### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs D ecem

ber 16, 200 3 JERRY LYNN WR

IGHT v. STATE OF TENNESSEE Direct Appeal from the Criminal Court for K nox County No. 74172 Ray L. Jenkins, Judge

No. E2 003-0 1216- CCA-R3 -PC January 27, 2004

The petitioner, Jerry L

ynn Wright, appea

ls the dismissal of his petition for p ost-conviction relief, alleging that the post-conviction court erred in fi nding that his guilty plea was knowing and voluntary and that he received effective assistance of counsel. Upon review of t he record and the parties’ briefs, we affi

rm the judg

ment of the

post-con viction c ourt. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cr

iminal Court is Affirm

ed.
N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which J OE G. R IL EY and T HOM AS T. W OODA LL , JJ., joined.
Albert J. Ne

wman, Jr., K

noxville, Te

nnessee , for the

appella nt, Jerry Ly nn Wright

. Paul G. Summers , Attorney Gene ral and Reporter; David H. Findley , AssistantAttorney Genera l; Randall E. Nichol s, Distric t Attorne y General ; and Za

ne Scarl e tt, Assi stant District Attorney General, for the appellee, State of Te nnessee. OPINION
I. Fact ual Backgro

und
On February

20, 2001, the petitioner pled guilty in the Knox County Criminal Court to one count of second degree murder . The trial court imposed the recommended sentence of twenty-one years i n the Tennessee Department of Correction, to be served at one hundred percent

. Subsequently, the petitioner filed for post-conviction relief alleging tha t his pleawas not knowing and volun tary and that h

e rece ived inef fective assistanc e of coun sel.
At the post-conviction hearin g, the petitio ner testified that he was “bipolar, manic-depre ssive,

. . . and ne eded med

ication. ” He con

tended th at his attorney wa s aware that he had me

ntal prob lems, butfailed to have him undergo a mental evalua t ion. Additionally, the petitioner testified that he-2-

agreed to plead guilty because he thought his sente nce wasto be ser

ved at thi rty percent; however, he subseque

ntly learned that it was to be served at one hundred percent. The petitioner alleg ed that if he had known that

he was required to serve one hundred pe rcent of his sentence, he would have gone to trial.
The petitioner testified that he was acting in self-defe nse when he killed the victim. B ecause he did not believe his attorney wa s prepared for trial, the petitioner agreed to plead guilty a

nd accept a twenty-one y

ear sentence. He stated that he told his attorn ey that he h ad a mental problem. He alleged that he to ok his medi c al record a nd medications to his attorney, but the issue was ne ver raised. Moreove

r, he did n ot think tha

t his attor ney interviewed all th

e witness es. On cross-examination, the petitioner acknowledged that he was not taking medication at the time of the offense. How ever, he maintained that he a

dvised hisattorne

y of his mental

problem. The peti tioner a

ll eged that his attorney

pressured him to sign the plea agreement, telling the petitioner that “it was either the plea bargain or a life sentence.” The petitioner conceded that he had thirteen prior convictions. The petitioner admitted that the trial court told him that his sentence was to be served at one hundred perce nt; however, he testified

that “I felt that my case would be different if I’d went to trial; and if I ’d had a proper defense, I would have went to trial.”
The petitioner’s trial counsel testified that he had practiced criminal law since 1986. After he was appointed to represent the petitioner, he and his inv estiga

tor inter viewed a ll the witne sses. Most of the witnesses supported the State’s version of events. Trial counsel stated that one witness indicatedthat the petitioner backed the victim into a corner and “lunged into him” with a knife. Trial counsel advised the petitioner of the pr oblems wit

h his claim

of self- defense

and explained that the petitioner was the only witness who supported the claim. Because of the petitioner’s nume rous prior convicti ons, trial counsel was concerned about the petitioner testifying . Trial counsel felt that there was no “viable” defense available. He advised the petitioner that he was likely to be c onvicted of first degree murde

r and sent enced to life imprisonment. Trial counsel maintained that he did not pressure the petitioner to accept the plea ag reement, and

the deci sion to ple ad guilt y “was en tirely [the petitioner’s] decision.”
Trial counsel testifiedthat he never advised the petitioner that he would be required to serve only thir ty perce

nt of his sentence. He “never had any doubt” that the petitioner knew he wa s pleading guilty and unde

rstood the conditions of his sentence. Trial counsel specifically recalled a conversation wherein

the petiti oner expr

essed co ncern th at he would be req uired to serve a minimum of eighty- five percent of his sentence. The petitioner a dvised trial counsel that “he would be near 60 years old or a

round 60 when h e got out, a nd he’d be an old man.” Ultimately , the petitioner decided to acce pt the ple a agreement. Trial counsel did not recall the petitioner mentioning that he had a men tal problem. Trial counsel testified that if he had been aware of the petiti oner’s c laim, he w ould have had the petitioner evaluated. Trial counsel stated, “as a gener al practice, I te

nd to err on the side of caution. If there ’s ever a questio n about me

ntal cap acity , I–I

know ther

e’s fund ing ava ilable to get a psychiatrist or-3-

psy cholog ist, or both, to conduct an evaluation to determine competency and . . . we never thought that was an issue.”
At the conclusion of the post-conviction hearing, the post-conviction court took the matter under adviseme

nt in orde

r to revie w the tra nscript o f th e g uilt y plea hear ing bef ore rea ching a decision. Thereafter, the post-conviction court issued written finding s, accrediting the testimony of trial counsel and finding that counsel was not ineffective. Additionally, the post-conviction court noted that the transcript of the guilty plea hearing confirmed that the petitioner w as fully advised of his constit

utional ri ghts. II. Analysis
To be succe ssful in hisclaim for post-conviction relief, the petitioner must prove all factual allegations contained in his post-conviction petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997). “Clear and convincing evidence means evidenc e in which there is no serious or substa

ntial d oubt about the correctness of the conclusions drawn fr om the evidence.” Statev. Holder , 15 S.W. 3d 905 , 911 ( Tenn. Crim . App. 1999) (quot ing Hodges v. S.C. Toof & Co. , 833 S.W.2d 896, 901 n.2 (Tenn. 1 992)). I ssues re garding the cr edibility of witnesses, the weight and value to be acc orded the

ir testimony, and the factual questions raisedby the evidenc e adduced at trial are to be resolved by the post-c onviction court as the trier of fact. Henley v. State , 960 S.W.2d 572, 579 (Tenn. 1997). Therefore , we af ford the post-conviction court’s findings of fact the we ight of a jury verd ict, w ith s uch fi ndin gs being conclusive on appeal absent a showing that the e vidence in the record preponderates ag ainst those findings. Henley , 960 S.W.2d at 578.
In determining whether a

petitione r’s gui lty plea wa s knowing

and volun

tary , this cour

t must look at the totality of the

circumstances. State v. Turner , 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995). “This cou

rt is bound

by t he post-c onvictio n court’s fi ndings unless the evidence preponderates otherwise.” Bates v . State , 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997).
When a defendant ente

rs a plea of guilt y, c ertain c onstitution al righ ts are waived, including the privileg e aga

inst self-inc riminatio n, the rig

ht to conf ront witne sses, an d t he ri gh t t o a tr ia l b y ju ry. Boy kin v. Alaba

ma , 395 U.S. 238, 243, 89 S. Ct. 1709 , 1712 (19 69). The refore , in order

to comply withconstituti onal req

uiremen ts, a guilty plea

must be a “voluntary and intellig ent choice among the alternative courses of action open to the defendant.” North Carolina v. Alford , 400 U.S. 25, 31, 91 S. Ct. 160, 164 (1970 ). In

order to ensure t hat a def endant understan ds the con stitutiona l rights being relinquished, the trial court must advise the defendant of the consequences of a guilty

plea. Boy

kin , 395 U.S. at 243-44, 89 S. Ct. at 1712.
In State v. Mackey , 553 S.W.2d 337, 341 (Tenn. 1977), superseded o n ot her grounds by Tenn. R. Crim. App. 37(b) and Tenn. R. App. P. 3(b), our supreme court set out the procedure trial courts should follow when accepting a guilty plea. Prior to accepting the guil ty plea, the trial court must advise the defendant of the consequences of a guilty plea a

nd determine whether the defendant understands those consequences. See Id. ; see also Tenn. R. Crim. P. 11(c). A verbatim record of-4-

the guilty plea must be made and must include, without limitation, “(a) the court’s advice to the defendant, (b) the

inquiry into the

voluntar iness of th

e plea including

any plea ag reemen t and into the defenda

nt’s unde rstandin g of the

consequ ences of

his entering a plea

of guilty, and ( c) the inquiry into the accuracy

of a guilty ple a.” Mackey , 553 S.W.2d at 341.
In determ inin g whet her the petitioner’s guilty plea was knowing and voluntary , this court looks to the

following

factor s: The rela tive in tellige

nce of th

e [petitioner]; the de gree o f his familiar ity with criminal proceedings; whether he wa s represented by competent

co un sel and had the opportunity to conf er with counsel about the option s availa

ble to him; the extent of advice from counsel and the court

concer ning the charg es aga

inst him; and the reasons for his decision

to plead g

uilt y, i n cluding a desire to avoid a gre ater penalty that migh

t result f rom a jury

trial. Blanke nship v. Sta

te , 858 S.W.2d 897, 904 (Tenn. 1993).
As we have noted, the post-conviction court considered the e vidence presented by

the petitioner and the State. The post-conviction court accredited the testimony of trial counsel, finding that trial counsel was not ineffective. Further, the transcript of the guilty plea

hearing reflects that at the beginning of the hearing , the State advised the trial court that the recommended sentence was twenty-one

years, to be served at one hundred perce nt. Prior to accepting the guilty plea, the trial court advised the petitioner of the consequences of pleading guilty and determined that the petitioner understood those consequences. The trial court ques ti oned the p etitioner regar ding the voluntar iness of his guilty plea and c learly advise d the petitioner that he was “sentenced under the statute as a 100 percent prisoner, with the possibility of a 15-per cent diminution in sentence on compliance with the conditions of that statute.” Upon review of the record, we conc lude that the evidence does not preponderate ag ainst the determin ation of th

e post-c onviction

court. III. Conclusion Accordingly , the judgment of the post-conviction court is affirmed.

___________________________________ NORMA McGEE OGLE, JUDGE