Darrell John Penner v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
May 19, 2010 Session
DARRELL JOHN PENNER v. STATE OF TENNESSEE
Direct Appeal from the Circuit Court for Perry County
No. 1009 Timothy L. Easter, Judge
No. M2009-00670-CCA-R3-PC - Filed September 9, 2010
A Perry County grand jury indicted the Petitioner, Darrell John Penner, for two counts of
rape of a child. The Petitioner pled guilty to aggravated sexual battery, and the trial court
sentenced him to ten years at 100% in the Department of Correction. The Petitioner filed a
petition for post-conviction relief, claiming that he received the ineffective assistance of
counsel and that his guilty plea was not knowingly and voluntarily entered. The post-
conviction court denied relief after a hearing, and the Petitioner now appeals. After a
thorough review of the record and applicable law, we affirm the judgment of the post-
conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which D AVID H. W ELLES
and J ERRY L. S MITH, JJ., joined.
Larry Joe Hinson, Jr., Hohenwald, Tennessee, for the Appellant, Darrell John Penner.
Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
Clark B. Thornton, Assistant Attorney General; Kim R. Helper, District Attorney General;
Stacey B. Edmonson, Assistant District Attorney General, for the Appellee, State of
Tennessee.
OPINION
I. Facts
A. Guilty Plea
This case arises from allegations that the Petitioner had a sexual relationship with one
of his children who was under the age of thirteen. At the Petitioner’s guilty plea hearing the
State’s attorney summarized the facts underlying the Petitioner’s conviction as follows:
[I]n September 2002, [the Petitioner] had unlawful sexual contact with one of
his children, a child under the age of thirteen years old, who had a date of birth
of May 12th of 1998. During counseling for the treatment with the counselor,
[the Petitioner] informed the counselor, and then who was required by law to
notify the authorities of the admission, the Department of Children Services,
along with Investigator Barry Carroll with the district attorney’s office, began
an investigation of the matter. And after being advised of his Miranda warning,
[the Petitioner] gave a confession to both the DCS representative and
Investigator Carroll admitting that he had had unlawful sexual contact with this
child under thirteen years of age.
Pursuant to a plea agreement, the Petitioner pled guilty to one count of aggravated sexual
battery, a Class B felony, and the trial court sentenced him to serve ten years in the Tennessee
Department of Correction. During the plea hearing, the trial court listed the Petitioner’s rights
and asked the Petitioner whether he understood them, and the Petitioner responded in the
affirmative. Further, the Petitioner testified that he understood he was waiving those rights
by moving forward with the negotiated plea agreement. The Petitioner agreed that he
understood the elements of the charge against him, the negotiated plea agreement, and the
details of the sentence. He stated that he understood the consequences of his plea and the
conviction. The Petitioner confirmed that his signature was on both the jury trial waiver and
the negotiated plea agreement and that he reviewed both documents with his attorney. Finally,
the Petitioner denied any use of alcohol or drugs that might impair his judgment and testified
that he was voluntarily entering his guilty plea.
B. Post-Conviction Hearing
The Petitioner filed a petition for post-conviction relief, and an amended petition,
claiming that he received the ineffective assistance of counsel and that his guilty plea was not
knowingly and voluntarily entered. The post-conviction court held an evidentiary hearing
wherein the following evidence was introduced:
The Petitioner’s attorney (“Counsel”) testified he represented the Petitioner and
negotiated his plea agreement, although he was not present at the hearing where that guilty
plea was entered. At the hearing, the Petitioner was represented by Counsel’s co-counsel.
Counsel recalled that, before the plea negotiations in this case, he received discovery from the
State that included: (1) a police interview with the Petitioner that resulted in an admission
against interest; (2) a police interview with the Petitioner’s wife; and (3) information that the
Petitioner “had, or was about to, attend a mental health facility.” Counsel could not recall
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whether the Petitioner was seeking mental health treatment on his own volition or as a result
of a third party request. Counsel learned through communication with the mental health
facility that the Petitioner “had a sexual deviancy,” and there was concern about his treatment
“because he was basically defending himself for his actions.” Counsel recalled that after
psychological testing the Petitioner was diagnosed as a pedophile and an exhibitionist. The
Petitioner was also diagnosed with a generalized anxiety disorder; however, Counsel said
“there was nothing to indicate that [the Petitioner] couldn’t appreciate right from wrong or he
had any serious mental defect.” Counsel also testified that he did not notice any mental issues
in his interactions with the Petitioner. Based upon this, Counsel did not file a motion to
determine the Petitioner’s competency. Counsel explained this decision saying, “Based upon
my interviews and consultations with [the Petitioner], he seemed very lucid, very – he
understood what he was facing, he was able to respond to me in an intelligent manner. And
then after I read [the mental health facility] reports, I would not have any factual basis to
question his competency.”
The Petitioner’s post-conviction attorney then provided Counsel an assessment
indicating the Petitioner was an individual with “severe and persistent mental illness.”
Counsel testified that he had never seen the document before and that the document would
probably not have changed his case strategy because the Petitioner specifically requested a
plea agreement, stating that he did not want to go to trial. Counsel acknowledged, however,
that he probably would have investigated further if he had seen this assessment.
Counsel recalled that the Petitioner was charged with two counts of rape of a child, and
the Petitioner’s wife was charged as a co-defendant. Counsel agreed that there was no
physical evidence in this case and that the State’s case rested on corroboration testimony.
Counsel said that, although another attorney did the research on corroboration testimony, he
provided the Petitioner with that research and, after the Petitioner read it, Counsel discussed
with the Petitioner the law as it related to the Petitioner’s case. Counsel said that he
anticipated that the testimony necessary to corroborate the Petitioner’s confession would have
come from the Petitioner’s children, the Petitioner’s wife, and church members, to whom the
Petitioner’s had made incriminating statements. Counsel did not interview the children or the
Petitioner’s wife, but did review the interview of the Petitioner’s wife that the police
conducted. The interview revealed that the Petitioner’s wife observed the Petitioner,
unclothed, take their children into a bedroom and, on another occasion, take the victim outside
in the dark without explanation. Counsel explained that he did not interview the Petitioner’s
family because the Petitioner was adamant he did not want his wife to face a trial or
conviction and did not want his children involved in any way. “[The Petitioner] said they had
suffered enough, he was trying to protect them.”
Counsel testified that he was unaware of any threats made to the Petitioner regarding
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the loss of his children in the event he did not cooperate.
On cross-examination, Counsel testified that he had practiced law for thirty-three years.
Counsel said that, during his entire representation of the Petitioner, the Petitioner was
consistent in his request that Counsel negotiate a plea rather than take the case to trial.
Counsel’s co-counsel, who was present at the guilty plea hearing and who conducted
the research on corrobation testimony, testified that he worked in Counsel’s office and
researched accomplice testimony for the Petitioner’s case. He also was with the Petitioner on
the day he plead guilty:
[W]e were hoping to enter the plea and get 30 days to respond – to
report. I think [the Petitioner] said he had to wrap his business up. We got here
that day, I spoke to the District Attorney about it, and we actually researched
the law and found that since it was non-probatable offense, that he would not
be able to enter the plea that day and then remain free on bond.
However, there was some concern[] that there would be a new judge in
January, and the deal was so lenient, that if we went to a different judge, that
that judge would not accept the plea bargain and would reject that plea.
Co-counsel also remembered that the Petitioner was nervous when the hearing to accept his
guilty plea was moved until after lunch. The Petitioner’s reaction did not raise any questions
in Co-counsel’s mind as to the Petitioner’s ability or willingness to plead guilty but, rather,
indicated to Co-counsel that the Petitioner was nervous about whether the judge would accept
the negotiated plea agreement. Co-counsel did not specifically recall going over the plea
agreement with the Petitioner, but maintained that the Petitioner never indicated he did not
understand the agreement. Co-counsel testified that had the Petitioner indicated any lack of
understanding, Co-counsel would not have allowed the Petitioner to proceed with the guilty
plea.
Bill Saul testified that he had known the Petitioner since 1999 and they were part of
the same church community. Saul said that the church advocates that its members should
submit to laws and the government unless “it would violate our conscience.” Saul became
aware of the Petitioner’s conduct and said that the church community, out of concern for the
Petitioner and his family, felt he needed to seek professional help. When asked if the church
community had a position on the criminal matter, Saul responded:
You know, I have a little bit of difficulty in answering that. I don’t
recall that we sat down and said, “Now, this is the thing for you to do plead
guilty,” on the basis that he had confessed some sins. What I’ve heard here
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today is new to me; what I’ve already heard.
But on the basis of what he had confessed to me, well, if that was true,
well, then the only thing to do would be to confess guilty.
Saul agreed that the church community would not necessarily want “its dirty laundry aired”
but said that the church community would not take steps to prevent it either. Saul agreed that
he was present for meetings between Counsel and the Petitioner and did not recall any
discussion about whether or not the Petitioner should go to trial. Saul said that it was
“advantageous” for the Petitioner to plead guilty rather than go to trial because the incidents
would be less public. Saul speculated that the effect of the Petitioner’s actions on his family
and church community were a significant weight on the Petitioner. Saul recalled hearing that
the Petitioner was having difficulty contacting Counsel but was never present for any of those
phone calls.
On cross-examination, Saul testified that he never told the Petitioner he needed to
plead guilty for the benefit of the community and that he never told him he needed to confess
for the benefit of the community.
Susan E. Franks, an investigator with the Department of Children’s Services (“DCS”),
testified that she investigated allegations that the Petitioner engaged in oral sex with his four-
year old daughter. Supporting the allegation were statements from the Petitioner and his wife,
who witnessed the first incident when she saw the Petitioner with his penis in the victim’s
mouth when the victim was four months old.
Franks said that a formal forensic interview was never conducted with the victim, and,
when she interviewed the victim at the home, the victim did not disclose anything. A physical
examination of the victim was also conducted and the genital exam was normal.
On cross-examination, Franks testified that she had been a DCS investigator for almost
thirteen years and, based upon that experience, she has found that, unless the sexual abuse is
an acute rape, 95 to 98 percent of the time genital exams come back normal.
Barry Carroll, an investigator for the District Attorney’s Office, testified that he
interviewed both the Petitioner and his wife about these charges. Carroll stated that he did
not find any physical evidence of the charges during his investigation. Carroll denied ever
telling the Petitioner that “it would go easier on him if he just accepted it and did what was
asked of him” or that, if he did not cooperate, he would lose his children. Carroll said that the
extent of his investigation was the interviews and that he was unaware of anyone, other than
Franks, investigating the charges.
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The Petitioner testified he hired Counsel based upon a recommendation from a deacon
from the Petitioner’s church. The Petitioner said that he met with Counsel three or four times
in his office and twice in court. These discussions all focused on the guilty plea negotiation.
The Petitioner stated that it was due to Counsel’s “pressure and coercion” that he did not
pursue a trial, explaining:
Well, he was – well, he would just – for one thing, he would never speak
of, he would never – never wanted to speak of going to trial. I mean, he would
speak about it, but he didn’t want to go into it. Like, if I asked him – I
remember asking him about it, and he said, “Oh, you don’t want to put your
daughter on the stand, do you?”
And I was like, No, I don’t want to.
And then I would try to ask more about it, and he wouldn’t even answer
my questions; he just – he gave me the cold shoulder, and I couldn’t go into it
with him.
The Petitioner did not recall Counsel explaining what the State would have to prove
in order for a jury to find him guilty of the charges. The Petitioner said that Counsel
mentioned corroboration but he did not understand what Counsel was talking about. The
Petitioner admitted that he did not ask Counsel to explain it to him but said this was because
Counsel was “very controlling,” and it was difficult to ask Counsel questions.
The Petitioner testified that he had been a member of the Mennonite community for
his entire life and was taught to cooperate with the law and not to hinder it in any way. The
Petitioner recalled meeting with Carroll and being advised he had the right to remain silent,
but he said he did not understand that. He said he felt “compelled to be there and to speak”
based upon the way Carroll presented himself. The Petitioner recalled that Carroll showed
him his badge and gun and said, “I’m authorized by the State of Tennessee to use this weapon
if necessary. I want to make sure you understand who I am.”
The Petitioner said that the investigation regarding these charges began because he was
seeking mental health treatment for depression, anxiety, and panic attacks. The Petitioner said
that, during the time of the investigation and plea, he was taking antidepressants but did not
recall whether he told Counsel he was on medication. During this time, the Petitioner was
also attending regular mental health appointments that he initiated with the support of his
church. The Petitioner testified that he was diagnosed as manic-depressive with an anxiety
disorder, but that, with continued treatment, he had a good prognosis for recovery. The
Petitioner said he did not discuss his mental health treatment with Counsel because Counsel
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told him, “Your part is to make sure you go to all your appointments, and my part is to
negotiate with the D.A.”
The Petitioner testified that, from the beginning, Counsel advised that taking a plea
agreement was his only option. He also said there was pressure placed on him regarding the
charges against his wife:
[From] my understanding, it came through DCS that I would need to take the
guilty plea before they – otherwise they would prosecute my wife and they
would put up the children for adoption; you know, basically what I – in my
words, “on the open market.”. . .And my wife conveyed this to me, and she was
very, very concerned about it, because we were very scared about, you know,
the children losing their mother as well.
The Petitioner testified that his church is a very “tight” organization where the church
leaders have “authority over the congregation.” Church members are obligated to follow the
recommendations of the church community and a church member did not do as they
instructed, they were subject to excommunication. The Petitioner said that excommunication
of a family member would negatively impact the family, and it was not something he wanted
for his wife and children.
The Petitioner did not recall any specific conversations with Counsel regarding
evidence or discovery. The Petitioner denied ever telling Counsel he wanted to plea or that
he was not interested in going to trial. The Petitioner testified that he could not reach Counsel
by phone for almost three months. Once he finally reached Counsel, the Petitioner met him
at his office and Counsel told him they had reached a plea agreement, and the Petitioner
would be going to prison in two days. The Petitioner said:
And that was the shock of my life right there, because I didn’t know anything for
several months, hadn’t hardly talked to him. . . . he asked if I was ready to go,
and I said, ”No, I was not interested in taking a plea,” and so then they put it off.
The Petitioner admitted that, even though he was on antidepressants at the time, he
agreed at the plea hearing that he was not on medication that altered his ability to make a
decision. He explained he only agreed because he did not know “the importance of the
details.” The Petitioner said he did not want to plead guilty but felt he had to in order to
protect his wife and children. The Petitioner described his mental state at the guilty plea
hearing:
And one side of me screamed that this is ridiculous, I can’t be doing this, this is
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not right, I can’t believe that I’m being forced into this. And then the other side
was screaming back and saying I don’t know what else to do; there’s not the
slightest hope of anybody trying to help me, you know, and go in any other
direction.
The Petitioner said that he did not discuss these thoughts with Counsel, explaining these ideas
were simply what went through his mind during the hearing.
On cross-examination, the Petitioner agreed that there were four court appearances
with Counsel rather than two as he had previously testified, which meant he met with Counsel
at least seven or eight times during the course of the case. The Petitioner acknowledged that
an employee of DCS never directly told him DCS was going to take his children, and that he
was relying on his wife’s statements in believing DCS would do so. The Petitioner said he
was not sure whether he specifically told Counsel he did not want a plea, but that was what
was “in [his] mind.” He said that he was intimidated by Counsel, who seemed “very cold and
austere,” and that he took the plea because he was trying to be “cooperative.” The Petitioner
agreed that he never requested a new attorney but emphasized that, because he had agreed for
Counsel to represent him throughout the proceedings, he thought it was his “Christian duty”
to honor that agreement.
The Petitioner agreed that the trial judge reviewed his rights and that the Petitioner, at
the guilty plea hearing, testified that he understood the rights, but he explained that he only
did so “to get the plea bargain.” He felt the plea was his only option. The Petitioner agreed
he answered in the affirmative to all of the trial judge’s questions about whether he
understood the plea, the conviction, and his rights because he felt “that’s what was expected
of [him].” “I can’t say I didn’t have any understanding, but it was my intention to take the
plea bargain and that was, you know, because I didn’t know what else to do.”
At the conclusion of the hearing, the post-conviction court took the petition under
advisement and later issued an order denying post-conviction relief. It is from this judgment
that the Petitioner now appeals.
II. Analysis
On appeal, the Petitioner contends Counsel failed to provide effective assistance and
his conviction is the result of an involuntary plea. The State responds that Counsel’s
performance was not deficient and that the Petitioner’s guilty plea was knowingly and
voluntarily entered.
In order to obtain post-conviction relief, a petitioner must show that his or her
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conviction or sentence is void or voidable because of the abridgment of a constitutional right.
T.C.A. § 40-30-103 (2006). The petitioner bears the burden of proving factual allegations in
the petition for post-conviction relief by clear and convincing evidence. T.C.A. § 40-30-
110(f) (2006). Upon review, when post-conviction proceedings have included a full
evidentiary hearing, as was true in this case, the trial judge’s findings of fact and conclusions
of law are given the effect and weight of a jury verdict, and this Court is “bound by the trial
judge’s findings of fact unless we conclude that the evidence contained in the record
preponderates against the judgment entered in the cause.” Black v. State, 794 S.W.2d 752,
755 (Tenn. Crim. App. 1990). Thus, this Court will not re-weigh or re-evaluate the evidence
below; all questions concerning the credibility of witnesses, the weight and value to be given
their testimony and the factual issues raised by the evidence are to be resolved by the trial
court judge, not the appellate courts. Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999);
Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). A post-conviction court’s conclusions
of law, however, are subject to a purely de novo review by this Court, with no presumption
of correctness. Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001).
A. Ineffective Assistance of Counsel
The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9, of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d
453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following
two-prong test directs a court’s evaluation of a claim for ineffectiveness:
First, the [petitioner] must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the [petitioner] by the Sixth
Amendment. Second, the [petitioner] must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s errors were so
serious as to deprive the [petitioner] of a fair trial, a trial whose result is
reliable. Unless a [petitioner] makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown in the adversary
process that renders the result unreliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417, 419
(Tenn. 1989).
In reviewing a claim of ineffective assistance of counsel, this Court must determine
whether the advice given or services rendered by the attorney are within the range of
competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail
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on a claim of ineffective assistance of counsel, a petitioner must show that “counsel’s
representation fell below an objective standard of reasonableness.” House v. State, 44 S.W.3d
508, 515 (Tenn. 2001) (citing Strickland, 466 U.S. at 688).
When evaluating an ineffective assistance of counsel claim, the reviewing court should
judge the attorney’s performance within the context of the case as a whole, taking into account
all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753 S.W.2d 148,
149 (Tenn. Crim. App. 1988). The reviewing court must evaluate the questionable conduct
from the attorney’s perspective at the time. Strickland, 466 U.S. at 690; Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court must be highly deferential and
“should indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Burns, 6 S.W.3d at 462. Finally, we note that a
defendant in a criminal case is not entitled to perfect representation, only constitutionally
adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In
other words, “in considering claims of ineffective assistance of counsel, ‘we address not what
is prudent or appropriate, but only what is constitutionally compelled.’” Burger v. Kemp, 483
U.S. 776, 794 (1987) (quoting United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)).
Counsel should not be deemed to have been ineffective merely because a different procedure
or strategy might have produced a different result. Williams v. State, 599 S.W.2d 276, 279-80
(Tenn. Crim. App. 1980). The fact that a particular strategy or tactic failed or hurt the defense
does not, standing alone, establish unreasonable representation. House, 44 S.W.3d at 515
(citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)). However, deference to matters of
strategy and tactical choices applies only if the choices are informed ones based upon
adequate preparation. House, 44 S.W.3d at 515.
If the petitioner shows that counsel’s representation fell below a reasonable standard,
then the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694; Nichols v. State, 90
S.W.3d 576, 587 (Tenn. 2002). This reasonable probability must be “sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875 S.W.2d 662,
665 (Tenn. 1994).
The Petitioner argues that Counsel did not completely explain the corroboration
requirements for accomplice testimony or protect the Petitioner’s due process rights by
making sure the State could establish corroborating evidence to support the Petitioner’s
confession. In regard to this issue, the post-conviction court found:
The proof at the evidentiary hearing establishes that the State had sufficient
evidence to independently corroborate the Petitioner’s confessions. According
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to the DCS investigator, the Petitioner’s wife had observed him having oral sex
with the victim. Smith and Wood were aware of this eye witness testimony as
well as the information that the Petitioner had confessed to other members of
his community. This Court is satisfied that had this matter proceeded to trial
the State would very likely have been able to succeed in getting this
independent evidence before the fact finder which would have resulted in a
conviction of Child Rape.
On all disputed issues between [Counsel], Wood and the Petitioner on this
issue, the Court finds [Counsel’s] and Wood’s testimony more credible. They
did what they were asked to do - get the Petitioner the best plea agreement they
could and avoid a trial.
Our review of the record supports the conclusions of the post conviction court. The
Petitioner admitted to his church community, family, and investigators that he had engaged
in sexual conduct with his daughter, the victim. The Petitioner’s wife also gave statements
consistent with the Petitioner’s confession. She said that she had seen the Petitioner engage
in oral sex with the victim when she was an infant. Further, she witnessed the Petitioner take
her daughters into a bedroom unclothed. On another occasion, she witnessed the Petitioner
take the victim outside in the dark without explanation. The Petitioner was also diagnosed,
based on mental health testing and assessment, as a pedophile and an exhibitionist, which is
consistent with his admissions and the charges against him. While a conviction cannot be
supported solely on uncorroborated admissions to a crime, it requires only “slight evidence”
which may be either direct or circumstantial, to corroborate a confession and sustain a
conviction. State v. Alec Joseph Mesot, No. M2006-02599-CCA-R3-CD, 2008 WL 732151,
at *3 (Tenn. Crim. App. March 14, 2008) no perm. app. filed; State v. Ellis, 89 S.W.3d 584,
600 (Tenn. Crim. App. 2000).
As to Petitioner’s claim that Counsel did not explain corroboration testimony to him,
the Petitioner testified that Counsel spoke with him about corroborative evidence, but he did
not understand it and did not seek further clarification of the information or tell Counsel he
did not understand. The post-conviction court found Counsel’s testimony was credible and
found that the Petitioner had not demonstrated by clear and convincing evidence that
Counsel’s representation rose to the level of ineffective assistance or that it prejudiced the
Petitioner. We conclude the evidence does not preponderate against the post-conviction
court’s findings. The Petitioner is not entitled to relief on to this issue.
B. Guilty Plea
The Petitioner next contends his guilty plea was not knowingly and voluntarily entered
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due to his mental illness and pressure placed upon him to protect his family.
When evaluating the knowing and voluntary nature of a guilty plea, the United States
Supreme Court has held that “[t]he standard was and remains whether the plea represents a
voluntary and intelligent choice among the alternative courses of action open to the
defendant.” North Carolina v. Alford, 400 U.S. 25, 31(1970). The court reviewing the
voluntariness of a guilty plea must look to the totality of the circumstances. See State v.
Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995); see also Chamberlain v. State, 815
S.W.2d 534, 542 (Tenn. Crim. App. 1990). The circumstances include:
[T]he relative intelligence of the defendant; the degree of his familiarity with
criminal proceedings; whether he was represented by competent counsel and
had the opportunity to confer with counsel about the options available to him;
the extent of advice from counsel and the court concerning the charges against
him; and the reasons for his decision to plead guilty, including a desire to avoid
a greater penalty that might result from a jury trial.
Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (citing Caudill v. Jago, 747 F.2d
1046, 1052 (6th Cir. 1984)). A plea resulting from ignorance, misunderstanding, coercion,
inducement, or threats is not “voluntary.” Id.In the case under submission, the post-conviction court found:
After a close review of the transcript of the plea hearing, it appears the Trial
Court was very thorough in his explanations of the various rights of the
Petitioner and the rights that the Petitioner would be giving up by pleading
guilty. The transcript does not reveal that the Petitioner did not understand
these rights.
The record establishes that trial counsel explained the plea agreement and the
resulting consequences to the Petitioner before the Petitioner entered his plea.
Additionally, it does not appear from the record that the Petitioner’s plea was
the result of pressure or force to accept the plea agreement. The Petitioner’s
current position on this point is inconsistent with the credible testimony of the
Petitioner’s trial counsel as well as the Petitioner’s admissions to the trial judge
at the time he entered his plea that his actions were knowingly and voluntarily
made. The Petitioner’s remarks made at the plea hearing indicate that he was
fully aware of the nature and the consequences of the plea and that he made a
knowing, intelligent, and voluntary decision to accept the agreement.
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At the Petitioner’s guilty plea hearing, the Petitioner testified that his plea was
voluntarily made. Counsel testified that he reviewed the Petitioner’s mental health records
and there was nothing to indicate incompetency and, furthermore, based on his own
interaction with the Petitioner he found no basis to question th Petitionre’s competency.
Counsel described the Petitioner as lucid and recalled that the Petitioner’s responses to
Counsel were intelligent, which is consistent with the Petitioner’s responses to the trial court
during his guilty plea hearing. The post-conviction court found the Petitioner’s responses to
the trial court at his plea hearing reflected his understanding of his rights. The Petitioner
acknowledged that he testified at the guilty plea hearing that he understood the plea, sentence,
and conviction. He explained to the post-conviction court that he pled guilty not because he
“didn’t have any understanding,” he intended to take the plea because he did not know what
else to do.
The Petitioner relies specifically on an unsigned document stating that the Petitioner
was “a person with severe and persistent mental illness” to support his claim that his plea was
involuntary due to mental incompetency. This document was introduced at the post-
conviction hearing through Counsel who testified that he had never seen it. There was no
testimony, expert or otherwise, explaining the document, where it came from, who
administered the test it documented, or how its contents would relate to the Petitioner’s
competency to enter a guilty plea. Thus, the evidence of record does not preponderate against
the post-conviction court’s findings, but supports the findings of fact and conclusions of law
reached by the post-conviction court.
Finally, the Petitioner claims that his plea was not voluntary because “he was under
great strain from those whom he wanted to protect.” The post-conviction court specifically
accredited Counsel’s testimony that he was unaware of any threats made to the Petitioner in
regard to the loss of his children. Further, the post-conviction court found the Petitioner’s
testimony at the guilty plea hearing credible when he testified that his plea was voluntary. It
is not the province of this court to re-weigh a trial court’s credibility determination, as that
decision is best made by the trial court. State v. Holder, 15 S.W.3d 905, 912 (Tenn. 1999).
Moreover, there was no evidence introduced at the post-conviction hearing, other than the
Petitioner’s statements, supporting coercion from DCS or the District Attorney’s investigator.
Co-counsel testified that he reviewed the plea agreement with the Petitioner prior to the plea,
and the Petitioner did not indicate he did not understand. The Petitioner also testified that he
did not tell Co-counsel or Counsel that he did not want to plead guilty or did not understand
the plea, the conviction, or his rights. Finally, we note that at the guilty plea hearing the trial
court was very thorough in its explanation of the Petitioner’s rights. The Petitioner testified
that he understood and stated that he was entering the plea voluntarily.
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Following our review of the record, we conclude that the Petitioner has failed to
establish that the proof preponderates against the findings made by the post-conviction court
that his plea was entered knowingly and voluntarily.
III. Conclusion
After a thorough review of the record and relevant authorities, we conclude that the
post-conviction court properly dismissed the Petitioner’s petition for post-conviction relief.
Accordingly, we affirm the judgment of the post-conviction court.
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ROBERT W. WEDEMEYER, JUDGE
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