# FILED
January 5, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON SEPTEMBER 1997 SESSION

FREDDIE KING, ) ) APPELLANT, ) ) No. 02-C-01-9611-CR-0 0433 ) ) Shelby County v. ) ) Leonard T. La fferty, Judge ) ) (Post- Convic

tion Rel ief) STATE OF TENNESSEE, ) ) APPELLEE. )

FOR THE APPE LLANT: FOR THE APPELLEE: James A. Cohen John Knox Walkup Attorney at Law Attorney General & Repor ter 200 Jefferson Avenue, Suite 925 500 Charlotte Avenue Memphis, TN 38103 Nashville, TN 37243-0497 Sarah M. Branch Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 William L. Gibbons District Attorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103 Karen Cook Assistant District A

ttorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103

OPINION FILED:_____________________________
AFFIRMED Joe B. Jones, Pre siding Judge2 

## O P I N I O N

The appellant, F reddie King (petitione r), appeals

as of right

from ajudgment of

the trial court dismissing his action for post-conviction relief following an evidentiary hea ring. In this court, the petitioner contends (a) his guilty pleas

were not vol untarily, intellige ntly, and understandingly enter ed and (b) thetrial court failed to advise hi m of his constitutional right against self-incrimination before questioning him duri n g the submission hearing . After
a thorough review of the record, the briefs submitted by the parties, and the law governi ng the issues presented for review, it is the opinion of this court that the judgment of the trial court should be affirmed. The petitioner was indic ted by the Sh elby Count y Grand Jur

y for nume rou s offenses. These offenses could not be consolidated for trial. Initially, the petiti oner was tried, convicted, and sentenced to c onfinement for six (6) years for the offense of theft. He appealed his conviction and sentence. This court affirmed the judgment of thetrial court. State v. Fred L. King , Shelby County No. 02-C-01-9 206-CR-00128, 1993 WL 270620 (Tenn. Crim. App., Jackson, Jul y 21, 1993). The petitioner then f iled an actio n for postconviction relief attacking the jur y conviction for thef

t. He cl aimed he was denied his constitutional right to the effective ass istance of counsel. The trial c ourt denied relief after
an evidentiary hearing. This court affirmed the judgment of the trial cour t. Freddie L. King
v. State , Shelby County No. 02-C-01-9501-CR-00011, 1995 WL 544 720 (Tenn. Cri m. App., Jackson, September 13, 1995). The petitioner stood charged with three counts of theft over the value of $500, Class E felonies, two counts of ag gravated ro bbery, Class B felonies, two counts of especially aggravatedrobbery, Class A felonies, one count of aggravated rape, a C lass A felony, and
one count of burglary, a Cl ass D fel ony . On November 2, 1992, the peti tioner entered pleas of guil ty to al l of thes e offenses. The plea agreement provi ded that the petitioner would be sentenced as follows: tw enty-four (24) years for the three Class A felonies, twelve (12) years for the two Class B felonies, and tw o (2) years for the Class D and Class E felonies.3 The petitioner filed an action for post-conviction rel ief attacking the convictions for the offenses included in the plea agr eement of November

2, 1992. The trial court found the grounds alleged in the petitions were wai ved bec aus e the petitioner did not incl ude these grounds in the prior action for post

-convi ction r

elief. Therefore, the court summarily dismissed the petitions. The petitioner appealed as of right to this c ourt. In an opinion by Judge David G. Hayes, this court reversed th e judgment of the trial court and remanded the cause to the trial court for an evidentiary hear ing. Fred L. King v. State , Shelby County No. 0 2-C-01-9 412-CC-00280, 1995 WL 695134 (Tenn. Crim. App., Jac kson, November 22, 1995). The trial court conducted an ev identiary hearing. In an excellent findings of fact and conclusions of law, the trial court denied the petitioner relief from his convictions.

I.

When the trial court has conduc ted an evidentiary hear ing to permit a petitioner to ventilatethe grounds raised in suppor t of an action for

post-conviction relief, the trial court’s f indings o f fact are afforded the weight of a jur y verdict. Dixon v. State , 934 S.W.2d 69, 71-72 (Tenn. Crim. App. 1996); Teague v. State , 772 S.W.2d 932, 933- 34 (Tenn. Cri m. App. 1988), cert
. denied , 493 U.S. 874, 110 S.Ct. 2 10, 107 L.Ed.2d 163 (1989). Conseque ntly, this court is bound by the trial court’s findings of fact unless the evidence adduced at the hearing preponderates against the trial cour

t’s findings. Butler

v. State , 789 S.W.2d 898, 899 (Tenn. 1990); Adkins v. State , 911 S.W.2d 334, 347 (Tenn. Crim.App. 1994), per . app . dismissed (Tenn. 1995). There are severa l wel l-established rules w hich govern appellate review in postconviction cases. As this court said in Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App.), per . app . denied (Tenn. 1990):

First, this Co urt cannot reweigh or r eevaluate the evidence; nor can we substitute our i nfer ences for those drawn by the trial judge. Second, questions concerni ng the credibility of the witne sses, the weight and valu e to be given their tes timony , and the factual issues raised by the evidence are r

esolved by the trial jud ge, not this Court. Thir d, the appellant has the burden in this Court of illustrating why theevidence contained4 in the record preponderates agai nst the judgment entered by the trial judge.
This court will now

proceed to consider the merits of the pet itio ner’s contentions. In doing so, this court will apply the aforementioned princi ples governing appel late review in post-conviction acti on s to determine whether the ev idence adduced at the hearing preponderatesagainst the trial cour t’s findings of fact. See Clenny v. State , 576 S.W.2d 12, 14 (Tenn. Crim. App. 1979), cert
. denied , 441 US. 947, 99 S.Ct. 2170, 60 L.Ed.2d 1050 (1979). II.

The petitioner contends the gui lty pleas he entered on November 2, 1992, did not comport with the United States Supreme Court’s decision in Boykin v . Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). He arg ues his pleas of guilty were not vol untarily, intelligently and u nderstandingly entered because: (a) he did not discuss th e entryof a guilty plea until the morning of Novem ber 2, 1992 , (b) “his mind and abili ty to comprehend were so shroudedby fear and intimidation he was unab le to understand the consequencesof his actions,” (c) he was not advised of the minim um and maximum sentences which could be imposed for each offense, and (d) the assistant district att orney general failed t

o articulate a s ufficient factual basis fo r the the

ft offenses b ecause the amount of the property and the venue of the offe nses was not stated in the stipulated facts.

A.

The petitioner contend s he did not discuss the nature of a guilty plea with his attorney until the morning of Nove mber 2, 1992, the day certain Class A felonies were set fortrial. First, the petitioner had previously indic ated he did not want to accept the offer made by the state and opted for a tri al. Second, the petitioner’s counsel discussed these matters with the petitio ner prior to the morning of November 2, 1992. The petitioner stated he d id not want t o plead guilty to the offenses i n question because he was inno cent. Neve rtheless, d efense counsel advised the petitioner of his5

right to a trial by jury

and his right to plead g uilty to the offenses. Counsel related the offer of settlement made by

the assistant district

attorney general, and the petitioner rejected the offer. Counsel advised the petitioner to let him know i f he had a change o f heart and wanted to plead gui lty. On the morning of November 2, 1992, defense counsel was prepared to go to trial. He had subpoenaed the alibi witnesses named by the petitioner. Coun sel had interviewed each witness. T h e witnesses did not suppor t the petitioner’s defense of alibi . Counsel advised the petitioner of w hat the witnesses had said

. The prospective jurors were o utside the courtroom. The trial w as ready to commence. The petitioner told couns el he wanted to pleadguilty andaccept the state’s offer for a ll of the off enses -- a package deal. Defense counsel obtained the documents necessary to enter the pleas of guilty. He completed the documents, gave them to the petitioner, and instructed him to read the documents. Later, defense counsel sat beside the petitioner , explained each item i ncluded in t he waiver of rights for

m t o the petitioner, and asked him if there wa s anyth ing he did not understand. The petitioner stated he understood these rights, andknew he would be waivi ng these rights if he enter ed pleas of guilty. T he petitioner testified he had been convicted of several crimes in the pa st . O n each occasion he entered a plea of guilty. The

trial court found defense counsel had fu lly explained the nature of the proceedings and the rig hts he was waivi ng; the petitioner was adequately apprised of the requisite information. The court further found the petitioner was also aware of this informatio n from entering several guilty pleas in the past.

B.

The petitioner contends “his mind and ability to comprehend w ere so shrouded by fearand intimidation that he was unable to understand the consequ ences of his actions.” Defense counsel testified the petitione r understood the nature of the proc eedin gs and preciselywhat was taking place. The transcript of the submi ssion hear ing support s defense counsel’s observations. The question which must be decided is what caused the6

“fe ar” and “nervousness” the petitioner alleged he ex perienced on the mor ning o f November 2, 1992. The petitioner testified he though he was prepared to go to trial. However, the more he discussed the matter, his fear increased in intensity

. According to the

petitioner, what “they [the alibi witnesses] would say wasn’t exactly whatI wanted. . . , what w as needed to be sai d that would ben efit me.” He was acutely aware there was a st rong likelihood the tr ial judge would order

all of the sentences tobe served consecutively. M oreover, the petitioner was fully

aware he qualified as

a Range II multiple offender as to the Class D and E felonies. He was also fully aware the state could
use his prior convictions to impeach him if he opted to testify in support of his defense; he understood the severe consequences of the jury being adv

ised that he had a prior rec ord. During cross-examination, the petitioner admitted these were the reasons he did not want to face a jury and take a chance of being conv icted. The plea agreement prov ided th at the petitioner would be t reated as a Range I offender for sentencing purpose s notwithstanding

he qualified as a Range II offender for some of the offenses; all of the sentences were to beserved concurrently . Based upon the testimony in the record, these concurrent

sentences were to be ser ved consecutively

to the six (6) ye

ars he received when he was tried for the theft offense. The petitioner testified he was i ntimidated by Judge Joseph B. McC artie, now retired. Judge McCartie w as the judge who questioned the petitioner regarding his desire and reasons for pleading gui lty. Ultimately J udge McCartie accepted the petitioner’s pleas of guilty and sentenced him in confo rmity with the plea agreement. The petitioner expressed the view that Judge McCartie did not ask him questions, but interr ogated him. According to the petitioner, h e merely re sponded “Yes, sir” and N o, sir” to the questions so he could return to his s eat behind counsel’s table. It is apparent the trial cour t di d not bel ieve the testimony of the petitioner in this regard. The court state d in its findings of fact it could not be determined from th e transcript of the submission hearing if Judge McCartie did in fact inti midate the petitioner as he contended.7 C.

The petitioner

also contend s he was not advised of the minimu m a nd maximum sentences which could be imposed for ea ch offense. T he petitioner is mistaken in this regard. First, defense cou ns el testified he had previous ly advised the petiti oner of the elements of the offenses, the facts which the stat e would have to

prove, and the range of the sentences for each offense. The petitioner acknowledged during

cross-examination defense counsel had advised him of the mi nimum and m aximum sen tences for each offense. Second, the submission hearing transcript clearly shows the trialjudge advised the petitioner of the minimum and maxi mum sentences for each offense as well as the amount of the fine prescribed by the statutes. Assuming arguendo

the trial judge accepti ng the petitioner’s pleas of guilty did not advise him of the mini mum and maximu m p enalties fo r the offenses to which he w as pleading guilty, the pet itioner would n ot be ent itled t o relie f f rom h is convictions or sentences. This requirement is not constitutionally mandated. See Blankenship v. State , 858 S.W.2d 897, 905 (Tenn. 1993). Only constituti onal issuesmay be litigated in ac tions forpost-conviction rel ief. Tenn . Co de Ann. § 40-30-203 (1997 Repl.) . This court has previouslyheld that a petitioner is not entitled to relief on this precise ground. See Dexter Johnson v. State , Hamilton County No. 03-C-01 -9503 -CR-00088 (Tenn. Crim. App. , Knoxville, February 6, 1996); Cedri c D. Mitchel l v. State , Shelby County No. 65 (Tenn. Crim. App., Jackson, Apri l 10, 1991), per . app . denied (Tenn. September 9, 1991).

D.

The petitioner contends that the assistant distri ct attorney general fail ed to articulate
a sufficient factual basis for the thef t offenses because (a) he did not state the value of the property in question and (b) he di d not state the venue where the offenses were committed in the stipulated facts. This contention is not suppo rted by the facts. As previously stated,defense counsel advised the petitioner of the elements of each offense that the state would have to pr ove beyond a reasonable doubt if he opted to go to8

trial. Counsel also advised the petitioner of the evidence the state could use to prove each element. The defendant was aware the pis tol used during the rape had been tested and
semen had been found on the pistol. The petiti oner admitted defense counsel prov ided this advice during th e submis sion hearing. Defense counsel also testified he took this course of action. The record of the submission hearing reveals that the assistant distri ct attor ney general related the requisite fact s necessary to

comply with the

requirements for describ ing the stolen property and the venue where the crimes took place. He stated the petitioner
was entering pleas of guilty to theft in e xcess of $500 when announcing t he ple a agreement. The property stolen, as described by the assistant district attorney general, would seldom, if ever, have a value below $500. Some of thes e offenses had a common thread -- a motel where cer tain property was found. The assistant district at torney general stated the motel was located in Shelby County, Tenness ee. Defense counsel stipulated to these facts. If the petitioner was

aggrieved by this aspect of the submission hearing, he should have objected when this occurred . In the al ternative , he shou ld have appealed as of right following the entry pleas. III.

The petitioner contends he is entitled to post-conviction relief becaus e the judg e accepting his guilty

pleas failed to advise him of the priv ilege against self-in crimination prior to questioning him during the submission hearing. He relies upon the supreme c ourt’s decision in State v. Montgomery , 840 S.W.2d 900 (Tenn. 1992). The state contends the petitioner

was aware of and understo od the privilege against self-incrimina tion. Thus, any
error in failing to advise the petitioner regarding the privilege w

as harmless. The trial court found the petitioner was aware of the privilege before the submission hearing commenced. The petitioner was not a stranger to the criminal ju stic e system. He had entered pleas of guil ty to cr

iminal offenses i n the pas t. He w as tried for a th eft offe nse shortly before he entered the pleas he now attacks. He admi tted he was aware of the privilege against self-incrimina tion. In fact h e described how an d why he invoked the pr ivilege9

during the theft trial. He stated he invoked the priv ilege because he

did not want the jury to know he had a prior rec ord of criminal convictions. Moreover, th e petitioner had discussed the privilege ag ainst self-incrimination with his attorney p rior to the entry of

the guilty pleas. It is undisputed the United States Su preme Co urt and ou r supreme court have held
a trial c ourt sho uld advise the accused of the privil ege against self-incri mination at the commencement of the submission hearing. See Brady v. United States , 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); State v. Montgomery , 840 S.W.2d 900 (Te nn. 1992); Johnson v. State , 834 S.W.2d 9 22 (Tenn.1 992). However, the failure to admonish the accused in this regard does not,as a matter of law, render a g uil ty plea constitutionally infirm. If it can be shown the accused had been adv ised of the privilege by

his attorney or
w as aware of the privilege due to prior encounters with the criminal justic e system, th e failure of the trial court to fulfill this duty is classified as harmless error. Johnson , 834 S.W.2d at 926. As previousl y stated, the petit ioner wa s awa re of the privi lege ag ainst selfincrimination. Counsel in the theft case had explained the pr ivilege to the petitioner. The petitioner

invoked the privil ege. The petitioner’s attorney had advised the petitioner of the privilege prior to the commencement of the subm ission hearing. Furthermore, the tria l court explained the privi lege in the contex t of t rial proceedings. Therefore, this court concludes the failure of the judge conducting the submission hea rin g w as harmless beyond
a reasonable doubt given the informat ion posse ssed by the petitioner pr ior to the submission hearing. CONCLUSION

The tria l court ruled adverse ly to the petitioner’s claims, and the court gav e a detailed, factual basis for each ruling. This court concludes the evidence conta ined in the record does no t prepo nderate against the findings of fact made by the trial court. Thus, the judgment of the trial court is affirmed.

______ _____________________ ________________

_ JOE B. JONES, PRESIDING JUDGE10

CONCUR:

______________________________________ DAVID H. WELLES, JUDGE

______________________________________ JOE G. RILEY, JU DGE