Blankenship v. State

• Decision Date: 06 July 1993
• Citation: 858 S.W.2d 897
• Parties: Jack Charles BLANKENSHIP, Appellant, v. STATE of Tennessee, Appellee.
• Court: Tennessee Supreme Court

Page 897

858 S.W.2d 897

Jack Charles BLANKENSHIP, Appellant, v. STATE of Tennessee, Appellee.

Supreme Court of Tennessee,

at Jackson.

July 6, 1993.

Timothy W. Smith, Brett Stein, Memphis, for appellant.

Charles W. Burson, Atty. Gen. & Reporter, Amy L. Tarkington, Asst. Atty. Gen., Nashville, John W. Campbell, Memphis, for appellee.

OPINION

DAUGHTREY, Justice.

In this post-conviction appeal, we are asked once again to analyze what constitutes a "voluntary" and "intelligent" guilty plea under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). It is a question most recently treated by this Court in State v. Neal, 810 S.W.2d 131 (Tenn.1991), on which the Court of Criminal Appeals based its decision in this case, and in State v. Montgomery, 840 S.W.2d 900 (Tenn.1992). Because the petitioner claims that the opinion in Neal is in conflict with dispositive federal law on this question, and because one member of the Court of Criminal Appeals panel that heard this case below agreed in dissent, we granted discretionary review to clarify several points of relevant law.

I. PROCEDURAL HISTORY

This case was initiated by the filing of a pro se post-conviction petition in 1988. In that petition, Jack Charles Blankenship challenged the validity of the life sentence he is serving as a habitual criminal, on the ground that the six predicate convictions used to establish his status as a recidivist were based on invalid guilty pleas. ¹ The earliest of these six convictions was obtained in 1970, for third-degree burglary. ² The next four convictions--all of them burglary-related--resulted from guilty pleas entered in June 1972. The sixth and last predicate conviction was obtained in March 1975, when Blankenship pleaded guilty to voluntary manslaughter.

The trial court appointed counsel to represent Blankenship, and the attorney filed an amended petition on his client's behalf, specifying as grounds for relief: (1) that before pleading guilty in the prior cases, Blankenship was not "fully and adequately informed of his right not to be compelled to incriminate himself" and (2) that he "was not informed that the convictions resulting from said guilty pleas could be used in any manner to enhance punishment for any offenses for which he might be found guilty in the future."

When Blankenship's initial attorney was replaced by two other appointed lawyers in 1989, they filed a "second amended petition," incorporating the grounds set out in the earlier amended petition and adding a new ground for relief: that the guilty plea Blankenship entered in 1977 to a charge of first degree murder was invalid for the same reasons as the 1972 and 1975 convictions. ³

At the post-conviction hearing in the trial court, testimony established that Blankenship's 1977 guilty pleas were entered as a "package deal"--two concurrent life sentences, one as a habitual criminal for the offense of armed robbery and the other for first degree murder--in order to avoid trial and a possible death sentence in the murder case. The transcript of the guilty plea proceeding fails to exhibit any substantial deficiencies with regard to the submission and acceptance of the plea to first degree murder, and no complaint about this plea has been raised on appeal.

With regard to the petitioner's 1975 conviction of voluntary manslaughter, it appears that his guilty plea was induced by the prosecutor's offer to reduce the original charge, which was for second-degree murder. At the guilty plea hearing, the trial judge engaged in a lengthy colloquy with Blankenship, making sure that he understood the charge to which he was pleading guilty and the ramifications of his plea. The judge also informed Blankenship of the rights he would be waiving by pleading guilty, including the right to trial, at which a jury would "hear[ ] the witnesses, pro and con, both for you and against you"; the right to testify or not, with instructions to the jury that "they couldn't hold [the decision not to testify] against you; and the right to appeal the verdict "in the event the jury did find against you." However, the trial judge did not warn him that this conviction could be used to enhance a future sentence in a subsequent prosecution.

The 1972 submission hearing was much less extensive. Blankenship pleaded guilty to a total of five charges (four of which are at issue here), apparently in return for the prosecutor's recommendation that he receive concurrent sentences of not more than five years. The factual basis for each of the five cases was recited by the prosecutor, and Blankenship waived his right to trial and to appeal in each instance. The waiver form he signed and submitted to the court indicates that he had been informed of all the rights attendant to a jury trial, but the only one specifically mentioned on the form was the right to confrontation. The record does not show that he was informed at the 1972 hearing that he could not be compelled to incriminate himself, nor was he told that the convictions entered against him could be used to enhance future sentencing.

It was the second of these two deficiencies about which Blankenship specifically complained during his testimony at the post-conviction hearing. Over and over again, he emphasized that he wanted the benefit of the bargains he had struck with the state in 1972 and 1975. A typical exchange follows:

Q: [by prosecutor]: [Y]ou wanted to get that guilty plea.

A: [by petitioner]: Yes, sir.

Q: And, whatever the Judge told you, you wanted to get the guilty plea, is that right? You wanted to go--

A: Well, yes, sir, when you plead guilty, that means, you know, you are pleading guilty for a lesser offense. You want to--

Q: You want to take that. And, the Judge asked you all these questions and you are saying that whether you understood him or not you--

A: What I didn't realize and understand though that they could take those cases and use them to give me the Habitual Criminal they got me--

Q: Okay. But, was that the biggest complaint that you have, that you didn't know when you pled guilty to those cases that--

A: Well, I didn't know the rules or know anything about the law or my rights.

Q: But, now, what is it that you are complaining on, whether, about the fact that he wasn't, that wasn't explained to you or the business about testifying, what was your biggest complaint?

A: Well, I'm complaining that no one ever explained to me, that when I pled guilty to that case, I thought when you pled guilty that's like telling society that you know right from wrong and you're pleading guilty for a lesser offense because you are owning up to what you done.

Q: Okay.

A: I didn't know they would take that, for what I pled guilty to, and take it and use it on me fifteen or twenty years later, to say, yeah, we are going to put you away for life. I didn't understand that then.

Q: That, and that--

A: Because I thought it was over with. I thought because I pled guilty to society that I was taking my punishment and that would be it.

Q: Okay. And, is this, the way I understand it, that is your biggest complaint, is that correct?

A: Yes, sir.

At another point, Blankenship was asked, "You entered those guilty pleas [in 1972] because you wanted to get that case over with, right?" To this question, Blankenship replied, "Yes, sir." The following exchange then occurred:

Q: [Your lawyer] worked you out a five-year concurrent package.

A: Yes, sir.

Q: Okay. When you entered that guilty plea that's what you wanted to do.

A: Yes, sir. It was five years on each one, concurrent.

Q: Okay. And, regardless of what the Judge told you, you were going to take that five year offer, right?

A: Yes, sir.

The petitioner further testified that he was not aware of his right against self-incrimination until 1978 or 1979, when he "started reading some of the law in prison." He told the trial judge that he had completed the 11th grade in high school and agreed that he considered himself to be a person of "average intelligence." When asked by the judge if he knew in 1972 what the expression "taking the Fifth" meant, Blankenship replied, "Yeah, I'd seen that on TV."

Finally, pushed by the prosecutor on cross-examination, the petitioner testified with regard to the 1972 convictions as follows:

A: You want to know the truth? I'm going to speak the truth now. I didn't pay no attention about nothing they was telling me. All I wanted was the plea bargain....

I didn't understand what was going on anyway.

Q: But, you wanted the plea agreement. And you didn't care what the Judge was telling you. You wanted the plea agreement. Is that right?

A: Yes, sir. I wanted to plead guilty.

In his order denying post-conviction relief, the hearing judge made extensive findings of fact, including a finding that "[t]he petitioner was emphatic in his testimony that his chief complaint or 'gripe' is the fact that the pleas entered in 1970, 1972, and 1975 [were] used to elevate him to the status of a habitual criminal," without notice to him at the time he entered those guilty pleas. The record fully supports this finding. It also supports the court's conclusion that "the petitioner would have accepted and entered all prior guilty pleas even though the trial court did not specifically advise him of his 5th amendment right" and that there was no legal basis to support his "conten[tion] that the pleas were not knowingly, voluntarily and intelligently entered."

After the hearing court entered judgment against the petitioner, but before the Court of Criminal Appeals released its opinion affirming that judgment, we decided the case of State v. Neal, 810 S.W.2d 131 (Tenn.1991). In determining that the omission of advice concerning Blankenship's right against self-incrimination at the 1972 guilty plea proceeding was technically a violation of Boykin, the Court of Criminal Appeals relied on what it referred to as the "but for provision" of Neal:

In a case where the erroneous omission ...