# FILED
March 19, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON FEBRUARY 1998 SESSION

CHARLIE GILMORE, JR., ) ) No. 02-C-01-9611-CR-0 0421 APPELLANT, )

) Shelby County v. ) ) Chris Craft, Jud ge STATE OF TENNESSEE, ) ) (Post-Convic tion Rel ief) APPELLEE. )

FOR THE APPE LLANT: FOR THE APPELLEE: Deborah M. Henderson John Knox Walkup Attorney at Law Attorney General & Repor ter 50 North Front Street, Suite 1150 425 Fifth Avenue, North Memphis, TN 38103 Nashville, TN 37243-0493 Elizabeth T. Ryan Assistant Attorney Gener al 425 Fifth Avenue, North Nashville, TN 37243-0493 William L. Gibbons District Attorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103 Jerry R. Kitchen Assistant District A

ttorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103

OPINION FILED: ____________________________

__ AFFIRMED PURSUANT TO R ULE 20 Joe B. Jones, Pre siding Judge 

### O P I N I O N1 The petitioner was indic ted and convicted as “Char lie Gilmore.” “Char

lie Gilmore” and “Charlie Gilmore, J r.” are the same person. 2 The appellant, Charlie Gilmore, Jr. (petitioner), 1 appeals as of right from a judgment of the trial court dismis

sing his post-convi ction action after an evidentiary hearing. In this court, the petitio ner conten ds the evidence contained in the record establishes he w as denied h is constitutional rig ht to the effective assistance of co unsel. After a tho roug h review of the record, the briefs submitted by co un sel, and the law gov erning the issue presented for review, it is the opinion of this cou rt that the judgment of the trial court should be affirmed pursu ant to Rule 20, Tennessee Court of Criminal Appeals. The e vidence contained in the record does not preponderate against the tr ial court’s findings of fact. The petitioner claims his lawyer failed to interview two witnesses. The att orney who represented the petitioner testified the petitioner did not prov ide him with one of

the names, and the second witness, the petitioner’s sister, could not be located. The petitioner did not know the surna me of one witness, but testified he “[could] find out” this pers on’s name. Nevertheless, the petitioner did not presentthe testimony of either all eged witness during the evidentiary heari ng. In short, the petitioner fail ed to establish he was pr ejudiced by trial counsel’s alleged failure to locate and interview the petitioner’s sister. Black v. State , 794 S.W.2d 752, 757-58 (Tenn. Crim. App.), per . app . denied (Tenn. 1990). The petitioner alleges tr ial counsel failed to

formulate a defense. The petition er’s mother was his chief witness. She died while this case was pending in the tr ial court. The testimony

of the other defense witness w as not helpful. The tr ial attor ney testified the chances of the petitioner being acq uitted were extremely “dim.” Trial counsel w as successful in havinga twenty-year o ffer reduced to fifteen years, the minimum punishment for the offense. The trial attorney did notcause the petitioner to change his plea from not guilty to guilty. The attorney

explained the circumstances to the petitioner, provided him with the guilty plea forms, and left the room. When the attorney returned, th e petitioner had signed the forms. The defendant was aware of the gu ilty plea procedure and the effect of such a plea because he entered a plea of g uilty to sexual batt ery three years before the guilty plea in question. The transcr ipt of the submission hearing supports the tria l court’s findin gs3

of fact.

______________________ ______________

_ JOE B. JONES, PRESID ING JUDGE
CONCUR:

_______________________________________ JOHN H. PEAY, JU DGE

_______________________________________ THOMAS T. WOODALL, JUDGE