Ground For a Petition To Rehear. See Nashville v. State Board of Equalization, 210 Tenn. 587, 618

• Court: Court of Criminal Appeals of Tennessee
• Decided: February 11, 2000
• Docket: E1999-01964-CCA-R3-PC
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED AT KNOXVILLE February 11, 2000

Cecil Crowson, Jr. Appellate Court Clerk

ALICIA SHAYNE LOVERA, ) ) No. E1999-01964-CCA-R3-PC Appellant ) ) SEVIER COUNTY vs. ) ) Hon. REX H. OGLE Judge STATE OF TENNESSEE, ) ) (POST-CONVICTION) ) Appellee )

ORDER ON PETITION TO REHEAR

A petition to rehear has been filed on behalf of the appellant, Alicia

Shayne Lovera, pursuant to Rule 39, Tenn. R. App. P., to have this court

reconsider its opinion previously filed in this case on January 4, 2000.1 After consideration of the same, this court is of the opinion that the petition should be

granted to address one allegation, i.e., whether the appellant’s guilty plea was

knowingly and voluntarily entered.

The appellant contends that this “[c]ourt’s opinion overlooks a material

fact and misapplies a material proposition of law” in that this court’s opinion inaccurately stated that the appellant failed to include a copy of the transcript of

the guilty plea hearing in the record. See Tenn. R. App. P. 39(a)(1) and (3).

1 As grounds for her petition, the appellant contends that this “[c]ourt’s opinion overlooks a material fact and misapp lies a material proposition of law.” See Tenn. R. App. P. 39 (a)(1) and (3). Specifically, the appellant complains that (1) this court’s opinion inaccurately stated that the appellant failed to include a copy of the transcript of the alleged guilty plea hearing in the record; (2) as there is no Tenness ee case on this m atter, this court should apply the law of Daye v. Com mon wealth , 467 S.E.2d 287 (Va. Ct. App. 1996), holding that the entrance of a guilty plea after a jury verdict is moot; and (3) “this Court misunderstands the reach of the double jeopardy prov isions of the Unite d Sta tes a nd T enn ess ee C ons titution s.” W e den y the p etition on all grounds other than the voluntariness of her guilty plea.

Specifically, the appellant insists that, as there is no Tennessee law on point, this court apply the law of Virginia to the facts of the present case regarding the effect of a guilty plea entered following a jury trial. As the appellant failed to include this point in her original argument and as she relies on sec ondary au thority cited to by this court in its op inion, this issu e is not a ground for a petition to rehear. See Nashville v. State Board of Equalization, 210 Tenn. 587, 618, 360 S.W.2d 458, 472 (1962) (petition for rehearing not used for purposes of rearguing case on points already considered and determined, unless new and decisive authority has been discovered, which was overlook ed by the court). Next, the appellant asserts that this court “misunderstands the reach of the double jeopardy provisions of the United States and Tennessee Constitutions.” Again, the appellant merely reargues a point of law already considered and denied b y this court. Id. This issue is also not a ground for a petition to rehear. The record received by the assigned panel contained only two volumes.

The appellant claims that “Volume III” includes the plea hearing transcript and

must have been lost or misplaced. Although Volume III was located with the post-conviction record for the appellant’s co-defendant, Brett Rae, it does not

contain the plea transcript. However, the appellant’s plea hearing transcript, filed

as exhibit 1 in her evidentiary hearing, was also located with the Rae record. In light of the transcript and in the interest of justice, we grant the petition to

reconsider whether the appellant’s plea was knowingly and voluntarily entered.

Again, the appellant asserts that her guilty plea was involuntarily and

unknowingly entered because the trial court failed to advise her of her rights to

“knowingly, intelligently, and voluntarily waive cross-examination of witnesses, jury trial and the right against self-incrimination.” See Appellant’s Brief at 24

(citing Boykin v. Alabama, 395 U.S. 238 (1969); McCarthy v. United States, 394

U.S. 459 (1969)). The appellant also alleges that (1) she received no consideration for entering the plea; (2) her state of mind precluded a knowing

and voluntary plea; (3) trial counsel failed to explain a sentence of life without

parole; (4) she was not informed that she was entitled to a hearing prior to

imposition of sentence; and (5) she was coerced by threats of new evidence

against her.

In the present case, the post-conviction court concluded that the appellant

received the competent assistance of counsel and, consequently, entered her

plea knowingly and voluntarily. A trial court’s findings of fact in the post- conviction hearing are conclusive on appeal unless the evidence in the record

preponderates against those findings. See Henley v. State, 960 S.W.2d 572,

578-79 (Tenn. 1997); Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App.

1978 ), cert. denied, 441 U.S. 947, 99 S. Ct. 2170 (1979). The record supports the post-conviction court’s findings. Excerpts from the transcript of the joint guilty

plea hearing of the appellant and her co-defendant, Brett Rae, reveal that the

trial court advised both co-defendant Rae and the appellant of their automatic right to appeal and the waiver thereof by entering a guilty plea, their right to a

separate sentencing hearing and waiver thereof by entering a guilty plea, their

2 rights to trial by jury and the confrontation of witnesses, and that a life sentence

in Tennessee means service of at least twenty-five years before reaching parole

eligibility. The fact that the court first addressed co-defendant Rae and then the appellant is of no consequence.2 See State v. Neal, 810 S.W.2d 131 (Tenn.

1991), overruled on other grounds by, Blankenship v. State, 858 S.W.2d 897

(Tenn. 1993). Moreover, if the proof establishes that the appellant was aware of her constitutional rights, she is entitled to no relief. Johnson v. State, 834

S.W.2d 922, 926 (Tenn.1992). Our review of the entire record establishes that

the appellant’s guilty plea was entered voluntarily, knowingly and with full awareness of her constitutional rights.

For these reasons, we find without merit the challenge presented in the appellant’s petition to rehear regarding the voluntary nature of her guilty plea.

The petition to rehear is otherwise denied.

PER CURIAM (Hayes, Tipton, and Welles, JJ)

2 In State v. Neal, 810 S.W.2d at 137-38, our supreme court noted that it is "substantial compliance" with Mackey "if the e ntire lita ny of rig hts a nd ot her re quire d exp lanat ory info rm ation is com mu nica ted in open cour t sim ultan eou sly to m ultiple defe nda nts in the p rese nce of the ir 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 reco rd the un derstan ding and agreem ent of ea ch defe ndant."