# FILED September 30, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF CRIMINAL AP PEALS AT NASHVILL E AUGUST 1 997 SESSION

LORENZO C. WATERS ) ) C.C.A. NO. 01C01-9609-CR-00402 Appellant ) ) DAVIDSON

COUNTY VS. ) ) Hon. Ann Lacy

Johns STATE OF TEN

NESSEE ) Judge ) Appellee. ) (Post Conviction)

FOR THE AP

PELLANT: FOR THE AP PELLEE: W. CASEY RE ED JOHN KNOX WALKUP 211 Printers Alley Building Attorney Gene ral and Reporter Suite 400 Nashville, Tennessee 37201 DARYL J. BRAND Assistant Attorney Gene

ral 450 James Robertson Parkway Nashville, Tennessee 37243-0493 VICTOR JOHN SON District Attorney Gene

ral ROGER MOORE Assistant District Attorney Gene ral Washington Square Building-Suite 500 222 Second Avenue , North Nashville, Tennessee 37201

OPINION FILED:_____________________
AFFI RMED

JOE H. WALK

ER, III Sp. JUDGEOPINION

The appellant, Lorenzo C. Waters, appea ls as of right from a judgment of the trial court denying his petition for post-conviction relief, following an evidentiary hearing. Appellant allege s that he r

eceive d ineffective as sistant of counsel w

hen he e ntered a plea of g uilty to murder in the second degree a nd received a sentence of for ty y ears as a Range I

I offender.
Procedural History
Petitioner was indicted on charges of first deg ree murder and agg

ravated rape. An assistant public defender was appointed to represent the pe titioner. On May 27, 1994, the petitioner entered a plea of guilty to second degree murder, on the ne gotiated agreement that he would be s entenced as a Ran ge I I off ender to forty ye ars, and

the State would move

to dismiss the aggravated r

ape charge. Within one year of entry

of the plea, petitioner filed for post-conviction relief, alleg ing ineffective assistance of counsel. Counsel was appointed to a ssist petitioner and filed an amended petition for post-conviction relief. The trial court conducted an evidentiary hearing, and announced finding s of fact and conclusi ons. I

t determined that p etitioner failed to carry the burde

n of proof with the r

espect t o allegations of ineffective assistance of counsel. It found from testimony presented at the hearing that petitioner’s counsel fully investig ated the matter, well represented the petitioner pr ior to the entry of a plea , investig ated the case, in terview ed witnes ses, and w as dilig ent, eff ective a nd able to nego tiate a f

avorabl e plea se

ttlement. The tria

l court fu rther fo und that pe

titioner v oluntaril

y plead guilty to sec ond degree murder and that the plea was intelligently a

nd knowingly e

ntered.

Factua l Background On Octobe

r 2, 1993, police we

re called by

the live- in boy

friend o f the vic tim, Ms. Stewart. The boyf

riend had come home and found the nude body of Ms. Stewart. She had been strangled and had multiple knife wounds. Witnesses placed the petitioner try ing to break into the apartment. The petitioner signed a written waive r of his rights and told officers what he had done. Petitioner termed the multiple knife wounds and strangulation as overkill, beca use hewanted to

make ce rtain the victim wa s dead wh

en he lef t her. The

victim wa s pregn ant.

I. After petitioner was indicted on charge s of first degree murder and a ggravated rape , a senior assistant public defender, Mike Engle, was a ppointed to represent petitioner. Attorney Engle had been licensed to practice law in Tennessee for approximately twenty y ears and had served s everal

ye ars in the

Public Defender ’s Offic e. He ha d handled numerouscriminal

cases, including cases in volving c harge s of first

degre e murder s. Attorney s from the

Public Defender ’s Offic e met and discusse d the facts of the c ase with petitioner twenty-two times. Engle testified that they met with petitioner more frequently tha

n some other clients due to the seriousness of the case. The attorney s obtained full discovery f rom the state, including both the audio and video tapes of petitioner’s statements, as well as the transcripts. Mr. Eng le played the ta pes for petitioner, so that petitioner could review the tone and inflections of his statements as well as the conte nt. He discu ssed t he sta temen ts wi th pet itio ner sev eral t imes. At th e preli minar y hearing, Attorney Engle was allowed to examine witnesses about the circumstances of the statements, a nd after a thoroug h investig ation and

discussio n, Attorne

y Engle con

cluded th at there

did not exist sufficie nt lega l or fac tual gr

ounds for a motion to s uppress t

he state ments. Petitioner alleges that the attorney s failed to interview two potential witnesses. However, Attorney Engle testified that the witnesses were interviewed and that the testimony would not help the defense. One witness would have testified that he drove petitioner to the scene of the crime at approximately the time the murde r occurred. The other witness would have testified that she spoke with petitioner after the murder, before he spoke to police, and told him that there was street talk about his involvement in the murder. His attor ney s explaine d to petitio ner the p otential e xposure to c onviction

and the po ssible pu ni sh me nt s. At to rn ey E ng le te st if ie d t ha t p et it io ne r a pp ea re d t o u nd er st an d. Th e a tt or ne ys obtained petitioner’s consent to attempt plea bargain neg otiations. They were able to secure a plea bargain to second deg ree murder, rather than first deg ree, with the provision that the aggravated ra

pe charge would be dismissed. The transcr ipt of the plea proceeding was made a n
ex hi bi t t o t he po st -c on vi ct io n p et it io n h ea ri ng an d r ev ea ls th at wh en en te ri ng th e p le a o f g ui lt y, petitione r assure d the cour

t that he f ully understo od the pro ceeding s, that he was waiving hisright to

a trial, w aiving h

is right t o appea l, and ag reed to t he plea a rrang ements. H e furthe

r told the court that he had had no problems communicating with his attorney and had no complaint about the job that the attorney ha d done in this case.

II. On appea l, the tria l court’sdecision

on a petit ion for po st-convi ction relief is given th e weight of a jur

y ve rdict, a nd the fin dings of

fact ar e conclu sive on ap

peal abs ent a finding the evidence prepondera tes against the judgment. Clenny v. State , 576 S.W.2d 12, 14 (Tenn.Crim.App. 1978), cert. denied , 441 U.S.9 47, 99 S.Ct.2 170 (1979 ); Tay lor v. Stat e , 875 S.W.2d 684, 686 (Tenn.Crim.App. 1993), perm. to appeal denied(Tenn. 1994).
When a petition challenges the effective a ssistance of counsel, the petitioner has the burden of establishing (1) deficient repr esentation and (2) prejudice resulting fr om the deficiency
. Strickland v. Washington , 466 U.S. 6 68, 686 (1 984); Fredri ck v. State , 906 S.W.2d 927 (Tenn. Crim. App. 1993). Deficient representation occurs whe n counsel provides assistance that falls below the range of competence de

manded of criminal defense attorney s. Banksto n v. State , 815 S.W.2d 213, 215 (Tenn.Crim.App. 1991). Prejudice is the reasonable likelihood that, but for deficie nt representation, the outcome of the proceeding would have been different. Overton v. State , 874 S.W.2d 6, 11 (Tenn. 1994). In or der to pr ove prej udice in t

he conte xt of a gui lty p lea, the

petitione r must demo nstrate that there is a reasonable probability that, but for counsel’s errors, he would not have pleade d guilty and would ha

ve insisted on going to trial. Hill v. Lockhart , 474 U.S. 5 2, 58-59, 106 S.Ct. 366, 370, 8 8 L. E d. 2d 203 ( 1985); see Bailey v. State , 924 S.W.2d 918, 919 (Tenn.Crim.App. 1995); Wade v. Sta

te , 914 S.W.2d 97, 101 (Tenn.Crim.App.1995).

III. The petitioner has failed to establish that the evidence preponde rates against the judgment of the trial court. He did not establish that his representation was deficient, nor did he show prejudice resulting from a deficient re presentation. We agree with the trial court that the petitioner’s cla im of ineffective assistance ofcounsel i s without me rit. Acc ordingl

y, w e affir

m the tria l court’sjudgmen

t.

__________________________ JO E H. WA LKER , III Sp. JUDGE CONCUR:

_______________________ JOE G. RILEY, JUDGE

______________________ J. CURWOOD WHITT, JR., JUDGE