### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs F eb ru ar y 8, 200 5
THOM AS M. McC ORM ICK v. STA TE OF TEN NES SEE
Appeal f romthe Circ uit Court for Bedf ord County No. 9668 Charles Lee , Judge

No. M2004- 00042-CCA -R3-P C - F iled March 28, 2005

Th e pe tit ion e r, Th oma s M. Mc Cormic k, app e a ls a s o f rig ht the dis mis sa l of his pe titio n f

or po stconviction re lief by

the B edfor d CountyCi rc u i t C o u rt

. He se eks re lief fr om his conviction for ag g ravated assault and sentenc e of twelve y ear s as a Rang e I I I , persistent off ender . The pe titioner contends t h at h e re ce ived the inef fec tive assistance of counse l which caused him to enter a n un kn ow ing a ndinv olu nta ry g uil ty ple a . 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

J OS EP H M. T I PTON , J ., delivere d the opi nion of the c ourt, in which N OR MA M C G EE O G LE a n d J. C. M C L IN , J J ., joined.

Do nn a L e ig h Ha

rg ro ve , Di stric t Pub lic De fe nd e r, a nd An dr e w Ja c ks on De ari ng , I I I , A ssi sta nt P ub lic Def ender , for the a

ppellant, Thomas M. McCormick.

Pa ul G . Su mme rs , Atto rn e y Ge ne ra l and Re po rt e r; Jenn if e r L . B le ds oe , A ssi sta nt A tto rn e y Ge ne ra l; Wil lia m M i ch ae l McCown, District Attorney Gene ral; and Micha el D. Randles a nd Ann L . Filer , Assistant District Attorney s Gene ral, for the appe llee, State of Te nnessee

. OP IN ION
The pe titioner was initially indicted for two c ounts of espec ially aggra v ated kidnapping , a Class A fe l ony , and two counts of a g g ravated assault, a Class C fe lony . Pursuant to a plea
a g r e e m e n t , t h e p e t i t i o n e r p l e d g u i l t y t o o n e c o u n to f a g g r a v a t e d k i d n ap p i n g , a C l a s s B f

e l o n y. Sho rt ly a ft e r the pe tit ion e r e nte red h is guil typle a , h is atto rn e y re a lize d th a t sh e ha d n e g le c te d to inform him that pe rsons committing the offe nse of a g g ravated kidnapping are require d to serve one hundred pe rce nt of the sentence impos ed by the court. See T.C.A. § 40-35-501(i)(1) , (i)(2) (D). T he petitioner wa s allowed to withdraw his guilty p l ea. After f urther ne g otiations, the petitioner pled g u i l t y t o a g g r a v a t e d a s s a u l t , a

C l a s s C f

e l o n y , a n dw a s s e n t e n c e d t o t w e l v e y e ar s a s a R a n g e III , persistent off

ender with relea se elig ibilit y

afte r ser ving f

orty -five pe rce nt.-2-

At the first g uilty plea hearing, the trial court informed the petitioner that it would ask a series of questions afte r the pe titioner wa s place d under oath and that a f alse a nswer or

statement
conce rning a material fac t could result in a cha rg e of pe rjury . The pe titioner informed the tria l court that he under stood. The trial court asked the pe titioner if he re ad an d understood the g uiltyplea petition. The petitioner re sponded af firmatively . The trial c ourt asked the petiti o n er whether he
un de rs too d h e wa s w a ivi ng c e rt a in rig hts , in c lud ing the ri g ht to a tri a l by jury , an d e xpla ine d in de ta il what those rig hts e ntailed. The petitioner re sponded that he unde rstood. The trial c ourt asked the petitioner whe ther he understood the r ang e of punishment for the offe nse would be “ at least 8 y ear s and could be as many

as 30 y ear s,” and if he had less t h an t wo fe lony convictions, the ra ng e of punishment “would be not less than 8 nor more than 12 y ear s.” He replied that he under stood the rang e of punishment. The state informed the trial court the pe titioner was a Ra ng e I , standard offe nder. The trial court asked him if the re ha d been any threa ts or promises made to him conc erning the g uiltyplea, other

than those announc ed in court on that day . He r eplied neg atively and said he had no questions.

The st at e presented the f ollowing f

actua l basis to support the plea and a g ree ment: On September 8, 2002, the p et i t i oner r emoved his wife from her mother’s home in Coffe e County at g unpoint. He phy sically pulled her out of the house by her hair, place d her in his truck, a nd beat he r with wooden sticks and his fists du ri n g t h e t ri p back to their home in Be dford County . When a Be dford Co u n t y p o lice off icer arrived at the pe titioner’s home, he c ould see the silhouette of one fig ure striking another

throug h a window. The office r knocke d. The petitioner answe red the door and wa s asked to step outside. The petitioner’s wife was seve rely b ru i s ed an d b l ood was c oming from her mouth and fee t. She was mainly incoher ent but was a

ble t o convey

that she wa s taken fr om her mother ’s home at g unpoint and beate n during the entire drive home. O nce the y arrived, the pe tit ion e r c on tin ue d to be a t he r wi th his fi sts a nd wi th be lts a ndhe ld kniv e s to he r thr oat. H e tol d he r s he wa s g oin g to die

. Th e of fi c e rs fo un d blo od a nd a c hu nk of fl e sh ins ide the truc k. Th e y a lso found a .22 c aliber D erringe r pistol and sever al wooden carving sticks matching descriptions of the items with which the victim said she was be aten. The petitioner ac knowl ed ged t h e facts as prese nted

. T h e tr

ia l c o u r t s c h e d u le d the sentenc ing he aring , but the petitioner subseque ntly withdrew his guilty plea to the a g g ravated kidnapping char g e.
After additional plea nego t i at i ons, the petitioner pled g uiltyto ag g ravated assault. At the hearing on the petitioner’s sec ond g uiltyplea the f ollowing c olloquy

occur red:

CO UR T: Th e Cou rt pr e vio us ly

e nte rtaineda nddid
acc ept a plea

of gu i l ty in this m atter. The Court previously

explained to [t he petitioner]
a ll o f the ri g hts wh ic h w e re a ssociat e d w ith the entry of a plea of g uilty ; a scertained t hat his plea was fre ely and voluntarily made; and th e na f ter w a r d s b e c a use of a misunderstanding not about any

of the rig hts which the [petit ioner] had, but about the nature of the-3- plea i t self, the Court allowe d the plea to be withdrawn. So, [ t o the petitioner] do y ou rec all that when y ou previouslyappeare d be fo re the C ourt

a ndthe Cou rt

e xpla ine d to y ou a ll o f

th e r ig h ts w h ic h y o u h a d a n d the State toldthe Cou rt

the fa c tua l ba sis surrounding that, has any of that cha ng ed?
[P ETI TI ONER]: No, sir.

COURT: Gene ral, what is the ag ree ment which y ou

have r eac hed in this matter?
[S TATE]: Please the Court, the a g ree ment is that the

[pe tit ion e r] p le a d g uil ty to co un t 2, whic h is a C g ra de fe lon y , a g g ra vate d a ss aul t. He is waiving his – the sent en ci ng rang e that he would fall wit hin, based upon his criminal
rec ord for

purpose s of this neg otiated
se ttl e me nt, ha s a g re e d to be se nte nc e d to persist ent offe nder at 45 perc ent to a 12 y ear sentenc e.
COURT: 12 or 9?
[ S T A T E ] : It

s h o u l d b e 1 2

. D o e s t h e p ap e r w o rk s a y 9 ? It should be 12.

COURT: [To the petitioner] I want to make sur e that y ou understand. I

am sure that y our lawy er h as ex p l ai n ed t o y o u t h at n o rm al l y s p ea k i n g a person that doe s n o t have at least two felony
c on vic tio ns

. . . wo uld be e lig ibl e for rele a se afte r at lea st 3 0 p er cent . . . . That doesn’t mean y ou are g oing to be rele ased. I t means y ou wi ll be e lig ibl e to b e re le a se d. On ly tho se persons who ha ve two or more fe lonies can be
se nte nc e d w he re the ir

e arl ie st rel e a se da te is 45 perc ent. Howeve r, on occa sion, the parties
ma y a g re e that it is in the ir be st int eres t to fore g o the s entenc ing la w as it perta ins to the number of f

elony convictions a pe rson has a nd ag ree to acc ept a se ntence even thoug h they-4- m a y n o tn o r m a l l y

f a l l w i t h i n t h a tr a n g e

. In y our ca se the reason for doing that is that y ou are c omi ng ou t of

10 0 pe rc e nt rang e do wn to 45 a s a r e s u l to f t h i s n e g o t i a t e d s e t t l e m e n t. That would b e i n y our best intere st. Do y ou understand w hy

y ou are being sentenc ed to 45 perc ent eve n though y ou don’t have two prior felonies in y our bac kg round?
[P ETI TI ONER]: Yes, sir.

COURT: Do y ou have any questions at all about the ag ree ment t h at y ou have r eac hed with the State in this m atter?
[P ETI TI ONER]: No, sir.

CO U RT : A ll r ig h t. T h e Co u r t w il l f in d th a t to be
ac c e p ta b le

. T h e Co u r t w il l e n te r the jud g me nts a s e nte re d b e tw e e n th e pa rt ie s.
Th e he ari ng wa s c on c lud e d at th is p oin t. T he re a ft e r, the pe tit ion e r fi led a peti tio n f or po stconviction re lief alleg ing the ineffect i v e assistanc e of c ounsel. He c laimed the attorne y who repr esente d him dur i ng the plea ne g otiations advised him incorrec tly on sentenc ing issues w hich resulted in an unknow ing and involuntary g uilty plea. He asserted that at the time he enter ed his plea of gu i l t y , he believe d his ag ree d sentenc e wa s nine y ear s with thirtyperc ent re lease elig ibilit y but
a lso that th e se nte nc e wa s su sp e nd e d e xce pt f or e le ve n mo nth s a ndtw e nty -n ine da y s. At the post-conviction hearing , the attorney who represe nted t he petiti oner during his plea proce eding s testified that she met with him at least twenty or twenty -five times. She said the initial ind ic tme nt w a s f

or tw o c ou nts of e sp e c ia lly a g g ra vate d kidn app ing , a Cla ss A fe lon y , a ndtw o c ou nts of ag g ravated assault, a Class C fe lony . She said she tol d h i m t h e ra n g e of punishment wa s from fiftee n to six ty

y ear s for the Class A felony offe nse. She admitted that when the pe titioner entere d his first guilty

plea, she had for g otten that conviction for an ag g ravated kidnapping offe nse re quired one hundre d perc ent service

. She said she made arr ang ements to w ithdraw the g uiltyplea on the day she di scover ed her err or. She said that the s tate and trial judge allowed the ple a to be withdra wn and that she re neg otiated a se cond ag ree ment. She denied telling the petitioner he would serve eleve n months and twenty -nine day s or any other amount of time befor e he w ould be re lease d. She said she informed him that his se ntence would be determined by the trial court afte r a hearing. She said she
was a war e that the petitioner had pr oblems with reading and compr ehension a nd that his educa tional le ve l w a s b e low a ve ra g e . Sh e sa id s he re vie we d th e ple a a g re e men t wi th him

a ndle t hi m r e a d it

. She sa id h e didno t in dic a te to h e r that he didno t und ers tandthe do c ume nt. She sa id s he a lso
e x p l a i n e d t h e p e t i t i o n e r ’ s r i g h t s t o h i ma n d w h i c h o f t h o s e r i g h t s h e w o u l d w a i v e b y p l e a d i n g g u i l t y.-5-

She sa id tha t w he n th e ne w p le a a g re e me nt w a s n e gotiate d, sh e tol d th e pe tit ion e r tha t in order to plead to a lower class offe nse and g et rid of t he especially ag g ravated kidnapping char g e, he wo uldha ve to p le a d to a se nte nc e ou tsi de his no rm a l r a ng e . Sh e sa id that sh e e xpla ine d w ha t it
m ea n t to “plead outside the rang e” and that this was nece ssary to reduc e the c harg e to ag g ravated assault. She said he had questions about hi s rele ase eligibility , so she ca lculated f orty -five pe rce nt of the tw e lve -y e ar se nte nc e of fe re d b y the state , w hic h w a s 5 .4 y e ars . Sh e sa id s he tol d h im tha t th is
wa s th e da te he wa s e lig ibl e fo r p aro le bu t th at th e rel eas e date wo ulda c tua lly be ba se d u po n h is behavior while in the penitentiary . She said she discussed the new of fer with him, let him rea d the ag ree ment, and explained the differ ence s betwee n the new ag ree ment and the former

. She said the petit i o n er had no questions after war d. Wit h reg ard to the ple a hea ring s, she said she a dvised the petitioner to answe r the trial court’s questions tr uthfully

. She said that the second plea a g ree ment wi th the state wa s for twe lve y ear s, not nine y ear s, and that the e rror on the judg ment form wa s clerical in nat u re. She sa id she made no pr omises or g uara ntees c oncerning se ntencing to the petitioner.

On cr oss-examination, the attorney testified that she did not pressur e the petitioner to acc ept the state ’s of

fe r a ndthat sh e wo uldha ve be e n ju st a s ha pp y to g o to t

ri a l. S he sa id h e r j ob wa s to prese nt her c lients’ options to t hem and let them de cide what to do. She sa id that she revie wed the plea a g ree ment with the petitioner and tha t if at any point he appea

red to misunderstand some part of it, she went ba ck over

it with him until he acknowledg ed he understood. She said that she did not require the petitioner to ac cept e ither plea ag ree ment on the day

she pre sented them but sug g ested that he talk them over

with his family

first. She said that when she prese nted the sec ond plea of fer , he considered it for two or three day s befor e he a cce pted it. Reg arding the judg ment form on which the sentenc e leng th was er roneous l y m ar k ed “9 ” and later c hang ed to a “ 12,” she sa id the clerical
err or could not have confuse d the petitioner be cause he neve r saw the form.
The pe titioner testified that he c ompleted the ninth g rade in high school but that he could re ad
a ndwrite on ly

a t th ir d or fo urth g ra de le ve ls. He sa id h e inf orme d h is atto rn e y

of thi s f a c t. H e did
no t r e c a ll d isc us sin g his fi rs t pl e a a g re e me nt with his at torne y , b ut h e re c a lle d h is s e nte nc e wa s to be nin e y e ars , s us pe nd e d e xce pt f or e le ve n mo nth s a ndtw e nty -n ine day s. He sa id this wa s h is
un de rs ta nd ing wh e n he e nte re d h is f ir st p le a . Wh e n a sk e d w he the r h e re a d th e ple a a g re e me nt f

or m, he re plied that he “looked at i t the best [he] could.” He a dmitted signing the form but said that no one reviewe d it with him or read it to him. He re called that the trial court a sked him questions at the fi rs t ple a he ari ng a ndthat he ind ic a te d to the c ou rt he un de rs too d w hat w a s h app e nin g . H e a lso
rec alled that the tria l court aske d him if he had a ny questions and that he answe red neg atively

. He claimed that he said “no” beca use he was told to answ er the trial judg e with “y es, sir” or “no, sir”
w h e n a s k e d q u e s t i o n s a n d t h a t h e h a d n o q u e s t i o n s a t t h a t t i m e

. H e r e c a l l e d s p e ak i n g w i t h his attorney about her mistake conc erning the first plea ag ree ment. He said he expected the second de al to be better

. He said that instead of the s uspended sentence , howeve r, the sec ond ag ree ment g ave him a sentenc e of twelve y ear s with f orty -five perc ent rele ase elig ibilit y

. Neve rtheless, he said that he believe d he would still be in jail onlyeleve n months and twenty -nine da y s. The pe titioner was
s h o wn t h e wr i t t en p l ea agr ee m en t , wh i ch s t at ed i n l ar ge l et t er i n g t h at t h e p et i t i o n erp l ed as a “ R an ge I I I of fe nd e r ( 45 %) , ta

kin g a se nte nc e of 12 y e ars ,” a nda dmi tte d s ig nin g the fo rm , b ut h e sa id h e on ly-6-

looke d a t th e a g r e e me n t a n d d id n o t r e a d it

. H e a d mi tt e d te ll in g th e tria l c o u r t a t th e s e c o n d plea hearing that he read t h e d o cu m ent but explained he did so because he w as instructed to a nswer questions. He said no one revie wed the se cond petition with him or read it to him. He said that he has not bee n seen by

a doctor for menta l difficulties and that he was not taking any medication or under the influence of drug s or alcohol at the time of either he aring

. On cr oss-examination, the petitioner admitted g iving a false answer wh en t h e trial c ourt qu e sti on e d h im a

bo ut w he the r h e re a d th e do c ume nt. He e xpla ine d th a t hi s a tto rn e y ins truc te d h im to answer y es or no, “ either w ay ,” to whate ver que stion was put to him. He admitted his attorney also instructed him to answer all questions truthfully . He sa id that he ag ree d to a sentenc ing he aring to determine his sente nce unde r the fir st plea ag ree ment and that the ag ree d sentenc e was to be nine y ear s, suspended to e leven months and twe nty -nine day s. He a dmitted that nothing was sa id at the first hea ring conce rnin g the nine-y ear suspended se ntence and that nothing in the plea a g ree ment
re fe rr e d to a

nin e -y e ar s us pe nd e d s e nte nc e . H e c la ime d no on e e xpla ine d s e nte nc ing rang e s to him

. He a dmitted signing the s econd ag ree ment, seeing the lang uag e which stated the sente nce w ould be twelve y ear s, and not seeing the number “9” or “11 months and 29 day s” any wher e on the a g ree ment form. He said h i s at torney never explained that he was a

Rang e I offe nder ba sed on his criminal history or that he ha d to plead as a Rang e I I I

to ge t the more serious charg e droppe d. Then he admitted that his attorney told him t he best de al he c ould ge t would be a se ntence of t we l v e y ear s at forty -five pe rce nt and that the s econd ag ree ment he sig ned wa s for such a sentenc e. He said that if he ha d k no wn a nythi ng abo ut the la w, ho we ve r, he wo ul d nev e r h a ve a g re e d to g ive up his
s en t en ce o f ele ven months and twenty -nine da y s for a sentenc e of twe lve y ear s. He c oncede d, though, that the documents did not ref lect he e ver ha d such a se ntence

.
L eslie McCormick, the pe titioner’s brother, testified that he wa s prese nt during some of the
me e tin g s th e pe tit ion e r h a d w ith hi s a tto rn e y a ndthat th e a tto rn e y

tol d th e m th e pe tit ion e r w ou ld
rec eive a nine-y ear

sentenc e and se rve 3.4 y ea rs

. He sa id that the next t ime he ac companied the pe tit ion e r, the a tto rn e y

tol d th e m th a t ni ne y e ars wa s g oin g to “ g o a way ” bu t th a t th e pe tit ion e r w ou ld not rec eive twe lve y ear s and would not serve more than three y ear s. He said the pe titioner understood that if he wer e g rante d a new trial and found g uilty , he could se rve f ifteen to twe nty -five y ear s at one hundre d perc ent.

At the c on c lus ion of

the he ari ng , the tr ia l c ou rt no te d that the pe tit ion e r sw or e to t e ll the truth in both guilty

plea he aring s but found that he “g ave w hateve r answe r fit, not once, but on two separ ate oc casions.” The trial court found that the petit ioner’s rights and the sentenc ing r ang es we re explained to him i n detail and that no mention wa s made of a nine-y ea r sentenc e or a

suspended sentenc e during either g uiltyplea he aring

. The trial c ourt noted that the pe titioner did not answer truthfully when asked i f he understood the plea petition, that the petit ioner tol d the court no one had threatened or

promised him any thing c oncerning his plea , and that the pe titioner said he had no questions during the pl ea hearings, but that every thing had chang ed since then. The tria l court found the cr edibilityof the petiti oner highly suspect and acc redited the testimony of t he attorney

. The trial
c ou rt a lso fo un d th a t no pr omi se s w e re ma de to the pe tit ion e r andthat the pe tit ion e r kne w w ha t hi s-7-

sentenc es would be. The trial c ourt conc luded the fa cts did not justi fy setting a side his guilty

plea, which wa s voluntarily

and fr eely

g iven.

AN AL YSI S
On appe al, the petitioner co n t en d s t hat the trial c ourt err ed by dismiss ing his pe tition. He arg ues that he rec eived the ineff ective a ssistance of c ounsel when his attorne y g ave him er

roneous advice conce rning his plea and r esulting se n t en ce and that this advice cause d his guilty plea to be unknowing and involuntary

. The state conte nds that the petitioner re ceive d the ef fec tive assistance of counse l and that his g uiltyplea wa s knowing and voluntary . We ag ree with the state.

When a claim of ine ffe ctive assistanc e of c ounsel is made, the burden is upon the petitioner to show (1) that c ounsel’s per formanc e wa s defic ient and (2) that the defic iency was pre judicial. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); State v. Melson, 772 S.W .2d 417, 419 n.2 (Tenn. 1989) . To satisfy the re quirement of pr ejudice w hen the pe titioner enter ed g uiltypleas, the pe titioner must demonstrate a r easona ble proba bility that, but f

or counse l’s
err ors, she would not have pled g uiltyand would have insisted on going to trial. S ee Hill v. L ockhart, 474 U.S. 52, 59, 106 S. C t. 366, 370 (1 9 8 5); Bankston v. St ate, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991). I n Ba x ter v. Rose, 523 S.W .2d 930, 936 (Tenn. 1975) , our supre me court decide d that attorney s should be held to the gene ral standard of whether the servic es re ndere d wer e within the rang e of c ompetence demande d of att o rn ey s in criminal case s. I n revie wing counsel’s
c on du c t, a

“ fa ir a sse ssm e nt o f atto rn e y pe rf orma nc e re qu ir e s th a t e ve ry e ff ort be ma de to e lim inate the dis tortin g e ff

e c ts of hin ds ig ht, to re c on str uc t the c ir c ums ta nc e s o f c ou ns e l’ s c ha lle ng e d c on du c t, and to eva luate the c onduct from counsel’s perspec tive at t he ti me.” Strickland, 466 U.S. at 689, 104 S. Ct . at 2065; see H ellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

The burde n was on the pe titioner in the trial court to prove by clea r and c onvincing evidenc e the fa ctual alleg ations that would entitle him to relief. T.C.A. § 40-30- 110(f)

. On appea l, we ar e bound by the trial court’s finding s of fac t unle ss w e conclude that the evidenc e in the re cord preponde rate s ag ainst tho se finding s. See F ields v. State, 40 S.W .3d 450, 458 (Tenn. 2001)

. Be cause the trial court’s conclusions reg arding the effec tiveness of counsel invol ve mix ed questions of law a nd fac t, our revie w is de novo with no presumption of cor rec tness. At the post-conviction hea ri n g, t h e att orney

testified that she met with the pe titioner a minimum of twenty

times and that she explained the sente ncin g is s ues involved, including the ra ng es associate d with the offe nses. She admitted that she made an err or in that she neg lected to inform the petitioner that the off

ense to whic h he pled g uilty car ried a sente nce r equiring one hundre d perc ent service . Howeve r, s h e m ad e arrang ements for him to withdraw the g uiltyplea a s soon as she discovere d the error. She explained to the petit ioner what it meant to plead “outside the ra ng e” a nd why it was nec essary

to reduc e the se verity

of t he pled offe nse. When the petitioner ha d questions about his relea se elig ibilit y , she ca lculated his potential rele ase date t o be after 5.4 y ear s of servic e and explained that the ac tual rele ase date would be based upon his be havior while incar cer ated. She discussed the sec ond plea of fer with the petitioner, let him rea d the ag ree men t , and explained the-8-

differ en ces betwee n the new a nd former ag ree ments. She said the petitioner ha d no questions afte rwa rd, but appa

rently he did.

The re cord r efle cts the petitioner wa s not truthful i n h i s re sponses to the trial court during either g uiltyplea he aring

. The petiti oner told the t rial court that he read his g uilty plea petition and understood it. He a lso said he under stood both the rights he was wa iving a nd the ra n ge of pu nis hme nt f

or the of fe ns e s in vo lve d in his c a se . H e a ff ir me d th a t no pr omi se s w e re ma de to h im
c on c e rn ing his g uil ty

ple a . O n ap pe a l, he c la ims that he und e rs too d non e of the se thi ng s a ndthat hi s a tto rn e y pr omi se d h im a

nin e -y e ar s e nte nc e su sp e nd e d to el even mon ths a ndtw e nty -n ine da y s. Ho we ve r, thi s se nte nc e is not me nti on e d in e ith e r p le a

a g re e me nt o r d isc us se d d uring e ith e r g uil ty ple a he ari ng . The iss ue in thi s app e a l tur ns on the c re dib ili ty of the pe tit ion e r a s c omp are d w ith his attorney . The trial c ourt found the attorney ’s testimony cre dible and t h e p et i t i oner’ s testimony incre dible.

The trial c ourt also found that the pe titioner’s rig hts and the sen te n c in g r an g es we re e x plained to him in detail, that a nine-y ear sentenc e and a suspended se ntence wer e not discussed during either g uiltyplea pr ocee ding, and that no promises wer e made to the petitioner. The r ecord does not pr e po nd e rate a g a ins t th e tr ia l c ou rt ’s fi nd ing s. I ns te a d, it r e fl e c ts that th e tr ia l c ou rt ma de e ff orts t o ensure the petitioner unde rstood hi s p l ea , t he conse quence s of his plea, a nd the rig hts he was waiving

. The petitioner admitted that his attorney informed him the best dea l would be a se ntence of tw e lve y e ars a t f

orty -f ive pe rc e nt re le a se e lig ibi lit y a ndthat th e a g re e me nt h e sig ne d w a s f or thi s sentenc e. The g uiltyplea pe tition s igne d by the petit ioner states, in larg e writing located two inches
abo ve his si gna tur e , th a t hi s se nte nc e wo uldbe tw e lve y e ars . T he pe tit ion e r f a ile d to pr ov e his alleg ations by

clea r and c onvincing evidenc e. We conc lude that the petitioner did not rece ive the ineffe ctive assistanc e of c ounsel and that his g uiltyplea wa s knowing and voluntary

.
B a se d o n th e fo re g oin g a ndthe re c or d a s a wh ole , w e a ff

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

.

___________________________________ J OSEPH M. TI PTON, J UDGE