# FILED

October 8, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON AUGUST SESSION , 1997

GEORGE EDWARD RAYFORD, ) ) No. 02C01-9705-CR-00172 Appellee ) ) SHELBY COUNTY vs. ) ) Hon. W. FRED AXLEY, Judge STATE OF TENN ESSEE, ) ) (Post-Conviction) Appellant )

For the Appellant : For the Appellee : RICHARD F. VAUGHN JOHN KNOX WALKUP 1928 - 100 N. Main Attorney General and Repor ter Memphis, TN 38103 ELI ZABE TH T. RYAN Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493

WILLIAM GIBBONS District Attorney General MS. RHEA CLIFT Asst. District Attor

ney General Criminal Justice Comple x Suite #301, 201 Poplar St. Memphis, TN 38103

OPINION FILED: AFFIRMED

David G. Hay

es Judge2 O P I N I O N

The appellant, George Edwar d Rayford, appeals as of rig ht from the trial court’s dismissal of his petition for post-convic tion relief. Specifically , the appellant contends that he was deprived of the ability

to enter intelligent and voluntary guilt

y pleas due to the ineffective assistance of counsel. After an evidentiary hearing , the Criminal Court of Shel by County concluded that the appellant failed to show by a preponderance of the evidence t hat he received ineffective assistance of counsel at his guilty plea hearing.

After a review of the rec ord, we affirm the post-conv iction court’s dismiss

al of the appellant’s petition.

On January 31, 1989, the appellant pled guilty to four counts of robbery with a deadly weap

on, two counts of robbery, and one count of unlawful possession of a controlled subs tance with the intent to s ell. Pursuant to a plea agreement between the appellant and the State, the trial cour t sentenced him to an effective sentence of forty ye ars in the Department of Corr ection as a range II offender. In particular, the trial court imposed sente nces of forty years for each robbery with a deadl

y weapon, ten years

for each robbery, and ten y ears for possessi on with int ent to se ll. These sentenc es are con current b ut conse cutive to the sentences for which th e appellant was on parole a t the time these crimes were committed.

The background of the case is as fol lows: On March 1, 1988, the appellant was released on parole after serving four years of a ten year sentence for two counts of simple robber y, three counts of armed robber y, one count of grand larceny, and one c ount of receiving stolen property. The series of3

robberies to which the appellant pled guilty occurred between May 20 and May 31, 1988. The appellant was arr ested on June 8, 1988, when he w as apprehended, along with a c o-defendant, for possession of cocaine.

In his petition for post-conv iction relief, the appellant argues that ineffective assistance of counsel caused him to enter uninformed and involuntary guilty pleas. Speci

fically, with regard to the ineffective assist ance of counsel claim, the appel lant contends th at his i nitial trial c ounsel, Tommy Ja

gendorf , failed to inform him that he had associ ated another attorney, Ronal d Riggs, to assist in his defense. Second, the appellant alleges that M r. Riggs did not conduct an adequate pre-trial investigation because he failed to inte rview all potential witnesses and fail ed to visit the crime s cenes. Additionally, t he appellant contends that trial counsel failed to keep him informed as to the developments in his cases.

At the post-conviction h earing, the State establis hed that Mr. Riggs met with the appellant five or six times in jai l to discuss the charge s against him. The district attorney had informed Mr. Riggs tha t he would first proceed against the appellant on the Esquire C leaners robbery charg e. Trial counsel also test ified that discovery w

as obtained from the State on all of the s even charges pending against the appellant. Mr. Riggs further testi fied that, because this charge was the first case pending against the appellant, he concentrat ed his efforts on this offense. The State’s proof in this case i ncluded a positive identi fication of the appellant by the victi m and the appellant’s fingerpri nts found on the door to the cleaners. Trial counsel attempted to interview the victim of the Esquire Cleaners robbery, taped an interv iew he had with the appel lant concerning that parti cular robbery, and investi gated the scene of that particul ar crime. He further investigated the appell ant’s alibis and found that none coul d be substantiated. Additionally, Mr. R iggs obtained the appellant’s elementary and high school4

records and had the appellant ev aluated by the Memphis Mental Health Center.

The State offered the appellan t an effective forty year sentence for all charges against him. The r ecord reflects that, if conv icted, the appellant faced a sentence of “thirty-fiv

e years to life” on each of the four aggravated robbery charges. Consequently, based on the overwhelming evidence of the appellant’s guilt and that a convic

tion would likely

occur, Mr. Riggs advised the appellant that a forty year sentence w as a “fair settlement” for all the cases, “considering what was at risk.” The deci sion to plead rested with the appellant. During the guilty plea hearing, the trial court fully advised the appellant of his rights an d informed him of the consequences of his pleas.Based upon the evidence pres ented to the trial court and the proof s hown at the post-convi ction hearing, the postconviction court found that t he appellant’s pleas wer e knowing and volunt

ary. The post -convictio n court co ncluded that the appellan t’s claim s of inef fective assistance of counsel wer e not supported by a prepondera nce of the evidence.

On appeal, we must determine w hether the evidence presented at the post-conviction heari ng preponderates against that court’s findings. In North Carolina v. Alford , 400 U.S. 25, 31, 91 S.Ct. 160, 164 (1970), the United States Supreme Court held, “The standard was and remains whether the plea represents a voluntary

and intelligent choice among the alternative cour ses of action open to the defendant.” In ev aluating the knowing

and voluntary nature of the appellant’s pleas, this court must look to the totality of the circumstances. State v. Turner , 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995), perm. to appeal denied , (Tenn. 1996). See also Chamberlain v. State , 815 S.W.2d 534, 542 (Tenn. Crim. App. 1990), perm. to appeal denied , (Tenn. 1991). We may consider any relev

ant evidence in the recor d of the proceedings, includi ng postconviction proceeding s. Id . The evidence before the post-conviction court included the

appellant’s

prior rec ord, the ov

erwhelmin g evidenc

e against hi m,1 The post-conviction court noted that the appellant faced sen tences which could have totale d 190 years. 5 and the appellant’s exposure to lengthy multiple sentences. 1 Based on the totality of these circumst ances, the post-convicti on court concluded that the appella nt’s guilt y pleas were knowing an d volunta ry.

The record also supports the pos t-conviction court’ s finding that appellant’s counsel rendered effective assistance. As noted earlier, on appeal, this court is bound by the post-conviction cour t’s findings of fact unless the evidence in the record pr eponderates against those findings. Davis v. State , 912 S.W.2d 689, 697 (Tenn. 1995). See also Black v. State , 794 S.W.2d 752, 755 (Tenn. 1990). In other words, in post-conviction proceedings, the appellant mu st prove the allegations in his petition by a pr eponderance of the evidence. Davis , 912 S.W.2d at 697. Specifically, when a c laim of ineffective assistance of counsel is raised, the appel lant bears the burden of showi ng that (a) the servi ces rendered by trial couns el were deficient and (b) the deficient performance was prejudicial. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984); Cooper v. State , 849 S.W.2d 744, 746 (Tenn. 1993); Butler v. State , 789 S.W.2d 898, 899 (T enn. 1990). With respect to de ficient performance, the court must decide whether or not counsel’s performance was w ithin the range of competence demanded of attorneys in cr iminal cases. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). To satisfy the prejudi ce prong of the Strickland test, the appellant must show a reasonable probability that, but f or counsel’s ineffective performance, the result of the proceeding would hav e been different. Strickland , 466 U.S. at 694, 104 S.Ct. at 2068 . Accordingly, w hen the appellant seeks to set aside a guil ty plea on the ground of ineffectiv e assistance of counsel, he must demonstrate a reasonable prob ability that, but for counsel’s deficiency, he would hav e insisted upon proceeding to trial. Hill v. Lockhart , 474 U.S. 52, 59, 106 S.Ct. 366, 370 ( 1985); Bankston v. State , 815 S.W.2d 213, 2156

(Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1991); Manning v. State , 883 S.W.2d 635, 637 (Tenn. Crim. App. 1994). The post-conv iction court found that Mr. Riggs adequat

ely prepared for and inv estigated the cases agai nst the appellant. Moreover, t he trial court found that the per formance of counsel was within the range of competence demanded of attorneys in criminal cases.

We conclude that the evidence in the recor d does not preponderate against the post-convi ction court’s findings. Accordingly, the j udgment of the post-conviction court

dismissing the appellant ’s petition is affirmed.

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

_________________________________ JERRY L. SMITH, Jud ge

________________________________ THOMAS T. W OODALL, Judge