### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE Ma rc h 8, 200 5 S es sio n

MA TTHEW DWIGHT WEBB v. ST ATE OF TEN NES SEE

Appeal f romthe Circ uit Court for Coff ee C ounty No. 32,746 G erald L. Ew ell, Sr., Special Jud ge

No. M2004- 00713-CCA -R3-P C - F iled May 3, 2005

Th e p e t i t i o n e r , M a t t h e w D w i g h t W e b b
, ap p e a l s a s o f r i g h t t h e d i s m i s s a l o f h i s p e t i tio n f orpo stconviction re lief by

the Coffe e County

Circuit Court. He seeks relief from his c onviction f or ra pe

a n d s e n te n c e o f e ig h t y e ar s

. T h e p e ti ti o n e r c o n te n d s th a t h e r e c e iv e d th e in e f f e c ti v e a s s is ta nce of counsel a nd that his guilty plea wa s not voluntary . We affir m the judgme nt of the trial court.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

J OS EP H M. T I PTON , J
., d el i v er ed t h e opinion of the c ourt, in which J OHN E VE R E TT W I L L I AMS and N OR MA M C G EE O G LE , J J ., joined.

Thompson G. Kirkpatric k, Manche ster, Te nnessee , for the a ppellant, Matthew D wig ht Webb.

Paul G. Summers, Attorney Gene ral a nd Reporter ; Eliz abeth B . Marne y , Senior Counsel; Charles Michae l L ay ne, District Attorne y Gene ral; J ason Mi chae l Ponder, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

Th e pe tit ion e r w a s in iti a lly ind ic te d o n O c tob e r 1 6, 19 97 , f or tw o co un ts of ra

pe , a Cl a ss B felony . Severa l trial dates we re se t in the y ear s following a nd continuance s were g rante d for r easons not releva nt to this appea l until the petitioner failed to a ppear in c ourt for his trial date of January 17, 2 0 0 2
, d u e t o a l c o h o l i n t o x i c a t i o n

. T h e t r i a l w a s r e s c h e d u l e d f o r A p r i l 2 6
, 2 0 0 2
, b u ta

f e w d a ys befor ehand the petitioner dec ided to acc ept the plea a g ree ment offe red by the state. He appea

red in court to p l ead guilty

on April 24, but the court r eporte r wa s not present a nd the hea ring was

resc heduled. The petitioner subs equently decide d he would rathe r g o to trial, and on April 26, a jury was impane led. The c ourt adjourne d for the w eeke nd, and bef ore c ourt rec onvened, the petitioner chang ed his mind ag ain and de cided to plead g uilty

. He ultimately pled g uiltyto one count of r ape on April 29, 2002, and re ceive d a sente nce of eig ht y ear s in the Depa

rtment of Corre ction.-2-

A t th e p le a h e ar in g , th e p ar ti e s s ti p u late d th e f o ll o w in g a s a f

a c tu a l ba s is f

o r th e p le a : “ [I ]f the ca se had g one to trial, the State’s proof br iefly would have be en on or a bout Aug ust 31, 1997, the [petiti oner], Mr. Webb, enter ed an a partment a t Ada F err ell Apartments in Tullahoma, Tenne ssee, a nd with force or coe rcion, did sexually penetr ate Ms. Rene e Ta y lor, the vi ctim.” Ther ea ft er, the petitioner wa s sworn and the trial court a sked him if his guilty plea wa s fre e and

vo lun tary , ma de wi tho ut thr e a t or fe ar, a ndif

he un de rs too d th e na tur e of the c ha rg e s a g a ins t hi m. The pe titioner responde d aff irmatively . Th e trial court a lso asked the pe titioner if his attorney advised hi m reg arding the eleme nts of the offe nse cha rg ed, the bur den of pr oof re quired, a nd the de fe ns e s a va ila

ble to h im. Th e pe tit ion e r r e pli e d, y e s. Th e pe tit ion e r a c knowled g e d th a t hi s

se nte nc e wo uldbe e ig ht y e ars in the De pa rt me nt o f C or

re cti on a t e ig hty -f

ive pe rc e nt r e le a se elig ibilit y and that he unde rstood the rig hts he wou l d b e wa iving by pleading g uilty , i.e., the rig ht
to a speedy trial by jury
, the rig ht to confr ont w itnesses, the rig ht to compulsory proce ss, an d t he rig ht ag ainst self-incrimination. He said he understood that he had the right to counse l at all stag es of his case and that ther e would be no further trials or hearings. When a sked if he had be en promised
anything in exchang e for

his guilty plea, he replied that he wa s to be “fir st on the list t o g et out” of the fa cility

in which he was confine d. The trial court responde d it ha d no control over this matter,

a ndthe pe tit ion e r s a id he un de rs too d. Th e tr ia l c ou rt a sk e d if he ha d a ny

c omp la int s r e g ard ing his attorney ’s represe ntation of him in this case, and the petitioner said no. The trial court dismissed the petitioner’s sec ond count of ra pe and his indictment for

failure to appea

r.

There afte r, the pe titioner filed a pe tition alleging that he re ceive d the ineff ective a ssistance of counse l and that his g uiltyplea was involuntarily enter ed without understanding the nature and
conseque nces of

the plea. H e alleg ed that he w as mentally incompetent on the day

of the plea hearing a nd that the t rial court failed to follow the procedure s set forth in Tenn. R. Crim. P. 11 and State v. Macke y , 553 S.W .2d 337 (Tenn. 1997)

. At the post-conviction hearing
, the petit ioner testified that his attorney started r epre senting him app ro xima te ly

on e mon th a ft e r h e wa s in dic te d o n th e ra pe c ha rg e s in Oc tob e r 19 97

. He sa id that they discussed the plea

barg ain and se ntence of eig ht y ear s offe red by the state in 1997 but that he re fu se d th e of

fe r b e c a us e he wa s inn oc e nt. He a dmi tte d that he fa ile d to app e ar fo r h is t ri a l date in Ja nu ary

20 02 bu t sa id tha t he wa s n ot re sp on sib le fo r a ny of the oth e r c on tin ua nc e s g ra nte d in his

c a se . H e sa id h e fa ile d to app e ar in J a nu ary 20 02 be c a us e he wa s dru nk that day . He sa id h e be c a me

awa re he missed his trial when he r eporte d to the jail two day s later to be g in his sixt y -day sentenc e of inc arc e ratio n o n a thi rdDU I c ha rg e . H e sa id h e wa s in c arc e rate d f ro m th a t po int

un til the da te his trial was sche duled to beg in in April 2002.

The pe titioner said that he and his attorney never discussed a trial stra teg y or a de fense theory and that he did not re call see ing c opies of the indictments. Howe ver, he said his attorney informed him that if the case went to trial, they would proce ed on a the ory of mistaken identity

if they wer e

succe ssful in suppressing the DNA evidenc e. He said that he met with his attorney four or five times be tw e e n 1 99 7 a nd

20 02 bu t th a t th e y

dis c us se d o nly

ple a ba rg a ins. He sai d h is atto rn e y wo uld “boost” him up one da y , talking “ g ood and nice ” to him, and the next day he would bring him down by “drilling ” him with a plea ba rg ain. He sa id his attorney “pre tty much demande d” that he ple ad-3-

g uiltybeca

use it would be ea sier f

o r ev er y o n e involved not to go to trial. He said his attorney informed him t hat i f he went to trial he could rec eive a sentenc e of more than eig ht y ear s on the rape char g e and possibly be convicted on the failure t o appea r charg e. He said that he wa s dissatisfied wi th his a tto rn e y ’s re pr e se ntatio n b ut tha t he ha d a lr e a dy pa id h is atto rn e y

to r e pr e se nt h im i n th is matter. He said that his drinking pr oblem preve nted him from being able to af ford hiring another

a t t o r n e y.

Reg arding the two counts of r ape, the petitioner said he w as drinking a g re at q uantity of vodka on the nig ht he went to the victim’s a partment. He said that they had sexual intercour se and that sh e we nt t o th e ba thr oo m a ft e rw ard . H e sa id tha t w he n s he re turne d, sh e sma c ke d him a ndtol d him to get out. When a sked whether he had forc ed himself on her, he responde d, “As fa r as trying to have se x with her, proba bly , but not–it was a ll g ood and dandy betwee n us when we had sex, y ou kn ow wh a t I ’m

sa y ing ? Just l ike a

ma n w ou ld d o, ‘H e y ,’ y ou kn ow .” He sa id h e re c a lle d h is g uil ty ple a bu t did no t re me mbe r wh e the r the tr ia l c ou rt qu e sti on e d him re g ard ing his c on sti tut ion a l r ig hts

. He sa id he did not understand the proce ss of pleading g uiltybeca use he w as par anoid and a fra id that

so me on e wo uldsli p h im the wr on g pa pe rs

. He sa id that du ri ng the fo ur a ndon e -h a lf

y e ars sin c e his indictments for ra

pe, he ne ver intende d to plead g uilty

.

On c ro ss- e xami na tio n, the pe tit ion e r ack no wl e dg e d th a t hi s a tto rn e y dis c us se d h is p la n to use mistaken identity

as a de fense at trial. He admitted that in his first statement to police office rs reg ardin g t h e ra p e charg es, he sa id he did not remembe r much a bout the night of

the alleg ed ra

pe beca use he was drunk and also that he was drunk when he made the statement. He rec alled telling the trial court at the plea he aring that his guilty plea wa s fre ely

and voluntarily

made but d i d not

re ca l l an s we ri n g o t h erq u es t i o n s

. He s ai d t h at h e w as m i x ed u p t h at d ayan d t h at i t wa s s t i l l fo ggy to h im. He s aid he was fri g hte ne d o f h is atto rn e y a ndof wh a t w ou ld h app e n if

the y we nt t o tria l. He sa id he expected his attorne y would use “tric ks” and sa botag e his ca se.

David P ate testified that he was the ex ecutive director of the F amily Counseling Cente r of Manche ster, Te nnessee , and that he inter viewed the petitioner at the reque st of counsel. He sa id the interview r evea led the following : The petit ioner was a heavy drinker, consuming a lcohol daily for
te n to fi ft e e n y e a

rs . H is d ru g of choic e wa s a lc oh ol, bu t he a lso too k p a in kill e rs a nda nxie ty

me dic a tio n a ndus e d ma

ri jua na to i nc re a se the a lc oh ol “ bu zz.” He co nfes sed to ha vin g pr ob le ms thi nk ing c le arl y

a ndus ing wo rd s to e xpre ss h ims e lf . H e re a lize d h e ha d a pr ob le m w ith a lc oh ol. Mr. Pate testified t hat af ter a n abuser

quits using alcohol a nd drug s, it takes the human body

app ro xima te ly fo rt y -e ig ht to s e ve nty -t wo ho ur s to e lim inate mos t of the ha rm fu l su bs ta nc e s. He sa id that afte r detoxification, a per son wi l l beg in to think m ore c lear ly but that permane nt damag e ca n

oc c ur in c a se s w he re a lc oh ol a nddr ug s w e re abu se d in the a mou nts us e d by the pe tit ion e r. Mr . Pa te said he c ould not offer

an opinion as to whethe r the pe titioner’s thinking was impaired on the day

o f h i s p l eah ea ri n g.
The petiti oner’ s attorney testified he was hired by the petitioner’s f ather on Marc h 26, 1998, to repre sent the petitioner c oncerning the two rape char ges an d h is third DUI char g e. He said the trial strateg y

in the petitioner’s ra

pe ca se wa s com p l i ca t ed by his statement to the police in which-4-

he cla imed he did not know the victim or have sex with her. He sa id the police investig ators had a
po sit ive ma tc h b e tw een th e pet ition e r’ s D NA a ndthe DN A i n th e se me n o n th e vic tim ’s pa nti e s. He said that if they wer e not suc cessf ul in suppressing the DNA e vidence , which they wer e not, the defe nse theory

would chang e fr om mistake n identity to a rg uing that his sex ual enc ounter with the victim was consensua l. He said a rg uing c onsent posed proble ms beca u s e th e p etitioner should testify and his prior c onvictions would be reve aled. He said he filed numerous mot ions in limi ne and me t with the petitioner “more times tha n he could count” in pr eparing for trial. He said the state of fer ed a plea ag ree ment with an eig ht-y ear sentenc e in May

1 9 9 8
, wh i ch the petitioner said he was not interested in be cause he wa s innocent. When asked if he pre ssured the petitioner to plea d g uilty , the attorney responde d, “y es and no.” He ex plained that the felony failure to appea

r cha rg e fr om the trial missed in J anuary

2002 could have chang ed the r ang e or of fende r classification f

or sentenc ing a nd that opting to ac cept the min imum eight-y ear punishment beca me more attractive f or that re ason. He sa id the consent theory posed additi onal problems bec ause the defe ndant had pr eviously admitted
to the po lic e that he wa s in toxic a te d o n th e e ve nin g of the a lle g e d c ri me a nd that he didno t r e c a ll being with t h e v ictim. He said that succ ess at trial would ha ve depe nded on who wa s more

cre dible–the petitioner or the victim.

The petitioner’s attorney testified that he visited the victim’s a partment wher e th e a l l eg ed
rape occur

red a nd that he intervie wed ne ighbor s, prepa red maps, and took pi cture s of the ar ea. H e said he sent c opies of the se ntencing g uidelines, the re levant statutes, an d t h e i n dictments to the petitioner. He said that he a n d t h e p et i tioner re viewed this material and also discussed the plea
ag ree ment and its conditions. He said that the pe titioner had condit i o n s t o acc epting the plea
ag ree ment and that one of them was to be transfe rre d from the jail fa cility immediately . He sa id he
sp ok e wi th P a m, the ja il a dmi nis tr a tor , w ho m he br ou g ht to se e the pe tit ion e r so the y c ou ld d isc us s what could be done about a transfe r. He said that he had witnesses pre pare d to testify at trial and tha t he issued subpoenas to some of them on the day of trial at their

reque st so that their absenc e fr om work would be excused. He sa id he inves tiga ted the victim’s bac kg round but discover ed nothing that c ou ld b e us e d a t tr ia l. H e sa id tha t th e pe tit ion e r’ s f a the r h ir e d a private inv e sti g a tor to a ssi st wi th the c a se bu t tha t the inv e sti g a tor sk ipp e d to wn wi tho ut g ivi ng the m a ny inf or ma tio n. He sa id he off ere d to interview any witnesses whose names we re g iven to him. Rega rding a spee dy

trial, he

sa id tha t th e pe tit ion e r c le arl y did no t r e c e ive on e a ndthat he didno t pu sh fo r o ne . H e sa id tha t th is

wa s a ta c tic a l c ho ic e on his pa

rt be c a us e , in his op ini on , the state ’s c a se g ro ws wo rs e wi th a g e . With
reg ard to the brief stateme nt constituti ng the factual basis for the plea and whether it satisfied leg al require ments, he re sponded it was a ma tter for the judg e to dec ide.

On cross-e x amination, the petitioner’s attorney said he had revie wed t h e p et i tioner’s constitutional rig hts w ith him more than once in the y ear s befor e trial. He said that he noticed a

c ha ng e in the pe tit ion e r’ s abi lit y to co mmu nic a te a nd his me nta l capa c ity a ft e r he “ dr ie d o ut” in j a il in the mon ths be fo re the ple a he ari ng a ndthat th e pe tit ion e r w a s mo re c og e nt a ndc le ar a s a re su lt. He sa id tha t whe n the pe tit ion e r wa s sobe r, he wa s v e ry int e lli g e nt a ndc ou ld d isc us s ma ny iss ue s.
Rhonda Poole Mey ers, the pe titioner’s sister, testifi e d s h e w a s p r e sent during the plea he aring and she he ard the petitioner’s a ttorney tell him that the ag ree d sentenc e wa s d o wn t o s i x to eig ht-5-

y ea rs b u tt h at h e c o u l d re ce i v e as en t en ce as h i gh as fo u rt ee n y ea rs i f h e w as co n v i ct ed fo l l o wi n g a t r i a l

. S h e s a i d s h e h a d t h e i m p r e s s i o n t h e p e t i t i o n e r w a s b e i n g p r e s s u r e d i n t o p l e a d i n g g u i l t y.

Robert Carter , an attorney , testified t hat t he petiti oner’ s attorney asked him t o assist with the defe nse of the pe titioner in 1998 but that he beg an participating a ctively in Fall 2001. He said he ha s been involved in a

pproxi mately

two thousand criminal prose cutions during his c are er. He said that he had ag ree d with the petitioner’s a ttorney reg arding the trial strate g ies and that he had advise d the petitioner it was in his best interest to plead guilty

. He acknowledg ed that he had c ontact with the petitioner prior to his inc arc eration in J anuary 2002 and that he notice d distinguishable diff ere nces in his attitude and abilit y to communicate when he saw him ag ain i n April 2002. He said that the petitioner appe are d calm and w as well-dressed in April and that he and the petit ioner’s attorney had

a leng thy discussion w ith the petitioner befor e his ple a hearing reg arding the merits of his case , the evidenc e ag ainst him, and what they thought we re his cha nces of succe ss.

On cr oss-examination, Mr. Carter testified tha t he was pre sent at the plea hearing a nd that in his opini on, the def

endant kne w what he was doing when he pled g uilty

. R ega rd i n g the backg round che ck of the victim, he opined that the fac ts did not me et the re quirements for Rule 412, Te nn . R. Ev id. , a ndsa id that he wo uldno t ha ve ha nd le d th e ba c kg ro un d is su e dif fe re ntl y tha n d id
t h e p e t i t i o n e r ’ s a t t o r n e y.

I n deny ing the petitioner re lief, the trial c ourt cre dited the test i m o n y o f the petitioner’s

a tt o r n e y “ in a n y a n d a ll in s ta n c e s w h e r e in p e ti ti o n e r ’ s te s ti mo n y c o n f li c ts w ith th a t o f

[h is a tt o r n e y ]” and re jected tha t of the petitioner as “unbe lievable.” I t found that the petitioner e ntere d a knowing

a ndvo luntary g uil ty

ple a , h a vin g c le are d h is m indof the de bil ita tin g e ff

e c ts o f a lc oh ol d ur ing his inc arc e ratio n o f 16 3 d a y s b e fo re the ple a he ari ng , a ndthat th e c ou rt su bs ta nti a lly

c omp lie d w ith Rul e 11 , T e nn

. R. Cr im. P., Ma c ke y , a nd B oy kin v. Al aba ma , 39 5 U. S. 29 98
, 80 S. Ct . 1 70 9 ( 19 69 ), in

acc epting the g uiltyplea. The trial court c oncluded that the pe titioner’s attorney provided him the eff ective a ssist an ce o f counsel in all pre-tria l and g uiltyplea pr ocee dings a nd found that the
p et i t i o n er ’s n u m er o u s gri ev an ce s we re n o ts u p p o rt ed b y t h e e v i d en ce p re s en t ed at t h e h ea ri n g.

I. IN EF F EC TIV E A SSIST AN CE OF CO UN SEL

Th e pe tit ion e r c on te nd s th a t he recei ved the ine ff e c tiv e a ssi sta nc e of

c ou ns e l be c a us e his attorney failed to de velop a de fense strateg y , prepa re a dequate ly

for tria l, dispose of the fe lony failure to appea r cha rg e in the g uiltyplea pe tition, i nvestig at e t h e p eti tioner’s c ase a dequate ly , and issue wi tne ss s ub po e na s in a dv ance of th e fi rs t day of tr ia l. T he state c on te nd s th a t th e re c or d s up po rt s the trial court’s conclusion that the pe titioner rec eived the e ffe ctive assistanc e of c ounsel.

The burde n in a post-convic tion procee ding is on the pe titioner to prove his g rounds for r elief by clear an d co n v i ncing evidenc e. T.C.A. § 40-30- 110(f) . On appe al, we a re bound by

the trial

cou rt ’s fi nding s o f f

a c t un le ss w e c on c lud e that th e e vid e nc e in the re c or d p re po nd e rate s a g a ins t those finding s. Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001). B eca use they relat e to m ix ed questions of law a nd fac t, we re view the t ri al co u rt ’s conclusions as to whether c ounsel’s-6-

pe rf or man c e w a s de fi c ie nt a ndwh e the r tha t de fi c ie nc y wa s p re jud ic ia l un de r a

de no vo sta nd ardwi th no presumption of cor

rec tness. I d. at 457.

Under the S ix th Amendment, when a claim of i neff ective assistance of counsel is made, the burden is on the pe titioner to show (1) that counse l’s perf ormanc e wa s deficie nt and (2) tha t the defic iency was prejudicia l. Strickland v. Washington, 466 U.S. 668, 687, 104 S. C t

. 2 0 5 2
, 2 064 (198 4 ) ; s e e L o c kh ar t v

. F r e tw e ll
, 5 0 6 U

. S. 3 6 4
, 3 6 8

- 7 2
, 1 1 3 S. Ct

. 8 3 8
, 8 4 2

- 4 4 ( 1 9 93). I n other words, a show ing tha t counsel’s pe rfor mance fell below a rea sonable standard is not enoug h; rather
, the petitioner must also show that but for the substanda rd per formanc e, “the result of the pr ocee ding would have be en diffe rent.” Str i ck l an d
, 466 U.S. at 694, 104 S. Ct . at 2068. To satisfy the

re qu ir e me nt o f p re

jud ic e wh e n the pe tit ion e r e nte re d g uil ty ple a s, the pe tit ion e r m us t de mon str a te

a rea sonable probability that, but f or counsel’s err ors, he would not have pled g uilty and would have insisted on going to trial. See Hill v. L ockhart, 4 7 4 U. S

. 5 2
, 59, 106 S. Ct . 366, 370 (1985); Ba nkston v. St ate, 815 S.W.2d 213, 215 ( Tenn. Crim. App. 1991). I n Ba x ter v. Rose, 523 S.W .2d 930, 936 (Tenn. 1975) , our supre me court decided tha t attorney s s h o u ld be held to the g ener al standard of

whether the servic es re ndere d wer e within the ra ng e of c ompetence demande d of attorney s in criminal case s. I n revie wing counsel’s c o n d u ct , a “f air a ssessment of attorne y pe rf or ma nc e re qu ir e s th a t e ve ry e ffo rt be ma de to e lim inate the dis tortin g e ff e c ts o f h ind sig ht, to

rec o n s tr u c t th e c ir c u ms ta n c e s o f

c o u n s e l’ s c h a ll e n g e d c o n d u c t, a n d to e v a lu a te th e c o n d u c t f r om counsel’s pe rspec tive at the time.” Strickland, 466 U.S. at 689, 104 S. Ct . at 2065; see H ellard v. State, 629 S.W .2d 4, 9 (Tenn. 1982)

.

I n support of his claims that his attorney failed to formulate a mea ningf ul trial strateg y

and
pr e pa re a de qu a te ly

fo r t ri a l, the pe tit ion e r poi nts to the le ng th o f t ime be tw e e n h is u lti ma te tr ia l date in April 2002 and his indictments in Octobe r 1997. Howe ver, the petitioner’s a ttorney testified that ref using to push for

a spee dy trial was a

tactica l decision. Reg arding defe nse theorie s and trial strateg ies for the petitioner’s c ase, the rec ord refl ec t s t h at the ca se wa s complicated by various fac tors, not the least of which wer e the petitioner’s char g e for f ailure to a ppear , the DNA e vidence linking the pe titioner to the alleg ed crime, and his false statement to the police tha t he was now here

ne ar the vic tim on the da te the ra pe oc c ur re d. Con tr ary

to the pe tit ion e r’ s c la ims , th e a tto rn e y sa id that he had contemplated two de fense theories, one of which w as thwarted by the trial court’s denial of the motion to suppress the DNA evidenc e, and tha t he had witnesses re ady to testify at trial. He explained he issued subpoena s on the day of trial only

at the re quest of those witnesse s who nee ded documentation to excuse their a bsence from wor

k. T h e p et i t ioner’s attorney testified that he ha d visited the victim’s a

partment wher e the alleg ed rape occur red, interviewe d neig hb o rs , p re p are d maps, and take n pictures of the ar ea.
The pe titioner also claimed he did not see copies of the indictments. His attorney testified that he sent c opies of the se ntencing g uidelines, rele vant statutes, and indictments to the pe titioner and that he a nd the petitioner re viewed the materia l and discussed the ple a and its conditions. As fo r the pe tit ion e r’ s cla im tha t his att or ne y fa ile d to disp os e of the fe lon y fa ilu re to a pp e ar c ha rg e in the g uil ty ple a pe tit ion , th e re c or d re fl e c ts that the tr ia l c ou rt dis mis se d th e ind ic tme nt f or fa ilu re to appea r along with the petitioner’s sec ond count of ra pe at the c onclusion of t he plea hearing. The-7-

trial court f

ound that, based upon the cre dible testimonyprese nted, the p et itioner’s attorne y conducte d himself as befitting a competent attorney in the repr esenta tion of a client cha rg ed with a

se ri ou s c ri me . T he re c or d d oe s n ot p re po nd e rate a g a ins t th e tr ia l c ou rt ’s fi nd ing s.

II. G UI LTY P LEA

The pe titioner contends that his guilty plea wa s involuntarily , unknowing ly and unintelligently

enter ed bec ause ( 1) the trial c ourt failed to follow the proc edure s set forth in Rule 11, Tenn. R. Crim. P., and State v. Ma ckey
, 553 S.W .2d 337 (Tenn. 1997), (2) he was incoher ent on the da y of the ple a he ari ng du e to a lc oh ol a

bu se , a nd(3 ) h is atto rn e y pr e ssu re d h im to pl ead guilt y to

av o id having to develop a tr ial strateg y . The state c ontends that the petitioner’ s g uiltyplea wa s knowing and voluntary and that any err ors committed by the trial court in a cce pting the g uiltyplea

wer e harmless bey ond a re asonable doubt.

When evaluating the knowing and voluntary nature of a g uiltyplea, the U nited States Supreme Court has he ld that “ [t ]he standa rd wa s and re mains whether the plea r epre sents a voluntary

a ndint e lli g e nt c ho ice a mon g the a lte rn a tiv e c ou rs e s o f a c tio n o pe n to the de fe nd a nt. ” No rth Carolina v. Alfor d, 400 U.S. 25, 31, 91 S. C t

. 1 6 0
, 1 6 4 (1 9 7 0). The c ourt revie wing the voluntariness of a

g uiltyplea must look to the totalityof t he circumstance s. See S tate v. Turner, 919 S.W .2d 346, 353 (Tenn. Crim. App. 1995) . These c ircumstance s include

the re la tiv e int e lli g e nc e of the de fe nd a nt; the de g re e of his fa mil iari ty with criminal proceeding s; whether he was re prese nted by competent

co unsel and ha d the opportunity to confe r with counsel a bout the options available to him; the ext ent of a dvice f rom counsel a nd the

c ou rt c on c e rn ing the c ha

rg e s a g a inst him; a ndthe re a so ns fo r h is de c isi on to ple a d g uil ty , inc lud ing a de sir e to a vo id a

g re a te r p e na lty that mi g ht r e su lt f

ro m a jury tr ia l.

Bl ankenship v. S tate, 858 S.W.2d 897, 904 (Tenn. 1993). A ple a re sulting fr om ignor ance , misunderstanding , coer cion, induceme nts, or threa ts is not “voluntary .” I d.

The trial c ourt is char g ed with determining if the g uiltyplea is “know ing” by questioning the defe n d an t t o m ak e s ure he fully understands the plea a nd its consequenc es. State v. Pettus, 986 S.W .2d 540, 542 (Tenn. 1999) ; Blanke nship, 858 S.W .2d at 904. I n Boy kin v. Alabama, the United States Supreme C ourt clea rly enuncia ted t hat certain constitutional rig hts are implicate d in a plea of
g uil ty , na me ly
, the ri g ht to a tr ia l by jury , th e ri g ht t o c on fr on t w itn e sse s, a ndthe pr ivi le g e a g a ins t

c omp e lle d s e lf

-i nc ri min a tio n, a ndthat it wo uld no t pr e su me a wa ive r of the se thr e e imp orta nt rig hts from a silent re cord. 395 U .S. 238, 243, 89 S. C t. 1709
, 1 7 1 2 (1969). Although these rig hts are
repe ated in Ma ckey and in Rule 11(c) (3), Tenn. R. Crim. P., only the co n stitut ionally -g rounded ri g hts e nu nc ia te d in B oy

kin , a re a dd re ssa

ble un de r the Pos t- Convi cti on Pr oc e du re Ac t. S e e Sta te v. Prince, 781 S.W.2d 846, 853 (Tenn. 1989).-8-

The pe titioner relies, in part, upon the require ments for the taking of g uiltypleas imposed by Macke y and Rule 11, Tenn. R. Crim. P., to arg ue that his g uiltyplea wa s not voluntary , knowing or intelligent. He contends the trial court fa iled to require an ade quate f actua l basis for his g uiltyplea, inquire whe ther his wil lingne ss to plead guilty resulted from prior dis cussions with the prosec utor, and advise him that he was unde r oath a t the plea he aring a n d t h at h i s s t atements c ould be used
ag ainst him in later prosecutions for perjury

. Howeve r, t hese inquiries are not linked to any of the specifie d constitutional rig hts in Boykin and ar e not cog nizable in a suit for post-conviction re lief. See State v. Ne al, 810 S.W.2d 131, 137 (Tenn. 1991); Prince, 781 S.W .2d at 846. Post-conviction relief is available only

when a conviction or sente nce is void or voidable beca use of a violation of a constitutional rig ht. T.C.A. § 40-30-105.

The re cord r efle cts that the trial court satisfied the re quirements of B o y k i n . During the colloquy betwee n the petitioner a nd the trial court at the plea hea ri ng , the trial court asked the
pe tit ion e r i f the ple a

wa s f re e ly a nd vo lun tari ly ma de a nd if he ha d b e e n in fo rm e d o f the e le me nts of the crime, burde n of proof , and def enses. It also asked him if he unde rstood the nature of the char g es ag ainst him and if he was awa re that by pleading g uilty he wa s g iving up the right to a tr ial by jury , the rig ht to confront witnesses, a nd the rig ht to self-incrimination.

As for the petitioner’s arg ument that his mental i ncompetenc e on the day of t he plea hearing d u e t o a l c o h o l ab u s e r e n d e r e d h i s g u i l t y p l e a v o i d a n d t h a th i s a t t o r n e y p r e s s u r e d h i m t o p l e a d g u i l t y, the re cord is devoid of

any proof to support these claims. The petiti oner’ s attorney testified t hat once the petitioner “ dried out,” he was c apable of coge nt and clear thinki ng , and Mr. Carter testified tha t the petitioner wa s calm and w ell-dre ssed when the y met in April. The trial c ourt ac cre dited the testimonyof the a ttorney

over tha t of the petitioner and found that the petitioner enter ed a know ing

a ndvo lun tary

g uil ty ple a , h avi ng c le are d h is m indof the de bil ita tin g e ff

e c ts o f a lc oh ol d ur ing his incar cer ation of 163 day s prior t o the pl ea hear ing. The recor d does not preponde rate ag ainst the trial

c ou rt ’s fi nd ing s, nor do es it refle c t th a t th e pe tit ion e r w a s p re ssu re d in a ny wa y by his a tto rn e y

to p l e a d g u i l t y i n o r d e r

t o a v o i d d e v e l o p i n g a

t r i a l s t r a t e g y.

We c on c lud e that th e pe tit ion e r r e c e ive d th e e ff e c tiv e a ssi sta nc e of

c ou ns e l a nd that hi s g uil ty plea wa s knowing and voluntary . Ba sed on the for eg oing a nd the rec ord as a whole, we aff irm the jud g me nt o f the tr ia l c ou rt

.

___________________________________ J OSEPH M. TI PTON, J UDGE