# FILED
March 23, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JANUARY 1998 SESSION

WESLEY BARNES, ) ) Appellant, ) No. 03C01-9702-CR-00068

) ) Hamilton County v. ) ) Honorable Dougla s A. Meyer, Judge ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. ) For the Appellant : For the Appellee : Ardena J. Garth John Knox Walkup District Public Defender Attorney General of Tennessee and and Richard Heinsman and Michael J. Fahey, II Donna Robinson Miller Assistant Attorney Gener al of Tennessee Assistant Public Defenders 450 James Robertson Parkwa y 701 Cherry Street Nashville, TN 37243-0493 Chattanooga, TN 37402 (AT TRIAL) William H. Cox District Attorney General Ardena J. Garth and District Public Defender Leland Davis and Assistant District A ttorney General Donna Robinson Miller 600 Market Street Assistant Public Defender Courts Building Suite 300 Chattanooga, TN 37402 701 Cherry Street Chattanooga, TN 37402 (ON APPEAL)

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The petitioner, Wesley Barnes, a ppeals as of right from the denial of his petition for post-convic

tion relief by the Hamilt on County Criminal Cou rt. He seeks relief from his conviction upon a g uilty plea for attempt to commit aggravated arson r

esulting in an eight-year sent

ence. He claims that the tr ial court incorrectl

y found that he received the effective assistance of counsel. Particularly, the petitione r asserts that his trial attorney failed to investigate the case, intervened into negotiat ions without retained counsel’s permission, pr essured him into pleading g uilty, and misadvis ed him that he was facing a life sentence o n the original aggr avated arson charge. We affirm the trial court.
This case presents a rather disjointed, incomplete pict ure of the circumstances surrounding the petitioner’s guilty plea to attempt to commit ag gravated arson. T he record reflect s that the petition er was charg ed in sepa rate case s for two offen ses of se lling coca ine and o ne offe nse of ag gravated a rson. Att orney Phil Floyd was originally appointed to represent the petitioner on the cocaine charges, and Arvin Reingold was orig inally retained on the ag gravated arson charg e.

The record reflects that the petitioner was convic ted in a jury trial of the sale of cocaine in one case, rec eiving an eight-y

ear sentence. He subsequentl y pled guilty in one hearing

to the second cocaine sale and t o attempted aggravated ar son, receiving an eight-year sentence for each. A t some point, he was also s erving time on a federal sentence. The two cocai ne cases were to run conc urrently to each other, but the attempted aggravated ar son case was to run consecutively, for an effectiv e state sentence of sixteen years . The state sentences were t o run concurrently w

ith the federal sentence.3 The gist of the petitioner’s c omplaint is that Mr. Flo yd, although not counsel of record, interv ened in the aggravated ar son case and got the petitioner to plead guilty even though Mr. Floyd knew nothing about the case, w hile the petitioner claimed that he was innocent. However, the post-conviction evidentiary hearing reveals little in support of the petitioner’s claims.

Mr. Floyd’s testi mony reflects that he had no indepen dent recollection of the case other than recognizing the petitioner and remember ing the petitioner’s name. He identified the appointment order for him to represent the petiti oner in a cocaine case. He identified his si gnature on the petition to enter guilty pleas to the s

ale of cocaine and to the attempted aggr avated arson. He also i dentified on the judgment of conviction for the attempted ag gravated arson that Mr. Reingold’s name was typed while his own was written after Mr. Reingold’s. He testified that he would not touch another attorney’s case, although he mentioned several ways another attorney could become involved, such as a defendant resolving multi ple cases involvi ng several attorneys.
Mr. Reingold testified that he represented the petitioner at the aggravated arson preliminary hear ing but that the petitioner could not retain him for the drug cases. He recalled learning from either the petitioner or M r. Floyd that appointed co unsel was going to handle the pending cases because something w as being worked out on them. Mr. Reingold did not recall formally withdrawing from representation, but he believed it to be understood that he had withdrawn. He did not remember whether he discussed any investigation of the arson case with Mr . Floyd. He recall ed, though, that the petitioner asserted his i nnocence. Finally, he s tated that if he had still been representing the petitione r at the time, he would hav e been at the guilty plea hearing.4 Charles Baker testified that his mother’s house was burned as the result of the arson and that his brother, German, said at the time that he sa w the petitioner do it. He testified that he w as aware that the petitione r had argued with Ger man before the fire. Mr. Baker stated that he had learned on the streets that th e petitioner did not do it and that he told German of this. However, German “wanted to believe what he saw.” He provided German Baker’ s address to the court. Mr. Baker testified that about a y ear before the hearing, he heard a per son named Lonnie admit to burning the house.
The petitioner testified that he retained Mr. Reingold fo r the arson case and that Mr. Floyd w

as appointed to the cocaine cases . He testified that he had been offered a misdemeanor conviction and a one-year sentence for the ar son case, but he refused it because he was inn ocent. He indicated that he w as unaware that he was pleading guilty to

attempted aggravated ars on, thinking that Mr. R

eingold was going

to handle it.
At this point in the hearing, the trial court stopped the testimony because the guilty plea heari ng had not been transcribed. Subsequently, the petiti oner failed to appear at two hearing dates, and the trial court dismi ssed the case. Howev er, pursuant to agreement of the par ties on appeal, this court remanded the case for further record devel opment, including findings of fact and conclusions of la w.
Upon remand, the petitioner added t he claim that he was misadv ised about his sentence exposure, noting that the guilty plea petition had a maximum sentence of life imprisonment, instea d of twenty-five ye

ars which was appl icable to the Range I, Class A felony of aggravated arson. H owever, no further test imony from the petitioner or other wi

tnesses was presented.5 The transcript of the guilty plea hearing reflects that the petitioner was advised of his rights and made aware that he was p leading guilty to attempted aggravated arson pur

suant to a plea agreement. The petitioner said that he understood what was going on and that he did not want a ju ry trial. He sai d that he agreed to the punishment of sixteen years that would run concurr ently with his federal

time of fifty-one months.
The trial court found that the petit ioner’s claim that the stat e could not make a case against him w as not persuasive. It not ed that the petitioner did not present German Baker as a w itness, but called Charl es Baker, whose testimony the trial court found unconvinc ing.
As for counsel, the trial court found that the petition er acquiesced in Mr. Floyd’s representati on in the negotiation and plea i n the attempted aggravated a rson case. It stated that Mr. F loyd worked out a g ood deal for the petitioner and that it was in the pe titioner ’s best in terest to accept th e state’s offer. It conclu ded that Mr. Floyd provided the effective assi stance of counsel.

If a petitioner seeks to vac ate a conviction based upon hi s guilty plea on the ground that the plea resul ted from the ineffective assistance of counsel, the petitioner must show (1) that his attorney render ed deficient representation and ( 2) “that there is a reasona ble proba bility tha t, but fo r counsel ’s errors, he would no t have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart , 474 U.S. 52, 58-59, 106 S. Ct. 366, 370 (1985).Under the law control ling in this case, the burden rested on the petitioner to pr ove his allegations by a preponderance of the evi dence. Long v. State , 510 S.W.2d 83, 86 (Tenn. 1982). On appeal, the finding s of fact of the trial court are conclus ive unless the evidenc e preponderates against them. Butler v. State , 789 S.W.2d 898, 899 (Tenn. 1990).6 The central failure of the petitioner in this case is that he s ubmitted no credible evidence that he would have withdr awn his guilty plea and proceeded to trial on the aggravated arso n case. Although he intimated that he was unaware that he was pleading guilty in the arson case, the transcript of the guilty plea hearing conclusively reflects otherwise. As

for his claim that he was misadvised as to his max imum exposure, the petitioner d id not testify that it had any effect upon his decision to plead guilty. Similarl

y, although the petitioner professed his innocence on the ar son charge, the record supports the tri al court’s determination th at the state had an eyewitness who claimed to have seen him commit the offense.

Although we note tha t the reco rd is devoid of any evid ence tha t Mr. Floyd investigated the arson, there is also no evidence that such affecte d the petitioner’s guilty plea. Rather, the guilty plea tr anscript indicates that the petitioner was inter

ested in resolving all

his cases and proceeding with serving hi s time.
We conclude that the record does not preponderate against the trial court’s findings of fact and deter mination of the case. The judgment of the trial court is affirmed.

______________________________ Joseph M. Tipton, Judge CONCUR:

__________________________ Gary R. Wade, Judge

__________________________ William M. Barker, Judge