IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED NOVEMBER SESSION, 1996 April 3, 1997
Cecil W. Crowson PHILLIP MARK NUNLEY, ) C.C.A. NO. 01C01-9602-CC-00066 Appellate Court Clerk ) Appellant, ) ) ) GRUNDY COUNTY VS. ) ) HON. BUDDY D. PERRY STATE OF TENNESSEE, ) JUDGE ) Appellant. ) (Post-Conviction Relief)
FOR THE APPELLANT: FOR THE APPELLEE:
ROBERT S. PETERS CHARLES W. BURSON Swafford, Peters & Priest Attorney General and Reporter 100 First Avenue, S.W. Winchester, TN 37398 EUGENE J. HONEA Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493
J. MICHAEL TAYLOR District Attorney General
THOMAS HEMBREE Assistant District Attorney 2nd Floor Lawyers Building Jasper, TN 37347
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE OPINION
Appellant Philip Mark Nunley appeals from the dismissal of his petition
for post-conviction relief. On March 23, 1993, Appellant pled guilty to second-
degree murder and especially aggravated robbery. Appellant received a
sentence of twenty-five years imprisonment for second-degree murder and
twenty years imprisonment for especially aggravated robbery. The sentences
were ordere d to be served concurrently for an effective sentence of twenty-five
years. O n July 10, 1 993, Ap pellant filed a petition for p ost-con viction relief,
allegin g ineffe ctive as sistan ce of c ouns el and that he involun tarily en tered h is
guilty plea. The post-conviction court dismissed his petition, finding
Appe llant’s petition w ithout me rit. On app eal, App ellant argu es that his guilty
plea was involuntarily entered. For the reasons discussed below, we reject
Appe llant’s claim and affirm the decis ion of the p ost-con viction cou rt.
Appellant m aintains that his guilty plea w as not voluntarily, intelligently,
or kno wingly e ntered beca use th e trial co urt did n ot fully co mplyin g with R ule
11 of the Tennessee Rules of Criminal Procedure by inquiring of Appellant
whether his willingness to plead guilty resulted from prior discussions between
the district attorney and the defendant or his attorney. In addition, he claims
that be caus e of tim e pres sures and th e una vailability of his fa mily to h elp him
make a decision, Appellant was unable to make a voluntary, intelligent
decision .
In Boykin v. Alabama the United State Supreme Court held that an
accu sed’s guilty ple a mu st be vo luntarily , know ingly, an d und erstan dingly
-2- entered before a conviction resting upon a guilty plea may comply with due
process. 395 U.S. 238 (1969). In Boyk in, the Sup reme C ourt stated that a
guilty plea constituted a waiver of various rights and that it would not presume
a waiver of the following federal constitutional rights from a silent record:
(1) The privilege against compulsory self-incrimination;
(2) The right to trial by jury; and
(3) The right to confront one’s accusers.
Id. at 242. T hus, Boyk in placed a premium on the record showing sufficient
waiver of specified rights.
Exercisin g its supe rvisory pow er to ens ure that the courts of th is State
afford fairness and justice to defendants in criminal cases, the Tennessee
Supreme Court in State v. Mackey, 553 S.W .2d 337, 341 (Tenn. 197 7),
required stricter standards than those mandated by the Boyk in decision .
Mackey requires that trial judges, in accepting pleas of guilty in criminal cases
to substantially adhere to the following procedure:
The c ourt mu st addre ss the de fendan t in open c ourt and inform h im of,
and determine that he understands:
(a) Th e natu re of the charg es bro ught a gains t him and the mandatory minimum penalty provided by law, if any, and the maximum possible penalty; and that a d ifferent o r additio nal pu nishm ent m ay resu lt by reason of prior convictions or other factors; (b) If he is not represented by counsel, that he has a right to be so repre sented and that if he cannot afford counsel, counsel will be appointed; (c) That he has the right to plead not guilty, the right to be tried by a jury, the right to the assistance of counsel at trial, the right to confront and cross- exam ine witnes ses, and the right no t to incrimina te himse lf;
-3- (d) That if he pleads guilty, that there will be no trial except to determine his sentence; and (e) Tha t if he plead s guilty, the co urt or the sta te may ask him questions about the offense to which he plead ed, an d that if h e ans wers u nder o ath his answers may later be used against him in a prosecution for false statement or perjury, and that prior convictions may be used to set the sentence. (f) The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force of threats or of promises apart from a plea ag reeme nt. The c ourt sha ll also inquire as to whethe r the defe ndant’s w illingness to plead gu ilty results from prior discussions between the District Attorney Ge neral and the d efendant or h is attorney.
Id. at 341.
The Mackey requirements have been adopted into Rule 11 of the
Tennessee Rules of Criminal Procedure. In State v. McClintock, 732 S.W.2d
268, 273 (Tenn. 1987), the Supreme Court of Tennessee pronounced the
additional requirement that the trial court make clear to the guilty-pleading
defendant that the resulting judgment of conviction may be used in a
subsequent proceeding to enhance the defendant’s punishment for
subse quent o ffenses. T hus, Boyk in, Mackey, McClintock, and Rule 11 of
Tennessee Rules of Criminal Procedure govern the validity of guilty plea
proceedings.
As the Supreme Court of Tennessee noted in State v. Prince, 781
S.W.2d 846, 853 (Tenn. 1989), some of the mandated Mackey advice is not
required by Boyk in but repre sents a s uperviso ry pronou ncem ent of the c ourt.
The C ourt stated “any othe r requirem ent of Mackey in excess of Boyk in is not
based upon any constitutional provision, federal or state. It follows, that any
omissions, not required in Boyk in may b e relied upon on dire ct app eal in
-4- appropriate cases but such omissions have no validity on the first or any
subsequ ent post-conviction proceeding .” Id. at 853.
From the transcript of the guilty plea proceeding, it is clear that the trial
judge went to exhaustive measures to ensure that Appellant’s plea was
voluntary. Addressing Appellant in open court, the trial judge informed
Appellant that he had the right to plead not guilty and that he had the right to a
trial by jur y, insistin g that th e State of Ten ness ee pro ve bey ond a reaso nable
doubt that he was guilty. The trial judge further informed Appellant of his right
to an attorney at trial, his right to confront and cross-examine the witnesses
against him, his right against self-incrimination, and the right to subpoena
witnesses to testify on his behalf. The trial judge inquired of Appellant whether
anyone had forced him to plead guilty. Appellant answered “no.” Appellant
indicated that he understood the rights he was waiving. It does appear that
the trial cou rt failed to ask Appella nt wheth er his willingn ess to ple ad guilty
resulted from discussions between he and the district attorney or his attorney
and th e distric t attorne y.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED NOVEMBER SESSION, 1996 April 3, 1997
Cecil W. Crowson PHILLIP MARK NUNLEY, ) C.C.A. NO. 01C01-9602-CC-00066 Appellate Court Clerk ) Appellant, ) ) ) GRUNDY COUNTY VS. ) ) HON. BUDDY D. PERRY STATE OF TENNESSEE, ) JUDGE ) Appellant. ) (Post-Conviction Relief)
FOR THE APPELLANT: FOR THE APPELLEE:
ROBERT S. PETERS CHARLES W. BURSON Swafford, Peters & Priest Attorney General and Reporter 100 First Avenue, S.W. Winchester, TN 37398 EUGENE J. HONEA Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493
J. MICHAEL TAYLOR District Attorney General
THOMAS HEMBREE Assistant District Attorney 2nd Floor Lawyers Building Jasper, TN 37347
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE OPINION
Appellant Philip Mark Nunley appeals from the dismissal of his petition
for post-conviction relief. On March 23, 1993, Appellant pled guilty to second-
degree murder and especially aggravated robbery. Appellant received a
sentence of twenty-five years imprisonment for second-degree murder and
twenty years imprisonment for especially aggravated robbery. The sentences
were ordere d to be served concurrently for an effective sentence of twenty-five
years. O n July 10, 1 993, Ap pellant filed a petition for p ost-con viction relief,
allegin g ineffe ctive as sistan ce of c ouns el and that he involun tarily en tered h is
guilty plea. The post-conviction court dismissed his petition, finding
Appe llant’s petition w ithout me rit. On app eal, App ellant argu es that his guilty
plea was involuntarily entered. For the reasons discussed below, we reject
Appe llant’s claim and affirm the decis ion of the p ost-con viction cou rt.
Appellant m aintains that his guilty plea w as not voluntarily, intelligently,
or kno wingly e ntered beca use th e trial co urt did n ot fully co mplyin g with R ule
11 of the Tennessee Rules of Criminal Procedure by inquiring of Appellant
whether his willingness to plead guilty resulted from prior discussions between
the district attorney and the defendant or his attorney. In addition, he claims
that be caus e of tim e pres sures and th e una vailability of his fa mily to h elp him
make a decision, Appellant was unable to make a voluntary, intelligent
decision .
In Boykin v. Alabama the United State Supreme Court held that an
accu sed’s guilty ple a mu st be vo luntarily , know ingly, an d und erstan dingly
-2- entered before a conviction resting upon a guilty plea may comply with due
process. 395 U.S. 238 (1969). In Boyk in, the Sup reme C ourt stated that a
guilty plea constituted a waiver of various rights and that it would not presume
a waiver of the following federal constitutional rights from a silent record:
(1) The privilege against compulsory self-incrimination;
(2) The right to trial by jury; and
(3) The right to confront one’s accusers.
Id. at 242. T hus, Boyk in placed a premium on the record showing sufficient
waiver of specified rights.
Exercisin g its supe rvisory pow er to ens ure that the courts of th is State
afford fairness and justice to defendants in criminal cases, the Tennessee
Supreme Court in State v. Mackey, 553 S.W .2d 337, 341 (Tenn. 197 7),
required stricter standards than those mandated by the Boyk in decision .
Mackey requires that trial judges, in accepting pleas of guilty in criminal cases
to substantially adhere to the following procedure:
The c ourt mu st addre ss the de fendan t in open c ourt and inform h im of,
and determine that he understands:
(a) Th e natu re of the charg es bro ught a gains t him and the mandatory minimum penalty provided by law, if any, and the maximum possible penalty; and that a d ifferent o r additio nal pu nishm ent m ay resu lt by reason of prior convictions or other factors; (b) If he is not represented by counsel, that he has a right to be so repre sented and that if he cannot afford counsel, counsel will be appointed; (c) That he has the right to plead not guilty, the right to be tried by a jury, the right to the assistance of counsel at trial, the right to confront and cross- exam ine witnes ses, and the right no t to incrimina te himse lf;
-3- (d) That if he pleads guilty, that there will be no trial except to determine his sentence; and (e) Tha t if he plead s guilty, the co urt or the sta te may ask him questions about the offense to which he plead ed, an d that if h e ans wers u nder o ath his answers may later be used against him in a prosecution for false statement or perjury, and that prior convictions may be used to set the sentence. (f) The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force of threats or of promises apart from a plea ag reeme nt. The c ourt sha ll also inquire as to whethe r the defe ndant’s w illingness to plead gu ilty results from prior discussions between the District Attorney Ge neral and the d efendant or h is attorney.
Id. at 341.
The Mackey requirements have been adopted into Rule 11 of the
Tennessee Rules of Criminal Procedure. In State v. McClintock, 732 S.W.2d
268, 273 (Tenn. 1987), the Supreme Court of Tennessee pronounced the
additional requirement that the trial court make clear to the guilty-pleading
defendant that the resulting judgment of conviction may be used in a
subsequent proceeding to enhance the defendant’s punishment for
subse quent o ffenses. T hus, Boyk in, Mackey, McClintock, and Rule 11 of
Tennessee Rules of Criminal Procedure govern the validity of guilty plea
proceedings.
As the Supreme Court of Tennessee noted in State v. Prince, 781
S.W.2d 846, 853 (Tenn. 1989), some of the mandated Mackey advice is not
required by Boyk in but repre sents a s uperviso ry pronou ncem ent of the c ourt.
The C ourt stated “any othe r requirem ent of Mackey in excess of Boyk in is not
based upon any constitutional provision, federal or state. It follows, that any
omissions, not required in Boyk in may b e relied upon on dire ct app eal in
-4- appropriate cases but such omissions have no validity on the first or any
subsequ ent post-conviction proceeding .” Id. at 853.
From the transcript of the guilty plea proceeding, it is clear that the trial
judge went to exhaustive measures to ensure that Appellant’s plea was
voluntary. Addressing Appellant in open court, the trial judge informed
Appellant that he had the right to plead not guilty and that he had the right to a
trial by jur y, insistin g that th e State of Ten ness ee pro ve bey ond a reaso nable
doubt that he was guilty. The trial judge further informed Appellant of his right
to an attorney at trial, his right to confront and cross-examine the witnesses
against him, his right against self-incrimination, and the right to subpoena
witnesses to testify on his behalf. The trial judge inquired of Appellant whether
anyone had forced him to plead guilty. Appellant answered “no.” Appellant
indicated that he understood the rights he was waiving. It does appear that
the trial cou rt failed to ask Appella nt wheth er his willingn ess to ple ad guilty
resulted from discussions between he and the district attorney or his attorney
and th e distric t attorne y. How ever, th is is a su perviso ry, non -cons titutiona lly
based instruc tion required by Mackey, and relief m ay be give n in a pos t-
conviction hearing only if a conviction is void or voidable because of a violation
of a cons titutional right. See Tenn . Code Ann. § 4 0-30-20 3 (Sup p. 1996 );
Prince, 781 S.W .2d at 853 . There fore, this issu e has n o merit.
Neither did Appellant’s alleged time pressures, lack of family input, or
coercion on the pa rt of couns el result in his guilty plea b eing involu ntary.
Appellant claims that he and his attorney barely discussed the guilty plea
offered by the State and that he was forced into accepting the plea minutes
-5- before the plea was entered. He also maintains that the trial court pressured
him an d his attorn ey to com e to a quic k decisio n beca use the judge w anted to
begin court promptly at 9:00 a.m. In fact, Appellant testified at the hearing on
the petition for post-conviction relief that he was told about the possibility of
plead ing gu ilty the Fr iday be fore the Mond ay he p led gu ilty. Durin g his
negotiations with the State which b egan on F riday and end ed on Su nday,
coun sel info rmed Appe llant of th e plea and th e stren gth of th e State ’s
evidence against Appellant. While it is true that the trial judge stated at the
hearin g that if h e had been aske d for m ore tim e Mon day m orning , he wo uld
not have gran ted it, such a reque st was never m ade and n o such pres sure
was e xerted by the c ourt. In a ddition , while A ppella nt com plains abou t his
lack of access to family input, his mo ther did visit him at jail the Sun day before
his plea was entered. Although his mother testified that they did not discuss
the plea at that time, they certainly had the opportunity to do so. After having
observed the trial and conviction of Appellant’s co-defendant brother, and
considering the even greater weight of evidence against Appellant, counsel
believed that it was in Appellant’s best interest to accept the plea offered by
the State. Counsel was entitled to use reasonable persuasion when making
his recom mend ation. State v. Parham, 885 S.W.2d 375, 384 (Tenn. Crim.
App. 1994 ).
We conclude that Appellant’s plea was voluntarily, intelligently, and
knowingly entered and that the evidence produced by Appellant does not
preponde rate against the findin gs of the post-co nviction court. Acco rdingly,
the judgment of the post-conviction court is affirmed.
-6- ____________________________________ JERRY L. SMITH, JUDGE
CONCUR:
___________________________________ JOHN H. PEAY, JUDGE
___________________________________ DAVID H. WELLES, JUDGE
-7-