# FILED May 30, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE APRIL SESSION, 1997
RICK F.VAULTON, ) C.C.A. NO. 01C01-9606-CR-00276 ) Appe llant, ) ) ) DAVIDSON COUNTY VS. ) ) HON. ANN LACY JOHNS STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Convi ction)

ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF DAVIDSON COUNTY FOR THE APPELLANT : FOR THE APPELLEE : THERESA W . DOYLE CHARLES W. BURSON 211 Printer’s Alley

Building Attorney General& Reporter Suite 400 Nashvill e, TN 37201 PETER COUGHLAN Assistant Attorney General 450 James Robertson Parkway Nashvill e, TN 37243-0493 VICTOR S . JOHN SON Distri ct Attorney General ROGER MOORE Assistant Distri ct Attorney General Washington Square, Suite 500 222 Se cond A venue, N orth Nashvill e, TN 37201-1649
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE-2- 

# OPINION

The Defen dant

appeal s as of

rig ht pu rsua nt to Ru le 3 of th e Tennessee Rules of Appellate Pr

ocedure from the trial cour t’s denial of h is petition for p ostconvicti on relief. The Defendant was originally i ndicted on eleven co unts of aggravated robb ery a nd th ree counts of e speci all y aggr avated ki dnapi ng. He subs eque ntly pleaded guilty to four co unts of aggravated robbery and one count of e specially aggravated kidnaping. Pursuant to the plea agreement, he w a s sentenced as a Ran ge II multiple offende r to twenty years for each o f the aggravated robbe ry conv ictions and tw enty-five years fo r the es pecia lly aggravated kidnaping conviction , all to be served concur rently . After conducting a hearing on the post-convicti on petiti on, the trial judge denie d the D efend ant’s claim of ineff

ective ass istance of cou nsel relative to his gu ilty pleas and dismiss ed his pe tition. W e affirm the judgm ent of the tria l court.

In the Defendant’s pro se petiti on for post- convicti on relief , numer ou s general allega tions o f ineffec tive ass istanc e of co unse l are all eged. The allegati ons relate p rimarily to improper and inadequate i nvestigat ion, counsel ing and advice concerning thecharge s and the conse quenc es of the g uilty plea. At the hearing on the post-convicti on petiti on, the Defe ndan t testified that his main concern was with th e aggravated ki dnaping convi ction beca use it carried five more years than t he robbery conv iction s. He t es tifi ed that concerning the kidna pin g charge, his attorn ey “told me that if I went a head and pleaded gu ilty, we could come back and h e c ould g et it took off of m e.” Th e Def enda nt’s attorney testified that he did not “recall any discus sion of that nature.”-3- In determining whether cou nsel provided e ffective assista nce a t trial, the court mus t decid e whe ther co unse l’s perfor mance was within t he range of competence dema nded o f attorneys in crimina l cases. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 19 75). To s ucceed on a clai m that his counselwas ineffective at trial, a petiti oner bears the bur den of showing that

his counsel made errors so serious t hat he was not f unctioni ng as counsel as guaranteed under the Sixth Amendment and that the def icient representat ion prejudi ced the petiti oner resulti ng in a fai lure to pr oduce a reliable res ult. Strickland v. Washington , 466 U.S. 668, 68 7, reh’g denied , 467 U.S . 1267 (1 984); Coop er v. State , 849 S.W.2d 744, 74 7 (Ten n. 1993 ); Butler v. Sta te , 789 S.W.2d 898, 899 (Tenn . 199 0). To satisfy the seco nd pron g the pe titioner mu st show a reaso nable p robability tha t, but forcoun sel’s un reaso nable error, th e fact fin der wo uld have h ad rea sona ble doubt regardin g petitione r’s guilt. Strickl and , 466 U .S. at 69 5. This reaso nable probab ilitymust be “su fficient to undermine confidence in the outcome .” Harris v. State , 875 S.W .2d 662, 665 (Tenn. 199 4).

When revi ewing tr ial cou nsel’s action s, this co urt sho uld no t use th e ben efit of hindsight

to second-guess t rial strategy and criticize couns el’s tactics. Hellard
v. State , 629 S.W .2d 4, 9 (Ten n. 1982). Co unsel’s alleged e rrors sho uld be judged at the t ime they we re made in light of al l facts and cir cumstances. Strickl and , 466 U.S . at 690; see Cooper , 849 S.W.2d at 746.

This two part standard ofmeasuring ineffectiv e assistance of counsel also appliesto clai ms arising out of the pl ea proces s. Hill v . Lockhart , 474 U.S. 52 (1985). The prejudice r equirement is

modified so t hat the petitioner “ must show-4-

that the re is a re ason able probab ility that, but for coun sel’s er rors he would not have pleade d guilty and wou ld have insisted on going to trial.” Id. at 59.

The Defenda nt and his attorne y were the only witnesses at the heari ng on the petition for post-convicti on relief. Noting that to some extent t he issu e wa s one of credibi lity , the trial j udge found that based on the evidence presented, t he Defe ndant had no t carried his burden of proving that coun sel was in eff ective
. The evidence suppor ts the fi ndings of t he trialjudge. We find noerror of law requir ing rev ersal.
The judgment of the t rial cour t is af firmed.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ GARY R. WADE, JUDGE

___________________________________ J. CU RWOOD WITT, JR. , JUD GE