### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs D

ecember 5, 2

000 MIRACK R. SMITH v. STATE OF TENNESSEE Direct Appeal from the Criminal Court for Shelby County No. P-16716 Carolyn Wade Blackett, Judge

No. W1999-01566-CCA-R3-PC - Filed February 9, 2001

The Petitioner pled guilty to one count of second degre e murder and one count of e specially aggravated

robbery, both Class A felonies. Tenn. Code Ann. § 39-13-202 and - 403. The Petitioner received concurrent sentences of thirty years, as a Rang e II offender, and fifteen y ears, as a Range I offender, resp

ectively. T

he Petitioner file

d a p etition for post-conviction relief; however, the petition was ultimately dismissed. The Petitioner nowappeals the post-conviction court’s denial of relief. The Petitioner

contends: 1) that trial counsel was ineffective because counsel knew that the Petitioner had a history of

mental illness but f

ailed to investig

ate it, and 2) that

he did not voluntari

ly and knowingly enter into the plea agreement be cause he didnot know that he was to be sentenced to the thirty-year sentence as a Range II offender

. Our review of

the record has failed to yield any evidence that weighs ag ainst the post-con

viction court’s dis

missal of the Petition

er’s p e tition. Accordingly, the post-conviction court’s dismissal of the Petitioner’s petition is affirmed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OHN E VERETT W ILLI AMS , J., delivered the opinion of the court, in which R OBERT W. W EDEMEYER , J., joined. J OE G. R ILEY , J., filed a separate concurring opinion. Robert B. Gaia, Memphis, Tennessee, for the appellant, Mirack R. Smith.
P aul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorne y General ; William L. Gibbons , District Attorney General; and Dawn Doran, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION On November 6, 1995, the P etitioner pled guilt y to second degr ee murd er and especia lly aggravated

robbery. The Petitioner subseque ntl y filed a pro-se petition for post-conviction relief. A post-conviction he

aring was held o

n April 10, 1997. The

post- c onviction court dismissed the Petitioner’s petition on November 22, 1999. This appeal resulted therefrom.-2- FACTS During the early morning hou rs of Oct ober 26, 1994, the Petitioner and two o

f his acquaintances robbed and murde red Dentman Dav

is, Jr., the victim in thi

s case. While

the record does not conclusively indicate which one of the three actually shot the victim, the State claimed at the guilty plea

hearing that on

e of the Pe

titioner ’s co-defendant’s was the actual shooter. After murdering the victim, the Petitioner and one of the co-defendants ran to a nearby house used in the past by the Petitioner to sell drugs. When the Petitioner arrived at the house shortly after the robbery and mu rde r, he told three people who were at the house that he had shot someone. Further, the Petitioner had blood on his clothes when he arrived at the house after the robbery and murder. After the Petitioner was

arrested, the Sta

te entered notic

e of its inte

n t to seek the death penalty against the Petition er, listin g two aggravating factors in support of the death penalty . On November

6, 1995, the Petitioner

pled g uilty to second degree murder and especially aggravated rob bery. In return for

the Petitioner’s guilty plea, the Petitioner received a thirty -year sentence for second degr ee murder as a Ra nge II offender, and a

concurrent sen

tence of fiftee

n years fo r especially aggravated robber y as a Range I offe

nder. The Petitioner subsequently filed a pro-se petition seeking post-conviction re lie f, raising numerous allegations. On April 10, 1997, a post-conviction hearing was held. In a decision hande d down by the post-conviction court on November

22, 1999, the Petitioner’s post-conviction petition was dismissed. This appeal followed. ANALYSIS Standard of Review The trial judge's findings of fact on post-conviction hearings are conclusive on appeal unless the evidence preponderates otherwise. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). The trial court’s findings of fact are afforded the weight of a jury verdict, and this Court is bound by the trial court’s findings unless the eviden ce in the record

preponderates

against those

findings. Henley v. State , 960 S.W.2d 572, 578 (T enn. 1997); Alley v. State , 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). This Court may

not reweigh or reevaluate the evidence, nor substitute its inferences for those drawn by the tr

ial judge. Henley , 960 S.W.2d at 578-79 ; Massey v. Sta te , 929 S.W.2d 399, 403 (Tenn. Crim. App. 1996). Questions concerning the credibility of witnesses an d the weight and value to be given to their testimony are resolved by the trial court, not

this Court. Burns , 6 S.W.3d at 461. The burd e n of establishing that the evidence preponderates otherwise is on the petitioner. Henley , 960 S.W.2d at 579; Black , 794 S.W.2d at 755. Issues Presented on Appeal

1.-3-

The Petitioner first c

ontends that trial c

ounsel was ineff

ecti ve because

counsel failed to investigate the Petitioner’s history of mental health after being informed of it. We disagree. The Petitioner claims,

and presented e

vidence supportin

g his claim, that at one time he had been admitted to Parkwood Mental Hospital for inpatient treatment. The Petitioner c laimed tha t both he and his parents told trial counsel that he had a history of mental illness. In testimony given at the post-conviction hearing, however, the Petitioner’s trial counsel testified that neither the Petitioner nor the Petitioner

’s parents ever told him about

the Petitioner’s history of mental illness. Further, it was established that the Petitioner’s parents knew of the post-conviction he aring , but failed to show up to testify in support of the Petitioner’s contention. The Petitioner offered no other evidence to support this claim

. In the findings filed by the post-conviction court, the post-conviction c

ourt stated that it d

id notbelieve that the parents of the Petitioner nor the Petit

ioner ever informed trial counsel of the Petitioner’s history of mental illness. Our review of

the record has failed to produce any evidence that preponderates

against this find

ing. Neit her the Pet itioner’s parents nor the Petitioner ever informed trial counsel of the Petitioner’s history of mental illness. As such, trial counsel can not be found to have been inef

fective on this issu

e. We se e no re ason to disturb the finding of the postconviction court o

n this issue. This issu

e is without merit.
2. The Petitioner next contends that he did not vol unt arily and knowingly enter into the plea agreement

because he did not know that he would be sentenced to serve the thirty-y ear sentence as a Range II offender. We do not ag ree. The Petitioner

argues that he did not know that he would be sentenced as a Range II offender when he accepted the guilty plea offer. At the post -convicti on hearing, the transcript of the guilty plea hearing was entered into evidence. The guilty plea transcript clearly shows that the court asked the Petitioner whether

he understood the rights that he was giving up; whether the guilty plea was being given fr

eely and voluntarily, without being forced to plead in such manner; and whether the Petitioner had discu ss ed the case thoro ughly with h

is counsel. The Pet

itioner answere

d affirmatively to each question. The court also asked the Pet ition er whether he had any questions regarding the guilty pleas. The Petitioner answered “No.” Finally, the transcript clearly se ts out in three separate areas that the Petitioner’s thirty-year sentence is to be servedwith a Range II offender c lassification. As we are certain the post-convict i on court also found, there was ample opportunity for the Petitioner to questio n the Range II class ification at the guilt y plea hearing. The P etitioner’s trial counsel also testified at the post-conviction hearing that he had tho roughly

discussed the Range II classification on the thirty -year sentence with the Petitioner. Further, a “Negotiated

Plea Agreemen

t Form” was offe

red into eviden ce at the post-conviction-4-

hearing. The form clearly shows that the Petiti

oner was to

be sentenced to a thirty-yea r sentence as a Range II offender. The

form was signed by the Petitioner. Based upon the testimony and evidence presented

at the post-convic

tion hearing, the

postconviction court foundthat the Petitioner knew that he was accepting the thirty-y ear sentence

with a Range II offender cla

ssification. Further, the post-conviction court found that the Petitioner knowing ly and voluntarily entered into the guilty plea a greement. Our review of the record has failed to yield any

evidence that we

ighs against

the findings of the post-conviction court. This issue is without merit. CONCLUSION The post-conviction court’s dismissal of the Petitioner’s petition for post-conviction relief was proper. The post-

conviction court’ s dismissal of th e Petitione r’s petition for post-conviction relief is affirmed.

___________________________________ JOHN EVERETT WILLIAMS, JUDGE