State v. Montgomery

840 S.W.2d 900, 1992 Tenn. LEXIS 573
CourtTennessee Supreme Court
DecidedOctober 26, 1992
StatusPublished
Cited by8 cases

This text of 840 S.W.2d 900 (State v. Montgomery) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Montgomery, 840 S.W.2d 900, 1992 Tenn. LEXIS 573 (Tenn. 1992).

Opinion

OPINION

REID, Chief Justice.

This case presents an appeal from the judgment of the Court of Criminal Appeals affirming the denial of a petition for post-conviction relief. The record fails to establish that the guilty pleas accepted by the trial court were knowing and voluntary; the defendant, therefore, is entitled to have the subject convictions vacated.

The defendant was sentenced to life imprisonment following a 1986 conviction for aggravated rape as enhanced by a finding of habitual criminal status based, in part, on guilty pleas entered on January 11, 1973, to two counts of grand larceny and two counts of escape. The defendant challenges the validity of the 1973 guilty pleas on the basis that they were not voluntarily and knowingly entered.

The defendant alleges and the transcript of the 1973 hearing shows that the trial court did not advise the defendant of the right against compulsory self-incrimination. That right was omitted from the court’s explanation of the rights waived upon the entry of a plea of guilty. In addition, there is no evidence in the record indicating that the defendant, in fact, knew that he could not be compelled to testify. At the post-conviction hearing, he denied having such knowledge and further stated that had he known that he had the right not to testify he would have gone to trial.

The State acknowledges that the defendant was not advised of the privilege against self-incrimination at the time the guilty pleas were accepted. The State argues, however, that “there is nothing in the record to indicate that the guilty plea[s] [were] not knowing and voluntary” and that the omission complained of is harmless error. The State’s position indicates a misunderstanding of the circumstances in which the failure to advise a defendant of the privilege against self-incrimination can be harmless error.

This Court recently addressed a trial court’s failure to inform a defendant of the privilege against self-incrimination in the context of taking guilty pleas in Johnson v. State, 834 S.W.2d 922 (Tenn.1992). The applicable legal principles were stated as follows:

It is the result, not the process, that is essential to a valid plea. The critical fact is the defendant’s knowledge of certain rights, not that the trial judge was the source of that knowledge.
******
[A]n allegation that the petitioner was not aware of his constitutional rights is not the same as the allegation that the petitioner was not advised by the trial court of those rights. Obviously, the petitioner actually may have been aware of his constitutional rights even though the trial court failed to advise him of them and failed to determine at the plea [902]*902hearing that petitioner was aware of his rights.
* * * * * *
However, if, as in the case at bar, the record shows by clear and convincing evidence that the plea was knowing and voluntary, then the petitioner is not entitled to relief.

Johnson at 924-25.

When a defendant makes a charge supported by the evidence that the trial court failed to advise him of his right against self-incrimination, as in the instant case, the burden then shifts to the State. Johnson at 925. Thereafter, “the State may rebut the allegation with proof of substantial compliance with the advice requirement, which would show that the petitioner was made aware of his constitutional rights, or the State may alternatively show that the petitioner was aware of his constitutional rights and that therefore the trial court’s failure to give the mandated advice was harmless error.” Id. at 925.

The Court found in Johnson that even though the defendant was not advised of the privilege against self-incrimination, he nevertheless was aware of this right. Specifically, the Court held that the trial court’s failure to advise the defendant of that constitutional right was harmless error because “the record shows that the petitioner was aware of his right against self-incrimination.” Johnson at 926. Johnson is consistent with State v. Neal, 810 S.W.2d 131 (Tenn.1991) where the defendant was not advised of the privilege against self-incrimination at the time guilty pleas were received. Like the defendant in Johnson, the defendant in Neal was aware of that right nonetheless. Neal at 138. Accordingly, the Court held that “[s]ince the purpose of the litany of rights is to insure that the defendant is aware of them when he or she gives them up, no possible harm to Neal is demonstrated.” Id. at 138.

As was true with the defendants in Neal and Johnson, the defendant in the instant case was not made aware of the privilege against self-incrimination at the guilty plea hearing. The transcript of that hearing reveals that the trial court advised the defendant of all constitutional rights mandated by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) except self-incrimination. However, unlike the situation in Neal and Johnson, there is no evidence in this case that the defendant was, in fact, aware of the privilege against self-incrimination, despite his not being advised of that right by the trial judge. Upon cross-examination by the Assistant District Attorney General at the post-conviction hearing, the following exchange took place:

Q: [I]n January of 1973 when your guilty plea was entered, you knew — you knew — that you had the right — a constitutional right — to testify or not testify if you went to trial. You knew that, didn’t you?
A: Not really.
Q: You didn’t?
A: Honestly, not really.
Q: You didn’t think that you could talk to the jury?
A: Not really.
Q: You didn’t know?
A: I’m being honest. You asked me the question; let me [be] honest with you.

This brief colloquy between the Assistant District Attorney General and the defendant represents the sum total of the testimony presented at the post-conviction hearing concerning the defendant’s awareness of the right against self-incrimination. When asked if it would have made any difference had he known of the right, the defendant replied that “[i]t would have because I would have went to the jury.”

The State has failed to carry its burden of showing that the trial court’s failure to give the mandated advice was harmless error in accordance with the dictates of Johnson and Neal. The predicate for this assertion is the lack of evidence tending to [903]*903show that the defendant was aware of the omitted advice. The State did not rebut the defendant’s testimony that he was unaware of the right against self-incrimination or that had he been aware of the right, he would have gone to trial. The facts presented in this case do not meet the requirement that a knowing and voluntary plea includes the intentional relinquishment or abandonment of known rights. Johnson at 923; State v.

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Cite This Page — Counsel Stack

Bluebook (online)
840 S.W.2d 900, 1992 Tenn. LEXIS 573, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-montgomery-tenn-1992.