FILED

May 21, 1999

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE 

FEBRUARY 1999 SESSION

STANLEY POWELL, )

) C.C.A. No. 01C01-9804-CC-00169

Appellee, )

 ) Giles County

V. ) 

) Honorable William B. Cain, Judge

STATE OF TENNESSEE, )

 ) (Post-Conviction - Aggravated Kidnaping,

) Aggravated Rape)

Appellant. )

FOR THE APPELLANT: FOR THE APPELLEE:

HERSHELL KOGER JOHN KNOX WALKUP

131 N. 1st Street Attorney General and Reporter

P. O. Box 1148

Pulaski, TN 38478 ELIZABETH B. MARNEY 

Assistant Attorney General

425 Fifth Avenue North

2d Floor, Cordell Hull Building

Nashville, TN 37243

MIKE BOTTOMS

District Attorney General

RICHARD DUNAVANT

Assistant District Attorney

Giles County Courthouse

Pulaski, TN 38478

OPINION FILED: _______________

 AFFIRMED

JOHN EVERETT WILLIAMS,

Judge
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OPINION

The petitioner, Stanley Powell, appeals from the trial court’s

dismissal of his claim for post-conviction relief. Powell is presently serving

thirteen years as a range II offender in the Department of Correction for his

guilty plea to aggravated kidnaping and aggravated rape on June 27, 1994. 

The trial court dismissed his post-conviction petition following a hearing on

the merits. After a review of the record, the briefs of the parties and the

applicable law, we affirm the trial court’s dismissal.

The petitioner claimed at his post-conviction hearing that his

appointed counsel was ineffective for failing to interview witnesses and that

his plea was entered into unknowingly and involuntarily.

The trial court reviewed the transcript of the hearing in which the

defendant pleaded guilty, and heard the testimony from the Petitioner, his

court appointed counsel and three other witnesses, before finding as

follows:

There is nothing in the post-conviction relief petition that

has any merit, and the credibility of the defendant in his

testimony today is nonexistent. He knew at the time that he

was facing the possibility--and strong possibility--of being

declared a career offender, following his extensive criminal

record, and that he could spend many, many years in the

penitentiary.

Following this assessment of the petitioner’s credibility, the trial court

clearly placed great weight upon the testimony of the petitioner’s court
1

This pe tition was filed in 1 994 an d is contro lled by the pre -1995 Post Con viction Act.

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appointed counsel and very little, if any, upon the testimony of the

petitioner.

The test for determining whether trial counsel provided effective

assistance to his or her client rests on whether counsel’s performance is

within the range of competence demanded of attorneys in criminal cases. 

See Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). The burden is on an

appellant to show that representation was deficient in that counsel made

errors so serious that she or he was not functioning as “counsel” as

guaranteed by the Sixth Am endment. See Strickland v. Washington, 466

U.S. 668, 687 (1984). Where a defendant pleads guilty, he must show that

but for counsel’s errors he would not have pleaded guilty and would have

insisted on 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) (reiterating 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

the evidence in the record preponderates against them.1 See Caruthers v.

State, 814 S.W .2d 64, 67 (Tenn. Crim. App. 1991); Butler v. State, 789

S.W.2d 898, 899-900 (Tenn. 1990). Petitioner bears the burden of

establishing that the evidence preponderates against the post-conviction

court’s findings of fact. See Black v. State, 794 S.W.2d 752, 755 (Tenn.

Crim. App. 1990). Petitioner did not carry his burden in the trial court and

he has not carried his burden here.
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The judgment of the trial court dismissing the petitioner’s postconviction relief petition is therefore AFFIRMED.

_____________________________

JOHN EVERETT WILLIAMS, Judge

CONCUR:

______________________________

DAVID G. HAYES, Judge

_______________________________

JAMES CURW OOD WITT, JR., Judge