### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs Marc h 8, 200 5

MA TTHEW MEL TON JAC KSON v. S TAT E OF TEN NES SEE

Appeal f romthe Circ uit Court for Robertson County Nos. 01-0022; 01- 0086 Michael R. Jones, Judge

No. M2004- 01342-CCA -R3-P C - F iled May 18, 2005

Th e pe tit ion e r, Ma tth e w M e lto n Jac ks on , app e a ls a s of ri g ht the dis mis sa l of his pe tit ion fo r p os tconviction re lief by

the Robertson County

Circuit Court. He seeks relief from his convictions for
t w o c o u n t s o f

a g g r a v a t e d r ap e , o n e c o u n to f a g g r a v a t e d k i d n ap p i n g , o n e c o u n to f a g g r a v a t e d r o b b e r y, and ef fec tive sentenc e of twe nty -five y ear s. The petiti oner contends t hat he r ece ived the inef fec tive assis ta n c e o f c o u n s e l a n d th a t h is g u il ty p le a s w e r e n o t v o lu n ta r y o r k n o w in g

. We a f

f irm the jud g me nt o f the tr ia l c ou rt

. 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 ., delivere d the opinion of the court, 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.

Wil liam F. Kr oeg er, Spring field, Tenne ssee, f or the a ppellant, Matthew Me lton J ackson.

Pa ul G . Summe rs , A tto rn e y Ge ne ra l a ndRe po rt e r; Mic ha e l Ma rk ha m, A ssi sta nt A tto rn e y

Ge ne ra l; J ohn Wesley

Carney , J r., District Attorney Gene ral; and B . Dent Moriss, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

T wo m u l t i -count indi ctments wer e re turned a g ainst the petitioner cha rg ing him with two

c ou nts of a g g ra va te d r ape , a

Cla ss A fe lon y , a ndon e c ou nt o f a g g ra va te d k idn app ing , a Cl ass B felony , in one indictment and with one c ount of ag g ravated robbe ry , a Class B fe lony , and one c ount of theft over $500, a C lass E felony
, in the ot her indictment. Pursuant to a plea ag ree ment, he pled
g uiltyto all five off

enses, with the se ntence leng ths to be determined by the trial court b u t to be

serve d concur

rently with eac h other. F ollowing a sentenci n g h ea ri n g, the trial court imposed
sentenc es of twe nty -five y ear s for e ach a g g ravated ra pe convic tion, twelve y ear s for the a g g rava ted kidnapping conviction, ten y ear s for the ag g ravated robbery conviction, and two y ear s for the the ft

c on vic tio n, fo r a n e ff

e c tiv e se nte nc e of tw e nty -f ive y e ars to be se rv e d a t on e hu nd re d p e rc e nt. Hi s sentenc e was aff

irmed on appea l. State v. Matthew Melton J ackson, N o. M2001-01999-CCA-R3--2-

CD , Ro be rt so n Co un ty , s lip op . ( Te nn . Crim. Ap p. F e b. 7, 20 03 ). Ho we ve r, the pe tit ion e r f a ile d to include a tr anscript of his guilty plea he aring in the appellate rec ord, and this court n o t ed that the omission of the transcript particularly hindere d revie w of the se ntence s. I d. at 6.

The unde rly ing f

acts are taken from the opinion on appea l: The petitioner ac costed the two victims as they wer e lea ving the ir job at a video store . The pe titioner pointed a pistol at them, force d them to open the store’ s safe , and put the money in a bag . The pe titioner then mot i o n ed t h e two

women i n t o t he ladies r estroom, but chang ed his mind and order ed one to a ccompa ny him to the oth e r s ide of the sto re

. He wa rn e d the se c on d vic tim to sta y in the re str oo m and ma de the fi rs t vi c tim undress a t g unpoint. The petiti oner raped the first victim two times, first with the barrel of his gun

a ndthe n w ith his pe nis , u sin g a sm all pla sti c ba g a s a make sh if

t c on do m. D ur ing the a ssa ult
, Spr ing fi e ld P oli c e Se rg e a nt Ric ky Mo rris dr ov e int o the sto re ’s pa rking lot wh ile on ro uti ne pa tr ol. The pe titioner saw the police car and fle d the store. The police office rs sea rche d the immediate ar ea and ca ptured the pe titioner behind t he st ore shortly there afte r. The of fice rs re cover ed the pistol used to commit the crimes and $746.26 in ca sh. See id. at 3-4.

The pe titioner filed a pe tition for post-conviction relief alleg ing tha t his guil t y

pleas we re involuntary

and unknowing beca

use he was unaware of t he constit utional rig hts he was wa iving a t the time he enter ed his ple as. He a lso alleg ed that he r ece ived the inef fec tive assistance of counse l in that his attorney failed to investigate t he facts of his case proper ly , communicate w ith him, and
prepa re a dequate ly fo r t ri al

. He arg ued that the a ttorney also failed to pr ovide the appe llate court with a complete r ecor d and fa iled to arg ue that the tria l court er red by u s i ng a juvenile c onviction to enhanc e his sentenc e.

At the po st- c on vic tio n h e ari ng , t he pet iti on e r t e sti fi e d th a t hi s a tto rn e y wa s a pp oin te d to
repr esent him in J anuary

2001. He sa id they

did not discuss the statement s h e m ad e to the police afte r hi s ar re s t

. He sa id that he informed his a ttorney that he wa s intox icated at the time he was

arr ested a nd interrog ated but that his attorney did not file a motion to suppress his statements. He

rec alled mee ting with his attorney only two times for a total of twe nty minutes, once in F ebrua

ry and

a g a in i n M a y . H e sa id h is a tto rn e y me t hi m in F e br

ua ry to t e ll h im tha t te sts pe rf

or me d by the sta te

ma tc he d h is D NA wi th tha t in the se me n r e c ov e re d f ro m th e ra

pe vict im

. He said he sa w h is

a tto rn e y the se c on d ti me on Ma y

15 , 2 00 1, the day

be fo re his tr ia l w a s sc he du le d to be g in. He sa id he discussed the plea a g ree ment with his attorney once, on Ma y

15, and pled g uiltythe next day . He said that his attorney did not inform him he could ref use to a cce pt the plea ag ree ment and that if he ha d k no wn he c ou ld f

ile a mot ion to su pp re ss his state me nts to the po lic e a ndg o to tr ia l, h e wo uld not have pled g uilty . He sa id he was a lso unawar e that ther e wa s a p o s s ibilit y his ag g ravated kidnapping conviction could have been merg ed with the ag g ravated robbery or ag g ravat ed rape convictions. He sa id he learned later that theft is a lesser included offe nse of robbe ry and that under the circ umstances in his ca se, he c ou l d n o t be convic ted of both off enses. He said that he did not have a n opportunity to discuss with his attorney the joy riding conviction which oc curr ed while he

was a juvenile and that he had no conta ct with his attorney during the pende ncy of his appea l. He said his attorney

never d i s cussed with him the possibilit y of g oing to tria l and did not file any motions, which force d him to file motions. He said his attorney acquir ed the fac ts of his case f rom-3-

the news me dia and r adio broa dcasts. He said his attorney handled his appea l improperly by failing to give the appe llate court a complete r ecor d.

The pe titioner rec alled that the tria l court informed him during the pl ea hear ing that he had a rig ht to have a jury

trial but that there w ould be no t rial i f he pled guilty

. He sa id he was una war e ple a din g g uil ty wo uld re su lt in his no t ha vin g a jury tr ia l. He re c a lle d that he h ad a p ri vate

conver sation with his attorney when the trial court brought this to his attention at the plea he aring and that his attorney t h en instructed him to answer y es, “just for c ourt purposes,” to all questions asked by the trial judg e that day . He sa id he was a lso unawar e h e was entering g uiltypleas a t the plea hear i n g. He said he thoug ht the purpose of the hea ring was to orde r that a psy cholog ical evalua tion be performe d on him to adjudg e his mental compete ncy for tria l. He said he also did not know the purpose of the sentenc ing hearing. He said he understood sentenc ing, but he thoug ht the
pu rp os e of

the he ari ng wa s to pr e se nt the re su lts of the ps y c ho log ic a l e va luatio n, no t se nte nc e him

. Reg arding his c ase, he claimed his attorney prese nted him with thre e options: acc ept the prose cutor’s ple a a g re e me nt, ple a d f

or me rc y fr om the tr ia l cou rt , or pe tit ion the g ov e rn or fo r a pa rd on . H e sa id he informe d his attorney

that he wa s not interested in any plea a g ree ment.

Th e pe tit ion e r s a id that his a tto rn e y wa s un a wa re of the fa c ts of his c a se a ndthat th is b e c a me evident whe n the att o rn ey p rese nted the fa ctual basis for the cha rg es to the trial court at the plea hearing. He said his attorney made the following misstatements to the trial court: The pe titioner was
appre hended in a

store or c afé , when in f

act he was caug ht in the g rass by the highw ay ; the petitioner

was c harg ed with robbing a Blockbuster Video Store, when he robbed a Video Chec kout Store; the pistol was rec overe d from the money b ag t h e p et i t ioner thre w over a fe nce, w hen the pistol was
actua lly rec overe d from the petitioner’s pants pocket; the petitioner locked one of the victims in the storeroom during the ra

pe, whe n he ac tually

place d her in the bathroom and the door wa s unlocked; the pe tit ion e r t oo k th e ra

pe vic tim to the fr on t of the sto re to ra pe he r, wh e n he a c tua lly

too k h e r t o the re ar of the store; and other factual mis statements. The pe titioner said he wa s diag nosed as be ing “psy chopatholog ic” dur ing his c hildhood. He said his attorney told him he would contac t his mot her
to a c q u i r e h i s m e d i c a l r e c o r d s a n d arr a n g e f o r h e r t o t e s t i f

y

. H e s a i d h i s a t t o r n e y m i s s t a te d h is condition to the trial court as “ schizophrenic,” how ever , and neve r conta cted his mother.

On cr oss-examination, the petitioner tes t i fi ed t hat he a ttended colleg e for three y ear s and studied business manag ement. He a cknowledg ed re ading the transc ript of the g uiltyplea he aring but iterate d that he did not understand all of the trial court’s que stions. He said that he unde rstood when the trial court asked him if he was g uiltyof ag g ravated ra pe but that he did not know he w as plea ding
g ui l t y w h e n h e a n s w e r e d a f f i r m a t i v e l y

. H e s a i d h i s a t t o r n e y i n s t ru c t e d h i m t o a n s w e r y e s to what e v e r q u e s ti o n th e tria l j u d g e p o s e d b e c a u s e “ if [h e ] w a s f

o u n d g u il ty , th e n it ’ d lo o k g ood beca use [he] had admitted in ope n court to the c harg e.” H e said that he did not lie during the plea hearing but a dmitted that he did not tell the truth. He also admitted he kne w he wa s being sentenc ed at the sente ncing hearing. Shown the g ui l ty plea pe tition, t he petitioner a cknowledg ed that the sig na tur e on it w a s h is b ut c la ime d th a t he did no t r e a d th e do c ume nt a ndthat it wa s n ot c omp le te ly filled out when he signe d it. He said that the sexual pe netra tion of the victim was conse nsual and-4-

that he did not r ape her. Howeve r, he admitted he had not met the victim befor e their e ncounter at the video store.

The pe titioner’s attorney testified t hat he was appointed to repr esent the petitioner in J anuary 20 01 . H e sa id h e int e rv ie we d th e of fi c e rs inv olv e d w ith the pe tit ion e r’ s a rr e st b ut n ot the vic tim s. He sa id identification of the pe titioner was not an issue in h i s ca s e bec ause the petitioner wa s appre hended shortly

afte r the c rime wa s committed and g ave a multipl e-pa ge confession to the
po lic e . H e sa id tha t the pe tit ion e r n e ve r i nf or me d h im h e wa s in toxic a te d a t th e tim e of his arr e st or interr og ation by the office rs but tha t if he had, a motion to suppress may have be en prope r. He said no evidenc e rec eived from the of fice rs, the victims, or the petitioner indica ted that the petitioner was int ox icated at that time. He said that he met with the petit ioner four or five times for a total of two to three hour s. He said the DNA test re sults indi cate d the petitioner’s D NA wa s on the g un and the plastic bag used as a condom during the ra

pe. He said he a nd the petitioner d i s cu s sed the

e vid e nc e a ndthe fa c ts o f the c a se . H e sa id the c a se be c a me a ma tte r of a c qu ir ing the mos t f a vo ra ble settlement for the petitioner beca use the DNA test re sults li nked the pe titioner to the wea pon and the vic tim , th e pe tit ion e r w a s “ c a ug ht i n th e a c t,” a ndhe c onfes sed to c omm itt ing the ro bb e ry in h is statements to the police. He said that the petit ioner asked hi m to neg otiate a plea ag ree ment and that on the morning the trial was schedule d to be g in, a n ag ree ment was neg otiated. He sa id the petitioner
was g iven until the next d ay t o d ecide whether to acc ept the state’ s offe r. He said as a spe cial condition in the ag ree ment, the petitioner’s me ntal competenc e would be de termined by a medica l doctor be fore the pl ea ag ree ment beca me valid. He said he informed the petit ioner that a jurytrial

was one option but that the charg ed offenses involved mandatory penitentiary time. He sa id that the petitioner wanted a deal which g ave him c oncurr ent sentenc es and that he eventua lly g ot w hat he wanted.

The pe titioner’s attorney admitted that he did not discuss the p o s s i b i l i t y of merg ing the kidnapping conviction into the robbery or ra pe convic tions and said that the merg er would not matter beca use the petitioner would g et a “f ree kidnapping ” with conc urre nt sentencing . He a dmitted that ha vin g on e le ss f

e lon y c on vic tio n o n th e pe tit ion e r’ s re c or d c ou ld b e a dv a nta g e ou s f or him a t so me po int bu t sa id tha t it wa s imm a te ri a l to h is s e nte nc e in this c a se . H e de nie d te lli ng the pe tit ion e r t o

answe r “y es” to whatever question the trial court asked him. He a lso denied tellin g the petitioner that hi s a ns we rs to the tr ia l c ou rt did no t matt e r be c a us e the y we re “ jus t f or c ou rt pu rp os e s. ” He sa id that he explained to the petit ioner he was pleading g uilty and that the petit ioner understood what he

wa s d oin g . H e a dmi tte d the c ha rg e of the ft sh ou ld ha ve be e n dis mis se d a s a le sse r i nc lud e d o ff

e ns e of the robbe ry . He e x plained that he pr obably missed that issue becau s e, l i k e the merg ing of the kidnapping conviction, it wa s another “fr ee ride” in tha t he was “ pleading g uiltyto something but
g etting no punishment.” Howeve r, he acknow ledg ed that having an additional felony conviction on one’s c riminal rec ord could be co n sidered punishment. He also admitted he made numerous mistakes when r elating the fac tual basis at the plea hearing but of

fer ed no explanation. Reg arding the petitioner’s prior conviction for joyriding
, he rec alled the offe nse was a misdemeanor but did not

rec all the petitioner telling him he was a juvenile at the t ime of t he offense. H e said the tria l court
g a ve the c on vic tio n li tt le wei g ht i n s e nte nc ing . A s f or the pe tit ion e r’ s a

pp e a l, h e sa id o nly
sentenc ing issues c ould be ar g ued. He explained he did not include the plea hearing tr anscript in the-5-

rec ord on appe al beca

use he believed the information in it was irrele vant. He sa id that because the revie w was de novo, the appellate court did not require the plea he aring transcript unless it concluded the tr ia l c ou rt

e rr e d a ndha d to a ssu me the se nte nc ing fu nc tio n, wh ic h it didno t.

On c ro ss- e xami na tio n, the pe tit ion e r’ s a tto rn e y de nie d th a t th e pe tit ion e r e ve r t oldhim his

se xua l con ta c t with the vic tim wa s con se ns ua l but sa id tha t in ste a d, the pe tit ion e r i nit ia lly de nie d it happene d at all. He said that he read the transcript of the petitioner’s c onfession to the police a nd that it contained nothing to make him suspect the petitioner was intox icated. H e said he telephoned the petitioner’s mother , who re fused to testify . He sa id that he would have tried t h e case if the
pe tit ion e r a ndthe pr os e c uto r h a d not be e n ab le to re a c h a n a g re e me nt b ut c on c e de d th a t he wo uld ha ve ne e de d a

fe w m or e da y s to pr e pa

re be c a us e he be lie ve d the c a se sh ou ld se ttl e . H e sa id tha t hi s primary objective in neg otiating the ple a ag ree ment was a voiding a ny consec utive sentenc es, which would have ma de possible a punishment ra ng e o f thirty -eig ht to six ty -two y ear s. He said the petitioner had no via

ble def ense strateg y , considering his twenty -pag e conf ession, th e rec overy

of the we apo n a ndmon e y , a ndthe DN A te st re su lts lin kin g the pe tit ion e r wi th the g un a ndthe vic tim

.

After considering the testimony and the evidenc e presented, the trial court c oncluded that the

a tto rn e y ’s mis sta te me nt o f the fa c ts d id n ot af fe c t the vo lun tari ne ss of

the pe tit ion e r’ s g uil ty

ple a s. The trial c ourt found “incr edible” the petitioner’s claim he was unawa re he was pleading g uiltyat the plea he aring

. I t also found t hat t he petitioner w as ade quately advised of the nature of the c harg es and possi ble sentenc es; that he wa s advised of his constitutional rig hts and subsequently waived them; that he was a war e that a jury trial was not forthcoming f ollowing his plea s of g uilty ; and that the tr ia l c ou rt did no t vio la te a ny pr oc e du ra l re qu ir e me nts , inc lud ing Rul e ll, Te nn

. R. Cr im. P., in

a c c e pti ng the g uil ty

ple a s. Th e tr ia l c ou rt

de te rm ine d th a t th e pe titio ner ’s the ft c on vic tio n s ho uld be set a side as a le sser include d offe nse of a g g ravated robbe ry and found tha t the petitioner’s attorney was not informe d that the petit ioner’s offense of j oyriding occur red while he was a juvenile. Fr om the trial court’ s perspe ctive, the most serious al l ega t i on in the petition was the attorne y ’s failure to include the plea hearing tr anscript in the recor d on appea l. Howeve r, the trial c ourt found that the petitioner fa iled to establish that his appea l w ould ha ve been suc cessf ul but for the omission of the tra nscript or to pre sent any leg al authority

that the enha nceme nt and mitigating fac tors wer e not proper ly applied at his sentencing . As for the possibili ty of merg ing the ag g ravated kidnapping

c on vic tio n in to h is c on vic tio n f or a g g ra va te d r ape , the tr ia l c ou rt fo un d th e pe tit ion e r f

a ile d to establish that an issue existed unde r State v. Anthony
, 817 S.W .2d 299 (Tenn. 1991) . I t found that pla c ing the se c on d v ic tim in the ba thr oo m wa s sep arate a nd apa rt fr om the ra

pe of the fi rs t vi c tim and, thus, that an Anthony issue did not ex ist. I n conclusion, the trial court found tha t the petitioner failed to prove that his guilty pleas we re not vol u n t ary and intellige nt or that he re ceive d the ine ff e c tiv e a ssi sta nc e of

c ou ns e l.

On appe al, the petitioner c ontends that the ineffe ctive assistanc e of c ounsel rec eived dur ing the ple a ne g oti a tio ns , c omb ine d wi th the tr ia l c ou rt ’s fa ilu re to a dh e re to the re qu ir e me nts se t f orth in R ule 11 , T e nn . R. Cr im. P., a ndSta te v. Ma c ke y , 5 53 S.W. 2d 33 7 (Tenn . 1 99 7) , r e nd e re d h is
g uilty pleas unknowing
, involuntary and unintelligent. He also contends that he rec eived t he ine ff e c tiv e a ssi sta nc e of

c ou ns e l du ri ng his app e a l whic h warr a nts a ne w tri a l in his c a se . T he sta te-6-

contends that the pe titioner’s g uiltypleas we re know ing a nd v o l u n t ary and that he r ece ived the eff ective a ssistance of c ounsel pre- trial and on a ppeal.

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

I n order for a petitioner to succe ed on a post-c onviction c laim, the petitioner must show the alleg ations set forth in his petition byclea r and c onvincing evidenc e. T.C.A. § 40-30-210( f). A tr ial

c ou rt ’s fi nd ing s o f f

a c t in a po st- c on vic tio n he ari ng are c on c lus ive on app e a l un le ss the e vid e nc e in the re cord preponde rate s ag ainst those finding s. See B utler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). Howe ver, we re view the tria l court’s c onclusions of law, such a s whether counsel’s perf o rm ance was de ficient or w hether that defic iency

was pre judicial, under a

de novo standa

rd. State v. Burns, 6 S.W .3d 453, 461 (Tenn. 1999) . Post-c o nviction relief ma y only be g iven if a conviction o r s entence is void or voidable be cause of a violation of a constitutional right. T.C.A. § 40-30-203.

Under the Six th Amendment, when a claim of i neff ective assistance of counsel is m ade, the burden is on the pe ti t i o n er to show that ( 1) counse l’s perf ormanc e wa s deficie nt, and (2) the defic iency was pre

judicial in terms of re ndering a re asonable probability that the re sult of the trial

was unreliable or the proce eding s fundame ntally unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct

. 2052, 2064 (1984); see L ockhart v. Fre twell, 506 U.S. 364, 368-72, 113 S. Ct. 838, 84 2- 44 (1 99 3) . I n o the r w or ds , a sh ow ing that c ou ns e l’ s p e rf or ma nce f

ell be low a

re a so na ble
stan d ar d is n o t e n o u g h ; r a th e r , th e p e ti ti o n e r mu s t a ls o s h o w th a t b u t f o r th e s u b standard perf ormanc e, “the result of the proceeding would have be en diffe rent.” Strickland, 466 U.S. at 694, 1 0 4 S

. C t

. a t2 0 6 8

. T h e S t r i c k l a n d s t a n d ar d h a s b e e n ap p l i e d t o t h e r i g h t t o c o u n s e l u n d e r ar t i c l e I, section 9 of the Tenne ssee Constit ution. State v. Melson, 772 S.W .2d 417, 419 n.2 (Tenn. 1989)

. When a petitioner c laims that ineffe ctive assistanc e of c ounsel resulted in a guilty plea, the petitioner

mus t pr ov e that c ou ns e l per fo rm e d de fi c ie ntl y a nd that but f or c ou ns e l’ s e rr or s, the pe tit ion e r w ou ld not have pled guilty and would have insist ed upon g oing to trial. Hill v. L ockhart, 474 U.S. 52, 59, 106 S. Ct . 366, 370 (1985).

I n Ba x ter v. Rose, 523 S.W .2d 930, 936 (Tenn. 1975) , our supre me court decided tha t attorne y s should be held to the g ener al standar d of whe ther the se rvice s rende red w ere within the
rang e of c ompetence demande d of attorne y s in criminal case s. The court stated t h at the ra ng e of competenc e wa s to be mea sured by the duties and c riteria se t forth in Be asley v. United States, 491 F.2d 687, 696 (6th Cir. 1974)
, and United States v. DeCoster, 487 F.2d 1197, 1202-0 4 (D

. C

. C i r. 1973). Also, in revie wing counsel’s conduct, a “fa ir assessment of attorney perf ormanc e re quires that every

eff ort be made to eliminate the distorting e ffe cts of hindsig ht, to reconstruc t the circ umstances of

counsel’s c halleng ed conduc t, and to evalua te the conduc t from counse l’s
perspe ctive 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)

.-7- A. The G uiltyPleas

T h e p etitioner conte nds that he re ceive d the ineff ective a ssistance of c ounsel during plea

n e g o t i a t i o n s , t h e r e b y

r e n d e r i n g h i s g u i l t y

p l e a s u n k n o w i n g , i n v o l u n t ar y , a n d u n i n t e l l i g e n t

. In support of this conten t i o n , h e points to his attorney ’s numerous misstatements while re lating the fac tual basis to the trial court at the plea hearing a nd to the fac t that his attorney allowed him to plead
g uiltyto theft, a lesser included of fense of anothe r off

ense to whic h he pled g uilty . He a rg ues that his attorney

failed to infor m him of the possibil ity that his ag g ravated kidnapping conviction may have me rg ed into either the ag g ravated ra pe or a g g ravated robbe ry conviction a n d that, but for counsel’s f

ailure to a dvise him of “all the possibilities,” he would not have pled g uilty

.

As for c ounsel’s misstatements while re lating the fac tual basis for thep e ti ti o n e r ’ s g uiltypleas to the trial court, the r ecor d ref lects that none of

his statement s co n ce rned material fa cts. The petitioner’s g uilt of the offe nses was not ba sed in any part on the na me of the vide o store or whe ther he was appre hended in a caf é or a field of g rass. Also, it wa s not ma terial w h et h er t h e petiti oner rape d the victim in the front or re ar of the store, whe ther the kidnapping vic tim was confined or locked in a storeroom or bathroom, or whether the pistol used to c ommit the rape wa s re co v er ed from the money bag or the petitioner’s pocket. The petitioner has failed to de monstrate pre judice.

Reg arding the petitioner’s c onviction for thef t, the trial court f

ound the petitioner wa s corr ect in tha t his g uilty plea to the ft was unwa rra nted bec ause it wa s a lesser included off

ense of the robbe ry char g e. The trial court order ed that the theft conviction be set aside and an amende d judgme nt be
enter ed dismissing the thef t count in the plea se ttlement. We fail t o s ee h o w t h es e cir cumstance s pr e jud ic e d th e pe tit ion e r r e la tiv e to h is o the r g uil ty ple a s.

As fo r the po ssi bil ity that his ag g ra va te d k idn app ing c on vic tio n may ha ve be e n me rg e d in to either the ag g ravated ra

pe or a g g ravated robbe ry

convictions, w e c o n c lu d e th at c o unsel’s explanation why this was not pursued does no t re flec t adequa te per formanc e. Howe ver, w e conc lude the petitioner wa s not prejudiced by counsel’s de ficienc y

. I n State v. Dix on, 957 S.W .2d 532, 534-35 (Tenn. 1997)
, o u r s u p reme court explained that “[t] he Anthony decision should only

preve nt the injusti ce w hich would occ ur if a defe ndant could be convicted of kidnapping wher e the only restra int uti lize d w a s th a t ne c e ssa

ry to co mpl e te the a c t of

ra pe or ro bb e ry ,” a nd“ a ny

re str a int in a dd iti on to that which is nec essary

to consummate ra

pe or r obbery

may support a separate conviction for kid na pp ing .” On e c omm its a g g ra va te d k idn app ing wh o k no wi ng ly re mov e s o r c on fi ne s a no the r s o as to interfe re substantially with the other’s liberty

and to fa cilitate the commission of a felony , flig ht there afte r, or with the intent to inflict serious injury on the victim or another. See T.C.A. § 39-13- 30 4. Th e kid na

pp ing of the se c on d v ic tim

by pla c ing he r in th e bathr oo m w a s n ot n e c e ssa ry to complete the a ct of ra

ping the first victim and, because it occur red after the petitioner re moved the
money from the sa fe, it wa s not nece ssary to complete the ac t o f ro bbery . The pe titioner did not

re c e ive the ine ff

e c tiv e a ssi sta nc e of

c ou ns e l r e la tiv e to h is g uil ty ple a s.-8- B. The Appea l

The pe titioner contends that he a lso rece ived the inef fec tive assistance of counsel on appea l beca use his attorney

failed to inc l u de the g uiltyplea he aring transcript in the appellate r ecor d and fa i l ed t o ar gu e t h at t h e t ri al co u rt er re d b y co n s i d er i n g h i s j u v en i l e c o n v i ct i o n d u ri n g s en t en ci n g. The state r esponds that t he attorney ’s choice not to include the plea hearing transcript was a tac tical de c isi on wh ic h th is c ou rt sh ou ld n ot s e c on d g ue ss a ndthat th e peti tio ne r f a ile d to sh ow that hi s attorney knew he was a juvenile at the t ime he commit ted t he offense. The state c ontends that the petitioner also fa iled to show that the trial court was prohibited from using the joyriding conviction to enhanc e his sentenc e in th e ev en t he was a juvenile at the time and tha t even if his counse l’s
pe rf or ma nc e wa s d e fi c ie nt, the pe tit ion e r f a ile d to de mon str a te that he suf fe re d p re jud ic e a s a

re su lt.

As previously

noted, this court observe d that the petitioner did not include a transcript of the
g uiltyplea he aring in the rec o rd o n appea l and that the trial c ourt had spec ifically considere d the evidenc e presented at the g uiltyplea he aring in determining the sentenc e. This court stated that the omission of the transcript par ticula rly hindere d our re view of the enhanc ement and mitig ating fac tors applied by

the t rial court, and we pr esumed that the e vidence not included in the re cord w ould have

su pp orte d th e imp os iti on of the pe tit ion e r’ s se nte nc e s. Jac ks on , s lip op . a t 3, 6. At the po stconviction hea

ring , the petitioner’s attorney testified that it was a c onscious decision on his part not to include the plea

hearing tr anscript in the appellate r ecor d beca use he de emed t h e information contained in it irrele vant to the issues befor e this court. He disag ree d that the court was hindere d by the incomplete rec ord and said that the court would only require the transcript if it determined the trial court e rre d and it was ne cessa ry to resente nce the petitioner. He testified that beca use this court

c on c lud e d th e tr ia l c ou rt did no t e rr , it did no t re qu ir e the tr a ns c ri pt. Hi s st a te me nts are inc or re c t.

The opinion in that appea l r evea ls tha t be cause the rec ord on appea l failed to include the plea hearin g tr a n s c r ip t, th is c o u r t p r e s u me d th a t th e e v id e n c e n o t in c lu d e d in th e r e c o r d w o uld have

su pp orte d the imp os iti on of the pe tit ion e r’ s se nte nc e s a ndthe tr ia l c ou rt ’s de te rm inatio ns . T hu s, thi s court’s r eview of

the application of enhance ment fac tors (10) a nd (16) a nd mitigating fac tor (1) w as incomplete and hindere d by the attorne y ’s dec ision to not provide this court with a pr oper r ecor d. I d. at 5-6. When a defe ndant challeng es his or her se ntence , this court conducts a de novo re view of the sente nce by

considering , among other thing s, the evidenc e rec eived at trial and the na ture a nd char acte ristics of the criminal conduct. See T.C.A. § 40-35-210( b). For those defe ndants who plead
g uil ty , th e g uil ty

ple a he ari ng is the e qu iva le nt o f a tr ia l, b e c a us e it a llo ws the state the op po rtun ity to p re se nt the fa c ts und e rl y ing the of fe ns e

. Sta te v. Ke e n, 99 6 S. W.2 d 8 42 , 8 43 -8 44 (T e nn . Cr im. App. 1999). F or this rea son, a transc ript of the g uiltyplea he aring is neede d t o conduct a proper

re vie w o f the se nte nc e imp os e d. I d. a t 844. We co nc lud e that the a tto rn e y ’s fa ilu re to p ro vid e thi s court with the tra nscript of the ple a hea ring on appea l constituted deficient pe rfor mance

.

As fo r p re

jud ic e , w e be lie ve the re c ord refl ect s that a lth ou g h th e tr ia l c ou rt

state d th a t it

rec alled the g uiltyplea procee ding and would “ce rtainly be usi ng the factual basis that was pre sented at that time” in its sentencing deter minations, the guilty plea hearing did not provide any evidenc e to s up po rt the e nh a nc e me nt a ndmit ig a tin g fa c tor s a pp lie d in the pe tit ion e r’ s c a se wh ic h w a s n ot a lso-9-

provided a t the sentenc ing he aring

. The fac ts pr ovided in the pre sentenc e re port in the petitioner’s
appea l essentially

mirrore d the fa cts that wo u l d have be en provide d this court by the plea he aring
transcript. The petitioner’s a ppeal primarily focuse d on the trial court’s use of e nhance ment fac tors (10) a nd (16) in dete rmining his sente nce f or count one , ag g ravated ra pe. I n finding the record too incomplete to asc erta in whether the fa cts war

rante d application of fac tor (10), appropriate when the defe ndant possessed or employ ed a firea rm during the commission of the offe nse, this c o u rt conclude d that even if the t rial court’s use of it wer e improper , the re maining e nhance ment fac tors justified the imposit ion of the maxim um sentence for the offe nse. J ackson, slip op. at 5; s ee T .C.A. § 40-35-114( 10). The rema ining enhanc ement fac tors used to determine the petitioner’s se ntence involved one prior misdeme anor c onviction and finding s conce rning the treatme nt of and injuries sustained by

the victims, who testified at the sente ncing hearing. See T.C.A. § 40-35-114( 2), (6)
, (7 ), (8 ), (1 1) , a nd(1 7) . B e c a us e we c on c lud e that th e pe rf or ma nc e of

the pe tit ion e r’ s a tto rn e y

did not alter the r esults of the proc eeding , the petitioner ha s failed t o d em o n s t rate that he suffe red prejudice

. The pe titioner also contends that his attorney was de ficient for

not arg uing on a

ppeal that the
tr ia l c ou rt e rred by con sid e ri ng his c on vic tio n f or joy ri din g du ri ng se nte nc ing be c a us e he wa s a juv e nil e a ndfo r n ot c omm un ic a tin g wi th h im d ur ing the pe nd e ncy of hi s a pp e a l. A s f

or his conviction, the pre sentenc e re port ref lects t hat t he petiti oner said he was convicted of misdemeanor unauthorized use of a

vehicle in North Carolina. I t also ref lects t hat he was arre sted when he was eig hteen y ear s old. The trial court found th at t h e p eti tioner fa iled to inform his attorney he committed the offe nse while a juvenile. The r ecor d does not preponde rate ag ainst this finding and does not otherwise indicate that the North Carolina conviction was invalid. Reg arding the lack of communication, the petitioner c laims tha t his attorney failed to a nswer the letters he sent him from jail while his appea l was pending . Howeve r, the pe titioner has fa iled to show how th e l ac k of communication pre

judi ce d his case. T he petitioner did not re ceive the ineff ective a ssistance of

c ou ns e l in the app e a l.

II. VALIDITY OF G UILTY PLEAS

The pe titioner cont en ds that his guilty pleas we re r ender ed unknowing , involuntary and

u n i n t e l l i g e n tb y t h e t r i a l c o u r t ’ s f a i l u r e t o f o l l o w R u l e 1 1
, T e n n

. R

. C r i m

. P

. , a n d S t a t e v

. M a c k e y, 553 S.W .2d 337 (Tenn. 1997). The rec ord ref lects that during the plea hearing, t h e p et i t i o ner’ s counsel re ad the charg es aga inst the petit ioner contained i n the indictments, review ed the r ang e of punishment associated w ith each of the five offe nses, and informed the trial court that the pe titioner intended to plead guilty to all five off enses. The petitioner’s a ttorney informed the tr ial court that
t h e p e t i t i o n e r

h a d ap p e ar e d t o b e s a n e a n d c o m p e t e n td u r i n g d i s c u s s i o n s a n d t o b e i n t e l l i g e nt, articula te, and knowledg eable during the plea ne g otiation process. The trial court then inf ormed the
pe tit ion e r tha t he wa s un de r oa th a nd that he wa s su bje c t to pe rj ury c ha rg e s f or un truth fu l st a te me nts

. The trial c ourt restate d the charg ed offenses, reviewe d the maxim um and minimum puni shment for a C lass A f

e lo n y o f f e n s e , a n d g a v e a

b r ie f o v e r v ie w o f

th e s e n te n c in g p r o c e s s

. T h e p e ti ti o n er

a c kn ow le dg e d tha t he dis c us se d the ple a a g re e me nt with his at torne y a nd sa id tha t he un de rs too d h is

case and the e vidence ag ainst him. The trial court informed the petitioner he had a right to plead not-10-

g uilty , to confront witnesses, and to have a j ury trial repr esente d by an attorney

. Reg arding waiver of his rig ht to a jury

trial, the following colloquy occur red:

C O U R T : D o yo u u n d e r s t a n d t h a tb y p l e a d i n g g u i l t y,

that th e re is n ot g oin g to b e a ny tr ia l?

[P ETI TI ONER]: Yes, sir.

C O U R T : D o y o u u n d e r s t a n d t h a t t h e r e i s n o t g o ing to

b e a n y j u r y?

[P ETI TI ONER]: I

was una war e of a ll that --

COURT: Sir?

[C OUNSEL ]: There is no jury trial --

[ P E T IT IO N E R ] : N o , b u th e ’ s s a yi n g b y m e p l e a d i n g g u i l t y,

the re wi ll b e no jury , n o tria l – s o I wi ll automatically

– (inaudible) -

-
( W h e r e u p o n , C o u n s e l a n d [ t h e P e t i t i o n e r ] c o n f e r b r i e f l y)

[P ETI TI ONER]: Yes, I understand.

COURT: You under stand that there won’t b e any jury here to hear

any evidenc e?

[P ETI TI ONER]: Yes, sir.

CO UR T: Yo u u nd e rs ta ndthat y ou are g ivi ng up tho se

ri g hts ?

[P ETI TI ONER]: Yes, sir.

The trial court continued by informing the petitioner that he had the r ight to re main silent and that no one could force him to plead guilty or t o incriminate him self. The trial court asked the petitioner if he unde rstood that by pleading g uilty he was waiving the rights discussed and the right to appea l his convictions. The petitioner r esponded a ffirma tively and ac knowledg ed that h e u n derstood he

wo uld ha ve fi ve fe lon ie s o n h is c ri min a l r e c or d w hic h c ou ld b e us e d to e nh a nc e fu tur e pu nis hme nts

. The pe titioner also acknow ledg ed the plea ag ree ment was the result of discussions with his attorney

a n d t h e s t a t e a n d s a i d h e u n d e r s t o o d h e w o u l d s e r v e h i s s e n t e n c e i n t h e p e n i t e n t i ar y.-11-

When evaluating the knowing and volunt ary nature of a g uiltyplea, the U nited States Supreme Court stated that the sta ndard is “w h et h er t h e plea repr esents a voluntary

and intellige nt choice among the alter native cour ses of a ction open to the def endant.” North Carolina v. Alford, 400 U. S. 2 5, 31 , 9 1 S. Ct. 16 0, 16 4 ( 19 70 ). Th e c ou rt re vie wi ng the vo lun tari ne ss o f a g uil ty ple a mus t loo k to the tot a lit y of th e c ir c ums ta nc e s. Se e Sta te v. Tu rn e r, 91 9 S. W.2 d 3 46 , 3 53 (T e nn . Cr im. App. 1995). The se circ umstances 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 proce eding s; whether he was repre sented by competent counsel a nd h ad the opportunityto 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 cern ing the c ha

rg e s a g a ins t hi m; a ndthe re a so ns fo r h is de c isi on to p le a d g uil ty , inc lud ing a de sir e to av oid 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.

Bla nkenship v. State, 858 S.W .2d 897, 9 0 4 (Tenn. 1993) . A plea r esulting f rom ig noranc e, 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 d e f e n d a n t to ma

k e s u r e h e f

u ll y u n d e r s ta n d s th e p le a a n d it s c o n s e q u e n c e s

. St a te 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 S t a t e s S u p r e m e C o u r ts t a t e d t h a tc e r t a i n c o n s t i t u t i o n a l r i g h t s ar e i m p l i c a t e d i n a p l e a o f g u i l t y, namely , the rig ht to a trial by jury , the rig ht to confront witnesses, a nd the rig ht ag ainst compelled

se lf -i nc ri min a tio n, a ndthat it woul d n ot p re su me a wa ive r o f the se thr e e imp orta nt rig hts fr om a silent recor d. 395 U.S. 238, 243, 89 S. Ct. 1709, 1712 (1969). Althoug h these rig hts are r epeated in Macke y

and in Rule 11(c) (3), Te nn. R. Crim. P ., only constitutionally -g rounded rights a re r eleva nt under the Post-Convi ction Procedur e Ac t. See State v. Prince, 781 S.W.2d 846, 853 (Tenn. 1989)

. To the extent the petitioner’s cla im is based upon the re quirements for the taking of g uiltypleas imposed by

Macke y and Rule 11, Tenn. R. Crim. P., but not re lated to constitutional rights, it is not
cog nizable in a sui t for post-conviction relief

. See State v. Ne al, 810 S.W.2d 131, 137 (Tenn. 1991); Prince, 781 S.W.2d at 846. Post-convic tion relief is ava ilable only when a conviction or sente nce is void or voidable bec ause of a violation of a c onstitut ional rig ht. T.C.A. § 40-30-105.

The re cord r efle cts that the trial court satisfied the re quirements of B oykin. During the plea colloquy betwee n the petitioner a nd the trial court at t h e p l ea hearing, the trial court informed the
pe tit ion e r h e ha d a

ri g ht t o p le a d n ot g uil ty , th e ri g ht t o n ot i nc ri minate him se lf, a ndthe ri g ht t o confr ont witnesses. The pe titioner acknow ledg ed that he unde rstood. The trial c ourt also informed him that he had the rig ht to have a jury trial and be re prese nted by an attorne y . When he appe are d

c on fu se d a

bo ut the is su e of

wa ivi ng a

jury tr ia l, h e wa s g ive n a n o pp ortun ity to c on fe r w ith his attorney . I mmedi at el y there afte r, he c onfirmed that he understood he w as g iving up his rig ht to a jury tr ia l. H e a lso a c kn ow le dg e d th a t he ha d th e ri g ht to re ma in sil e nt, that no on e c ou ld f or c e him to plead g uiltyor to incriminate himself, and that he under stood by pleading g uilty

he wa s waiving-12-

t h e r i gh t s l i s t ed b y

t h e t ri al co u rt

. W e c o n cl u d e t h at t h e p et i t i o n er ’s gu i l t y p l ea s we re k n o wi n g,

vo lun tary , a ndint e lli g e nt.

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 ndthat hi s g uil ty pleas we re know ing, voluntary , and intellige nt. B ased upon the fore g oing and the re cord a s a whole,

we a ff ir m th e jud g me nt o f the tr ia l c ou rt

.

___________________________________ J OSEPH M. TI PTON, J UDGE