State vs, Albert Lewis

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
APRIL SESSION, 1997 FILED
July 10, 1997
Cecil Crowson, Jr.
ALBERT LEWIS, ) Appellate C ourt Clerk
) No. 02C01-9512-CR-00394
Appellant )
) SHELBY COUNTY
vs. )
) Hon. BERNIE WEINMAN, Judge
STATE OF TENNESSEE, )
) (Post-Conviction)
Appellee )
) (Three counts of Aggravated
) Rape; One Count Aggravated
Robbery)
For the Appellant: For the Appellee:
JAMES A. COHEN CHARLES W. BURSON
Attorney at Law Attorney General and Reporter
200 Jefferson Avenue
Suite 925 SARAH M. BRANCH
Memphis, TN 38103 Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
JEANNE REA Nashville, TN 37243-0493
Attorney at Law
6000 Poplar Avenue
Suite 401 WILLIAM GIBBONS
Memphis, TN 38117 District Attorney General
REGINALD HENDERSON
Asst. District Attorney General
Shelby County District Attorney's Office
Criminal Justice Complex
201 Poplar Avenue, Third Floor
Memphis, TN 38103
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, Albert Lewis, appeals from the dismissal of his petition for
post-conviction relief. On December 17, 1991, the appellant pled guilty in the
Shelby County Criminal Court to three counts of aggravated rape, and, on
January 10, 1992, to one count of aggravated robbery. He received a sentence
of twenty years for each aggravated rape conviction and a sentence of eight
years for the aggravated robbery conviction. All sentences were ordered to run
concurrently. On March 2, 1994, the appellant filed a petition for post-conviction
relief alleging that his guilty pleas were not entered knowingly and voluntarily and
that he received the ineffective assistance of counsel. Specifically, he contends
that his pleas were not voluntary because neither counsel nor the trial court
advised him of his Fifth Amendment right against self-incrimination. In reference
to his ineffective assistance of counsel claim, he alleges that trial counsel failed
to file pre-trial motions, failed to interview potential witnesses, and misinformed
him of his release date. The post-conviction court conducted an evidentiary
hearing and denied relief. The appellant now appeals this denial.
At the post-conviction hearing, the appellant's trial counsel testified that
she filed motions for discovery, investigated the charges against her client, and
interviewed potential witnesses. Moreover, counsel testified that she reviewed
with the appellant the implications of waiving his right to a jury trial, including his
right that he could not be compelled to incriminate himself. Trial counsel denied
making any promise to the appellant concerning the length of time he would
serve. The transcript of the December 17, 1991, guilty plea hearing reflects that
the appellant was specifically advised by the trial judge of his right against self-
incrimination. The State concedes, however, that the transcript of the January
10, 1992, plea hearing does not indicate that the appellant, on that occasion,
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was advised of his right against self-incrimination by the trial judge.
In denying relief, the post-conviction court accredited the testimony of the
appellant's trial counsel and concluded that "at the time the [appellant] entered
his guilty plea he understood his right against self-incrimination and he entered
his guilty plea freely and voluntarily." The court further found that trial counsel
"appropriately investigated the case" and did not misinform the appellant as to
his period of incarceration.
When this court undertakes review of a lower court's decision on a
petition for post-conviction relief, the lower court's findings of fact are given the
weight of a jury verdict and are conclusive on appeal absent a finding that the
evidence preponderates against the judgment. Clenny v. State, 576 S.W.2d 12,
14 (Tenn. Crim. App. 1978), cert. denied, 441 U.S. 947, 99 S. Ct. 2170 (1979).
Although the record reflects that the appellant was not advised of his right
against self-incrimination at the January 10, 1992, guilty plea hearing, the record
is clear that the appellant was informed of and had acknowledged this same right
twenty-four days earlier. Moreover, the proof establishes that trial counsel
explained to the appellant his right against self-incrimination in addition to other
constitutional rights he was relinquishing by entering a plea of guilty. In Johnson
v. State, 834 S.W.2d 922, 924 (Tenn. 1992), our supreme court reiterated the
principal that "for a plea to be knowing and intelligent the accused must have
certain knowledge regarding . . .the [constitutional] protections afforded the
accused." The court distinguished the fact that a defendant may be aware of his
constitutional rights even though not advised thereon. Id. at 925. Additionally, if
an allegation that the defendant was not advised of his right against self-
incrimination is supported by the evidence, the burden of proving a knowing plea
shifts to the State. Id. However, "it does not, ipso facto, entitle the [defendant]
to relief." Id. The State may rebut the allegation with proof that "the [defendant]
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was aware of his constitutional rights and that therefore the trial court's failure to
give the mandated advice was harmless error." Id. If, as in the case at bar, the
record shows by clear and convincing evidence that the plea was knowing and
voluntary, then the appellant is not entitled to relief. Id. The record indicates that
the appellant understood his right against self-incrimination and that his guilty
pleas were entered knowingly and voluntarily. After reviewing the record, we
cannot conclude that the evidence preponderates against the post-conviction
court's findings. Accordingly, we find no error of law mandating reversal of the
court's judgment. The post-conviction court's denial of the appellant's petition for
post-conviction relief is affirmed.
____________________________________
DAVID G. HAYES, Judge
CONCUR:
________________________________
JOSEPH M. TIPTON, Judge
________________________________
WILLIAM M. BARKER, Judge
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