# FILED
June 30, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

AT NA SHVILLE APR IL, 1997 SESSION
JAMES E. PEDEN, ) ) Appellant, ) No. 01C01-9509- CC-00298

) vs. ) Lincoln County ) STA TE OF TENN ESSEE , ) Honorable Char les Lee, Judg e ) Appellee. )

)

FOR TH E APPEL LANT: FOR THE APPELLEE: W ILLIAM C. ROBERTS, JR. JOHN KNOX WALK UP Suite 1502, Parkway Towers Attorney Gen eral & Repor ter Nashvil le, TN 37219 LISA A. NAYLO R Assistant Att orney Gener al Criminal J ustice Div ision 450 James Roberts on Parkway Nashvil le, TN 37243-0493 WI L L I A M M I C H A E L M c C O WN Distric t Attorney General 215 E. Colleg e, P.O. Box 904 Fayettev ille, TN 37334 W EAKLEY E. BARNARD Asst. Dist rict Attor ney General Marshall Co. Courthouse Room 407 Lewisburg , TN 37091
OPINION FILE D: ____________________
AF FIRMED
CURWOOD WITT JUDGE
OPINION1 The petitioner’s name appears on the t ranscript and the postconvicti on petitions “James Edwar d Peden” and appears

on the state’s brief and previous orders of this court “James E. Pede n, Jr.” We use the name as it appears on the in dictment, “James E. Peden.”
2 The petitioner was origi nally in dicted on nineteen separate counts
. The state dismiss ed fourteen counts as a result of the pl ea bargain. All of the charges related to an inc ident that occur red on March 6, 1992. A woman had reported to the police that the petitioner had exposed his genitals t o her. When the police attempt ed to stop the peti tioner’s vehicle, he fled, swervi ng around a police car that blocked hi s path and causi ng a number of officers to jump out of the way.

3 The Lincoln County public defender i nitially represented the petitioner. After the arrai gnment, the petit ioner retain ed Jack Deari ng, a priv ate atto rney. 2

The petitioner, James E. Peden 1 appeals pursuant to Rule 3 of the Tenne ss ee Rules of Appellate Procedu re from the Lincoln Count y Circuit Court’s denial of post-convi ction reli ef. On June 2, 199 2, the petitioner pleaded guil ty to three counts of agg ravated ass ault, a Clas s C felony, one countof felony reckless endangerment, a Class E felo ny, a nd on e count of indecen t exposure, a Class A misdemeanor. 2 In accorda nce w ith the plea ag reement, the tri al court sent enced the petitioner to an aggregate sentence of ten years a s a Range I offender. The petitioner fil ed no direct appe al.

The petitioner

filed a timely

petition for

post-conv iction rel ief alleging that his guil ty plea was involuntaryand that he had received inef fective assistance of counsel. Thetrial cour t held an evidentiar

y hearingon July 31, 1995 at whi ch the petitioner

and the two attorneys w ho had represented him testified. 3 The trial judge entered his order d enying t he petition on Aug ust 27, 1995. In t he order, the tr ial judge concluded that counsel’s perf o rman ce exc eed ed th at re quire d by Baxte r v. Rose , 523 S.W.2d 930 (Tenn. 1975), an d that the petiti oner had vol untarily and knowing ly entered his guil ty plea.3 In this appeal, t he petitioner contends only that he rece ived in eff ecti ve assistance of counsel. He al leges that counsel failed tomake a proper investi gation, failed to consider

alternative defenses or trial strategies, and did not make a record of discussions with his client or provide hi m with w ritten notice of the length of his sentence. After carefully review ing the record and the applicabl e law, we find that the evidence i n the record doe s not preponderat e against thetrial judge’s findings, and, therefore, we affirm the trial court’s dis missal of thepetition for post-conv iction relief.

In post-conv iction proceedings, the p et ition er has the burde n of proving the gr oun ds ra ised in th e pet itio n by a preponde rance of the evi dence. Clark v. State , 800 S.W.2d 500, 506 (Tenn. Cri m. App. 1990). When review ing the dismissal of a post-conv iction petit ion, this cour t must affirm the judgment of the tr ial court unless the evidence in the record prepon derates against the court’s find ings. Cooper v. State , 849 S.W.2d 744, 746 (Tenn.1993).

In Tennessee, the acc used has a con stit utio nal ri ght to the e ff ecti ve assistance of counsel at all critical stagesof a criminal p rosecution. Tenn. Const. art. I, § 9; Powel l v. Alabam a , 287 U.S. 45 (1932) ; McKeldin v . State , 516 S.W.2d 82, 86 (Tenn.1974) . I n order to establish ineff ectiveness under the standard established by the United States Supreme Court in Stric klan d v. Washington , 466 U.S. 668, 104 S.Ct. 2052 (1984), a criminal d efendant must show both that4

counsel’s performance was deficien t and that the def iciency is su fficient to undermine confidence in the o utcome of the proceedi ng. 466 U.S. at 694, 104 S.Ct. at 2064. In Tennessee, t he appropriate t est for determini ng whether counsel pro vid ed effective assi stance is w hether his adv ice and serv ices wer e within the range of competence demanded of trial atto rneys in criminal cases. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn.1975).

The standard is adjusted, however, in the cont ext of a gui lty plea. To set aside a guilty plea because of ineff ective assistance of counsel, the attorney’s performance must be defic ientas defined in Strickland

. To satisfy th e “prejudice” requirement , the p etitioner must show that “

there is a reasonable probabi lity that , but for counsel’s errors, hewould not h ave pleaded g uilty and would have insisted
on going to trial.” Hill v. Lockhart , 474 U.S. 52, 59, 106 S.Ct. 366, 370 (1985); Dixon v. State , 934 S.W.2d 69, 72 (Tenn. Crim. App. 1996).

The rules of appell ate review are well -esta bli shed. First, this court cannotreweig h or reeva luate the evi dence; nor can i t substitut e its inferences for those drawn by the tria l court. Stat e v. Harris , 839 S.W .2d 54, 75 (Tenn. 19 92). Second, questions concerning t he credibil ity of w itnesses, the weight and value to be given their testimony, and the factual issues raised by the evidence are matters resolved by the tri al court. State v . Williams , 657 S.W .2d 405, 410 (Tenn . 1983). Third, the petitioner has the burden of establishing that the evidence in the record preponderatesagainst the findin gs of the tr ial court. Butler v. State , 789 S.W.2d 898, 900 (Tenn. 1990).

At the con clusion of the hear ing, the tr ial judge found that the petitioner’s

testimony

was not bel ievable, and he specificall y accredi ted counsel’s5

testimony. The trial judg e found that counsel consulted wi th the petitioner for f ive
or six hours prior

to the entry

of his guil ty

plea, that he ex plained the elements of the offenses and discussed all possibl e defenses wit h the petitioner , and that counsel made no promises concerning the length of time the petiti oner would actually serve. He found that coun sel interviewed all of the eye wi tnesse s and v icti ms in the case and had not ignored or failed to di scover any exculpator

y evid ence. The tria l judge noted that petitioner’s retained counsel was experi enced in cri minal defense and that he was able to negoti ate a favorable plea bargain on t he petitioner’ s behalf.

Based on these finding s, the trial court concl uded that the adv ice and service s provided by counsel not only were withi n t he r ange of competen ce demanded of c riminal d efense attorne ys but that they exceeded the applicable standards. The record supp orts the trial co urt’s factual findings. Counse l’s testimony

was rebutted only by the petitioner himself

. Questions concerning the credibili ty

of witnesses , the weig ht and value t o be given their testi mony, and the factual issues rai sed by the ev idence are matter s resolved by the tr ial court, State
v. Williams , 657 S.W.2d 405, 410 ( Tenn.1983), and the tr ial judge accredited the testimony g iven by

the two att orneys.
Moreover, we can not find that counsel was ineffectiv e because he neglected to provide his client with written notice of the le ngth of his sent ence or because he failed to make a wr itten record of his meetings with the petitioner. The petitioner’s responses at t he guilty plea s u bmission heari ng demonstrate t hat he knew exactly what the ag reed sentence wa s accordingto the plea ag reement. Nor
can we concei ve of any prejudice that mi ght accrue to the petitioner byhis attorney’s failure to note in his file the time, length and substance of their meetings.4 Petitioner has not raised theissue of vol untariness i n this appeal. The issue, however, was before the tri al court, and t he record cont ains testimony and the trial judge’s findings on the issue. Because the brief filed on petitioner’s beh alf is a sc ant t hree page s in le ngth and d evelo ps no issue in de tail , we ha ve chosen to rev iew the tr ial court’ s finding on thevoluntari ness of petitioner’s guilt y plea in the int erest of justice. Tenn. R. App. P. 2. 6 Neither the exist ence nor non-ex istence of such a record wou l d demonstrate that “butfor counsel’s errors, he would not have plea ded guilty and would hav

e insisted
on going to trial.” Hill v. Lockhart , 474 U.S. at 59, 106 S.Ct. at 370; Dixon v . State , 934 S.W.2d at 72.

We affirm the trial court’s conc lusion that the petitioner received effective assistance of counsel i n the resoluti on of these charg es.

The trial judge also found that the p etitioner’s guilty plea was voluntary and in accordance with constitutional requirements. 4 The petitioner’ s responses t o the trial judg e indicate that he fully under stood his rights a nd that he acknow ledged that neither pr

omises nor coer

cion motivated his plea. A trial court’s only method to determine w hether a plea i s motivate d by i mproper promise s or threats is to question the def endan t. As the trier of fact, the trial judge is en titled t o weigh all the evidence presented at theevidentiar y hearingbased on the petitioner’s demeanor and all of the circumstances. Tonia Lee Davenpor t v. State , No. 02C01-9307-CC0151, slip op. at 1 0 (Tenn. Crim. App., J ackson, F eb. 8, 1995). After givi ng the matter due considerat ion, the tria l judge found that the petitioner

voluntari ly and knowingly

surrendered his constitu tional rig hts. The evi dence in therecord does n ot preponderate ag ainst that finding

.

The petitioner has

not met his burden of proving the allegations in his post-convi ction petition by a preponderance of the ev idenc e. He has not7

demonstrated that but for counsel ’s e rrors, he w ould not have pleaded guil ty and would have insisted on g oing to tri al, or that his gu ilty pl ea was ente red in volun taril y. Therefore, we affirm the trial court’s dismissal of his petition for post-convic tion rel ief.

__________________________ CURW OOD W ITT, Judge

______________________________ GARY R. W ADE, Jud ge

______________________________ DAVID H. W ELLES , Judge