# FILED
June 18, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT JACKSON MARCH 1999 SE SSION

MARIO PERKINS, ) ) Appellant, ) No. 02C01-9805-CR-00127

) ) Shelby County v. ) ) Honorable Bernie Weinman, Judge ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. ) For the Appellant : For the Appellee : Randall B. Tolley Paul G. Summers 242 Poplar Avenue Attorney General of Tennessee Memphis, TN 38103 Michael E. Moore Solicitor General J. Ross Dyer Assistant Attorney Gener al of Tennessee 450 James Robertson Parkwa y Nashville, TN 37243-0493 William L. Gibbons District Attorney General and Alanda Horne Assistant District A

ttorney General 201 Poplar Avenue Memphis, TN 38103

OPINION FILED:____________________

AFFIRMED Joseph M. Tipton Judge1 Although t he petit ion for post -convict ion rel ief refer s to both of the peti tioner’ s convicti ons upon guilt

y pleas, the peti tioner’ s proof and argument and t he trial court’s de cision f

ocus only on the plea to second degree murder. We will revi ew that deci sion. 2 O P I N I O N

The petitioner, Mario Perk ins, appeals as of right from the Shelby County Criminal Court’s deni al of his petition for post-conv iction relief. The petitioner was originally charged with aggrava ted robbery and first deg ree murder, but he pled guil ty to aggravated robbery

and second degree murder purs uant to a plea bargain. He w as sentenced as a Range I, standard offende r to eight years for the aggravated robbery conviction and as a Rang e III, persistent offender to forty -five years for the sec

ond degree murder conviction. The sentences were ordered to be served concurrently in the custody of the Department of Cor rection. The petitioner now presents the following issues f or our revie w:

(1) whether his gui lty plea 1 was knowing and v oluntary; and (2) whether he receiv

ed the ineffective assistance of counsel. We affirm the trial c

ourt’s denial of post- convic

tion re lief.
At the evidentiary hear ing, the petitioner testi

fied that he was sixteen a t the time he entered his guilty plea. He said he met with his attorney one time before the guilty plea heari ng. He said he agreed to a sentence as a Range III offender because the trial judge thr eatened to sentence him to life without parole if he did not make a de cision an d plead gu ilty that d ay. He said he though t he would s erve fort y-five percent of his sentence, not eig hty-five percent. He stated that he did not remember having any discussions with the trial court or with his attorney regarding the offense being a Class A felony. He said the trial court told him that the state woul d try the aggravated robbery

case first and if he was con victed, they woul d use that conviction against him in the murder c ase.3 On cross-examination, the petitioner admitted that he confess ed to killing the victim. He said he knew he would be facing the possibility of life without parole if he went to tri al. He said

his attorne

y spoke with him eve ry time he w as in court and came to see him once in jail to di scuss the case. He stated that he did not understand the judge’s explanation of his sentence because the judge told him two dif ferent things. He said that it was not unti l after he signed the plea ag reement that the judge told him that a jury would decide

his sentence if he went to tr ial, not the judge. He admitted that he told the judge that he did not h ave any questions and that his attorney had done everything he w

anted him to do. He testified that a fter he had time to think about it, he wished he h ad not en tered th e guilty ple a becaus e he did no t want to se rve forty-f ive years as a Range III offender. He admitted that on the da y of the plea hearing, he did not want to go to trial

and face the possibility of l ife without parole.
The petitioner’s father, Randy Perkins, testified that he as ked the judge at the plea hear

ing how th e petitioner

could recei

ve a Range

III sentence

as a first-

time offender. He testified that the judge told him that the state woul d try the aggrav ated robbery case first then use that conviction against the petitioner in the murder case. He said the judge explained that if the petitioner was found guilty at trial, he would sentence him to life without parole. Mr. Perkins t estified that a trial court clerk spoke to them outside the courtroom during a recess and told them that they should not go to trial because of what the j udge would do. He stated that the clerk told them that th e judge would be very

hard on the petitioner at tr ial. He testified that he re membered the judge indicating that a decision on the plea had to be made tha t day or the state would go to trial and the offer woul d be revoked.

On cross-examina tion, Mr. Perkins a dmitted that he did not tell th e judge about his convers ation with the cou rt clerk. He said he m ust have lied to th e judge when he sa id he was sa tisfied with the re present ation of the petit ioner’s a ttorney.4 The petitioner’s attorney testified that he discussed the s tate’s offer with the petitioner and the possibi lity of success at tri al. He said he believed he shared discovery with the petitioner. He stated that he visited the petitioner several times in jail and spoke with the petitio ner’s parents several times. He said that he ex plained to the petition er the sta te’s off er of ple ading guil ty to secon d degree m urder with a forty-f ive year sentence as a Range III offender and that he asked the judge to explain it again at the plea hearing. He state d that because he was uncerta in whether the petitioner understood what he was do ing, he also explained the offer to the petitioner’s parent s and let them discuss it w ith the petitioner. He sai d he discussed with the pe titioner the ramifications of going to tr ial, but he never threatened or coerced the petitioner into pleading guilty. He said the prosecutor tol d him that the state would tr y the aggravated robbery case first then us e that conviction to get a sentence of life without parol e in the murder case. He said he ex plained this to the petitioner and his family. He stated that at the time the pleas were entered, he was satisfied that both the p etitioner and his family understood the plea agr eement.

On cross-examination, the attorney testified that he di d not present the state’s offer to the petitioner immediate ly because he thought it was a bad offer. He said he tried to get a better offer from the state, but he took the offer to the pet itioner when he was unsuccessful. He said he explained to the petitioner that his options were to either accept the agreement or to go to trial. He said he did not believe that the state filed a notice of intent to seek enhanc ed punishment, and he said the petiti oner did not have a criminal record. He testified that he did not recall the judge putting any pressure on the petitioner to accept the p lea agreement. He said he bel ieved the judge decided that once he set a trial date, the petitioner could not chang e his mind and try to acce pt the plea because the offer would no longer stand. He adm itted that the state usually made that determination. He said it would have been point less to request additiona l5

time for the petitioner to consi der the plea because the petition er and his family had already agreed to accept it.
The trial court denied the petition. It found that the petitioner freely and voluntarily entere

d his guilty plea after

being fully advised

of his rights by his

attorney and by the court. It also found that the advice giv en and the services render ed by the petitioner’s attorney were within the r ange of competence demanded of an attorney i n a criminal case.

I. GUILTY PLEA

The petitioner contends that his plea was not voluntar y because (1) he was pressured and coerc ed by the trial court i nto accepting the plea agr eement, (2) he was confused by the trial court’s explanation of his sentence, and (3) the trial court did not require the state to fil e notice of its intent to seek enh anced punishment as required by Tenn. Code Ann. § 40-35-202(a) . The state contends that the petiti oner’s plea was knowing and voluntar

y and that the trial cour t painstakingly and ac

curately explained t

o the petitioner and his parents the ramifications of pleading g uilty and the ramifications of going to trial. The stat e argues that it was not required to submit noti ce of intent to seek enhanced punishment.

The transcript of the guilty plea hearing reflects that the trial court thoroughly explai ned to the petitioner the consti tutional rights he w

as waiving by pleading guilty and that the trial court compli ed with Rule 11, Tenn. R. C rim. P. See Johnson v. State , 834 S.W.2d 922 (Tenn. 1992); State v. Neal , 810 S.W.2d 131 (Tenn. 1991). Furthermore, nothing in the record indicates that the petitioner was co erced or threatened by the trial c ourt. The petitioner asserts that the trial court thr

eatened to sentence him to life without parole if he elected to go to t rial. However,at the plea hearing, the trial cour

t specifically stated, “ Now, if you’re conv icted of anything less than6

murder in the first degree, I would sentence you. And if you were convi cted of murder in the first degree, the jur y would sentence y

ou.” Later, the petitioner’ s father asked the trial court whether it had stated that it woul d sentence the petitioner to li fe without parole if the petitioner w ent to trial and was conv icted of first degree murder. The trial court stated, “Well, no, no I didn’t . . .. The jury would do the sentencing in the murder case, not me. The jury w ould do that.” The record als o reflects the following colloquy between the tria l court and the p etitioner at th e beginning of th e plea hearing:

COURT: I’m not at all g oing to suggest that y ou need to have a trial in this case. I’m not, at all, sug gesting that you shouldn’t have a trial.I just want to make sur e that you understand what you are doing and that you make the choice that you want to make, after you’re informed and know what’s goin g on. Do you understand that? PETITIONER: Yes, sir. Nothing in the record s upports the petitioner’s c ontention that he was coerc ed and threatened by the trial c ourt into accepting the pl ea agreement.
The petitioner also contends that he was coerced by the trial court because the trial court told him that the state would try the aggravated robbery case first, and if he was conv icted, the state would use this to get a sentence of life w ithout parole in the murder case. The r ecord reflects that the prosecutor explained that the state intended to do just that. R ather than coercing the peti tioner, the trial court was merely explaining

to the petitioner the potential ramifications of a trial.
The petitioner argues that hi s plea was not knowi ng because he did not understand his sentencing r ange. However, the

record reflects that the peti tioner was adequately apprised of the fact that he would serve ei ghty-five percent of hi s sentence. Although at one point during the guilty plea heari ng the trial court miss tated that the petitioner was to serv

e forty-five percent of his sentence, the trial court later instructed the petitioner and his parents that he would serve ei ghty-five percent of hi s sentence, and the following colloq uy occurred:7 COURT: . . . . So we know for sure, that if he doesn’t misbehave and lose all his credits, that when he’s served eighty-five percent of forty-five years, he will have served his time and he’ll be out. Not on pa role, he’ll be released. PETITIONER’S FATHER: But, okay then, we going [si c] to accept the time, then.

. . . . PETITIONER’S FATHER: We agree upon it. COURT: . . . . Mr. Mario Perkins, you under stand wha t we’ve done and you agree with this guilty plea; is that correct? PETITIONER: Yes, sir. The reco rd reflec ts that th e petitio ner was corr ectly appr ised that he would se rve eightyfive percent of his sentence and that the petitioner agreed that he understood the sentence and accepted the plea agr eement.
Finally, the petitioner

contends that the trial cour t did not require the stat e to submit notice of its intent to seek enhanced punishment ten days before the guilty plea hearing, as requi red by Tenn. Code Ann. § 40-35- 202. We believe that the petitioner misapprehends the pur pose of Tenn. Code Ann. § 40-35-202. That st atute deals with the requi rement of advanced notice by the state of its intent to use a defendant’s previous convi ctions to enhance the sentence. The pu rpose of the statute is to provide fair notice to a defendant that he or she is exposed to a greate r sentence due to his or her previ ous criminal convict ions. See State v. Ada ms , 788 S.W.2d 557 (Tenn. 1990). In the present case, the petitioner did no t have any prior convictions; rather, the petitioner agreed upon a sentence in an enha nced range as a part of his plea agreement to second degr ee murder. Under these cir cumstances, Tenn. Code Ann. § 40-35-202 is not applic able. This issue is without merit.

II. INEFFECTIVE A

SSISTANCE OF C

OUNSEL The petitioner contends that his attorney was ineffectiv e. Specifically, he argues that his attorney did not adequately inform hi m of the consequences of his plea.8

The petitioner also makes myriad other statements with respect to what his attorne y did or did not do, but he does not articulate in what way his attorney’s actions were deficient or how he was prejudiced. The state contends that the trial court correctly concluded that the petitioner r eceived the effective assis tance of counsel. We agree.
In a post-conviction ca

se, the petitioner must prov e his grounds for relief by clear and convincing evidence. Tenn. Code An n. § 40-35-210(f). To establish the ineffectiveness of counsel, the petitioner must show that couns el’s performance was deficient and that the deficiency resulted in prejudice. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 ( 1984); State v. Melson , 772 S.W.2d 417, 419 n.2 (Tenn. 1 989). Rel ative to a c laim tha t a guilty pl ea result ed from the inef fective assistance of counsel, the petitioner must show that but f or counsel’s errors, he would not have pled guilty

and would have insis

ted upon going to trial. Hill v. Lockhart , 474 U.S. 52, 59, 106 S. Ct. 366, 370 ( 1985); Bankston v. State , 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991). On appeal, we are bound by the trial court’s findings of fact unless we conclude that the evidence in the record preponderates against those findings. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). In thi s respect, the petitioner, as the appellant, has the burden of illustrating how the evidence preponderates against the ju dgment entered. Id.

The petitioner’s trial att orney testified that he ex plained the state’s offer to the petitioner and that he req uested that the trial court explain the offer to the petitioner at the plea hearing. He testified that he also explained the of fer to the petitioner’s parents and asked them to discuss it with the petitioner

to ensure that the petitioner understood the offer. He testified that he explained to the petitioner the ramifications of going to trial. The att

orney testified that he did not request additional time for the petitioner to consider the o ffer because both the petitioner and his father stated that they wanted to accept the offer. We conclude that the petitioner has not demonstr ated9

that the record preponderates against the trial court’s finding that he received the effective assistance of counsel.

In his brief, the petitioner a lso makes the following statements with respect to his attorney’ s performance: (1) the attorney could not remember whether h e shared discovery w

ith the petitioner, (2) the attorney stated that he did not know whether the petitioner under stood what he was doing , (3) the attorney first told the petitioner that both cases w ould be tried at the same time but later told the petitioner that the state would try the aggravated robber y case first, (4) the a

ttorney could not remember when he receiv ed the plea offer from the state, (5) the a ttorney did not immediately take the offer to the peti tioner, (6) the attorney

told the petitioner that he would have to go to tr

ial if he did not accept the offer, (7 ) the attorney admitted that the state did not file notice of its i ntent to seek enhanced punishment and that he did not object to this, (8) t he attor ney allowed the petit ioner to p lead guilt y to a sente nce above his range, but he did not hav e any authority for all owing the petitioner to do so, (9) the attorney only met with the petitioner once, and ( 10) the attorney did not i nform the petitioner of the state’s of fer until the d ay of the hearin g.

The petitioner makes no argument with respect to how these alleged actions by his attorney

were deficient or how

he was prejudiced by

them. We note that some of the allegations liste d in the petitioner’s state ments are directly cont radicted by the proof in the record. In any event, the statements do not ri se to the level of allegations that woul d entitle the petitioner to r elief because the petitioner has not shown tha t the evide nce prep onderat es agains t the tria l court’s f inding of effect ive assistance.
In consideration of the foregoing and the record as a whole , we affirm the trial c ourt’s denial of post- convic

tion re lief.10 __________________________ Joseph M. Tipto n, Judge CONCUR:

___________________________ Gary R. Wad e, Presiding Judge

___________________________ Thomas T. Woodall, Judge