Bryan v. State

• Citation: 848 S.W.2d 72
• Parties: Mark W. BRYAN, Appellant, v. STATE of Tennessee, Appellee.
• Decision Date: 12 August 1992
• Court: Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee

Page 72

848 S.W.2d 72

Mark W. BRYAN, Appellant, v. STATE of Tennessee, Appellee.

Court of Criminal Appeals of Tennessee,

at

Jackson.

Aug. 12, 1992.

Brett B. Stein, Memphis, Richard Kirschner, M. Kay Gartrell, Washington, DC, for appellant.

Charles W. Burson, Atty. Gen., and Amy L. Tarkington, Asst. Atty. Gen., John W. Pierotti, Jr., Dist. Atty. Gen., and John Campbell, Asst. Dist. Atty. Gen., Memphis, for appellee.

OPINION

TIPTON, Judge.

The petitioner, Mark W. Bryan, appeals as of right from the judgment of the Shelby County Criminal Court denying him post-conviction relief from three convictions resulting from guilty pleas entered by him. The petitioner contends that the pleas were not voluntarily, knowingly and intelligently entered as required by due process under the United States Constitution. The state raises an issue dealing with the extent to which the attorney-client privilege may be invoked by the petitioner to prevent his original trial attorney from testifying as a witness at the post-conviction evidentiary hearing. We reverse the judgment and remand the case to the trial court.

On August 22, 1983, the petitioner entered guilty pleas to three felonies--(1) attempt to obtain a controlled substance by fraud and deceit, (2) receiving less than two hundred dollars worth of stolen property, and (3) carrying a dangerous weapon into an establishment licensed to sell alcoholic beverages. Pursuant to an agreement, he received three concurrent sentences of one to five years, to be served in the Shelby County Jail.

The plea hearing was brief. The transcript shows that the state began the proceeding by reciting the charges in the indictments, stating the nature of the agreement, and giving short accounts of the facts to support each charge. The petitioner's trial attorney agreed with the state's factual accounts. At this point, the following occurred:

THE COURT: Mr. Bryan, do you accept the guilty pleas in these three cases? It will be one to five years for receiving stolen property, one to five years for attempting to obtain a controlled substance, one to five years for carrying a dangerous weapon into an establishment licensed to sell alcoholic beverages.

And all sentences will be served concurrently.

Do you accept that?

DEFENDANT BRYAN: Yes, sir.

THE COURT: Do you give up the right to a trial by jury?

DEFENDANT BRYAN: Yes, sir.

THE COURT: Are you pleading guilty of your own free will?

DEFENDANT BRYAN: Yes, sir.

THE COURT: Do you have any complaints against your lawyer whatsoever?

DEFENDANT BRYAN: No, sir.

THE COURT: Alright. The Court will sentence you in each one of these cases.

The sentences were then imposed.

I

The petitioner filed for post-conviction relief from the convictions. At the post-conviction hearing, the guilty plea hearing transcript and other documents relating to the original cases were introduced into evidence. One of the documents was a Petition for Waiver of Trial by Jury and Request for Acceptance of Plea of Guilty (Petition for Waiver) signed by the petitioner and his trial attorney and dated August 22, 1983. In part, the document provides the following:

It has been fully explained to me and I understand that I may, if I so choose, plea NOT GUILTY to any offense charged against me, and that if I choose to plead NOT GUILTY, the Constitution guarantees and this Court will provide me the right to a speedy and public trial by Jury; the right to see and hear all witnesses against me; the right to use the power and process of the Court to compel the production of any evidence, including the attendance of any witness, in my favor; the right to have the assistance of counsel in my defense at all stages of the proceedings.

The petitioner relied upon the transcript to make his case, electing not to testify. In response, the state sought to have the petitioner's trial attorney testify. However, the petitioner and his trial attorney asserted the attorney-client privilege. The trial court honored the invocation of privilege by the petitioner and the trial attorney relative "to anything said between [the attorney] and the [petitioner] during the time of representation."

The trial court made detailed determinations in denying post-conviction relief in this case. It acknowledged that the plea transcript reflected that the convicting court had not advised the petitioner of his right against self-incrimination nor of his right to confront the witnesses against him. However, it held (1) that the pleas were voluntarily and knowingly entered under the totality of the circumstances, (2) that the petitioner failed to carry his burden of proof to show that he was prejudiced by the omission of any rights advice, and (3) that any omission in the recitation of the petitioner's rights was harmless error.

II

The petitioner contends that his convictions are constitutionally defective because of the following omissions at the guilty plea hearing:

(1) The petitioner was not given notice of the minimum and maximum penalties relating to the charges against him.

(2) The trial court did not question the petitioner about prior plea discussions or confirm with him the accuracy of the guilty plea.

(3) The petitioner was not given notice of the nature of the charges against him.

(4) The petitioner was not advised of his right against compulsory self-incrimination nor of his right to confront his accusers.

Initially, we note that the petitioner relies upon the requirements regarding the taking of guilty pleas imposed upon trial courts by State v. Mackey, 553 S.W.2d 337 (Tenn.1977). However, post-conviction relief may only be given if a conviction or sentence is void or voidable because of a violation of a constitutional right. T.C.A. Sec. 40-30-105. As was pointed out in State v. Neal, 810 S.W.2d 131 (Tenn.1991), violation of the advice litany required by Mackey or Tenn.R.Crim.P. 11 which is not linked to a specified constitutional right is not cognizable in a suit for post-conviction relief. See State v. Prince, 781 S.W.2d 846 (Tenn.1989).

Regarding the contentions that it is constitutionally required to advise an accused of the minimum and maximum sentences and to question the accused about the plea negotiations and confirm the accuracy of the plea, the petitioner cites only Mackey and Rounsaville v. Evatt, 733 S.W.2d 506 (Tenn.1987) in support. However, neither case raises these specific requirements to independent constitutional status. These contentions do not give rise to cognizable post-conviction issues in the context of this case.

a. Nature of the charges.

The petitioner asserts that he was never advised by the trial court of the elements of the charges against him. He claims that such a deficiency reflects that his pleas were not voluntarily, knowingly and understandingly entered.

Adequate notice of the nature of the charges is a constitutional requisite in any criminal prosecution. State v. Byrd, 820 S.W.2d 739, 740 (Tenn.1991); Tenn. Const. Art. I, Sec. 9; U.S. Const.Amend. 6. Also, in the context of a guilty plea, an accused is entitled to receive " 'real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.' " Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 2257-58, 49 L.Ed.2d 108 (1976) quoting from Smith v. O'Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 574, 85 L.Ed. 859 (1941).

However, contrary to the position implied by the petitioner's argument, there is no constitutional requirement that a trial court, in litany fashion, explain each element of every offense to which an accused is pleading guilty. In Henderson v. Morgan, supra, upon which the petitioner relies, the district court found that no one advised the accused that the intent to cause the death was an essential element of second degree murder, the offense to which he pled guilty. The Supreme Court affirmed the vacating of the conviction on due process principles because the accused did not have adequate notice of this essential element of the crime. A majority of the court held that due process of law requires that an accused who is pleading guilty understand the nature of the charges to which he is admitting guilt by entering pleas. However, neither the lead opinion by Justice Stevens nor the concurring opinion by Justice White imposed a strict burden upon trial courts to render on the record a detailed description of each element of an offense to a guilty pleader.

Justice Stevens stated that even if the record failed to contain an explanation of the charge by a trial court or a representation by defense counsel that the nature of the offense had been explained, "it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit." 426 U.S. at 647, 96 S.Ct. at 2258. Moreover, Justice Stevens stated the following:

There is no need in this case to decide whether notice of the true nature, or substance, of a charge always requires a description of every element of the offense we assume it does not. Nevertheless, intent is such a critical element of the offense of second-degree murder that notice of that element is required.

426 U.S. at 647 n. 18, 96 S.Ct. at 2258 n. 18. Likewise, Justice White thought it significant that the accused was pleading to an offense which was not charged in the indictment, noting that the elements of the offense of second degree murder were not set forth in any document which had been read to the defendant or to which he had access.

In those cases in which the indictment is read to the defendant by the court at arraignment or at the time of his plea, his plea of guilty may well be deemed a factual admission that he did what he is charged with doing so that a judgment of conviction may validly be entered against him.

426 U.S. at 649 n. 2, 96 S.Ct. at 2260 n. 2. In accord Marshall v....