IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
APRIL SESSION, 1997 May 30, 1997
Cecil W. Crowson
RICK F. VAULTON, ) Appellate Court Clerk
C.C.A. NO. 01C01-9606-CR-00276
)
Appe llant, )
)
) DAVIDSON COUNTY
VS. )
) HON. ANN LACY JOHNS
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF DAVIDSON COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
THERESA W . DOYLE CHARLES W. BURSON
211 Printer’s Alley Building Attorney General & Reporter
Suite 400
Nashville, TN 37201 PETER COUGHLAN
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
VICTOR S. JOHNSON
District Attorney General
ROGER MOORE
Assistant District Attorney General
Washington Square, Suite 500
222 Se cond A venue, N orth
Nashville, TN 37201-1649
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Defendant appeals as of right pursuant to Rule 3 of the Tennessee
Rules of Appellate Procedure from the trial cour t’s denial of h is petition for p ost-
conviction relief. The Defendant was originally indicted on eleven counts of
aggravated robbery and three counts of especially aggravated kidnaping. He
subs eque ntly pleaded guilty to four co unts of aggravated robbery and one count
of especially aggravated kidnaping. Pursuant to the plea agreement, he was
sentenced as a Ran ge II multiple offende r to twenty years for each of the
aggravated robbe ry conv ictions and tw enty-five years fo r the es pecia lly
aggravated kidnaping conviction, all to be served concurrently. After conducting
a hearing on the post-conviction petition, the trial judge denie d the D efend ant’s
claim of ineffective assistance of counsel relative to his guilty pleas and
dismiss ed his pe tition. W e affirm the judgm ent of the tria l court.
In the Defendant’s pro se petition for post-conviction relief, numerous
general allega tions o f ineffec tive ass istanc e of co unse l are alleged. The
allegations relate p rimarily to improper and inadequate investigation, counseling
and advice concerning the charge s and the conse quenc es of the g uilty plea. At
the hearing on the post-conviction petition, the Defe ndan t testified that his main
concern was with the aggravated kidnaping conviction because it carried five
more years than the robbery convictions. He testified that concerning the
kidna ping charge, his attorn ey “told me that if I went a head and pleaded gu ilty,
we could come back and he could g et it took off of m e.” Th e Def enda nt’s
attorney testified that he did not “recall any discus sion of that nature.”
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In determining whether cou nsel provided e ffective assista nce a t trial, the
court mus t decid e whe ther co unse l’s performance was within the range of
competence dema nded o f attorneys in crimina l cases. Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975). To succeed on a claim that his counsel was
ineffective at trial, a petitioner bears the burden of showing that his counsel made
errors so serious that he was not functioning as counsel as guaranteed under the
Sixth Amendment and that the deficient representation prejudiced the petitioner
resulting in a failure to produce a reliable res ult. Strickland v. Washington, 466
U.S. 668, 68 7, reh’g denied, 467 U.S . 1267 (1 984); Coop er v. State , 849 S.W.2d
744, 74 7 (Ten n. 1993 ); Butler v. Sta te, 789 S.W.2d 898, 899 (Tenn. 1990). To
satisfy the seco nd pron g the pe titioner mu st show a reaso nable p robability tha t,
but for coun sel’s un reaso nable error, th e fact fin der wo uld have h ad rea sona ble
doubt regardin g petitione r’s guilt. Strickland, 466 U .S. at 69 5. This reaso nable
probab ility must be “su fficient to undermine confidence in the outcome .” Harris
v. State, 875 S.W .2d 662, 665 (Tenn. 199 4).
When reviewing trial cou nsel’s action s, this co urt sho uld no t use th e ben efit
of hindsight to second-guess trial strategy and criticize couns el’s tactics. Hellard
v. State, 629 S.W .2d 4, 9 (Ten n. 1982). Co unsel’s alleged e rrors should be
judged at the time they were made in light of all facts and circumstances.
Strickland, 466 U.S . at 690; see Cooper, 849 S.W.2d at 746.
This two part standard of measuring ineffective assistance of counsel also
applies to claims arising out of the plea process. Hill v. Lockhart, 474 U.S. 52
(1985). The prejudice requirement is modified so that the petitioner “must show
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that the re is a re ason able probab ility that, but for counsel’s errors he would not
have pleade d guilty and wou ld have insisted on going to trial.” Id. at 59.
The Defenda nt and his attorne y were the only witnesses at the hearing on
the petition for post-conviction relief. Noting that to some extent the issue was
one of credibility, the trial judge found that based on the evidence presented, the
Defe ndant had no t carried his burden of proving that coun sel was in effective.
The evidence supports the findings of the trial judge. We find no error of law
requir ing rev ersal.
The judgment of the trial court is affirmed.
____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
GARY R. WADE, JUDGE
___________________________________
J. CURWOOD WITT, JR., JUDGE
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