FILED

June 26, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

FEBRUARY SESSION, 1997

STATE OF TENNESSEE, )

) No. 01C01-9602-CR-00077

Appellee )

) DAVIDSON COUNTY

vs. )

) Hon. J. RANDALL WYATT, JR., Judge

RONNIE C. TURNER, )

) (Aggravated Rape)

Appellant )

For the Appellant: For the Appellee:

JOHN B. BLAIR, III CHARLES W. BURSON

176 2nd Avenue, North Attorney General and Reporter

Suite 406

Nashville, TN 37201 PETER COUGHLAN

Assistant Attorney General

Criminal Justice Division

450 James Robertson Parkway

Nashville, TN. 37243-0493

VICTOR S. (TORRY) JOHNSON III

District Attorney General

WILLIAM R. REED

Asst. District Attorney General

Washington Square, Suite 500

222-2nd Avenue, N

Nashville, TN. 37201-1649

OPINION FILED: 

AFFIRMED

David G. Hayes

Judge
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OPINION

The appellant, Ronnie C. Turner, appeals from the dismissal of his

petition for post-conviction relief. The appellant was indicted on six counts of

aggravated rape by a Davidson County Grand Jury. Pursuant to a plea

agreement, three of the counts were dismissed, with the appellant pleading guilty

to the remaining three counts of aggravated rape. Under the terms of the plea

agreement, the appellant received an effective sentence of fifteen years

confinement in the Department of Correction. On April 4, 1995, the appellant

filed for post-conviction relief alleging that his pleas were not voluntary and that

his trial counsel was ineffective. The post-conviction court conducted an

evidentiary hearing and denied relief. The appellant now appeals this denial

alleging that trial counsel was ineffective for (1) failing to subpoena a witness at a

suppression hearing; (2) failing to require the State to respond more specifically

to his requested bill of particulars; and (3) failing to correctly inform him as to the

amount of time it would take to "flatten his sentence."

In denying relief, the post-conviction court concluded that the appellant

had not met his burden of proving that he had been deprived of the effective

assistance of counsel and that his guilty pleas were voluntarily entered. To

prove that he was denied the effective assistance of counsel, the appellant must

show, by a preponderance of the evidence, Taylor v. State, 875 S.W.2d 684, 686

(Tenn. Crim. App. 1993), perm. to appeal denied, (Tenn. 1994), first, that

counsel's representation fell below the range of competence demanded of

attorneys in criminal cases, Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975),

and, second, that, but for these errors, the result of the proceeding would have

been different. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052,

2068 (1984); State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn.), cert. denied,

493 U.S. 874, 110 S.Ct. 211 (1989). On post-conviction review, there is a strong
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presumption of satisfactory representation, Barr v. State, 910 S.W.2d 462, 464

(Tenn. Crim. App. 1995).

First, the appellant contends that trial counsel failed to subpoena a

potential witness in support of his defense. The appellant bears the burden of

presenting that witness at the evidentiary hearing. Black v. State, 794 S.W.2d

752 (Tenn. Crim. App. 1990)(emphasis added). The appellant failed to present

such witness, thus, he fails to establish the prejudice prong mandated by

Strickland v. Washington, supra. Black, 794 S.W.2d at 753. Second, the

appellant argues that trial counsel’s failure to require the State to more

specifically answer his bill of particulars, citing Burlison v. State, 501 S.W.2d 801

(Tenn. 1973), constitutes deficient performance. Assuming, for argument’s

sake, that Burlison is applicable to guilty pleas, the appellant has failed to show

prejudice resulting from trial counsel's failure to obtain a more specific bill of

particulars. Third, the record indicates that both the appellant's trial counsel and

the trial court informed him as to the nature and consequences of his guilty pleas

including the fact that he would become "parole eligible at thirty percent." This

issue is without merit.

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. Clenny v. State, 576 S.W.2d 12, 14 (Tenn.

Crim. App. 1978), cert. denied, 441 U.S. 947, 99 S.Ct. 2170 (1979). After

reviewing the record, we cannot conclude that the evidence preponderates

against the post-conviction court's findings. Moreover, we find no error of law

mandating reversal of the court's judgment. The post-conviction court's

dismissal of the appellant's petition for post-conviction relief is affirmed. 
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____________________________________

DAVID G. HAYES, Judge

CONCUR:

________________________________________

GARY R. WADE, Judge

________________________________________

CURWOOD WITT, Judge