ibl e fo r p aro le . T he po stconviction cour

t discredited the pe titioner’s testimony , fi n d i n g that he wa s well-informe d of the sentenc e he w ould rec eive. More over, w e note that tra nscript of the guilty plea hear ing be lies the petitioner’s c ontention that he wa s not informed of the a mount of time he would have to serve be fore rele ase e ligibility

. There fore , we conclude that the petit ioner has failed to establish that counsel wa s ineffe ctive in this reg ard.

B. K nowing and Voluntar

y Guilty Pleas
The pe titi o n er also argues that as a result of the a lleg ed def

iciencie s of counse l, his pleas

wer e not knowing ly

and voluntarily

enter ed. In deter

mining whe ther a petitioner’s guilty plea wa s knowing and voluntary , this court must look at t he tot ality of t he cir cumstance s. See State v. Turne r, 919 S.W .2d 346, 353 (Tenn. Crim. App. 1995). “This court is bound by the post-conviction cour

t’s finding s unless the evidenc e preponde rate s otherwise.” Bates v. State, 973 S.W .2d 615, 631 (Tenn. Crim. App. 1997).

When a defenda

nt enter s a plea of guilty
, cer tain constitutional rig hts are waived, inc luding t h e p r i v i l e g e a g a i n s ts e l f

i n c r i m i n a t i o n , t h e r i g h t t o c o n f r o n t w i t n e s s e s , an d t h e r i g h tt o a t r i a l b y j u r

y. S e e B o y k i n v

. A l a

b a m a , 3 9 5 U

. S

. 2 3 8 , 2 4 3 , 8 9 S

. C t

. 1 7 0 9 , 1 7 1 2 ( 1 9 6 9 )

. T h e r e f o r e , i n o r de r t o comply with constitutional require ments, a guilty plea must be a

“voluntary

and intellige nt choice

a mon g the a lte rn a tiv e c ours e s o f a c tio n o pe n to the de fe nd ant. ” No rt h Caro lin a v. Al fo rd , 4 00 U. S. 25, 31, 91 S. Ct . 160, 164 (1970). I n order to ensure that a def endant unde rstands the c onstitut ional ri g hts be ingre lin qu ish e d, the tr ia l c ourt mus t a dv ise the de fe nd ant of the c on se qu e nc e s o f a g uil ty ple a , a nd de te rm ine wh e the r t

he de fe nd ant un de rs tand s tho se c on se qu e nc e s. Se e B oy kin , 3 95 U. S. at 244, 89 S. Ct. at 1712.
To pass constitutional muster
, a g uilty plea must be made voluntarily , understanding ly , and kn ow ing ly . H ic ks v. State , 98 3 S.W. 2d 24 0, 24 6 (T e nn

. Cr im. Ap p. 19 98 ) ( c iti ngB oy kin , 3 95 U. S. at 244, 89 S. Ct. at 1713); see also State v. Mac key , 553 S.W .2 d 337, 341 (Tenn. 1977) . To-9-

deter mine the voluntariness a

nd in t el l i gence behind a guilty plea, the c ourt must look to various circ umstantial factor s, i.e.,

the re lativ e int e lli g e nc e of the de fe nd ant; the de g re e of his fa mil iari ty with criminal proce eding s; whether he was repre sented by competent counsel a nd had the oppor

tunity to confe r with counsel about the options available to him; the ext ent of a dvice f rom counsel a

nd the

c ourt c on c e rn ingthe c ha

rg e s a g a ins t hi m; a

nd the re a so ns for

his de c isi on to ple a d g uil ty , inc lud inga de sir e to a

vo id a g re a te r p e na lty that might re sult from a jury trial.

Bla nkenship v. State, 858 S.W .2d 897, 904 (Tenn. 1993)

.

I nitially , we note that the petitioner neve r testified that, but for trial co u n s el’s er

rors, he woul d not h a ve e nte re d th e ple a s. Mo re ov e r, a s w e e arl ie r n ote d, the pe tit ion e r w a s r e pe a te dly informed of

the sentenc es to which he wa s pleading . The pe titioner was informe d of the rig hts he

was wa iving by

pleadingg uilty , and he w as re pres en t ed by competent c ounsel. Additionally , the

re co rd ref

lects that both counsel a

nd the trial cour

t took preca

utions to ensure that the pe titioner

un de rs too d th e ple a

a g re e me nt. Ac c or din g ly , w e c on c l u d e t h a t t h e pe tit ion e r’ s p le a s w e re kn ow ing ly and voluntarily

enter ed.

III. Conclusi on

Ba sed upon the for eg oing, w e af firm the judg ment of the post-c onviction court.

___________________________________ NORMA McGEE OGL E, J UDGE