# FILED
November 30, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE SEPTEMBER 1998 SESSIO N

RAYMOND WRIGHT, ) ) Appellant, ) No. 03C01-9710-CR-00460

) ) Hamilton County v. ) ) Honorable Douglas A. Me yer, Judge ) STATE OF TENNESSEE, ) (Post-Conviction) ) ) Appellee. ) For the Appellant : For the Appellee : Robert N. Meeks John Knox Walkup P.O. Box 8086 Attorney General of Tennessee Chattanooga, TN 37414 and Todd R. Kelley Assistant Attorney Gener al of Tennessee 425 Fifth Avenue North Nashville, TN 37243-0493 William H. Cox, III District Attorney General and C. Leland Davis Assistant District A

ttorney General 600 Market Street, Suite 310 Chattanooga, TN 37402

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge1 The record refl ects that the peti tioner was or iginal ly i ndicted for

premeditated murder and su bsequ ently for felony m urder. As part of his p lea agree men t, the petitioner agreed to plead gu ilty to second degree murder in excha nge for a sentence as a Range III offender, thereby serving forty-five percent of a f ifty

-year sent

ence before bei ng eligi ble for par ole. 2 O P I N I O N
The petitioner, Raymond Wright, appeals as of right from the judgment of the Hamilton County Cri minal Court denying hi m post-conviction rel ief. He was convicted in January 1993 upon his guilty plea to second degree murder, a Class A felony. Pursuant to his plea agreement, he was sentenced as a Range III, stan dard offender to fifty years confinement to be s erved in the Department of Cor rection. 1 He contends that he received the ineffective assistance of counsel resulting in an unknowing and invol untary guilty pl ea. We disagree.

At the evidentiary hear ing, the petitioner testi

fied that his trial attorney never read any indic

tment to him. He said his attor ney never explained

the elements of any of the crimes for whic h he was charged, nor di d he explain the elements of second degree murder. He said if he had understood the eleme nts of second degree murder, he would not have pled g uilty.

The petitioner testified that his attorney discussed a pos sible defense of insanity but told him the t rial court would not accept a defense of temporary insani ty. He said his attorney to ld him he had to be insane at all times, and the petitioner sai d he did not want to use insanity as a defense because he was not insane. He said that if he had known that insanity and diminished capacity were available as defenses, he would not have pled guilty . He said that he pled gui lty because he thought he w ould be reindicted for felony murder and the state would seek the dea th penalty. He also said his attorney and the district attorney told him he would probably be released from jail in ten to twelve year

s. He said he thought the tr ial judge may have ex

plained the elements of the offenses to him at the guilty plea hearing, but he w as not positive. On3

cross-examination, he admitted that at the guilty plea hearing, he said he had a week to examine the plea agreement.

The petitioner’s trial att orney testified that he talk ed with the petitioner and the petitioner’s sister

numerous times. He said a psy chological evaluati on revealed that the petitioner was competent and sane. He said he believ ed the petitioner understood everything he told him. He said he showed the petitioner the indictment for felony murder and discussed it w ith him. He said he expl ained all the elements the state would have to prove to convict the petitioner of premeditated and felon y murder. He said the petitioner understood his options, and he acce pted the plea agreement almost immediately. He said he t old the petitioner to think i t over for a week before ag reeing to the plea. He said the petiti oner readily accepted the plea, and he did not coerce or persuade the petitioner to acc ept it. He testified that he nev er told the petitioner that he would probably get out of jail in ten to twelve years.

The trial court denied the petitioner post-convicti on relief. It found that the petitioner freely, vol untarily, and knowi ngly entered his plea of guilty and that his tr ial attorney’s performance was within the range of competence dema nded of attorneys in criminal cases.

On appeal, the petitioner challenges his conviction based upon the claim that he received the ineffectiv e assistance of counsel that caus ed him to enter an unknowing and invol untary guilty pl ea. In his brief, the petitioner presents two separate claims. First, he arg ues that his plea was in voluntary and unknow

ing because counsel failed to explain the elements of second degree murder, and second, he argues that counsel was deficient for failing to explain the elements. Because the petitioner’s essential claim is that his attorney’s deficient performance resulte d in an involuntary and unknowing plea, we address his claims together.4 Under the Sixth Amendment, w hen a claim of ineffective assist ance of counsel is made, the burden is upon the petitioner to sho w (1) that counsel’s performance was deficient and (2) that the deficiency w as prejudicial in terms

of rendering a reasonable pr obability that the resul

t of the trial was unrel iable or the proceedings fundamentally unfair

. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); see Lockhart v. Fretwell , 506 U.S. 364, 368-72, 113 S. Ct. 838, 842-44 (1993). The Strickland standard has been applied to the r ight to counsel under Article I, Section 9 of the Tenness ee Constitution. State v. Melson , 772 S.W.2d 417, 419 n. 2 (Tenn. 1989). When a petitioner claims that ineffective assistance of couns el resulted in a guilty plea, the petitioner must prove that counsel performed de ficiently and that but for counsel’s errors, the petitioner would not have pled guilty and would have insisted upon going to trial. Hill v. Lockhart , 464 U.S. 52, 59, 106 S. Ct. 366, 370 (1985).

In Baxter v. Rose , 523 S.W.2d 930, 93 6 (Tenn. 1975), our supreme court decided that attorneys shoul d be held to the general standar d of whether the servic es rendered were withi n the range of competence demanded of attorney s in criminal cases. Further, the court stated that the range of competence w as to be measured by the duties and criteria se t forth in Beasley v. United St ates , 491 F.2d 687, 696 (6th Cir. 1974) and United States v. DeCost er , 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also, in reviewing c

ounsel’s conduct, a “fair as sessment of attorney performance r equires that every effort be made to eliminate the distorting eff ects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to ev aluate the conduct from counsel’s perspective at the time.” Strickland , 466 U.S. at 689, 104 S. Ct. at 2 065; see Hellard v. State , 629 S.W.2d 4, 9 (Ten n. 1982).5 We also note that the ap proach to the issue of the ineffective assistance of counsel does not have to start with an analysis of an attorney’s conduct. If preju dice is not shown, we need no t seek to determine the vali dity of the allegations ab out deficient performance. Strickland , 466 U.S. at 697, 104 S. Ct. at 2 069.

In a post-conviction case, the burden is on the petitioner to prove his grounds for relief by clear and convincing evidence. T.C.A. § 40-30-210(f). On appeal, we are bound by the trial court’s findings unless we conclude that the evidence preponderates against those find ings. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). The petitioner has the burden of illustrating how the evidence preponderates against the ju dgment entered. Id . We conclude that the petitioner has failed to meet this burden.

The petitioner argues that hi s trial attorney w as deficient because he never explained the ele ments of second degree murder, ther eby resulting in an unknowing

and involu ntary gui lty plea. First, w e note that although the pe titioner claims he was never instructed on the elements of second degree murder, at th e evidentiary hearing his trial att

orney was never asked if he explained those el ements to the petitioner. Nevertheless, at the guilty plea hearing, the following colloquy took place between the trial court and the petitioner:

COURT: Now, you’v

e told your attorney a ll the facts and circumstances surrounding the charge against y

ou? DEFENDANT: Yes. COURT: And [your attorney] has counsel ed with you about those charges, what those charges mean. He’s told you what the possible punishment could be. He’s disc ussed wi th you the possible defenses you might have, incl uding the defense of dimin ished res ponsibil ity. DEFENDANT: Yes.6 COURT: Also, has he taken the time to answer y our questions that you might have? DEFENDANT: Yes. COURT: Has he done every thing within reason you’ve asked of him? DEFENDANT: Yes, he has.

. . . . COURT: . . . And you understand that if you plead guilty, it has the same effect as if a jury found you g uilty, and that you’re not going to have any furth er h earing in this court o r any other court about your guilt? DEFENDANT: I’m aware of that.
The petitioner has failed to show how the trial court’s findings are incorrect. We conclude that the evidenc e does not preponderate against the trial court’s findings that the petitioner knowingly and voluntarily ente red his guilty pl ea pursuant to a plea agreement and that his attorney’s perfor mance was not ineffective. In consideration of the foregoing and the record as a whole , the judgment of the trial court is affirmed.

________________________________ Joseph M. Tipto n, Judge

CONCUR:

_________________________ John H. Peay, Jud ge

_________________________ David G. Hayes, Judge