FILED

October 31, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

SEPTEMBER SESSION, 1999

BRIAN ORLANDUS *

WILLIAMSON, *

* No. 02C01-9810-CR-00305

Appellant, *

* SHELBY COUNTY

vs. *

* Hon. W. Fred Axley, Judge

STATE OF TENNESSEE, *

* (Post-Conviction)

Appellee. *

For the Appellant: For the Appellee:

Jeffrey S. Glatstein Paul G. Summers

200 Jefferson Avenue Attorney General and Reporter

Suite 202

Memphis, TN 38103 R. Stephen Jobe

Assistant Attorney General

Criminal Justice Division

425 Fifth Avenue North

2d Floor, Cordell Hull Building

Nashville, TN 37243-0493

William L. Gibbons

District Attorney General

Rosemary S. Andrews

Asst. District Attorney General

201 Poplar Avenue, Third Floor

Memphis, TN 38103

OPINION FILED: 

AFFIRMED

David G. Hayes, Judge
1

The record contains judgments for six of the appellant’s crimes: three counts sale of

cocaine, Class B felonies receiving twenty years on each count; possession of cocaine with intent

to sell, a Class B felony receiving twenty years; sale of cocaine, a Class C felony receiving ten

years; and driving while a n habitua l motor v ehicle offe nder, a C lass E fe lony receiving four years . 

Although the judgments of the remaining convictions are not contained in the record, the

indictments and the transcript from the guilty plea hearing demonstrate that the appellant also

pled guilty to another count of possession of cocaine with intent to distribute, a Class C felony

receiving 10 years, and various other misdemeanors, involving drug and traffic offenses. The

plea a gree me nt pro vided that th e app ellant would be s ente nced as a Ran ge II o ffender 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 petitioner apparently mailed the petition on January 8, 1998. “A 

post-conviction petition filed by a pro se petitioner who is incarcerated is filed when it is received

by approp riate prison authorities f or ma iling.” Sup. C t. Rules, R ule 28 § 2 (G). 

 

2

OPINION

The appellant, Brian Orlandus Williamson, 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 entered guilty

pleas to thirteen offenses1 resulting in an effective sentence of twenty years. On

appeal, the appellant collaterally challenges his convictions upon grounds (1) that

his pleas were involuntarily entered and (2) that he received the ineffective

assistance of counsel. 

Following review, we affirm the judgment of the post-conviction court.

BACKGROUND

On January 16, 1998, the appellant filed a pro se petition for post-conviction

relief.2 After counsel was appointed, an amended petition was filed in March of

1998. In his claim of ineffective assistance, the appellant seeks relief upon grounds

(1) failing to consult with the appellant and “sufficiently” explain “trial procedures, . .

. trial strategy,” and defenses; (2) failing to properly investigate and interview two 

witnesses; and (3) failing to file a motion to suppress a video which depicted the
3

Constitutional protections are intended as restraints against the activities of sovereign

authority and may not be invoked by one citizen against another absent governmental

participation. Because no state action is established, this claim abridges no constitutional right

and is not cognizable in a post-conviction proceeding. U.S. Const. Amend. 14 Sect. 1.; Tenn.

Code Ann. § 40-30-203.

4

Apparently, at the time of the guilty pleas the appellant was on parole.

3

appellant and his involvement in the drug transaction. 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 explain the nature and consequences

of the guilty pleas; (2) coercion from appellant’s family after viewing the videotape

of the drug transaction;3 and (3) reliance upon counsel’s representation that his

“parole time” would run concurrent with his negotiated twenty year sentence.4

Despite the fact that, on the date of sentencing, the appellant’s prior criminal history

included convictions for five felonies and three misdemeanors, he argues that his

guilty pleas were involuntarily entered in that he was “ever new to the justice system

and not auware [sic] of [his] rights.”

 A hearing on the merits was held on July 23, 1998, at which 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 run

concurrent with his pending charges. Regarding ineffective assistance, the

appellant reiterated his claim that counsel did not properly investigate his case

including two witnesses who would have provided him with an alibi. The appellant,

however, admitted that he never provided to counsel the names of those two

witnesses nor were those witnesses called to testify at the post-conviction hearing. 

On cross-examination, the appellant acknowledged that, at the guilty plea hearing,

he advised the court, “[H]e [trial counsel] represented me real well . . . [H]e did all he

could.” At the hearing, counsel refuted the appellant’s allegations that appellant was

advised that his “parole time” would run concurrently with the pending charges or
4

that the appellant’s pleas were in any way coerced. Counsel testified that no motion

to suppress the videotapes was filed because there were no grounds for

suppression. With regard to the ineffective 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 Petitioner

on approximately ten occasions to discuss his case. After careful

review of the evidence, [counsel] in his professional judgment

determined that Petitioner had little chance of an acquittal if his case

went to trial. Counsel concluded that Petitioner had no defenses due

to the incriminating nature of the videotape evidence nor were there

grounds for the suppression of this evidence. 

. . . 

With regard to the appellant’s claim that his guilty pleas were involuntarily entered,

the post-conviction court further observed:

There is no merit to the Petitioner’s contention that his guilty plea was

not entered voluntarily and intelligently. [The trial court] diligently

apprised Petitioner of his constitutional rights before accepting his

guilty plea. . . . Petitioner then told [the trial court] that his plea was not

the result of any sort of coercion . . . , 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 will. 

. . .

Furthermore, Petitioner fails to show he was prejudiced. Before [the

trial court] accepted the guilty plea, Petitioner recognized that he

understood the ramifications of entering a guilty plea, and that no one

had coerced his plea. Petitioner has completely failed his burden of

proving facts which would support a finding that he would rather have

gone to trial had he been otherwise 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. § 40-30-210(f) (1997). When this court undertakes

review of a lower court’s decision on a petition for post-conviction relief, the lower

court’s findings of fact are given the weight of a jury verdict and are conclusive on

appeal absent a finding that the evidence preponderates against the judgment. See

Davis v. State, 912 S.W.2d 689, 697 (Tenn. 1995). 

To prevail on a claim of ineffective assistance of counsel, a criminal

defendant must show two things: (1) the lawyer’s performance fell below an
5

“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 for counsel’s

unprofessional errors, the result of the proceeding would have been different.” 

Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Effectiveness of counsel is a mixed

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 Court held that Strickland’s analysis applies equally to

cases resolved by a guilty plea. In Hill v. Lockhart, the Court stated that “in order to

satisfy the ‘prejudice’ requirement, the defendant must show that there is a

reasonable probability that, but for counsel’s errors, he would not have pleaded

guilty and would have insisted on going to trial.” Id. 474 U.S. at 59, 106 S.Ct. at

370.

The established test for determining the validity of the guilty plea is “whether

the plea represents a voluntary and intelligent choice among the alternative courses

of action open to the defendant.” Id. at 56, 106 S.Ct. at 369 (citing North Carolina 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-conviction

court that the appellant has not proven by clear and convincing evidence that

counsel was ineffective or that his guilty pleas were involuntarily entered.

Accordingly, the judgment of the post-conviction court in dismissing the

appellant’s petition is affirmed. 
6

____________________________________

DAVID G. HAYES, Judge

CONCUR:

__________________________________________

JOE G. RILEY, Judge

___________________________________________

THOMAS T. WOODALL, Judge