1 For a reci tati on of th e fact s underl ying the pet iti oner’s convictions, see State v. Ronald Jer ome Butler , No.

M1 999-010 34-CCA -R3-CD, 200 0 W L 1141 083, at *1 (Tenn. Crim. App. at Nashville, Aug. 11, 2000). 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE Assigned on

Briefs A pril 22, 20 03 RONALD JEROME BUTLER v. STATE OF TENNESSEE Direct Appeal from the Criminal Court for Davidson County

No. 96-C-1307 Seth Norman, Judge

No. M2002-01870-CCA-R3-PC - Filed September 11, 2003

The petitione

r, Ronald Jerome Bu

tler, fil ed a petit ion f

or post-conviction relief in the Davidson County Criminal Court, alleging that he re ceived the ineffective assistance of tria l counsel. The post-conviction court de

nie d the petition, and the petitioner contests this ruling on appeal. Upon review o f the re cord and

the part ies’ brie fs, we a ffirm the judgmen t of the po st-convi ction cou rt. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cr

iminal Court is Affirm

ed.
N ORMA M C G EE O GLE , J., deliver ed the opinion of the

court, in which J OE G. R ILEY and J AMES C URWOOD W ITT , J R ., JJ., joined. Matthew Mayo, Na shville, Tennessee, for the appellant, Ronald Jerome Butler.
Paul G. Summers , Attorney General and R eporter; J ohn H. Bl eds oe, Assist ant Attor ney Genera l; Victor S. (Torry) Johnson, I

II , D istrict Attorney Gene ral; and Jon P. Seaborg, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

. OPINION

I. Fact ual Backgro

und
On June 25, 1997, the petitioner was found guilty by a jury in the

Davidson County Criminal Courtof ag gr av at ed ki dn ap pi ng an d a ggr av at ed ro bb er y. 1 Initially , the petitioner was sentenced on the aggravated kidnapping conviction to serve ten ye ars incarceration in the Tennessee D epartment of Correction with potential release eligibility after service of thirty

percent (30%) of his sentence. On the aggravated

robbery c onviction, the petitione r was sen tenced t o ten y ears inc arcer

ation with potential releas e eligi

bility after se rvice of thirty percent (30%) of

the sentence. The sentences were2 The record reflects that trial counsel could not be located to test ify at the post-conviction hearing. -2- ordered to run consecutively. Subseque ntly, in compliance with Tennessee Code Annotated section 40-35-501(i)(2)(D) (1997) an amended judgment was entered, reflecting tha t the petitione

r would be required to serve one hundred p ercent (100%) o f his ag grava ted kidna pping se ntence in confine ment. The petitioner appealed his convictions and sente nces to th is court on d

irect ap peal. On August 1 1, 2000, th

is court a ffirme d the petiti oner’s c onviction s and sent ences. Our supre

me court denied the petitioner’s application for permission to appeal on Fe bruary 20, 2001.
The petitioner timely filed a pro se petition for post-conviction relief on June 6, 2001, allegi ng, amo ng othe

r issues, that he ha

d recei ved the ineffec tive assis tance of counsel. The postconviction court appointed coun sel to a ssist the pe titioner a nd an ame

nded peti tion for p ostconviction relief was filed.
On May 28, 200 2, the post-conviction court held a hearing on the petition. The petitioner was the only wi tness to testi fy at the h earing. 2 The petitioner claimed that trial counsel never informedhim of

the potential punishmen

t he could receiv e if he we

re convi cted of t

he offe nses with which he was charged. Specifica lly, the petitioner complained that counse l never warned him that if he wereconvicted of aggra vated kidnapping, he would be required to serve one hundred percent (100%) of the sentence imposed in co nfineme nt. Moreover, the petitioner stated that he believed that going to trial was his “only option” beca use counsel had never

discussed the possibility of a plea agree ment. The petitioner stated that if he hadbeen aware that he would be required to serve one hundredpercent (100%) of his sentence for aggr

avated kidnapping, “I

mean, I think may

be it would be a lesser plea or something.” The petitioner c larified that if he had been aware of t

he potential sentence, he wo ul d h av e a tt em pt ed to pl ea d g ui lt y. At the conclusion of the hearing, the parties stipulated that “if Ge neral Bailey w as called, that his recolle ction is that he made an offer of 15 year s to serve. Which would have been a 15 y ear, 100 percent sentence.” After c onsidering the foregoing evidence, the post-conviction court stated:
Under Tenn. R. Crim. P. Rule 11, upon the approval of the tri al court , a defendant may

pleadguilty to a cha

rged offense. Howeve

r, nothing states that the prosecution is required to provide a settlement of a lower offer thanthat for w

hich is sta tutorily provided. Furthermore, had an agr eement b een rea

ched, it i s uncertain as to whether the Court would have accepted it. T he co ntention that if petitioner knew the ramifications of [Tennessee Code An not ated section 40-35- 501(i)(2)(D)], he would have attempted a guilty plea and received a better offer than that of which he was con victed, is somewhat specious in nature.-3-

In sum, the post-con viction cour t denied t he petitio n, finding

that the p etitioner

had not me

t his burden of establishing by c lear and convincing evidence tha t counsel was deficient or that the petitione r was pre judiced by su ch defic iency . The pet itioner no w appea

ls. II. Analysis
To be succe ssful in hisclaim for post-con viction re lief, the petitione r must prove all factual allegations contained

in his post-conviction petition by clear a nd convincing evidence. See Tenn. Code Ann. § 40-30-210(f) (1997). “‘Clear and convincing e

vidence means ev idence in which there is no serious or

subs tantial doubt about the correctness of the conclusions drawn fr om the evidence.’” State v. Holder , 15 S.W.3d 90 5, 911 (Te nn. Crim. App. 1 999) ( quot ing Hodgesv. S.C. Toof & Co. , 833 S.W.2d 896, 901 n. 2 (Tenn. 1992)). I ssues re garding the cr edibility of witnes ses, the weight

and value to be accorded

their testimony, and the factual questions raised by the e vidence adduced at tr ial are to be resolved by the post-conviction court as the trier of fact. See Henley v. State , 960 S.W.2d 572, 579 (Tenn. 1997). Theref ore, we afford the po st-co nvict ion co urt’s findi ngs of fact the weight of

a jury verdict, with such findings being conclusive on appe al absent a showing that the evidence in the record preponder ates against those findings. Id. at 578.
A claim of ineffective assistance of counsel is a mixed question of law and fact. See State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). In Fields v. St ate , 40 S.W.3d 450, 458 (Tenn. 2001) (citations omitted), our supre me court explained th e standard of review in cases of inef fective assistanc e of coun sel:

[A po st-convi ction] cou

rt’s findings of fact

underlying

a clai m o f ineffective assistance of counsel are reviewe d on ap peal u nder a de novo standard, accompanied with a presumption that thos e find ings are correct unless the preponderance of the evidence is otherwise. However, a [post-conviction] court ’s con clusions of law --such as whether counsel’s performance was def icient or whether that deficiency

was prejudicial--are reviewe d u nd er a p ur el y de novo stan dard , with no pre sumption of correctness gi ven to the[postconvicti on] court’ s conclus ions.
“To establish ineffective assistance of counsel, the petitioner b ea rs the burden of proving boththat counsel’s performance was deficient and that the deficiency prejudiced the defense.” Goad v. State , 938 S .W.2 d 363, 369 (T enn. 1 996) ( citi ng Strickland v. Washington , 466 U.S. 6 68, 687, 104 S. Ct. 2052, 20 64 (1984) ). In evaluat ing whe ther the petitione r has est ablished a defic iency

in representation, this cour

t must deter mine whether counsel’s performance w as within the range of competence required

of attorneys in cr

iminal cases. See Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). More over , in order to establi sh prejud

ice, the petitione r “‘must s how that th

ere is a reasona ble proba bility that, but for counsel’s unprofessional errors, the result of the proc eeding would have been different. A rea sonable probability is a prob ability su fficient to undermine confidencein the outcome.’” Henley , 960 S .W.2 d at 57 9 (quo ting Strickland , 466 U.S. at 694, 104 S. Ct. at 2068)). We are not constra ined to ad dress the se consider

ations in a

ny p articula

r order ; in-4-

fact, if the petitioner has failed to establish one prong of the test of the inef fective ness of c ounsel, we need not address the other prong in our analysis. See Burns , 6 S.W.3d at 461.
The petitione

r’s sole complaint on appeal is that he would have attempted to plead guilty if counsel h ad informed him that he would be required to serve one hundred percent (100%) of hi s sentence in confinement if convicted of aggra

vated kidnapping. However, the proof adduced at the post-conviction hearing

reflec ts that the petitioner stated that “may be” he would have pursued plea negotiations if he had been aw a re that he would be required to serve one hundr ed percent (100%) of his sentence in confinement, testimony which the post-conviction court labeled “specious.” Moreover, the parties stipulated at the post-conviction hearing that the only plea offer that the State mad

e to the pe

titioner p rior to tr ia l provide d that the

petitione r would ple ad guilt

y to aggravated

kidnapping and agree to a se ntence of fifteen y

ears incarceration, with on e hundred percent (100%) of

the sentence to be served in confinement. This offe r required a lengthier sentence of confinement than the sentence the petitioner rec eived after b eing convicted. There is no indication in the record that the State would have been forthcoming with a more favorable plea ag reement.
We recognize that co u nsel did no t testify at the pos t-conviction hear ing. We a

lso ackno wledge th at wh en th e i ss ue is in ef fe ct iv e a ss is ta nc e o f c ou ns el , i t i s a lw ays prefer able to have counsel testify at the hea

ring on the petition. See State v. Craven , 656 S.W.2d 872, 8 73 (Tenn . Crim. App. 1982); State v. Hopson , 589 S.W.2d 952, 9 54 (Tenn. Crim. App. 1979). However, even withoutthe testimony of counsel to contra dict the claims of the petitioner, the petitioner has failed to establi sh by clear and convincing evidence that he was prejudiced by the action or inaction of counsel. This issue is without merit.
III. Conclusion Based upon the foregoing , we affirm the judgment of the post-conviction court.

___________________________________ NORMA McGEE OGLE, JUDGE