# FILED
March 26, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON FEBRUARY 1998 SESSION

ANTHONY CICCHETTO, ) ) No. 02-C-01-9706-CR-0 0210 APPELLANT, )

) Shelby County v. ) ) Honorable W . Fred Axley, Judge STATE OF TENNESSEE, ) ) (Post- Convic

tion Rel ief) APPELLEE. )

FOR THE APPE LLANT: FOR THE APPELLEE: William W . Nowlin John Knox Walkup Attorney at Law Attorney General & Repor ter 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 Cl ift Assistant District A

ttorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103

OPINION FILED: ____________________________

__ AFFIRMED PURSUANT TO R ULE 20 Joe B. Jones, Pre siding Judge1 Pursuantto a pleabargain agreement, the peti tioner entered pleas of guilty to rape and was senten ced to ser ve eight (8) years, sexu al batte ry and was se ntenced to serve two (2) years, andforgery an d was sente nced to se rve two (2) years. The sentences are to be serve d concurr ently. 

### O P I N I O N
The appellant, Anthony Cicchetto (petitioner

), appeals a

s of right fr

om a judgment of the trial court dismis sing his post-convi ction action after an evidentiary hearing
. 1 The tri al court fo und the petition er was afforded his cons

tituti onal ri ght to the effe ctiv e 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, thebriefs submitted bythe parties, and the law governi ng the issue presented for review, it is the opinion of this court the judg men t of the trial court should be affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals. The petitione r w as required to establis h 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 c onvinc ing evidence (a) the serv ices rendered or advic

e given by counsel fell bel ow “the

range o f compete nce deman ded of attorneys i n criminal cases,” Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975) and (b) the unprofess ional conduct of counsel enured to the prejudice of the petitioner
. Williams v. State , 599 S.W.2d 276, 279 (Tenn. Crim. App.), per . a pp . denied (Tenn. 1980). The United States Supreme Cou rt adopted this two-prong standa rd 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.E d.2d 203 (1985), the Supreme Cou r t extended these same standards to cases where the petitioner

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

to prove “there is a reasonable probability that, butfor counsel’s errors, he would not have pleaded guilty and would have insis

ted on going to trial.” Hill , 474 U.S. at 59, 106 S.Ct. at 370. In this case, the petitioner failed to establ i sh the grounds asserted by clear and convincingevidence . Moreove r, a ssuming arguendo , the petitioner proved counsel’s representation wasdeficient, he certainly did not establish how he w as prejudiced. Finally, the evidence contained in the r ecord does not preponder ate ag ainst the trial court’sfindings of fact. Butler v. State , 789 S.W.2d 898, 89 9 (Tenn. 1990).

______________________ ________________

_ _ JOE B. JONES, PRESID ING JUDGE CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ THOMAS T. WOODALL, JUDGE