# FILED
July 16, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON MARCH 1999 SESSION

KENNETH BROWN, * No. 02C01-9805-CR-00130 Appellant, * SHELBY COU NTY VS. * Hon. Bernie W einman, Judge STATE OF TENNESSEE, * (Post-Conviction) Appellee. *

For Appellant : For Appellee : Tony N. Brayton John Knox Walkup Assistant Public Defender Attorney General and Repor ter 201 Poplar Avenue, Suite 2-01 Memphis, TN 38103 J. Ross Dyer (on appeal) Assistant Attorney Gener al Criminal Justice Div

ision Of counsel: 425 Fifth Avenue North A.C. Wharton, Jr. Nashville, TN 37243 Shelby County Public

Defender Alanda Horne Donna Armstard Assistant District A ttorney General Assistant Public Defender 201 Poplar Avenue, Third Fl oor 201 Poplar Avenue, Second Flo or Memphis, TN 38103 Memphis, TN 38103 (at trial)

OPINION FILED:__________________________

AFFIRMED
GARY R. WADE, PRESIDING JUDGE2 OPINION The petitioner, Kenneth Brown,appeals the trial court' s denial of postconviction relief. The is sue presented for review is whether the petitio ner was provided effective assist ance of trial counsel before enteri ng a guilty plea.
We find no error and affirm the judgment of the trial c ourt.
Following sever

al days of trial in 1996, the petitioner pled guilty to thirty indictments for aggrav

ated burglary, all of which were Class C felonies. Tenn. Code Ann. § 39-14-403. Pursuant to the plea agreement, the trial c ourt imposed concurrent, Range III fifteen-y ear sentences for twenty -nine of the convictions. On the remaining convicti on, the trial court imposed a Range I, five-year

sentence to be served consecutively to the fifteen-year sentences. The eff ective sentence was, therefore, twenty year

s.
On August 1, 1997, the petitionerfiled a pro se petition for postconviction relief. The trial court appointed counsel and condu cted an evidentiary hearing. At the conclusi on of the proceeding, the trial court determined that the petitioner had been provided the effective assistance of counsel and had knowingly and voluntarily enter

ed each of the guilty pleas.
At the evidentiary hear ing, the petitioner complai ned that his trial counsel failed to provide hi m with a copy of his stat ement to police as he had requested. He argues that his trial counsel fail ed to file a motion to suppress the statement and failed to adequately investigate the accur

acy of the statement with law enforcement officers. The petiti oner claimed that he did not rec all providing information about twenty-ni ne burglaries and was unaware of many important3 details. He maintained that he had been involved in onl y thirteen or fourteen burglaries and denied hav ing confessed to sixty

burglaries.
The petitioner testified that he ag reed to stop the trial becaus e he had lost confidence in his tria l counsel and felt that his rep resentation was ineffectiv e. He stated that his trial counsel had visited him at the jail before the trial to discuss the plea offer but that the two had nev er discussed the cases. The petitioner maintained that his trial c ounsel did not discuss the di scovery procedures , did not provide copies of the indic tments, and only allowe d him to see the motion to suppress after his decision to plead guilty. The peti tioner testified that he had wanted separate trials on each indictment but that his trial counsel had inf ormed him the trial court woul d not agree. He insisted that there should have been a he aring to determine whether separate t rials were war ranted.
On cross-examination, the petitioner acknowledg ed that he had decided to plead guilty

after hearing eight w

itnesses testify favorabl y for the state. He conceded that he was aware that the prosecutor planned to introduce his confession. The petitioner admitted that he had discussed his opti ons with his trial counsel, had informed the judge that he understood his right t o continue with the trial, and that he concluded th at it was in his best interests to plead guilty. The petitioner testified that he w as aware that he could rec eive a sentence of 90 to 180 years had he chosen to allo w the trial to proceed.He acknowledged that h e was not coerced or pressured into accepting the terms of the plea ag reement.

The petitioner's trial cou nsel had practiced law for thirty-seven y ears. He testified that he had vis ited the petitioner twent y to thirty times at

the jail and that the meetings lasted from five mi nutes to two hours, depending on the need. Trial4 counsel recalled that the peti tioner had confessed to fifty-four bur glaries and was likely to be indicted for another sixty-fiv e. He acknowledged that the petitioner had been involved in a burg lary ring and after hi s arrest, agreed to ser ve as a witness for the state against his co- defendants. Trial counsel recal led that prior to trial the petitioner had not challeng ed the accuracy of the confession.

Trial counsel admitted that he di d not file a motion to suppress the petitioner's confession before tr ial because he thought there w as no basis for its exclusion. He stated th at he offered to provide the petiti oner with a copy of the confession but that the petitioner did not want it. Trial counsel testified that he had ordered two mental eval uations of the petitioner due to hi s concern about the petitioner's competency. He stated that there were no witnesses to investigate. He recalled that the defendant had appeared t o enter the guilty pl eas knowingly and voluntarily and w

ith an understanding of the conseq uences.
The trial court denied relief for the following reasons: The Court finds that the petitioner freely and voluntarily entere

d the guilty plea after bei ng fully advised of all his rights by

his counsel and the trial judge. The petitioner wanted to av oid the possibility of r

eceiving more punishment if convicted at trial. In addition he wanted to avoid the possi bility of being indic ted on additional charges of agg ravated burglary

. The Court finds that the advice given and the services rendered by the [petitioner's trial] counsel were within the range of competenc y demanded by an attorney in a criminal case and that [trial counsel's] representation of the [petitioner ] at his guilty pl ea complied with the req uirements se t out by the Supreme Court o f Tennessee in the

case of Baxter v. Rose , 523 S.W.2d 930.
When a petitioner seeks post-convicti on relief on the basis of ineffective assistance of counsel , he must first establish that the services rendered5 or the advice given was below "the range of competence demanded of atto rneys in criminal cases." Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Second, he must show that the deficienci es "actually had an adver se effect on the defense." Strickland v. Washington , 466 U.S. 668, 693 (1984). Shoul d the petitioner fail to establish either factor, he i s not entitled to relief. Our supreme court described the standard of review as follows:

Because a petitioner must establ ish both prongs of the test, a failure to prove either deficiency or prejudice provides a suffici ent basis to deny rel ief on th e ineff ective assistance claim. Indeed, a c ourt need not address the components in any particul ar order or even addres s both if the defendant makes an insufficient show ing of one component. Goad v. State , 938 S.W.2d 363, 37 0 (Tenn. 1996). On claims of ineffective coun sel, the petitioner is not entitled to the benefit of hindsight, may not second-guess a reasonably based trial strategy, and cannot criticize a sound, but unsuccessful, tactical decision made duri ng the course of the proceedings. Adkins v. State , 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference to the tactical decisions of counsel, however, appl ies only if the choices ar e made after adequate preparation for the case. Cooper v. State , 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

The standard announced in Strickland , as it applies to guilty pleas, is met when the petitioner establ ishes that, but for his counsel 's error, he would not have pleaded guilty and would have insist ed on trial. Hill v. Lockhart , 474 U.S. 52, 59 (1985). In Boykin v . Alabama , 395 U.S. 238 (1969), the Supreme Court ruled that the trial courts must establish a record at the s ubmission hearing that all guilty pleas are knowingly

and voluntarily ente red. In order to meet constitutional standards, the plea must repres ent "a voluntary and int elligent choice among the alternative choices of action [available]." North Carolina v. Alford , 400 U.S. 256 (1970); Clark v. State , 800 S.W.2d 500 (Te nn. Crim. App. 1990).

Under our statutory law, the petitioner bears the burden of proving his allegations by clear

and convincing evi dence. Tenn. Code Ann. § 40-30-210(f).On appeal, the findings of fact made by th e trial court are concl usive and will not be disturbed unless the evi dence contained in the record pr eponderates against them. Brooks v. State , 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the petitioner to show that the evidence preponderated against those findings. Clenny v. State , 576 S.W.2d 12, 14 (T enn. Crim. App. 1978).

In our view, the ev

idence does not preponderate agai nst the trial court's finding that the peti tioner entered knowing and voluntary guil

ty pleas and received the effective assi stance of counsel. The trial cour t accredited the testimony of trial counsel rather than that of the petitioner. In essence, the proof demonstrated that the petitioner w as dissatisfied with the length of his sentence but that he had been aware of the conseq uences of the plea agreement prior to pleading guilty. The submission hearing recor d demonstrates that the petitioner responded intelligently

to a variety of questions posed by the trial judge. The petitioner clearly a

cknowledged that the plea was free and voluntary and that he willingly ac

cepted the state's offer of twenty years. From all of thi s, it appears that trial counsel performed his duties well with in the established professional guidelines.
Accordingly, the j udgment of the trial court is affirmed.

__________________________________ Gary R. Wad e, Presiding Judge7 CONCUR:

_______________________________ Joseph M. Tipto n, Judge

________________________________ Thomas T. W oodall, Judge