IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs January 14, 2004

DEXTER P. JONES v. STATE OF TENNESSEE

 Appeal from the Criminal Court for Wilson County

Nos. 01-0142, 01-0463, 01-464-66 John D. Wootten, Judge

No. M2003-01229-CCA-R3-PC

The petitioner, Dexter P. Jones, appeals from the Wilson County Criminal Court’s denial of

post-conviction relief from his four convictions for assault, a Class A misdemeanor, and resulting

consecutive eleven-month, twenty-nine-day sentences. He contends that his guilty pleas were not

knowingly, voluntarily, and intelligentlymade because the trial court did not advise him that he was

waiving a double jeopardy claim. We affirm the trial court’s denial of the petition.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOSEPH M. TIPTON,J., delivered the opinion of the court, in which JAMES CURWOOD WITT,JR. and

JOHN EVERETT WILLIAMS, JJ., joined.

Jack D. Lowery, Lebanon, Tennessee, for the appellant, Dexter P. Jones.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;

Tom P. Thompson, Jr., District AttorneyGeneral; and Robert N. Hibbett, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

The petitioner was charged with three counts of aggravated assault, two counts of assault,

one count of resisting arrest, and one count of public intoxication. He agreed to plead guilty to four

counts of assault and to serve four consecutive eleven-month, twenty-nine-day sentences. The plea

agreement provided that he would serve 208 days in jail, the remainder on probation. At the guilty

plea hearing on July 19, 2001, the state presented the following account of the petitioner’s December

13, 2000 attack on the victim: 

[T]he proof would show that [the petitioner] assaulted [the victim] on

that day and choked her three times until she lost consciousness. She

would lose consciousness, regain consciousness, then be choked

again. That happened on three separate occasions.
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[The victim] would also testify that on that particular day for

that case that he–that she reasonably feared imminent bodily injury

because of his assault against her on that day.

For the fourth assault conviction, the record reflects that the petitioner was also involved in a

separate domestic incident on February 3, 2001. The trial court revoked the petitioner’s probation

on September 14, 2001, and he filed his petition for post-conviction relief on March 22, 2002.

At the post-conviction hearing, the petitioner’s trial counsel testified that he met with the

petitioner eight to ten times before the guilty plea hearing. On July 6, 2001, he met with the

petitioner to determine the petitioner’s priorities in the case. The petitioner’s top priority was to

avoid a felony conviction because he did not believe he could continue his employment at

Aerostructures, Textron as an engineer draftsman with a felony on his record. The petitioner’s

second priority was to get out of jail as soon as possible. With the petitioner’s priorities in mind, the

trial attorney negotiated a plea offer from the state for the petitioner to plead guilty to four counts

of misdemeanor assault. The state’s offer stipulated that the petitioner would receive four

consecutive eleven-month, twenty-nine-day sentences and would be released from jail six weeks

after entering his plea. When trial counsel talked with the petitioner about the plea offer, the

petitioner believed accepting the plea was in his best interests. 

On cross-examination, trial counsel testified that if they went to trial and the jury believed

the petitioner’s testimony, he still would have been guilty of some of the charges. He was surprised

that the grand jury did not return an indictment for rape against the petitioner, and he acknowledged

that he thought it was bizarre that the grand jury indicted the petitioner on three counts of aggravated

assault. He did not remember if he discussed double jeopardy with the petitioner, but he said the

petitioner understood the case and knew to what he would be willing to plead guilty in order to avoid

a felony conviction. The petitioner did not testify at the post-conviction hearing. The postconviction court ruled that double jeopardy rights are waived by a knowing, voluntary, and

intelligent guilty plea. The court found that the petitioner’s guilty pleas to four counts of assault

were knowingly, voluntarily, and understandingly made and concluded that the trial court had

complied with the necessary procedure in its acceptance of the petitioner’s guilty pleas.

The gist of the petitioner’s claim is that his choking the victim was all part of a single offense

and that if he went to trial, he could not have been convicted of three counts of aggravated assault.

He asserts that because he could only have been convicted of one count, the trial court should have

advised him that he was waiving a double jeopardy claim before allowing him to plead guilty. The

state claims that the trial court followed the proper procedure when it accepted the petitioner’s pleas

and that the pleas were knowingly, voluntarily, and intelligently made.

In order for a petitioner to succeed on a post-conviction claim, the petitioner must show the

allegations set forth in his petition by clear and convincing evidence. T.C.A. § 40-30-110(f) (2003).

A trial court’s findings of fact in a post-conviction hearing are conclusive on appeal unless the

evidence in the record preponderates against those findings. See Butler v. State, 789 S.W.2d 898,
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899 (Tenn. 1990). This court may not reweigh or reevaluate the evidence, nor substitute its

inferences for those drawn by the trial court. Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997).

Questions concerning the credibility of witnesses and the weight and value to be given to their

testimony are resolved by the trial court, not this court. Id. Post-conviction relief may only be given

if a conviction orsentence is void or voidable because of a violation of a constitutional right. T.C.A.

§ 40-30-103 (2003).

In order for a conviction based upon a guilty plea to comport with due process, the plea must

be voluntarily, knowingly, and understandingly entered. Boykin v. Alabama, 395 U.S. 238, 242-44,

89 S. Ct. 1709, 1712 (1969). A guilty plea is not voluntary “if it is the product of ‘[i]gnorance,

incomprehension, coercion, terror, inducements, [or] subtle or blatant threats . . . .’” Blankenship

v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Boykin, 395 U.S. at 242-43, 89 S. Ct. at 1712).

The standard for assessing the validity of a guilty plea is “‘whether the plea represents a voluntary

and intelligent choice among the alternative courses of action open to the defendant.’” Id. (quoting

North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164 (1970)). “[T]he record of acceptance

of a defendant’s plea of guilty must affirmatively demonstrate that his decision was both voluntary

and knowledgeable, i.e., that he has been made aware of the significant consequences of such a plea;

otherwise, it will not amount to an ‘intentional abandonment of a known right.’” State v. Mackey,

553 S.W.2d 337, 340 (Tenn. 1977). To assess whether a petitioner entered a knowing, voluntary,

and intelligent guilty plea, this court must consider the totality of the circumstances. State v. Turner,

919 S.W.2d 346, 353 (Tenn. Crim. App. 1995).

The post-conviction court’s finding that a defendant gives up a double jeopardy claim upon

pleading guilty to the charged offenses is incorrect. In State v. Rhodes, this court held that “the

question of whether the Double Jeopardy Clause of either the state or federal constitution [is

implicated] was not waived by the defendant’s entry of or the trial court’s acceptance of the guilty

pleas.” 917 S.W.2d 708, 711 (Tenn. Crim. App. 1995). In Rhodes, we relied on Menna v. New

York, in which the United States Supreme Court reversed, per curium, a state court decision that a

guilty plea “waived” a double jeopardy claim. 423 U.S. 61, 62, 96 S. Ct. 241, 242 (1975); see also

United States v. Broce, 488 U.S. 563, 574-76, 109 S. Ct. 757, 765-66 (1989) (holding that a double

jeopardy claim may be waived, but a mere guilty plea does not automatically constitute a waiver

when the claim is apparent from the face of the record). Because a guilty plea does not waive a

double jeopardy claim, we must determine whether the petitioner had a double jeopardy claim of

which he should have been advised and, if so, did the trial court so advise him.

At the guilty plea hearing, the stipulated factual account of the offenses provided that the

petitioner choked the victim on “three separate occasions.” A defendant may be convicted of

multiple crimes without violating his right to be free from double jeopardy if the offenses are

committed separately. In our analysis, we use the facts to which the parties agreed at the guilty plea

hearing and will not reevaluate them in this post-conviction appeal. By pleading guilty, the

petitioner acknowledged that the state’s version of the facts was accurate. In this regard, because

it was stipulated at the guilty plea hearing that the offenses occurred separately, there was no double

jeopardy claim about which the court could advise the petitioner. As such, we conclude that the trial
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court advised the petitioner properly at the guilty plea hearing and that the petitioner’s pleas were

knowingly, voluntarily, and intelligently made.

Also, by not testifying at the post-conviction hearing, the petitioner leaves unproven any

claim that if he had been advised of the double jeopardy issues, he would not have pled guilty. The

record reflects that the petitioner’s major concern at the time of the pleas was to avoid a felony

conviction. We cannot infer from a silent record that a potential double jeopardy issue would have

mattered to him. We hold that the trial court properly rejected the petitioner’s claim for postconviction relief.

Based on the foregoing and the record as a whole, we affirm the trial court’s denial of the

petition.

______________________________

JOSEPH M. TIPTON, JUDGE