State v. Keith Henderson

Court of Criminal Appeals of Tennessee

State v. Keith Henderson

CourtCourt of Criminal Appeals of Tennessee

DecidedDecember 31, 1997

Docket02C01-9707-CR-00263

StatusPublished

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State v. Keith Henderson, (Tenn. Ct. App. 1997).

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Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

DECEMBER 1997 SESSION FILED December 31, 1997 KEITH D. HENDERSON, ) ) Cecil Crowson, Jr. Appellate C ourt Clerk APPELLANT, ) ) No. 02-C-01-9707-CR-00263 ) ) Shelby County v. ) ) Carolyn W. Blackett, Judge ) ) (Post-Conviction Relief) STATE OF TENNESSEE, ) ) APPELLEE. )

FOR THE APPELLANT: FOR THE APPELLEE:

James M. Gulley John Knox Walkup Attorney at Law Attorney General & Reporter 80 Monroe Avenue 500 Charlotte Avenue Memphis, TN 38103 Nashville, TN 37243-0497

Marvin E. Clements, Jr. Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493

William L. Gibbons District Attorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103

Dawn Doran Assistant District Attorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103

OPINION FILED:_________________________________

AFFIRMED

Joe B. Jones, Presiding Judge OPINION

The appellant, Keith D. Henderson (petitioner), appeals as of right from a judgment

of the trial court dismissing his action for post-conviction relief following an evidentiary

hearing. In this court, the petitioner contends his guilty plea to second degree murder was

not voluntarily, knowingly, and intelligently entered. He argues the plea is infirm because

(1) he was not aware of his constitutional rights or the direct consequences of a guilty plea,

(2) neither the trial court nor counsel advised him of the nature of the offense before he

entered the plea, and (3) he was not advised of the minimum and maximum penalty for the

offense of second degree murder. After a thorough review of the record, the briefs

submitted by the parties, and the law governing the issue presented for review, it is the

opinion of this court that the judgment of the trial court should be affirmed.

The petitioner was charged with murder first degree. He was accused of lying in

wait for the victim, robbing the victim, and shooting the victim in his back while he was lying

on the ground with his face to the ground. The victim pleaded for his life before the fatal

wound struck him. The petitioner gave a statement to the police. He admitted attempting

to rob the victim as well as shooting the victim. However, he stated he shot the victim

when he thought the victim was reaching for a weapon. The indictment charged the

defendant with premeditated murder and felony murder. The State of Tennessee had

several witnesses who where prepared to testify in support of the aforementioned facts.

The petitioner planned to claim self-defense. However, counsel stated this would have

been difficult as the petitioner shot the victim in the back while the victim was lying on the

ground.

The state did not seek the imposition of a death sentence or life without the

possibility of parole. The only offer of settlement prior to trial was for a life sentence. On

the morning the trial was set to commence, the state and the defendant negotiated a

settlement . Defense counsel insisted on a settlement of twenty-five (25) years. However,

the family of the victim would not agree to reduce the proposed sentence lower than forty-

five (45) years. The petitioner, the petitioner’s parents, and defense counsel discussed the

state’s offer. Thereafter, the petitioner agreed to accept the sentence. Although the

2 petitioner was a Range I offender for sentencing purposes, he agreed to be sentenced

within Range II. This was required to justify the reduction of the first degree murder charge

to second degree murder.

The petitioner contends his guilty plea to second degree murder was not voluntarily,

knowingly, and intelligently entered because he was not aware of his constitutional rights

or the direct consequences of a guilty plea. He argues the procedure during the

submission hearing did not comply with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709,

23 L.Ed.2d 274 (1969) and State v. Mackey, 553 S.W.2d 337, 339-40 (Tenn. 1977). He

argues he “was not aware of the differences between a range one and range two offender,”

and “[he] was ignorant of the fact that he was accepting a plea offer that required him to

be sentenced as a range two multiple offender even though he had no prior criminal

record.” He concedes the trial court advised him of the right to trial by jury, the right to

confront witnesses, and the privilege against self-incrimination.

It is an elementary rule of law that a guilty plea must be voluntarily, knowingly, and

intelligently entered to pass constitutional muster. Boykin, 395 U.S. at 243-44, 89 S.Ct. at

1712-13, 23 L.Ed.2d at 279-80. If the submission hearing transcript coupled with the

evidence adduced at an evidentiary hearing establishes the guilty plea was not voluntarily,

knowingly, and intelligently entered, the accused is entitled to have the plea set aside and

the cause remanded to the trial court for further proceedings. See Chamberlain v. State,

815 S.W.2d 534, 540-42 (Tenn. Crim. App. 1990), per. app. denied (Tenn. 1991).

Boykin did not create a new procedure or mandate a certain litany of rights. As this

court said in Clark v. State:

Boykin simply requires that the transcript of a guilty plea proceeding affirmatively show that “the defendant voluntarily and understandingly entered his plea of guilty. . . .” Boykin did not create a “procedural requirement” that the three constitutional rights mentioned in the opinion must be explained to the defendant and the defendant waive these rights before a trial judge can accept a defendant’s guilty plea. . . . Moreover, the federal courts have been, and are presently, “unwilling to hold, as a constitutional requirement applicable in habeas corpus cases to state proceedings, that a guilty plea requires any precise litany for its accomplishments. . . .” In short, “[a] catechism of the constitutional rights that are waived by entry of a guilty plea is not compelled” by Boykin or the Constitution.

3 800 S.W.2d 500, 504 (Tenn. Crim. App.), per. app. denied (Tenn. 1990) (citations omitted).

Rule 11(c), Tennessee Rules of Criminal Procedure, and Mackey require that the

trial judge address the accused personally in open court. The trial judge is also required

to explain certain information and constitutional rights to the defendant, and the judge must

ascertain whether the accused understands the information and applicable constitutional

rights. The judge must explain to the defendant:

1.) The nature of the offense to which the plea is offered;

2.) The mandatory minimum penalty and the maximum penalty prescribed by law;

3.) When the defendant appears without counsel, the right to be represented by

counsel, and if indigent, an attorney will be appointed to represent him;

4.) The right to plead not guilty or persist in a plea if such a plea has been

previously entered;

5.) The right to trial by jury;

6.) The right to the assistance of counsel if the defendant opts for a trial;

7.) The right to confront and cross-examine the state’s witnesses if the defendant

opts to go to trial;

8.) The privilege against compulsory self-incrimination if the defendant opts to go

to trial;

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