IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs December 14, 2010

JONATHAN K. PRICE v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Rutherford County

No. F63728 David Bragg, Judge

No. M2010-00242-CCA-R3-PC - Filed May 4, 2011

On October 11, 2006, the petitioner, Jonathan K. Price, pleaded guilty to aggravated

burglary, solicitation of a minor, and two counts of statutory rape. He received a negotiated

sentence of six years on probation. The petitioner filed a petition for post-conviction relief

alleging ineffective assistance of counsel, and the post-conviction court denied relief. On

appeal, the petitioner argues that trial counsel provided ineffective assistance, and thus, he

did not enter his guilty pleas knowingly, intelligently, and voluntarily. Following our review

of the record, the parties’ briefs, and applicable law, we affirm the denial of post-conviction

relief.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J.C. MCLIN, J., delivered the opinion of the court, in which DAVID H. WELLES and ROBERT

W. WEDEMEYER, JJ., joined.

Guy R. Dotson, Jr., Murfreesboro, Tennessee, for the appellant, Jonathan K. Price.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney

General; William C. Whitesell, Jr., District Attorney General; and Jude Santana, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

Background

Guilty Plea

A Rutherford County grand jury indicted the petitioner, Jonathan K. Price, in a tencount sealed indictment. On July 10, 2006, the petitioner pleaded guilty to solicitation of a

minor, aggravated burglary, and two counts of statutory rape. At the guilty plea hearing, the
state submitted that it would have proved the following facts as stated in this court’s opinion

on direct appeal, had the matter proceeded to trial:

[T]he facts of the case are that approximately [May 5, 2004], the minor victim,

who was 17 years old at the time, was at the [petitioner]’s house. According

to her, the [petitioner] asked her to have sex with him at that point on that day.

[Those] would be the facts for the solicitation. It was prior to the bringing of

this indictment, and [the [petitioner]] was more than ten years older than her

at the time. His birthday is [November 3, 1973], and the victim was 17.

On the other incidents on [May 7, 2004], the victim, also 17 years of

age, was at her home alone. Her parents were not there. The [petitioner] came

into the residence without permission from the owners of the residence. And

the victim had just taken a shower, was wrapped in a towel. There [were]

differences between-she says that he took the towel off of her and had sex with

her and mentioned something about if she wanted to have a quickie.

Initially, [the petitioner] said that he was never in the residence and that

nothing had happened. However, there was a DNA sample taken pursuant to

a search warrant, and he was found to be a match of the DNA that was found

in her room on the bed where she said that the sex acts took place.

The victim has never denied the sexual acts. The [petitioner] had

denied them but at this point is going to plead guilty to two counts of statutory

rape. There was an evaluation done. The victim in this case had severe brain

injury from an accident in 2000. There are a lot of medical records probably

in her court file as well as our files documenting the injury. There is some

discrepancy between doctors as far as whether or notshe could have consented

based on that injury. One doctor that the [petitioner] has contacted from

Vanderbilt says in a report that he felt she was competent to consent, and then

her doctors say that there are reasons to believe she was not competent to

consent.

I’ve talked to the victim this morning, and what they would like to

do-there were actually-I believe there were two instances, one of oral sex or

digital sex and one of vaginal sex with the [petitioner], constituting the two

acts.

Jonathan Keith Price v. State, M2007-02434-CCA-R3-PC, 2008 WL 4414739, at * 2 (Tenn.

Crim. App., at Nashville, Sept. 29, 2008). On October 31, 2006, the petitioner moved the

trial court for leave to withdraw his guilty pleas, and the trial court denied the motion. The

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petitioner appealed the trial court’s denial, and this court affirmed the judgments of the trial

court. Id. at *1.

Post-Conviction

On September 30, 2009, the petitioner filed a petition for post-conviction relief. The

post-conviction court held a hearing on the petition for post-conviction relief on December

18, 2009. At the hearing, the parties presented the following evidence:

Trial counsel testified that the petitioner retained him in 2004 before the state obtained

the search warrant and filed charges against him. He discussed the facts of the case with the

petitioner and advised the petitioner of the possible charges that the state could file against

him. Trial counsel and the petitioner also discussed how the petitioner should handle the

search warrant. They were not certain whether the state would charge the petitioner, and

they had not negotiated a plea at that time. Trial counsel said that he began negotiating the

petitioner’s case with the state before the first “discussion date,” and the state made their first

offer on the petitioner’s “plea day.”

At the time of the offer, the parties had filed their discovery, and trial counsel had

written summaries of the witnesses’ statements. The discovery also contained a DVD

recording of the detective’s interview with the victim. Trial counsel reviewed the discovery

that he had received with the petitioner. While reviewing the discovery and the ten-count

indictment, trial counsel advised the petitioner of the range of punishment for the offenses.

Trial counsel testified that he also advised the petitioner “that separate penetrations

could constitute separate charges, which is what [he] believed to be the law at the time.” He

said that the state had “alternative theories. It was kind of a complicated indictment in that

some of the counts were based on [the state] saying it was not consensual, and others having

to do with mental defect.” Trial counsel said that the petitioner advised him that the rapes

occurred on one date only. Trial counsel did not recall the discovery alleging oral sex, but

he did recall allegations of “digital penetration and penile/vaginal sex.” Trial counsel did not

review the transcript of the petitioner’s guilty plea hearing. He stated that he remembered

the guilty plea hearing “in principle” but not verbatim. Trial counsel did not recall whether

the state mentioned oral sex during the plea hearing. Trial counsel said that he advised the

petitioner of what he believed to be the law, “which [was] that if there were separate and

distinct penetrations it could support independent counts” but did not discuss specific cases

with the petitioner.

Trial counsel testified that he and the petitioner also discussed the aggravated burglary

charge, and stated that he “believed that the burglary charge was one of the weakest counts

in the indictment.” He explained the issue with the aggravated burglary count was whether

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the petitioner’s initial entry was unlawful. He said that he and the petitioner discussed the

state’s strengths and weaknesses for each count of the indictment.

Trial counsel recalled that two counts of the indictment cited the statute for aggravated

rape; however, the facts alleged in the indictment did not support that charge. He stated that

he advised the petitioner that on the face of the indictment it appeared that the state had

charged him with two counts of aggravated rape and two counts of rape, but there was no

factual basis for the charges of aggravated rape. Trial counsel also discussed concurrent and

consecutive sentencing with the petitioner and stated that he thought the petitioner

“understood his exposure.”

During the plea negotiations, the state conveyed an offer that involved a suspended

sentence. Trial counsel said that the suspended sentence would have been a permanent

conviction that appeared on the petitioner’s record. Trial counsel obtained an expert

regarding the victim’s mental status and filed motions based upon the expert’s report. On

the date of the motion hearing, the state made another plea offer which the petitioner

accepted. Trial counsel said that during the plea negotiations he made counter offers for the

petitioner to serve his sentences on probation under Tennessee Code Annotated section 40-

35-313. Trial counsel stated that the closest that the state came to his counter offer was “to

allow [the petitioner] to plead [to] the charges that were [Tennessee Code Annotated section

40-35-313] eligible, and allow [for a] hearing” before the trial court. Trial counsel further

stated that he made a counter offer that involved the petitioner “not pleading on the burglary

charge and . . . one count of statutory rape, but the state rejected that offer.” He stated that

during the negotiations, he “never counter[]offered anything that was going to result in a

permanent conviction.” Trial counselsaid that he conveyed the state’s offers to the petitioner

and discussed their counter offers with the petitioner. Trial counsel believed that the

petitioner understood their discussion about the plea agreement and said that he would not

have allowed the petitioner to plead guilty if the petitioner did not understand the agreement.

When asked whether he believed there was a factual basis for the plea agreement, trial

counsel answered, “[I]t’s a client decision. [A]ll along [the petitioner] had told me that he

believed [the victim] was of age. And so, . . . he pled best interest. I conveyed the offer and

I explained the rights.”

Trial counsel testified that the facts that the petitioner had told him did not constitute

all of the offenses to which he pleaded guilty. Trial counsel said that he had “misgivings .

. . about the burglary charge” because there was an issue about whether the victim had the

capacity to consent. He also said that regarding the rape count, he did not believe that the

state’s theory that the victim did not consent was well supported by the facts. He recalled

that the state had an expert who was going to testify that the victim had head injuries that

caused cognitive deficiencies; however, the defense expert was going to testify that the

victim could have consented. Trial counsel did not review the report that the state’s expert

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prepared for trial. However, trial counsel said that he reviewed the victim’s treatment

records and stated that his opinion was that the victim’s injuries did not rise to a level that

affected her capacity to consent.

On cross-examination, trial counsel testified that he had been an attorney since 1996,

and he had worked on “quite a few sex offender cases.” He stated that he was familiar with

the law concerning sex offender cases. The petitioner’s sister-in-law was in law school

during the petitioner’s trial, but trial counsel said that he was unaware that she advised the

petitioner. Trial counsel said that he and the petitioner’s sister-in-law discussed the

petitioner’s case. According to trial counsel, the petitioner’s sister-in-law told him that “she

had avoided discussing the facts of the case with [the petitioner.]” Trial counsel primarily

spoke with the petitioner’s sister-in-law after the sentencing hearing and after a probation

violation warrant had been served. Trial counsel said that he was concerned because the

deadline for filing the petitioner’s notice of appeal was approaching; however, the

petitioner’s sister-in-law informed him that another attorney would be taking over the case.

Trial counsel testified that between the date of the petitioner’s plea and the sentencing

hearing, he filed a motion to set aside the petitioner’s plea.

Trial counsel was aware that the petitioner initially claimed that he never entered the

victim’s home. He stated that the police found the defendant’s DNA on a pillowcase in the

home, which showed that he was in the victim’s home. Trial counsel said that the state had

“significant medical records” that documented the victim’s brain injury and that the records

showed that the victim almost died of the injury. Trial counsel said that the victim’s parents

were not home during the incident and had not given the petitioner permission to enter their

home; however, “they were friends and had been in each other’s homes before that day.”

Trial counsel stated that he and the petitioner did not discuss any previous sexual encounters

between the victim and the petitioner.

Trial counsel recalled going through the “normal plea colloquy” with the petitioner

on the day of the plea. He also recalled the trial court asking the petitioner if he wanted to

waive his rights. Trial counsel did not remember whether the petitioner said that he

understood the law concerning the age for statutory rape. Trial counsel did remember,

however, that the trial judge asked the petitioner if he understood that he would decide

whether the petitioner received a suspended sentence at the sentencing hearing. He also

remembered the trial judge telling the petitioner that the statutory rape law had changed and

asking the petitioner whether he discussed those changes with trial counsel. Trial counsel

stated that his recollection was that the trial judge also informed the petitioner during the plea

hearing that he would decide whether the court would require him to register as a sex

offender at his sentencing hearing.

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When asked whether he should have done anything differently in representing the

petitioner, trial counsel answered, “In light of where we landed now, I wish things had gone

differently. [B]ut in terms of how the case was handled, . . . part of me wishes we tried the

case, but that’s hindsight.” He said that it was the petitioner’s decision whether to try the

case or not. Trial counsel stated that the state had a large amount of material regarding the

victim’s mental condition. Trial counsel further stated that the petitioner asked him to file

a motion to withdraw his guilty plea before the sentencing hearing and before he violated his

probation.

On redirect examination, trial counsel testified that he advised the petitioner that the

judge would decide whether he received probation and, if he received probation, the court

would set the rules. Regarding the issue of whether the petitioner would have to register as

a sex offender, trial counsel said,

my recollection from the sentencing hearing was that [the trial judge] made

that a condition of the probation, sort of regardless of whether or not it was

mandatory. So no, I didn’t tell him that it was definitely going to be part of

probation if he got probation. I told him that . . . was part of what was going

to be decided at the [sentencing hearing].

The petitioner, Jonathan K. Price, testified that he retained trial counsel to represent

him in defense of several charges. He stated that he discussed the facts of the case with trial

counsel from both his view and the state’s view. According to the petitioner, trial counsel

told him that the state’s evidence was his DNA on the towel that the victim was wearing and

the victim’s mental condition. The petitioner said that he told trial counsel that the victim

“wasn’t going to be coming in and saying she’s severely handicapped. She wasn’t going to

be rolling in on a wheelchair and on oxygen tanks and not being able to speak,” which is

what he thought trial counsel was implying.

The petitioner watched his recorded police statement with trial counsel, and he

reviewed the victim’s statement and medical records. The petitioner said that he and trial

counsel did not discuss what the state had to prove to convict him. He said that trial counsel

only told him the charges that the state filed against him and the time that the charges carried.

The petitioner later testified that he only recalled discussing the statutory rape counts with

trial counsel and said that he asked trial counsel “on several occasions how in the world

[could the state] charge [him] multiple times for one act[.] And [trial counsel’s] answer

every time . . . was, they can do it.” He stated that trial counsel never discussed a defense

strategy or his constitutional rights with him.

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The petitioner stated that he believed that the facts alleged by the state during the plea

hearing were “very much” in error. When asked why he went through with his guilty plea,

the petitioner answered,

Because I had never been in trouble before. . . . I know that probably

doesn’t hold any water, but . . . I was just overwhelmed. Okay? Because I

didn’t . . . know I did anything wrong.

When [trial counsel] came to me with the plea agreement that day in the

room. . . that’s when I was aware of the aggravated burglary. I was like . . .

I’m not guilty of this. And he goes, I understand that . . . but just go ahead and

agree to it because you’ll get six years probation. He goes, you got . . . an

excellent military record, you had a good work history, you have no criminal

record. And at that time he knew I was financially broke. Okay? So he said,

he goes, you won’t have to spend any more money. All right. Which all made

sense to me. He goes, if you accept this plea agreement, we’ll go in there, I’ll

get diversion , and we’ll argue the facts of the rape because . . . I don’t think

that applies.

The petitioner said that trial counsel did not tell him that he could enter a plea without

pleading guilty. He said that when the judge asked him why he was pleading guilty he

answered that his pleading guilty was all he and trial counsel had talked about. He said that

“he didn’t agree with it, but . . . [he] was [thirty] years old and . . . could do six years on

probation.” The petitioner did not think that he would have violated his probation because

he served four years in the Marine Corps and thought serving six years on probation would

be easier than his Marine Corps service.

The petitioner said that he asked trial counsel why he was going to plead guilty to

crimes that he did not commit, and trial counsel told him to tell the judge that he was

accepting the plea in his best interest. He stated that he did not know what a best-interest

plea was and said that trial counsel told him that if he went to trial and the jury convicted

him, the judge would sentence him to thirty years.

The petitioner testified that he entered the plea without knowing what a best-interest

plea was and without knowing that the state was going to charge him multiple times for

statutory rape because he thought that trial counsel was protecting his rights, but later

realized it was a “facade.” The petitioner said that trial counsel told him that he would take

the case to trial if he wanted to “push it.” However, he further said that trial counsel did not

think it was a good idea to try the case and recommended that the petitioner take the plea.

The petitioner stated that based on trial counsel’s recommendation, he accepted the plea

offer.

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On cross-examination, the petitioner testified that he recalled telling the police that

he did not go into the victim’s home and rape her. He denied that the police found his DNA

on the bed that the victim alleged the sex act occurred and said that the DNA was found on

the towel that the victim was wearing when she flashed him. The petitioner stated that he did

not see the victim’s medical records, and the only record that he saw was related to when the

victim had a conflict with her parents and attempted suicide.

The petitioner recalled that at the plea hearing the state said that the petitioner “agreed

to plead to one count of aggravated burglary and to be sentenced as a standard 30 percent

offender to [the Tennessee Department of Correction] for six years[.]” He also recalled the

state announcing that he agreed to plead guilty to one count of solicitation of a minor. The

petitioner testified that the state said something about the court’s sentencing him to six years

for the aggravated burglary and the other sentences running consecutive to the burglary

sentence. The petitioner “vaguely” remembered the prosecutor saying that the petitioner

wanted a sentencing hearing to ask for judicial diversion . The petitioner recalled that after

the state announced the facts underlying the charges he told the judge that he agreed with

them. He also recalled telling the judge that he had been placed under oath and that he

understood that he had the right to not plead guilty, the right to an attorney, and the right to

cross-examine witnesses on his behalf. He said that trial counsel told him the judge would

ask all of those questions and that he was “just to go through the motions.” The petitioner

did not recall the trial judge going through each specific count of the indictment with him nor

did he recall telling the judge that he understood the charges. He said that he only recalled

the judge talking about the aggravated burglary charge.

The petitioner said that he had a copy of the transcript from his plea hearing, and he

had an opportunity to review the transcript. He said that he did not disagree that he

answered, “[Y]es, sir” when the judge asked if he understood the charges but said that he

later realized that he was “ignorant” at the time. The petitioner agreed that he answered yes

when the trial judge asked if he understood the maximum and minimum sentenced he could

have received, the state’s burden of proof and that he could have a sentencing hearing. He

also agreed that he told the judge that he entered a plea of guilty because it was in his best

interest but said that was what trial counsel told him to say. The petitioner told the trial judge

that no one forced or coerced him into pleading guilty and that he was pleading guilty freely

and voluntarily. The petitioner also told the trial judge that he “felt like he understood what

[he was] doing.” He recalled telling the judge that he wanted to plead guilty and that he was

satisfied with trial counsel’s representation.

The petitioner remembered the state questioning him at the plea hearing after the trial

judge had questioned him. The petitioner admitted that he answered yes when the state asked

him whether he understood the change in the statutory rape law and whether he and trial

counsel discussed those changes. The petitioner also answered yes when the state asked him

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whether he understood that “under the new law if you are not ten years older than the victim

you would not be on the sexual registry.” The petitioner remembered saying that he was

more than ten years older than the victim, but he said that he and trial counsel discussed

getting the victim’s birth certificate to prove her age with trial counsel. At the plea hearing,

the state asked the petitioner whether anyone promised him that he would not be on the sex

offender registry, and the petitioner answered no. The petitioner was aware that he would

possibly have to register as a sex offender.

The petitioner testified that he and his sister-in-law, who was in law school at the time

of the plea hearing, discussed the petitioner’s need to find evidence to contradict the state’s

theory of the case. He said that she had first called him after the indictment, and he had

talked to her about his case three or four times. The petitioner admitted that he stated that

he penetrated the victim with both his penis and finger. However, he testified that he only

penetrated the victim digitally to facilitate the penile penetration.

On redirect examination, the petitioner testified that he would not have accepted the

plea offer if he and trial counsel had gone over all of the elements of the crimes. He also

testified that he would not have entered a best interest plea if he had understood what a best

interest plea was.

After hearing the evidence, the post-conviction court took the case under advisement.

On January 5, 2010, the post-conviction court entered a written order denying postconviction relief. In its order, the court found that the petitioner failed to “show any error

of his trial counsel” and denied the petitioner post-conviction relief. The petitioner appeals

the court’s denial of post-conviction relief.

Analysis

On appeal, the petitioner argues that trial counsel was ineffective for advising the

petitioner “to plead guilty to charges [about] which [trial counsel] himself had serious

misgivings.” In addition, the petitioner claims that trial counsel did not properly advise him

about his statutory rape and burglary charges. The state responds that the petitioner has

failed to show that but for trial counsel’s errors, he would not have pleaded guilty.

The burden in a post-conviction proceeding is on the petitioner to prove his grounds

for relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f). On appeal,

this court is bound by the post-conviction court’s findings of fact unless the evidence

preponderates against those findings. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). Our

review of the post-conviction court’s factual findings is de novo with a presumption that the

findings are correct. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001)01). Our review

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of the post-conviction court’s legal conclusions and application of law to facts is de novo

without a presumption of correctness. Id.

When determining the knowing and voluntary nature of the guilty plea, the standard

is “whether the plea represents a voluntary and intelligent choice among the alternative

courses of action open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31 (1970).

See also State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999)9). The reviewing court must

look to various circumstantial factors, including:

the relative intelligence of the defendant; the degree of his familiarity with

criminal proceedings; whether he was represented by competent counsel and

had the opportunity to confer with counsel about the options available to him;

the extent of advice from counsel and the court concerning the charges against

him; and the reasons for his decision to plead guilty, including a desire to

avoid a greater penalty that might result from a jury trial.

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). In order for a guilty plea to be

voluntary, the petitioner must have an understanding of the charges against him and the

consequences of pleading guilty, including “the sentence that he will be forced to serve as

the result of his guilty plea and conviction.” Id. at 905. A petitioner’s solemn declaration

in open court that his or her plea is knowing and voluntary creates a formidable barrier in any

subsequent collateral proceeding because these declarations “carry a strong presumption of

verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977).

To establish the ineffective assistance of counsel, the petitioner bears the burden of

proving that (1) counsel’s performance was deficient and (2) the deficient performance

prejudiced the defense rendering the outcome unreliable or fundamentally unfair. Strickland

v. Washington, 466 U.S. 668, 687 (1984). See also Arnold v. State, 143 S.W.3d 784, 787

(Tenn. 2004). Deficient performance is shown if counsel’s conduct fell below an objective

standard of reasonableness under prevailing professional standards. Strickland, 466 U.S. at

688. See also Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). (establishing that

representation should be within the range of competence demanded of attorneys in criminal

cases). A fair assessment of counsel’s performance “requires that every effort be made to

eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s

challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”

Strickland, 466 U.S. at 689. See also Nichols. v. State, 90 S.W.3d 576, 587 (Tenn. 2002).

Deference is made to trial strategy or tactical choices if they are informed ones based upon

adequate preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The fact that a

particularstrategy or tactical decision failed does not by itself establish ineffective assistance

of counsel. Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996). Once the petitioner proves

that counsel’s representation fell below a reasonable standard, the petitioner must also prove

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prejudice. Strickland, 466 U.S. at 694. In relation to a guilty plea, the petitioner must show

a reasonable probability that, but for the errors of his counsel, he would not have pled guilty

and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 59 (1985);

Adkins v. State, 911 S.W.2d 334, 349 (Tenn. Crim. App. 1994).

Here, the petitioner argues that trial counsel did not properly advise him that the jury

could convict him of two counts of statutory rape based on his two penetrations of the victim

and that the facts at the plea hearing did not support the aggravated burglary charge. The

post-conviction court found that the petitioner failed to put on proof to show that the facts

in this case could not have resulted in two statutory rape convictions. The post-conviction

court accredited trial counsel’s testimony that he discussed the laws regarding rape with the

petitioner. Trial counsel also testified that he had misgivings regarding the burglary charge

because there was an issue of whether the victim had the capacity to consent. However, the

state had an expert prepared to testify that the victim could not consent because of her mental

status. The evidence does not preponderate against the post-conviction court’sfindings. The

petitioner has failed to meet the burden of proving that his trial counsel’s performance was

deficient by clear and convincing evidence. There is no indication from the record that the

performance of the petitioner’s trial counsel did not meet an objective standard of

reasonableness. Thus, the petitioner is not entitled to relief based on this issue.

The petitioner further argues that he did not knowingly and voluntarily enter his guilty

plea. The evidence, however, suggests otherwise. Trial counsel stated that it was the

petitioner’s decision to plead guilty. At the plea hearing, the petitioner told the trial court

that he understood the charges against him, the plea agreement, and the range of punishment

for the offenses. The trial court asked the petitioner if he understood what he was doing, and

the petitioner stated that he did. When asked if his plea was knowing and voluntary, the

petitioner answered affirmatively. The petitioner, in declaring that his plea was knowing and

voluntary, has created a formidable barrier that he has failed to overcome. Accordingly, we

conclude that the petitioner is not entitled to post-conviction relief.

Conclusion

Based on the forgoing reasons, we conclude that the petitioner’s claim is without

merit, and we affirm the denial of post-conviction relief.

___________________________________

J.C. McLIN, JUDGE

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