IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE FILED NOVEMBER 1997 SESSION January 9, 1998 Cecil W. Crowson Appellate Court Clerk FREDERICK A. AVERY, ) ) C.C.A. NO. 01C01-9704-CR-00128 Appellan t, ) ) DAVIDSON COUNTY VS. ) ) HON. CHERYL BLACKBURN, STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-conviction)

FOR THE APPELLANT: FOR THE APPELLEE:

MARK J. FISHBURN JOHN KNOX WALKUP Thompson Lane Attorney General & Reporter Nashville, TN 37211 CLINTON J. MORGAN Counse l for the State Fifth Ave. N.

2nd F loor, Co rdell H ull Bldg .

Nashville, TN 37243-0493 VICTO R S. JOHN SON, III District Attorney General ROGER MOORE Asst. District Attorney General Washington Sq.

222 2nd Ave. N.

Nashville, TN 37201

OPINION FILED:____________________

AFFIRMED

JOHN H. PEAY, Judge OPINION

The petitioner filed for po st-conviction relief on A pril 20, 1994; an amended petition was filed on November 15, 1995. In response to charges o f felony murder, aggravated robbery, robbery, attempt to commit robbery, aggravated burglary, theft of property and aggravated assault, the petitioner pled guilty on August 13, 1993, to second- degree murder and to robbery. As part of the plea-bargain, the remaining charges we re dismissed and he was sentenced to twenty-five years as a Range I standard offender on the murder charge and to a consecutive term of ten years as a Range II multiple offender on the robbery charge. The petitioner contends that his guilty pleas were the result of ineffective assistance of counsel and the refore not voluntarily, knowingly and intelligently made.

After an evidentiary hearing, the court below denied relief. We affirm.

In this post-conviction proceeding, the petitioner has the burden of proving the allegations in his petition by a preponderance of the evidence.1 McB ee v. State, 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). The trial court's findings of fact are afforded the weight of a jury verd ict, Summ erlin v. State, 607 S.W.2d 495, 497 (Tenn. Crim. App. 1980), and this C ourt will not set aside the lower court's ruling unless the evidence contained in the record prepon derates agains t its findin gs. Janow v . State, 470 S.W.2d 19, 21 (Tenn. Crim . App. 1971).

In attacking the validity of a guilty plea on the basis of ineffective assistance

For post-conviction petitions filed after May 10, 1995, the burden of proof on a petitioner is that he or she prove his or her allegations by “clear and convincing evidence.” See T.C.A. § 40-30-210(f) (1997). of counsel, a petitioner must demonstrate “that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). A “reasonab le probability” is “a probability sufficient to undermine co nfid ence in the outcom e, tha t, but for the co unse l's unprofessional errors, the results of the proceeding would have been d ifferen t.” Dixon v. State, 934 S.W.2d 6 9, 72 (Tenn. Crim. App. 199 6) citing Strickland v. Washington, 466 U.S. 668, 694 (1984). Th is Court will not use the benefit of hindsight to second-guess counsel's strategy or to criticize couns el's tactics . Hellard v. S tate, 629 S.W.2d 4, 9 (Tenn. 1982).

The petitioner contends that his fourth trial lawyer2 was ineffective in failing to investigate the case adequately, failing to pursue a motion to suppress his statement, and failing to advise him properly as to the sentences. In his brief, he asserts that “Because trial counsel failed to adequately represent him, . . . he could not make an informed and intelligent decision w hether to exercise his constitutional right to a trial by jury and, therefore, the pleas of guilty which he entered were not knowingly and voluntarily done, but we re the re sult of c onstruc tive coe rcion an d intimid ation.”

After hearing the petitioner's testimony as well as that of his lawyer, and after reviewing the transcript of the guilty plea which was introduced into evidence, the court below found as follows: The transcript of the guilty plea clearly show s that the [trial] court engaged in a long ser ies of ques tions to the petitioner regarding his understanding of his rights and voluntary Three other lawyers had previously been appointed the petitioner and each was allowed to withdraw.

relinquishment of those rights.

The petitioner testified that he was not knowledgeable about the criminal process and answered the Judge's questions according to the instructions of h is atto rney, a nd th at he always wanted to go to trial in this case. The guilty plea transcript and the petitioner's criminal history contradict petitioner's claim.

[Petition er's attorney] testified that once the petitioner understood the elements of felony murder, he willingly entered into the plea discussions and was interested in obtaining the <best de al he co uld.' Based on the testim ony, the exhib its introduced at the hearing and the observations of the witnesses, the petitioner's claims are not credible. The pleas were not the result of coercion and intimidation.

The petitioner has not carried his burden regarding this issue.

The plea was, in fact, entered knowingly, voluntarily and intel ligen tly.

The evidence does not preponderate against these findings and conclus ions by the court below. T his issue is w ithout merit.

With respect to evaluating the petitioner's lawyer's performance, the cou rt below found as follows: [Petition er's lawyer] testified . . . that he attemp ted to locate a witness to the murder[,] <Mr. Livin gston[,]' but w as unable to locate him. [Petitioner's lawyer] did not file a motion to suppress the [petitioner's] statement because one had previously been f iled by on e of the predec essor att orneys, a hearing had been held and the statement had been found to be admissible. [Petition er's a ttorn ey] obtained a ll the previou sly filed discovery information from the court files. [He] stated he discussed the petitioner's self[-]defense theory with him at length and felt that the facts would not support such a claim.

According to [petitioner's attorney], once the petitioner understood the charge of felony m urder, the petitioner was interested in getting the best deal he could obtain from the Assistant District Attorney General. [Petitioner's attorn ey] discussed the waiver of the R ange II Offen der status in the robbery charge with the petitioner as well as the consecutive sentencing aspects of the plea.

The Court finds that the petitioner was well represented by [his attorney], whose services were within the range of competence demanded of attorneys in criminal cases.

Again, the evidence does not preponderate against the lower court's findings. This issue is also witho ut merit.

The ju dgme nt below is affirm ed.

________________________________ JOHN H. PEAY , Judge

CONCUR:

_______________________________ JOSEPH M. TIPTON , Judge

_______________________________ DAVID H. WE LLES, Judge