State v. Mackey

• Citation: 553 S.W.2d 337
• Parties: STATE of Tennessee, Petitioner, v. Andrew MACKEY, Respondent.
• Decision Date: 20 June 1977
• Court: Supreme Court of Tennessee

Page 337

553 S.W.2d 337

STATE of Tennessee, Petitioner, v. Andrew MACKEY, Respondent.

Supreme Court of Tennessee.

June 20, 1977.

Michael E. Terry, Asst. Atty. Gen., Nashville, for petitioner; R. A. Ashley, Jr., Atty. Gen., Nashville, of counsel.

Edward A. Love, Chattanooga, for respondent.

OPINION

BROCK, Justice.

This is an appeal from a judgment and sentence of not less than one or more than two years in the state penitentiary on a plea of guilty to the charge of felonious escape. Two principal questions are presented: (1) whether the trial record adequately demonstrates that the guilty plea was voluntarily, understandingly, and intelligently made as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); and (2) whether evidence of defendant's prior convictions and other alleged misconduct was admissible before the jury selected to determine the issue of punishment.

Andrew Mackey was charged with felonious escape from the custody of the Hamilton County sheriff while awaiting trial on charges of grand larceny, burglary, and possession of burglarious tools. Represented by appointed counsel, the defendant pleaded guilty to the charge, and requested that a jury be impanelled "to hear the evidence and fix the time of confinement" in the penitentiary.

The record discloses that the trial judge asked no questions of the defendant concerning his plea, and the defendant did not address the court. The total colloquy between the judge and the defendant was as follows:

"The Court: . . . How do you plead, Mr. Mackey, how do you plead to the indictment?

"Mr. Mackey: Guilty.

"The Court: How?

"Mr. Mackey: Guilty.

"The Court: All right. . . ."

The record discloses a reference to a somewhat protracted discussion between the defendant and his lawyer as to whether defendant should plead guilty. This discussion, of course, was off the record; nothing is actually known regarding the import or content of the discussion.

Six months before this trial for felonious escape, defendant was convicted for armed robbery and rape, felonies committed the day following his escape. On the day of this trial, before defendant entered his plea of guilty to the charge of felonious escape, defense counsel made a motion in limine that the State be prohibited from introducing evidence of defendant's convictions for the armed robbery and rape, apparently taking the position that such evidence was irrelevant to the determination of punishment for felonious escape. The trial judge declined to rule immediately on counsel's motion but subsequently, over defense counsel's objection, admitted into evidence court records of the convictions. At this juncture, defense counsel objected to the admission of defendant's prior convictions on the premise that defendant had not taken the stand in his own defense and, hence, his character and reputation were not in issue.

During a recess of the hearing, Mackey allegedly attempted to escape once again. Testimony of the deputy sheriff regarding this attempt was also admitted into evidence over defense counsel's objection.

Defendant Mackey never took the stand during the course of the hearing nor did counsel introduce any mitigating evidence in his behalf. No attempt was made to withdraw defendant's plea of guilt.

The jury set defendant's punishment for his admitted felonious escape at a minimum of one (1) year and a maximum of two (2) years in the penitentiary.

Defendant appealed to the Court of Criminal Appeals, assigning as error: (1) that the trial court admitted evidence of defendant's convictions for armed robbery and rape; (2) that the trial court admitted testimony regarding defendant's attempted escape during a recess of the trial; and (3) that defendant's guilty plea was involuntary because he had not been advised by the trial judge that his prior convictions would be allowed in evidence.

The Court of Criminal Appeals determined that proof of defendant's prior convictions was inadmissible but disposed of the case on grounds that the guilty plea was not voluntary under the authority of Boykin, supra. Finding that the trial judge made no affirmative investigation as to the voluntariness or intelligence of defendant's guilty plea, the Court of Criminal Appeals vacated defendant's guilty plea and reversed and remanded the case for a new trial.

We granted the State's petition for certiorari review.

I

As the United States Supreme Court recognized in Boykin,supra, "a plea of guilty is more than an admission of conduct; it is a conviction." When a plea of guilty is entered in a criminal trial, the defendant simultaneously waives several constitutional rights, including his privilege against compulsory self-incrimination, his right to a trial by jury, and his right to confront his accusers. Moreover, in this State, as we hold infra, he also waives the right to exclude from the jury determining his punishment evidence of his prior convictions. For this waiver to be valid under the due process clause of the Fourteenth Amendment, it must be "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Our system of justice cannot tolerate the presumption that a defendant voluntarily relinquished such fundamental rights. Therefore, the record of acceptance of a defendant's plea of guilty must affirmatively demonstrate that his decision was both voluntary and knowledgeable, i. e., that he has been made aware of the significant consequences of such a plea; otherwise, it will not amount to an "intentional abandonment of a known right."

Boykin concerned a defendant who had pleaded guilty in a state court to five armed robbery indictments and thereafter received the death penalty. At arraignment, "so far as the record shows, the judge asked no questions of petitioner concerning his plea, and petitioner did not address the court." Thereafter, as required by Alabama law, a jury was impanelled to fix the penalty, and the prosecution presented its case to this jury "largely through eyewitness testimony." Taking an automatic appeal to the Alabama Supreme Court, petitioner argued unsuccessfully that a sentence for death for robbery was cruel and unusual punishment, but three members of the Alabama court dissented on the ground that the record was inadequate to show that petitioner had intelligently and knowingly pleaded guilty.

The United States Supreme Court reversed, concluding that it ". . . was error, plain on the face of the record, for the trial judge to accept petitioner's guilty plea without an affirmative showing that it was intelligent and voluntary." The Court clearly stated its position: "We cannot presume a waiver of (. . .) important federal rights from a silent record."

The Court further stated:

"What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought (citations omitted), and forestalls the spin-off of collateral proceedings that seek to probe murky memories." 89 S.Ct. at 1712-1713.

The State contends that the Boykin issue was not properly raised before the Court of Criminal Appeals or before this Court, but we do not agree. On appeal, the defendant's brief contained the following assignment of error:

"The defendant was not fully advised by the judge of the consequences of pleading guilty before the jury in that he was not aware that the crimes for which he had been convicted would be allowed into evidence at his trial, and therefore his guilty plea was not a knowing, voluntary and intelligent consent to let the jury decide his punishment."

It thus appears that the defendant did assign as error the voluntariness and understanding of his guilty plea, though the assignment narrows the grounds for the error.

Whether properly assigned or not, appellate courts of this State may properly consider plain error upon the record. Rule 15(2), Tennessee Supreme Court Rules; Davidson v. State, 223 Tenn. 193, 443 S.W.2d 457 (1969); Baldwin v. State, 213 Tenn. 49, 372 S.W.2d 188 (1963); T.C.A. § 40-3409.

In our opinion, the record fails to disclose compliance with the requirements of the Boykin decision, but, we are not content to allow the issue to rest there. This Court in the exercise of its supervisory power to insure that the courts of this State afford fairness and justice to defendants in criminal cases may require stricter standards than those mandated by the Boykin decision. Smith v. State, 205 Tenn. 502, 327 S.W.2d 308 (1959). In the exercise of that jurisdiction, we hold that trial judges in accepting pleas of guilty in criminal cases must adhere, substantially, to the following procedure, to wit:

A. Before accepting a plea of guilty, the court must address the defendant personally in open court and inform him of, and determine that he understands, the following:

(1) The nature of the charge to which the plea is offered, and the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law; and, if applicable, that a different or additional punishment may result by reason of his prior convictions or other factors which may be established in the present action after the entry of his plea; and

(2) If the defendant is not represented by an attorney, that he has a right to be represented by an attorney at every stage of the proceeding against him, and if necessary, one will be appointed to represent him; and

(3) That he has a right to plead not guilty or to persist in that plea if it has already been made, and, that he has the right to be tried by a jury and at that trial has the right to the assistance of counsel, the right to confront...