FILED

October 19, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

OCTOBER SESSION, 1998

ANTHONY COLE, )

) No. 02C01-9711-CC-00445

Appellant )

) DYER COUNTY

vs. )

) Hon. LEE MOORE, Judge

STATE OF TENNESSEE, )

) (Post-Conviction)

Appellee )

For the Appellant: For the Appellee:

William K. Randolph John Knox Walkup

P. O. Box 611 Attorney General and Reporter

Dyersburg, TN 38025-0611

Peter M. Coughlan

Assistant Attorney General

Criminal Justice Division

425 Fifth Avenue North

2d Floor, Cordell Hull Building

Nashville, TN 37243-0493

C. Phillip Bivens

District Attorney General

P. O. Box 507

Dyersburg, TN 38024

OPINION FILED: 

AFFIRMED 

David G. Hayes

Judge
1

The facts underlying the charge of attempted aggravated sexual battery reveal that, on

March 28, 1996, the appellant went to the home of Vincent Robertson, where he and Robertson

proceeded to smoke crack cocaine all night long. The next morning, Robertson and the appellant

left. Soon thereafter, knowing that Robertson and his wife were not at home, the appellant

returned and forcibly entered the house. Robertson’s eleven year old stepdaughter and five year

old stepson were in the house watchin g television . The appe llant’s conv iction stem s from h is

conduct of sitting in the girl’s lap and placing his hand underneath her shirt for purposes of sexual

contac t.

2

OPINION

The appellant, Anthony Cole, appeals the order of the Circuit Court of Dyer

County denying his petition for post-conviction relief. On January 16, 1997, the

appellant pled guilty, as a range I offender, to one count of attempted aggravated

sexual battery.1

 Pursuant to the plea agreement, the appellant received a sentence

of six years in the Department of Correction. The appellant collaterally attacks his

conviction for aggravated sexual battery upon grounds that his trial counsel was

ineffective and that his guilty plea is invalid. 

After review of the record, we affirm the trial court’s denial of post-conviction

relief.

Background

The appellant filed the instant petition for post-conviction relief on May 1,

1997. An amended petition was filed on July 8, 1997. The petition alleges, in parts

challenged herein, that the guilty plea was invalid because the trial court failed to

sign the guilty plea form and that retained counsel was ineffective for (1) failing to

advise the appellant of the minimum and maximum punishments for the charged

offense; (2) failing to file pre-trial motions; (3) misinforming the appellant as to the

range of punishment sought by the State; and (4) failing to advise the appellant

regarding the statutory requirement that sex offenders complete a sexual abuse

treatment program as a prerequisite for parole. 
3

A hearing on the merits was subsequently held, after which the trial court

denied the appellant post-conviction relief, specifically 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 involved in the Petitioner’s Petition . . . deal with

whether or not there was ineffective assistance of counsel. . . .

. . . Just prior to Petitioner’s guilty plea [trial counsel] had successfully

tried an Aggravated Burglary case involving the Petitioner where the

jury reduced the charge to a lesser included offense. . . . . . .He also

indicated that he and his client had received a notice of enhanced

punishment. He felt that Mr. Cole had serious exposure in part

because of a past conviction, also, during his Aggravated Burglary

case, Petitioner evidently had done very poorly under crossexamination regarding prior convictions. . . . He indicated that if Mr.

Cole were convicted that he would be looking at a sentence of

approximately twelve years. The District Attorney General had sent a

notice of a Range III Punishment and evidently had made an offer in a

plea bargain to settle together the Aggravated Burglary and the

Aggravated Sexual Battery cases if both cases were settled. When

the defendant did not agree to settle the Aggravated Burglary case,

the plea offer on the Aggravated Sexual Battery was withdrawn. 

According to the testimony of trial counsel, he advised 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 filed because there was no reason

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 Sexual Battery cases. He indicated that Petitioner

knew that the plea offer had been withdrawn after the Petitioner had

gone to trial on the Aggravated Burglary case. Trial counsel indicated

that he felt that the Petitioner still wanted to go to trial until he talked

with his mother on the day of the trial. After there was a discussion

about the plea offer of Attempted Aggravated Sexual Battery, the

Petitioner decided he wanted to enter a plea of guilty. Trial counsel

indicates that he did not try to influence the decision of the Petitioner. 

. . .Trial counsel indicated that he had received the plea offer for six

years long before the trial and advised petitioner about the offer some

two or three times prior to January 15, 1997.

Petitioner indicated . . . that trial counsel advised him that the District

Attorney General would not go back to his offer of a plea agreement

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 fifteen to twenty years

although he states he would have gone to trial if he had a good lawyer. 
4

Trial counsel was employed by the defendant. Petitioner seemed

concerned that he had a previous plea offer for two years at thirty-five

percent, and that he did not know about the plea offer of six years until

the day before the trial. . . . On cross-examination, Petitioner

indicated that he had seen the enhancement notice at the Burglary

trial. He had entered some six guilty pleas prior to the one in question

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 District Attorney General, 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 anyway by failure of trial

counsel to file any pre-trial motions.

. . .

Petitioner next alleges that during discussion regarding plea

negotiations that trial counsel advised him that he was looking at

Range III punishment when it should have been Range II. The

transcript of evidence . . . clearly shows . . . that the presiding Judge

advised the Petitioner of the minimum sentence for the offense and

the maximum sentence. The presiding judge also advised him that the

State had given notice upon a conviction a Aggravated Sexual Battery

that the State would be seeking 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 Judge that he understood the

range of punishments. It is clear also that he was aware of his right to

a trial by jury. . . .This issue is, therefore, without merit.

. . .

The Court concludes that the performance of trial counsel was within

the range of competence demanded in criminal cases. . . .

Furthermore, Petitioner has failed to demonstrate any prejudice

caused by the actions of counsel, or that there is a reasonable

probability that the result of the proceedings would have been different

if counsel had acted otherwise . . . . 

Analysis

Post-conviction relief shall be granted when the conviction or sentence is void

or voidable because of an abridgement of a constitutional right. Tenn. Code Ann. §

40-30-203 (1997). Failure by the trial judge to sign the guilty plea form, even if it

had occurred, neither invalidates the guilty plea nor impinges upon a constitutional
5

right. See Tenn. R. Crim. P. 11. Thus, this claim is not cognizable in a postconviction hearing and is without merit. 

Additionally, in order to succeed on a post-conviction claim alleging

ineffective assistance of counsel, the appellant bears the burden of showing, by

clear and convincing evidence, Tenn. Code Ann. § 40-30-210(f) (1997), that the

services rendered by trial counsel were deficient and that, but for the deficient

performance, the results of the proceeding would have been different. Strickland v.

Washington, 466 U.S. 668, 687 104 S.Ct. 2052, 2064 (1984). The post-conviction

court found that counsel was not deficient and that counsel’s actions did not

prejudice the appellant. When this court undertakes review of a lower court's

decision on a petition for post-conviction relief, the lower court's findings of fact 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 entered by the post-conviction

court. Although otherwise 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 program

which must be completed prior to parole eligibility. However, the transcript of the

guilty plea hearing reveals that the trial court so informed the appellant as to this

requirement. Thus, the appellant has not met his burden as to this allegation. 

As a result, we find no error of law requiring reversal. The judgment of the

trial court dismissing the appellant’s petition for post-conviction relief is affirmed.
6

____________________________________

DAVID G. HAYES, Judge

CONCUR:

_________________________________________

JOHN H. PEAY, Judge

_________________________________________

L. T. LAFFERTY, Special Judge