# FILED September 18, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

AT NA SHVILLE RA NDA LL E. DUN N, ) ) C.C.A . NO. 01C01-9 703-CR-00089 Appellant, ) ) DAVIDSON COUNTY VS. ) (9 4- A -4 26 Be lo w) ) STA TE OF TENN ESSEE, ) The Hon. J . Randall Wy att, Jr. ) Appellee. ) (Denial of Post-Conviction Relief) O R D E R This case came to be heard on the motion of the st ate for an affirmance of the judgmentof the trial court under Rule 20, Tenn essee Court of Criminal Appea ls Rules. Based on our rev iew of th e state’s m otion, the petitioner’s brief , and the record in this cause, we conclude that thi s is an appropr iate case for affirmanc e under Rule 20.

The issue raised in this appeal i s whether the trial c ourt erred in denying postconvicti on relief based on the pet itio ner’s clai m of ineffective assi stance of counsel. On June 17, 1994, the petit ioner pled guilty to aggravated robbery and was sen tenced to three years in Tennessee Depar tment of Correction. The petitioner was a forf eiture at his sentencing hearing and was subs e quently arrested and hi s three-y ear sentence was placed into effect on June 2, 1995. That same day, thepetitioner pl ed guilty to two coun ts of selli ng ov er .5 grams of a controlled substance and to t wo counts of s elling ov er 26 grams ofcocaine. He was sentence to eight years imprisonment on three of the counts, to run concurrently w ith each oth er , and to ten y ears impris onment on one count, to run consecutivelywith al l other sentenc es. The effective s ent ence w as eighteen years imprisonment.

In his post-conv iction petit ion, the petiti oner contends that trial couns el failed to provideeffective assi stance of counsel and coerced him into pleadin g guilty and that his plea was not

made voluntar ily, i ntelligent ly, or un derstandingl y.
At a hearing on the post-conv iction petit ion, the peti tion er te stif ied o n his own beha lf, and trial counsel testified forthe state. In ad dition, the tr anscript of

the guilty

plea-2-

procee dings was intr

oduced as an ex hibit. In find ing th at th e pet itio ner re ceive d ef fec tive assistance of coun sel, the tri al court stat ed:

Base on the testimony

from the hearing , the Court is o f the opinion that the allegation that the claim that Mr. H ughes misinfor med petitioner of thelength of the sentence that would be served is wi thout merit, as is the claim that Mr. Hughes failed to investi gate the case. The Court is of the opini on that Mr. H ughes is an experienced a n d competent attorney w hose representat ion of petitioner was w el l within the range of competence demanded of attorneys in crimin al case s. Baxte r v. Rose , 523 S.W.2d 930 (Tenn. 1975); Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984 ).

In order to rec eive post- convicti on relief on the basis of inef fective assistance of counsel, the pet itioner must fir st establish that the serv ices rendere d or the advi ce given was below "the r

ange of competence dem ande d of attorneys i n criminal cases." Baxter v. Rose , 523 S.W.2d 930, 936. Second, he must s how that the d eficiencies"actually had an adverse effect on the defense." Strickland v. Washington , 466 U.S. 668, 693 , 104 S.Ct. 2052, 5067. Moreover, on appeal, th e findings of fact madeby the post-conviction court are conclusive and will not be dis tur bed unless the evidence conta ined in the record preponderatesagainst them. Rhoden v. State , 816 S.W.2d 56, 60 (Tenn. Crim. App. 1991); Broo ks v. State , 756 S.W.2d 288, 289 (Tenn. Crim. App . 1988). The burden is on the petitioner t o show that the evidence preponderatesagainst thos e findings. Clen ny v. State , 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978), cert
. de nied , 4 41 U.S. 947, 99 S. Ct. 2170, 60 L.Ed.2d 1050 ( 1979).

F rom the record before this Court, we do not f ind that the evidence preponderatesagainst the trial cou rt’s f indi ng tha t the peti tion er rec eived eff ecti ve assistance of coun sel.

IT IS, THEREFORE, O RDERED that the state’s moti on to affirm the judgmentof the trial court under Rul e 20, Tennessee Court of Cri minal Appeals Rules, is granted, and the judgment of the trial court is affirmed. Because the peti tioner is i ndigent, costs of this appe al are tax ed to the state.-3- Enter this the____ day of Augu st, 1997.

________________________________ DAVID H. WELLES, JUDGE CONCUR:

________________________________ JOHN H. PE AY, JUDG E

________________________________ JERRY L. SMITH, JUDG E