IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON DECEMBER SESSION, 1996

KETO BROWN, ) C.C.A. NO. 02C01-9601-CR-00021 ) Appellant, ) ) ) SHELBY COUNTY VS. ) ) HON. CHRIS CRAFT STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction Relief)

FOR THE APPELLANT: FOR THE APPELLEE: DANE BLUE CHARLES W. BURSON Jefferson Avenue Attorney General and Reporter Memphis, TN 38103 SARAH M. BRANCH W. MARK WARD Assistant Attorney General Assistant Public Defender 450 James Robertson Parkway Jefferson Suite 900 Nashville, TN 37243 Memphis, TN 38103 WILLIAM L. GIBBONS District Attorney General JAMES M. LAMMEY Assistant District Attorney Poplar Avenue, Third Floor Memphis, TN 38103

OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE OPINION

Appellant Keto Brown pled guilty in the Shelby County Criminal Court to two counts of attempted second degree murder. As a Range I standard offender, he received an eight year sentence for each offense. The trial court ordered the sentences served conc urren tly, for an effective sente nce o f eight years in the Tennessee Depa rtment o f Correc tion. In this appeal of the denial of a petition for post-conviction relief, Appellant presents the following issue: whether he received effective assista nce o f coun sel.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

I. FACTUAL BACKGROUND On November 8, 1992, Appe llant fired six sho ts at Ma rshall Williams. He missed his intend ed targe t but seriou sly injured a secon d perso n, Brian Rawlings.

Indicted on two counts of attempted first degree murde r, Appella nt pled gu ilty to two counts of attem pted secon d degree m urder and rec eived an effective sentence of eight years.

On November 14, 1994, Appellant filed a petition for post-con viction relief, alleging that he rec eived ineffe ctive assista nce of coun sel during plea negotiations. The trial co urt denie d the p etition. A ppella nt app eals fro m this judgm ent.

-2- II. POST CONVICTION RELIEF Appellant alleges that the trial court erred in finding that his attorney rendered effective as sistance . In post-conviction proceedings, the petitioner has the burden of proving the claims raised by a preponderance of the evidence.

Tidw ell v. State, 922 S.W .2d 497 , 500 (T enn. 19 96); Wa de v. State , 914 S.W.2d 97, 101 (Tenn. Crim. App. 1995). Finding s of fact made by the trial court are conclusive on appeal unless the evidence preponderates against the judgm ent.

Cooper v. State, 849 S.W.2d 744, 746 (Tenn . 1993); Butler v. Sta te, 789 S.W.2d 898, 899 (T enn. 1990 ).

W h en an appeal challenges the effective assistance of counsel, the appellant has the burden of establishing (1) deficient representation and (2) prejudice resulting from that d eficiency. Strickland v. Washington, 466 U.S. 668, 686 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Deficient representation occurs when counsel provides assistance that falls below the range of comp etence dema nded o f criminal a ttorneys. Banks ton v. State , 815 S.W .2d 213 , 215 (T enn. C rim. App . 1991).

The reviewing court should not use hindsight to "second-guess trial strategy by counsel and criticize couns el's tactics." Cox v. Sta te, 880 S.W.2d 713, 718 (Tenn. Crim . App. 1 994). P rejudic e is the reaso nable likelihood that, but for deficient represe ntation, the outcom e of the proceedings would have been different. Overton v. State, 874 S.W.2d 6, 11 (T enn. 1 994). O n revie w, ther e is a strong presumption of satisfactor y represe ntation. Barr v. Sta te, 910 S.W.2d 462, 464 (T enn. Crim. A pp. 1995).

-3- Appellant first argue s that h is attorney was deficient in failing to interview Leslie Crutcher, a witness to the shooting. Appellant’s attorney testified that he made an unsuccessful attempt to contact Ms. Crutcher and also encouraged Appellant to bring her to his office so that she could make a statement. Without giving any reason, Appellant admitted that he did not arrange for Ms. C rutcher to visit his attorney’s office. The perform ance o f the accu sed is an approp riate consideration when evaluating the merits of an ineffective assistance of counsel claim. See State v. Mitch ell, 753 S.W .2d 148, 149 (Tenn. Crim . App. 1988 ).

Moreover, Appellant fails to establish that Ms. C rutche r’s testimony wo uld have been beneficial or even m aterial to his c ase. See Kilburn v. S tate, No. 02C01- 9309-CC-00219, 1994 W L 6979 91, at *2 (T enn. C rim. App . Dec. 14, 1994).

Under the circumstances, Appellant is not entitled to relief with respect to th is issue.

Appellant also argues that his attorney incorrectly advised him that he would be released after serving only thirty percent of his eight-year sentence.

Appe llant’s attorney testified that he “vividly” recalled explaining to Appellant that “it was bette r for him to ta ke an e ight-year o ffer and se rve thirty percen t and be eligible for paro le than to run the risk of p ossib ly getting as much as fifty years out of . . . these two offenses, if the jury return ed a ve rdict of g uilty.” (em phas is added) The trial court found that Appellant’s testimony lacked credibility and reconciled the conflicting testimony in favor of Appellant’s attorne y. We b elieve that the evide nce fully su pports su ch a findin g. See Cooper, 849 S.W.2d at 746; Butler, 789 S.W.2d 899.

-4- Appellant has failed to adequately demonstrate deficient representation by his trial attorn ey. Acco rdingly, the ju dgme nt of the trial co urt is affirme d.

____________________________________ JERRY L. SMITH, JUDGE

CONCUR:

___________________________________ JOE B. JONES, PRESIDING JUDGE

___________________________________ JOSEPH M. TIPTON, JUDGE

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