FILED

May 20, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

FEBRUARY 1998 SESSION

BILLY EUGENE COOK, )

) No. 03C01-9709-CR-00390

Appellant, )

) Knox County

vs. )

) Honorable Mary Beth Leibowitz,

STATE OF TENNESSEE, ) Judge

)

Appellee. ) (Post-Conviction)

FOR THE APPELLANT: FOR THE APPELLEE:

MARK E. STEPHENS JOHN KNOX WALKUP

Public Defender Attorney General & Reporter

JULIA AUER JANIS L. TURNER

Assistant Public Defender Counsel for State

1209 Euclid Avenue Cordell Hull Bldg., Second Floor

Knoxville, TN 37921 425 Fifth Avenue, North

Nashville, TN 37243-0493

RANDALL E. NICHOLS

District Attorney General

STEVE GARRETT

Assistant District Attorney

City-County Bldg.

Knoxville, TN 37902

OPINION FILED:____________________

AFFIRMED PURSUANT TO RULE 20

WILLIAM B. ACREE, JR.

SPECIAL JUDGE
1The Post-Conviction Act came into effect 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).

OPINION

The petitioner, Billy Eugene Cook, appeals as of right the trial court’s

dismissal of his petition for post-conviction relief. 

The petitioner entered guilty pleas on March 26, 1982, to burglary in the

third degree (two cases) and grand larceny. He received concurrent sentences of

three to ten years. The petitioner was later found to be an habitual criminal by

the Davidson County Criminal Court and was sentenced to life imprisonment. 

These convictions were underlying convictions for the habitual criminal sentence. 

The petitioner filed this petition on June 30, 1989.1 Following an evidentiary

hearing held on May 1, 1997, the trial court dismissed the petition.

We affirm the judgment of the trial judge.

The petitioner alleges that he did not receive effective assistance of

counsel when he pled guilty. Specifically, the petitioner contends that his trial

counsel did not fully advise him about the Habitual Criminal Act. He claims that

he pled guilty because he believed if he were found guilty, he could be declared

to be a habitual criminal. 

Prior to the acceptance of the guilty pleas, the district attorney general told

the court in the presence of the petitioner that the petitioner was not subject to the

Habitual Criminal Act. The trial court advised the petitioner that if he should

commit another felony, he would be subject to being tried as an habitual criminal.

At the post-conviction hearing, the petitioner admitted that his trial counsel

told him he did not think that the State could convict him as an habitual criminal. 

He then gave this testimony: 

Mr. Cook: But thinking is not for sure. So, I don’t want to take

a chance on a life sentence instead of the three to ten years

sentence. I would rather had the three to ten years sentence than to

take a chance on thinking you know. If he said, “Well, I know he

can’t convict you on a life sentence,” I would have took it to trial.

The Court: He did advise you, though, that he didn’t think they
could convict you on an habitual criminal charge?

Mr. Cook: He said he didn’t think, but he wasn’t for sure.

In the post-conviction proceeding, the trial judge found that the petitioner

was fully advised of his rights and of the effect of the Habitual Criminal 

Act upon his conviction. The trial judge further found that he entered his plea

freely, voluntarily and knowingly, and that the advice given him by his trial counsel

was not at fault.

“In post-conviction relief proceedings, the petitioner has the burden of

proving the allegations in his petition by a preponderance of the evidence.” 

McBee v. State, 655 S.W.2d 191, 195 (Tenn.Crim.App. 1983). Furthermore, the

factual findings of the trial court and hearings “are conclusive on appeal unless

the evidence preponderates against the judgment.” State v. Buford, 666 S.W.2d

473, 475 (Tenn.Crim.App. 1983). Post-conviction relief is available only when the

conviction or sentence is void or voidable because of the abridgement in any way

of any right guaranteed by the Constitution of Tennessee or of the United States. 

Snead v. State, 942 S.W.2d 567, 568 (Tenn.Crim.App. 1996).

In the case at bar, the evidence supports the findings of the trial court. 

Furthermore, the petitioner has neither alleged nor proved the violation of any

right guaranteed to him by the Constitution of the United States or of Tennessee.

We find that the appellant was not denied the effective assistance of

counsel in regard to his pleas of guilty and that his pleas were voluntarily and

knowingly entered.

The judgment of the trial court is affirmed in accordance with Rule 20,

Tennessee Court of Criminal Appeals.

___________________________________

WILLIAM B. ACREE, JR., SPECIAL JUDGE

CONCUR:

____________________________________

JERRY L. SMITH, JUDGE

____________________________________

THOMAS T. WOODALL, JUDGE