FILED

October 13, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE 

JULY 1999 SESSION

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

Appellant, * DAVIDSON COUNTY

VS. * Honorable Seth Norman, Judge

STATE OF TENNESSEE, * (Post-Conviction Relief Denied)

Appellee. *

FOR THE APPELLANT: FOR THE APPELLEE:

MICHAEL J. FLANAGAN PAUL G. SUMMERS

95 White Bridge Road, Suite 208 Attorney General & Reporter

Nashville, TN 37205 

ELIZABETH T. RYAN

425 Fifth Avenue North

Nashville, TN 37243

VICTOR S. (TORRY) JOHNSON III

District Attorney General

JOHN C. ZIMMERMAN

Assistant District Attorney

Washington Square

222 Second Avenue North

Nashville, TN 37201

OPINION FILED: _______________

AFFIRMED

JOHN EVERETT WILLIAMS,

Judge
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OPINION

The petitioner, William H. Horton, appeals the trial court’s denial of his

petition for post-conviction relief. The petitioner contends that he received

ineffective assistance of counsel at trial and on direct appeal, as well as

prosecutorial misconduct. After careful review, we AFFIRM the judgment of the

trial court.

 

 Procedural History

On November 10, 1992, a Davidson County jury convicted the petitioner

of possession for resale of over 26 grams of cocaine. He was sentenced to the

Department of Correction for 21 years as a Range III persistent offender. His

direct appeal from that conviction and sentence was affirmed. See State v.

William Howard Horton, Davidson County, No. 01C01-9312-CR-00435 (Tenn.

Crim. App., filed October 6, 1994), app. perm. appeal denied January 30, 1995. 

On August 4, 1995, the petitioner filed this pro se petition. After appointment of

counsel, an amended uncounseled petition, two judge’s recusals, and two

hearings, the final order from which this appeal is taken was entered September

9, 1998.

BACKGROUND

Dennis Hughes represented the petitioner on the charges which are the

basis of this appeal. The post-conviction court considered all pleadings filed by

petitioner’s counsel, the trial transcript with the exhibits, the transcript from the

January 24, 1996 post-conviction evidentiary hearing, and the testimony

presented on September 9, 1998, in reaching its judgment. The witnesses

testifying at both hearings were the petitioner; Dennis Hughes, the petitioner’s

attorney; John Zimmerman, prosecuting attorney; and Terry J. Canady,

appointed counsel for petitioner’s direct appeal. In its judgment, the trial court

made several pertinent findings:
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1. Dennis Hughes was retained counsel for the petitioner at all 

times pertinent to the issue of ineffective assistance of counsel,

both at trial and on appeal.

2. The state offered the defendant an offer of an eight (8) year 

sentence if the defendant would plead guilty on the first 

settlement day prior to trial.

3. That offer could not be accepted by the defendant because he 

had voluntarily left the courthouse.

4. The petitioner did not wish to accept any offer made by the 

state and wished to force 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 counsel did everything he could to see that 

the petitioner received the most favorable plea bargain 

arrangement, yet he did not get the cooperation necessary from

his client.

7. The petitioner was well aware of the plea bargain offer, possibly

even prior to leaving the courthouse when it was originally 

made, but regardless of whether the defendant was aware of

the offer prior to leaving the courthouse, the record is clear that 

the petitioner was well aware of the offer and of subsequent

offers and rejected all of them.

ANALYSIS

The trial judge’s findings of fact on post-conviction hearings are

conclusive on appeal unless 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 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 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 reweigh or reevaluate the evidence, nor substitute 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). Questions concerning the
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credibility of witnesses and the weight and value to be given to their testimony

are resolved by the trial court, not this Court. See Henley, 960 S.W.2d at 579;

Black, 794 S.W.2d at 755. The burden of establishing that the evidence

preponderates otherwise is on the petitioner. See Henley, 960 S.W.2d at 579;

Black, 794 S.W.2d at 755.

Having reviewed the record, we conclude that the evidence does not

preponderate against the findings of the trial court. The trial court’s findings are

consistent with the testimony of Dennis Hughes and the prosecuting attorney. 

The petitioner has failed to demonstrate otherwise. Therefore, we deny the

petitioner’s claims of ineffective assistance and prosecutorial misconduct. 

CONCLUSION

Accordingly, we AFFIRM the trial court’s order denying post-conviction

relief.

_____________________________

JOHN EVERETT WILLIAMS, Judge

CONCUR:

______________________________

JOSEPH M. TIPTON, Judge

_______________________________

JAMES CURWOOD WITT, JR., Judge