IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
NOVEMBER 1997 SESSION FILED CAVIOUS M. WATKINS, * C.C.A. # 02C01-9701-CR-00031
Appellant, * SHELBY COUNTY January 12, 1998 VS. * Hon. James C. Beasley, Jr., Judge
STATE OF TENNESSEE, * (Post-Conviction) Cecil Crowson, Jr. Appellee. * Appellate C ourt Clerk
For Appellant: For Appellee:
Garland Erguden John Knox Walkup Attorney Attorney General and Reporter 242 Poplar Avenue Memphis, TN 38103 Clinton J. Morgan Counsel for the State 450 James Robertson Parkway Nashville, TN 37243-0493
Janet Shipman Assistant District Attorney General 201 Poplar Avenue, Third Floor Memphis, TN 38103
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, JUDGE OPINION
The defendant, Cavious M. Watkins, appeals the trial court's denial of
his petition for post-conviction relief. In this appeal of right, the defendant contends
that his pleas were neither knowingly nor voluntarily made due to the ineffective
assistance of counsel. We find no error and affirm the judgment of the trial court.
Indicted on two counts of especially aggravated robbery and one count
of felony murder, the petitioner entered into a plea agreement, acknowledging his
guilt on each count. On June 1, 1995, the trial court imposed Range I, twenty-five-
year sentences on each of the two robberies. A life sentence was imposed for the
felony murder. The sentences are to be served concurrently.
On April 26, 1996, the petitioner filed a pro se petition for post-
conviction relief, claiming that his guilty pleas were neither freely nor intelligently
made due to the ineffective assistance of his retained trial counsel. An amendment
to the petition included the specific allegation that the petitioner had been
misinformed by his trial counsel as to his release eligibility date. He contended that
he entered his plea based upon information that he would be eligible for release
much sooner than as later determined through the Department of Correction.
The petitioner was seventeen years of age at the time of his plea and
had completed the ninth grade. There was testimony that he had understood his
prison sentence would last approximately seventeen years; however, he later
learned that with maximum good time credits, his minimum sentence would be
twenty-two years. While acknowledging that his trial counsel had met with him
regularly to provide progress reports on his case, the petitioner testified that, in
general, he did not understand the nature of the proceedings against him.
2 Trial counsel testified that he had learned through his investigation that
the evidence against the petitioner was overwhelming. He learned that the
defendant and each of his two co-defendants had admitted their participation in the
crimes to the police. There was a videotape of the car the defendants used in the
commission of the crimes. The victim who had survived the robbery was able to
identify the petitioner as one of the robbers. Trial counsel asserted that the only
defense possible was to require the state to meet its burden of proof on each of the
elements of the crime. He expressed particular concern about the possibility of
consecutive sentencing had a trial been demanded and recalled that the petitioner,
when apprised of the results of the investigation, expressed a genuine desire to
plead guilty so as to avoid a more onerous result.
Trial counsel specifically denied having informed the petitioner that he
would be eligible for release within seventeen years. He testified that it was his
understanding that a life sentence would consist of twenty-five years. Trial counsel
claimed that it had been his policy to inform clients that release eligibility is solely
determined by the Department of Correction and potentially influenced by
overcrowding, earned sentence credits, or other incentives.
In its findings of fact and conclusions of law, the trial court determined
that the petitioner's only complaint was that his trial counsel had represented that he
would be eligible for parole in seventeen years. Otherwise, the petitioner had no
quarrel with the quality of his work. The court observed that trial counsel had
represented the petitioner over a period of two years, had fully investigated the
matter, and had adequate prior experience by his participation in a number of
murder trials. The trial court generally accredited the testimony of trial counsel,
determining that the petitioner had failed to meet his burden of proving that the
3 pleas were not knowingly or voluntarily made. Implicit in the holding is that the
petitioner was unable to establish to the satisfaction of the trial judge that he had
been misinformed by his counsel about the release eligibility date.
In order for the petitioner to be granted relief on grounds of ineffective
counsel, he must establish that the advice given or the services rendered were not
within the range of competence demanded of attorneys in criminal cases and that,
but for his counsel's deficient performance, the result of his trial would have been
different. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). This two-part
standard, as it applies to guilty pleas, is met when the petitioner establishes that, but
for his counsel's errors, he would not have pled guilty and would have insisted on a
trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985). "Gross
misadvice concerning parole eligibility can amount to ineffective assistance of
counsel." Sparks v. Sowders, 852 F.2d 882, 885 (6th Cir. 1988); see generally
Adkins v. State, 911 S.W.2d 334 (Tenn. Crim. App. 1994) (holding failure of counsel
to advise defendant as to collateral effects of guilty plea is not ineffective
assistance).
The burden is on the petitioner to show that the evidence
preponderates against the findings of the trial judge. Clenny v. State, 576 S.W.2d
12 (Tenn. Crim. App. 1978). Otherwise, the findings of fact by the trial court are
conclusive. Graves v. State, 512 S.W.2d 603 (Tenn. Crim. App. 1973). In post-
conviction claims, the credibility of the witnesses and the weight and value to be
given their testimony is within the exclusive authority of the trial court. Taylor v.
State, 875 S.W.2d 684, 686 (Tenn. Crim. App. 1993).
4 Here, the petitioner testified that his true release eligibility date was
2029, almost thirty-four years after his pleas. That date is erroneous as
acknowledged by the petitioner in his appellate brief; thus, the testimony did not
enhance the petitioner's credibility. The trial court deemed as significant the fact
that no other witnesses testified on behalf of the petitioner as to his release eligibility
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
NOVEMBER 1997 SESSION FILED CAVIOUS M. WATKINS, * C.C.A. # 02C01-9701-CR-00031
Appellant, * SHELBY COUNTY January 12, 1998 VS. * Hon. James C. Beasley, Jr., Judge
STATE OF TENNESSEE, * (Post-Conviction) Cecil Crowson, Jr. Appellee. * Appellate C ourt Clerk
For Appellant: For Appellee:
Garland Erguden John Knox Walkup Attorney Attorney General and Reporter 242 Poplar Avenue Memphis, TN 38103 Clinton J. Morgan Counsel for the State 450 James Robertson Parkway Nashville, TN 37243-0493
Janet Shipman Assistant District Attorney General 201 Poplar Avenue, Third Floor Memphis, TN 38103
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, JUDGE OPINION
The defendant, Cavious M. Watkins, appeals the trial court's denial of
his petition for post-conviction relief. In this appeal of right, the defendant contends
that his pleas were neither knowingly nor voluntarily made due to the ineffective
assistance of counsel. We find no error and affirm the judgment of the trial court.
Indicted on two counts of especially aggravated robbery and one count
of felony murder, the petitioner entered into a plea agreement, acknowledging his
guilt on each count. On June 1, 1995, the trial court imposed Range I, twenty-five-
year sentences on each of the two robberies. A life sentence was imposed for the
felony murder. The sentences are to be served concurrently.
On April 26, 1996, the petitioner filed a pro se petition for post-
conviction relief, claiming that his guilty pleas were neither freely nor intelligently
made due to the ineffective assistance of his retained trial counsel. An amendment
to the petition included the specific allegation that the petitioner had been
misinformed by his trial counsel as to his release eligibility date. He contended that
he entered his plea based upon information that he would be eligible for release
much sooner than as later determined through the Department of Correction.
The petitioner was seventeen years of age at the time of his plea and
had completed the ninth grade. There was testimony that he had understood his
prison sentence would last approximately seventeen years; however, he later
learned that with maximum good time credits, his minimum sentence would be
twenty-two years. While acknowledging that his trial counsel had met with him
regularly to provide progress reports on his case, the petitioner testified that, in
general, he did not understand the nature of the proceedings against him.
2 Trial counsel testified that he had learned through his investigation that
the evidence against the petitioner was overwhelming. He learned that the
defendant and each of his two co-defendants had admitted their participation in the
crimes to the police. There was a videotape of the car the defendants used in the
commission of the crimes. The victim who had survived the robbery was able to
identify the petitioner as one of the robbers. Trial counsel asserted that the only
defense possible was to require the state to meet its burden of proof on each of the
elements of the crime. He expressed particular concern about the possibility of
consecutive sentencing had a trial been demanded and recalled that the petitioner,
when apprised of the results of the investigation, expressed a genuine desire to
plead guilty so as to avoid a more onerous result.
Trial counsel specifically denied having informed the petitioner that he
would be eligible for release within seventeen years. He testified that it was his
understanding that a life sentence would consist of twenty-five years. Trial counsel
claimed that it had been his policy to inform clients that release eligibility is solely
determined by the Department of Correction and potentially influenced by
overcrowding, earned sentence credits, or other incentives.
In its findings of fact and conclusions of law, the trial court determined
that the petitioner's only complaint was that his trial counsel had represented that he
would be eligible for parole in seventeen years. Otherwise, the petitioner had no
quarrel with the quality of his work. The court observed that trial counsel had
represented the petitioner over a period of two years, had fully investigated the
matter, and had adequate prior experience by his participation in a number of
murder trials. The trial court generally accredited the testimony of trial counsel,
determining that the petitioner had failed to meet his burden of proving that the
3 pleas were not knowingly or voluntarily made. Implicit in the holding is that the
petitioner was unable to establish to the satisfaction of the trial judge that he had
been misinformed by his counsel about the release eligibility date.
In order for the petitioner to be granted relief on grounds of ineffective
counsel, he must establish that the advice given or the services rendered were not
within the range of competence demanded of attorneys in criminal cases and that,
but for his counsel's deficient performance, the result of his trial would have been
different. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). This two-part
standard, as it applies to guilty pleas, is met when the petitioner establishes that, but
for his counsel's errors, he would not have pled guilty and would have insisted on a
trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985). "Gross
misadvice concerning parole eligibility can amount to ineffective assistance of
counsel." Sparks v. Sowders, 852 F.2d 882, 885 (6th Cir. 1988); see generally
Adkins v. State, 911 S.W.2d 334 (Tenn. Crim. App. 1994) (holding failure of counsel
to advise defendant as to collateral effects of guilty plea is not ineffective
assistance).
The burden is on the petitioner to show that the evidence
preponderates against the findings of the trial judge. Clenny v. State, 576 S.W.2d
12 (Tenn. Crim. App. 1978). Otherwise, the findings of fact by the trial court are
conclusive. Graves v. State, 512 S.W.2d 603 (Tenn. Crim. App. 1973). In post-
conviction claims, the credibility of the witnesses and the weight and value to be
given their testimony is within the exclusive authority of the trial court. Taylor v.
State, 875 S.W.2d 684, 686 (Tenn. Crim. App. 1993).
4 Here, the petitioner testified that his true release eligibility date was
2029, almost thirty-four years after his pleas. That date is erroneous as
acknowledged by the petitioner in his appellate brief; thus, the testimony did not
enhance the petitioner's credibility. The trial court deemed as significant the fact
that no other witnesses testified on behalf of the petitioner as to his release eligibility
date allegations even though trial counsel had consulted with other members of the
petitioner's family prior to the acceptance of the plea agreement. We cannot
disagree with the trial court's rationale. The record suggests that the petitioner may
still be confused about his release eligibility date. From all of this, it is our view that
the petitioner has been unable to demonstrate that the evidence preponderates
against the finding made by the trial court that he had been represented within
professional guidelines.
It follows then that the petitioner has failed to demonstrate that his plea
was involuntary or unknowing. In Boykin v. Alabama, 395 U.S. 238 (1969), the
United States Supreme Court ruled that defendants should be advised of certain of
their constitutional rights before entering pleas of guilt. Included among those
required warnings are the right against self-incrimination, the right to confront
witnesses, and the right to a trial by jury. Id. at 243. The overriding Boykin
requirement is that the guilty plea must be knowingly and voluntarily made. Id. at
242-44. If the proof established that the petitioner was aware of his constitutional
rights, he is entitled to no relief. Johnson v. State, 834 S.W.2d 922, 926 (Tenn.
1992). "[A] plea is not 'voluntary' if it is the product of '[i]gnorance, incomprehension,
coercion, terror, inducements, [or] subtle or blatant threats ....'" Blankenship v.
State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Boykin, 395 U.S. at 242-43).
The petitioner asserts that his plea was neither knowing nor voluntary
5 because he pled guilty expecting to serve a seventeen year sentence rather than a
twenty-two year sentence. As we have previously determined, however, the
petitioner has failed to meet his burden of showing that the evidence preponderates
against the trial court's findings. The trial court found, and we have agreed, that the
petitioner's trial counsel did not erroneously inform the petitioner he would serve
only a seventeen year sentence. Moreover, the petitioner admitted at the post-
conviction hearing that when he entered his pleas, he had understood he would
receive a life sentence and two concurrent twenty-five year sentences; he further
admitted that he understood each of his rights at that time. Thus, the record
indicates a knowing and voluntary plea.
Accordingly, the judgment is affirmed.
________________________________ Gary R. Wade, Judge
CONCUR:
_____________________________ David G. Hayes, Judge
_____________________________ Joe G. Riley, Judge