IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
FEBRUARY 1999 SESSION
May 21, 1999
Cecil W. Crowson
Appellate Court Clerk
STANLEY POWELL, )
) C.C.A. No. 01C01-9804-CC-00169
Appellee, )
) Giles County
V. )
) Honorable W illiam B. Cain, Judge
STATE OF TENNESSEE, )
) (Post-Conviction - Aggravated Kidnaping,
) Aggravated Rape)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
HERSHELL KOGER JOHN KNOX WALKUP
131 N. 1st Street Attorney General and Reporter
P. O. Box 1148
Pulaski, TN 38478 ELIZABETH B. MARNEY
Assistant Attorney General
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243
MIKE BOTTOMS
District Attorney General
RICHARD DUNAVANT
Assistant District Attorney
Giles County Courthouse
Pulaski, TN 38478
OPINION FILED: _______________
AFFIRMED
JOHN EVERETT WILLIAMS,
Judge
OPINION
The petition er, Sta nley P owell, a ppea ls from the trial c ourt’s
dismissal of his claim for post-conviction relief. Powell is presently serving
thirteen years a s a ran ge II offe nder in the De partm ent of C orrect ion for h is
guilty plea to aggrava ted kidna ping an d aggra vated rap e on Ju ne 27, 1 994.
The trial court dismissed his post-conviction petition following a hearing on
the merits. After a review of the record, the briefs of the parties and the
applic able la w, we a ffirm the trial cou rt’s dism issal.
The petition er claim ed at h is post -conv iction h earing that his
appointed counsel was ineffective for failing to interview witnesses and that
his plea was e ntered into unk nowingly and involuntarily.
The trial court reviewed the transcript of the hearing in which the
defen dant p leade d guilty, a nd he ard the testim ony fro m the Petition er, his
court appointed counsel and three other witnesses, before finding as
follows:
There is nothing in the post-conviction relief petition that
has a ny me rit, and th e cred ibility of the defen dant in his
testimony today is nonexistent. He knew at the time that he
was facing the possibility--and strong possibility--of being
declared a career offender, following his extensive criminal
record, and that he could spend many, many years in the
penitentiary.
Following this ass essme nt of the petitioner’s credibility, the trial court
clearly placed gre at weight upon the testimony o f the petitioner’s court
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appointed counsel and very little, if any, upon the testimony of the
petitioner.
The test for de termining wh ether trial counsel pro vided effective
assist ance to his or her clie nt rests on wh ether c ouns el’s pe rform ance is
within the ra nge of co mpete nce de mand ed of attorn eys in crim inal case s.
See Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). The burden is on an
appellant to show that representation was deficient in that counsel made
errors so serious that she or he was not functioning as “counsel” as
guaran teed by th e Sixth Am endm ent. See Strickland v. Washington, 466
U.S. 668, 687 (1984). Where a defendant pleads guilty, he must show that
but for counse l’s errors he would n ot have plead ed guilty and wo uld have
insisted o n going to trial. See Hill v. Lockhart 474 U .S. 52, 59 (1985); see
also State v. Neal, 810 S.W.2d 131, 138-39 (Tenn. 1991) (reiterating the
standard in Hill).
The trial court’s findings of fact in a post-conviction proceeding are
afforded the weight of a jury verdict and are conclusive on appeal unless
the evidence in the record preponderates against them.1 See Caruthers v.
State, 814 S.W .2d 64, 67 (Tenn . Crim. A pp. 199 1); Butler v. Sta te, 789
S.W.2d 898, 899-900 (Tenn. 1990). Petitioner bears the burden of
establishing that the evidence preponderates against the post-conviction
court’s find ings of fac t. See Black v. S tate, 794 S.W.2d 752, 755 (Tenn.
Crim. App. 1990). Petitioner did not carry his burden in the trial court and
he has not carried his burden here.
1
This pe tition was filed in 1 994 an d is contro lled by the pre -1995 P ost Con viction Act.
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The jud gmen t of the trial cou rt dismiss ing the pe titioner’s pos t-
conviction relief petition is therefore AFFIRMED.
_____________________________
JOHN EVERET T WILLIAMS, Judge
CONCUR:
______________________________
DAVID G. HAYES, Judge
_______________________________
JAMES CURW OOD W ITT, JR., Judge
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