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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
Assigned on Briefs November 22, 2005 RICHARD D. WIGGINS v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County No. 2003-A-313 Cheryl Blackburn, Judge

No. M2005-00182-CCA-R3-PC - Filed February 17, 2006

The Appellant, Richard D. Wiggins,1 appeals the denial of his petition for post-conviction relief by the Davidson County Criminal Court. Wiggins pled guilty to attempted especially aggravated robbery and, as provided by the plea agreement, received an eight-year split confinement sentence requiring service of one year in the county jail followed by seven years probation. On appeal, Wiggins contends that his plea was not knowingly and voluntarily entered due to trial counsel's ineffectiveness in: (1) failing to have Wiggins evaluated for mental competency; (2) failing to fully investigate the case; (3) advising Wiggins how to answer the trial court's questions during the plea colloquy; and (4) failing to fully explain the nature and consequences of his guilty plea. After review, we affirm the denial of the petition. Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed DAVID G. HAYES, J., delivered the opinion of the court, in which DAVID H. WELLES and JERRY L. SMITH , JJ., joined. Richard D. Dumas, Jr., Nashville, Tennessee, for the Appellant, Richard D. Wiggins. Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Angelita Dalton, Assistant District Attorney General, for the Appellee, State of Tennessee. OPINION Factual Background

During his testimony, the Appellant stated that the name Richard D. W iggins was an alias and that his real name was Ricardo D eondre W iggins. However, for purposes of uniformity, we utilize the name appearing on the documents in the case, including the Appellant's initial petition filed in the name of Richard D. W iggins. The record does reflect, however, that the Appellant was indicted and convicted under the name Ricardo D. W iggins.

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On March 14, 2003, a Davidson County grand jury returned a two-count indictment charging the Appellant and two co-defendants, Cy-Sylvia Joy Jordan and Jermon S. Potter, with aggravated burglary and especially aggravated robbery. The factual basis, as recited by the prosecutor at the guilty plea hearing, is as follows: [The victim] . . . would testify that on July 2, 2002, he was in Room 309 of the Knight's Inn at 99 Spring Street, here in Davidson County, Tennessee, when initially the co-defendant Sy-sylvia [sic] Jordan knocked on his room. He opened the door and ultimately two male individuals came in, robbed him. He was shot. They left the scene. Ms. Jordan took some property, VCR and some money, took off with it. She was caught fairly quickly and gave information that led to the apprehension of the co-defendants, or at least their identity, that being Mr. Wiggins and Mr. Potter, and Leticia Wright, Mr. [sic] Wright, the victim's wife, arrived just as the incident was apparently was ending and she saw and picked Mr. Wiggins photo out of a lineup as being one of the two male individuals she saw leaving the scene of the motel room, and, again, along with the co-defendant's statement, that would be the State's proof. In October 2003, the Appellant pled guilty to the lesser-included offense of attempted especially aggravated robbery, with the second count being dismissed. The trial court reviewed the standard litany of rights with the Appellant prior to accepting the guilty plea. The Appellant acknowledged that the prosecutor's recitation of the facts was correct, that he was pleading guilty to attempted especially aggravated robbery, and that he was satisfied with trial counsel's performance. As agreed, the Appellant received an eight-year split confinement sentence, with one year to be served in the county jail followed by seven years of supervised probation. Because the Appellant had already served one year in confinement, he was immediately released from custody. During the same month of his release, the Appellant violated the terms of his probation, and, on November 14, 2003, the trial court revoked the Appellant's probation and ordered that the eight-year sentence be served in the Department of Correction. On March 29, 2004, the Appellant filed a pro se petition for post-conviction relief, which was amended. Counsel was appointed, and a second amended petition was filed on July 14, 2004, alleging ineffective assistance of counsel and entry of an involuntary guilty plea. A hearing was held on September 8, 2004, at which the Appellant and trial counsel testified. The Appellant testified that trial counsel failed to have him evaluated for mental competency despite the Appellant's requests to do so. The Appellant further stated that he believed trial counsel did not fully investigate the case, as he had supplied trial counsel with the names of witnesses which trial counsel did not interview. Because of trial counsel's failure to investigate, the Appellant felt that he had no other option but to accept the plea agreement. The Appellant testified that trial counsel reviewed the plea agreement with him, but he asserted at the hearing that he did not understand what was written. He acknowledged answering the court's questions regarding the explanation of his rights during the guilty plea hearing but asserts that trial counsel told him how to answer.

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Trial counsel rebutted the Appellant's claims. Specifically, he testified that the Appellant, in the eight times they met, never discussed having any type of mental illness or requested an evaluation. Trial counsel further stated that he observed no indication that the Appellant was suffering from any type of mental illness. Counsel stated that the Appellant did give him the names of two witness whom he did contact. However, the witnesses were not helpful to the Appellant's case, and he informed the Appellant of this fact. Trial counsel stated that, while the Appellant had a good case which trial counsel was prepared to take to trial, the Appellant wanted to accept the plea agreement which would allow him to be released from jail immediately. Counsel testified that the Appellant did not express any reservations about the plea or indicate that he did not understand the terms of the agreement. Counsel also denied instructing his client to answer the trial court's questions at the plea hearing "like everyone else." After hearing the evidence presented, the postconviction court denied relief by written order on December 16, 2004, finding that the Appellant had failed to demonstrate either deficient performance or prejudice. This timely appeal followed. Analysis On appeal, the Appellant asserts that he was denied the effective assistance of counsel, and, as result, his guilty plea was not entered knowingly and voluntarily. In order to succeed on a postconviction claim, the Appellant bears the burden of showing, by clear and convincing evidence, the allegations set forth in his petition. T.C.A.

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