IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
SEPTEMBER 1999 SESSION
September 27, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
WILLIE LEE BENFORD, )
) C.C.A. NO. 01C01-9905-CR-00157
Appellant, )
) DAVIDSON COUNTY
VS. )
) HON. CHERYL BLACKBURN,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
RICHARD HEDGEPATH, JR. PAUL G. SUMMERS
4800 Charlotte Pike Attorney General & Reporter
Nashville, TN 37209
TODD R. KELLEY
Asst. Attorney General
Cordell Hull Bldg., 2nd Fl.
425 Fifth Ave., North
Nashville, TN 37243-0493
VICTOR S. JOHNSON, III
District Attorney General
ROGER MOORE
Asst. District Attorney General
Washington Square, Suite 500
222 Second Ave., North
Nashville, TN 37201-1649
OPINION FILED:
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
On January 23, 1997, the petitioner pled guilty to one count of rape of a
child and entered a best interest plea to a second count of rape of a child. Pursuant to
a plea agreement, the petitioner was sentenced to a term of fifteen years on each count.
These sentences were to run concurrently. The petitioner’s subsequent post-conviction
petition was denied by the lower court after an evidentiary hearing. The petitioner now
appeals and contends that his guilty plea was not voluntarily, knowingly, or
understandingly entered and that he was denied the effective assistance of counsel.
After a review of the record and applicable law, we find no merit to the defendant’s
contentions and thus affirm the judgment of the lower court.
Initially, we note that under the Post-Conviction Procedure Act of 1995, the
petitioner has the burden of proving the factual allegations in his or her petition by clear
and convincing evidence. T.C.A. § 40-30-210(f). Furthermore, the factual findings of the
trial court in hearings “are conclusive on appeal unless the evidence preponderates
against the judgement.” State v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983).
The petitioner first contends that his guilty plea was involuntarily and
unknowingly entered because the trial court failed to inform him that due to the nature of
his conviction, his sentence would be served without the possibility of parole or sentence
reduction credits. See T.C.A. § 39-13-523.
After hearing the petitioner’s testimony as well as that of his attorney, and
after reviewing the transcript of the guilty plea which was introduced into evidence, the
court below found as follows:
The petitioner alleges as grounds for his claim of an
involuntary plea of guilty that the Court failed to inform him
that he would have to serve his fifteen (15) year sentence
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without the possibility of parole and without sentence reduction
credits. However, the transcript of the submission hearing,
which was entered as exhibit number two to the post-conviction
hearing, shows otherwise. On page two of the transcript, the
Court informs the petitioner that he will have to serve his entire
sentence undiminished by any sentence reduction credits. The
Court then asked the petitioner if that was his understanding of
the agreement. The petitioner responded in the affirmative.
Based upon the transcript of the submission hearing in this
matter, the Court finds that this claim is without merit.
The evidence does not preponderate against the lower court’s factual findings and
conclusions. This issue is without merit.
The petitioner next claims that he was denied the effective assistance of
counsel. In reviewing the petitioner’s Sixth Amendment claim of ineffective assistance
of counsel, this Court must determine whether the advice given or services rendered by
the attorney are within the range of competence demanded of attorneys in criminal
cases. Baxter v. Rose, 523 S.W .2d 930, 936 (Tenn. 1975). To prevail on a claim of
ineffective counsel, a petitioner “must show that counsel’s representation fell below an
objective standard of reasonableness” and that this performance prejudiced the defense.
There must be a reasonable probability that but for counsel’s error the result of
proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88,
692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985). To satisfy
the requirement of prejudice, the petitioner must demonstrate a reasonable probability
that but for counsel’s errors, he would not have pled guilty and would have insisted on
going to trial. See Hill v. Lockart, 474 U.S. 52, 59 (1985); Bankston v. State, 815 S.W.2d
213, 215 (Tenn. Crim. App. 1991).
The petitioner argues that his attorney, Michie Gibson, was ineffective
because he did not inform the petitioner that his sentence would be served without the
possibility of parole or sentence reduction credits. Instead, according to the petitioner,
his attorney told him his sentence would be served at thirty percent. The defendant
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contends that in the absence of these errors, he would not have pled guilty and would
have insisted on going to trial. With respect to these allegations, the court below found
as follows:
Mr. Gibson testified that at no time did he tell the petitioner
that he would serve his sentence at thirty percent (30%). In fact,
testimony was that Mr. Gibson specifically told the petitioner that
based on the charges, the petitioner would have to serve the
sentence at one-hundred percent(100%). This testimony corre-
sponds with the answers that the petitioner gave the Court at the
submission hearing. The petitioner was told by the Court that the
sentence would be served at one-hundred percent (100%) and the
petitioner agreed that this was the agreement. Also, the petitioner
had no questions for the Court concerning this issue when given
the opportunity to inquire as to anything he was unsure about.
Based on the testimony and the exhibits introduced at the
hearing, and the observation of the witnesses, the Court finds that
petitioner’s claims are not credible. The plea was not the result of
erroneous advise [sic] nor were they entered involuntary [sic],
unknowingly or not understandingly.
The petitioner has not carried his burden regarding these
issues. Mr. Gibson offered effective assistance of counsel and the
plea was entered knowingly, voluntarily and understandingly.
Again, the evidence does not preponderate against the lower court’s
findings. This issue is also without merit.
Accordingly, we affirm the lower court’s denial of post-conviction relief.
______________________________
JOHN H. PEAY, Judge
CONCUR:
______________________________
DAVID H. WELLES, Judge
______________________________
JOHN EVERETT W ILLIAMS, Judge
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