### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs D ec em be r 7, 200 4

WI LLI AM DAVID FARRAR v. ST ATE OF TEN NES SEE

Direc t Appeal from the Circ uit Court for Bedf ord County Case No. 9377- P C Lee R ussell, Ju dge

No. M2003- 01888-CCA -R3-P C - F iled Janu ary 24, 2005

The Petitioner, Willi am David F arr ar, pled g uiltyto one count of bur g lary , and the tria l court

se nte n c e d h i mt o f

i v e y e ar s i n p r i s o n , t o b e s e r v e d c o n s e c u t i v e l y t o a n o t h e r

s e n t e n c e i n M ar s ha ll Cou nty . T he Pe ti ti one r d id n ot p e rf e c t a dir e c t app e a l, b ut l a te r f ile d a pr o s e pe tit ion fo r p os tconviction re lief, which w as ame nded by appointed counse l. After a hearin g, the post-conviction court dismissed the petition, and the Petitioner now a ppeals, co n t en d i ng that the post-conviction
court e rre d beca

use his trial counsel wa s in ef fe ct i v e. Finding no re versible e rror , we a ffirm the jud g me nt o f the po st- c on vic tio n c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

R OB E R T W. W EDEMEYER , J ., delivere d the opinion of the court, in which D AVI D H. W ELLES and T H O M A S T. W O O D A LL , J J ., joined.

Hay ley E. Fults (on a

ppeal) and Richar d A. Cawley (at tria l ), S helby ville, Tennesse e, for the Appellant, Willi am David F arr ar.

Paul G. Summers, A ttorney Gene ral and Reporter ; Helena Walton Yarbroug h, Assistant Attorney Gene ral; Will iam Michae l McCowy
, District Attorney Gene ral; and Micha el D. Randles, Assistant District Attorney

Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION I. F acts

The Petitioner filed a

pro se petition for post-conviction relief
, which was later a mended by appointed counse l. I n his petition he alleg ed, in part, that he re ceive d i n ef fective assistance of

c ou ns e l. T he fo llo wi ng e vid e nc e wa s pre se nte d at the he ari ng on the Pe tit ion e r’ s pet iti on fo r p os tconviction re lief: Andy

Myri c k ( “ Co u n s e l” ) te stified that he wa s appointed to repr esent the Petitioner

on c ha rg e s of bu rg lary a nd the ft in B e df or d Cou nty , wh ic h are the su bje c t of thi s a pp e a l, andhe a lso
repr esente d the P etitioner on simil ar charg es i n Marsha ll County

. Counsel said that he filed a motion fo r d isc ov e ry

a ndthat he re c e ive d a

pr opos ed witn e ss l ist

fr om the pr os e c uti on , a lon g wi th-2-

state me nts ma de by

the Pe tit ion e r, his c o- de fe nd a nt, a nda thi rd -p art y

wi tne ss t o t

h e Ma rs ha ll Co un ty

c r i m e s

. C o u n s e l s a i d t h a t t h e r e w e r e n o w i t n e s s e s t o t h e c r i m e s t h a t o c c u rr e d i n B e d f o r d C o u n t y, so the Petitioner was the only person that he int ervie wed about these cha rg es. Counsel testified that he re a d th e state me nts of

bo th the Pe tit ion e r andthe Pe tit ion e r’ s c o- de fe nd a nt. He sa id that th e on ly oth e r w itn e sse s w e re po lic e of fi c e rs , w ho “ in [h is] e xpe ri e nc e

. . . ar e no t too wil lin g to ta lk to [h im] when [he is] represe nting . . . someone they are prosec uting.”

Co u n s e l te s ti f

ie d th a t B e th F r e e man a ls o ma d e a w r it te n s tate me n t to p o li c e ab o u t the Marsha l l C o u n ty

crimes. In that statement, B eth Fr eema n said that the Petitioner and his code fe nd a nt we re a t he r h ou se on the nig ht that th e c ri me s o c c ur re d, a ndthe y

le ft a t 9: 00 p. m. anddid not return until ear ly

the next morning. F ree man said that, whe n the Petitioner and his co- defe ndant

re turne d, the y ha d ba g s of ca nd y a nd je we lr y a nd mon e y , all of wh ic h wa s tak e n fr om a ch ur c h in Marsha ll Count y

or a c hurch in B edfor d Coun t y

. Counsel said that the Petitioner and his code fe nd a nt we re te mpo ra

ri ly stay ing wi th F re e ma n wh e n the po lic e e xec ute d a se arc h w arr a nt o f B e th Fr eema n’s house a nd found some of the stolen items in her home.

Counsel testified that, in his first few mee ting s w it hth ePe titioner, the Petitioner never denied his involveme nt w ith the crimes that oc curr ed in Marsha ll Count y and in B edfor d County . Further, the Pe tit ion e r g a ve a

state me nt t o p oli c e in w hic h h e a dmi tte d h is i nv ol vem ent in the c ri me s. Simi larly , the Petitioner’s co- defe ndant g ave a statement to police a

bout his inv o l v em en t i n the crimes. Counsel sa id that, subse quently
, the Petitioner’s story chang ed, and thePetitioner said that his confession wa s coer ced be cause the police told him that, if he did not make the stateme nt, the State would take Be th Free man’s children awa y from her. I n response , Counsel testified that he filed a motion to suppress the Petitioner’s statement to police, and he re quested a trial date. He said that there was ne ver a

hearing on the motion to s uppress be cause the case was settled sometime befor e the trial wa s set.

Counsel said that he vis ited with the P etitioner seven times, and some of those visits occurre d in c ou rt a ndso me we re in j a il. Cou ns e l sa id that he g a ve the Pe tit ion e r a fil e sim ila r to his ow n f

ile and sent the Petitioner c opies of eve rything that he rec eived. He said that, at some point, the Pe tit ion e r w a nte d a jury

tr ia l, b ut C ou ns e l a dv ise d th e Pe tit ion e r that he tho ug ht a jury tr ia l w ou ld be unsucc essful bec ause of the Petitioner’s statement, the Petitioner’s co-de fenda nt’s statement, and the fa ct that some of the stolen g oods were found in the home whe re the Petitioner was staying.

Counsel said that, during the plea negot iations, there wa s an issue about whe ther the Pe tit ion e r’ s se nte nc e fo r h is c ri me s in B e df or d Cou nty sh ou ld ru n c on se c uti ve ly to o r c on c ur

re ntl y with his sentence f

or crimes he commit ted i n Marsha ll Count y . Counsel rec alled that the Petitioner

wa s to re c e ive te n y e ars fo r h is M ars ha ll Co un ty c ri me s and that sen te nc e wa s to ru n c on se c uti ve ly to any sentenc e that he r ece ived in Be dford County . Counsel said that he ex plained to t he Petitioner that th e se nte nc e s wo uld ru n c on se c uti ve ly be fo re the Pe tit ion e r e nte re d his g uil ty ple a in M ars ha ll County . Counsel said that he di d not rec all whether the P etitioner was taking any medications whe n he re prese nted the Petitioner.-3-

On cr oss-examination, Couns el re iterate d that the majority of the stolen property

was found in the house wher e the Petitioner and his c o-def endant wer e staying shortly afte r the burg laries, a nd both the Petitioner and his co-de fenda nt ga ve stateme nts to poli ce implicating themselves. Further, B e th Fre e ma n g a ve a wri tt e n s ta te me nt t o p oli c e imp lic a tin g the Pe tit ion e r andhis c o- de fe nd a nt. Counsel ag ain said that the Petitioner admitted to him that he was involved in these crimes.

Counsel testified that he has ha ndled a f air number

of criminal case s. He sa id that he wante d to ge t the Petitioner the best “dea l” possible, until he learned the Petitioner wanted a trial, then he wanted the Petitioner to ge t a trial. Counsel said that he ne ver be lieved that the P etitioner wa s innocent of the char g es ag ainst him. Counsel sa id that he discussed both case s with the Petiti oner

on sever al occasions: Dec ember 9, 2001, for six hours; J anuary 2, 2002, for ha lf an hour; January 9, 20 02 , f or ha lf a n h ou r; F e br

ua ry 19 , 2 00 2, fo r e ig ht h ou rs ; a ndMa rc h 2 5, 20 02 , f

or fo ur ho ur s. Counsel reiterated that the Petitioner has a complete copy of Counsel’s file f or these c ases. Counsel said that he discussed the Petitioner’s rig ht to a jury trial with him, and he said that they actua lly set the ca se for

a trial. He testified that the Pet i t i o n er kne w “if he wanted to [he could] have a jury decide his guilt or innoce nce, no matter what streng th or wea kness” of his case w as.

C o u n s e l t e s t i f

i e d t h a tt h e P e t i t i o n e r

p l e d g u i l t y t o t h e c h ar g e s a g a i n s th i mi n B e d f o r d C o u n t y. H e s a i d t h a t , i n b o t h c o u n t s , t h e P e t i t i o n e r r e c e i v e d a

s e n t e n c e o f

f i v e ye ar s , t o b e s e r v e d a tt h i r t yfive pe rce nt. Counsel said that he either r ead the plea ag ree ment to the Petitioner or he a llowed the Petitioner to read the document, but he wa s sure that the Petitioner wa s awa re of every thing in that document. Counsel said that the Petitioner understood the t erms of his Be dford Count y sentenc e,

a ndthe Pe tit ion e r und e rs too d tha t this se nte nc e wo uld ru n co ns e c uti ve ly to his se nte nc e in M ars ha ll County

. C o u n s el testified that it was the Petitioner’ s decision not to go to tria l, and Counsel has

never forc ed any one to ac cept a plea de al.

On re direc t e x amination, Counsel sa id that he knew that the Petitioner was only stay ing at Be th Free man’s house temporarily when the sear ch war rant was executed. He said that he did not know wher e the Petitioner’s pe rmane nt addre ss was at the time.

The Petitioner testified that Counsel visited him twice in ja il, a nd most of the time when they met it was in the courtho u s e. He said that he unde rstood that he would be c harg ed in B edfor d Countyafte r he se rved his time in Marsha ll Count y . The Petitioner said that he believe d that he wa s to s e rv e se ve n y e ars in Ma rs ha ll Cou nty , c on se c uti ve ly to “ [his ] oth e r thr e e ” fo r a tot a l of te n y e ars

. Th e Pe tit ion e r s a id tha t he fi rs t told Cou ns e l tha t he ha d c omm itt e d th e se c ri me s b e c a us e “ of B e th F re e ma n, he r s itu a tio n, ” a ndthe n h e re c a nte d th is sta te me nt andtol d h im that he didno t c omm it the se c ri me s a nd wa nte d to g o to tr ia l. Th e Pe tit ion e r s a id that Co un se l to ld h im that it wo uldbe in his best interest not to g o to trial beca use of the weight of the evidence ag ainst him and bec ause the re

was a possibili ty

that, if found g uilty , he could r ece ive the maximum sentenc e.

Th e Pe titio ner test if

ie d th a t he re c a nte d h is s tory be c a us e he didno t c omm it the se c ri me s. He sa id that, at the time of his arr est, he wa s not livi ng in Marsha ll Count y , wher e he w as ar rested, but was l iving in Be dford Count y

. He ex plained that his co-de fenda nt came to pick him up ea rlier-4-

in the evening of his arr est. He sa id that he o n l y co nfesse d to these crimes because the police threatened to take Be th Free man’s child from her if he did not confe ss. The Petitioner testified that he dis c us se d th e mot ion to s up pr e ss w ith Cou ns e l, andit w a s h is u nd e rs ta nd ing that Co un se l w ou ld fi le thi s mo tio n; b ut m or e tha n lik e ly the mot ion wo uld no t be g rante d, a nd he un de rs too d that hi s statement would be use d ag ainst him if they went to trial.

The Petitioner testified t h at, when he sig ned the plea ag ree ment in Be dford County , he be lie ve d th a t he wo uldbe se rv ing fi ve y e ars at th irty -f ive pe rc e nt, c on c ur

re nt w ith his Ma

rs ha ll Countysentenc e. Af

ter he signe d the ag ree ment, he learned that his sentenc e would run c onsecutive to his Marshall Countysentenc e. The Petitioner said that, sometime befor e he w ent to the judg e, he told Counsel that he had chang ed his mind and did not want to enter a plea. He sa id that he “wa dded up” the f irst plea ag ree ment and thre w it in the trash, causing a n arg ument betwee n himself and Counsel. The P etitioner t estified that, afte r he sig ned the plea ag ree ment, but before it was enter ed in court, he chang ed his mind, but Counsel told him that once he had signe d the plea a g ree ment he could not “g o back on it.”

The Petitioner testifi ed that, whe n he wa s entering his plea, the trial judg e aske d him if he

wa s takin g a ny

me dic a tio ns , a ndhe re sp on de d n e g a tiv e ly . H e sa id that of fi c ia ls i n M ars ha ll Co un ty had take n him off of his medication, which he needed for depression, asthma, and muscle rela x ation. The Petitioner said that be ing of f of his medication “could have ” af fec ted his abi l i t y t o make a d e c i s i o n ab o u th i s c a s e

. T h e P e t i t i o n e r t e s t i f i e d t h a t h e h a s d i f

f i c u l t y r e a d i n g b e c a u s e h e h a s a n e ye disease c alled Ke ratoc onus. He said that, as a result, hi s vision is blurry and he se es spots, “doublebla c k s po ts. ” Th e Pe tit ion e r a dmi tte d th a t he c ou ld r e a d th e ple a a g re e me nt, bu t sa id that it wa s “ sti ll kind of blurry to an ex tent.” The P etitioner said that he did not have any questions for Counsel when he re a d th e a g re e me nt b e c a us e he tho ug ht that hi s se nte nc e wa s g oin g to ru n co nc ur re ntl y wi th h is Marsha ll Count y

sentenc e. The Petitioner explained that, when the judg e explained that his sentence

wo uldru n c on se c uti ve ly

to the Ma

rs ha ll Co un ty

se nte nc e , h e didno t say

a nythi ng be c a us e he d id

no t kn ow that he c ou ld. Th e Pe tit ion e r t e sti fi e d th a t he g ot the i nfo rm ati on that he pu t in his statement to police fr om his co-def endant a nd from Be th Free man when they wer e all in jail togethe r prior to being interviewe d.

On c ro ss- e xami na tio n, the P etiti on e r e xpla ine d th a t, w he n th e po lic e we re se arc hin g B e th Fr eema n’s trailer , they

said “He y y ou need to admit or we are g oing to take her c hild.” He sa id that the police ha ndcuff

ed him and his c o-def

endant a nd called B eth Fr eema n back into the house . Then they told him t hat he ne eded to a dmit what he had done so that she wou ld not ge t her c hild taken. Th e Pe tit ion e r s a id tha t th e po lic e “ su pp os e dly ” kn e w w hat he ha d don e becau se a “ sn itc h” tol d them. He sa id that he admitted to this crime bec ause his child has be en take n from him. W hen asked w hether

the Petitioner knew, at the time he enter ed his ple a ag ree ment, whether his sentence would run conse cutively

to his Marshall County sentenc e, the Petitioner responde d “I don’t know. Did I ? ” The Petitioner then admitted that, at the time he e ntere d his plea, he kne w that his sentence s would run conse cutively

. The P etitioner admit ted t hat, when the t rial court asked him i f he ha d any questions, he re sponded “no.” The Petitioner said that he to l d t h e j u d ge that he under stood

e ve rythi ng in the ple a

a g re e me nt. He sa id that Coun se l told him “ on c e [y ou ]

. . . sig n the a g re e me nt,-5-

that was it

. That was the agr eeme nt.

. . . [He] did not know that he could a sk [t he judg e] any thing.” The Petitioner admitted that he ha s pled g uiltyto felony crimes on f

our pre vious occa sions.

Counsel testified ag ain, and he denied the Petitioner’s alleg ation that he told the Petitioner that there was “ no turning back” afte r the Petitioner sig ned the plea ag ree ment.

Ba sed upon this evidenc e, the post-conviction court dismiss ed the Petitioner’s petition for post-conviction re lief.

II. Ana lys is

On app e a l the Pe tit ion e r co nte nd s tha t th e po st- c on vic tio n c ou rt e rr e d w he n it

dis mis se d h is petition because Counse l wa s ineffe ctive by : (1) fa iling to pursue a motion to s uppress; and ( 2) failing to advise the Petitioner of matters esse ntial to his pl ea of g uilty . I n the post-conviction court’s

or a l f ind ing s o f f

a c t, i t f ou nd that the Pe tit ion e r wa s n ot an “ e nti re ly c re dib le ” wi tne ss. F urthe r, wi th
reg ard to the two a

rg uments the Petitioner prese nts on appea l, the post-conviction court found:

[C ]ounsel informed the Def endant/Petitioner of his right to a jury trial, that the under signe d judge so informed the D efe ndant/Petitioner at the plea accep t ance hearing . . . and that the ca se wa s at one time ac tual l y set for a jury trial, which the Def endant/Petitioner knew ;

. . . [T ]he De fend ant /Pe tit ion e r a dmi tte d a t th e e vid e nti ary he ari ng on thi s Petition t hat he k n ew the r ang e of punishment bef ore his plea ; that the rang e wa s listed o n t h e P et ition to Ent er a Plea of Guilty

and wa s rea d to the Def endant/Petitioner at the pl ea acc eptanc e hearing ; and that the fa ct that the re levant

se nte nc e s w e re to b e c on secut ive to o ne a no the r w a s me nti on e d in the Pe tit ion to Enter a Plea of Guilty and was discussed with the De fenda nt/Petit ioner by [C ]ounsel
pr ivate ly be fo re the ple a

wa s e nte re d[;]

. . . [ A] m o t i on to suppress was f iled but not arg ued, but there was no showing at the evide ntiary hearing that the statements would havebeen suppr essed, and the f act that the D efe ndant/Petitioner rec anted his confession later would not be
g rounds by

itself for suppre ssing the statements in question.

I n order to obtain post-conviction relief, a petitioner m ust show that his or her c onviction or
sentenc e is void or voi dable because of the a bridg ment of a c onstitut ional rig ht. Tenn. Code Ann. § 40-30-103 ( 2003). The pe titioner bear s the burden of proving fac tual alleg ations in the petition for post-c onviction re l i ef by clea r and c onvincing evidenc e. Te nn. Code Ann. § 40-30- 110(f) . A post-conviction court’s fac tual finding s are subject to a de novo revie w by this Court; howeve r, we

m u s t acc ord these fac tual finding s a presumption of corr ectne ss, w hich is ove rcome only when a preponde ranc e of the evidenc e is contrary to the post-conviction court’s fac tual finding s. Fields v.-6-

State, 40 S .W .3d 450, 456 (Tenn. 2001) . A post-conviction court’s conclusions of law ar e subjec t to a pure ly

de novo re view by

this Court, wit h no presumption of cor rec tness. I d. at 457.

Th e ri g ht o f a

c ri min a lly

a c c us e d to re pr e se ntatio n is g ua rante e d b y

bo th the Sixth Amendment to the United States Constit ution and Article I , section 9, of the T ennesse e Constituti on. State v. Whit e, 114 S .W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W .3d 453, 461 (Tenn. 1999) ; Ba x ter v. Ros e, 523 S.W.2d 930, 936 (Tenn. 1975). This rig ht to repre sentation includes the right to “re asonably eff

ective” assistance

. Burns, 6 S.W .3d at 461. The Te nnessee Supreme Court has held that the issue of ine ffe ctive assist ance of counse l is a mix ed question of law and fa ct and, a s such, is subject to a de novo revie w. I d.

I n revie wing a cla im of ineffe ctive assistance of counse l, this C ourt must determine whe ther the advice g iven or services re ndere d by the attorne y

are within the r ang e of c ompetence demande d of attorne y s in cr i m i n al ca s es

. Ba x ter, 523 S.W.2d at 936. To preva il on a claim of inef fec tive assistance of counse l, a petitioner must show that “c ounsel’s repr esenta tion f ell below an objec tive
sta nd ardof

re a so na ble ne ss, ” Str ic kla ndv. Was hin g ton , 4 66 U.S . 6 68 , 6 88 (1 98 4) , a ndthat th is perf ormanc e pre

judiced the de fense , resulting in a failure to produce a re liable re sult. I d. at 687; Cooper v. S tate, 849 S.W.2d 744, 747 (Tenn. 1993). To sa tisfy the re quirement of pr ejudice, a petitioner must show a re asonable probability that, but for counse l’s unrea sonable e rror , the fa ct finder w ould have had reasonable doubt reg arding the petit ioner’s guilt. Strickland, 466 U.S. at 695. This rea sonable proba

bilitymust be “suffic ient to undermine c onfidenc e in the outcome.” I d. at 694;

see a lso Harris v. St ate, 875 S.W.2d 662, 665 (Tenn. 1994). In case s involving a g uiltyplea or a plea of nolo contende re, the petitioner must show prejudice by demonstrating that, but for counse l’s

err ors, he would not have pleade d g uiltybut would have insisted upon g oing to tria l. Se e Hill v. L ockhart, 474 U.S. 52, 59 (1985); Bankston v. State, 815 S.W .2d 213, 215 (Tenn. Crim. App. 1991).

W h en ev al u at i n g an i n ef

fe ct i v e a s s i s t anc e o f c o u n s el cl ai m , t h e r ev i ew i n g co u rt s h o u l d j u d ge the attorney ’s perf

ormanc e within the context of the case as a w hole, taking into account a ll releva nt

c ir c ums ta nc e s. Str ic kla nd , 4 66 U. S. at 69 0; Sta te v. Mit c he ll, 75 3 S. W.2 d 1 48 , 1 49 (T e nn . Crim. App. 1988). The revie wing court must e valuate the questionable conduct from t h e a t t o rney ’s perspe ctive at the time. Strickland, 466 U.S. at 690; Cooper, 849 S.W .2d at 746; H ellard v. State, 629 S.W .2d 4, 9 (Tenn. 1982) . I n doing so, the revie wing court must be hig hly defe rential a nd “should indulge a strong presump t i o n t h at counse l’s conduct f alls within the wide rang e of

rea sonable prof

essional assistance .” B urns, 6 S.W .3d at 462. Counsel should not be dee med to have been ine ffe ctive mer ely

beca use a diff ere nt proce dure or

strateg y might have produce d a diffe rent result. Will iams v. State, 599 S.W .2d 276, 279-80 (Te nn. Crim. App. 1980). Th e fa c t th a t a pa rt ic ula r str a te g y or ta c tic fa ile d or hu rt the de fe ns e do e s n ot, sta nd ing a lon e , e sta bli sh un re a so na

ble
repr esentation. Hous e v . State, 44 S.W .3d 508, 515 (Tenn. 2001) (citation omitted); Thomas B ra nd on B oo ke r v . St a te , N o. W20 03 -0 09 61 -C CA -R 3- PC, 2 00 4 WL 58 76 44 , at *4 (T e nn . Crim. App., at Jackson, Mar. 24, 2004)
, no perm. app. filed

. Howeve r, defere nce to matters of strateg y and tactica l choices a

pplies only

if the choice s are informed one s based upon a dequate prepa ration. House, 44 S.W.3d at 515.-7-

I n th e ca s e under submission, we conc lude that the Petitioner wa s not denied ef fec tive assistance of counsel by

Counsel’s “fa ilure to pursue” the Petitioner’s motion to suppress. First, we conclude that the Petitioner has not prove n that Counsel’s repr esenta tion fel l b el o w an objective standard of

rea sonablene ss. The Petitioner made a statement to police implicating himself in the crimes f or which he was c harg ed, and he told Counsel that he was g uilty of t hese crimes. L ater , he tol d C ou ns e l th a t he on ly c on fe sse d to the se c ri me s b e c a us e the po lic e thr e a te ne d to take B e th F re e ma n’ s c hil d f

ro m he r. I n re sp on se , Coun se l f ile d a mot ion to s up pr e ss the Pe tit ion e r’ s st a te me nt,

a ndCou ns e l r e qu e ste d, a ndwa s g ra nte d, a tr ia l dat e

. Pr ior to a he ari ng be ing he ld o n th e mot ion to suppress, the Petitioner re ache d an ag ree ment with the S tate to plead guilty
, and Counsel, there fore
, did not p u rs u e t he motion to suppress. We fail to see how this re prese ntation was inade quate. Further, e ven we re w e to c onclude other wise, the Petitioner has c lear ly failed to prove prejudice

. Th e Pe tit ion e r h a s p re se nte d n o e vid e nc e that, ha d the mot ion to sup pr e ss be e n p ur su e d, he wo uld

no t ha ve ple a de d g uil ty bu t wo uldha ve ins ist e d u po n g oin g to t ri a l. A c c or din g ly , th is i ssu e is wi tho ut m e ri t.

Simi larl y , w e c on c lud e that Co un se l w a s not ine ff e c tiv e wh e n he a dv ise d th e Pe tit ion e r w ith

re sp e c t to his g uil ty

ple a . T he Pe tit ion e r a dmi ts that he kn e w t hat, a c c or din g to the ple a

a g re e me nt, he would be rece iving a sentenc e of five y ear s, to be serve d at thirty -five pe rce nt. He also a dmitted that, at th e tim e that he e nte re d th e ple a , h e wa s a wa re that his sen te nc e wo uld ru n c on se c uti ve ly to his Marsha ll County sentenc e. He asserts t hat, after si g ning the plea, but befor e it was e ntere d by the trial court, he told Counsel that he did not want to acc ept the plea
, and Counsel told him it was too late to chang e his mind because he a lrea dy signe d the plea a g ree ment. The Petitioner admitted that he re ad the plea

ag ree ment, revie wed it with his attorney , and un d erstood its terms. Counsel
te sti fi e d th a t th e Pe tit ion e r w a s a wa re of the se nte nc e a nda wa

re that it wo uldru n c on se c uti ve ly to his Marshall County

sentenc e. Counsel also testified that, ha d the P et i t ioner said he did not want to plead g uilty , Counsel would have g one to trial. Further, the Petit ioner a dmitted that the trial court asked him, whe n he wa s entering his plea, whether he had any questions about his sentence or about the fa ct that the sente nce w ould run consec utively to the Marsha ll County

sentenc e. The Petitioner’s bare assertion that Counsel did not advise him that he could ask que stions when the trial court asked him if he had anyquestions is insufficient to prove that Counsel’s re prese ntation fell below a n objective standa

rd of r easona

bleness

. Fu rt her, the Petitioner has fa iled to prove how Counsel’s

re pr e se ntatio n p re

jud ic e d h im. Th is i ssu e is w ith ou t me ri t.

III. Conclusi on

I n acc ordanc e with the for eg oing r easoning and authorities, we af firm the post-convic tion court’s judg ment dismiss ing the Petitioner’s petition for post-convic tion relief.

___________________________________ ROBERT W. WEDEMEYER, J UDGE