Cook v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: May 20, 1998
• Docket: 03C01-9709-CR-00390
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED FEBRUARY 1998 SESSION May 20, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk

BILLY EUGENE COOK, ) ) No. 03C01-9709-CR-00390 Appe llant, ) ) Knox C ounty vs. ) ) Honorable Mary Beth Leibowitz, STATE OF TENNESSEE, ) Judge ) Appellee. ) (Post-Conviction)

FOR THE APPELLANT: FOR THE APPELLEE:

MARK E. STEPHENS JOHN KNOX WALKUP Public Defender Attorney General & Reporter

JULIA AUER JANIS L. TURNER Assistant Public Defender Coun sel for State 1209 Euclid Avenue Cordell Hull Bldg., Second Floor Knoxville, TN 37921 425 Fifth Avenu e, North Nashville, TN 37243-0493

RANDALL E. NICHOLS District Attorney General

STEVE GARRETT Assistant District Attorney City-County Bldg. Knoxville, TN 37902

OPINION FILED:____________________

AFFIRMED PURSU ANT TO RU LE 20

WILLIAM B. ACREE, JR. SPECIAL JUDGE OPINION

The petition er, Billy E ugen e Coo k, app eals a s of righ t the trial c ourt’s dismiss al of his pe tition for post-c onviction re lief.

The petitioner entered guilty pleas on March 26, 1982, to burglary in the third degree (two cases) and grand larceny. He received concurrent sentences of three to ten years. The petitioner was later found to be an habitual criminal by the Da vidson C ounty C riminal C ourt and was se ntence d to life impr isonm ent. Thes e convictio ns were underlyin g convictio ns for the h abitual crim inal sente nce. The petitioner filed this petition on June 30, 1989.1 Following an e videntiary hearing held on May 1, 1997, the trial court dismissed the petition.

We affirm the judgment of the trial judge.

The petitioner alleges that he did not receive effective assistance of counsel when he pled guilty. Specifically, the petitioner contends that his trial counsel did not fully advise him about the Habitual Criminal Act. He claims that he pled guilty because he believed if he were found guilty, he could be declared to be a ha bitual crim inal.

Prior to the ac cepta nce o f the gu ilty pleas , the dis trict attor ney ge neral to ld the court in the presence of the petitioner that the petitioner was not subject to the Hab itual Cr imina l Act. T he trial c ourt ad vised th e petitio ner tha t if he sh ould com mit an other fe lony, he would be su bject to being tried as an ha bitual c rimina l.

At the post-conviction hearing, the petitioner admitted that his trial counsel told him h e did not th ink that the State co uld conv ict him as an hab itual crimina l. He the n gave th is testimo ny:

Mr. Cook: But thinking is not for sure. So, I don’t want to take a chance on a life sentence instead of the three to ten years senten ce. I would rather ha d the thre e to ten ye ars sen tence tha n to take a chance on thinking you know. If he said, “Well, I know he can’t c onvict y ou on a life sen tence ,” I would have to ok it to tria l.

The Court: He did advise you, though, that he didn’t think they

1 The Post-Conviction Act came into effect on July 1, 1986. The petitioner had until July 1, 1989 to file this petition. Abston v. State, 749 S.W.2d 487, 488 (Tenn.Crim.App. 1988). could convict you on an habitual criminal charge?

Mr. Cook: He said he didn’t think, but he wasn’t for sure.

In the post-conviction proceeding, the trial judge found that the petitioner was fu lly advise d of his rights a nd of th e effec t of the H abitua l Crim inal Act upon his conviction. The trial judge further found that he entered his plea freely, voluntarily and knowingly, and that the advice given him by his trial counsel was no t at fault.

“In post-conviction relief proceedings, the petitioner has the burden of proving the allega tions in his petition by a prep onderanc e of the evidenc e.” McBe e v. State, 655 S.W.2d 191, 195 (Tenn.Crim.App. 1983). Furthermore, the factual findings of the trial court and hearings “are conclusive on appeal unless the evidence preponde rates against the judgmen t.” State v. Buford , 666 S.W.2d 473, 475 (Tenn.Crim.App. 1983). Post-conviction relief is available only when the conviction or sentence is void or voidable because of the abridgement in any way of any righ t guaran teed by th e Con stitution of T ennes see or o f the Unite d States . Snea d v. State, 942 S.W .2d 567, 568 (Tenn.C rim.App. 199 6).

In the cas e at bar, the evidenc e supp orts the find ings of the trial court. Furthermore, the petitioner has neither alleged nor proved the violation of any right guaranteed to him by the Constitution of the United States or of Tennessee.

We find that the appellant was not denied the effective assistance of counsel in regard to his pleas of guilty and that his pleas were voluntarily and knowingly entered.

The judgment of the trial court is affirmed in accordance with Rule 20, Tennessee Court of Criminal Appeals.

___________________________________ WILLIAM B. ACREE, JR., SPECIAL JUDGE

CONCUR:

____________________________________ JERRY L. SMITH, JUDGE

____________________________________ THOMAS T. WOODALL, JUDGE