Ground For a Petition To Rehear. See Nashville v. State Board of Equalization, 210 Tenn. 587, 618 ( 2000 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE
February 11, 2000
Cecil Crowson, Jr.
Appellate Court Clerk
ALICIA SHAYNE LOVERA, )
) No. E1999-01964-CCA-R3-PC
Appellant )
) SEVIER COUNTY
vs. )
) Hon. REX H. OGLE Judge
STATE OF TENNESSEE, )
) (POST-CONVICTION)
)
Appellee )
ORDER ON PETITION TO REHEAR
A petition to rehear has been filed on behalf of the appellant, Alicia
Shayne Lovera, pursuant to Rule 39, Tenn. R. App. P., to have this court
reconsider its opinion previously filed in this case on January 4, 2000.1 After
consideration of the same, this court is of the opinion that the petition should be
granted to address one allegation, i.e., whether the appellant’s guilty plea was
knowingly and voluntarily entered.
The appellant contends that this “[c]ourt’s opinion overlooks a material
fact and misapplies a material proposition of law” in that this court’s opinion
inaccurately stated that the appellant failed to include a copy of the transcript of
the guilty plea hearing in the record. See Tenn. R. App. P. 39(a)(1) and (3).
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As grounds for her petition, the appellant contends that this “[c]ourt’s opinion overlooks a
material fact and misapp lies a material proposition of law.” See Tenn. R. App. P. 39 (a)(1) and
(3). Specifically, the appellant complains that (1) this court’s opinion inaccurately stated that the
appellant failed to include a copy of the transcript of the alleged guilty plea hearing in the record;
(2) as there is no Tenness ee case on this m atter, this court should apply the law of Daye v.
Com mon wealth , 467 S.E.2d 287 (Va. Ct. App. 1996), holding that the entrance of a guilty plea
after a jury verdict is moot; and (3) “this Court misunderstands the reach of the double jeopardy
prov isions of the Unite d Sta tes a nd T enn ess ee C ons titution s.” W e den y the p etition on all
grounds other than the voluntariness of her guilty plea.
Specifically, the appellant insists that, as there is no Tennessee law on point, this court
apply the law of Virginia to the facts of the present case regarding the effect of a guilty plea
entered following a jury trial. As the appellant failed to include this point in her original argument
and as she relies on sec ondary au thority cited to by this court in its op inion, this issu e is not a
ground for a petition to rehear. See Nashville v. State Board of Equalization, 210 Tenn. 587, 618,
360 S.W.2d 458, 472 (1962) (petition for rehearing not used for purposes of rearguing case on
points already considered and determined, unless new and decisive authority has been
discovered, which was overlook ed by the court). Next, the appellant asserts that this court
“misunderstands the reach of the double jeopardy provisions of the United States and Tennessee
Constitutions.” Again, the appellant merely reargues a point of law already considered and
denied b y this court. Id. This issue is also not a ground for a petition to rehear.
The record received by the assigned panel contained only two volumes.
The appellant claims that “Volume III” includes the plea hearing transcript and
must have been lost or misplaced. Although Volume III was located with the
post-conviction record for the appellant’s co-defendant, Brett Rae, it does not
contain the plea transcript. However, the appellant’s plea hearing transcript, filed
as exhibit 1 in her evidentiary hearing, was also located with the Rae record. In
light of the transcript and in the interest of justice, we grant the petition to
reconsider whether the appellant’s plea was knowingly and voluntarily entered.
Again, the appellant asserts that her guilty plea was involuntarily and
unknowingly entered because the trial court failed to advise her of her rights to
“knowingly, intelligently, and voluntarily waive cross-examination of witnesses,
jury trial and the right against self-incrimination.” See Appellant’s Brief at 24
(citing Boykin v. Alabama, 395 U.S. 238 (1969); McCarthy v. United States, 394
U.S. 459 (1969)). The appellant also alleges that (1) she received no
consideration for entering the plea; (2) her state of mind precluded a knowing
and voluntary plea; (3) trial counsel failed to explain a sentence of life without
parole; (4) she was not informed that she was entitled to a hearing prior to
imposition of sentence; and (5) she was coerced by threats of new evidence
against her.
In the present case, the post-conviction court concluded that the appellant
received the competent assistance of counsel and, consequently, entered her
plea knowingly and voluntarily. A trial court’s findings of fact in the post-
conviction hearing are conclusive on appeal unless the evidence in the record
preponderates against those findings. See Henley v. State, 960 S.W.2d 572,
578-79 (Tenn. 1997); Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App.
1978 ), cert. denied, 441 U.S. 947, 99 S. Ct. 2170 (1979). The record supports
the post-conviction court’s findings. Excerpts from the transcript of the joint guilty
plea hearing of the appellant and her co-defendant, Brett Rae, reveal that the
trial court advised both co-defendant Rae and the appellant of their automatic
right to appeal and the waiver thereof by entering a guilty plea, their right to a
separate sentencing hearing and waiver thereof by entering a guilty plea, their
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rights to trial by jury and the confrontation of witnesses, and that a life sentence
in Tennessee means service of at least twenty-five years before reaching parole
eligibility. The fact that the court first addressed co-defendant Rae and then the
appellant is of no consequence.2 See State v. Neal, 810 S.W.2d 131 (Tenn.
1991), overruled on other grounds by, Blankenship v. State, 858 S.W.2d 897(Tenn. 1993). Moreover, if the proof establishes that the appellant was aware of
her constitutional rights, she is entitled to no relief. Johnson v. State, 834
S.W.2d 922, 926 (Tenn.1992). Our review of the entire record establishes that
the appellant’s guilty plea was entered voluntarily, knowingly and with full
awareness of her constitutional rights.
For these reasons, we find without merit the challenge presented in the
appellant’s petition to rehear regarding the voluntary nature of her guilty plea.
The petition to rehear is otherwise denied.
PER CURIAM
(Hayes, Tipton, and Welles, JJ)
2
In State v. Neal, 810 S.W.2d at 137-38, our supreme court noted that it is "substantial
compliance" with Mackey "if the e ntire lita ny of rig hts a nd ot her re quire d exp lanat ory info rm ation is
com mu nica ted in open cour t sim ultan eou sly to m ultiple defe nda nts in the p rese nce of the ir
respective attorneys, so long as the number involved is not so great as to make individual
understanding unlikely; and provided that each defendant is addressed individually to establish on
the reco rd the un derstan ding and agreem ent of ea ch defe ndant."
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