# FILED
July 15, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JUNE 1998 SESSION

DEON BRADEN, ) ) NO. 01C01-9708-CC-00351 Appellant, ) ) MAURY COUNTY VS. ) ) HON. JIM T. HAMILTON, STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPELLANT : HERSHELL D. KOGER 131 North First Street P.O. Box 1148 Pulaski, TN 38478 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter LISA A. NAYLOR Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 T. MICHAEL BOTTOMS District Attorney General STELLA L. HA

RGROVE Assistant

DistrictAttorney

General 10 Public Square P.O. Box 1619 Columbia, TN 38402-1619

OPINION FI LED:

REMANDED

JOE G. RILEY, JUDGE2 OPINION
The petitioner, Deon Braden, appeal s the trial court's deni al of his petition for post-conviction rel ief. He alleges his ori ginal guilty pl ea was involuntary and trial counsel rendered i neffective assistance by fail ing to inform him of the potenti al senten ce he cou ld receive . After a thorough review of th e record, we REMAND to the trial c

ourt with instructi ons to enter findings of fact and conclusions of law. Alt ernatively, if the tr

ial court is unable to make findings of fact due to the passage of time, a new hearing should be held.

I.
The petitioner pled guilty on April 27, 1994, to one (1) count of aggravated assault, one (1) count of attempted aggravated assault and tw o (2) counts of possession of cocaine for resale . He was given an effective sentence of fifteen (15) years to be serv

ed consecutively w

ith an earlier sentence for w hich the petitioner was on probati on at the time of the instant offenses.
The petitioner filed a petition for post-conviction reli ef on August 3, 1995. A hearing on the petition w as held on September 13, 1996. The testi mony at the hearing was conflicti ng as to whether counsel made the petitioner aware of the potential sentences he faced upon pleadi ng guilty. At the conclusion of the postconviction hearing, the trial court stated, “All right. I’m going to read this transcript, and I’ll get an order out.” No order was entered. On July

24, 1997, the petitioner filed a motion for clarification of judgment. A hearing was held August 5, 1997, on the motion to cl arify. The trial court ruled at the conclusion of that hearing , “All rig ht. I’m goi ng to overrule the PCR and dismiss

it. Draw me an order.” The trial cour t then entered a form judgment w hich stated in pertinent part, “This PCR has no meri t and is denied and dismissed.” There were no findings by the trial court.3 II.
The transcript of the guilty plea reveals that the trial court did not advise the petitioner of the range of punis hment for the offenses to which he pled as required by Tenn. R. Crim. P. 11(c)(1). However, this obligation of the trial court is not constitutionally

based and cannot provide the bas is for post-conviction relief. Sneed v. State , 942 S.W.2d 567, 568 (Tenn. Crim. App. 1996). Nevertheless, counsel should advise a person pl eading guilty as t o the range of punishment he or she faces. A failure to do so shou ld be considered in determining whether the person received effective assistance of cou nsel.

III.

This Court review

s a claim of ineffective assist ance of counsel under the standar ds of Baxter v. Rose , 523 S.W.2d 930 (Tenn. 1975), and Stricklan d v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984). The petitioner has the burden to pr ove that (1) the attorney ’s performance was deficient, and (2) the deficient per formance resulted in prejudice to the defendant so as to deprive him of a fair trial. Strickland v. Washington , 466 U.S. at 687, 104 S.Ct. at 2064; Goad v. State , 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State , 874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State , 789 S.W.2d 898, 899 (Tenn. 1990).

In Hill v. Lockhart , 474 U.S. 52, 106 S.Ct. 366, 88 L.E d.2d 203 (1985), the Supreme Court applied the tw o-part Stricklandstandard to ineffective assistance of counsel claims arising out of a guilty plea. The C ourt in Hill modified the prejudice requirement by requiring a defendant to show that there is a reasonable probability that, but for counsel's error s, he would not have ple aded guilty and would h ave insisted on going to trial. 474 U.S. at 59, 106 S.Ct. at 370.4 IV.

The tria l judge's f indings of fact on p ost-convi ction hea rings are co nclusive on appeal unless the evidence preponderates otherwise. Butler v. State , 789 S.W.2d 898, 899 (Tenn. 1990); Adkins v. State , 911 S.W.2d 334, 341 (Tenn. Crim. App. 1995). Howev er, in the instant case, ther e are no findings of fact for this Court to review. The petitioner claims he w as not informed by his attorney of the possible sentences and would have proceeded to trial if he had b een so informed. The petitioner’s attor ney testified he could not re member what he advised the petitioner.

CONCLUSION

This case is, therefore, remanded for the trial court to set forth written findings of fact and conclusions of la w, pursuant to Tenn. Code Ann. § 40-30- 211(b), regarding the petitioner’s claim of ineffectiv e assistance of counsel. Alternatively, sho uld the trial court find it self unable to make findings of fact due to the passage of time, a new hea ring should be conducted.

_________________________ JOE G. RILEY, JUDGE

CONCUR:5

________________________________ CURWOOD WITT, JUDGE

________________________________ LEE MOORE, SPECIAL JUDGE