# FILED
December 10, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE NOVEMBER 1998 SESSION
JAMES ROBERT MAJORS, SR ., * C.C.A. # 01C01-9804-CR- 00172 Appellant, * SUMNER CO UNTY VS. * Hon. Jane W . Wheat craft, Judge STATE OF TENNESSEE, * (Post-Conviction)

Appellee. *

For Appellant : For Appellee : David A. Si mpson, A ttorney John Knox Walkup 113 West Main Street Attorney General and Repor ter Gallatin, TN 37066 Timothy Behan Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North Nashville, TN 37243-0493 Sallie Wade Brown Assistant District A

ttorney General 113 East Main Street Gallatin, TN 37066

OPINION FILED:__________________________

AFFIRMED
GARY R. WADE, PRESIDING JUDGE2 OPINION The petitioner, James Robert Majors, Sr., appeals the trial court's denial of his petition for post-conviction relief. In this appeal of right, the petitioner claims that his trial c

ounsel was ineffective and that the judgment of convictio n should be set aside.

We find no error and affirm the judgment of the trial c ourt.

On December 16 , 1996, the pe titioner entere d pleas of guilt t o stalking, false imprisonment, assault, dr iving on a revoke

d license, evading ar

rest, and vandalism over $1,000.00. As a part of the plea agreement, the state did not prosecute indictment counts for a ggravated assault and

aggravated kidnappin g. While initially classified as a Class E felony, the stalk ing conviction w

as amended four months later to correctl y identify the crime as

a Class A misdemeanor. The effective sentence is two years, eleven months and twenty-nine days.

In his petition for post-conv iction relief, the petitio ner claimed, among other things, that his trial counsel had been ineffective fo r having failed to initially recognize that the count for stalking was a misdemeanor rather than a felon y. He insists that "he would ha ve pursued his defense differently if the stalking been [a] misdemeanor...."

The trial court considered the several counts of the indi ctment, two of which were for Cla

ss B and Class C felonies, and then determined that, despite the error in the classification of the stalking charge, trial counsel had performe d within the guidelines demanded in the pr ofession.3 When a petitioner seeks post-convicti on relief on the basis of ineffective assistance of counsel , he must first establish that the services rendered or the advice given was below "the range of competence demanded of atto rneys in criminal cases." Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Second, he must show that the deficienci es "actually had an adver se effect on the defense." Strickland v. Washington , 466 U.S. 668, 693 (1984). Shoul d the petitioner fail to establish either factor, no relief is warranted. As to guilty pleas, the petitioner must establish a reasonable probability that, but for the errors of his coun sel, he would not have entered the plea and w ould have insisted on go ing to trial. Hill v. Lockhart , 474 U.S. 52, 59 (1985).

Under our statutory law, the petitioner bears the burden of proving his allegations by clear

and convincing evi dence. Tenn. Code Ann. § 40-30-210(f).On appeal, the findings of fact made by th e trial court are concl usive and will not be disturbed unless the evi dence contained in the record pr eponderates against them. Brooks v. State , 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the petitioner to show that the evidence preponderated ag ainst those findings. Clenny v. State , 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).

In our view, the testimony at the evidentiar y hearing does not prepond erate aga inst the t rial court 's conclu sion that the petit ioner woul d have entered the negotiated plea regardless of whether the indi ctment count was for felony stalking or mis

demeanor stalking. The effective sentence is essentially the same. In fact, the ultimate result was marginally

better than the bargain the petitioner and his trial

counsel had made. In the contex t of all the various char ges against the petitioner, it would appear that trial counsel performed ef fectively in achieving an acceptable plea agreement. The record suggests that the result would4 have been acceptable to the petitioner whether the stalking conviction was a misdemeanor or a felony.

Accordingly, the j udgment is affirmed.

_________________________________ Gary R. Wade, Presiding Judge CONCUR:

_____________________________ John H. Peay, Jud ge

_____________________________ Jerry L. Smith, Judge