FILED

May 30, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

APRIL SESSION, 1997

RICK F. VAULTON, ) C.C.A. NO. 01C01-9606-CR-00276

)

Appellant, )

)

) DAVIDSON COUNTY

VS. )

) HON. ANN LACY JOHNS

STATE OF TENNESSEE, ) JUDGE

)

Appellee. ) (Post-Conviction)

ON APPEAL 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

Nashville, TN 37201 PETER COUGHLAN

Assistant Attorney General

450 James Robertson Parkway

Nashville, TN 37243-0493

VICTOR S. JOHNSON

District Attorney General

ROGER MOORE

Assistant District Attorney General

Washington Square, Suite 500

222 Second Avenue, North

Nashville, TN 37201-1649

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
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OPINION

The Defendant appeals as of right pursuant to Rule 3 of the Tennessee

Rules of Appellate Procedure from the trial court’s denial of his petition for postconviction relief. The Defendant was originally indicted on eleven counts of

aggravated robbery and three counts of especially aggravated kidnaping. He

subsequently pleaded guilty to four counts of aggravated robbery and one count

of especially aggravated kidnaping. Pursuant to the plea agreement, he was

sentenced as a Range II multiple offender to twenty years for each of the

aggravated robbery convictions and twenty-five years for the especially

aggravated kidnaping conviction, all to be served concurrently. After conducting

a hearing on the post-conviction petition, the trial judge denied the Defendant’s

claim of ineffective assistance of counsel relative to his guilty pleas and

dismissed his petition. We affirm the judgment of the trial court.

In the Defendant’s pro se petition for post-conviction relief, numerous

general allegations of ineffective assistance of counsel are alleged. The

allegations relate primarily to improper and inadequate investigation, counseling

and advice concerning the charges and the consequences of the guilty plea. At

the hearing on the post-conviction petition, the Defendant testified that his main

concern was with the aggravated kidnaping conviction because it carried five

more years than the robbery convictions. He testified that concerning the

kidnaping charge, his attorney “told me that if I went ahead and pleaded guilty,

we could come back and he could get it took off of me.” The Defendant’s

attorney testified that he did not “recall any discussion of that nature.” 
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In determining whether counsel provided effective assistance at trial, the

court must decide whether counsel’s performance was within the range of

competence demanded of attorneys in criminal cases. Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975). To succeed on a claim that his counsel was

ineffective at trial, a petitioner bears the burden of showing that his counsel made

errors so serious that he was not functioning as counsel as guaranteed under the

Sixth Amendment and that the deficient representation prejudiced the petitioner

resulting in a failure to produce a reliable result. Strickland v. Washington, 466

U.S. 668, 687, reh’g denied, 467 U.S. 1267 (1984); Cooper v. State, 849 S.W.2d

744, 747 (Tenn. 1993); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). To

satisfy the second prong the petitioner must show a reasonable probability that,

but for counsel’s unreasonable error, the fact finder would have had reasonable

doubt regarding petitioner’s guilt. Strickland, 466 U.S. at 695. This reasonable

probability must be “sufficient to undermine confidence in the outcome.” Harris

v. State, 875 S.W.2d 662, 665 (Tenn. 1994).

When reviewing trial counsel’s actions, this court should not use the benefit

of hindsight to second-guess trial strategy and criticize counsel’s tactics. Hellard

v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors should be

judged at the time they were made in light of all facts and circumstances.

Strickland, 466 U.S. at 690; see Cooper, 849 S.W.2d at 746.

This two part standard of measuring ineffective assistance of counsel also

applies to claims arising out of the plea process. Hill v. Lockhart, 474 U.S. 52

(1985). The prejudice requirement is modified so that the petitioner “must show
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that 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.” Id. at 59.

The Defendant and his attorney were the only witnesses at the hearing on

the petition for post-conviction relief. Noting that to some extent the issue was

one of credibility, the trial judge found that based on the evidence presented, the

Defendant had not carried his burden of proving that counsel was ineffective.

The evidence supports the findings of the trial judge. We find no error of law

requiring reversal.

The judgment of the trial court is affirmed.

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

GARY R. WADE, JUDGE

___________________________________

J. CURWOOD WITT, JR., JUDGE