# FILED May 21, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NA SHVILLE FEBRUARY

1999 SESSION
STANLEY POWELL, ) ) C.C.A. No. 01C01-9804-CC-00169 Appellee, )

) Giles County V. ) ) Honorable W illiam B. Cain, Ju dge STATE OF TENN ESSEE, ) ) (Post-Conviction - Aggravated Kidnap ing, ) Aggravated Rape) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE : HERSHELL KOGER JOHN KNOX WALKUP 131 N. 1st Street Attorney General and Repor ter P. O. Box 1148 Pulaski, TN 38478 ELIZABETH B. MA RNEY Assistant Attorney Gener al 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243 MIKE BOTTOMS District Attorney General RICHARD DUNAVANT Assistant District A

ttorney Giles County Courthouse Pulaski, TN 38478

OPINION FILED: _______________
AFFIRMED

JOHN EVERETT WILLIA MS, Judge-2- 

### OPINI ON

The petition er, Sta nley P owell, a ppea ls from the trial c ourt’s dismissal of

his clai m for post-conv iction relief . Powell i s presentl y servi ng thirteen years a s a ran ge II offe nder in the De partm ent of C orrect ion for h is guilty plea to aggrava ted kidna ping an d aggra vated rap e on Ju ne 27, 1 994. The trial court dis missed his post -convict ion peti tion fol lowing a heari ng on the merits. After a r

eview of t he record, t he briefs of the part ies and the applic able la w, we a ffirm the trial cou rt’s dism issal.

The petition er claim ed at h is post -conv iction h earing that his appointed counselwas ineffective f or fail ing to i ntervi ew witnesses and t hat his plea was e ntered into unk nowingly and involuntarily.

The trial court rev iewed the tr anscript of the heari ng in which t he defen dant p leade d guilty, a nd he ard the testim ony fro m the Petition er, his court appoint

ed counsel and thr

ee other wit nesses, befor e findin g as follows:

There is nothi ng in the post-convict ion reli ef petit ion that has a ny me rit, and th e cred ibility of the defen dant in his testimony today is nonexi stent. He knew at the time t hat he was facing t he possibil ity--and strong possi bilit y--of bei ng declared a career offender , foll owing his extensive cri minal record, and t hat he could spend many, many years in t he penitentiary. Following this ass essme nt of the petitioner’s credibility, the trial court clearly placed gre at weight upon the testimony o f the petitioner’s court1 This pe tition was filed in 1 994 an d is contro lled by the pre -1995 P ost Con viction Act. -3- appointed counseland very l ittl e, if any , upon the t estimony of t he petitioner.

The test for de termining wh ether trial counsel pro vided effective assist ance to his or her clie nt rests on wh ether c ouns el’s pe rform ance is within the ra nge of co mpete nce de mand ed of attorn eys in crim inal case s. See Baxter v. Rose , 523 S.W.2d 930 (Tenn. 1975). The burden is on an appellant to show that representat ion was defi cient i n that counselmade
errors so serious that she or he was not f unctioni ng as “counsel” as guaran teed by th e Sixth Am endm ent. See Strickl and v. Washington , 466 U.S. 668, 687 (198 4). Where a defendant pl eads guilt y, he must show t hat but for counse l’s errors he would n ot have plead ed guilty and wo uld have insisted o n going to trial. See Hill v. Lockhart 474 U .S. 52, 59 (1985); see also State v. Neal , 810 S.W.2d 131, 138-39 (Tenn. 1991) (rei terati ng the standard in Hill ).
The trial court’s findings of fact in a post-conviction proceeding are afforded the weight of a jury verdict and are conclusive on appeal unless theevi dence in therecord pre pond eratesagai nst the m. 1 See Caruthers v. State , 814 S.W .2d 64, 67 (Tenn . Crim. A pp. 199 1); Butler v. Sta te , 789 S.W.2d 898, 899-900 (Tenn. 1990) . Petit ioner bears t he burden of establi shing that

the evidence preponderates agai nst the post -convict ion court’s find ings of fac t. See Black v. S tate , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Petiti oner did not carry hi s burden in t he trialcourt and he has not carr ied his bur den here.-4- The jud gmen t of the trial cou rt dismiss ing the pe titioner’s pos tconvi cti on re li ef pe tit ion i s the ref ore AF FIRMED.

_____________________________ JOHN EVERET T WILLIAMS, Judge

CONCUR:

______________________________ DAVID G. HAYES, Judge

_______________________________ JAMES CURW OOD W ITT, JR., Judge