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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
November 14, 2000 Session WILLIAM FLOYD v. STATE OF TENNESSEE
Direct Appeal from the Circuit Court for Cannon County No. F99-17 J. S. Daniel, Judge

No. M2000-00318-CCA-R3-CD - Filed December 28, 2000

William Floyd appeals the dismissal of his petition for post-conviction relief. In 1998, Floyd pled guilty to two counts of rape and, under the terms of his plea agreement, was sentenced to twenty years imprisonment. In his petition for post-conviction relief, Floyd contends that his guilty pleas are involuntary because on the date his pleas were entered he was under the influence of prescribed psychotropic drugs. The petition was dismissed by the post-conviction court and this appeal follows. Finding that the evidence in the record does not support Floyd's claim, we affirm the lower court's dismissal. Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed. DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH and NORMA MCGEE OGLE , JJ., joined. Dale W. Peterson, Woodbury, Tennessee, for the Appellant, William Floyd. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Russell S. Baldwin, Assistant Attorney General, William C. Whitesell, Jr., District Attorney General, and Dale L. Puckett, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION The Appellant, William Floyd, seeks post-conviction relief from his convictions for two counts of rape entered pursuant to guilty pleas in the Cannon County Circuit Court.1 On appeal, he

The Appellan t was originally cha rged with fou r counts of sexual battery, ten counts of rape and ten counts of incest, arising from his admitted sexual conduct with his stepdaughter. In April 1998, pursuant to a negotiated plea agreeme nt, the Appellant entered guilty pleas to two counts of rape for which he received two consecutive sentences of ten years. The agreement further provided that the remaining counts would be dismissed. The Appellan t is currently confined a t the Harde man Co unty Correc tional Facility.

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collaterally challenges his convictions upon grounds that the influence of prescribed psychotropic drugs caused him to enter uninformed, involuntary, and incompetent guilty pleas.2 After review of the record, we affirm.

Proof at Post-Conviction Hearing The Appellant filed the instant petition seeking post-conviction relief on April 19, 1999. On January 21, 2000, an evidentiary hearing was held in the Cannon County Circuit Court. During this hearing, the following proof was presented. Lawrence Loveless, a registered nurse employed by the Cannon County Sheriff's Department, testified that he first encountered the Appellant on May 29, 1997, the date of the Appellant's arrest. On this date, Loveless received a report that the Appellant was sitting in his cell pulling his hair out. Emotionally, the Appellant was "distraught" and "uncommunicative." Additionally, Loveless was advised that, prior to his arrest, the Appellant had "overdosed on a combination of Xanax and Prozac."3 As a result of the Appellant's behavior, the Appellant was referred to the Guidance Center for evaluation. On August 1, 1997, the Guidance Center concluded that the Appellant was suffering from " major depression, recurrence, severe with psychotic features and access to antisocial personality." Based upon this diagnosis, the Appellant was prescribed Risperdal, Effexor, Paxil, Sinequan and Mellaril.4 The Appellant's use of his medication was sporadic. He would often refuse to take the medication for "a week or two at a time." The Appellant's refusals to be medicated coincided with his scheduled court appearances. Additionally, due to the Appellant's complaints of urinary retention, the medications were often changed.

The Ap pellant's alleged in his petition for post-conviction relief that he was denied the effective assistance of counsel in that counsel "failed to determine whether the psychothropic [sic] drugs petitioner was taking on the d ate he entered his guilty [pleas], had any effect on petitioner's ability to knowingly and without the full understanding of the consequences that would follow." This question obviously requires examination of the underlying question of whether psychotro pic medication had any effect on petitioner's ability to enter informed a nd voluntar y guilty pleas. This is the issue which we address in this a ppeal.
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Specifically, the j ail daily log con tained the follo wing notation : Inmate purportedly took a bottle of 36 Prosac [sic] from his wife from the home at 1 a.m. today, was taken into cus tody today a t 12 noon . Mr. Floyd was acting fine un til placed in the c ell. According to poison control, Prosac [sic], if he took all of them, it would be potentially fatal and that he neede d sedating a t 8:15. W e gave him L ibrium 50 milligrams PO . . . . There is so me questio n as to whethe r he took the Prosac [s ic] or is he acting ? . . .
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Risperda l is an antipsycho tic drug; Pax il is an antidepre ssant.

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Gerald Melton, the Public Defender for the Sixteenth Judicial District, testified that he was appointed to represent the Appellant on the indicted charges. Mr. Melton stated that nothing in his notes made during his representation of the Appellant reflected that the Appellant did not understand what was going on. During one conversation, however, counsel recalled that the Appellant advised him that "he had been on different medications at some point in time." Mr. Melton admitted that he never asked jail personnel whether the Appellant was in fact taking any medication. Concerned, however, about the Appellant's behavior at the time of his arrest and the Appellant's self-reports, Mr. Melton obtained an order to have the Appellant evaluated regarding his competency to stand trial. In February 1998, the Appellant was evaluated at the Guidance Center. The evaluation revealed that the Appellant was competent to stand trial, that he could understand the nature of the charges and the relative roles of those who would participate in the case, and that the defense of insanity could not be supported. Moreover, counsel had no indication during his conferences with the Appellant that the Appellant's competency was in question. Indeed, during conferences with counsel, the Appellant clearly recited the facts regarding his charges in a consistent manner. The Appellant's recitation of the facts never altered. The Appellant indicated that he understood the nature of the charges against him and the penalties that he might receive. Moreover, the Appellant actively participated in the negotiation process regarding plea offers with the State.5 Mr. Melton concluded that "[he] never had any reason to doubt [the Appellant's] ability to assist me in his representation." Tom Woodson, a pharmacist, testified as an expert on behalf of the Appellant regarding the use of drugs and their effects on the human body. Mr. Woodson explained that Paroxetine, also known as Paxil, is "an antidepressant used to treat depression, obsessive compulsive disorder and panic disorder." Paroxetine "would actually free up serotonin in the body. Serotonin works as a mediator of sleep, helps in sensory perception, and actually promotes an overall feeling of well-being in a person." Mr. Woodson further stated that someone under the prescription of Paroxetine "may experience excitability or sedation." An individual sporadically using Paroxetine "would not receive the optimal effect of the drug and would probably lapse back in the baseline." The purpose behind the drug is to "enhance the feeling of well-being in the patient." Risperidone is used as an anti-psychotic to treat the symptoms of schizophrenia. Like Paroxetine, this drug also "works to enhance a person's sense of well being and should be taken on a regular basis." Mr. Woodson explained that "extensive use of Risperidone could result in symptoms similar to those occurring in patients with Parkinson's Disease." Woodson testified that Paroxetine and Risperidone were commonly taken simultaneously and that a person taking both prescriptions "could appear to be a normal thinking person but could really not know what was going on."

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To illustrate the Appellan t's level of participa tion, counse l stated that the: original offer in this case was an offer of 40 years that was rejected by Mr. Floyd. An offer of 30 years was rejected by Mr. Floyd. Then there was this conversation of an offer of maybe 24 years that was rejected by Mr. Floyd. The counter-offers that I had made in between were rejected by the State until we reached the point in April of 1998 that the State was co nsidering making us a new offer between 20 and 24 years. An offer of 20 years was accepted.

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The written statement of Esther Lack, Chief Jailer for Cannon County, was admitted into evidence by stipulation. Ms. Lack's statement provided that, during the Appellant's period of confinement, she observed what she considered as unusual behavior, specifically that the Appellant talked to himself, that he talked to his dead mother, that he pulled out his hair, and generally, she was of the opinion, that "he had gone off the deep end." The Appellant, regarding his overall health in 1997-1998, testified that he was "in pretty bad shape because [he didn't] remember." The Appellant explained that because he was on medication during this period of time he could not recall meeting with defense counsel. Although he could not enumerate the specific medications that he was prescribed, he testified that the medication resulted in his loss of memory. In fact, the Appellant maintained that he could not recall any specifics concerning the preparation of his case and his resulting guilty pleas. The Appellant stated, "I would like the opportunity to start over where I'm aware of what's going on and be able to make a rational decision about my life." In response to questioning by the court, the Appellant admitted that, within the three-day period prior to his arrest, he ingested "Xanax, I had a hit of blotter, hit of microdot, I took it." He also conceded that he had ingested a bottle of pills which he had taken from his wife, although he did not know what they were. The Appellant stated that, after taking the pills, he did not know where he was until he "woke up strapped down" at the Mental Health Center in Nashville. He recalled that this was shortly after his arrest. The Appellant stated that he had only vague recollections of the year spent in confinement prior to his guilty plea. In denying the Appellant relief, the post-conviction court found in its written order: Mr. Floyd's assertion that his plea was involuntary because of the medication that he was taking is also dismissed. The Petitioner in a Post Conviction Relief Petition has the burden of establishing his assertions by clear and convincing evidence. This is not done by Mr. Floyd. The only proof that Mr. Floyd advances is that he does not remember the events up to the plea. The record and evidence show that a mental evaluation was completed February 3, 1998, and that the plea was entered on April 28, 1998. The report of the mental evaluation . . . determined that the Defendant was "capable of defending himself in a court of law and that he understands the charges pending against him and the consequences of those charges." This report further advises that the Defendant "can advise and participate in his own defense." The medical records of the Cannon County Jail . . . evidence that upon Mr. Floyd's arrest in May of 1997, that he exhibited certain antisocial behavior which was explained by his arrest on these serious charges and his admitted overdosage of prescription drugs shortly before that arrest. This record demonstrates that some dosages of Paroxetine and Risperidone were provided to the Defendant at the jail in May 1997. Mr. Floyd may have received these medications from time to time over the next eleven months that he remained incarcerated in the Cannon County Jail prior to his plea but no record demonstrates these medications in the month of April 1998 when the plea was entered. The Court transcript of the entry of the plea . . . demonstrates the dialogue that occurred between the Defendant and the Court. This dialogue exhibits a person

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who is fully informed of the charges, his rights and one who knowingly, intelligently and voluntarily had waived those rights in exchange for this plea agreement.

Analysis In post-conviction proceedings, the Appellant must prove the allegations contained in the petition by clear and convincing evidence. TENN. CODE ANN .

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