# FILED
August 17, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE JUNE SESSION, 1998

FREDRICK L. BROWN, ) ) No. 03C01-9701-CR-00034 Appellant ) ) HAMILTON COUNTY vs. ) ) Hon. Stephen M. Bevil, Judge STATE OF TENN ESSEE, ) ) (Post-Conviction) Appellee )
For the Appellant : For the Appellee : Ardena J. Garth John Knox Walkup District Public Defender Attorney General and Repor ter Donna Robinson Mi ller Todd R. Kelley Asst. District Publi c Defender Assistant Attorney Gener al Suite 300 - 701 Cherry S treet Criminal Justice Div ision Chattanooga, TN 37402 450 James Robertson Parkwa y Nashville, TN 37243-0493
William H. Cox III District Attorney General Bates Bryan Asst. District Attor

ney General 600 Market Street, Suite 300 Courts Building Chattanooga, TN 37402

OPINION FILED: AFFIRMED
David G. Hay

es Judge1 Additi onally , the Stat e agreed not t

o pursue aggravated assault char ges against t he eighteen y

ear old appel lant whi ch he allege dly committed whi le a juveni le. 2 OPINION
The appellant, Fredrick L. Brown, Jr., appeals the post-conviction court’s denial of his petition for post-conviction relief. On A pril 23, 1993, pursuant to a pl ea agreement, the appellant pled guilty to two counts of first degree murder and , in accordance with the State’ s recommendation, received t wo concurrent sentences of life imprisonment. A charge of aggravated robbery was dismissed. 1 On appeal, the appellant argues that ineffectiv e assistance of counsel caused hi m to enter uninformed and involuntary guilty pleas.

After revi ew, we affi rm.

BACKGROUND

The record before us establishes that, on April 27, 1993, the appel lant entered guilty pleas to the September 5, 1991, murder of Samuel R . Scott and the March 24, 1992, murder of Corey C. Strickland. The vi ctim, Scott, was shot se ven times while attempting to flee from the appellant. Three wi tnesses observed the shooting. The second vic tim, Strickland, was murdered by the appellant dur ing the course of a robbery. Agai n, eyewitnesses w ere present at the murder scene

.
The appellant’s petition for post-conviction relief w as filed on February 8, 1994.3 ANAL YSIS

When a claim of ineffective assistance of counsel is raised, the appellant bears the burden of showing that (a) the services rendered by trial counsel were deficient and (b) the deficient per formance was prejudicial. Stricklan d v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984); Cooper v. State , 849 S.W.2d 744, 746 (T enn. 1993). With respect to de ficient performance, the court must decide whether or not counsel’s performance was w ithin the range of competence demanded of attorneys in cr iminal cases. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). When a defendant makes a claim of ineffectiv e counsel within the context of a guilty plea, the defendant must demon strate a reasonable probability that, but for c ounsel’s deficiency, the defendant would not have pleaded guilty and would h ave insisted on going to trial. Hill v. Lockhart , 474 U.S. 52, 59, 106 S.Ct. 366, 370 (1985); Manning v. State , 833 S.W.2d 635, 637 (Tenn.Crim.App. 1994).
In his petition, the appellant claims that his two pl eas to first degree murder were involuntary

because his trial counsel misled him as to the length of sentences that would be imposed. Specifically, in his petition he alleges: During the plea negotia tions on the two murder cou nts, the petitioner was advised by his attorney that the prosecution was willing to settle the case(s) for a thirty

-six (36) year

sentence in exchange for the petitioner’s guilty

plea. Unknown to the petitioner, this 36 year sentence was in fact a life ter m that offered the petitioner no opportunities for a release consideration until he had served at least thirty-six years in the Tennessee Department of corrections. (sic)
The appellant did not testify at the post-conviction hearing. The appellant’s father, Fredrick Brown, Sr., and his grandmother, Louise Minafee, testif ied on behalf of the appellant. Also testifyi ng was appellant’s tr ial counsel, Jerry Summers. The post-conviction court

’s summarization of the respective witnesses’ testimony is as follows:4 Mr. Brown, Sr. testified that he was under the i mpression that petitioner was getting thirty-six years at thirty percent (30%). He also testifi ed that t he petit ioner t old him h e was g etting

two (2 ) life sentences. He also testified that there was conver sation with the petitioner about thirty-

six (36) and six

ty (60) years. Ms. Minafee testified that she talked to petitioner about plea ding guilty to thirty-six years. Neither Mr. Brown, Sr. nor Ms. Minafee was present in court when the p etitione r entered his plea o f guilty. Attorney, Jerry Summer s, testified that he had met with the petitioner and the petitioner’s father. H e never specifically represented to the petitioner exactly how much time he would ser ve because of the changes in the law, the overcrowding of the penitentiary, and other factors. He did testify that he thought the petitioner w ould “flatten out” the sentence in thirty-

six (36) years, and it might be less than th at. It was Mr. Summers’ understanding that a life sentence meant thirty-six (36) years. He further

testified that in his year s as an attorney, he had never plead anyone to firs t degree murder before, but the fact that there were two (2)

murder cases against the petitioner was a strong incentive for the petitioner to plead. The transcript of the guilty plea hearing clearly

reflects that, at least on four specifi c occasio ns, appe llant was in formed that he wou ld be plea ding to two concurrent life sentences. Those instances occurred duri ng (1) the district attorney general’s recommendation of punis hment, (2) the trial court ’s advisement of the penalties provided by

law, (3) the statement by trial counsel before sentenci ng, and (4) the imposition of sentences by the trial judge.
We do not view the appellant’s respons es, which were enter

ed under oath at the plea hearing, as hollow expressions whic

h may later be casually disregarded and held for naught. Indeed, we conclude, as observed by the post-conviction co urt, that “the transcript of the original plea removes any ambiguity as to the petitioner’s plea of guilty.”
The trial court, at the gui lty plea hearing, and the post-conviction cour t found that the appellant’s guilty pleas were knowingly and voluntarily entered. On appeal, this court is bound by the post-conviction court’s findings of fact unless the evidence in the record preponderates against those findings. Clenny v. State , 576 S.W.2d 12, 14 (Tenn.Crim.App. 1978). The record is clear that the app ellant was repeatedly5

advised that he would be receiving sentences of life imprisonment for each of the murders t o which he p led guilty.

After review of the recor d, we conclude that the ev idence does not preponderate against the post-conviction court’s findings.
Accordingly, the j udgment of the post-convicti on court dismissing the appellant’s petition is affirmed.

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

_______________________________ JOHN H. PEAY, Judge

_______________________________ JOSEPH M. TIPT ON, Judge