T he ap p eal al so co ncerned t wo cert i f i ed que st i o ns o f

l aw no t rel evant t o t hi s p roce ed i ng. 1 

### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE

AT NAS HVILLE O ct obe r 12, 200 4 S es sio n

ROB ERT A. HA YD EN v. ST ATE OF TEN NES SEE

Direc t Appeal from the Circ uit Court for Willi am son Coun ty

No. 699-211 Tim othy L. Easter, Judge

No. M2004- 00856-CCA -R3-P C - F iled Dece m ber 10, 2004

T h e D ef en d an t , R o b er t Hay den, pled g uilt y t o aggr av at ed ro b b er y , es p ec i al l y aggr av at ed k i d n ap p i n g, and two counts of agg ravated rape. His plea did not include a n ag ree ment as to his sentence s, and he wa s subsequently

sentenc ed by

the court to twelve y ear s for the robbery , twenty -five y ear s for the kidnapping , and twenty -five y ea rs fo r eac h of the ra pes. The se ntence s were imposed in such a

mann er a s to result in an eff ective se ntence of six ty -two y ear s. The De fendant subsequently filed a dire ct appe al, claiming that his sentence s were excessive. This Court affirme d the trial court’s 1 judgme nts. See State v. Robert A. Hay den, No. M2000-00901-CCA-MR3-CD, 2001 W L 567869 (Tenn. Crim. App., Na shville, May 25, 2001). The Def

endant then filed for post-conviction re lief, alleg ing that he re ceive d ineffe ctive assist an ce o f counsel in conjunction with his guilty plea a nd
sentenc ing he aring . He f

urther a lleg ed that his plea was unknowing and involuntary beca use he w as under the influence of medication at th e t i m e. Af t er a n evidentiary

hearing, the trial court de nied

re lie f. Th is a

pp e a l f oll ow e d. We a ff

ir m th e jud g me nt o f the tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

D AVI D H. W EL L ES , J ., delivere d the opinion of the court, in which Gary R. W ade, P.J., j oined. J OHN E VE R E TT W I L L I AMS , J

. , c o n c u rr e d i n r e s u l t s o n l y.

Kenne th J . Sanney , Fr anklin, Tenne ssee, f or the a ppellant, Robert A. Ha

y den.

Paul G

. Sum me rs , Attorne y Ge ne ra l a nd Re po rt e r; Re ne e W. T urne r, As sis ta nt A tto rn e y Ge ne ra l; Ron Davis, District Attorney Gene ral; and Ma

ry Katherine White, Assist ant Dis trict Attorney Gene ral, for

the appe llee, State of Te nnessee

.-2- OP IN ION

T he fa cts of the De fendant’s crimes we re summarized by this Court on di rec t appea l as fo llo ws : On the morning of January 17, 1997, the def

endant e ntere d the re sidence of the victim, Be verly

Be cker, and c onfronted he r with a g un. The de fendant warne d the vic tim , “ B e qu ie t. I

do n’ t w a nt to hu rt y ou .” Af te r d e te rm ini ng that no on e e lse was in the re sidence , he re moved $200 from the vic tim’s purse. The de fendant then forc ed the victim to her bedroom and order ed her to r emove he r clothing and lie fa ce down on the bed. The defenda nt remove d his pants and attempted inter course . The vict i m as k ed t h e defenda nt to put his wea pon down and whe n he did so, the two strug g led over

it and fell to the floor. A lthough the victim was not sure whether the defe ndant sexuallypenetr ated he r, she be lieved that he ha d ejac ulated. When the de fe nd a nt r e c ov e re d h is w e apo n, the vic tim a tte mp ted to c a lm h im b y of fe ri ng to cooper ate. The defenda nt then forced the victim to perf orm oral sex

. After war d he d i r e c t e d h e r

t o a g a i n l i e f

a c e d o w n o n t h e b e d a n d p e n e tr a t e d h e r v a g i n a l l y.

W h en finished, the de fendant ordere d the victim to ge t dressed a nd said, “I do n’ t kn ow wh a t to do wi th y ou

. . . . ” Whe n h e a sk e d he r to he lp f indso me thi ng to bind her, the victim led hi m to her husband’ s closet. The de fendant obtained three be lts a ndtoo k some c ha ng e fr om a va le t. He bo un d th e vic tim ’s ha nd s a nda nk le s. After rummag ing thr oug h the victim’s jewelry box , the def

endant lef t the bedroom for a brief period befor e re turning to tighten the vic tim’s restraints. The de fendant the n le ft , d isc on ne c tin g the te le ph on e s as he did so

. Af te rw ard , th e vic tim

wa s a ble to make her way to a neighbor ’s house to ask f or help. The victim estimated that the defe ndant was in he r home be tween 50 minutes a nd one hour.

State v. Rob e rt

A. Hay de n, No . M 2 0 0 0

- 0 0 9 0 1- CCA -M R3- CD , 2 00 1 WL 56 78 69 , at *1 (T e nn . Crim. App., Nashville, May

25, 2001).

The De fendant pled g uiltyto ag g ravated robbe ry , espec ially ag g ravated kidnapping and two
counts of ag g ravated rape

. After a sentenc ing hearing, he rec eived a n eff ective se ntence of six ty -two y e ars

.

The De fendant did not testify at his post-c onviction he aring but submit ted by stipulation an aff idavit setting forth his complaints agai n s t h i s t ri al counse l, an assistant public defe nder. The aff idavit states, among other thing s, that the attorne y confe rre d with the Def

endant only

twice prior
to his g uil ty

ple a s, e a c h me e tin g la sti ng le ss tha n o ne ho ur . It f urthe r a lle g e s th a t Co un se l f a ile d to discuss with the Defe ndant the extradition process ( the Def endant was incar cer ated in Kentucky at the time he wa s char g ed in Tenne ssee) ; failed to di scuss the S tate’s evidence ag ainst him revea led during discovery ; f

ailed to disc uss any theories of defe nding the char g es; failed to e x plore whe ther he should file a motion to suppress items rec ov er ed i n a sea rch; did not prepa

re the Def

endant-3-

a de qu a te ly

fo r the se nte nc ing he ari ng ; f a ile d to ob ta in w itn e sse s f or the se nte nc ing he ari ng ; a nddid

no t a de qu a te ly

c ro ss- e xami ne a

State ’s wi tne ss d uring the s e nte nc ing he ari ng . T he a ff ida vit a lso
states that, during his ple a neg otiations a nd on Marc h 3, 2000, he was taking presc ribed medic ations that “impaire d [hi s] ability to think clea rly and caused [ him] to be confused and submiss ive,” ther eby causing him to be “nei t h er able to prope rly participate in [hi s] defense nor fully understand the
conseque nces of

[hi s] actions.”

Trial counse l testified at the post-convic tion evid enti ary hearing. H e stated that he had adequate contac t with the Defe ndant to prepa re his ca se, but that the first time he s p o k e wi t h the Def endant, the D efe ndant

admitted that he had pe rpetrated these c rimes and a dmitted in detail how they had happene d, which corr esponded with a ll of the testimony by the victim and all of the

e vid e nc e that th e po lic e ha d. Hi s o nly de sir e wa s t o atte mpt

to g e t a s le nie nt a

se nte nc e a s w a s p os sib le . H e ne ve r w a nte d to g o to tr ia l.

Counsel stated that, in spite of his ne g otiations with the State, the only plea- barg ain offe r he g ot “was in the rang e of

sixty to s ixty -f ive y e ars .” Th e be st the a tto rn e y c ou ld do wa s to “ ba dg e r” the State into a g ree ing that the plea would contain two certified questions of law for appea l. T h e a t torney

a c kn ow le dg e d th a t he di d no t dev e lop a the ory of de fe ns e a ndne ve r a dv ise d th e De fe nd a nt that a trial migh t p r o d u c e a b e tt e r r e s u lt

. T h e a tt o r n e y te s ti f ie d th a t h e d id n o t th in k a tria l w ould be be n e f ic ia l b e c au s e “ [t ]h e v ic ti m w a s b a s ic a ll y a p r o s e c u to r ’ s d r e a m a s a w it n e s s

. ” H e continued:

“ [Th e De fe nd a nt] ha d no de fe ns e

. He a dmi tte d his g uil t to me a nd the re wa s n o d e fe ns e that I c ou ld raise in goo d faith, and a ll he wanted to do wa s plead.” The attorney admitted that he neve r reque sted a menta l evaluation of the Def endant, never inquired into medication, did not explore the possibili ty

of a suppr es s i o n motion, did not rese arc h the cha in of custody reg arding DNA testing done in c o n

ju n c ti o n w ith th e St a te ’ s in v e s ti g a ti o n , a n d ma d e o n ly o n e e f f o r t t o c o n ta c t p o te n tia l witnesses for

the sentenc ing he aring

.

Cou ns e l st a te d th a t, i n c on jun c tio n w ith e nte ri ng the g uil ty ple a s, he a sk e d the De fe nd a nt i f he wa s under the influence of any mind-altering substance and whether his pleas wer e voluntary

and knowing . The l aw y er testified that the De fendant told him that he “w as not under any thing that would aff ect his ability

to understand what he was doing and that it was knowing an d voluntary .” With re sp e c t to the se nte nc ing he ari ng , th e la wy e r t e sti fi e d that he “ tho ro ug hly e xpla ine d th e pr oc e ss of the sente ncing hearing to [the Def endant] and .

. . [h] e was also awa re that he could testify , but could not be for ced to testify .”

During the s entenc ing hearing, the State called as a witness the vi ctim of the prior rape for which the De fendant was incar cer ated in K entucky

. Counsel obje cted to this witness, but the trial court overruled his objec tion. Counsel was not prepar ed to cr oss-examine this witness, but di d not think that requesting a continuanc e would be be nefic ial. Counsel testified that he did not think that this victim ’s testimony

“had that much impact on the sente nce that [ the Def endant] ended up with.”-4-

The trial c ourt issued a written order denying the Def endant’ s claim for r elief. With respec t to the Def endant’ s claim of inef

fec tive assistance of counse l, the order states, “[ O]n all conflicting testimonybetwee n the [Defendant] and [ Counsel’s] testimonyat the evide ntiary hearing, this Court
sp e c if ic a lly c re dit s [Co un se l’ s] te sti mon y .” Th e or de r c on tin ue s:

[C ounsel] met with t he Petitioner on seve ral oc casions prior to the entry of his plea

a ndthorou ghly

inv e sti g a te d th e a lle g a tio ns se t ou t in the ind ic tme nts . [Co un se l] spent time revie wing not only the evidence which was made available to him by the District Attorney ’s Off

ice but visited the B re n twood Police Depa rtment and the i n v e s t i g a t i n g d e t e c t i v e f

o r c o m p l e t e , o p e n

- f

i l e d i s c o v e r y. Th e Pe tit ion e r c la ims se ve ra l de fi c ie nc ie s o n [ Co unse l’ s] pa rt in f a ili ng to fully investigate or become familiar with the Petitioner’s case

. Specif i ca l l y , the Pe tit ion e r c omp la ins of

[Cou ns e l’ s] f

a ilu re to i nv e sti g at ean d

f am i l i a ri z eh i m s e l f w ith the P etitioner’s prior rape conviction i n the S tate of Kentucky befor e the se ntencing hearing. Ho we ver, this Court finds, based on thetestimony of [Counsel] at the evidentiary

hearing, that the Petitioner’s on l y d esi re w as for [C ounsel] to procure “the be st deal he possibly

could.” [C ounsel] fully and properly advised Petitioner of the po te nti a l r a ng e of

pu nis hme nt andfo llo we d h is c lie nt’ s w ish e s. The Petitioner’s c laim of ineff ective assistance of counsel is not supported by the re cord of

his submis sion hearing . On this specific issue, the Court asked the Pe tit ion e r d uring the e ntry of his ple a on No ve mbe r 1 5, 19 99 , if he wa s satis fi e d w ith the servic es of his attorne y . The Petitioner indicate d that he wa s satisfied. This Court finds that [ Counsel] fully expla i n ed the Petition For Waiver of Trial B y J ury and Request for Acc eptanc e of Plea of Guilty to the Petitioner, and the Petitioner so advised this Court when he ente red his plea . Additionally , this Court finds that the re prese ntation of Petitioner at the sentencing hearing w as not defic ient in any ma nn e r. [Cou ns e l’ s] in str uc tio n w a s to g e t th e be st d e a l he c ou ld. Th e re is

no thi ng in the re c or d th a t su g g e sts the a dv ic e g ive n th e Pe tit ione r b y [Cou ns e l]
reg arding the Petitioner’s possible sentenc e exposure and le ng t h was errone ous and/or de ficient. S imply beca use t he resulting sentence was not as gratify ing a s the Petitioner had conte mplated is not a b a s is to s e c o n d

[g uess] [ Counsel’s] performanc e. I n short, this Court finds that [C ounsel’s] r epre sentation at all tim es of

re pr e se ntatio n e xce e ds that w hic h is de ma nd e d o f atto rn e y s in cri min a l c a se s. [C ounsel’s] performance was not a violation of either the Six th Amendment of the United States Cons t i t ution or Article 1, Sec tion 9 of the Tenne ssee Constitution, wh ic h p ro te c ts the Pe tit ion e r’ s rig ht t o r e c e ive e ff e c ti ve ass ist a nc e of

c ou ns e l. [C oun s el ’s ] p er fo rm an ce i n re p re s en t i n g t h e P et i t i o n erat b o t h the submission hearing and sente ncing hearing f ell well wit h i n the ra ng e of c ompetence demande d of

a tto rn e y s in c ri min a l c a se s.

With re sp e c t to the De fe nd a nt’ s c la im that hi s p le a wa s n ot v olu nta

ry , th e tr ia l c ou rt

fo un d a s fo llo ws :-5- The issue of volun t ar i n ess and knowing ness of the Petitioner’ s plea wa s

a d d r e s s e d o n s e v e r a l o c c a s i o n s d u r i n g t h e s u b m i s s i o n h e ar i n g w h i c h l a s t e d f o r t h i r t yeig ht (38) minutes. After being sworn, the Petitioner stated to the Court that he unders t o o d a very

complicated ple a which r aised due proce ss issues, certifie d two
qu e sti on s o f l aw t o th e Cou rt of Cr imi na l A pp e a ls anda dd re sse d e nh a nc e d p aro le elig ibilit y dates. The Petitioner on numerous occ asi o n s assure d the Court that he understood all of the se issues and voluntarily enter ed his plea. Additionally , the Petitioner signe d a P etition For Waiver of Trial By J ury and Request For

Acc eptanc e of Pl ea of Guilty and was specific ally asked by this Court if he wa s under the inf

luence of alc ohol, narc otics, drug s or any other mind altering substances at the time he enter ed his plea. The Petitioner a ssured the ple a-r ece iving Court that he knew w hat he wa s doing and t hat t he C ourt should have no c oncern that this iss u e wo u ld subsequently be raised. He spe cifica lly certified to the plea

rec eiving Court that he was not under the influence of any mind altering substances

a ndhe un de rs too d h is ac tio ns a nd that the y we re bo th kno wi ng ly [sic ] an d v olu nta

ri ly [s ic ]. Th e Cou rt

fi nd s th at th e Pe tit ion e r’ s p le a wa s v olu nta

ri ly a ndkn ow ing ly submitt ed. The Petitioner has fa iled to show by clea r and c onvincing evidenc e otherwise. T his finding is complete ly supported by

a re view of the p lea video, the Ne g oti a te d Pl e a Ag re e me nt doc ume nts , an d the te sti mon y of [Cou ns e l] a t th e po stconviction re lief hea

ring . The Petitioner has f ailed to demonstrate b y cl ear and

c o n v i n c i n g e v i d e n c e t h a tt h e m e d i c a t i o n h e w a s t ak i n g a t t h e t i m e o f t h e p l e a , i f a n y, had any impact on the voluntarine ss of his actions on Novembe r 15, 1999.

Th e De fe nd a nt n ow c ha lle ng e s th e tr ia l c ou rt ’s fi nd ing s a ndc on c lus ion s.

To susta ina

p e ti ti o n f

o r p o s t- c o n v ic ti o n r e li e f
, a

d e f e n d a n t mu s t p r o v e h is o r h e r f actua l alleg ations by clea

r and convincing evidenc e at an evidentiary hearing. See Tenn. Code Ann. § 40- 30-110(f ); Momon v. State, 18 S.W .3d 152, 156 (Tenn. 1999) . Upon re view, this Court will not reweig h or re-eva luate the evidenc e below; all questions conce rning the credibilityof witnesses, the weig ht and value to be g iven their testimony , and the f actua l issues raised by

the evidenc e ar e to be resolved by

the trial judge
, not the appellate courts. See Momon, 18 S.W .3d at 156; Henley v. State, 96 0 S. W.2 d 5 72 , 5 78 -7 9 ( Te nn . 1 99 7) . T he tr ia l ju dg e ’s fi nd ing s o f f a c t ona pet it io n fo r p os tconviction re lief ar e af

forde d the weig ht o f a j u ry v er dict and ar e conc lusive on appea l unless the evidenc e preponde rate s ag ainst those finding s. See Momon, 18 S.W.3d at 156; Henley , 960 S.W .2d at 578.

Both the Six th Amendment to the United States Constit ution a nd Article I
, Section 9 of the Tenne ssee Constitution guar antee a criminal defendant the rig ht to repr esentation by counsel. See State v. Burns, 6 S.W .3d 453, 461 (Tenn. 1999); Ba x ter v. Rose, 523 S.W .2d 930, 936 (Tenn. 1975)

. Both the United States Supreme Court and the Tenne ssee Supre me Court have r ecog nized that the rig ht to such repr esentation include s the rig ht to “re asonably eff ective” assistance , that is, within t he-6-

rang e of c ompetence demande d of attorne y s in c riminal case s. See Strickland v. Washington, 466 U.S. 668, 687 (1984); B urns, 6 S.W.3d at 461; Baxt er, 523 S.W.2d at 936.

A l a wy e r’ s a ssi stanc e to h is o r h er cli ent is ine ff e c tiv e if the la wy e r’ s c on du c t “ so und ermined the proper

functioning of the a dversa rial proc ess that the trial c annot be r elied on as having produce d a just result.” Strickland, 466 U.S. at 686. This over all standard is c omprised of two components: defic ient perf ormanc e by

the def endant’ s lawy er, and actual prejudice to the defe nse caused by

the def icient per formanc e. See id. at 687; Burns, 6 S.W.3d at 461. The defe ndant bear s the burden of establishing both of t hese components by clea r and c onvincing evidenc e. See Tenn. Code Ann. § 40- 30-110(f ); Burns, 6 S.W .3d at 461. The de fendant’s failure to prove e ither defic iency

or pre judice is a suff

icient basis upon which to deny relief on an inef

fec tive assistance of counsel c laim. See B urns, 6 S.W.3d at 461; Goad v. State, 938 S.W .2d 363, 370 (Tenn. 1996)

.

Th is t wo -p art

stand ardof

me a su ri ng ine ff

e c tiv e a ssi stanc e of

c ou ns e l a lso app lie s to c la ims arising out of a g uiltyplea. See Hill v. L ockhart, 474 U.S. 52, 58 (1985). The pr ejudice c omponent is modified such that the def endant “ must show that there is a r easona ble proba bilitythat, but for counsel’s e rror s, he would not have pleaded guilty and would have insist ed on g oing to trial.” I d. at 59; see a lso Hicks v. State, 983 S.W .2d 240, 246 (Tenn. Crim. App. 1998)

.

I n evaluating a

lawy er’ s perf

ormanc e, the r eviewing court u s es an objec tive standard of “re asonable ness.” See Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The re viewing court must be highly

defe rential to counse l’s choice s “and should indul g e a strong presumption that counsel ’ s c o n d u c t f

a ll s w ith in th e w id e r a n g e o f r e a s o n ab le p r o f e s s io n a l a s s is tan c e

. ” B u r ns, 6 S.W .3d at 4 6 2 ; s ee al s o Strickland, 466 U.S. at 689. The c ourt should not use the bene fit of hindsight to second- g uess trial strate g y or to criticize counse l’s tactics, see Hellar d v

. S t at e, 629 S.W .2d 4, 9 (Tenn. 1982) , and counse l’s alleg ed er rors should be judge d in light of all the fac ts and circ umstances a s of the time they wer e made , see Strickland, 466 U .S. at 690; Hicks, 983 S.W .2d at 246.

A trial court’s determination of an ineff ective a ssistance of counsel claim presents a mixed
qu e sti on of

la w andfa c t onapp e a l. S ee Fiel ds v. Sta te , 4 0 S. W.3 d 4 50 , 4 58 (T e nn . 2 00 1) . T his Court review s the trial court’s finding s of fa ct with reg ard to the e ffe ctiveness of counsel unde r a de novo standard, a ccompa nied with a pre sumption t hat thos e fi n d i ng s are corr ect unless the preponde ranc e of the evidenc e is otherwise. See id. “ Howeve r, a tria l court’s c onclusions of law-- such as whether

counsel’s pe rformance was de ficient or w hether that defic iency

was pre judicial--a

re revie wed un d er a p u re l yde novo standa rd, with no presumption of cor rec tness g iven to the trial court’s c onclusions.” I d.

I n revie wing the transc ript of the evide ntiary hearing c onducted in this post-conviction

ma tt e r , w e ar e c o n c e r n e d th a t t r ia l c o u n s e l d ids o li tt le to c o n f irm i n d e p e n d e n tl y

th a t h is c li e nt’s desire to plea d g uiltywas the be st leg al cour se of a ction to take. Counsel admi tted that he neve r develope d a theory of defe nse. He made very littl e eff ort to te st the overall streng th of the State’s

case . He de termined that the vic tim was a “pr osecutor’ s drea m,” but did not investigate whether-7-

there was a

method for other wise attac king the State’s ca se. More over, al t h o ug h the Def endant

a dmi tte d th e c ri me s to his la wy e r, it re ma ins the State ’s bu rd e n to pr ov e its c a se be y on d a re a so na ble doubt. A defe nse attorney commits no ethical brea ch by forc ing the State to c arry its burden of proof, e ven whe n the attorne y ’s client has a dmitted participation in the cha rg ed crimes. I t appea

rs that trial counsel took his marc hing or ders f rom his client, rathe r than indepe ndently determining the best course of ac tion for his client to take. It is a lawy er’ s obligation to advise his or her c lie n t of the possible avenue s available an d t h e likely outcomes of e ach: Counsel admitted that he ne ver

a dv ise d h is c lie nt that a

tr ia l mi g ht b e pr e fe ra

ble

. Cou ns e l simply pr oc e e de d wi th t rying to n e g oti a te

a ple a , e ve n w he n th e State pr ov e d o bs tr e pe ro us du ri ng the se dis c us sio ns

.

Neve rtheless, e ven if we wer e to find trial counse l’s repr esentation to b e d ef i ci ent, t he De fe nd a nt h a s f

a ile d to e sta

bli sh that, b ut f

or his a tto rn e y ’s a lle g e d e rr or s, the re is a re aso nable probability

that he would have insisted on g oing to tria l. Counsel’s testimony , which the tria l court

a c c re dit e d, wa s c on sis te nt ande mph a tic that th e De fe nd a nt did no t w a nt t o g o to tr ia l bu t w a nte d to plead g uilty . The De fendant has introduced no proof that, but f or his attorney ’s alleg edly defic ient
pe rf orma nc e , h e wo uld

ha ve g on e to t

ri a l. Ind e e d, the De fe nd a nt d oe s n ot e ve n ma ke thi s c la im i n his affida vit. Accor dingly , we c onclude that the D efe n d an t h as failed to prove by clea r and

c on vin c ing e vid e nc e that he w a s p re jud ic e d b y

his atto rn e y ’s pe rf

orma nc e . T he De fe nd a nt i s the re fo re e nti tle d to no re lie f o n th e g ro un ds of ine ff e c tiv e a ssi stanc e of

c ou ns e l.

The De fendant also claims that he did not enter his g uilty pleas voluntarily beca use he w as under me dication at the time of his plea s. The De fendant introduced proof at the post-c o n v i ct ion hearing that, on the day he pled g uilty
, he took ( under custodial supervision) a drug called T rilafon. Also admitted at th e h ea ri n g was a n excerpt fr om the Phy sician’s De sk Refer ence website stating that “Trilaf

on is used to treat schizophrenia and to control seve re n au s ea and vomiting in adults.” The e x cer

pt furt h er p rovides that one of the possible side-ef

fec ts of Trilafon is “c onfusion.” Howeve r, t he Defenda nt introduced no expert testimony as t o why he was taking Trilafon or what side-ef fec ts, if any , the drug induced in him. The Def endant’ s proof that his plea w as not voluntary be c aus e of the me dic a tio n he too k on the day of his ple a he ari ng is s imp ly

no t su ff ic ie nt t o e sta

bli sh that hi s p le a s w e re no t c on sti tut ion a lly va lid . T his iss ue is w ith ou t me ri t.

The De fendant also contends that his pleas were not voluntary “due to the ine ffe ctiveness of his trial counsel.” We find this assertion to be without merit. The proo f at the post-conviction hearing e stablished that the Def endant wanted to ple ad g uiltyand did not want to g o to trial. There is n oth ing in the re c or d to c on vin c e us that th e De fe nd a nt w ou ld h a ve a g re e d to g o to tr ia l e ve n if h i s l aw y erh ad ad v i s ed h i mt o d o s o

. T h e De fe n d an t ’s re al co m p l ai n t i s t h at h i s s en t en ce i s t o o l o n g. Howeve r, the De fendant pled g uiltywithout an ag ree ment as to his sentenc e and his de cision to plead
g uiltywas ba sed on hi s own desire: He did not plead guilty beca use hi s lawy er told him to. Ag ain, the Def endant ha s failed to pr ove his a lleg ations by the requisite quantum of proof . The De fendant is theref ore not e ntitled to post -convic tion relief.

Ac c or din g ly , w e a ff

ir m th e jud g me nt o f the tr ia l c ou rt

.-8- ___________________________________ DAVID H. WELLES, J UDGE