Cook v. State ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
FEBRUARY 1998 SESSION May 20, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
BILLY EUGENE COOK, )
) No. 03C01-9709-CR-00390
Appe llant, )
) Knox C ounty
vs. )
) Honorable Mary Beth Leibowitz,
STATE OF TENNESSEE, ) Judge
)
Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
MARK E. STEPHENS JOHN KNOX WALKUP
Public Defender Attorney General & Reporter
JULIA AUER JANIS L. TURNER
Assistant Public Defender Coun sel for State
1209 Euclid Avenue Cordell Hull Bldg., Second Floor
Knoxville, TN 37921 425 Fifth Avenu e, North
Nashville, TN 37243-0493
RANDALL E. NICHOLS
District Attorney General
STEVE GARRETT
Assistant District Attorney
City-County Bldg.
Knoxville, TN 37902
OPINION FILED:____________________
AFFIRMED PURSU ANT TO RU LE 20
WILLIAM B. ACREE, JR.
SPECIAL JUDGE
OPINION
The petition er, Billy E ugen e Coo k, app eals a s of righ t the trial c ourt’s
dismiss al of his pe tition for post-c onviction re lief.
The petitioner entered guilty pleas on March 26, 1982, to burglary in the
third degree (two cases) and grand larceny. He received concurrent sentences of
three to ten years. The petitioner was later found to be an habitual criminal by
the Da vidson C ounty C riminal C ourt and was se ntence d to life impr isonm ent.
Thes e convictio ns were underlyin g convictio ns for the h abitual crim inal sente nce.
The petitioner filed this petition on June 30, 1989.1 Following an e videntiary
hearing held on May 1, 1997, the trial court dismissed the petition.
We affirm the judgment of the trial judge.
The petitioner alleges that he did not receive effective assistance of
counsel when he pled guilty. Specifically, the petitioner contends that his trial
counsel did not fully advise him about the Habitual Criminal Act. He claims that
he pled guilty because he believed if he were found guilty, he could be declared
to be a ha bitual crim inal.
Prior to the ac cepta nce o f the gu ilty pleas , the dis trict attor ney ge neral to ld
the court in the presence of the petitioner that the petitioner was not subject to the
Hab itual Cr imina l Act. T he trial c ourt ad vised th e petitio ner tha t if he sh ould
com mit an other fe lony, he would be su bject to being tried as an ha bitual c rimina l.
At the post-conviction hearing, the petitioner admitted that his trial counsel
told him h e did not th ink that the State co uld conv ict him as an hab itual crimina l.
He the n gave th is testimo ny:
Mr. Cook: But thinking is not for sure. So, I don’t want to take
a chance on a life sentence instead of the three to ten years
senten ce. I would rather ha d the thre e to ten ye ars sen tence tha n to
take a chance on thinking you know. If he said, “Well, I know he
can’t c onvict y ou on a life sen tence ,” I would have to ok it to tria l.
The Court: He did advise you, though, that he didn’t think they
1
The Post-Conviction Act came into effect on July 1, 1986. The petitioner had until July
1, 1989 to file this petition. Abston v. State, 749 S.W.2d 487, 488 (Tenn.Crim.App. 1988).
could convict you on an habitual criminal charge?
Mr. Cook: He said he didn’t think, but he wasn’t for sure.
In the post-conviction proceeding, the trial judge found that the petitioner
was fu lly advise d of his rights a nd of th e effec t of the H abitua l Crim inal
Act upon his conviction. The trial judge further found that he entered his plea
freely, voluntarily and knowingly, and that the advice given him by his trial counsel
was no t at fault.
“In post-conviction relief proceedings, the petitioner has the burden of
proving the allega tions in his petition by a prep onderanc e of the evidenc e.”
McBe e v. State, 655 S.W.2d 191, 195 (Tenn.Crim.App. 1983). Furthermore, the
factual findings of the trial court and hearings “are conclusive on appeal unless
the evidence preponde rates against the judgmen t.” State v. Buford , 666 S.W.2d
473, 475 (Tenn.Crim.App. 1983). Post-conviction relief is available only when the
conviction or sentence is void or voidable because of the abridgement in any way
of any righ t guaran teed by th e Con stitution of T ennes see or o f the Unite d States .
Snea d v. State, 942 S.W .2d 567, 568 (Tenn.C rim.App. 199 6).
In the cas e at bar, the evidenc e supp orts the find ings of the trial court.
Furthermore, the petitioner has neither alleged nor proved the violation of any
right guaranteed to him by the Constitution of the United States or of Tennessee.
We find that the appellant was not denied the effective assistance of
counsel in regard to his pleas of guilty and that his pleas were voluntarily and
knowingly entered.
The judgment of the trial court is affirmed in accordance with Rule 20,
Tennessee Court of Criminal Appeals.
___________________________________
WILLIAM B. ACREE, JR., SPECIAL JUDGE
CONCUR:
____________________________________
JERRY L. SMITH, JUDGE
____________________________________
THOMAS T. WOODALL, JUDGE