# FILED

October 19, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON OCTOBER SESSION, 1998

ANTHONY C

OLE, )

) No. 02C01-9711-CC-00445 Appellant ) ) DYER COUNTY vs. ) ) Hon. LEE MOORE, Judge STATE OF TENN ESSEE, ) ) (Post-Conviction) Appellee )

For the Appellant : For the Appellee : William K. Randolph John Knox Walkup P. O. Box 611 Attorney General and Repor ter Dyersburg, TN 38025-0611 Peter M. Coughlan Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493
C. Phillip Bivens District Attorney General P. O. Box 507 Dyersburg, TN 38024

OPINION FILED:

AFFIRMED

David G. Hay

es Judge1 The facts underl ying t he charge of att empted aggravated sexual battery reveal t hat, on March 28, 1996, t he appellant went to t he home of Vincent Robert son, where he and Robert son proceeded to smoke crack cocaine al l night long. The next

morning, Robertson a nd the appell ant left. Soon thereaft

er, knowing t hat Robertson and hi s wife were not at home, the appel lant returned and f

orcibly entered the house. Robertson’ s eleven y ear old st epdaughter and fi ve year old st eps on w ere in the h ous e wa tchin g tele vision . The appe llant’s conv iction stem s fro m h is conduct of si tting in the gi rl’s l ap and placi ng his hand undernea th her shi rt for pur

poses of sexual contac t. 2 OPINION

The appellant, Anthony Cole, appea ls the order of the Circuit Court of Dyer County denying his

petition for post-convic tion relief. On January 1 6, 1997, the appellant pled guilty,as a range I offender, to one count of atte mpted aggravated sexual ba ttery. 1 Pursuant to the plea agreement, the appellant received a sente nce of six years in the Department of Correction. The appellant collaterally attacks his conviction for aggr

avated sexual battery

upon grounds that his tri al counsel was ineffective and that his guil ty plea is invali d.

After review of the recor d, we affirm the trial court ’s denial of post-convic tion relief.

Background

The appellant filed the instant petition for post-conviction relief on May 1, 1997. An amended petition was fil ed on July 8, 1997. The petiti on alleges, in parts challenged herein, that the g uilty plea was inv alid because the trial cour t failed to sign the guilty pl ea form and that retained counsel w as ineffective for (1) failing to advise the appellant of the mini mum and maximum punishments for the charg ed offense; (2) failing to file pre- trial motions; (3) misi nforming the appellant as to the range of punishment sought by the State; and (4) failing t o advise the appellant regarding the statutory requirement that sex offenders complete a sexual abuse treatment program as a prer equisite for parole.3 A hearing on the merits was subsequently held, after which the trial court denied the appellant post-conv iction relief, specificall

y finding that: . . . It appears that the presiding Judge did not sign the form in question although the Petitioner, his attorney and the District Attorney General signed the form. The presiding Judge did, however, properly execute the “Judgment”. There was also a transcript of evidence dealing with the acceptance of the guilty plea. The Court finds this issue to be without merit. All other issues inv

olved in the Petitioner’ s Petition . . . deal with whether or not there w

as ineffective assistance of couns el. . . . . . . Just prior to Petitioner’s guilty plea [trial counsel] had successfully tried an Aggravated Burglary case inv olving the Petitioner

where the jury reduced the charge to a lesser included offense. . . . . . .He also indicated that he and his cli ent had received a notice of enhanc ed punishment. He felt that Mr. Cole had serious exposure in part because of a past conviction, also, during his Aggravated Burglarycase, Petitioner evidently had done very poorly under crossexamination regarding prior convictions. . . . He indicated that if Mr. Cole were convict

ed that he would be looking at a sentence of approximately twel

ve years. The Distr

ict Attorney General had sent a notice of a Range III Punishment and evidently had made an offer in a plea bargain to settle tog ether the Aggravated B urglary and the Aggravated Sexual

Battery cases if both cases were settled. When the defendant did not agree to settl e the Aggravated Burg lary case, the plea offer on the Aggravat ed Sexual Battery w

as withdrawn. According to the testimony of trial counsel, he advi sed his client that he was looking at a possible Range III Punishment and he realistically felt that Mr. Cole had exposure of twelve to twenty years. . . . He indicated that no motions had been fil ed because there was no reas on to file any motions. . . .Trial counsel indicated that at one point there was an offer for a plea agreement on both the Aggravated Burglary and the Aggravated Sex ual Battery cases. He indicated that Petitioner knew that the plea offer had been w ithdrawn after the Petition er had gone to trial on the Agg ravated Burglary case. Trial counsel indi cated that he felt that the Petitioner s till wanted to go to t rial until he talked with his mother on the day of the trial. After there w as a discussion about the plea offer of Attempted Aggrav ated Sexual Battery, the Petitioner decided he want ed to enter a plea of guilty . Trial counsel indicates that he did not try to influence the decision of the Peti tioner. . . .Trial counsel indicated that he had received the plea off er for six years long

before the tr

ial and adv

ised petiti oner about the offer some two or three times pri or to January 15, 1997. Petitioner indicated . . . that trial counsel advised him that the District Attorney General woul d not go back to his offer of a plea ag reement prior to the trial of the Aggravated Sexual Battery case. . . . He indicated that he still wanted to go to trial but felt like he had no help from his trial counsel. He also stated that trial counsel told him that if he accepted the plea offer of the six year sentence, he would probably be out of jail in eighteen months to two years. He now indicates that he will have to serve his full six year sentence because it involves a sex offense. He indicated that he did not want to go to trial with his trial counsel because of fear that he might get fif teen to twenty years although he states he woul d have gone to trial if he had a good lawyer.4 Trial counsel was employ ed by the defendant. Petitioner s eemed concerne d that he had a previ ous plea offer f or two years at thirty-f ive percent, and that he did not know about the plea of fer of six years until the day before the trial. . . . On cross-examinati on, Petitioner indicated that he had seen the enhancem ent notice at the Burglary trial. He had entered some s ix guilty pleas prior to the one in quest ion and knew the procedure.

. . . Petitioner first indicates that trial counsel was ineffective in failing to file pre-trial motions. The evidence is clear that trial counsel had available the entire file material of the D istrict Attorney Gene ral, and that it was not necessary that any pre-trial motions be filed. There is no evidence in the record that Petitioner was prejudiced in any

way by failure of tr

ial counsel to file any pre-trial motions.

. . . Petitioner next alleg es that during discussi on regarding plea negotiations that trial counsel advised him that he w as looking at Range III punishment when i t should have been Range II.The transcript of e vidence . . . clearly sh ows . . . that the pre siding Judge advised the Petitioner of the minimum sentence for the offense and the maximum sentence. The presidi ng judge also advis ed him that the State had given notice upon a conviction a Aggravated Sexual Battery that the State would be seeki ng punishment in Range II, and the presiding Judge advised the Petitioner that the minimum sentence in Range II would have been twelve years. The petitioner indicated in response to questioning by the presiding Judg e that he understood the range of punishments. It is clear also that he was aw are of his right to a trial by jury.. . .This issue is, ther efore, without merit.

. . . The Court concludes that the performance of trial counsel was within the range of competence demanded in cri minal cases. . . . Furthermore, Petitioner has failed to demonstrat e any prejudice caused by the actions of counsel, or that there is a reasonable probability that the res ult of the proceedings woul d have been different if counsel had acted otherwi se . . . .

Analysis

Post-conviction relief shall be granted when the conviction or sentence is void or voidable because of an abri dgement of a constitutional ri ght. Tenn. Code Ann. § 40-30-203 (1997). Failure by the trial judge to sign the guilty plea form, even if it had occurred, neither inv alidates the guilty plea nor impinges upon a constitutional5

right. See Tenn. R. Crim. P. 11. Thus, thi s claim is not cognizable in a postconviction hearing an d is without merit.

Additionally, in order

to succeed on a post-convi ction claim alleging ineffective assistance of counsel , the appellant bears the burden o f showing, by clear and convincing

evidence, Tenn. Code Ann. § 40-3 0-210(f) (1997), that the services rendered by

trial counsel were deficient and that, but for the deficient performance, the results of the proc eeding would have been d ifferent. Stricklan d v. Washington , 466 U.S. 668, 687 104 S.Ct. 2052, 20 64 (1984). The post-convic tion court found that counsel was no t deficient and that counsel’s ac tions did not prejudice the appellant. Whe n this court undertakes review of a lower court's decision on a petition for post-conviction relief, the lower court's findings of f act are given the weight

of a jury verdict and

are conclusive on appeal absent a finding that the evidence preponderates against the judgment. See Davis v. State , 912 S.W.2d 689, 697 (Tenn. 1995). After reviewing the record, we conclude that the evidence does not preponderate against the excellent findings ente red by the post-convi ction court. Although otherw ise fully addressing the allegations raised by the petition, the post-conviction court

failed to expressly address the appellant’s contention that trial counsel failed to inform him of the mandatory sexual offender treatment progr am which must be completed pri or to parole eligibil ity. However, the transcript of the guilty plea hearing reveals that the trial court so informed the appellant as to this requirement. Thus, the appell ant has not met his burden as to thi s allegation.

As a result, we find no er ror of law requiri ng reversal. The judg ment of the trial court dismissi ng the appellant’s petitio n for post-conviction r elief is affirmed.6 ____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

_________________________________________ JOHN H. PEAY, Judge

_________________________________________ L. T. LAFFERTY, Special Judge