# FILED
July 24, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JUNE 1998 SESSION

MICHAEL LEWIS , ) ) C.C.A. No. 02C01-9712- CR-00467 Appellant, ) ) Shelby County V. ) ) Honorable John P. Colton, Jr., Ju dge ) STATE OF TENN ESSEE, ) (Post-Convicti on) ) Appellee. )

FOR THE APPE LLANT: FOR THE APPELLEE: Robert B. Gaia John Knox Walkup Attorney at Law Attorney General & Reporter 100 North Main Bldg., Sui te 3201 Memphis, TN 38103 Douglas D. Himes Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493 William L. Gibbons District Attorney General Alanda Horne Assistant District A

ttorney General 201 Poplar Avenue, Third Floor Memphis, TN 38103

OPINION FILED: ___________________
AFFIRMED PAUL G. SUMM ERS, Judge-2- O P I N I O N
In August 1994, the appellant, M ichael Lewis, pled g uilty to aggrav ated robbery and theft of property less than $500. He was s entenced to concurrent Range I sentences of eight y ears and one year, respectively. In April 1996, the appellant filed a pro se motion for post-convicti on relief. Counsel was appointed. An amended petition was filed alleging that the appellant’s guilty pleas were involuntarily ente red due to inef fective assista nce of counse l. After a hearin g, the Shelby County Cr

iminal Court denied the petit ion. The sole issue for our review is w

hether the evidence preponder ates against the findings of the trial court. We affirm the hearing court.
The appellant contends that he pled guilty only because his attorney told him he would serve two and one-half years of the eight-year sentence offered in the plea agreement. The appellant al so alleged that his attor ney failed to investigate his case, failed to discuss trial strategy, failed to file motions on his behalf, and failed to prepare for his t rial.
An assistant public defender, Sher ry Brooks, was appo inted to represent the appellant on the original charges. At the hearing on the appellant’s petition, Ms. Brooks testified that s he interviewed the appel lant after he was arraig ned. Ms. Brooks testified that the appellant told her that he did not want a jury tri al. He admitted that he committed the cr imes. Ms. Brooks testifie d that the appellant was adamant about pleading guilty on arraignment day. Brooks testified that she read throug h the state’s files on the char ges. The victim of each offense had positively i dentified the appellant as the perpet rator. The appellant gave a statement to the police in which he confessed to the aggravated robbery. Ms. Brooks testified that she discussed the state’s proof and the state’s offer with the appellant. Thereafter,the appellant pled guilty

.-3- The appellant testified that he pled guilty because Ms. Brooks told him that he would serve approximately two and one-half years of his sentence. He testified that he thought that this was a good deal so he pled guilty. The Board of Paroles denied the appellant parole becau se he was involved in fights while serving his sentenc

e in prison. The appellant testified that Ms. Brooks failed to discuss his case, his s

tatement, and trial strateg y with him. The appella nt admitted that he told the judge at the plea hearing that Ms. Brooks had discussed his case wi

th him and that he understood his c onstitutional rights. The appellant testified that he answered the trial court’s questions aff irmatively because Ms. Brooks told hi m to agree with ever ything that the court s

aid.

Ms. Brooks testified that s he never told the appellant that he would be released in two and one-hal f years. Ms. Brooks deni ed instructing the appell ant to agree with ever

ything that the judge said.
The appellant testified that if the tr ial court granted his petition for postconviction relief, then he would go to trial. He testified that if his statement was suppressed that a victor y at trial on the theft char ge “would be guarant

eed.” The appellant did not establish why his statement was likely to be suppressed. He made no showing as to how he was likely to be found not guilty on the aggravated robbery co unt. Ms. B rooks tes tified t hat the a ppellan t would have been convicted of both offenses, even i f the statement had been suppressed because the victims had identified the appellant as the perpetrator.
The trial court denied the appel lant’s petition. The court found that the appellant entered his pleas voluntarily. The court noted that the trial court carefully explained to the appellant his constitutional rights before accep ting his guilty pleas. The court found that the appellant failed to establish that his attorney had rendered ineffective assistance of cou nsel.-4- In order f or the pet itioner t o be grant ed relief on ground s of inef fective assistance of counsel, he or sh e must establish that the adv ice given or the services rendered w

as not within the "rang e of competence demanded of attorneys in criminal

cases" and that, but for counsel's deficient performance, the result of his trial w

ould have been different. Strickland v. Washington , 466 U.S. 668 (1984); Baxter v. Rose , 523 S.W.2d 930, 93 6 (Tenn. 1975). This two-part standard, as it applies to g uilty pleas, is met w hen the petitioner establishes that, but for h is counse l's error, he would no t have ple aded guil ty and would have insisted on trial. Hill v. Lockhart , 474 U.S. 52, 59 (1985).
The burden is on the petitioner t o show that the evidence preponderates against the findings of the tr ial judge. Clenny v. State , 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978). Otherw ise, the findings made by the trial court are concl usive. Graves v. State , 512 S.W.2d 603, 604 (Tenn. Crim. App. 1973)
The appellant has failed to show that the evidence prepo nderates against the trial court’s findings. The appellant’s primary argument is that he pled g uilty because his attorney told him that he would only s erve two and one-half y ears. The appellant, however, admi tted that he understood that his s entence was eight years with a 30% r

elease eligibility

date. Ms. Brooks denied that she told the appellant that he would be r eleased in two and one-half y ears. The court found her testimony credible.
The record supports the court’ s finding that the appellant fail ed to show that he received ineffectiv e assistance of counsel. Ms. Brooks testified that the evidence in the state’s fil es would have most li kely led to convic tions on both offenses. She testified that the appellant was adamant about pleading g uilty on arraignment day. We find her representation appropriate and effective.

We affirm the judgment of the t rial co urt deny ing rel ief.-5- ________________________ PAUL G. SUMMERS, Ju dge
CONCUR:

___________________________ DAVID H. W ELLES, Judge

___________________________ JOE G. RILEY, Judge