Joseph Lance Risner v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

March 18, 2003 Session

JOSEPH LANCE RISNER v. STATE OF TENNESSEE

Appeal from the Criminal Court for Greene County

No. 01CR155 James E. Beckner, Judge

No. E2002-01112-CCA-R3-PC

June 30, 2003

The Appellant, Joseph Lance Risner, appeals from the dismissal of his petition for post-conviction

relief. Pursuant to a “package deal” plea, Risner, along with five of his co-defendants, pled guilty

to three counts of first degree murder, one count of attempted murder, two counts of especially

aggravated kidnapping, two counts of kidnapping, and one count of class D felony theft. On appeal,

Risner presents the following issues for our review: (1) whether his plea was knowingly and

voluntarily entered; (2) whether he was denied the effective assistance of counsel; and (3) whether

the indictment, which did not include the aggravating circumstances qualifying him for the death

penalty violates Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and is, thus,

unconstitutional. Finding no reversible error, we affirm the judgment of the Greene County Criminal

Court.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which THOMAS T. WOODA LL and JOHN

EVERETT WILLIAMS, JJ., joined.

Richard L. Gaines, Knoxville, Tennessee, for the Appellant, Joseph Lance Risner.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Mark A.

Fulks, Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney General; and Eric

Christensen, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

Factual Background

On August 6, 1997, Vidar Lillelid, his wife, Delphina, and their six-year-old daughter,

Tabitha, were murdered near an interstate rest stop in Greene County. Two-year-old Peter Lillelid

suffered two life-threatening gunshot wounds, one of which caused the loss of an eye. The Appellant

and his five co-defendants, Karen Howell, Natasha Cornett, Crystal Strugill, Jason Bryant, and Dean

Mullins, were indicted for three counts of first degree murder, one count of attempted first degree

murder, two counts of especially aggravated kidnapping, two counts of aggravated kidnaping, and

one count of theft of property valued over $1,000. On February 18, 1998, five days prior to trial, the

State made a “package deal” plea offer. The offer required all the defendants, including Howell and

Bryant, who were minors at the time of the offenses, to plead guilty to all charges before the State

would agree to remove the death penalty from consideration for the adult defendants. The offer also

required all of the defendants to accept the offer within two days. On February 20, 1998, the

Appellant and his co-defendants appeared before the trial court as a group and pled guilty to the

offenses as charged. The plea agreement provided that the sentences for the murder and attempted

murder convictions would be determined by the trial court. At the conclusion of the sentencing

hearing, the trial court sentenced each of the defendants to life in prison without the possibility of

parole for each of the first degree murder convictions and twenty-five years for the attempted murder

conviction. All of these sentences were ordered to be served consecutively. Pursuant to the terms

of the plea agreement, the trial court imposed concurrent sentences of twenty-five years for each of

the two counts of especially aggravated kidnapping, twelve years for each of the two counts of

aggravated kidnapping, and four years for theft. The Appellant’s sentences were affirmed on direct

appeal. See generally State v. Karen Howell, et. al, 34 S.W.3d 484 (Tenn. Crim. App.), perm. to

appeal denied, (Tenn. 2000).

The Appellant subsequently filed a petition for post-conviction relief, and a hearing was held

on February 21, 2002. The following facts, relevant to the circumstances surrounding the

Appellant’s plea, were developed at the hearing. On February 18, 2000, the same day the State

extended the plea offer, trial counsel, Mark Slagle, met with the Appellant to inform him of the terms

of the offer. Slagle explained to the Appellant that in exchange for the guilty pleas, the State would

withdraw the death penalty notices for the adult defendants and recommend effective sentences of

twenty-five years for the lesser charges. The trial court would determine the sentences for the

murder and attempted murder charges. The Appellant was advised of the possible sentences for the

murder charges. According to the Appellant, Slagle stated to him, “this is pretty much the best that

we [are] going to get.” Slagle testified that he advised the Appellant to accept the deal in order to

avoid the death penalty. The Appellant responded that he “didn’t like it, and [he] didn’t think it was

right . . . because . . . [he] didn’t kill anyone.” Slagle then left in order to discuss the offer with the

co-defendants’ attorneys. After he left, the Appellant telephoned his mother, who had already been

informed of the offer by the Appellant’s attorneys. His mother was crying and encouraged him to

accept the offer. He then spoke with his step-father, Ray Risner, who also advised the Appellant to

take the offer but stated that it was the Appellant’s decision.

Slagle again returned to visit the Appellant and informed him that everyone had accepted the

offer except for Karen Howell, the Appellant’s girlfriend. The Appellant did not understand why

Howell, a juvenile, would accept the deal because she had nothing to gain from doing so. According

to the Appellant, Slagle, more aggressively, advised him that the deal was the best he was going to

get and he should accept the deal to save himself “from the electric chair.” The Appellant claimed

that Slagle said, if he didn’t accept the offer, then all of his co-defendants would receive the death

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penalty. Slagle testified that he was only concerned for the Appellant’s life. The offer was discussed

further, and the meeting ended with the Appellant stating, “I really don’t like it, would you let me

know what Karen does.”

Slagle returned for a third meeting. At this time, Slagle informed the Appellant that Howell

had accepted the offer, leaving him as the “last man.” Slagle testified that the Appellant was

“shocked” that she had accepted the offer. The Appellant stated, “I had all their voices, . . . telling

me basically by signing this thing, telling me that they wanted to live.” The Appellant testified that

Slagle again informed him that “this was the only way [he] was going to live, . . . this is the best

we’re going to get.” The Appellant also said that he was affected by his own guilt, and he felt “bad

for the things that happened[.]” The Appellant still tried to “fight off” accepting the offer. He

claimed that Slagle stated, “I don’t know how you think you’re going to live with yourself if you let

little Crystal Strugill die in the electric chair.” According to the Appellant, Slagle appeared more

aggravated than before. After further discussion, the Appellant decided to accept the offer.

On February 20, 1998, Slagle, along with co-counsel, Woody Smith, returned for a fourth

and final meeting with the Appellant. They reviewed the offer, and the Appellant signed the plea

agreement and waiver of rights forms. Smith had also prepared a ten-paragraph memorandum for

the Appellant to sign, which included the following:

3. I understand that Judge Beckner, rather than a jury, will conduct a sentencing

hearing, and will then sentence me on the three (3) counts of murder and one (1)

count of attempted murder.

4. I understand that this plea bargain agreement includes the removal of the

possibility of my receiving the death penalty. Judge Beckner would sentence me to

life in prison with parole or life in prison without parole. There is no agreement with

the State concerning the three (3) counts of murder and the one (1) count of

attempted murder to which I will plead guilty, except that the State will no longer

seek the death penalty.

5. I have been advised by my attorneys that, in their opinion, Judge Beckner will

likely sentence me to life without parole, or, if he gives me the opportunity of parole,

will likely run the murder count sentences consecutively (stack them on top of each

other) so that the net effect would be the same, natural life in prison. . . .

7. I have discussed this matter with my mother, my step-father, and my former step-

father. I have discussed it in detail with my attorneys. I have considered it over two

(2) full days since I have been advised of the offer.

8. I have reached my decision without pressure or force or threats used against me.

I have agreed with the State’s plea bargain offer of my own free will, after giving the

matter much thought. Part of the reason for my decision is for the protection of my

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friends, Dean Mullins and Crystal Sturgill. Part of the reason for my decision to

accept the plea bargain offer is for the protection of my own life. . . .

10. My attorneys have answered all of my questions, and I have a full understanding

of the nature of the charges against me, of possible defenses, of the State’s evidence

to be used against me, of my constitutional rights in this case, including the evidence

and witnesses that I could bring forward, and I have considered all of these matters

in reaching my decision to accept the State’s plea bargain offer.

Each paragraph was initialed by the Appellant and the entire document was signed. The Appellant

testified that he was reluctant to initial paragraph five. According to the Appellant, he initialed this

paragraph after Slagle informed him that paragraph five was just a formality and would not influence

the judge’s decision. Slagle testified that he told the Appellant that this was his professional opinion

of the likely sentence. Slagle and the Appellant went on to discuss the guilty plea procedures and

the questions which would be asked of the Appellant at the plea hearing. The Appellant testified that

Slagle told him to lie in response to the question, “Are you pleading guilty because you are in fact

guilty?” Slagle denied the allegation. That evening, the Appellant and his co-defendants went

before the trial court and entered guilty pleas.

The Appellant also testified that he would not have pled guilty absent pressure from his

attorneys, and he did so in order to save the lives of his co-defendants. He stated that he respected

the opinions of his attorneys during the time they were encouraging him to accept the plea offer.

Furthermore, the Appellant testified that, during his eleven and a half months in jail prior to the plea

discussions and proceedings, he was placed in a “suicide cell,” which kept him isolated from other

inmates. The only persons he had contact with were his family members and attorneys. As the trial

date approached, the Appellant became more stressed. A week and half before trial, a nurse at the

jail prescribed Xanax for him, and he took the drug daily until the day he entered his plea. He stated

that the medication lowered his stress level but “muddied things up a little bit.” After the conclusion

of the post-conviction hearing, the Appellant's petition was denied, and this appeal followed.

ANALYSIS

I. Voluntary Plea

The Appellant alleges that his plea was involuntarily entered because (1) the “package deal”

plea or contingent plea offer was coercive, and (2) the group plea colloquy was improper. In order

to succeed on a post-conviction claim, the Appellant bears the burden of showing by clear and

convincing evidence, the allegations set forth in his petition. Tenn. Code Ann. § 40-30-210(f)

(1997).

To satisfy constitutional standards of due process, a guilty plea must be entered knowingly,

intelligently, and voluntarily. Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712 (1969).

In order for a plea to be deemed knowingly and voluntarily entered, an accused must be informed

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of the rights and circumstances involved and nevertheless choose to waive or relinquish those rights.

State v. Mackey, 553 S.W.2d 337, 340 (Tenn. 1977); see also Tenn. R. Crim. P. 11. Boykin requires

the intentional relinquishment or abandonment of the accused's right against self-incrimination, the

right to confront one's accusers, and the right to a trial by jury. Id. In evaluating the knowing and

voluntary nature of a guilty plea, the United States Supreme Court held, "The 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, 91 S. Ct. 160, 164

(1970). In making this determination, the reviewing court must look to the totality of the

circumstances. 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), perm. to appeal denied,

(Tenn. 1991). Indeed, a

court charged with determining whether . . . pleas were “voluntary” and “intelligent”

must look to various circumstantial factors, such as the 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). A plea cannot be voluntary if the accused

is “‘incompetent or otherwise not in control of his mental facilities.’” Id. (quoting Brown v. Perini,

718 F.2d 7884, 788 (6th Cir. 1983)).

A. “Package Deal” Plea

The Appellant urges this court to adopt In re Ibarra, 666 P.2d 980 (Cal. 1983), which

requires a court to consider, in addition to the totality of the circumstances surrounding the plea, five

specific factors when reviewing a “package deal” plea. However, there is Tennessee case law

directly on point. Contingent plea offers have been approved as an acceptable plea bargaining

method. See Parham v. State, 885 S.W.2d 375, 382 (Tenn. Crim. App.), perm. to appeal denied,

(Tenn. 1994); State v. Street, 768 S.W.2d 703, 711 (Tenn. Crim. App.), perm. to appeal denied,

(Tenn. 1988); Hodges v. State, 491 S.W.2d 624, 627-28 (Tenn. Crim. App. 1972). In Tennessee,

a reviewing court, determining the voluntariness of a “package deal” plea, must employ a totality of

the circumstances approach and, while several of the Ibarra factors may be relevant in this

determination, specific consideration of these five factors is not required.

The following principles are inherent within this State’s acceptance of contingent plea

agreements. There is no constitutional right of an accused to plea bargain, and there is no duty of

the State to engage in plea negotiations. 22 C.J.S. Criminal Law § 366 (1989) (citing Weatherford

v. Bursey, 429 U.S. 545, 561, 97 S. Ct. 837, 846 (1976); United States v. Pleasant, 730 F.2d 657,

665, (11th Cir.), cert. denied, 469 U.S. 869, 105 S. Ct. 216 (1984)). The State, as well as the persons

accused, is entitled to have its rights protected and, when several persons are charged jointly with

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a single crime, the State is entitled to have the fact of guilt determined and punishment assessed in

a single trial, unless to do so would unfairly prejudice the rights of the defendants. Woodruff v. State,

51 S.W.2d 843, 845 (Tenn. 1932).

Concerning the totality of the circumstances accompanying the Appellant’s plea, the

Appellant contends that his plea was involuntarily based upon:

(1) The package deal agreement in this case required all co-defendants to sign on,

when two (2) of the co-defendants were juveniles and could not receive any more

serious sentence on the first degree murder counts than what they received as part of

this deal. . . . The fact that the juveniles were included in this agreement . . . did have

an effect on [the Appellant’s] plea. . . . The last of his resolve to resist accepting this

agreement crumbled when he was told Karen Howell[, a juvenile,] had accepted the

plea, in part, to save his life;

(2) [The Appellant] testified repeatedly that he was close to most of the co-

defendants (except for Jason Bryant) and had known them for years. . . . Faced with

the prospect of being the last holdout and, thereby, possibly causing the deaths of the

other adult co-defendants, [the Appellant] could do nothing but accept the agreement.

. . . There was no more substantial factor in [the Appellant’s] plea than the promises

of leniency to the co-defendants in this case;

(3) [The Appellant] had been on what he termed “suicide watch” in isolation at the

Greene County Jail for almost a year. His only visitors were his family, his lawyers,

and jail guards. [He] had little to no contact with anyone else throughout the course

of his jail stay;

(4) . . . [D]uring the course of much of these plea negotiations and discussions with

his counsel, he was under the effect of the prescription medication Xanax. Although

[the Appellant] does not testify that this had a strong effect upon his thinking, he did

state that he became “more muddled” and this certainly had impact on his will to

resist pressures;

(5) . . . [T]here were only two full days after the plea offer was made to come to a

decision; and

(6) [The Appellant] was twenty-one (21) years [old] when this occurred and had no

previous experience with the criminal justice system.

After review of the Appellant’s petition and the testimony at the post-conviction hearing, the post-

conviction court found the Appellant's plea to be voluntary and explained its reasoning as follows:

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From all of the evidence it is clear that the petitioner would have plead guilty

without what he describes as undue pressure from his attorneys. He did not want to

die.

It is equally clear that petitioner did not plead guilty just to save the lives of

co-defendants.

The petitioner, being very intelligent, paid a great deal of attention to what

was going on in the case.

He was reluctant to take the plea but was not coerced. To petitioner’s credit

he debated all the issues fully in order to satisfy himself that it was the right thing to

do but, once he concluded it was the right thing, he never questioned it thereafter.

Over two weeks expired between the plea of guilty and the sentencing hearing

and petitioner never asked to withdraw the plea nor expressed any reservations about

it.

This in spite of the fact that his attorneys had told him that in their opinion

petitioner would serve the rest of his natural life in prison, either by consecutive life

sentences or a life without parole sentence.

The transcript of the plea allocution clearly shows that the plea was

individualized as to the petitioner even though he chose to plead at the same time as

the co-defendants.

At the time the plea was entered on February 20, 1998, the petitioner was

drug free. He had had no medication for over twenty four (24) hours.

He says he thought the plea was just a “formality” but the record belies that

assertion.

Petitioner answered all questions appropriately and assured the court that he

understood all his rights, the elements of the offenses, the possible punishments and

the consequences of pleading guilty. He assured the Court that he was satisfied with

the representation of him by his attorneys and that he was pleading guilty because he

was guilty. . . .

He asked the court to accept his plea understanding everything in the

allocution.

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There was never anything to cause petitioner’s attorneys to believe that he

was not competent. They would never have allowed him to plead guilty if they

thought he did not understand what he was doing.

In this instance, the record demonstrates that the Appellant was literate, educated, articulate, and

intelligent. The State had sufficient evidence to convict the Appellant, and his guilty pleas were

based upon the advice of competent attorneys. The Appellant’s attorneys both testified that they

believed the Appellant knew the consequences of his plea when he entered it. The Appellant and

his attorneys had lengthy and thorough discussions concerning the terms of the offer, and the

memorandum signed by the Appellant indicates that he fully understood the consequences of his

pleas. Trial counsel testified that there was no evidence that the Appellant’s reasoning abilities were

affected by the Xanax. Furthermore, the Appellant testified that he was not under the effects of

Xanax at the time he entered his pleas. The record indicates that the Appellant accepted the offer

primarily due to his overwhelming desire to avoid the death penalty. That he had a similar desire

to allow his co-defendants to do the same is a legitimate reason to accept a plea agreement and

suggests the plea was voluntary and based upon an understanding of its consequences. Edward Dean

Mullins v. State, No. E2002-00730-CCA-R3-PC (Tenn. Crim. App. at Knoxville, Feb. 24, 2003),

perm. to appeal denied, (Tenn. 2003); see also Crystal Rena Strugill v. State, No. E2002-00385-

CCA-R3-PC (Tenn. Crim. App. at Knoxville, Feb. 4, 2003), perm. to appeal filed, (Tenn. April 4,

2003); Natasha W. Cornett v. State, No. E2002-00034-CCA-R3-PC (Tenn. Crim. App. at Knoxville,

Sept. 30, 2002), perm. to appeal denied, (Tenn. 2003). The fact that the plea offer included juveniles

does not render the Appellant’s plea involuntary. Moreover, the Appellant made no attempt to

withdraw his guilty plea during the two weeks that ensued between the plea and sentencing hearings.

Under the facts of this case, the Appellant faced a significant likelihood of the death penalty.

The decision to plead guilty is heavily influenced by a defendant’s appraisal of the prosecution’s case

against him and by the apparent likelihood of securing leniency should a guilty plea be offered and

accepted. Brady v. United States, 397 U.S. 742, 756, 90 S. Ct. 1463, 1473 (1970). A guilty plea

motivated by a desire to accept the certainty or probability of a lesser penalty rather than face a wider

range of possibilities extending from acquittal to conviction and a higher penalty authorized by law

is not invalid under the Fifth Amendment. Id. at 751, 1470. Accordingly, we conclude that the plea

bargaining process in this instance was not fundamentally unfair.

B. Group Plea Colloquy

In addition, the Appellant argues the trial court failed to elicit responses from the Appellant

sufficient to establish that the Appellant's pleas of guilty were knowing and voluntary. Specifically,

he contends that,

[b]ecause of the nature of the package deal plea agreement here, as well as the

coerciveness apparent [in this type of plea] . . . , the trial court accepting the plea was

bound to make further inquiry to determine, “any unduly coercive forces that might

render such an involuntary plea.” . . . This extra inquiry should have taken place at

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the time the plea was made by the co-defendants. Particularized questions and

answers to each individual should have been made to each co-defendant.

The nature and extent of the colloquy between the trial court and the defendant, which must

appear on the face of the transcript, is unclear. Moten v. State, 935 S.W.2d 416, 420 (Tenn. Crim.

App.), perm. to appeal denied, (Tenn. 1996) (citing Chamberlain, 815 S.W.2d at 540). However,

"the record must reflect both the advice litany by the trial court and some affirmative indication that

the defendant understood his rights and the ramifications of his guilty plea thereon." Id. (quoting

James Lucious Goodrum v. State, No. 1196 (Tenn. Crim. App. at Knoxville, July 30, 1991), perm.

to appeal denied, (Tenn. 1992); Glenn Beeler v. State, No. 01C01-9010-CR-00265 (Tenn. Crim.

App. at Nashville, Sept. 6, 1991) (Tipton, J., concurring)). In other words, the advice litany alone

is insufficient. In State v. Neal, 810 S.W.2d 131, 137-38 (Tenn. 1991), the Tennessee Supreme

Court, addressing the simultaneous entry of guilty pleas by multiple defendants, stated that:

It is substantial compliance if the entire litany of rights and other required

explanatory information is communicated in open court . . . in the presence of their

respective attorneys, so long as the number involved is not so great as to make

individual understanding unlikely; and provided that each defendant is addressed

individually to establish on the record the understanding and agreement of each

defendant.

See also State v. McClintock, 732 S.W.2d 268, 273 (Tenn. 1987) (every court is required to make

adequate personal inquiry of defendants to assure the validity of all necessary waivers; the taking of

criminal pleas cannot be reduced to a rote administrative proceeding). Furthermore, it has been held

that the existence of a “package deal” plea imposes a special obligation on the trial court to carefully

ascertain the voluntariness of each defendant’s plea. 21 AM . JUR. 2D Criminal Law § 690 (1998)

(citing United States v. Martinez-Molina, et al., 64 F.3d 719, 733 (1st Cir. 1995)). However, it has

also been held that the trial court does not have to undertake a special voluntariness inquiry when

faced with a package deal plea, and that a thorough but standard inquiry into a defendant’s plea is

sufficiently probing of the voluntariness of the “package deal” plea. Id. (citing United States v.

Holland, 117 F.3d 589, 594 (D.C. Cir. 1997); State v. Danh, 516 N.W.2d 539, 542 (Minn. 1994)).

In this case, the transcript of the guilty plea hearing indicates that the trial court questioned

the Appellant and his five co-defendants as a group and received group responses, which are

depicted in the transcript of the hearing as, “All defendants answered affirmatively” or “All

defendants answered negatively.” The court only deviated from this procedure once. Individual

answers were only given in response to the following question, “Are you all pleading guilty because

you are guilty?”

In Boykin, the Supreme Court stated the following:

What is at stake for an accused facing death or imprisonment demands the utmost

solicitude of which courts are capable in canvassing the matter with the accused to

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make sure he has a full understanding of what the plea connotes and of its

consequence. When the judge discharges that function, he leaves a record adequate

for any review that may be later sought . . . and forestalls the spin-off of collateral

proceedings that seek to probe murky memories.

Boykin, 395 U.S. 243-44, 89 S. Ct. at 1712-13. The trial court did not receive individual, identified

responses to each question. Boykin's concern for probing "murky memories" applies to this case.

Glenn Beeler, No. 01C01-9010-CR-00265 (Tipton, J., concurring). “Rare is the day that we . . . can

discern, verify or subsequently review a record which is based upon a nodding mass of defendants

or upon a chorus of answers.” Id. Accordingly, we conclude that the guilty plea hearing in this case

did not meet the requirements of Neal and Boykin.

Having concluded that the guilty plea hearing was Boykin-deficient, our final inquiry is

whether that error is harmless beyond a reasonable doubt. Neal, 810 S.W.2d at 138 (citing Chapman

v. California, 386 U.S. 18, 24, 87 S. Ct. 824 (1967)). We conclude that the record supports the

testimony that the petitioner knowingly and voluntarily waived his rights guaranteed under Boykin.

As previously noted, the record demonstrates that the Appellant was literate, educated, articulate,

and intelligent. The post-conviction court noted that the Appellant “paid a great deal of attention

to what was going on in the case. . . . [H]e debated all the issues fully in order to satisfy himself that

it was the right thing to do but, once he concluded it was the right thing, he never questioned it

thereafter.” During all stages of these proceedings, the Appellant was represented by competent

counsel who were experienced in capital defense. The Appellant’s attorneys both testified that they

believed the Appellant knew the consequences of his plea when he entered it. Trial counsel

discussed with the Appellant his rights and the plea dialogue. Furthermore, the Appellant signed a

memorandum stating that he was aware of his constitutional rights. Therefore, we hold that his pleas

of guilty were voluntarily and intelligently entered and that any Boykin deficiency was harmless

beyond a reasonable doubt.

II. Ineffective Assistance

Second, the Appellant contends that he was denied effective assistance of counsel because

trial counsel failed to challenge, and even encouraged acceptance of, the “package deal” plea.

Specifically, the Appellant contends that trial counsel

did no research regarding package deals and plea agreements; they filed no written

objections to this type of plea offer; they filed no motions to withdraw the plea; they

conducted no legal research after the plea was made, but before the appeal was taken;

they did not raise this issue in the appellate courts on direct appeal; and they never

asked for further inquiry by the court to determine whether this plea was voluntary

and freely made by [the Appellant].

Once a guilty plea has been entered, effectiveness of counsel is relevant only to the extent

that it affects the voluntariness of the plea. In this respect, such claims of ineffective assistance

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necessarily implicate the principle that guilty pleas be voluntarily and intelligently made. Hill v.

Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 369 (1985) (citing North Carolina v. Alford, 400 U.S. at

31, 91 S. Ct. at 164)).

To succeed in a challenge for ineffective assistance of counsel, the Appellant must

demonstrate that counsel's representation fell below the range of competence demanded of attorneys

in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984), the Appellant must establish (1)

deficient representation and (2) prejudice resulting from the deficiency. In the context of a guilty

plea, to satisfy the second prong of Strickland, the Appellant must show that "there is a reasonable

probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted

on going to trial." Hill v. Lockhart, 474 U.S. at 59, 106 S. Ct. at 370; see also Walton v. State, 966

S.W.2d 54, 55 (Tenn. Crim. App. 1997).

Because we have previously determined that no reversible error occurred from the

circumstances surrounding the Appellant’s guilty plea, trial counsel was not ineffective for failing

to challenge the “package deal” plea or the group colloquy. Moreover, we observe that trial counsel

testified that he thoroughly reviewed all aspects of the case with the Appellant on numerous

occasions throughout the course of his representation. The post-conviction court obviously credited

the testimony of trial counsel that he did not overreach or place undue influence upon the Appellant

in order to get him to plead guilty. Because we do not revisit the issue of credibility on appeal, we

defer to the post-conviction court's ruling in that regard. Black v. State, 794 S.W.2d 752, 755 (Tenn.

Crim. App. 1990). We conclude that the record fully supports the finding of the post-conviction

court that the Appellant has not proven by clear and convincing evidence that he received ineffective

assistance of counsel. This issue is meritless.

III. Failure of Indictment to Allege Capital Offense

Finally, the Appellant argues, pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.

2348 (2000), the indictments are unconstitutional and his life sentences without the possibility of

parole are invalid because the aggravating circumstances, relied upon by the State in seeking the

death penalty, were not charged in the indictment. We note that a guilty plea conviction is based

entirely upon the plea, and the plea constitutes a conviction in and of itself and is conclusive. Beaty

v. Neil, 467 S.W.2d 844, 847 (Tenn. Crim. App. 1971). As a general rule, an accused who enters

a plea of guilty to a criminal offense waives the right to appeal. Hobbs v. State, 73 S.W.3d 155, 158

(Tenn. Crim. App. 2001), perm. to appeal denied, (Tenn. 2002). The Appellant's appeal does not

fall within any exception. See Tenn. R. Crim. P. 37(b); Tenn. R. App. P. 3(b)(2). A plea of guilty,

which is entered voluntarily, knowingly, and intelligently, waives all prior non-jurisdictional,

procedural, and constitutional defects in the proceedings. State v. McKissack, 917 S.W.2d 714, 716

(Tenn. Crim. App. 1995). As discussed above, there is nothing in the record to support a conclusion

that the pleas were not voluntarily and knowingly entered. The constitutional issue presented was

waived by the Appellant’s pleas of guilty.

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Regardless of waiver, the issue of whether the Apprendi holding is applicable to Tennessee's

capital sentencing procedure has recently been addressed in State v. Dellinger, 79 S.W.3d 458, 466-

67 (Tenn.), cert. denied, 123 S. Ct. 695 (2002), State v. Richard Odom, No. W2000-02301-CCA-R3-

DD (Tenn. Crim. App. at Jackson, Oct. 15, 2002), appeal docketed, No. W2000-02301-SC-DDT-DD

(Tenn. 2002); and State v. Gdongalay P. Berry, No. M2001-02023-CCA-R3-DD (Tenn. Crim. App.

at Nashville, Apr. 10, 2003), appeal docketed, No. M2001-02023-SC-DDT-DD (Tenn. 2003), and

found to be meritless.

In Apprendi, the United States Supreme Court struck down a New Jersey hate crime statute,

which permitted the judge to enhance the defendant's sentence above the maximum range if the

crime was racially motivated. Apprendi, 530 U.S. at 496-97, 120 S. Ct. at 2366. The Court held

that:

Other than the fact of a prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be submitted to the jury, and

proved beyond a reasonable doubt. With that exception, we endorse the statement

of the rule set forth in the concurring opinions of [Jones v. United States, 526 U.S.

227, 119 S. Ct. 1215 (1999)]: “It is unconstitutional for a legislature to remove from

the jury the assessment of facts that increase the prescribed range of penalties to

which a criminal defendant is exposed. It is equally clear that such facts must be

established by proof beyond a reasonable doubt.”

Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63 (quoting Jones, 526 U.S. at 252-53) (footnote

omitted). The Tennessee Supreme Court, in Dellinger, 79 S.W.3d at 466-67, explained why

Apprendi is not applicable to a capital case in Tennessee:

1. . . . The Apprendi holding applies to enhancement factors other than prior

convictions. . . .

2. The death penalty is within the statutory range of punishment prescribed by the

legislature for first degree murder. Tenn. Code Ann. § 39-13-202(c)(1) (Supp. 2002).

The Apprendi holding applies only to enhancement factors used to impose a sentence

above the statutory maximum. Apprendi, 530 U.S. at 481, 120 S. Ct. at 2348. . . .

3. District attorneys in Tennessee are required to notify capital defendants no less

than thirty days before trial of the intent to seek the death penalty and must specify

the aggravating circumstances upon which the State intends to rely during sentencing.

Tenn. R. Crim. P. 12.3(b). Rule 12.3(b) therefore satisfies the requirements of due

process and notice. . . .

4. Tennessee's capital sentencing procedure requires that a jury make findings

regarding the statutory aggravating circumstances. Tenn. Code Ann. § 39-13-

204(f)(1), (I) (Supp. 2002). The Apprendi holding applies only to sentencing

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procedures under which judges sentence the defendants. Apprendi, 530 U.S. at 476,

120 S. Ct. at 2348.

5. Tennessee's capital sentencing procedure requires that the jury find any statutory

aggravating circumstance beyond a reasonable doubt. Tenn. Code Ann. § 39-13-

204(f)(1), (I). The Tennessee statutes therefore comply with the "beyond a reasonable

doubt" standard required by Apprendi. Apprendi, 530 U.S. at 476, 120 S. Ct. at 2348.

Dellinger, 79 S.W. 3d at 466-67. In accordance with Dellinger, we conclude that the principles of

Apprendi do not apply to Tennessee’s capital sentencing procedure. “Neither the United States

Constitution nor the Tennessee Constitution requires that the State charge in the indictment the

aggravating factors to be relied upon by the State during sentencing in a first degree murder

prosecution.” Id. at 467.

CONCLUSION

Finding no reversible error, we affirm the dismissal of the Appellant’s petition for post-

conviction relief.

___________________________________

DAVID G. HAYES, JUDGE

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