### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs S eptember 25, 2001 ROSHAUN COLBERT v. STATE OF TENNESSEE Appeal from the Criminal Court for Knox County No. 70067 Ray L. Jenkins, Judge

No. E2001-00426-CCA-R3-PC October 9, 2001 The petitioner, Roshaun Colbert, appeals the trial court’s denial of his petition for post-conviction relief, claiming that he received the ineffective assistance of

counsel. He conte

nds that he pled g

uilty because his attorney guaranteed him that he would be released from prison after serving only five years of his twenty-y

ear effective sentence. We affirm the trial court’s denial of the petition. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed J OSEPH M. T IPTON , J., delivered the opinion of the court, in which J OE G. R ILEY and A LAN E. G LENN , JJ., joined. Albert J. Newman, Jr. , Knoxville, Tenness ee, for the appe

llant, Roshaun Colbe

rt. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, II I, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Robert L. Jolley , Jr., Assistant District Attorney General, for the appellee, State of Tennesse e OPINION On July 15, 1999, th

e petitioner pled guilty

to attempted seco

nd degree murd

er, a Class B fel ony; four counts

of aggravat

ed assault,a Cl ass C fe lon y; re ckl ess end ange rme nt, a Cl ass E fel ony; carrying a weapon on scho ol property, a Class E felony; escape , a Class A misdemeanor; and carrying a weaponwith intent to go armed, a Class C misdemeanor. The trial court se ntenced him as a Range I, s

tandard offend

er to an effect

ive sentence of t

wenty y ears i n th e Department of Correction, with the defenda nt becoming elig

ible for parole a

fter servin

g thi rty percent of his sentence. The petitioner contends that he receive d ineffective a

ssistance of coun

sel and that the onl

y reasonhe pled guilty

was because

his attorney promised him that he would be out of prison in five years.He claims that if had he known he might have to serve more than five y ears of his sentence, he would have go

ne to trial.-2-

At the evidentiary hearing, the petitioner testified that an attorney was appointed to represent him at trial. He said

that his trial attor

ney told him tha t if he p led guil ty, h e wo uld rece ive a tw ent yyear sentence, but with time already served, h e would be out of prison in five years. He said that based on his attorney’s “guarantee,” he ple d guilty. He said that when he got to Brushy Mountain StatePrison on August 3, 1999, he learned for the first time that there was no guarantee that he would be out in five years and that he “could do 12 y ears onthat

20.” He said that had he known he might not get out o

f prison in

five years, he would have gone to trial. On cross-e xamination, the petitioner stated that at his guilty plea hearing, the trial court told him that he was rece ivi ng a t wen tyyear sentence and tha

t the trial court ne

ver discussed a p

otential release

date. He said

that he did not know if the trial court told him that he would have to serve thirty percent of his sentence before he became eligible for

parole. Howeve

r, he acknowled

ged that he wrot

e on his post-conviction petition that the length of his sentence was “20 yrs. at 30%.” The petitioner’s trial attorney testified that he had been licensed to practice law since 1967 andrepresented the petitioner for over a year. H e said that he talked with the petitioner many times about the sentence the petitioner would receive if he pled guilty. He said that he told the petitioner that the trial court would sentence him to twenty yea rs and that he would haveto serve thirty percent of that sentence be

fore he would be e

ligible for par

ole. He said th

at h e told the petitione

r that it would be up to the parole

board as to when the petitioner would be released from prison. He said that he told the petitioner he might be released early if the petitioner had g ood behavior. He said that he told the petitioner

that, given t he amount of time he had already served, it was possible, even probable, that he would be released early. He testified that he said something to the petitioner about five years, but

he did not guarantee that the petitioner would be out of prison after serving only five years. The

attorney sa

id that he appear

ed in the courtroom with the petitioner when the petitioner pled guilty

and that it

was clear to him that the petitio

ner understood th

at he would not be e

ligible for parole until he served thirty percent of this twenty -year sentence. He said that he told the petitioner that some of his sentences had to run consecutively and that he never

told the petitioner that all of his sentences would run concurrently. The state introduced into evidence a transcript of the peti tioner’s gu ilty plea heari ng. In that hearing, the state announced the plea to the trial court, and the following exchange oc curred: [The State]: Your Honor, this would be a total sentence of 20 years as a Range I, Standard Offender. These sentenc es are to be served. The Court: Is th

at the agreeme

nt? [Defense Counsel]: That is the ag reement with regard to all of the indictments, your Honor. The Court: Okay. All right, Mr. Colbert--ye s, sir.-3- The Defendant: The s

entence I’ m getting, and a ll--I just going to be doing time serve--unti

l-

- all my charges ran together. Just one 20--y ou know, 20-year sentence? The Court: Yes. The Defendant: So I just complete the sentence on the 20 a nd I ge t out- -you know what I’m saying--for the rest of the charges? I ain’t saying I’ll be doing one time, then I finish th is timeand then start on another time. I

t ain’t going to b

e nothing like tha

t, is it? The Court: No, no; no, no. The Defendant: It’s just one sentence? The Court: These will

all be run end on each other. You understand what I mean? You serve the 12 -year sentence at thirty percent, and the 5-year sentences at 30 percent. They jus t run--it’s an effective sentence of 20 years. And y ou would serve– The Defendant: So it’s running together; it ain’t running wild? The Court: --you would serve 30 percent and t hen you would be eli gibl e for rel ease . Ok ay? The Defe nda nt: Par ole . Ok ay. The Court: All

right. Now, y

ou feel free to

ask me any question as we go alo ng-- you m ay be s eat ed i f you wis h. O kay. Now, Mr. Colbert, y

ou’ve heard--

in fact, I’ll go over all of these beforewe get to that point. You’ve heard the statement by the Attorney General in all of

these cases.Is that your

understanding of the agreemen

t? The Defendant: Y

es. The Court: You want

me to approve that

agreement, I

take it? You want me to okay that sentence? The Defendant: Y

es. I--I agree with it.-4-

The trial court

then explained the sentences and asked the petitioner if he was giving his plea freely and vol unt ari ly. T he p eti tio ner n odd ed af fir mat ive ly. The trial court denied the post-conviction petition, finding that the petitioner did not receive ineffectiveassistance of

counsel and that he knowingly and understandingly entered his plea. The trial court belie ved th e tria l atto rney’s t estim ony ove r that of the petit ioner . It stated that the attorney’stes tim ony c onformed w ith the transcripts and that the testimony of the petitioner at the evidentiary hearing “is either the product of a slippery memory or outright mendacity.” The petitioner argues that he received ineffective assistance of counsel beca

use his defense attorney guarante ed him that if he pled guilty, he would be out of prison in five ye ars. The stat e argues that the petitioner has not met his burden of proving ineffective assistanc e of couns

el. We agree with the state. Under the Sixth Amendment, w hen a claim

of ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficiency was prejudicial in terms of rendering a reasonable probability that the re sult of the trial was unreliable or the proceedings fundamentally unfa ir. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 ( 1984); see Lockhart v. F retwell , 506 U.S. 364, 368-72, 11 3 S. Ct. 838, 842-44 (1993). The Stricklandstandard has been appliedto th e righ t to co unsel under Artic le I, Section 9 of the Tennessee Constitution. State v. Melson , 772 S.W.2d 417, 419 n.2 (Tenn. 1989). When a petitioner claims that ineffective assistance of counsel resulted in a guilty plea, the petitioner must prove that counsel performed deficiently and that but for counsel’s errors, the petitioner would nothave pled guilty

and would

have insisted upon going to trial. Hill v. Lockhart , 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985).
In Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 19 75), our supreme court decided that att orn eys should b e h eld to the general standard of whether the services rendered we re within the range of competence d

emanded of attor

neys in criminal cases. Further, the court stated that the ran ge of competence was to be measured by the duties and criteria se t forth in Beasley v. United States , 491 F.2d 687, 696 (6th Cir. 1974) and United States v. DeCoster , 487 F.2d 1197, 1202-04 (D.C. Cir. 1973)

. Also, in

reviewing counsel's conduct, a “fair assessment of attorney performance requires that every effort be made to eliminate the distorting effec ts of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland , 466 U.S. at 689, 104 S. Ct. at2065; see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).
In a post-convicti

on case, the b urden is on the petitioner to prove by clear and convincing evidencehis grounds for relief. Tenn. Code Ann. § 40-30-210(f). On appeal, we are bound by the trial court's findings of fact unless we conclude that the evidence in the record prepondera tes against those findings. Fields v. St

ate , 40 S.W.3d 450, 456 (T enn. 2001). We review th e trial cour t's conclusions of law--such as whether counsel’s performance was deficient or whether that deficiency was prej udi cia l-- und er a p urel y de novo standard. Id. at 457.-5-

In the present case

, the trial court f

ound that the pe titioner’s attorn ey repres ented him effe cti vel y, noting that the attorney told the petitioner that it was possible that he would be released in five years but that he could not guarantee it. Furthermore, th e petitioner ack

nowledged on cr

ossexamination that the trial court told him that he was receiving a twenty-y ear sentence. The transcript of the guilty plea hearing shows that the trial court instructed the defe ndant that he was receiving an effectivesentence of twenty yea rs and would not be e

ligible for par

ole until he had ser

ved thirty percent of that sentence. T he transcript reveals that the petitioner was only concerned about receiving one, twenty

-year sen tence and that he

entered his

guilty plea fully aware that he could serve more than five years in prison. Based upon the foregoing and the record as a whole, we affirm the trial court’s denial of the petitioner’s post-conviction petition.

__________________________________ JOSEPH M. TIPTON, JUDGE