# FILED
April 8, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE MARCH 1999 SESS ION

HAROLD DA

VID JONES, ) ) NO. 01C01-9805-CC-00222 Appellant, ) ) ROBERTSON COUNTY VS. ) ) HON. JOHN H. GA SAWAY III STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPELLANT : MICHAEL R. JONES District Public Defender 109 South Second Street Clarksville, TN 37

040 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter MARVIN E. CLEMENTS, JR. Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 JOHN WESLEY CARNEY, JR. District Attorney General DENT MORRISS Assistant

District Attorney

General 500 South Main Street Springfield, TN 37172

OPINION FI LED:

AFFIRMED
JOE G. RILEY, JUDGE2 O P I N I O N Petitioner, Harold David Jones, appeals from the dismissal of his petition for post-convic tion rel ief by the Circuit Cour t of Robertson County. Prev iously, he entered a nolo contendere plea to second degree murder and received a Range II sentenc e of 35 yea rs. The f ollowing iss ues are pr esented for our re view: 1. whethe r the petition w as filed withi n the app licabl e statut e of limitations; and 2. whether

the nolo contendere plea was the result of ineffe ctive assistance of counsel. We find no reversible error and AFFIRM the judgment of the trial cour t.

STATUTE OF LIMITATIONS

Petitioner

entered a nolo contendere plea to s econd deg ree murder on March 8, 1993, and was sentenced on May 14, 1993, to a term of 35 years as a Range II offender. This Court affirmed the convic tion and sentence. State v. Harold David Jones, Jr. , C.C.A. No. 01C01-9 401-CC-00008, Rober tson County (Tenn. Crim. A pp. filed February 8, 1995, at Nas hville). Applicat ion for permission to appeal was denied by the Tennessee Supreme Cour t on May 30, 1995. Petitioner

had one year from May 30, 199 5, to file a petition for postconviction relief. Tenn. Code Ann. § 40-30-202(a). Inexplicably, the petition bears two sepa r ate filing dates; namely, M ay 21, 1996, and August 6, 1996. The state correctlycontends that a filing on August 6, 1996, would be un timely. However, we conclude the August 1996 filing date w as a clerical error. The Uniform Affidavit of Indigency filed with the petition was stamped “ filed May 21, 1996”. Theref ore, we conclude that the May 21, 1996, filing date on the petition was the corr ect date. The petition was timely

filed.3 INEFFECTIVE A

SSISTANCE OF C

OUNSEL

Petitioner

contends trial counsel

failed to properly inv

estigate the facts

and erroneously advised petitioner that he would receive a 25-year sentence, whi ch led to an invalid nolo contendere plea.

A. Standard o

f Review
The trial judge's findings of fact on post-conviction hearings are concl usive
on appeal unless the evidence prepond erates 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). The trial court’s findings of fact are afforded the weight of a jury verdict, and this Court is bound by the trial court’s findings unless the evidence in the record preponderatesagainst those findings. Henley v. State , 960 S.W.2d 572, 578 (Tenn. 1997); Alley

v. State , 958 S.W.2d 138, 14 7 (Tenn. Crim. App. 1997); Dixon v. State , 934 S.W.2d 69, 72 (T enn. C rim. App. 1996). This Court may not reweigh or reevaluatethe evidence, nor substitute its inferences for those dra wn by the trial judge. Henley , 960 S.W.2d at 578-79; Mas sey v. State , 929 S.W.2d 399, 403 (Tenn. Crim. App. 1996); Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Th is Court reviews a

claim of ineffective assistanc e of counsel under the standards of Baxter v. Rose , 523 S.W.2d 930 (Tenn. 1975), and Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80L.Ed.2d 674 (1984). The petitioner has the burden to prove that (1) the attorney’s performance w as deficient, and (2) the defi cient performance resulted in prejudice to the def endant so as to depriv e 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 at 899. In Hill v. Lockhart , 4 74 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (198 5), the SupremeCourt applied the two-part Strickland standard toineffective assistance of1 Although the nolo contendere plea transcript was admitted into evide nce as an exhibit in the post-convicti

on hearing, it

is not a part of the

record in this Cour

t. Ordinarily, this might precludeeffective appe

llate revie w. However, the transcript of the post-conviction hearing contains numerous quotes fr om the plea transc

ript. According

ly, we are able to effectiv

ely review this matter. 4 counsel claims arising out of a guilty plea. The Court in Hill modified the prejudice requirement

by requiring a defendant to show that there is a reasonable probability that, b ut for counsel's errors, he would not have pleaded g uilty and would hav e insisted on going to trial. 474 U.S. at 59, 106 S.Ct. at 370; Hicks v. State , 983 S.W.2d at 240, 246 (Tenn. Crim. App. 1998)

. The samerationale applies to a nolo contendereplea.
B. Post-Conviction Testimony

At the post-con vi ction hearing the petitio ner testified he only met w ith trial counsel, Lionel Barrett, on one occasion prior to the ple a. He told trial counsel the
na me s of the eyewitnesses to th e homicide; yet, counsel di d not interview all the eyewitnesses. Petitioner testified that on th e morning of trial, his counsel enter ed into plea negotiations with the s tate. Acc ording to petitioner, co unsel advised petitioner

he would re ceive a 25-year sentence if he pled to second degree murder. Petitioner’s brother

also testified he

heard Barrett state that petitioner should “take the second degree at the 25.” Barrett’s testimony contradicted the test imony o f petitioner in all material respects. Barrett testified he met with petitioner on numer ous occasions, performed
an appropriate investigation, and suggested that petitioner ente r an open plea of guilty to second degree murder. Barrett steadfastly denied that he told petitioner he would receive a 25-year sentence. Although Barrett talked with petitioner on sev

eral occasions after sentencing, petitioner never contended in those conversations that he expected an agreed 25-y ear sentence. The record reveals that up on entering the

plea of nolo

contendere , petitioner
was specifically advi sed by the trial judge that the range of punish ment was from 25 years to 4 0 years

. 1 Petitioner stated he underst ood. Subsequently, at the5

sentencing hearing the trial court sentenced petitioner to a term of 35 years. This Court affirmed the sentence.

C. Findings of Post

-Conviction C

ourt
The post-convictioncourt found that Barrett conducted an appropriate pretrial investigation. The pos t-conviction court’ s recitation from the transcr ipt of the nolo contendere plea reveals petitioner was specificall y ad vised, and stated he understood, that the range of punishment wa s from 25 years to 40 years. The postconviction court further found Barrett did not advise petitioner th at he would re ceive
a sente nce of 25 years. Finally , the court concluded trial counsel was not ineffective, and petitioner understood the consequences of his nolo contendere plea.

D. Conclusion

Essentia lly, this issue revolv ed around the credibility of the w itnesses at the post- convic tion hearing. The post-convi ction court discredited the testimony of petitioner

and accredited the testimony of trial counsel. Questions of credibility are resolved by the post-conviction court, not this Court. Henley v. State , 960 S.W.2d at 579. The evidence does not preponderate against the po st-conviction court’s finding that pet itioner

failed t o establ ish ine

ffectiv e assis tance of counsel . As to petitioner’s contention that trial counsel was defici ent in failing to intervi ew other witnesses, petitioner

has also failed to

establish prejudice. N one of these witnesses t estif ied at the post-conviction hearing. See Black v. State , 794 S.W.2d at 757. This issue is without merit.6 CONCLUSION

Based upon our review of the r ecord, we AFFIRM the judgment of the trial court.

_____________ ______________ JOE G. RILEY, JUDGE

CONCUR:

______________________________ DAVID H. WELL ES, JUDGE

______________________________ JOHN EVERETT WILLIA MS, JUDGE