# FILED
December 18, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE NOVEMBER 1997 SESS ION

HARVEY STANLEY BURNS , ) ) Appellant, ) No. 01C01-9612-CR-00515

) ) Davidson County v. ) ) Honorable Seth Norman, Judg e ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. ) For the Appellant : For the Appellee : Deanna Bell Johnson John Knox Walkup 211 Third Avenue, North Attorney General of Tennessee Nashville, TN 37201 and Daryl J. Brand Assistant Attorney Gener al of Tennessee 450 James Robertson Parkwa y Nashville, TN 37243-0493 Victor S. Johnson, III District Attorney General and Jim Milam Assistant District A

ttorney General Washington Square 222 2nd Avenue North Nashville, TN 37201-1649

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The petitioner, Harvey

Stanley Burns, appeals as of right from the judgment of the Davidson Count y Criminal Court deny

ing him post-conviction relief from his October 1995 convict ion for the sale of cocaine, a Cl ass C felony. The petitioner pled guilty pursuant to an agreement by whi ch he was sentenced to ten y ears in the custody of the Department of Correction as a Range III, persistent offender. He contends that he received the ineffective assistance of counsel and that his sentence constitutes cruel and unusual punishment. We disagree.
The petitioner was repres ented by two assistant

public defenders during his prosecution. At the post -conviction evidentiary hearing, the peti tioner testified that his attorneys failed to submit his medical and psychiatric records to the court, which would show his drug

abuse problem. He believ ed that the records would have led to a lesser sentence. He also stated that the attorneys did not investigate the case adequately and that they were prejudiced agai nst him because of his prior r ecord and the videotape that the police made of the transaction. The petitioner had prior convictions for six

robberies, a voluntary

manslaughter, and an aggr avated assault.
The petitioner testified that he had bee n under a lot of pressure because his mother was ill and

that the attorneys did not g ive him enough time to thi nk about the plea offer. He admitted being aw are of the terms of the plea the night before he pled guilty. Also, he claimed that one attorney inc orrectly advised him that he would be eligible for parole after serving two years, including his sixteen months of pretrial jail credit. He acknowled ged, though, that a parole hear ing was scheduled for Aug ust 15, 1996.3 One of the petitioner’s attorney s testified. He said that they got the petitioner’s medical rec ords reviewed by

experts, but the result

was that the petitioner was deemed competent and sane. The records showed the petitioner to be marginally retarded and this was r eported to the prosecutor duri ng negotiations. The attorn ey stated that the petitioner had been off ered seven years as a Range II, multiple offender, but he had refused to accept it in or der that he could remain avai lable at that time for his ailing mother. At on e point, the state offered fifteen years, but the final offer was ten years. The attorney bel ieved that the petitioner h ad been eligible for career offender status with a higher

sentence exposure.
The attorneys review

ed the videotape with the petitioner. It showed th e petitioner passing somethi ng to an undercover officer. Testing proved that the substan ce conta ined coca ine. The attorne y testifie d that th ey intervie wed the two officers involved in the case and reviewed the petitioner’s former convictions to see if they all could count tow ard range enhancement. They cou ld. Also, the attorney testified that he was present when his co-counsel ex plained to the petitioner that the petitioner might be elig ible for parole within a year after his guilt y plea.

The tria l court con cluded th at the pe titioner received t he effe ctive assistance of counsel, as to both the attorneys’ perfo rmances and the lack of prejudice to the petitioner being show n. It also concluded that the pet itioner knowingly and intelligently pled

guilty, noting th at he received the minimum sent ence for the range that was used. The trial cour t made no specific ruling about the claim that the sentence w as cruel and unusual punishment, but it dismissed the petition.

In a post-conviction ca

se, the petitioner must prov e his grounds for relief by clear and convincing evidence. T.C.A. § 40-30-210(f). To establish couns el ineffectiveness, the petitioner must show that counsel’s performance was deficient and4

that the deficiency resulte d in prejudice. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Re lative to a claim that a guilty plea result ed from the ineffective assistance of counsel, the petition er must show that but for counsel’s errors he would not have pled g uilty and would hav e insisted upon going to trial. Hill v. Lockhart , 464 U.S. 52, 59, 106 S. Ct. 366, 370 (1985). Relative to our review on appeal, the factual findings of the trial court are de emed conclusive unless the evidence of record preponderates agains t them. Cooper v. State , 849 S.W.2d 744, 746 (Tenn. 1993).
Although the trial court failed to make detailed findin gs of fact, it is apparent from its ruling tha t the attorney’s testimony was accredited In any

event, the record fails to show any prejudice had befallen the petiti oner that would warr ant relief. He had rejected a more lenient plea offer because of his own personal reasons. As the state points out, he could hav e been sentenced as a career offender, w hich would have required a fifteen-year s entence with release eli gibility at six ty percent. See T.C.A. §§ 40-35-108(a) and (c), 40- 35-501(f). There is no indicat ion that presenting the medic al records to the court w

ould have made any difference. H is sentence to the minimum of a lesser range reflects that the petitioner receiv ed effective representation.
As for the petitioner’s compla int that his attorney adv ised him that he would be eligible for parole approximately eight months after he pled gui lty, we note that the parole hearing was to occur approximately ten months after the plea. Moreov er, the petitioner never asser

ted that such a small difference in time would have led him to insist upon going to tr

ial. The record before us suppor ts the trial court’s c

onclusion that the petitioner received the effective assistance of counsel

.

The petitioner contends that his ten-year sentence with a forty-five percent release eligibilit

y date -- as requir

ed by the 1989 Sentencing Act for a Class C felon5

who is a Range III, per sistent offender -- constitutes cruel and unusual punishment under the Eighth Amendment to the Uni ted States Constitution and Ar ticle 1, Section 16 of the Tennessee Constitution. He pr ovides neither authority for his position nor argument regarding how the sentence is improper. Al though we deem this issue to be waived, we v

iew it to be without

merit, as well. See State v. Black , 815 S.W.2d 166, 189 (Tenn. 1991) (providing standard for determining pro priety of punishment under Article I, Section 16 of Tennessee Constitution); Harmelin v. Michigan , 501 U.S. 957, 994-95, 111 S. Ct. 2680, 2701 (1991) (mandato ry life sentence for possession of more than six hundred fifty gr ams of cocaine not cruel and unusual punishment); State v. Hinsley , 627 S.W.2d 351 (Te nn. 1982) (determinate sentence of not less th an ten years nor more than life for habitual dru g offender not cruel and unusual puni shment); State v. Dock Battles , No. 02C01-9212-CR-00294, Shelby County (Tenn. Cr im. App. Sept. 30, 1996), app . denied (Tenn. Jan. 27, 1997) (ten ye ars for Range I, Class B cocaine felon with substantial record of prior criminal beha vior and convicti ons not cruel and unusual punishment).

In consideration of the foregoing, the judgment of the trial court is affirmed.

______________________________ Joseph M. Tipton, Judge CONCUR:

_________________________ John H. Peay, Judge

_________________________ David H. Welles, Judge