# FILED
October 13, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NA SHVILLE JULY 1999 SESSION

WILLIAM H. HORTON, * C.C.A. # 01C01-9704-CR- 00132

Appellant, * DAVIDSON COUNTY VS. * Honorable Seth Norman, Judge STATE OF TENN ESSEE, * (Post-Conviction R elief Denied) Appellee. *

FOR THE APPELLANT : FOR THE APPELLEE : MICHAEL J. FLANAGAN PAUL G. SUMMERS 95 White Bridge Road, Suite 208 Attorney General & Repor ter Nashville, TN 37205 ELIZABETH T. RYAN 425 Fifth Avenue North Nashville, TN 37243 VICTOR S. (TORRY) JOH NSON III District Attorney General JOHN C. ZIMMERMAN Assistant District A

ttorney Washington Square 222 Second Avenue North Nashville, TN 37201

OPINION FILED: _______________

AFFIRMED

JOHN EVERETT WILLIA MS, Judge-2- 

### OPINI ON The petitioner, William H. Horton, appeals the trial court’s denial of his petition for post-convic

tion relief. The petitioner co ntends that he received ineffective assistance of counsel at trial and on direct appeal , as well as prosecutorial misconduct. After careful review, we AFFIRM the judg ment of the trial court.
Procedural History On November 10, 1992, a Dav idson County jury c

onvicted the petitioner of possession for resale of over 26 grams of cocaine. He w as sentenced to the Department of Correction for 21 years as a Range III persistent off ender. His direct appeal from that convi ction and sentence was affirmed. See State v. William Howard Horton , Davidson County, N o. 01C01-9312-CR-00435 (Tenn. Crim. App., filed October 6, 1 994), app. perm. appeal denied Januar y 30, 1995. On August 4, 1995, the petitioner filed this pro se petition. After appointment of counsel , an amen ded unco unseled petition , two judge ’s recusa ls, and two hearings, the final order fr om which this appeal is taken was entered September 9, 1998.

BACKGROUND Dennis Hughes represente d the petitioner on the charg es which are the basis of this appeal. The post-co nviction court consid ered all pleadings filed by petitioner’s counsel, the t rial transcript w ith the exhibits, the tr

anscript from the January 24, 1996 post-conv iction evidentiary

hearing, and the testimony presented on September 9, 1998, in r eaching its judgment. The w itnesses testifying at both hearings were the petitioner; Dennis Hughes, the petitioner’s attorne y; John Zim merman, prosecut ing attorn ey; and Te rry J. Canad y, appointed counsel for petitioner’s direct appeal. In its judgme nt, the trial court made several pertinent findings:-3- 1. Dennis Hughes was retained counsel for the petitioner at all times pertinent to the issue o f ineffective assistance of counsel, both at trial and on appeal. 2. The state offered the def endant an offer of an eight (8) year sentence if the defendant would plead g uilty on the first settlement day prior to trial. 3. That offer could not be accepted by the de fendant because he had voluntarily left t he courthouse. 4. The petitioner did not wis h to accept any offer made by the state and w ished to forc e the state to

try him. 5. The petitioner apparently had some belief that the informant necessary to the state’s case would not show up for trial. 6. The petitioner’s trial co unsel did everything he could to see that the petitioner received the most favorable plea barga in arrangement, yet he did not get the cooperation necessar y from his client. 7. The petitioner was well aware of the plea bargain offer, possibly even prior to leaving t he courth ouse when it was origin ally made, but

regard less of w

hether t he defenda nt was a ware of the offer prior to leaving the courthouse, the record i s clear that the petitioner was w

ell aware of the offer and of subsequent offers and rej ected all of t hem.

ANAL YSIS The trial judge’s findings of fact on post-conviction hearings are conclusive on appeal unles s the evidence preponderates otherwise. See 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 tr ial court’s findings of fact ar e afforded the weight of a jury verdict, and this Court is bound by the trial court’s findings unless the evidence in the recor d preponderates against those findings. See Henley v. State , 960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State , 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997); Dixon v. State , 934 S.W.2d 69, 72 (Tenn. Crim. App. 1996). This Court may not r eweigh or reeval uate the evidence, nor substi tute its inferences for those drawn by the trial judge. See Henley , 960 S.W.2d at 578- 79; Massey 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). Questi ons concerning the-4- credibility of wi

tnesses and the weight and value to be given t

o their testimony are resolved by the t rial court, not this C ourt. See Henley , 960 S.W.2d at 579; Black , 794 S.W.2d at 755. T he burden of establishing that the evidence preponderates otherwise i s on the petitioner. See Henley , 960 S.W.2d at 579; Black , 794 S.W.2d at 755.
Having review

ed the record, we conclu de that the evidence does not preponderate against the findings of the trial court. The trial court’s findings are consistent with the test imony of Dennis Hughes and t he prosecuting attorney

. The petitioner has failed to demonstr ate otherwise. Therefore, w e deny the petitioner’s claims of ineffectiv e assistance and prosecutori al misconduct.

CONCLUSION Accordingly, w

e AFFIRM the trial cour t’s order denying pos

t-conviction relief.

_____________________________ JOHN EVERETT W ILLIAMS, Judge CONCUR:

______________________________ JOSEPH M. TIPT ON, Judge

_______________________________ JAMES CURW OOD WIT T, JR., Judge