Adams v. State

OPINION

DWYER, Judge.

The trial court in its finding of fact and conclusion of law after an evidentiary hearing found that the petitioner voluntarily entered his guilty plea which brought about his confinement. The petition was dismissed.

Through court-appointed counsel the contention is made that the trial court erred in dismissing the petition. He contends that petitioner’s guilty plea on June 25, 1970, to the offense of burglary in the third degree with resulting punishment of confinement for not less than three nor more than ten years was involuntary as not being entered knowingly and understandingly.

He basically premises this contention on the fact that an habitual criminal count to the burglary indictment was defective on its face. He reasons that this is corroborated by petitioner’s testimony that if he had been properly advised he would not have pled guilty.

In Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473, the following language may be found:

“A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void.”

The petitioner’s allegation here hinges on the proposition that his court-appointed counsel did not properly counsel him as to whether the habitual criminal count was defective. This allegation was raised after appointment of counsel in an amendment to the petition. He (counsel) contends that the habitual criminal count was bad, which then comes down to the question of whether petitioner was aware that the habitual criminal count may have been defective when he entered his plea. The record reflects that petitioner testified that if he had known that the indictment was defective he would not have pled guilty. The record reflects further that petitioner entered his guilty plea in order to escape possible confinement for life on the habitual criminal count. This, in substance, commits his contention, as we view it, within the holdings found in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747, which teaches that a guilty plea is not rendered involuntary when motivated by a desire to escape the death penalty. Is not this a fair summation of petitioner’s contention in this record? We think so and so hold.

We note that court-appointed counsel at the guilty plea hearing from the exhibits filed, conveys to us that he was diligent in his representation of petitioner by the various motions he filed in his behalf.

We also note that this is not, as counsel urges, a silent record as defined in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. There are to be found waiver forms, executed by petitioner and petitioner’s attorney which repudiate petitioner’s uncorroborated testimony in this record that he was not properly advised. In this court counsel cites Bailey v. MacDougall, 392 F.2d 155 (4th Cir.), which, as we read that case, is readily distinguishable from the facts found in this record. In that case there was proven that a promise was made to Bailey in writing that the prosecutor and the chief of police would go before the pardon and parole board on Bailey’s behalf after he had served ten years of a life sentence. We have no situation of that kind in this record. He further is saying the judgment of his counsel at the guilty plea hearing he now thinks was bad. We disagree. We do not feel that petitioner should be allowed to, as he requests, second-guess the judgment of counsel. To allow this, no plea would ever be secure. He was fully aware of his plea and its consequences. The trial court found such to be so at the hearing. From our review, we find no reason to disagree. The burden is upon petitioner to prove his allegations. See State ex rel. George v. Bomar, 216 Tenn. 82, 390 S.W.2d 232. We hold he has failed to do this.

The judgment of the trial court is affirmed.

We thank court-appointed counsel for ably representing an indigent accused.

MITCHELL, J., concurs.