# FILED May 20, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE FEBRUA RY 199 8 SESSI ON

BILLY EUGE NE COOK, ) ) No. 03C01-9709-CR-00390 Appe llant, ) ) Knox C ounty vs. ) ) Honorable Mary Beth Leibowitz, STATE OF TENNESSEE, ) Judge ) Appellee. ) (Post-Convi ction)
FOR THE APPELLANT: FOR THE APPELLEE: MARK E. STE PHENS JOHN KNOX WALKUP Public Defender Attorney General& Reporter JULIA AUER JANIS L. TURNER Assistant Public Defender Coun sel for State 1209 Euclid Avenue Cordell HullBldg., Second Fl oor Knoxvill e, TN 37921 425 Fifth Avenu e, North Nashvill e, TN 37243-0493 RANDALL E. NICHOLS Distri ct Attorney General STEVE GARRETT Assistant Distri ct Attorney City-County

Bldg. Knoxvill e, TN 37902
OPINION FILED:____________________
AFFIRMED PURSU ANT TO RU LE 20 WILLIAM B. ACREE, J R. SPECI AL JUDGE1 The Post-Conviction Act came into eff

ect on July 1, 1986. The petitioner had until July 1, 1989 to file this petition. Abston v. State, 749 S.W.2d 487, 488 (Tenn.Crim.App. 1988). OPINI ON The petition er, Billy E ugen e Coo k, app eals a s of righ t the trial c ourt’s dismiss al of his pe tition for post-c onviction re lief. The petiti oner entered gui lty pl eas on March 26, 1982, to burglar y in the third degr

ee (two cases) and grand larcen y. He recei ved concurrent sentences of three to ten years. The pet itioner was later f

ound to be an habit ual crimi nal by the Da vidson C ounty C riminal C ourt and was se ntence d to life impr isonm ent. Thes e convictio ns were underlyin g convictio ns for the h abitual crim inal sente nce. The petiti oner fil ed this pet ition onJune 30, 1989. 1 Following an e videntiary hearing held on May 1, 1997, t he trialcourt dis missed the petition. We affirm the judgment of the tri al judge. The petiti oner alleges that he di d not recei ve effect ive assi stance of counsel when he pled guilty . Specifi cally, the petitioner contend s that hi s trial counsel did not

fully advise hi m about the HabitualCriminal Act . He claims t hat he pled guil ty because he bel ieved if he were found gui lty, he could be decl ared to be a ha bitual crim inal. Prior to the ac cepta nce o f the gu ilty pleas , the dis trict attor ney ge neral to ld the court i n the presence of the petitioner that

the petitioner was not subject to the Hab itual Cr imina l Act. T he trial c ourt ad vised th e petitio ner tha t if he sh ould com mit an other fe lony, he would be su bject to being tried as an ha bitual c rimina l. At the post- convicti on hearing, the petiti oner admitted that his t rial coun sel told him h e did not th ink that the State co uld conv ict him as an hab itual crimina l. He the n gave th is testimo ny:

Mr. Cook: But thinking i s not for sure. So, I don’t want to take a chance on a life sentence instead of the three to ten years senten ce. I would rather ha d the thre e to ten ye ars sen tence tha n to take a chance on thi nking you know. If he sai d, “Well, I know he can’t c onvict y ou on a life sen tence ,” I would have to ok it to tria l.

The Court: He did adv ise you, t hough, that hedidn’t think th eycould convi ct you on an habi tual cri minal charge? Mr. Cook: He said h e didn’t think, but he wasn’t

for sure. In the post-convict ion proceedi ng, the trial j udge found that the petitioner was fu lly advise d of his rights a nd of th e effec t of the H abitua l Crim inal Act upon his conv iction . The tri al judge f urther found that he entered his pl ea freely , voluntarily

and knowingly , and that the advice gi ven him by his trialcounsel was no t at fault. “In post- convicti on relief proceedings, the petitioner has t he burden of proving the allega tions in his petition by a prep onderanc e of the evidenc e.” McBe e v. State , 655 S.W.2d 191, 195 (Tenn.Cr im.App. 1983). Furthermore, the factual fi ndings of the tri al court and hearings “are concl usive on appeal unless the evidence preponde rates against the judgmen t.” State v. Buford , 666 S.W.2d 473, 475 (Tenn.Cri m.App. 1983). Post-convict ion reli ef is avai lable onl y when the convicti on or sentence i s void or v oidable because of

the abridgement

in any way of any righ t guaran teed by th e Con stitution of T ennes see or o f the Unite d States
. Snea d v. State , 942 S.W .2d 567, 568 (Tenn.C rim.App. 199 6). In the cas e at bar, the evidenc e supp orts the find ings of the trial court. Furthermore, the petiti oner has neit her alleged nor proved t he violat ion of any right guar

anteed to hi m by the Constit ution of the United States or of Tennessee. We find that the appel lant was not denied the ef

fectiv e assistance of counsel in r

egard to his

pleas of gui lty and t hat his pl eas were voluntarily and knowingly entered. The judgment of the t rial cour t is af firmed in accordance withRule 20, Tennessee Court of Criminal Appeals.

___________________________________ WILLI AM B. A CREE, JR., SPECI AL JUDGE CONCUR:

____________________________________ JERRY L . SMI TH, J UDGE

____________________________________ THOMAS T. WOODALL, J UDGE