### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE March 18, 2003 Session
JOSEPH LANCE R

ISNER v. STATE OF

TENNESSEE Appeal from the Criminal Court for Greene C ounty No. 01CR155 James E. Beckner, Judge

No. E2 002-0 1112- CCA-R3 -PC June 30, 2003
The Appellant, Joseph Lance Risner, appeals from the dismissal of his petition for post-conviction relief. Pursuant to a “package deal” plea, Risner, along with five of his co- defenda nts, pled g

uilty to three c ounts of f

irst deg ree mur der, one count of a

ttempted m

urder, t wo countsof espec ially aggravated

kidnapping, two counts of kidnapping, and o ne count o f class D felony theft. On appeal, Risner present s the follo wing issu es for ou r revie w: (1) whether hi s ple a was kno win gly a nd voluntar ily entered; (2) whether he was denied the effective assistance of counsel; and (3) whether the indictment, which did not include t he agg ravatin g circumstance s qualify ing him f or the de ath penalty violates App ren di v. New Jersey , 530 U.S. 4 66, 120 S. Ct. 2348 (200 0), and is , thus, un const itutional. Finding no reversible error, we affirm the judgment of the Greene County Criminal Court. Tenn. R. App.P. 3; Judg ment of t he Crim inal Court

Affirme d.
D AV ID G. H AYES , J., delivered the opinion of the court, in which T HOM AS T. W OODA LL and J OHN E VERE TT W IL LI AMS , JJ., joined. Richard L. Gaines, Knoxville, Tennessee, f or the Appellant, Joseph Lance Risner.
Paul G. Summers , Att or ne y G eneral and Reporter; Michael Moore, Solicitor Gene ral; Mark A. Fulks, Assistant Attorney Gene ral; C. Berkeley

Bell, Jr., District Attorney Gene ral; and Eri c Christensen, Assistant District Attorney Gene ral, for the Appellee, State of Tennessee.

OPINION
Factua l Background
On August 6 , 1997, Vid ar L illelid, hi s wife, D elphina, and their si x-year-old daughter, Tabitha, were mur

dered ne ar an int

erstate rest stop in Greene Count

y. T wo-y ear-ol d Peter L

illelid suffered two life- threate

ning gunshot wou

nds, one of which caused the loss of an ey e. The Appellant-2-

and his five co-defendants, Karen Howell, N atasha Co

rnett, Crystal Strugill, Jason Bryant, and Dean Mullins, were indictedfor three counts of first degree murder, one count of attempted first degree murder, two counts of

especi ally aggrava ted ki dnapp ing, two counts of aggravated kidna ping, and one count of theft of property valued over $1,000. On February 18, 1998, five days prior to trial, the Statemade a “package de al” plea offer. The offer required all the defe ndants, including Howell and Bry ant, who w ere mino

rs at the t ime of the

offense s, to plea

d guilty to all char

ges before the

State would agree to remove t

he death penalty from con siderati on for the adult def endants. The offe

r also required all of the defendants to accept the offer w ithin two d ays. On Fe bruary 20, 1998, the Appellant and his co-defendants appeared be fore the trial court as a group a nd pled guilty to the offenses as charged. The plea ag reement provided that

the sentences for the murder and attempted murd erconvicti o ns would be determined by the trial court. At the conclusion of the sentencing hearin g, the trial court sentenced each of the de fendants to life in prison without the possibility of parole for each of the

first degree murder convictions and twe nty-five years f or the attempted murder conviction. All of these sentences were ordered to be served consecutively

. Pursuant to the ter ms of the plea agreement, the trial cour timposed concurrent sentences of twenty-five years f or each of the two counts of especially aggravated kidnapping , twel ve yea rs for e ach of the two counts of aggravated

kidnapping, and four years for theft. The Appellant’s sentences were affirmed on direct appeal. See generally State v. Karen Howell, et. al , 34 S.W.3d 484 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 2000).
The Appellant

subsequently filed a pe

tition for post-conviction relief, and a hearing was h

eld on February

21, 2002. The followi ng facts, r elevant to the circumstances surrounding the Appellant’s plea, we

re deve loped at the heari ng. On F ebruar y 18 , 2000, the

same day

the State extended the plea offer, trial counsel, Mark Slagle , met with the Appellant to inform him of the t

erms of the offe r. Slagl e expl ained to th e Appel lant t hat in exch ange for the g uilty pleas, th e State wo

uld withdraw the death penalty notices for

the adult defendants and recommend effec tive sentences of twenty-five

years f or the lesser charges. The t rial court would determine the sentences for the murder and attempted murder charges. The Appellant was advised of the possible sentences for the murder charges. According to the Appellant, Slagle stated to him, “this is pretty much the best that we [are] going to get.” Slagle testified that he advise d the Appe

llant to ac cept the

deal in or

der to avoid the death penalty . The Appellant responded that he “didn’t

like it, and [he] didn’t think it was right

. . . because . . . [he] didn’t kill anyone.” Slagle then lef t in order to discuss the offer with the co-def endants’ attorneys. After he left, the Appellant telephoned his mother, who had already

been informed of the offer by

the Appellan

t’s attor ney s. His mothe

r was cr yin g and e

ncourag ed him to accept the offer. He then s poke with his step-f ather, Ra y Ris ner, who

also advised t

he Appellant to take the offer but stated that it was the Appellant’s decision. Slagle again r eturned to visit the Appellant and informed him that everyone had accepted the offer except for K are n Howell, the Appellant’s girlfriend. The Appellant did not understa nd why Howell, a juvenile, would accept the deal because she had nothing to gain fr om doing so. According to the Appellant, Slagle, more agg ressively, advised him that the de al was the best he was g oing to get and he should accept the deal to save himself “fr om the electric chair.” The Appellant claimed that Slagle said, if he didn’t accept the offer , then all of his co-defendants would receive the deat h-3-

pe na lt y. Slagle

testified that he was only c oncerned for the Appellant’s life. The offer was discussed further, and

the meeting ende d with the A ppellant stating , “I

really don’t like

it, would y

ou let me know what Karen does.” Slagle returne d for a th

ird meeting. At th

is time, Sla

gle informed the Appellant that Howell had accept

ed the of fer, le aving h

im as the “ last man.”

Slagle t estified that t he App ellant was “shocked” that she had accepted the offer. The Appellant stated, “I ha d all their voices, . . . telling me basically by

signing this thing, telling me that they wantedto live.” The Appellant testified that Slagle again informed

him that “t

his w as the only

way [he] was g oing to li ve, . . . th is is the be st we’re going

to get.” The Appe

llant also said that h

e was af fected by h is own gu ilt, and he fe

lt “bad for the things that happ ened[.]” The Ap pellant still tried to “fight off” accepting the of fer. He claimedthat Slagle stated, “I don’ tknow how you think y ou’re going to live with yourself if you let littleCry stal Strug

ill die in the elect

ric cha ir.” Acc ording t

o the Appe

llant, Sla gle appeared more aggravated than be

fore. After further discussion, the Appellant dec ided to accept the offer.
On February

20, 199 8, Slagle, along w ith co-c ounsel, Woo dy Sm ith, retur ned for a fourth and final mee

ting with the Appellant. The

y r eviewe d the off

er, and t he Appell an t signed the plea agreement

and waiver of

rights forms. Smith had also prepared a ten-paragraph memora

ndum for the Ap pella nt to sign, which inclu ded th e foll owing:
3. I und erstand that Judge

Beckne r, rathe r th an a j ur y, will conduct a sentencing hearin g, and will then sentence me on the three (3) counts of murde r ando ne (1) count of attempted murder.
4. I understand that this plea barg ain agree ment includ es the removal of the possibility

of my rec eiving the death penalty

. Judge Beckner w ould sentenc e me to life in prison with parole or life in prison w ithout par ole. The re is no agr

eement w ith the State concerning the three (3) c ounts of murder and the one (1) count of a tte mpted murder to which I will plead g uilty, except that the State will no longer se ek th e d ea th pe na lt y. 5. I have been a

dvised by my

at torney s that, in th

eir opinio n, Judge B eckner will likely sentence me to life without parole, or, if he gives me the opportunity of parole, will likely run

the murder count sentences consecutively ( stack them on top of each other) so that the net effect would be the same, na tural life in prison. . . .
7. I ha ve discus sed this matter w ith my mother, my step-father, and my

former stepfather. I ha

ve discus sed it in de

tail with my

attorne ys. I have considere d it over two (2) full days since

I have been a

dvised of the offer.
8. I have rea

ched my dec ision without pr essure o r force or threa ts used ag ainst

me. I have agreed with the State’s plea bargain offer of my own free will, after giving the matter much thought. Part of the reason for my decision is for the protection of my-4-

friends , Dean Mullins and Cr yst al St urgill. Part of th

e reaso n for my

decision to accept the plea barga

in offer is for the protection of my own life. . . .
10. My a ttorney s have an swered

all of my questions, and I have a

full understanding of the nature of

the charges aga

inst me, of

possible defenses, of the State’s evidence to be usedagainst me, of my constitutional rights in this case, including the evidence and witnesses that I could bring forward, and I

have co nsidere d all of the se matters in reaching my

decision to accept the State’s plea barg ain offer.
Each paragraph

was initialed by the Appellant a nd the entire document was signed. The Appellant testified that he was reluctant to initial paragraph five . According to the Appellant, he initialed this paragraph after Sla gle inf ormed him t

hat para graph five was just a formality and

would not influence the judge’s decision. Slagle testified that he told the Appellant that this was his professional opinion of the likely sentenc e. Slagle and the Appellant wen

t on to disc uss the g

uilty plea procedures and the questions which would be asked of the Appel lant a t the p lea hea ring. The Appellant testified that Slagle t old him to lie

in respon se to the question, “Are y ou pleading guilty because y ou are in fact gu ilt y ?” Slagle d

enied the allega tion. That

e vening , th e Appellant and his co-defendants went before the trial court and entered g uilty pleas.
The Appellant al so testifi ed that he would not h ave pled

guilty absent pr

essure f rom his attorne ys, and he did so in order

to save th

e lives of his co-defendants. He stated that he respected the o pinions of his attorneys during the time they were

encouraging him to acce pt the plea offer

. Furthermore, the Appellant testified that, during his eleven and a half months in jail prior to the plea discussions and proceedings, he was placed in a

“suicide cell,” which kept him isolated from other inmates. The only persons he had contact with were his family members and attorney s. As the trial date approached, the Appellant became more stressed. A week and

half before trial, a nurse at the jail prescribed Xanax for him, a nd he took

the drug daily until the day he e

ntered his plea. He stated that the medication lower ed his stres s leve l but “mudd ied th ings up a little bit.” After the conclusion of the post-conviction hearing, the Appellant' s petition was denied, and this appeal followed.
ANALYSIS I. Voluntary Plea
The Appellan

t alleg es that hisplea wa s involunta rily entere d becau se (1) the “pack age de al” plea or contingent

plea offer was coercive, a nd (2) the group plea colloquy was improper. In order to succeed on a post-conviction claim, the Appellant be ars the burden of showing by clear and convincing evidence, the allegations set forth in his petition. Tenn. Code Ann. § 40-30-210( f) (1997).
To satisfy constitutional standards of due pr ocess, a guilty pl ea mu st be en te re d k no wi ng ly, in te ll ig en tl y, and voluntarily. Boykin v. Alabama , 395 U.S. 238, 243, 89 S. Ct. 1709, 1712 (1969). In order for a plea to be deemed knowingly and voluntar ily entered, an accused must be informed-5-

of the rights and circumstances involved and nevertheless choose to waive or relinquis h those ri ghts. State v. Mackey , 553 S.W.2d 337, 340 (Tenn. 1977); see also Tenn. R. Crim. P. 11. Boykin requires the intentional relinquishment or abandonment of the accused's rig ht against self-incrimination, the right to confron t one's a ccuser s, and the

right to a trial by jury

. Id. In evaluating the knowing and voluntary nature of a guilty

plea, the United States Supreme Court held, " The standard was and remains whether the plea represents a voluntary and intelligent

choice among the alternative courses of action open to the defend ant." North Carolina v. Alford , 400 U.S. 25, 31, 91 S

. Ct. 160, 164 (1970). In making this determination, the re viewing court must look to the totality of the ci rc umstance s. State v. Turner , 919 S.W.2d 3 46, 353 (T enn. Crim. App. 1995 ); see also Chamberla in v. S tate , 815 S.W.2d 534, 542 (Tenn. Crim. App. 1990), perm. to appeal denied , (Tenn. 1991). Indee d, a

court charged with determining whe ther

. . . p le as we re “v ol un ta ry” and “inte lligent” must look to various circumstantial factors, such as the relative intellige nce of the defendant; the degree of his familiarity with criminal proceedings; whether he was represented

by competent counse

l and had the o ppor tunity to confer with counsel about the option s availa

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

ges ag ainst him; a

nd the re asons for

his decis ion to pleadgu il ty, including a desire to avoid a

great er pena lty t hat migh t result f rom a jury

trial.
Blanken ship v. State , 858 S.W.2d 897, 904 (Tenn. 1993). A plea cannot be voluntary if the accused is “‘incompetent or otherwise not in control of his mental facilities.’” Id . (quo ting Brown v. Perini , 718 F.2d 7884, 788 (6 th Cir. 1983)). A. “Package Deal” Plea
The Appellant urges this co urt to ado pt I n re Ibarr

a , 666 P.2d 980 (Cal. 1983), which requires a court to consider, in addition to the totality of the circumstance s surrounding the plea, five specific factors when reviewing a “ package deal” plea . However, there is Tennessee ca se l a w directly on point. Contingent plea offers have been appr oved as an acceptable plea bar gaining method. See Parham v. Stat e , 885 S.W.2d 375, 382 (Tenn. Crim. App.), perm. to a ppeal den ie d , (Tenn. 1994); State v. Street , 768 S.W.2d 703, 711 (Tenn. Crim. App .), perm. to appeal denied , (Tenn. 1988); Hodges v . State , 491 S.W.2d 624, 6 27-28 (T enn. Crim. App. 1972). In Tennessee , a reviewing court, determining the vo lu nt ar in es s o f a “p ac ka ge de al ” p le a, mu st em pl oy a totality of the circumstances approach a n d, while several of the Ibarra factor s may be relevant in this determination, specific consideration of these five fa ctors is not required.
The f ollowin g principles are inherent within this State’s accepta nce of contingent plea agree ments. There is no constitutional right of an accused to plea ba rgain, and there is no duty of the State to engage in plea neg otiations. 22 C.J.S. Criminal Law § 366 (1989) (citing Wea therford v. Bursey , 429 U.S. 5 45, 561, 97 S. Ct. 837, 84 6 (1976); United States v. Pleasant , 730 F.2d 657, 665, (11 th Cir.), cert. denied , 469 U.S. 8 69, 105 S. Ct. 216 (1984)). The State, as well as the persons accused, is entitle d to have i ts rightsprotect

ed and, w hen seve ral per sons are

charg ed jointly

with-6-

a single crime, the State

is entitle d to have t

he fact of guilt determined and pu

nishment a ssessed i n a single t rial, unle ss to do so w ould unfa irly prejudic e the rig

hts of the defenda nts. Wood

ruff v. Sta te , 51 S.W.2d 843, 845 (Tenn. 1932). Concerning the totality

of the circumstances accompany ing the Appellant’s plea, the Appellan t contend s that his pl ea was in voluntar ily b ased upo n: (1) The package d

eal ag reemen t in this ca se requi

red all c o-defe

ndants to si gn on, when two ( 2) of the co-defendants were juveniles and could not receive any more serious sentence on the first degree murder counts than what they received as part of this deal. . . . The fact

that the juveniles w ere inc luded in th is agreement . . . did have an effec t on [the App ellant’s ] plea. . . . The last o f his reso lve to re sist acce pting thi s agreement

crumbled when he was told Karen Howell[, a juvenile,] had accepted the plea, in part, to save his life; (2) [The Appellant] testified repeatedlythat he was close to most of the codefenda nts (except f

or Jason B ry ant) and

had known

them for y

ears. . . . Face d with the prospect of being the last holdout and, thereby, possibly causing the deaths of the other adult co- defenda

nts, [the Ap

pellant] c ould do noth

ing but accept th e agreement.

. . . There was no mor

e substan tial fac tor in [the A

ppellant ’s] plea than the promises of leniency to the c o-defendants in this case; (3) [The Appellant] had been on what he termed “suicide watch” in isolation at the Greene County Jail for

almost a y

ear. Hisonly

visitors w ere his f

amily , his lawy

ers, and jail gua

rds. [He] ha

d little to n o contac t with any one else throughout the course of hi s j ai l s ta y; (4)

. . . [D]uring t

he cours e of much

of these plea neg otiations a

nd discuss ions with his counsel, he was under

the effect of the prescription medication Xanax . Alt hough [the Appellant] does nottestify that this had a str

ong ef fect upo n his thinking, he di d state that he beca me “more

muddled” and this c ertainly had impact on his will t

o resist pr essures ; (5) . . . [T]here were only two f ull days after the

plea offer w as made t o come to a decision; and (6) [The Appellant] was twenty-one (21) yea rs [old] when this occurred and had no previous experience with the criminal justice sy stem.
After review of

the Appellant’s pe

tition and t

he testimo ny a

t the post- convicti on hearing, thepostconviction court found the Ap pellant' s plea to

be voluntary

and explained its re asoning as follow s:-7- From all of the evide nce it is clear th at the pe

titioner w ould have

plead g uilty without what he describes as undue pressure from his attorneys. He did not want to die.
It is equally

clear th at petitio ner did not plead g uilty just to save the lives of co-def endants.
The petitioner , b eing very intelligent, paid a great deal of a ttention to what was going on in the case.
He was reluctant to take the plea but was not coerced. To petitio ner’s c redit he debated

all the issue s fully

in order to satisfy himself th at it was th

e right thing to do but, once he concluded it was the right thing, he never questioned it thereafter.
Over two weeks expired between the plea of guilty and the s entencing hearing and petitione

r never asked to withdraw the plea nor expressed any reservations about it.
This in spite of the fact tha t his attorneys had told him that in their opinion petitioner would serve the rest of his natural life in prison, either by consecutive life sentences or a life without parole sentence.
The transcript of the plea al locution clearly shows that the ple a was individualized as to the petitioner even though he chose to plead at the same time as the co-d efenda nts.
At the time the plea was entered on Februa ry 20, 1998, the peti tioner was drug fr ee. He h ad had no

medicati on for ove

r twenty four (24 ) hours.
He say s he thoug

ht the ple a was just

a “formality” but the r

ecord belies that assertion.
Petitioner answered all questions appropriately and assured

the court that he understood all his rights, the elementsof the of fenses, the possible punishments and the consequences of pleading g uilty. He assured the Court that he was satisfie d with the re pr es en ta ti on of

hi m b y hi s a tt or ne ys and that h e was ple ading g

uilty because he was guilty. . . .
He asked the court to accept his plea understanding every thin g in the allocution.-8- There was never any

thing to cause petitioner’s attorney s to believe that he was not compe

tent. They would never have allowed him to plead guilty if they thought he did not understand what he was doing.
In this instance, the record demonstrates that the Appellant was literate , educated, articulate, and int ell igent. The State had sufficient evidence to convict the Appellant, a nd his guilty pleas we

re basedupon the advice of competent attorney s. The Appellant’s attorney s both testified that they believedthe Appellant kne w th e consequences of his plea when he enter ed it. The Appellant and his at torneys had l engthy and thorough discussions concerning the terms of the offer, and the memorandum

signed b y the Appell ant indic ates tha t he fully understo od the con sequenc es of his pleas. Trial counsel testified that there was no evidence that the A ppellant’s reasoning abilities were affected by the Xana

x. Furthermore, the Appellant testified that he w as not und er the effects of Xanax at the time he entered his pleas

. The record indicates that the Appellant acc epted the offer primaril y due to his overwhelming desire to avoid the death penalty . That he had a s imilar desire t o all ow his co-defendants to do the same is a legitimate rea son to accept a plea agre ement and sugge sts the plea was voluntary and based upon an understanding of its consequenc es. Edward Dean Mull ins v. State , No. E2002-00730-CCA-R3-PC (Tenn. Crim. App. at Knoxville, Feb. 24, 200 3) , perm. to appeal denied , (Tenn. 2003); see also Cr ystal Ren a Strugill v . State , No. E2002-00385- CCA-R3-PC(Tenn. Crim. App. at Knoxville, Feb. 4, 2003), perm. to appeal filed , (Tenn. April 4, 2003); Natasha W

. Cornett v . State , No. E2002-00034-CCA-R 3-PC (Tenn. Crim. App. at Knoxville, Sept. 30, 2002), perm. to appeal denied , (Tenn. 2003). The fact that the plea offe r includedjuveniles does not render the Appellant’s plea involuntary . M oreover, the Appellant made no attemp t to withdraw his guilty plea during the two weeks that ensued between the plea and sente ncing hearing s. Under the facts of this case, the Appellant faced a s ig ni fi ca nt li ke li ho od of th e d ea th pe na lt y. The decision to plead guilty is he avily influenced by a defendant’s appraisal of the prosecution’s case agains thim and by

the appa rent like lihood of s ecuring

lenienc y should

a guilty plea

be offered

and accepted. Brady v

. United States , 397 U.S. 742, 756, 90 S. Ct. 1463, 1473 (1970). A guilty plea motivated by a desire

to accept the certainty

or probability of a lesser

penalty rathe

r than face a wider range of possibilities extending from acquittal to conviction and a higher pena lty authorized

by law is notinvalid under the Fifth Amendment. Id. at 751, 1470. Accordingly , we conclude that the plea bargaining process in this instance wa s not fundamentally unfair

. B. Group P

lea Colloqu

y
In addition, the Appellant argues the trial court failed to elicit responses from the Appellant sufficient to es ta bl is h t ha t t he Ap pe ll an t' s p le as of gu il ty w er e k no wi ng an d v ol un ta ry. Sp ec if ic al ly, he contends that, [b]ecause of the nature of the package deal plea a greement here , as well as the coerci veness appare

nt [in this ty

pe of plea] . . . , the trial court accepting the plea wa s bound to make further inquiry to de termine, “any

unduly coerc ive forces that might render such an involuntary plea .” . . . This extra inquiry should have taken pla ce at-9-

the time the plea was made by the co-de fendants. Particularized questions and answer s to each

individua

l should ha

ve been made to e ach co- defenda nt.
The nature and extent

of the co lloquy

betwee n the tria l court a nd the def endant, which must appear on the face of the transcript, is unclear. Moten v. State , 935 S.W.2d 416, 420 (Ten n. Crim. App.), perm. to appeal denied , (Ten n. 199 6) (ci ting Chamberla in , 815 S.W.2d at 540). However, "the record

must reflect both the advice litany by the trial court and some affirmative indication that the defendant unders tood his rights and th e ramificati ons of his gui lty plea thereon." Id. (quoting James Lucious Goodrum v. State , No. 1196 (Tenn. Crim. App. at Knoxville, July 30, 1991), perm. t o appeal denied , (Tenn. 1992); Glenn Be eler v. S tate , No. 01C01-9010-CR-00265 (T enn. Crim

. App . at Nas hvi ll e, S ept . 6, 199 1) ( Tip to n, J ., c onc urr in g)) . In other words, the advice litany a lone is insufficient. In State v. Neal , 810 S.W.2d 131, 13 7- 38 (Tenn . 1991), th e Tenne ssee Supr

eme Court, ad dressing the simulta

neous en try of guilt y pl eas by multiple de

fendant s, stated

that:
It is substantial compliance if the entire litany of rights and other required explanatory

informat ion is communic ated in

open cou rt . . . in the prese

nce of th eir respec tive attorneys, so long as the number involved is not so great as to make indi vidual understanding unlikely ; and provided that each defendant is addresse d indiv idually

t o establish on the record the understanding and a greement of each defenda nt.
See also State v. McClintock , 732 S.W.2d 268, 273 (Tenn. 1987) (every court is required to make adequa te persona

l inquiry of defe ndants to assure the validity of

all necessary

waivers; the taking of criminal pleas cannot be reduce d to a rote administr ative pr oceedin g). Fu

rthermor e, it has b een held that the ex isten ce of a “p ackage deal” plea imposes a special obligation on the trial court to c areful ly ascert ainthe voluntariness of each defendant’s plea. 21 A M
. J UR
. 2 D Criminal Law § 690 (1998) (citing United States v. Martinez-Molina , et al. , 64 F.3d 719, 733 (1 st Cir. 1995)). However, it has also been held that the trial court does not have to undertake a special voluntariness inquiry when faced with a package d

eal plea , and that

a thorough but standard inquiry into a defendant’s plea

is sufficie ntly pro bing of the v oluntariness of the “package de al” plea. Id . (cit ing United States v. Holland , 117 F.3d 589, 594 (D.C. Cir. 1997); State v. Danh , 516 N.W.2d 539, 542 (Minn. 1994)).
In this case, the transcript of theguilty plea he aring indicates that the trial court questioned t he Appellan

t and his five co-defendants as a g roup and received group re sponses, which are depic ted i n the tra

nscript o f the hea

ring as , “All def

endants a nswere d affirmatively

” or “All defendant s answered negatively .” The court only deviated from this procedure once. I ndividual answers were only g

iven in response to the following question, “Are y ou all ple ading g

uilty because you are g uilty?”
In Boykin , the Supre

me Court st

ated the following : What is at stake for an accused facing death or i mprisonmen t demands the utmost solicitude of which

courts are capable in canvassing the matter with the accuse d to-10-

make sure he has a full understanding of what the p lea conn otes and o f its consequence. When the judge discharges that function, he leaves a record

adequa te for any re view that may be la ter sought . . . and forestalls the spin-off of collater al proceedings that seek to probe murky memories. Boykin , 395 U.S. 243-44, 89 S. Ct. at 1712-13. The trial court did not receive individual, identified responses to each question. Boykin 's concern for probing " murky memories" applies t o this case. Glenn Beeler , No. 01C01-9010-CR-00265 (Tipton, J., concurring). “Rare is the day that we . . . can discern, verify

or subseq

uently review a record

which is ba sed upon a

nodding mass of de

fendant s or upon a chorus of answers.” Id . Accordingly , we conclude that the g uilty plea hea ring in t his case did not meet the requirements of Nealand Boykin

. Having concluded that the guilty plea hea ring wa s Boykin -deficient, ou r f inal inquir

y is whether that err or is har mless beyond a re asonable doubt. Neal , 810 S.W.2d at 138 (citi ng Chapman
v. California , 386 U.S. 18, 24, 87 S. Ct. 824 (1967)). We conclud e that th e record supports the testimonythat the petitioner knowingly and voluntarily waived his rig hts guaranteed under Boykin

. As pr ev io us ly noted, the record demonstrates that the Appellant was literate, e ducated, articulate, and intel ligent. The post-conviction court noted that the Appellant “paid a g reat deal of attention to what was going on in the case. .

. . [H]e debated all the issues fully in order to satisfy himself that it was t he righ t thing to

do but, onc e he concluded it was the r

ight thin g, he ne

ver ques tioned it therea fter.” Dur ing all stages of these proceedings, the Appellant was represented by competent counsel who were experienced in capital defense

. The Appellant’s attorney s both testified that they believedthe Appellant knew the consequences of his plea whe n he ent ered it. T rial counsel discussed with the Appellant his rights and the plea dialogue. Furthe rmore, the Appellant signed a memorandum

stating that he wa s aware

of his constitutional rights. Therefore, we hold that his pleas of guilty wer

e volun tari ly a nd in te ll ig en tl y en te re d a nd th at an y Boykin deficie ncy was har mless bey ond a rea sonable d

oubt.
II. Ineffective Assistance Second, the Appellant contends that he was denied effective assistance of counsel b ecause trial counsel failed to challenge, and eve n encouraged acce

ptanc e o f, the “package dea l” plea. Specific ally , the Appe

llant con tends tha t trial counsel
did no research

regarding packa

ge deals and plea

agreements; they

filed no written objections to this type of plea offe r; they filed no

motions to withdraw the plea; they conducted

no legal research af

ter the plea was made, but before the appea l was taken; they did not ra

ise this issue in the appellate courts on direct appeal; and they never askedfor further inquiry by t he court to determine whether this plea was voluntary and f reel y made b y [ the A

ppel lant]

. Once a guilty

plea hasbeen en

tered, e ffectiv eness of

counse l is relevant only to the e xtent that it affects the voluntar

iness of the plea. In this respect, such c laims of ineffective assistance-11-

necessa rily implicate the principle that guilty pleas be voluntarily a

nd intelligently made. Hill v. Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 369 (1 985) ( citi ng North Carolina v. Alford , 400 U.S. at 31, 91 S. Ct. at 164)).
To succeed in a challen ge for ineffe ctive as sistance

of counse

l, the App ellant mus t demonstr ate that c ounse l's re pr es en ta ti on fe ll be lo w t he ra ng e o f c om pe te nc e d em an de d o f a tt or ne ys in criminal cases. Ba

xt er v. Ros e , 523 S.W.2d 930, 936 (Tenn. 1975). Under Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984), the Appellant must establ ish (1) deficient repres entation and (2) p

rejudic e resulting from

the defi ciency . In th

e context o f a guil

ty plea, to satisfy the second prong of Strickland , the Appellant must show that "thereis a rea sonable probabil ity that, but f

or counse l's err ors, he would not have pleaded guilty and would have insisted on going to trial ." Hill v. Loc khart , 474 U.S. at 59, 106 S. Ct. at 370; see also Walto n v. State , 966 S.W.2d 54, 55 (Tenn. Crim. App. 1997).
Becau se we have previously determined that no reversible error occ urr ed from the circumst ances su rroundin g the Ap

pellant’ s guilty

plea, trial counsel was not ineffective for failing to challenge the “packag e deal” plea or the group c olloquy. Moreover, we observe that

trial counsel testified that he thoroughly reviewed all aspects of the case with the Appe llanton nume rous occasions throughout the course of his representation. The post-conviction court obviously credited the testimony of trial counsel that he did not overr each or place undue influence upon the Appellant in order to

get him to

plead guilty. B ecause we do not revisit the issue of credibility on appe al, we defer to the post-conviction court's ruling in that rega rd. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). We conclude that the record ful ly supp orts the finding of the post-conviction court that the Appellant

has not proven by cle ar and convincing evidence that he received ineffective assistance of counsel. This issue is meritless.

III. Failure of Indictment to Allege Capital Offense
Fi na ll y, the Appellant argues, pursuant to Apprendi v. New Jersey , 530 U.S. 466, 1 20 S. Ct. 2348 (2000), t

he indict ments are unconstit utional a nd his life

se n tences without the possibility of parole are invalid because the agg ravating circumstances, relied upon by the State i n seeking the death pena lty , wer e not char ged in the indic tment . Wenot e that a guilty plea conviction is based entirely upon the p lea, and

the plea constitute s a conviction in and of itself and

is conclusive. Beaty v. Neil , 467 S.W.2d 844, 847 (Tenn. Crim. App. 1971). As a general rule, an ac cused who enters a plea of guilty

to a criminal offense waives the right to appeal. Hobbs v. S

tate , 73 S.W.3d 155, 158 (Tenn. Crim. App. 2001), perm. to appeal denied , (Tenn. 2002). The Appellant's appeal does not fallwithin any exception. See Tenn. R. Cr im . P . 3 7( b) ; T en n. R. Ap p. P. 3( b) (2 ). A p le a o f g ui lt y, which is entered voluntar ily, knowing ly, and intelligently , waives all prior non-juri sdictiona

l, procedu ral, and constitutional defects in the proceedings. State v. McKissack , 917 S.W.2d 714, 716 (Tenn. Crim. App. 1995). As discussed above, there is nothing

in the re cord to su

pport a conclusion that the pleas werenot voluntarily and knowingly entered. Theconstitutional issue presented was wa iv ed by t he Ap pe ll an t’ s p le as of gu il ty.-12-

Regar dless of waiver, the issue of whether the Apprendi hold ing is appli cable t o Tenn essee's capital sentencing procedure has recently bee n addressed in State v. Dellinger , 79 S.W.3d 458, 466- 67 (Tenn.) , cert. denied , 123 S. Ct. 695 (2002), State v. Richard Odom , No. W2000-02301-CCA-R3- DD (Tenn. Crim. App. at Jackson, Oct. 15, 20 02), appeal docketed , No. W2000-02301-SC-DDT-DD (Tenn. 2002); and State v. G dongalay P. Berry , No. M2001-02023-CCA-R3-DD (Tenn. Crim. App. at Nashville, Apr. 10, 2003), appeal docketed , No. M2001-02023-SC-DDT-DD (Tenn. 2003), and found to be meritless.
In Apprendi , the United States Supreme Court struck down a New Jersey hate crime statute, which permitted the judge to enhance the defe ndant's sen tence ab ove the maximum range if the crime was racially

motivated. Apprendi , 530 U.S. at 496-97, 120 S. Ct. at 23 66. The Court held that:
Other

than the fact of a prior conviction, any fact that inc reases the penalty

for a crime beyond the

prescr ibed statu tory maximum must

be submitted to the jury, and prov e d beyond a re asonable doubt. With that exception, we endorse the statement of the rule set forth in the concurring opinions of [ Jones v. United States , 526 U.S. 227, 119 S. Ct. 1215 (1999)]: “It is unconstitutional for a legislature to remove fr om the jury the assessment of f acts that increase the prescribed ra ng e of penaltie s to which a crimina

l d efenda nt is exposed. It is equally clear that such facts must be established by proof be

yond a rea sonable doubt.” Apprendi , 530 U.S. a

t 490, 120 S. Ct . at 2362- 63 (qu otin g Jones , 526 U.S. a t 252-53) (footnot

e omitted). The Tennessee Supreme Court, in Dellinger , 79 S.W.3d at 466-67, explained why Apprendi is not appl

icable to a capita l case in Tenness ee:
1. . . . The Apprendi holding applies to enhancement factors other than prior convictions. . . .
2. The dea

th penalt y is within the

statuto ry range of punishment prescribed by the legislature for first degree murde r . Tenn. Code Ann. § 39-13-202(c)(1) (Supp. 2002)

. The Apprendi holding applies only to enhance ment factors used

to impose a sentence above the statutory ma

ximum. Apprendi , 530 U.S. at 481, 120 S. Ct. at 2348. . . .
3. District attorneys in Tenne ssee are required to notify capi tal de fendant s no less than thirty day s before trial of the intent to seek the deat h penalty and must specify the aggravating circumstances upon which the State intends to rely during senten cing. Tenn. R. Cr

im. P. 12.3(

b). Rule 12.3(b) therefore satisfies the requireme nts of due process and notice. . . .
4. Te nnessee's capital sentencing procedure requires that a jury make find ing s regarding the statutory ag gravating circumstance s. Tenn. Code Ann. § 39-13- 204(f)(1), (I) (Supp. 2002). The Apprendi holding applies only to sentenc ing-13-

procedures under which judges sentence the def endants. Apprendi , 530 U.S. at 476, 120 S. Ct. at 2348.
5. Tennessee's capital sentencing procedure requires that the jury find any statutory aggravating

circumstance bey ond a reasonable doubt. Tenn. Code Ann. § 3 9-13- 204(f)(1), (I) . The Ten

nessee s tatutes th

erefor e comply with the "bey

ond a rea sonable doubt" st an da rd re qu ir ed by Apprendi

. Apprendi , 530 U.S. at 476, 120 S. Ct. at 2348. Dellinger , 79 S.W. 3d at 466-67. In accordance with Dellinger , we conclude that theprinciples of Appren di do not apply to Tennessee ’s capital sentencing procedure . “Neither the United States Constitution nor th e Tenne ssee C onst itut ion re quire s that the S tate c harge i n the indictment the aggravating

factor s to be relied upon b y the State du ring se ntencing in a first

d egree m

urder prosecution.” Id. at 467.
CONCLUSION Finding no reversible error, we affirm the dismissal o f the App ellant’spetition for postconviction relief.

___________________________________ DAVID G. HAYES, JUDGE