FILED

March 26, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

FEBRUARY 1998 SESSION

ANTHONY CICCHETTO, )

) No. 02-C-01-9706-CR-00210

APPELLANT, )

) Shelby County

v. )

) Honorable W. Fred Axley, Judge

STATE OF TENNESSEE, )

) (Post-Conviction Relief)

APPELLEE. )

FOR THE APPELLANT: FOR THE APPELLEE:

William W. Nowlin John Knox Walkup

Attorney at Law Attorney General & Reporter

100 North Main Building 425 Fifth Avenue, North

Suite 3201 Nashville, TN 37243-0493

Memphis, TN 38103

Georgia B. Felner

Counsel for the State

425 Fifth Avenue, North

Nashville, TN 37243-0493

William L. Gibbons

District Attorney General

201 Poplar Avenue, Suite 3-01

Memphis, TN 38103

Rhea Clift

Assistant District Attorney General

201 Poplar Avenue, Suite 3-01

Memphis, TN 38103

OPINION FILED: ______________________________

AFFIRMED PURSUANT TO RULE 20

Joe B. Jones, Presiding Judge
1Pursuant to a plea bargain agreement, the petitioner entered pleas of guilty to rape

and was sentenced to serve eight (8) years, sexual battery and was sentenced to serve

two (2) years, and forgery and was sentenced to serve two (2) years. The sentences are

to be served concurrently.

O P I N I O N

The appellant, Anthony Cicchetto (petitioner), appeals as of right from a judgment

of the trial court dismissing his post-conviction action after an evidentiary hearing.

1

 The

trial court found the petitioner was afforded his constitutional right to the effective

assistance of counsel; and the petitioner’s guilty pleas passed constitutional muster. In this

court, the petitioner contends the evidence contained in the record preponderates against

the trial court’s findings of fact. After a thorough review of the record, the briefs submitted

by the parties, and the law governing the issue presented for review, it is the opinion of this

court the judgment of the trial court should be affirmed pursuant to Rule 20, Tennessee

Court of Criminal Appeals.

The petitioner was required to establish the grounds litigated by “clear and

convincing” evidence. Tenn. Code Ann. § 40-30-210(f). Thus, the petitioner was required

to prove by clear and convincing evidence (a) the services rendered or advice given by

counsel fell below “the range of competence demanded of attorneys in criminal cases,”

Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975) and (b) the unprofessional conduct of

counsel enured to the prejudice of the petitioner. Williams v. State, 599 S.W.2d 276, 279

(Tenn. Crim. App.), per. app. denied (Tenn. 1980). The United States Supreme Court

adopted this two-prong standard in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d

203 (1985), the Supreme Court extended these same standards to cases where the

petitioner entered a plea of guilty. In Hill, the prejudice prong was modified to require the

petitioner to prove “there is a reasonable probability that, but for counsel’s errors, he would

not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59, 106

S.Ct. at 370.

In this case, the petitioner failed to establish the grounds asserted by clear and

convincing evidence. Moreover, assuming arguendo, the petitioner proved counsel’s

representation was deficient, he certainly did not establish how he was prejudiced. Finally,

the evidence contained in the record does not preponderate against the trial court’s
findings of fact. Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990).

________________________________________

 JOE B. JONES, PRESIDING JUDGE

CONCUR:

___________________________________

 JOHN H. PEAY, JUDGE

___________________________________

 THOMAS T. WOODALL, JUDGE