Eddie Wayne Gordon v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

December 12, 2008 Session

EDDIE WAYNE GORDON v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Gibson County

No. 12785 Jerry Scott, Judge

No. W2008-01172-CCA-R3-PC - Filed May 11, 2009

The state appeals the post-conviction court’s grant of post-conviction relief to the petitioner, Eddie

Wayne Gordon. The state argues that the post-conviction court erroneously determined that the

petitioner did not voluntarily and understandingly enter his plea of guilty to first degree murder.

Upon our review of the record and the parties’ briefs, we reverse the judgment of the post-conviction

court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed

J.C. MCLIN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and CAMILLE

R. MCMULLEN , JJ., joined.

Danny R. Ellis, Jackson, Tennessee, for the appellee, Eddie Wayne Gordon.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;

Garry Brown, District Attorney General; and Matthew Hooper, Assistant District Attorney General,

for the appellant, State of Tennessee.

OPINION

BACKGROUND

This case represents a long procedural history. The record reflects that on the morning of

August 12, 1983, the petitioner set his ex-girlfriend’s sister’s house on fire. When the petitioner’s

ex-girlfriend and her sister came out of the house, the petitioner shot and killed his ex-girlfriend, who

was carrying their young child. The petitioner confessed to starting the fire and killing the victim

and was indicted for first degree murder and arson. He pled guilty to first degree murder, and the

trial court sentenced him to life imprisonment. The petitioner timely filed a pro se petition for

post-conviction relief, which the trial court dismissed in 1985 without an evidentiary hearing. In

1986, this court ordered the trial court to appoint counsel and afford the petitioner an evidentiary

hearing. See Eddie Wayne Gordon v. State, No. 2, 1986 WL 1254 (Tenn. Crim. App., at Jackson,

Jan. 29, 1986). Although counsel was appointed, an evidentiary hearing was never held, and the trial

court dismissed the petition for failure to prosecute in 1987. The case “languished in the system,”

and in 2004, this court again ordered the trial court to conduct an evidentiary hearing. Eddie Wayne

Gordon v. State, No. W2003-02376-CCA-R3-PC, 2004 WL 1047606 (Tenn. Crim. App., at Jackson,

May 7, 2004).

In January 2005, appointed counsel filed an amended petition for post-conviction relief,

claiming that the petitioner received the ineffective assistance of counsel because his trial attorneys

did not seek an independent psychiatric evaluation for him and that his guilty plea was involuntary.

After amendments and supplements to the original petition were filed, an evidentiary hearing was

held on March 21, 2005. The following is a summary of the evidence presented at the hearing:

Tim Mullins testified for the petitioner that he was the petitioner’s cousin. On the

night of August 11, 1983, the petitioner came to Mullins’ house, and they watched

television. The petitioner did not appear to be his usual self and was very quiet.

Mullins had known the petitioner to drink alcohol and smoke marijuana, but Mullins

did not see the petitioner use those substances that night. The petitioner and the

victim had been having disagreements about their child, and the petitioner’s baby

“meant everything in the world to him.” The petitioner’s trial attorneys never

interviewed Mullins.

Barbara Collins, the petitioner’s mother, testified that she, her aunt, and her mother

talked with the petitioner’s trial attorneys in the judge’s chambers on October 24,

1983, the day of the petitioner’s guilty plea. The attorneys wanted the petitioner to

accept the State’s plea offer, but the petitioner did not want to plead guilty. The

attorneys told Collins and her family to convince the petitioner to accept the State’s

plea offer, and one of the attorneys told her that he would only represent the

petitioner if the petitioner accepted the offer. At some point, the attorneys left

Collins and her family alone with the petitioner. Collins was afraid the petitioner

would get the death penalty at trial, and she and her family wanted the petitioner to

accept the State’s offer. While they talked with the petitioner, the trial judge came

into the room. The petitioner never denied killing the victim but kept saying that he

wanted to go to trial. On cross-examination, Collins testified that the petitioner’s

attorneys probably talked with her about the petitioner’s options but that she did not

remember their conversation. She acknowledged that she was afraid the State would

seek the death penalty against the petitioner and that she encouraged him to plead

guilty. She thought that if the petitioner pled guilty, he would be released from

prison in about ten years.

Earline Mullins, the petitioner’s great-aunt, testified that she met with the petitioner’s

attorneys on the day of the guilty plea and that the attorneys told the petitioner he

would get a ninety-nine-year sentence with no possibility of parole if he did not

accept the State’s offer. They also told the petitioner that “we’re not going back in

the courtroom until [you take] the plea bargain.” The attorneys told him that he

would get life with parole in thirty years if he pled guilty. The petitioner replied, “I’d

rather jump out that window.” The attorneys left the room, and Mullins and her

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family talked with the petitioner about the State’s offer. Mullins acknowledged that

she and her family “pounded on” the petitioner in order to get him to accept the

State’s offer, and she said she never saw the trial judge in the room while they talked

with the petitioner. The petitioner was living at her house at the time of the crimes,

but the petitioner’s attorneys never interviewed her. On cross-examination, Mullins

testified that she did not remember hearing the attorneys say anything about the death

penalty. Nevertheless, she and her family advised the petitioner to plead guilty

because “we thought it’d be best for him to get out on parole.”

One of the petitioner’s trial attorneys testified that he started practicing law in 1979

and was appointed to represent the petitioner in August 1983. He described his

recollection of the case as “fair” and said that he did not remember any of his

conversations with the petitioner. However, his notes from the case reflected that he

and co-counsel talked with the petitioner about the facts of the case and that he talked

with the petitioner and the petitioner’s family on the day of the guilty plea. Counsel

did not remember if he visited the crime scene, but he interviewed witness Tommy

Hunt. Counsel also had some witnesses’ statements. Counsel remembered telling

the petitioner that the petitioner faced the possibility of the death penalty. The State

offered to let the petitioner plead guilty in return for a life sentence, and counsel

talked with the petitioner about “the pros and the cons” of the State’s offer. Counsel

told the petitioner that the State had to prove its case beyond a reasonable doubt, but

he did not remember explaining the difference between first and second degree

murder to him. He and the petitioner discussed possible defense strategies such as

an alibi and an insanity defense. However, the petitioner told counsel that he had

been upset with the victim for quite some time, had thought about killing her for

hours, and had planned the killing.

Counsel acknowledged that doctors evaluated the petitioner at the Gibson County

Mental Health Center and found the petitioner to be competent. Counsel did not

interview the doctors who conducted the evaluation but had no reason to doubt their

competency finding. Counsel did not know if the petitioner’s doctors were state

employees and was not concerned that the doctors were pressured into finding the

petitioner competent. The State believed it had a good case for the death penalty but

offered to let the petitioner plead guilty to life with the possibility of parole. On

October 24, 1983, counsel and co-counsel met with the petitioner and the petitioner’s

family in order to discuss the State’s offer. Counsel was concerned that the jury

would be enraged by the facts of the case, and counsel advised the petitioner about

the consequences of not accepting the State’s offer. The attorneys told the petitioner

and his family about the possibility of the death penalty and allowed the petitioner

and his family to talk privately. Counsel stated that he did not remember the trial

judge coming into the room while he talked with the petitioner and the petitioner’s

relatives and that he did not remember threatening the petitioner or giving the

petitioner an ultimatum. That same day, counsel filed a motion for the petitioner to

have an independent psychological evaluation. He said he filed the motion just in

case the first evaluation became insufficient and to preserve the issue. If the

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petitioner had not pled guilty, counsel would have argued the motion to the trial

court. Counsel read the petitioner’s police confession and also would have argued

a motion to suppress if the petitioner had not pled guilty. He said he did not

remember telling the petitioner’s mother that the petitioner would get out of prison

in ten years.

On cross-examination, counsel testified that he could communicate with the

petitioner and that the petitioner was always responsive. The petitioner never denied

shooting the victim and never indicated that his confession to police was involuntary.

Counsel was unaware of any reason to suppress the petitioner’s confession, and

counsel would have represented the petitioner at trial. The petitioner appeared to

have no defenses to the crimes, but counsel could have argued that the petitioner did

not premeditate the killing.

Co-counsel testified that he had been practicing law since 1979, was appointed to

represent the petitioner, and began preparing for the petitioner’s trial. The defense

attorneys talked with the victim’s sister at the preliminary hearing and talked with

sheriff’s department personnel. The defense had copies of the petitioner’s

confession, and co-counsel talked with the petitioner about the case. The petitioner’s

attorneys discussed second degree murder with him, but given the petitioner’s

confession, co-counsel thought “the likelihood of that . . . [was] slim and none.” The

attorney general told co-counsel that this was a death penalty case, and the State

refused to make a plea offer. However, the State later offered to let the petitioner

plead guilty in return for a sentence of life without the possibility of parole.

Co-counsel refused that offer. About one week before the petitioner’s guilty plea,

the State offered to let the petitioner plead guilty to life. Co-counsel visited the

petitioner in jail, told him about the offer, and told him to think about it. On October

24, 1983, the petitioner’s attorneys talked with him again about the State’s offer. The

petitioner told co-counsel that he did not know what to do, and the petitioner

discussed the offer with relatives. Co-counsel thought it was in the petitioner’s best

interests to accept the offer, and he did not remember the petitioner’s saying that he

did not want to plead guilty. He said that the trial judge was not present in the

conference room on October 24 and that the petitioner “got a sweet deal.”

Co-counsel acknowledged filing a motion to suppress the confession and said he

would have argued the motion if the petitioner had not pled guilty. On

cross-examination, co-counsel testified that he had no concerns about the petitioner’s

mental capacity. He believed the petitioner confessed to police voluntarily and pled

guilty voluntarily. Co-counsel did not force the petitioner’s family to convince the

petitioner to accept the State’s offer, and neither of the petitioner’s attorneys was

afraid to go to trial.

The petitioner testified that co-counsel told him about the State’s offer and told him

to think about it. On October 24, 1983, both attorneys talked with him about the

offer. At some point, the attorneys took the petitioner into a room behind the judge’s

chambers, and the petitioner told co-counsel that he did not want to plead guilty.

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Co-counsel told the petitioner that he was not going to allow the petitioner to testify

and that he would not represent the petitioner at trial. Before the petitioner’s family

came into the conference room, the trial judge came into the room and told the

petitioner “the likelihood that [if] I didn't [accept the State’s offer,] he would be

sentencing me to death row.” The judge was in the room for three to five minutes,

and the petitioner “was terrified that if I didn’t take the plea that what he said was

going to be true.” The petitioner decided to accept the State’s offer because he was

not receiving proper representation, his family wanted him to plead guilty, and he

was afraid of what the trial judge told him.

The petitioner testified that on the afternoon of August 11, 1983, the victim told him

that he could not see their child. That night, the petitioner was angry and unable to

sleep. About 5:00 a.m. on August 12, the petitioner telephoned the victim. He

acknowledged that his conversation with her “ticked [him] off” and caused him to

commit the crimes. He said that if he had gone to trial, the evidence would have

shown that he acted in the heat of passion. He believed that a jury would have

convicted him of second degree murder because the killing was based on anger and

rage. After Tommy Hunt drove the petitioner to the sheriff’s department, the

petitioner walked inside, told a police dispatcher that he had shot someone, and told

the dispatcher that he “might need an attorney.” A police officer put the petitioner

into an interview room, and Officer Joe Shepherd came into the room and began

asking the petitioner questions about the crimes. Shepherd did not advise the

petitioner of his rights. The petitioner told Shepherd that he might need an attorney

and had not slept. Shepherd told the petitioner that he could sleep after the petitioner

gave a statement. The petitioner acknowledged that he gave an audiotaped

confession and that a transcript of his confession showed Shepherd advised him

about his rights. The petitioner testified that he did not know if he understood his

right to an attorney or his right against self-incrimination. He said that the victim’s

sister’s neighbor, Ruby Merrick, testified at the preliminary hearing that she saw

another person at the scene of the crimes and that Merrick could have testified for

him at trial. The petitioner tried to tell one of his attorneys about the circumstances

of the offenses, but the attorney would not listen to him.

The petitioner testified that he did not recall talking with his attorneys about the

State’s burden of proof, premeditation, or deliberation and that the attorneys never

talked about the aggravating or mitigating factors the State would have to prove in

order for the petitioner to get the death penalty. Regarding his psychological

evaluation, the petitioner testified that Dr. Nicholas House met with him for

forty-five minutes but did not give him any psychological tests. About one week

later, the petitioner met with Dr. Alvin Summar. Dr. Summar only looked over some

paperwork, and the petitioner told his attorneys that he did not receive an adequate

mental evaluation.

On cross-examination, the petitioner testified that he was not denying he killed the

victim. However, he said that he did not set fire to the victim’s sister's home and that

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the house was on fire when he arrived. He said that he had been to juvenile court

about seventeen times over prior incidents but that he was not familiar with the legal

system. The petitioner acknowledged that he obtained his GED and an

apprenticeship certification in residential electrical wiring while in prison. He also

earned a diploma from the Cleveland Institute of Electronics and Electronic

Technology, completed several Bible study courses, and worked for the disciplinary

board. He acknowledged that a jury could have convicted him of first degree murder

and that he was concerned about the death penalty. However, he did not think the

killing warranted that punishment. He acknowledged that at the guilty plea hearing,

the trial court advised him of his rights and that he would be sentenced to life with

the possibility of parole after serving thirty years in confinement. At the guilty plea

hearing, the petitioner told the trial court that he understood the charges against him,

that he wanted to plead guilty, that counsel went over a guilty plea form with him,

that he was satisfied with his attorneys’ representation, that he was pleading guilty

voluntarily, and that he had not been pressured into pleading guilty. He testified that

he lied to the trial court and that he pled guilty because he was pressured by counsel

and intimidated by the trial judge. He acknowledged attending a recent parole

hearing and said that he may have told the parole board he set fire to the victim’s

sister’s home by throwing a cigarette into a trash can. However, the petitioner

testified that he may have lied to the parole board because he was trying to get out

of prison.

Tommy Hunt testified for the State that he was a minister in Bradford, Tennessee at

the time of the crimes. On the morning of August 12, 1983, the petitioner came to

Hunt’s home and knocked on the door. Hunt had never met the petitioner before that

morning but talked with the petitioner about the crimes for fifteen or twenty minutes.

The petitioner asked Hunt to drive him to the sheriff’s department, and Hunt and his

father-in-law drove the petitioner to the sheriff’s department in Trenton, Tennessee.

The petitioner was unusually calm, did not appear to be under the influence of

alcohol, and appeared to understand what the petitioner was doing and saying. On

cross-examination, Hunt testified that when they arrived at the sheriff’s department,

he went inside with the petitioner and told an officer, “This gentleman would like to

say something to you.”

Joe Shepherd, the Gibson County Sheriff, testified that he was the lead investigator

in the case and interviewed the petitioner on August 12, 1983. The petitioner signed

a waiver of rights form, and Shepherd recorded the petitioner’s statement. During the

petitioner’s interview, the petitioner admitted setting fire to the house in order to get

the victim to come outside. The petitioner did not appear to be under the influence

of any substance and told Shepherd that he did not use alcohol or drugs. Shepherd

interviewed Ruby Merrick, and she did not tell him that she saw someone other than

the petitioner at the scene of the crimes. Shepherd made his case file available to the

petitioner’s attorneys and withheld nothing from them. On cross-examination,

Shepherd testified that he always Mirandized suspects. He identified a transcript of

the petitioner’s confession and acknowledged that the transcript demonstrated that

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the petitioner made some statements about the crimes before Shepherd Mirandized

him. He said the petitioner was “jumping through his skin to make a statement” and

acknowledged that the petitioner may have blurted out some information before he

could read him Miranda warnings. He acknowledged that the petitioner was not free

to leave at the time of the confession.

The State recalled the petitioner’s attorneys to the stand, and both attorneys testified

that the petitioner never claimed that he requested an attorney or that he be allowed

to sleep before his interview with Joe Shepherd. Co-counsel also stated that Ruby

Merrick did not testify at the petitioner’s preliminary hearing and that the petitioner

never claimed someone else started the fire.

Eddie Wayne Gordon, No. W2005-02330-CCA-R3-PC, 2006 WL 1205596 *1-4 (Tenn. Crim. App.,

at Jackson, May 4, 2006) (internal footnote omitted). The post-conviction court, by written order,

denied post-conviction relief, finding that the petitioner received the effective assistance of counsel.

On May 4, 2006, this court affirmed the post-conviction court’s judgment but noted that the court

failed to address the voluntariness of the petitioner’s guilty plea. Consequently, this court remanded

the case in order for the post-conviction court to make findings of fact and determine whether the

petitioner’s guilty plea was knowingly and voluntarily entered. See id. at *7.

Upon remand, the post-conviction court held the evidentiary hearing on December 17, 2007.

At the hearing, the transcript of the 1983 plea acceptance hearing was entered as an exhibit. The

post-conviction court also granted the state’s motion to consider the aforementioned testimony

presented in the previous post-conviction hearing. The petitioner then testified that he was under

the care of a psychiatrist or psychologist when he pled guilty. He further asserted that he was taking

several medications, which caused him to be confused and disoriented. The petitioner stated that

the trial court never explained his “right not to testify against [himself],” or his right to compel

witnesses to appear and testify on his behalf. On cross-examination, the petitioner acknowledged

he had pled guilty to a larceny charge committed while he was a juvenile a few years prior to

pleading guilty to murder. The petitioner stated that he completed eighth grade in school, and had

received his GED while incarcerated. The petitioner also acknowledged that he had completed some

vocational courses while incarcerated. The petitioner conceded that he had not previously alleged

he was under the influence of medication when he entered his guilty plea.

By order entered April 29, 2008, the post-conviction court granted relief, finding that the

petitioner’s guilty plea was not knowingly and voluntarily entered. Based on its review of the

record, the post-conviction court made the following findings relevant to the petitioner’s guilty plea:

In this case, the trial judge informed the Petitioner of his right to a jury trial, the fact

that the jury would determine the issue of guilt, and if they found him guilty, the jury

would sentence him to the death penalty or life imprisonment with no parole or right

to work release until he had served at least 30 years. The judge had a written guilty

plea form before him. The judge asked the Petitioner if he read and signed it, and the

Petitioner said that he did. The judge asked if the guilty plea form was explained to

him by his attorneys, and the Petitioner said they had explained it to him. (The guilty

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plea form was not introduced at either post conviction relief hearing). The judge also

asked the Petitioner if he was satisfied with his counsel’s advice, and the Petitioner

said he was. When asked if his counsel had explained the waiver to him, he said

[counsel] had. The judge asked the Petitioner if he understood he was admitting guilt

of murder in the first degree by his guilty plea, and the Petitioner said he understood.

The judge asked if [the Petitioner] had “given this a lot of thought and discussed this

many times with your lawyers,” and the Petitioner answered “[y]es sir.” The Judge

further asked if the plea was “of your own free will and volition,” and the Petitioner

said “[y]es, sir.” The Petitioner said no when asked if “anybody put any pressure on

you to do this.” The judge asked if he understood what he was doing, and the

Petitioner said “[y]es, sir.” Finally, the judge asked the Petitioner if he had any

questions, and he said, “[n]o, sir.” The judge then asked if the Petitioner pleaded

guilty of murder in the first degree, and the Petitioner said “[y]es sir.”

During the colloquy between the Court and the Petitioner, the Petitioner answered

25 questions with “[y]es, sir” and three questions with “[n]o, sir.” Twice, he was

asked if he had any questions, and once he was asked if anyone had put any pressure

on him and the response to all three was “[n]o, sir.”

He was asked three questions, which required answers other than “yes, sir” or “no,

sir”, to wit: his age (19), his date of birth (December 18), and how far he went in

school (ninth grade). Except to answer those 31 questions as herein above set forth,

the Petitioner did not speak at the guilty plea hearing.

The trial judge did not address the Petitioner personally to inform him of his

constitutional privilege against compulsory self-incrimination or his constitutional

right to confront his accusers as required by [State v. ]Mackey. As a result, the record

is silent as to whether the Petitioner was informed of those constitutional rights and

whether he waived them. Therefore, pursuant to the United States Supreme Court’s

decision in Boykin, 395 U.S. at 243, this Court cannot presume that the Petitioner

knowingly waived [those] constitutional rights from a silent record, and thus, this

Court must find that the Petitioner did not voluntarily and understandingly enter his

plea of guilty.

The state appealed.

STANDARD OF REVIEW

On appeal, this court is bound to the post-conviction court’s findings of fact unless the

evidence preponderates against those findings. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). Our

review of the post-conviction court’s factual findings is de novo with a presumption that the findings

are correct. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001). Our review of the post-conviction

court’s legal conclusions and application of law to facts is de novo without a presumption of

correctness. Id.

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ANALYSIS

In the instant appeal, the state contends that the post-conviction court erred in finding that

the petitioner’s plea was not knowingly and voluntarily entered. Specifically, the state argues that

the record reflects that the trial court substantially complied with Boykin v. Alabama and State v.

Mackey. The state further argues that, “even if the trial court failed to adequately advise the

petitioner of his rights during the plea colloquy, the error was harmless beyond a reasonable doubt

because the record clearly shows that the petitioner knowingly, voluntarily, and understandingly

entered his guilty plea.”

When analyzing a guilty plea, we look to the federal standard announced in Boykin v.

Alabama, 395 U.S. 238 (1969) and the state standard set out in State v. Mackey 553 S.W.2d 337

(Tenn. 1977) superseded on other grounds by rules of criminal and appellate procedure. In Boykin,

the United States Supreme Court held that there must be an affirmative showing by the trial court

that a guilty plea was knowingly and voluntarily given before it can be accepted. Boykin, 395 U.S.

at 242. The Court explained that fundamental to this affirmative showing was the admonition of

certain constitutional rights which are implicated in a guilty plea, namely, the right to a trial by jury,

the right to confront witnesses, and the privilege against compelled self-incrimination. Id. at 243.

The Court noted that the waiver of these rights cannot be presumed from a silent record. Id.

Similarly, in Mackey, our Tennessee Supreme Court required an affirmative showing of a voluntary

and knowing guilty plea; namely, that the defendant has been aware of the significance and

consequences of such plea. Mackey, 553 S.W.2d at 340 (including additional safeguards in taking

the plea beyond Boykin to better assure that plea is entered knowingly and voluntarily). See also

Tenn. R. Crim. P. 11. (incorporating Mackey litany).

If the trial court substantially complies with the litany of constitutional rights mandated, there

is no error. State v. Neal, 810 S.W.2d 131, 137 (Tenn. 1991) overruled in part by Blankenship v.

State, 858 S.W.2d 897 (Tenn. 1993). A trial court substantially complies with these mandates when

it expresses the sense of the substance of the required advice to a defendant who is seeking to plead

guilty. Id. Substantial compliance means that “the root purpose of the prescribed litany has been

served and the guilty plea passes due process scrutiny because it was made voluntarily and

understandingly.” Howell v. State, 185 S.W.3d 319, 331 (Tenn. 2006) (quoting Neal, 810 S.W.2d

at 138).

In those instances of a patent omission from the advice litany, the error may still be harmless

if the state meets its burden of showing the plea was nonetheless knowingly and voluntarily entered.

Bates v. State, 973 S.W.2d 615, 624-25 (Tenn. Crim. App. 1997). See also State v. Rodriguez, 254

S.W.3d 361, 371 (Tenn. 2008). The petitioner’s age, level of education, intelligence, experience,

general understanding of constitutional rights, desire to avoid a greater penalty, and representation

by competent counsel at the plea submission hearing are all factors which might be appropriately

taken into consideration. See Blankenship, 858 S.W.2d at 904. Also, as noted in Johnson v. State:

[I]f the transcript shows that the petitioner was aware of his constitutional rights, he

is not entitled to relief on the ground that the mandated advice was not given. Also,

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if all the proof presented at the post-conviction hearing, including the transcript of

the guilty plea hearing, shows that the petitioner was aware of his constitutional

rights, he is not entitled to relief.

Johnson, 834 S.W.2d 922, 926 (Tenn. 1992).

Upon review of the record, we initially agree with the post-conviction court that the transcript

of the petitioner’s plea submission hearing demonstrates omission by the trial court in specifically

admonishing the petitioner about his right to confront witnesses and the privilege against compelled

self-incrimination. However, we disagree with the post-conviction court’s interpretation of Boykin

to ultimately conclude that the petitioner “did not voluntarily and understandingly enter his plea of

guilty.” To begin, a careful reading of Boykin reveals that the case involved a silent record where

there was absolutely no showing that the guilty plea was knowingly and voluntarily entered. Indeed,

in Brady v. United States, 397 U.S. 742 (1970), the Supreme Court cited the decision in Boykin while

upholding a guilty plea as voluntary and intelligent even though the defendant had not been

specifically advised of the three rights discussed in Boykin. The Supreme Court elaborated on the

holding of Boykin by stating, “[t]he new element added in Boykin was the requirement that the record

must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and

voluntarily.” Brady, 397 U.S. at 747-48 n.4. Accordingly, it has been recognized that the explicit

articulation of the Boykin rights is not the sine qua non of a valid guilty plea. Rather, the “core

requirement of Boykin is ‘that no guilty plea be accepted without an affirmative showing that it was

intelligent and voluntary.’” Blankenship, 858 S.W.2d at 904 (citation omitted).

In our view, the appellate record reflects affirmatively that the petitioner’s plea of guilt was

knowingly and voluntarily entered. While we need not reiterate the extensive findings of fact made

by the post-conviction court, we note that the plea hearing transcript clearly indicates that the

petitioner understood the charges against him and the punishments involved, that he discussed the

charges with his attorneys, that his attorneys went over the guilty plea and waiver forms with him,

that he was satisfied with his attorneys’ representation, that he had not been pressured into pleading

guilty, and that he was pleading guilty knowingly and voluntarily. The petitioner was also asked by

the trial court if he had any questions, and the petitioner responded in the negative. It is well-

established that the petitioner’s testimony at a plea hearing that his or her plea is voluntary is a

“formidable barrier in any subsequent collateral proceedings” because “[s]olemn declarations in

open court carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977).

Although the trial court did not specifically enumerate the “right against compelled self-

incrimination,” the court expressed the following:

Court: Do you understand that by pleading guilty to the offense of murder

in the first degree, you admit you’re guilty of that offense. Do you

understand that?

Petitioner: Yes, sir.

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Court: That’s the strongest proof and the strongest evidence known to man-

kind is your admission of guilt, and that would be sufficient evidence

for me to find you, in fact, guilty of murder in the first degree. Do

you understand that?

Petitioner: Yes, sir.

Court: I’m sure you have given this a lot of thought and discussed it many

times with your lawyers. Is this what you want to do?

Petitioner: Yes, sir.

In our view, this particular exchange demonstrates that the petitioner understood he would not be

compelled to incriminate himself. We further note that the trial court questioned the petitioner

concerning the “written plea of guilty” the petitioner had signed. The plea of guilty form 1 includes

the following declaration: “The defendant also states to the Court that his attorney being present, .

. . has fully informed him of all of his rights and that after a full explanation of the rights, the

defendant informed his attorney that he wanted to voluntarily enter a plea of guilty.” This

declaration appears to be corroborated by evidence introduced at the petitioner’s first evidentiary

hearing.2

In sum, the record reflects that the petitioner understood the options available to him prior

to entering his guilty plea, including his right not to plead guilty and demand a jury trial. He was

made aware of the consequences of the guilty plea, and he made an informed decision among the

alternative courses of action available. See North Carolina v. Alford, 400 U.S. 25, 31 (1970). The

totality of the circumstances surrounding the entry of the guilty plea, the history of this case, the

transcript of the plea hearing, and the documents signed by the petitioner support this conclusion.

See State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995) (noting that a reviewing court

may look to any relevant evidence in the record to determine the voluntariness of the plea). As to

the trial court’s failure to precisely enumerate two of the Boykin rights, we find the omission was,

at most, harmless error as the record establishes that the petitioner’s guilty plea was knowing and

voluntary. Accordingly, the post-conviction court erred in its decision to grant the petitioner relief.

CONCLUSION

Based upon the foregoing authorities and reasoning, we conclude that the post-conviction

court erred in its determination that the petitioner entered an unknowing and involuntary guilty plea.

We reverse the judgment of the post-conviction court and thereby deny the petitioner post-conviction

relief.

1

While the post-conviction court noted that “ the guilty plea form was not introduced,” the state submits that

the form appears in the “technical record.” In any event, the guilty plea form is included in the record on appeal.

2

As an example, we note the petitioner’s first evidentiary hearing indicates that the petitioner was informed

of his Miranda rights, which includes the right against compelled self-incrimination.

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___________________________________

J.C. McLIN, JUDGE

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