# FILED July 23, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF CRI MINAL APPEA LS OF TENNESSEE ATJA CKSON JUNE SE SSION, 1997 DAVID WAYNE BRITT, ) C.C.A. NO. 02C01-9607-CC-00224 ) Ap pella nt, ) ) ) HARDEMAN COU NTY VS. ) ) HON. JON K ERRY B LA CKWOOD STATE OF TENNESSEE, ) JUDGE ) Appell ee. ) (Post- Convict ion)

ON AP PEA L FROM THE J UDGMENT OF THE CIRCUIT COURT OF HARDEM AN COUNTY FOR THE APP ELLA NT : FOR THE APPELLEE : GARY F. ANTRICAN JOHN KNOX W ALKUP Dist ri ct Publ ic Def ender Attor ney General and Reporter C. MIC HAEL ROB BI NS CLINTON J . MORGAN Assist ant Publ ic Def ender Assist ant Attor ney General P.O. Box 700 450 James Robertson Par kway Somervil le, TN 38068 Nashvil le, TN 37243-0493 ELI ZABETH RI CE Dist ri ct Attor ney General 302 MarketStreet Somervil le, TN 38068
OPINION FILED ________________________ AFFI RMED DAVI D H. WELLES, JUD GE-2- 

# OPINION

The Pe tition er, D avid W ayne Bri tt , appeal s as of ri ght pursuant t o Rule 3 ofthe Te nn es se e R ule s of Ap pe llate Pro ce du re fro m the trial c ou rt’s d en ial of his peti ti on for po st-co nviction relief. On April 9, 1990, the P etitione r plea ded guilty to first-degree m urder, co nspira cy to co m m it f irst- degree murder , and poss ession ofa deadlyweapon wit h the int ent t o employ i t i n the commissi on ofan off ense. Upon the recommendation ofthe di str ict attorney ge neral, the trial cou rt sentenced him to life im pri sonment for fi rst -degree murder, thr ee yearsfor conspiracyto commitfi rst -deg ree murder , and one year for po sse ssio n of a de ad ly weapon wit h the i ntentto employitin t he commission ofan off ense. The Peti ti onerwas classif ied as a Ran ge I stan dard o ffender, an d his se ntenc es we re ordered to r un concurrentl y. He fil ed a pro se peti ti on forpost- convi cti on rel iefon Ap ril 27, 1994, which was amended with t he assi stance of coun sel on J an uary 2, 199 6, an d ag ain o n Fe brua ry 6, 19 96. In his pe tition for p ost-c onv iction re lief, the Pe titioner a rgue d tha t h e was de nie d e ffec tive a ssis tan ce of co un se l at h is guilty plea proceeding. Aft er conduct ing a n eviden tiary hearing , the trial court found thatthe Pet it ioner had recei ved effective assis tance ofcounsel and denied the p etition. W e affirm the jud gm ent o f the trial c ourt.
Initially, we note t hat the pro ce du ral h isto ry of th is pe tition ind ica tes tha t it was or i gi na l l y di smi ssed as havi ng been barred by t he thr ee-year stat ute of li mitat ion. See Te nn . Co de An n. § 40 -30 -10 2 (re pe ale d 1 99 5). O n Ju ly 26, 1995, the dism issa l of the p etition w as re verse d on app eal to this C ourt. See State v. Da vid W ayne Bri tt , C.C. A. No. 02C0 1- 941 0- CC -00234, Hardeman County ( Tenn.-3-

Cr i m. Ap p., J ac kso n, J uly 2 6, 1 99 5) (h old ing tha t the sta tute of lim it ati on was tol led wh ile the Pet it ioner was a minor p ursuantto Tennessee Code Annot ated secti on 28-1 -106 ). Upon remand to t he tr ial court , t he Peti ti oner was appoi nted counsel, amended the ori ginal peti ti on, and receiv ed an evi denti ary hear ing.

The only evi dence concerning the circumst ance s of t he off enses comes fro m a sti pulat ion offact s which was read into the reco rd at the Pe titioner’s guilty plea proceedi ng. Thatsti pulat ion reveal s thatthe Pe tition er b ec am e ro m an tica lly inv olv ed with a t eacher’s a s sistan t, Bren da D iane Oa kley, a t the W ilder Yo uth DevelopmentCe nte r in 1 98 9. H e w as sixte en yea rs o ld at t he ti me and Oakley was thirty-eig ht yea rs old . Acc ordin g to the Pet it ioner , Oakl ey made all egati ons thatshe had been abused byher husband. She indi cated thatshe wanted to be with the Pet it ioner

and thatthe onl y way she could do so was for him to k il l her husband. Th e P etitio ne r eve ntu ally cam e to be lieve her and did not want t o lose her affect ions.

Accordi ng to t he Peti ti oner, Oakley dev ised pl ans forthe ki ll ing ofher husband. She provi ded a map of t he rout e to her home and detai ls aboutthe lay out of t he house. W hen the Pet it ioner did notfol low t hrough wit h the f irst pl an, Oakleywas no t p leased. She inf ormed him thatunlessher husband was el i mi nated as soon as poss ibl e, t heir lov e aff airwas over . As a result , t he Peti ti oner made arrangements to kil l her husband.

The Pe tition er a rran ge d fo r a frie nd to d rive h im to Somervil le, the l ocati on ofthe O akle y hom e, on Se ptem ber 3 0, 19 89. He acquir ed a .22 cal iber ri fl e and broughtitwi t h h i m. He con ce ale d th e tru e p urp os e o f his h avin g th e g un from his-4-

friend s. Th ey dr ank som e be er on the w ay to S om erville. Once the y arr ived in Somervil le, the Pet it ioner inst ruct ed his f ri ends to dr iv e by th e O ak ley h om e in order“t o check outthe s it uati on.” Sati sfi ed wit h the si tuat ion, the Pet it ioner inst ruct ed his frien ds w here to pa rk an d wa it for him . H e put on a m ask and rubberglov es and approac hed the Oakl ey home. He f oun d the door unlock ed a nd entere d the h ouse . Acco rding to the Petitioner, D iane O akley was awak e and knew of hi s presence. Her husband sti rred from his s lee p, a pp are ntly real izi ng thatsomeone was in th e ro om , an d th e P etitio ne r sh ot h im in the head.

After the shoot ing, the Pet it ioner and Oakley embraced. He t hen took steps to m ake the s hoo ting a ppe ar to b e pa rt of a r obb ery, incl uding bi nding O akley wit h clot h he had broughtand taki ng her di amond pendant. He left t he house run nin g a nd joine d h is frie nd s w he re th ey h ad pa rke d to aw ait him. They drove awayand the Peti ti oner l atertook st eps to c over up the cr ime. I n all , t he cr i me had taken place i n the f ormat whi ch he and Oakleyhad plan ned a nd discussed several ti mes.

Law enfor cement auth ori ti es soon suspect ed the Pet it ioner of bei ng inv olv ed in the s hoo ting. He event uall y conf essed to the cr ime. As a result , he was indi cted on the ch arges to whi ch he pl eaded guil ty o n Apri l 9, 1990. He f il ed a peti ti on for

post- convi cti on rel iefon Apri l 27, 1994. Afterconducti ng an eviden tiaryhearing on M arch 8 , 1996 , the trial court de nie d th e p etitio n. It is from the tr ial court’ s order of deni al thatthe Petit ioner now appeals.

In his peti ti on, he argued thathis attor neys atthe gui lty pl ea proceedi ng, Jack Hin so n a nd To m An de rso n, re nd ere d in effe ctive ass ista nc e o f co un se l in-5-

thr ee respects. The Pe tition er firs t co nte nd ed tha t his a ttorn eys en co ura ge d h im to plead gui lty tofi rst -degree murde r butdid notcorr ectl y advi se him ofthe alt ernat iv es to or c ons equ enc es o f doin g so . Sec ond , he c onte nde d tha t h is attorneys were ineff ectiv e in thatthey di d not discuss a nd pursue a defense based on his being under the i nfl uence of dr ugs and al cohol atthe t ime of t he off ense. Third, he contende d thatatt orney Tom Anderson was ineffect iv e in t hat he had a co nfl i ct ofint erestari sing f rom a previ ous matter concerni ng the Petitioner.

Bo th Jack H ins on and Tom Anderson test if ied atthe post -convi cti on hea ring. Hinson st ated tha t he ha d h an dle d a m atte r invo lving the Pe tition er in t he past . As a re su lt, the Pe tition er’s m oth er, H ele n O verm an , co nta cte d h im upon the Pe ti ti oner’ s arr est f or t he Somervil le murder . Hi nson met wit h the Peti ti onerand was then h ir ed by Over ma n to repre sent him . She p aid a five thousand doll ar ($5 000) r etai ner f ee at thatti me. Hinson soon real ized t hat he wo uld need the hel p ofa m ore exp erie nc ed atto rne y for th is diffic ult m urd er tria l. He contac ted T om And erson for that re aso n. Anderson met wi th Hin son, t he Peti ti one ran d Overman to di scuss t he case. Alt hough neit her Hins on nor Anderson recal led spec if ic det ail s disc ussed duri ng thei r meeti ngs wit h Overman and the P etitione r, it was c lear to both attor neys t hat Over man and the Pet it ioner agreed to An ders on’s ass ocia tion o n the cas e. An ders on a nd H inso n ag reed to sp lit the retai nerfee and, accordi ng to t hem, theywere pai d no addit ional money by Overman. The Peti ti oner was l aterdeclared indi gent, and Hinson and An de r so n w er e a pp oi nt ed t o r ep r es en thi m.-6- The record reveal s thatAnderson satas a speci al j udge on a j u ven ile matterinv olv ing the Pet it ioner approxi matelytwo y ears pr iorto hi s arr est on t he murdercharge. On that occasi on, Anders on entered an order committi ng the Peti ti onerto t he supe rvi sion of t he Department of Correcti on for sixcounts of l a rceny. At t he post- convi cti on heari ng, Anders on test if ied t hat he di d not remember committi ng the Pet it ioner at t he ti me he became assoc iated with Hinson for the m urder trial. In fact, the Pe titioner r emi nded Anderson ofthat proceedi ng durin g on e of th eir m eetin gs a nd la ugh ed a bou t it. Accordi ng to bo th Hinson and A nde rson, ne ither the P etitioner nor O ve rman obje cte d to An de rso n’s part ici pati on in t he murder t ri al becaus e of t he pri or commitment proceeding.

Bo th Hinson and Anderson were awar e thatthe Pet it ioner had consumed alc oh ol o n th e trip to So m erville. Neith er attor ney rec all ed any menti on of dr ug use by the Pe titioner. Because of t he Peti ti oner’ s preci se acti ons in foll owing t he plan t o murder Mr. Oakley, neit her attor ney bel iev ed thata defense suggesti ng thatthe P etitione r cou ld no t have form ed th e req uisite m enta l state fo r fi rst degree or second- de gr ee murder because of t he inf luence of alcohol would be su cce ssf ul. Accor din gly , t hey deci ded thatalcohol would notbe a major factor in their defen se of the Petitioner.

Inst ead, the pr inci pal t heory of defense woul d be thatthe ado lescent Pet it ioner

was ma nipu lated by the olde r Dia ne O akle y into c om m itt ing th e off ense. They hope d to showthatOakley was the i mpetus behi nd the commission ofthe offense and t o port ray t he Peti ti oneras havi ng been used by her. Give n tha t the P etitione r had con fess ed to the th e crim e an d the ir mo tion to-7-

supp re ss the conf ession had been deni ed, bot h att orneys agreed t hat t he b es t ou t co me theycould l ikel y hope for was a conviction fo r seco nd-de gree m urder.

The Petit ioner ’s t ri al was s et f orMo nd ay, A pril 9 , 19 90 . By th at tim e, h is a tt orneys had already f il ed several pretr ial motions, some of whi ch had been su cc es sf ul ( su ch as t he mot i on t o c ha ng e v en ue ) an d s ome of which had been denied (such as the moti on to suppress the Peti ti oner’ s confes sion) . Hi nson and Anderson testified that they w ere pre pare d to go t o tr ial . They had c ompleted discove ryand preparation oftheir defense and had issued su bpo enas for the trial. On April 6, 1990, Overman call ed the attorn eys and i ndicat ed thatthe Peti ti onerwa nte d to ple ad gu il ty . Over man requested t hat t hey cont act t he distr ictatt orneygeneral ’s offi ce to di scuss t hat possi bil ity. Hinson and Anderson went to vis it the Pet it ioner to conf ir m his wis hes. Theyadvi sed him notto pl ead guilty. They informed hi m of t he ranges ofpunishmentforfi rst -degree and se co nd -de gre e m urd er a nd exp lain ed tha t it would notbe in his be st intere st to plead guil ty to fi rst -degree murder. The Peti ti oner deci ded thathe wanted t o do so an yway.

As a resu lt, the attorneys co ntacted the district attorney g ene ra l’ s offi ce and rel ayed the Pet it ioner ’s i ntent ion t o plead gui lty. The dist ri ct attor ney general agreed t o r ec ommen d t ha t t he Pet i t i on er ’ s s en t en ce s r un co nc ur re nt l y. On Ap ril 9, 1990, t he date or igi nall y setfor trial, the Pe titioner p lead ed g uilty to fi rst -degree mu rder, con sp irac y to c om m it first-d eg ree m urd er, a nd po sse ssio n o f a d ea dly weapo n w it h the i ntent ion t o employ i t i n the commissi on of an offense. At t he guilty plea proc e eding, both t he Peti ti oner and Over man specif ical lynoted t hat his attorne ys ha d a dvis ed him not t o plead gui lty. Itappears t hat t he Peti ti oner-8-

discus sed plea ding guilty w ith his fa m ilyand came to a deci sion t hat i t woul d be the best thi ng for hi m to do. The Petiti oner himself st ated, “I ’d l ike to say I’m sorry forwhat happened and I feel li ke pleadi ng guil ty wi ll take awayany g rief off the famil y and my f amilyand I’d like to ask for fo rgive ne ss fr om the Oa kle y fam ily forwh at’s happened.”The tri al courtful lyadvi sed the Pet it ioner of hi s ri ghts and the consequences ofpleadi ng guil ty. The Petit ioner , Over man, and his attorne ys di scussed the gui lty pl ea for ms in a pri vate room justoutsi de the cou rtroom . They all si gned the forms before ret urning to court to ent er the pl eas.

The record i ndicat es thatJack Hins on had been pract ici ng law f ora year and a halfwhen he was ret ained byHelen Overman t o repr esent t he Peti ti oner forthe Somervi ll e murder. He had handled sev era l sm all cr i mi na l ca se s, so me by appo intme nt and others b y retainer. Tom Anderson had been pract ici ng law f ornine an d a ha lf years at the tim e of the P etitioner’s m urder arres t. He ha d handled numerous cri minal c ases, i ncludi ng jury tr ial s and guilty pleas. He and Hinso n had agreed t hat Anders on was to s erve aslead co unsel for t he Pe tition er’s m urd er tria l.

The Peti ti oner tes ti fi ed i n hi s own behalfat t he post- convi cti on heari ng. He stat ed thathe lear ned thathis moth er had hi red Hins on to b e h is atto rne y in Octoberof 19 89. A few weeks aftermeeting wi th Hin son, Anderson joi ned the case. Ne it her H inso n no r An ders on e ver sp oke with h im a bou t con sen ting to An de rso n’s parti cipati on in the ca se. During discus sions about t he case, the Peti ti onerinform ed h is att orneys that h e ha d be en u nde r the in fluen ce o f both alcohol and L SD at the t ime of t he off enses. Hinson and Anderson tol d the Peti ti onerthatthe i nfl uence of dr ugs and al cohol di d not matt er. The Petit ioner-9-

test if ied thatthe attor neys spoke a bout a pl ea more than t hey ever discu ssed going to trial or tri al strategy. Accordi ng to t he Peti ti oner, Hinson and Anderson advi sed him to plea d gu ilty. The y informe d him that he w ould se rve less tim e if he pleaded gui lty tofi rst -degree murderthan i f he wentto t ri al and was convi cted ofseco nd-d egree m urder. Hinson and Anderson tol d the Pet it ioner thatthe distr ictatt orney gen eral was aski ng for an eighty-y ear sent ence and thatthe tr ial judge usuall y agr eed t o what t he prosecut or rec omm ended. The Peti ti oner testi fi ed t ha t he wa s n oti nf or med ab ou t t he po ss i bl e mi ni mum a nd ma xi mu m sentencesfor hi s offenses. He stat ed that the ad vice given b y his attorne ys played a large ro le in his dec ision to plea d guilty.

On cros s-exa m ination , the P eti tio ner st ated t hat he had l ied dur ing t he guilty pl ea pro ce ed in g w he n th e tria l judg e a ske d h im if an yon e h ad told him about how much ti me he would serve in priso n be fore b eing relea sed . In a ddit ion, he ha d in ac cu rate ly rep orte d th e re as on s fo r his ple ad ing gu ilt y. Th e Peti ti on eralso admitt ed thathe neversaid t hat he di d not wantAnderson part ici pati ng in hi s defense.

The Pe titioner’s mo ther, H elen Ove rm an, t es tif ied atthe post -convi cti on heari ng. She stat ed that , i n addit ion t o the f iv e thousand doll ar ($5 000) ret ainer fee, she p aid an a dditional two thousa nd do llars ( $2 00 0) atso me lat er t ime. She did not, however, have a r eceiptforthi s payment. Alt houg h sh e remembered Anderson from the pri or juveni le co mm it ment proceedi ng, she s implytr usted Hin so n’s judgment wi th r egard t o his as sociat ion. Overman test if ied thatshe was dist ract ed at th e tim e b eca use her g rand dau ghte r was very ill. Acc ordin g to Overman, Hin so n a nd An de rso n to ld h er th at if th e P etit ion er wentto t ri al and-10-

was convi cted he would receiv e an eighty-y ear sent ence, whereas ifhe pleaded guilty he would be rel eased from prison i n nine or ten y ears. Overman stat ed that the Peti ti oner neve r expressed any des ir e to p lead gu ilty before his attorne ys advi sed him to do so. She test if ied t hat t he att orneys tol d herand the Pet it ioner that it was in his b est interes t to plead g uilty.

On cross-examinati on, Overman adm itt ed that she was never so dissat isf ied with th e pe rform anc e of Hins on and Anderson t hat she as ked for eit herof them to be take n of f t he case. She also admi tt ed thatshe li ed at t he guilty ple a p roc ee din g re ga rdin g th e P etitio ne r’s desire to pl ead guil ty, but st ated that she di d so because of pressure exert ed by the att orneys.
Steven Britt, the Pe ti ti oner’ s brot her, also t esti fi ed at t he post- convi cti on heari ng. He stat ed thathe was presentdur ing th e meeting i n the pr iv ate room next to t he court room pri or t o the Peti ti oner’ s entry ofhis gui lty pl eas. Dur ing t hat meeting, the Pet it ioner ’s attor neys adv ised him thatitwould be in hi s best int erest to plea d g uil ty. They informed the Pet it ioner thatifhe went t o tr ial and was convicte d, he w ould rec eive a long er prison senten ce than if he plead ed gu ilty.

After the hearing, the tr ial co urt denied t he peti ti on and entered wri tt en fi ndings of factand con cl usi ons oflaw
. The orderof deni al i ndicat es thatthe t ri al court found the te stim ony of H inso n an d A nde rson to be cred ible. A s a re sult, the tri al courtconcl uded thatthe Pet it ioner acquies ced in t he par ti cipat ion of Anderson in hi s defense e ven though Anderson had previously served as a special judge i n a juv enil e matter rel ati ng to hi m. The tri al court f urt her concl uded thatthe d ecis ion to enter guilty pleas w as the P etitioner’s and that his attorne ys-11-

had advi sed him notto pl ead guil ty. Accordi ng ly , t he tr ial courtdenied t he peti ti on, stat ing that Hinson and Anderson had provided eff ectiv e assistance of cou nse l. The Pe titioner th en a ppe aled to this C ourt.

In determining whether or not counse l pr ovid ed effe ctive ass ista nc e a t trial, the courtmust deci de whether or notcounsel ’s perfor mance was wit hin t he range ofcompetence demanded of atto rney s in crim inal ca ses . Baxter v. Rose , 523 S.W .2 d 930 (Tenn. 1975). To succeed on a cl aim thathis c oun sel wa s ineffective at t ri al, a peti ti oner bears the burden ofshowing t hat hi s counsel made errors so seri ous thathe was not funct ioni ng as counsel as guarant eed under t he Sixth Amendm ent and thatthe def ici ent r epresent ati on prej udiced t he peti ti oner resul ti ng in afailure to prod uce a reliab le res ult. Stri ckland v. W ashingt on , 466 U.S. 668 , 687 , reh ’g denied , 467 U.S . 126 7 (19 84); Co ope r v. Sta te , 849 S. W .2d 744 , 747 (Te nn. 1 993 ); Bu tler v. Sta te , 789 S.W .2d 898 , 8 99 ( Tenn . 1 990 ). To satisfy thi s second prong the pet it ion er mustshow a reas ona ble p roba bility that, but for c ou ns el’s u nre as on ab le error , t he factfi nder woul d have had rea so na ble doubt regar ding petition er’s g uilt. Stri ckland , 466 U. S. at69 5. T his rea so na ble prob ability mu st be “su fficient to unde rmine confide nce in the outcom e.” Ha rris v. Sta te , 875 S .W .2d 66 2, 665 (Ten n. 199 4).

W hen rev iew ing trial c ou ns el’s a ctio ns , this cou rt sh ou ld n ot u se the be ne fit ofhindsi ght t o second-gues s tr ial strategy and crit ici ze cou nse l’s tactics
. He llard
v. Stat e , 6 29 S.W.2d 4, 9 (Tenn. 1982). Counsel’ s all eged errors shoul d be judged at t he ti me it was ma de in light of a ll facts a nd c ircum stan ces . Stri ckland , 466 U.S . at 69 0; see Cooper , 849 S. W .2d at746.1 The tri al j udge i nformed the Pet it ioner of t he range ofpunish ment for second- degree murder as partof hi s discussi on to ensu re t hat t he Peti ti oner ful ly underst ood the p leas whi ch he was seekin g to ent er and t heir

consequences. The tri al j udge advi sed the Pet it ioner thatifhe went to tr ial he might be convi cted ofa le sser i ncluded offense, such as second-de gree murder, which car ri ed a l ight er sentence than first-degree m urder. -12- Th is two partstandard of measuri ng ineffect iv e assi stance of counsel also appli es to cl aims a ri sing outof the plea proc ess . Hill v. Lockha rt , 474 U. S. 52 (1985 ). The prej udice requirement is modifi ed so thatthe pet it ioner “must show thatther e is a reasonabl e probabi li ty t hat, butfor c ou ns el’s errors he would not have pleade d guilty and wou ld have ins isted on going to trial.” Id. at 59.

We n ote t hat under t he provi sions of t he appli cable Post -Convi cti on Proc edu re Act, a peti ti oner bears the burden of provi ng the al legat ions i n the peti ti on by a preponderance of the evide nce . See Mc Be e v. S tate , 655 S.W .2d 191, 195 (Tenn. Crim. App. 1983). In addi ti on, t he fact ual fi nd ings ofthe t ri al court are concl usiv e on appeal unl ess the evi dence in the r ecord pr eponderat es aga inst the m . State v. B uford , 666 S .W .2d 47 3, 475 (Ten n. Crim . App. 1 983 ).

W ith regar d to t he Peti ti oner’ s fi rstcontent ion, tha t his a ttorneys encouraged him to p lea d g uilty to first-d eg ree m urd er b ut d id not corre ctly inform him of t he ranges ofpunishmentofthe v ari ous possi ble offenses, we beli eve t hat the Peti ti oner has f ail ed to est abli sh thatHinson and Anderson’s repres entat ion was consti tut ional lydefi cient . I t i s tr ue, as t he P eti ti onerassert s, t hat t he tr ial court at t he guil ty p lea proc eeding i nc orrectl y advi sed the Pet it ioner thatthe ap plica ble ra n ge of p un ish m en t for s ec on d-d eg ree m urd er u nd er th e la w a s it exi sted at t he ti me of the offenses was ten to thirty yea rs im priso nm ent. 1 In fact, the appli cable range of puni shment att ha t t i me was te n to thirty-five years impriso nment
. See Te nn . Co de An n. § § 3 9-2 -21 2, 4 0-3 5-1 09 (a) ( 19 82 ). It is-13-

also tr ue thatneither H inson nor Anderson brought t he tr ial court ’s er ror to the att enti on ofth e Pe ti ti on er. Ye t both Hin son and An ders on te stified a t the p ostconvi cti on heari ng thatthe y ha d p ers on ally infor med the Petiti oner of the cor rect ranges ofpunishmentforall of t he off enses forwhich t he Peti ti onermigh t have been con victe d p rior to the gu ilty ple a p roc ee din g. O f co urs e, th e P etit io ner test if ied thathis attor neys had notinf ormed him of t he possi ble r anges of pun ishm ent. Aft er hear in g the t esti mony and eval uati ng the credibi li ty o f t he witn es se s, th e tria l judg e sp ec ifica llyfound Hi nson’s and Anderson’ s test imony to be persuasi ve. W e cannotconcl ude that t he evidence preponderates against the tr ial court’ s fi ndings.

More over, the tes tim on y of H in so n and Anderson, accredi ted bythe t ri al cou rt, reveal s thattheyspeci fi call y advi sed the Pet it ioner not t o plead gu ilt y. Pleadi ng guilty was the Petit ioner’ s own decision based on his personal reasons. The tr ial court ’s i ncorr ect st atement ofthe poss ibl e range ofpunishmentfor second-degree murder coul d onlyhave made go ing to tria l, wit h the pot enti al f or a second-degree rat her t han fi rst -degree murderconvi cti on, more attra cti ve t han ifthe cor rectrange had b ee n sta ted. T he P etitione r elec ted to plea d gu ilty nonet he less. From our r evi ew of t he record, we can onl y concl ude thatthe Peti ti onerhas fai led t o dem onstra te ei therthathis attor neys provi ded defi cient repres entat ion in th is re ga rd o r tha t the ir rep res en tatio n prej ud i ce d h i m. Ac cord ingly, h is first con tentio n lac ks m erit.

W ith regar d to t he second cont enti on, t hat Hi nson and Anderson were ineffective for fa iling to p urs ue an d d is cuss wi th t he Peti ti oner a di minished cap acity type of de fense base d on a lcohol an d dru g consumpt ion , we ag ain-14-

believe that the P etitioner has failed to estab lish that the pe rform ance ofhis att orne ys was const it uti onall y def ici ent. Hinson and Anderson test if ied atthe post- convi cti on he arin g th at th ey d iscu sse d th e P etitio ne r’s consumpti on of beer pri orto t he off enses butthathe did no t i nfor m them of any d rug u se o n the date ofthe offenses. As far as alc ohol cons umption, Hinson and Anderson agreed thatthe al cohol’ s eff ect on the Pe tition er’s m en tal st ate wo uld playonlya minor role in their defense because th e circumstances ofthe offense rebutt ed any indi cati on that t he Petiti oner was i mpai re d. Th e fac ts stipu lated to at the guilty plea proceeding rev eal thatthe off ense was deli berat elyplanned and pre cise ly carr ied out bythe P etitione r. Th e P etitione r has offere d no cred ible ev iden ce to refute those fact s. From this r ecord, we can onl y concl ude thatHinson and An de rso n’s tact ical decis ion t hat the c ons um ption of alco hol a nd its eff ect on t he Pe tition er’s mental s tat e would pl ay a minor rol e in t hei r theory of def ense was fully support ed by the f acts of t he case and was within t he range of competence demanded of attor neys i n cri minal c ases. The sec ond content ion is witho ut m erit.

W ith regard to t he third co nte ntio n, t hat Anders on was ineffect iv e in t hat he had a co nflict of int erestdue to hi s serv ice as a speci al j udge on a pri or juv enil e matter

inv olv ing t he Peti ti oner, we beli eve t hat t he Peti ti oner has fai led to demonstrat e thathe was prej udiced in anyway by Anderson’s repres entat ion, regardless of hi s prev ious s ervi ce as a speci al j udge. Bot h Hinson and Anderson test if ied at t he post- convi cti on hea ri ng thatthe Pet it ioner was aware of An de rso n’s pri or servi ce as a speci al j udge and thathe a g ree d to An de rso n’s associ ati on in the m urder c ase. T he trial court spe cifica llyfound t heir test imony to be credi ble and c oncluded t hat t he Peti ti oner had acqui esced i n A nd ers on ’s part ici pati on in hi s defense. Furt hermore, as we point ed out abov e, the trial court-15-

found thatthe Peti ti oner had made a volu ntary , pers ona l dec ision to plea d gu ilty againstthe advice of his attorneys. The trans cri pt ofthe gui lty pl ea proceedi ng cle arly confi rms Hinson’ s and Anderson’ s test imony, accredi ted bythe trial c ourt, thattheyadvi sed the Pet it ioner notto plea d gu ilty. The Petit ioner has not a ll eged any manner in whi ch Anderson’ s pri orduti es as a speci al j udge or r epresent ati on in the m urd er c as e co ntrib ute d to his dec ision to plea d gu iltyor t hat he woul d not have done so had t he sit uati on been otherwise . W e fail to see any prej udice inur ing to th e P etitio ne r as a re su lt of A nde rson’s rep resen tation. Th e third con tentio n is w ithou t me rit.

Forthe reasons setforth i n the di scussi on above, we concl ude tha t the Peti ti onerhas f ail ed to demonst rat e thatthe t ri al court er red i n denyi ng the peti ti on for post-co nviction re li ef. W e ther efor e aff ir m the judgmentof t he tr ial cou rt.

____________________________________ DAVI D H. WELLES, JUD GE

CONCUR:

___________________________________ JOHN H. PEAY , JUD GE

___________________________________ JOE G. RI LEY , JUD GE