# FILED
April 17, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MARCH 1997 SESS ION

DONNIE RAY

SEALS, )

) C.C.A. No. 03C01-9605-CC-00188 Appellant, ) ) Hamblen County V. ) ) Honorable Ben K. Wexler, Judge ) STATE OF TENN ESSEE, ) (Post-Convicti on) ) Appellee. )

FOR THE APPE LLANT: FOR THE APPELLEE: William A. Zierer John Knox Walkup Attorney at Law Attorney General & Reporter 124 W. Main Street P.O. Box 1276 Robin L. Harris Morristown, TN 37816- 1276 Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 C. Berkeley Bell, Jr. District Attorney General Victor J. Vaughn Assistant District A

ttorney General 109 S. Main Street, Suite 501 Greeneville, TN 37743

OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMM ERS, Judge

O P I N I O N-2- The appellant, Donnie Ray Seal s, pled guilty to one count of second degree murder and three counts of aggravated assault. He was sentenced to fifteen years for second degree mur der and three years for each aggravated assault conviction at 30 % as a standard offender. The sentences w ere ordered to run concurrently. The appellant filed a pro se petition for post-convic tion relief alleging ineffective as

sistance of counsel, and counsel was appointed for the appellant’s post-convi ction hearing. The hearing court denied relief. The appellant appeals this de nial. We affirm.
The appellant was invol ved in a head-on collis ion with another vehi cle. The appellant, who at the time of the incident had a blood alcohol l evel of .28, was traveling i n the wrong directi on and struck an oncoming v ehicle. One person was killed, and three others were inj ured.
The appellant alleges that he w as denied effective counsel becaus e (1) his counsel disregarde d a potential defense to his second degree murder charge; (2) his counsel based his plea recommendation on the assumption that, if the appellant stood trial, any convictions to th e charges would run consecutively; and (3) his counsel allowed him to rely on receiving a relatively early release if he w

ould enter a guilty pl ea.
To be granted relief on the gr ound of ineffective assistance of counsel , an appellant must establish that the advice given or the services rendered were not within the competence demanded of attor neys in criminal cas

es and that, but for counsel’s deficient performance, the result of his or her tri al would have been different. Strickland v. Washington , 466 U.S. 668 (1984). This two-part-3- standard, as it applies to g uilty pleas, is met w hen the appellant establishes th at, but for c ounsel’s error, he o r she would not have p led guilty a nd would h ave insisted on trial. Hill v. Lockhart , 474 U.S. 52, 59 (1985). In Tennes see, the appropriate test is wh ether counsel’s performance w as within the range of competence demanded of attorneys in cr iminal cases. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975).
In post-conviction pro

ceedings, petitioners bear the burden of proving their allegations by

a preponderance of the evidence. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990); McBee v. State , 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, the trial court’s find ings of fact in post-conviction hearings are conclusive on appeal unless the evidence preponderates against those find ings. Butler v. State , 789 S.W.2d 898, 899 (Tenn. 1990); State v. Buford , 666 S.W.2d 473, 47 5 (Tenn. Crim. App. 1983); Clenny v. State , 576 S.W.2d 12, 14 (T enn. Crim. App. 1978).
First, the appellant all eges that his counsel dis regarded a potential defense to his second degree murder charge. The appellant contends that he was in a “blacked-out”

mental state when he drove his v ehicle head-on into the car in which four persons were riding. The appellant, an admitted alcoholic, suggests through his

expert witness on ad diction medicine that his i ntoxication was not voluntary. In his brief, the appellant alleges that while he “voluntarily consumed that first beer, he w as not voluntarily intoxicated,” and thus di d not “knowingly” kill the victim. H owever, the appellant, who already had three pr ior convictions for driving under the influence and had had his driver’s license revoked, knowingl

y and voluntarily

took that first drink and pr oceeded to drive. The appellant asks this Court to disregard well-settled law that voluntary intoxication is not a de

fense to second degree murder. State v. Butler , 900-4- S.W.2d 305, 310-11 (Tenn. Crim. App. 1994); State v. McKinney , 603 S.W.2d 755, 760 (Tenn. Crim. App. 1980). This Court is not prepared to do so. From the record, counsel was not ineffective for failing to u se voluntary intox ication as a defense for the appellant’s second de gree murder charge. This claim is baseless.
Second, although the appellant could not recall a discussion with his attorney regarding

consecutive sentencing , he alleges that his couns el advised him that if he stood trial, any convictions to the char ges could run consecutiv ely. Counsel admitted that he did so advise the appellant. Althou gh the hearing court noted that it would have advised that the sentences r un concurrently, the prosecutor stated that the appel lant could have receiv ed consecutive sentences as “an offender whose record of cr iminal activity i s extensive.” Tenn. C ode Ann. § 40-35-115(b)(2) (1990)

.
The appellant has a lengthy r ecord of traffic and driving under the influence charges. Further more, the prosecutor noted that had the appellant gone to trial, his record and the facts of the case would have resulted in six enhancement factors for sentencin g purposes with no mitigating factors. Thus, according to the prosecuto r, the appellant could hav e received as much as eighteen years on the les ser offenses of vehicular homici de and vehicular assault had he gone to trial ; and had he been convicted of the cha rges as indicted , he could have recei ved as muc h as fort y-three yea rs. Conseq uently, counsel’s advice regarding consecutive sentencing was not only correct but also prudent. This issue is w ithout merit.
Third, the appellant was s entenced to fifteen years at 30% as a Range I standard offender. His release el igibility date i s four and one-half years. The-5- appellant contends that his tr ial counsel mistakenly

represented that his fifteenyear sentence could be ser ved in only two y

ears. He claims that his reliance on early release led him t

o plead guilty. Trial

counsel admitted that he told the appellant that he would be el igible for release in 4. 7 years, and perhaps earl ier because of the overcrowding conditions in prison. Trial counsel, however, denied t hat he to ld the ap pellant that he wou ld be eligi ble for re lease in o nly two years. In his brief, the appellant admits that counsel “made no promises of early release before what he said would be 4.7 (sic) years (15 years times 30%).”

The record reveals that at the time he entered his plea, the appellant admitted that he understood that his senten ce was fifteen years at 30% release eligibility. The appe llant also admitted that he had c ompleted the eleventh grade, and although he stated at the post-conviction hearing that he could no t multiply 30% times 15 at the time he entered hi s plea, he admitted that he could now do this multiplication. The r ecord does not indicate that co unsel’s apparent mathematical error inured to appellant’s detriment; the mis calculation was on the conservative side. This issue is without merit.
This Court finds that the appellant has failed to establish that he received ineffective assistance. Becaus e the evidence does not preponder ate against the hearing court’s findings, we affirm that court’s j udgment.

______________________________ PAUL G. SUMMERS, Ju dge
CONCUR:-6- ______________________________ JOHN H. PEAY, Judge

______________________________ CORNELIA A. CLARK , Special Judge