### IN THE CO URT OF CR IMINAL APPEALS OF T ENN ESSEE AT JACKSON Ass ig ne d o n B rie fs Marc h 3 , 20 09

JI MMY LEE T AYLOR, JR. v . STATE O F TENNESSE E

Direc t Appeal from the Circ uit Court for Laud erdale County

No. 8218 Joseph H. Walk er, III, Judge

No. W2008-01890-C CA-R 3-P C - F iled October 21, 2009

The pe titioner, J immy L ee Tay lor, J r., appeals from the L auder dale Count y Circuit Court’s denial of post-conviction rel i ef from his g uilty pleas to ag g ravated rape , ag g ravated robber y , espec ially
ag g rava ted kidnapping
, and espec ially ag g ravated burg lary and his e ffe ctive sentenc e of sevente en y ear s at one hundred perc ent. I n h i s appea l, the petitioner argues that he rec eived ineffe ctive assistance of counsel beca use trial counsel failed to explain the conseque nces of his plea and beca use trial counsel did not spend adequa te time meeting with him. Upon revie w, we aff irm the judgme nt of the post-c onviction court.

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

C A M I L L E R. M C M U L L E N , J
., delivere d the opinion of the court, in which J O H N E V E R E T T W I L L I A M S and A L A N E. G L E N N , J J ., joined.

Scott A. L ovelac e, Ripley , Tenne ssee, f or the pe titioner-appe llant, J immy L ee T aylor, J r.

Robert E. Cooper, Jr., Attorney Gene ral and Reporter ; Sophia S. L ee, A ssistant Attorney Gene ral; D. Michae l Dunava

nt, District At t o rney Gene ral; and J ulie K. Pill ow, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP INION

Guilty P lea Hearing. At th e gu i l t y p l ea hear ing, the State summarized the fac ts in the petitioner’s c ase:

Had this matter go n e t o trial the S tate would have shown on Dec ember 22, [2006]
, at approximately 6:34 P

. M

. , Of fice r Temple was dispatched to 164 North Main Street, the Trend s beauty salon, conce rning an ag g ravated rape and an ag g ravated robbe ry

complaint.

Upon arr ival he spoke with Ms. McL emore , who informed him that she had turned off the lights inside her shop and was in the proce ss of closing

. As she openedthe front door, she saw a black male in the front of the shop, who rushed her and

p u s hed her back in the shop by forc e, at knife point, and put the knife ar o u n d h er throat and threatened to kill her. She states that when he hit her head ag ainst the door

or wall, and [drag g ed] her back to the laundry roo m o f t h e shop, while still threatening to kill her with the knife at her throat, and made her take off her pants and

ra p ed her on the laundry floor by sexually penetr ating her and demanding money fr o m her. Ms. McL emore stated that she had rea ched in her pocketbook an d h ad pulled out a handful of money , mostly one-dollar bills, and g ave it to him. She told the office r t h at h e then [drag g ed] her back up toward the front of the shop and advised he r if she c alled the police he would kill her.

Ms. McL emore states that the black male was wea ring a tobogg an knit cap. She told the office r that he left the shop on foot and she wasn’t sure in what direc tion he had tr avele d.

The o ff i ce r o bserve d a knot on her fore head wher e he had knocked her
ag ainst the wall or door , and slig ht bruises to her r ight ey e where she stated that he had put a knife to her a

nd hit and [drag g ed] her.

The officer survey ed the are a, talked with witnesses. At 156 North Main Street this witness advised that she saw a black male subject running from the Trends b ea u ty shop into the roadw ay at North Main Street, that he was wea rin g a d ar k hooded sw ea t shirt jacke t, and he pulled the hood off and took off a tobogg an cap; t h at h e had a low hairc ut, a larg e diamond ty pe ear ring in his rig ht ear , and

. . . proce eded to r

un acr oss North Main Street a nd down L afa

y ette Stree t.

Ms. McL emore did g o to the Memphis Rape Crisis Center, and they did take

a rape kit, whic h was later matched ag ainst a standard from Mr. J immy L ee Taylor [, J r.]. And when that profile was run, it did match J immy L ee T ay l o r[, J r.] with
reg ard to the vag inal swab, and the probability of an unrelated individual having the same DN A profile w ould exceed the c urre nt world population.

The trial court explained the terms of the plea ag ree men t an d extensively questioned the petitioner bef

ore a cce pting his plea s of g uilt:

T H E C O U R T : Un d er t h e p l ea arr ang ement, for the B felonies th e S t at e

would rec ommend the minimum sentenc e of eig ht y ear s, to

serve thirty

perc ent bef

ore e ligible f

or re lease classification. I n C o u n t s 1 and 3 for the A felonies, the State would

rec ommend a slightly enhanc ed sentenc e of sevente en y ear s. Both of those are violent offe nses and require a h u n dred
perc ent servic e.

-2-I s that y our under standing of the plea arr ang ement?

T H E P E T I T I O N E R : Yes, sir.

T H E C O U R T : So it will be

. . . four sentenc es all run concur rent[ly ], or at the same time, for

an ef fec tive sentenc e of se ventee n y ear s.

The public d ef

ender has been repr esenting y ou while these char g es have been pending

. Ar e y ou satisfied with that
repr esentation?

T H E P E T I T I O N E R : Yes, sir.

T H E C O U R T : [ T ri al co u n s el ] i s o n e of the attorney s on the staff of t h e

public defe nd er ’s office

. Are y ou satisfied with his
repr esentation?

T H E P E T I T I O N E R : Yes, sir.

T H E C O U R T : Yo u fe el l i k e y o u ’v e h ad en o u gh time to meet with an

attorney , to disc u s s t h ese char g es and any defe nse to these char g es?

T H E P E T I T I O N E R : Yes, sir.

T H E C O U R T : You understa n d t h at s h o rt l y , by y our plea, that that’s the

strong est evidence av ailable ag ainst y ou, and by enter ing a plea y ou’re waiving the require ment to have witnesses broug ht in to court to confr ont a nd cross-e x amine. This will result in a conviction for felony offe nses. These are the ty pe convictions that can be used ag ainst y ou afte r today
, if y ou g et into some other t ro u b l e, to perha ps incre ase punishment for future tr ouble.

I n addition, two of the offe nses require a hundred perc ent service
, they requ ire bail revoc ation, HI V testing, and the offe nse in Count 1 requi re s supervision for life once y ou’re rele ased.

Has a ny one for ced y

ou into entering these plea s?

T H E P E T I T I O N E R : No, sir.

T H E C O U R T : Your willingness, then, to enter the pleas is as a result of talks

y ou’ve had with y our attorney and beca use y ou’re
, in fac t,

-3-g uilty of these of

fense s; is that correc t?

T H E P E T I T I O N E R : Yes, sir.

The petitioner pleade d g uilty to ag g ravated rape , ag g ravated robbe ry , espec ially ag g ravated kidnapping
, and espec ially ag g ravated burg lary

. The trial court asked the petitioner if he understood the proce eding s at the plea submissi on hear ing, to which the petitioner responde d aff irmatively

. The trial court then acc epted the petitioner’s g uilty pleas and sentenc ed him pursuant to the terms of the plea a g ree ment to an ef

fec tive sentenc e of se ventee n y ear s at one hundre d perc ent.

P ost-Conviction Hearing. At the post-conviction hear ing the twenty -y ear-o l d petitioner testified that trial counsel talked with him about his case only three or four times, and eac h meeting lasted approximately thirty minutes. He stated that trial counsel told him that if he tried his case , he could rec eive a longe r sentenc e than what he had been offe red in his plea ag ree ment. He admitted
t h at t ri al counsel explained his char g es, the sentenc e rang es, and the rele ase elig ibilit y for each
sentenc e. Howeve r, he said that trial counsel never filed a motion to suppress the DNA evidenc e. The petitioner stated that he waived his preliminary hear ing beca use trial counsel felt that it was in his best interests. He admitted that trial counsel discussed possible defe nses with him, including the victim’s failure to identify him in a lineup and his alibi. He also admitted that he told the trial court that he was satisfied wi th trial counsel’s repr esentation and that trial counsel had spent sufficie nt time with him to adequately discuss his case

. Finally
, the petitioner admitted that he hear d the trial
court state at h i s gu i l t y plea hear ing that he was rec eiving a sentenc e of sevente en y ear s at one hundred pe rce nt.

Trial counsel testified that he had been with the public defe nder’ s office for the last twenty
y ear s. He stated that he worke d two to three y ear s as a prosec utor in the district attorney ’s office befor e becoming a p u b lic defe nder. Trial counsel said that he was initially assig ned to the petitioner’s case at the g ener al sessions level i n Fe b ru ar y o f 2007. He met with the petitioner on Fe bruar y 22, 2007, and they discussed his char g es, whether to have a p re l i m i n ary hear ing, the
proce dure used in the DNA tests, and the results from the DNA tests. Trial counsel s aid that the petitioner indicated that he understood what a preliminary hear ing was at their meeting

. He also said that the petitioner claimed that he had been in school the day of the offe nses ag ainst the victim and that he had an alibi witness named Conseulo J ones. Trial counsel said that he and the petitioner discussed the fac t that the DNA repor t would provide the State with the require d probable cause for the pre liminary

hear ing. He stated that he advised the petitioner not to have a pr eliminary hear ing for the following rea sons: (1) the inculpatory DNA results provided the require d probable cause , (2) the victim would identify him in court, (3) the victim’s te stimony at the preliminary hear ing could be used ag ainst him at a later date, (4) it would be difficult for him to show remorse afte r reque sting

a preliminary hear ing, and (5) the preliminary hear ing might ignite the victim’s ang er and neg atively affec t a plea ag ree ment with the State. He stated that the petitioner seeme d to understand these

rea sons and agr eed to wa ive the pre liminary hear ing. B eca

use the pe titioner had told counsel that he had been in spe cial educa tion c lasses in sc hool, tr ial counsel “wa s car eful to use terms that [he] felt we re ve ry

clea r as f ar a s [t heir] discussions.”

-4-Trial counsel said that the petitioner was repr esente d by a private attorney for a short time.

Howeve r, after the petitioner’s private attorney took a posi tion with the di strict atto rn ey ’s o ffice, trial counsel was rea

ppointed to repre sent the petitioner. He stated t hat he met with the petit ioner
ag ain in Dec ember or J anuar y to g o over the discovery that he had rec eived from the State. He stated that he went over the information disclosed by the State in discovery pag e by pag e with the petitioner and explained how it would aff ect his trial. He added that beca use there was medical evidenc e and photogr aphs, he “discussed with him how

. . . a juror might view that evidenc e.” Trial counsel said that the petitioner voluntarily submitt ed saliva for a DNA test and submitt ed a second DNA sample afte r his arr est. The DNA results established that the petitioner had sexual contac t with the victim. Once he explained the DNA results to the petit ioner, the petitioner claimed that he and the vi ctim had consensua l sex. Trial counsel told the petitioner that he could not pursue both an alibi defe nse and a c onsensual sex defense , and the pe titioner “indicat[ed] that his i nitial version of events with
reg ard to alibi wer e to some deg ree fictitious.” He also questioned the petitioner about his claim that he was in school the day of t h e offe nse, since trial counsel believed that the school the petitioner attended ha d alre ady

ended f or Christmas break.

Trial counsel stated that he enter ed into neg otiations with the State in an attempt to settle the
p et i t i o n er ’s ca s e. He said that he was cer tain that he and the petitioner talked about the time the petitioner would serve , including the ag e that the petitioner would be when he was rele ased. Trial counsel told the petitioner that he enjoy ed try ing case s and that the petitioner would have to decide whether he wanted to acc ept the plea ag ree ment. He also told the p eti tioner that he believed the State’s offe r of se ventee n y ear s was a g ood plea a g ree ment in light of the facts of hi s case and the char g es. The petitioner appea red to u n d er s t an d the conseque nces of pleading g uilty and had no questions at the time he enter ed his pleas. Tr ial counsel said that he believed the petitioner would have r ece ived a ha

rsher sentenc e if they

had tried the case

.

Tri al co u n s el said that he did not file a motion to suppress the DNA evidence beca use t he petitioner “voluntarily submitt ed

. . . the saliva swab.” He said that he did not discuss the victim’s failure to ide ntify the petitioner during the lineup beca use the DNA results made the lineup moot. He stated that he t ri ed t o n egotiate a fiftee n-y ear sentenc e with the State but beca use of the circ umstances of the offe nse and the petitioner’s prior juvenile rec ord, the State o nly offe red a sevente en-y ear

sentenc e.

On J uly 18, 2008, the court enter ed an order denying the p et i t i oner’ s reque st for postconviction relief

. I t found that the petitioner failed to prove that h e h ad re ce ived ineffe ctive assistance of counsel. I t also found that the petitioner understood the conseque nces of his decision to enter his g uilty

pleas.

I

. F ailure to F ile a Time ly Notice of Appeal. We must initially addre ss the State’s contention that the petitioner failed to file a timely notice of appea l befor e addre ssing the petitioner’s claim of ineffe ctive assistance of counsel. Tenne ssee Rule of Appellate Procedur e 3(b) provides that

a p eti tioner may appea l “a final judgme nt in a

. . . post-conviction proce eding .” Addi t i o n al l y , Tenne ssee Rule of Appellate Procedur e 4(a) states that “the notice of appea l require d by Rule 3 shall be filed with and rec eived by the cler k of the trial court within 30 day s afte r the date of entry of the judgme nt appea led from

. . . .” Howeve r, this rule also states that “in all criminal case s the ‘notice

-5-of appea l’ document is not jurisdictional and the filing of such document may be waived in the

interest of justice.” Tenn. R. App. P. 4(a)

. This court, in deciding wh et h er t o g rant a waiver
reg arding an untimely notice of appea l, “shall consider the nature of the issues for revie w, the

rea sons for the delay in seeking relief
, and other rele vant fac tors prese nted in eac h case .” Michelle Pierre Hill v. State, No. 01C01-9506-CC-00175, 1996 WL 63950, at *1 (Tenn. C ri m

. App., at Nashvi l le, Fe b. 13, 1996). This court has conclude d: “Waiver is not automatic and should only

occur when ‘the interest of justice’ mandates waiver

. I f this court wer e to summarily g rant a waiver whene ver confr onted with untimely notices, the thir t y -d ay require ment of Tenne ssee Rule of Appellate Proc edure 4(a) would be rendere d a lega l fiction.” State v. Rockwe ll, 280 S.W .3d 212, 214 (Tenn. Crim. App. 2007) (citing Michelle Pierr e Hill, 1996 WL 63950, at *1).

Her e, the peti t i o ner pleade d g uilty to ag g rava ted rape , ag g ravated robber y , espec ially
ag g rava ted kidnapping
, and espec ially ag g ravated burg lary and was sentenc ed t o an eff ective
sentenc e of sevente en y ear s on J anuar y 28, 2008. The petitioner did not file a direc t appea l but filed

a timely pro se petition for post-conviction relief

. On May 9, 2008, he was appointed counsel, who filed an amende d petition f or post-conviction relief on the petitioner’s behalf on J une 9, 2008. On J uly 18, 2008, the post-conviction court enter ed an order denying relief

. The petitioner’s appointed counsel then filed a notice of appea l on Aug ust 20, 2008, thirty -two day s afte r entry of the order denying post-conviction relief

. As the S tate notes, the petit ioner’s attorney failed to file a mot ion
to waive the late filing of the notice of appea l and failed to provide an explanation for his untimely filing. Given that the notice of appea l was untimely by a mere two day s, we conclud e t h at t h e “intere st of justice” is best serve d by g ranting a waiver in this case

. See Tenn. R. App. P. 4(a) ; see also Crittenden v. State, 978 S.W.2d 929, 932 (Tenn. 1998).

I I

. I ne ffe c t ive Assistance of Counsel. The petitioner specific ally contends that trial counsel

was ineffe ctive in failing to explain the conseque nces of his plea, which preve nted him from making

an informed decision reg arding the State’s offe r, and in failing to spend adequate time meeting with him. I n response , the State argues that this c ourt should a ffirm the denial of post-conviction relief beca use the petitioner failed to prove his alleg ations of ineffe ctive assistance of counsel by clea r and convincing evidenc e.

Post-conviction relief is only war rante d when a petit i o n er establishes that his or her conviction is void or voidable beca use of an abridg ement of a constitutional rig ht. T.C.A. § 40-30- 103 (2006). Our

supreme c ourt has held:

A post-conviction court’s findings o f fac t are conclusive on appea l unless the

ev i d ence preponde rate s otherwise. When revie wing fac tual issues, the appellate
court will not re- weig h or re- evaluate the ev idence ; moreove r, fac tual questions involving the cre dibilit y of witnesses or the weig ht of their testimony are matters for the trial court to resolve. The appellate court’s revie w of a leg al issue, or of a mix ed question of law or fac t such as a claim of ineffe ctive assistance of counsel, is de novo with no presumption of corr ectne ss.

Vaug hn v. State, 202 S.W .3d 106, 115 (Tenn. 2006) (interna l quotation and citations omitted). “The petitioner bear s the burden of proving fac tual alleg ations in the petition for post-conviction relief by

-6-clea

r and convincing evidenc e.” I d. (citing T.C.A. § 40-30-110( f); Wil ey v. State, 183 S.W .3d 317, 325 (Tenn. 2006)). Evidence is considere d clea r an d co n v i n cing when there is no serious or substantial doubt about the acc urac y of the conclusions draw n from it. Hicks v. State, 983 S.W .2d 2 4 0
, 2 4 5 (Tenn. Crim. App. 1998) (citing Hodg es v. S.C. Toof & Co., 833 S.W .2d 896, 9 0 1
, n

. 3 (Tenn. 1992) ).

Vaug hn further repe ated well-settled principles applicable to claims of ineffe ctive assistance of counse l:

The ri g ht of a person acc used of a crime to repr esentation by counsel is
g uara nteed by both the Six th Amendment t o the United States Constit ution and article I
, section 9, of the Te nnessee Constit ution. Both the United States Supreme Court and thi s Court have r ecog nized that this rig ht to repr esentation encompa sses the right to rea sonably eff ective assistance, that is, within the rang e of competenc e demande d of attorne y s in criminal case s.

202 S.W .3d at 116 (interna l quotations and citations omitt ed).

I n order to preva il on an ineffe ctive assistance of counsel claim, the petitioner must establish that (1) his lawy er’ s perf ormanc e was defic ient and (2) the defic ient perf ormanc e p rejudice d the defe nse. I d

. (c i t i n g Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Ba x ter v. Ros e, 5 23 S.W .2d 930, 936 (Tenn. 1975)). “[A] failure to prove either defic iency or prejudice provides a sufficie nt basis to deny relief on the ineffe ctive assistance claim. I ndeed, a court need not addre ss the components in any particula r order or even addre ss b o t h i f the [petit ioner] makes an insufficient showing of o n e co m p o n ent.” Goad v. State, 938 S.W .2d 363, 370 (Tenn. 1996) (c iting Strickland, 466 U.S. at 697, 104 S. Ct. at 2069).

A petitioner succe ssfully demonstrates defic ient perf ormanc e when the clea

r and convincing evidenc e proves that his attorney ’s conduct fell below “ a n o b je c ti v e s ta n d a r d of rea sonablene ss under
preva iling professional norms.” I d. at 369 (c iting S trickland, 466 U.S. at 688, 104 S. Ct. at 2065; Ba x ter, 523 S.W .2d at 936). Prejudice arising there fr o m is demonstrated once the petitioner establi shes “a rea sonable probability that but for counsel’s unprofe ssional err ors, the result of the
proce eding would have been differ ent. ” I d. at 370. “‘A rea sonable probability is a probability sufficie nt to undermine confide nce in the outcome.’” I d. (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068). I n order to satisfy the “pre judice” require ment in the context of a g uilty plea, a petitioner “must show that there is a rea sonable probability that, but for counsel’s err ors, he would
not have pleaded guilty

and would have insisted on going to trial.” Hill v. L ockhar t, 474 U.S. 52, 59, 106 S. Ct . 366, 370 (1985); see also Serra no v. State, 133 S.W .3d 599, 605 (Tenn. 2004)

. When analy

zing t he validit y of a g uilty plea, we follow the fe dera l landmark c ase of Boy kin

v. Alabama
, 395 U.S. 238, 89 S. Ct. 1 7 09 (1969), and the Tenne ssee landmark case of State v. Macke y , 553 S.W .2d 337 (T en n

. 1977), superse ded on other g rounds by rule as stated in State v. Wil son, 31 S

. W .3d 189, 193 (Tenn. 2000). State v. Pettus, 986 S.W .2d 540, 542 (Tenn. 1999). I n Boy kin, the United States Supreme C o u rt h el d that a trial court may not acc ept a g uilty plea unless there is an aff

irmative showing that the g uilty plea was “intellige nt and voluntary .” 395 U.S. at 242,

-7-89 S. Ct. at 1711. When acc epting a g uilty plea, the trial court is responsible for “ca nvassin g t h e matter with the acc used to make sure he has a full understanding of what the plea connotes and of its
conseque nce.” I d. at 244, 89 S. Ct. at 1712. I n Macke y , the Tenne ssee Supreme Court held that “the

rec ord of acc eptanc e of a defe ndant’s plea of g uilty must a ffirmatively demonstrate that his decision

was both voluntary and knowledg eable
, i.e., that he has b ee n m ad e aw are of the signific ant conseque nces of such a plea; otherwise, it will not amount to an ‘intentional abandonme nt of a known rig ht.’” 553 S.W.2d at 340.

The Tenne ssee Supreme Court has emphasized that a plea is not voluntary if it is the result of “‘[i] g noranc e, incomprehension, coercion, terror, inducements, [or] s u b t le or blatant t hreats

. . . .’” Bla nkenship v. State, 858 S.W .2d 897, 904 (Tenn. 1993) (quoting Boy kin, 395 U.S. at 242-43, 89 S. Ct. at 1712). A trial court must look at a number of circ umstantial fac tors befor e deter mining whether

a g uilty plea is voluntary and intelligent. I d. These fac tors include “the relative i n t el l i gen ce of the defe ndant; the deg ree of his familiarity with criminal proce eding s; whether he was repr esente d by competent counsel and had the opportunity to confe r with counsel about the options available to him; the extent of advice from counse l and the cour t c oncer ning the char g es ag ainst him; and the rea sons for his dec ision to pl ead guilty , including a desire to avoid a g rea

ter pe nalty

that might result from a jury trial.” I d. (citing Caudill v. J ag o, 747 F.2d 1046, 1052 ( 6th Cir. 1984)).

Her e, the petitioner failed to prove that trial counsel’s repr esentation was defic ient. See Vaug hn, 202 S.W .3d at 116. Specific ally , the petitioner fa iled to show that counsel was ineffe ctive in failing to e x plain the conseque nces of his ple a and in f ailing to spe nd adequate time meeting with him. In addition, the petitioner failed to show that but for trial counsel’s mistakes, he would not have pleade d g uilty and would have proce eded to trial. See Hill, 474 U.S. at 59, 106 S. Ct. at 370; see also Serra no, 133 S.W .3d at 605. The proof at the post-conviction hear ing showed that trial counsel met with the petitioner sever al times and discussed the offe nses, sentenc e rang es, rele ase el i gibilit y , possible defe nses, risks of a trial, and specific terms of his plea ag ree ment. The evidenc e based on the testimony at the post-conviction hear ing and the transcr ipt of the g uilty plea hear ing indicated that the petitioner understood the conseque nces of his plea and voluntarily enter ed his g uilty pleas. I n addition, trial counsel stressed that he believed the petitioner would have rec eived a harshe r sentenc e if he had tried the case

. During the post-conviction hear ing, the petitioner acknow ledg ed that at the g uilty plea hear ing he said he was satisfied with trial counsel’s repr es en t at i on. He also admitted that the trial
court informed him that he would rec eive an eff ective sevente en-y ear sentenc e at one hundred perc ent in exchang e for

his guilty pleas.

Furthermore
, the transcr ipt from the g uilty plea hear ing undermines all of the peti t i o n er ’s claims on appea l. The transcr ipt s h o ws t h at t h e trial court advised the petitioner of his rig hts, the
sentenc ing rang es for the offe nses, and the specific sent en ces offe red by the State in the plea
ag ree ment. The petiti oner testified t h at h e u n d er stood the charg es aga inst him and wished to plead
g uilty

. The trial court then outlined the details of the plea ag ree ment, emphasizing the leng ths of eac h
sentenc e and the fac t that the s ev en t een-y ear eff ective sentenc e would be serve d at one hundred
perc ent. Finally
, the court asked the petitioner sever al times if he understood the conseque nces of his plea, a nd the petitioner re sponded af firmatively

. At the post-conviction hea ring , the cour

t made the f

ollowing f

indings of f

act:

-8-Nothing in the rec ord of the plea indicates that the d ef en d ant’s plea was involuntary

. The trial court thoroug hly questioned the defe ndant about his decision to plead g uilty and that the defe ndant was well-a war e of his r ight to pr ocee d to tr ial and the possible conseque nces of either a ction befor e he ple d g uilty

.

. . . .

At the plea hear ing, the petitioner was asked if h e wa s satisfied with his attorney ’s per formanc e, and he indicated that he was satisfied. . . .

. . . .

The Court fi n d s t h at Petitioner was adequa tely informed of the nature and
conseque nces of the plea ag ree ment, and the punishment to be rec eived. His attorney made a dequate investigation of the fac ts.

. . . .

The Court finds that p et i t ioner has failed to establish the fac tual alleg ations contained in his petition by clea r and convincing evidenc e. Tenn. Code Ann. § 40-30- 210. The petitioner has not shown that (a) the service s rende red by trial counsel wer e defic ient and (b) the defic ient perf ormanc e was prejudicia l. The petitioner has not shown that the service s rende red or the advice g iven was below the rang e of competenc e demanded of attorney s in criminal case s. The petitioner has not shown that there is a rea sonable probability that, but for counsel’s defic ient perf ormanc e, the result of the pr ocee ding w ould have be en diffe rent.

Be cause the evidenc e does not preponde rate ag ainst the finding s of fac t of the post-conviction court, t h i s court is bound by those finding s. We conclude that the petitioner failed to prove by clea r and convincing evidence that counsel provided ineffe ctive assistance or that his g uilty pleas wer e involuntary . Acc ording ly , the petitioner is not entitled to relief on this issue.

Conclusion

. Upon re view, we aff irm the judg ment of the post-c onviction court.

______________________________ CAMI L L E R. McMUL L EN, JUDGE

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