# FILED
October 31, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON SEPTEMBER SESSION, 1999

BRIAN ORLANDUS * WILLIAMSON, * * No. 02C01-9810-CR-00305 Appellant, * * SHELBY COUNTY vs. * * Hon. W. Fred Axley, Judge STATE OF TENN ESSEE, * * (Post-Conviction) Appellee. *
For the Appellant : For the Appellee : Jeffrey S. Glatst

ein Paul G. Summers 200 Jefferson Avenue Attorney General and Repor ter Suite 202 Memphis, TN 38103 R. Stephen Jobe Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493
William L. Gibbons District Attorney General Rose mary

S. Andre

ws Asst. District Attor

ney General 201 Poplar Avenue, Third Fl oor Memphis, TN 38103

OPINION FILED: AFFIRMED
David G. Hay

es, Judge1 The record contai ns judgments for si x of the appel lant’ s crimes: three counts sale of cocaine, Cl ass B feloni es receivi ng twenty years on each count ; possession of cocaine with intent to sell , a Class B fel ony recei ving twent y years;sale of cocai ne, a Class C fel ony recei ving ten years; and driving while a n habitua l motor v ehicle offe nder, a C lass E fe lony receiving four years

. Although t he judgments of the r emaining convictions are not contained i n the record, the indict ments and the transcript fr om the guilt

y plea hearing demonstrate that the appel lant al so pled guil

ty to another count of possession of co caine wit h intent to dist ribute, a Class C felony receivi ng 10 years, and various other misdemeanors, invol ving drug and t raffic of fenses. The plea a gree me nt pro vided that th e app ellant wou ld be s ente nce d as a Ran ge II o ffen der w hen in actuality the ap pellant wa s a Ran ge III offen der. In his pe tition, the appe llant seek s postconviction relief related o nly to the seve n felony co nvictions.

2 The incarcerated p etit ioner a pparentl y maile d the pet iti on on Januar y 8, 1 998. “A post-convi ction pet iti on fil ed by a pro sepetit ioner who i s incarcerat ed is fi led when it

is recei ved by approp riate prison authorities f or ma iling.” Sup. C t. Rules, R ule 28 § 2 (G). 2 OPINION
The appellant, Brian Orlandus W illiamson, appeals from the denial of his petition for post-conviction relief by the Shelby County Criminal Court. On January 15, 1997, pursuant to a negotiated plea agreement, the appellant ente red guilty pleas to thirteen offenses 1 resulting in an effectiv e sentence of twenty year s. On appeal, the appellant collater ally challenges hi s convictions upon gr ounds (1) that his pleas were involu ntarily en tered an d (2) that he receive d the ine ffecti ve assistance of counsel.
Following rev

iew, we affirm the judgment of the post-conviction cour t.

BACKGROUND On January 16, 1998, the appell ant filed a pro se petition for post-convic tion relief. 2 After counsel was appointed,an amended petition was filed i n March of 1998. In his claim of ineffective assistance, the appellant seek s relief upon grounds (1) failing to consult w

ith the appellant and “sufficientl y” explain “tri al procedures, . . . trial strategy, ” and defenses; (2) failing t o properly investi gate and interview two

witnesses; and (3) fail ing to file a motion to suppres s a video which depi cted the3 Constitutional protections are intended as restraints against the activities of sovereign authority and may not be inv oked by one citizen agai nst another ab sent governmental partici pation. Because no state action is est ablished, this cl aim abridges no const itutional ri ght and is not cognizable i n a post-convi ction procee ding. U.S. Const. Amend. 14 Sect. 1.; Tenn. Code Ann. § 40-30-203.

4 Apparently , at the

time of the gui lty

pleas the appe llant

was on parole. 3 appellant and his involv ement in the drug transacti on. In his second issue, the appellant argues that he was coerced into pleading guilty and thus his pleas were involuntary based upon ( 1) counsel’s failure to ex plain the nature and consequenc es of the guilty pleas; (2)

coercion from appellant’s famil y after viewing

the videotape of the drug transaction; 3 and (3) reliance upon counsel’s representation that his “parole time” would r

un concurrent with his

negotiated twenty y

ear sentence. 4 Despite the fact that, on the date of sen tencing, the appellant’s prior criminal history included convictions for five felonies and three misdeme anors, he argues that his guilty pleas wer

e involuntarily ent

ered in that he was “ev er new to the justice s

ystem and not auware [sic] of [his ] rights.”
A hearing on the merits w as held on July 23, 1998, at w hich only the appellant and trial counsel testified. At the hearing the appellant testified that he plead guilty because trial counsel advised him that, if he went to trial, he would receive forty to sixty years. Additionally, the appellant related that his plea was in part based upon reliance of counsel ’s representation that his “parole time” would r

un concurrent with his pending charges. Regarding ineffective assis tance, the appellant reiterated his claim that counsel did not properly investigate his case including two w

itnesses who would h ave provided him with an alibi. The appellant, however, a dmitted that he n ever provid ed to cou nsel the n ames of those two witnesses nor wer

e those witnesses call ed to testify at the post-conv iction hearing. On cross-examina tion, the appe llant acknowledge d that, at the gu ilty plea hearing, he advised the court, “[H ]e [trial counsel] repr esented me real well . . . [H]e did all he could.” At the hearing, counsel refuted the appellant’s al legations that appellant w as advised that his “parol e time” would run concur rently with the pendi ng charges or4

that the appellant’s pleas w ere in any way c

oerced. Counsel testified that no motion to suppress the videotapes was filed because there w ere no grounds for suppression. With regard to the ineffectiv e assistance of counsel claim, the postconviction court found: Petitioner fails to show

counsel was not functioning as guaranteed by the Sixth and Fourteenth Amendments . [Counsel] met with Peti tioner on approximately ten occ asions to discuss his ca se. After careful review of the evidenc

e, [counsel] in his professi onal judgment determined that Petitioner had little chance of an acquittal if his case went to trial. Counsel

concluded that Petitioner had n o defenses due to the incriminating nature of the videotape evidence nor were there grounds for the suppression o f this evidence.

. . . With regard to the appellant’s claim th at his guilty pleas were involuntari ly entered, the post-conviction cour t further observed: There is no merit to the Petiti oner’s contention that his g uilty plea was not entered voluntarily and intelligently. [The trial court] diligently apprised Petitioner of his constitutional rights before accep ting his guilty plea. . . . Petitioner then told [the tri al court] that his plea w as not the result of any sort of coer cion . . . , misunderstanding of the implications of his guilty plea, or that the plea was entered as a result of anything less than Petitioner’s own free wi ll.

. . . Furthermore, Petitioner fail s to show he was prej udiced. Before [the trial court] accepted the g uilty plea, Petitioner recognized that he understood the ramifications of enter ing a guilty plea,and that no one had coerced his plea. Petiti oner has completely failed hi s burden of proving fa cts which wou ld suppo rt a find ing that h e would rat her have gone to trial had he been other wise advised. In order to succeed on a post-conviction claim, the appellant bears the burden of showing, by clear and convincing evidence, the allegations set forth in his petition. Tenn. Code Ann. § 40-30-21 0(f) (1997). When this court undertakes review of a lower

court’s decision on a peti tion for post-conviction relief, the lower court’s findings of fact are g iven the weight of a j ury verdict and ar e conclusive on appeal absent a finding that the ev idence preponderates against the judgment. See Davis v. State , 912 S.W.2d 689, 697 (Tenn. 1995).
To prevail on a claim of ineffectiv e assistance of counsel, a cri minal defendant must show two things: (1) the lawyer ’s performance fell below an5

“objective standard of reasonableness,” Strickland v. Washington , 466 U.S. 668, 687-688, 104 S.Ct. 2052, 2064-65 (1984); Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975); and (2) “there is a reasonable probability that, but f or counsel’s unprofessional errors, the result of the proceeding would have been dif ferent.” Strickland , 466 U.S. at 694, 104 S.Ct. at 2068 . Effectiveness of counsel is a mi xed question of law and fact. Id. at 698, 104 S.Ct. at 2070. In Hill v. Lockhart , 474 U.S. 52, 106 S.Ct. 366 (1985), the Cou rt held that Strickland’s analysis applies eq ually to cases resolved by a guilty plea. In Hill v. Lockhart , the Court stated that “in order to satisfy the ‘prejudice’ requirement, the defendant mu st show that there is a reasonable probability that, but for counsel’s error s, he would not have ple aded guilty and would have insisted on going to trial.” Id. 474 U.S. at 59, 106 S.Ct. at 370.

The established test for determini ng the validity of the guilty plea is “

whether the plea represents a vol untary and intelligent choice among the alternati ve courses of action open to the defendan t.” Id. at 56, 106 S.Ct. at 369 (citing North Caro lina v. Alford , 400 U.S. 25, 31, 91 S.Ct. 160, 164 (1970) (other citations omitted)). We find that this test was met in this case.
We conclude that the record fully supports the findings of the post-conv iction court that the appellant has not proven by clear and c onvincing evidence

that counsel was ineffective or that his guilty pl eas were involuntar ily entered.

Accordingly, the j udgment of the post-convicti on court in dismissing the appellant’s petition is affirmed.6 ____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

__________________________________________ JOE G. RILEY, Judge

___________________________________________ THOMAS T. W OODALL, Judge