### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Bri efs Octobe r 30, 2001
DONALD BLAIR, JR. v. STATE OF TENNESSEE Direct Appeal from the Criminal Court for K nox County No. 71831 Ray L. Jenkins, Judge

_________________________ No. E2 001-0 0947- CCA-R3 -PC _____________January 29, 2002_____________

Petitioner failed to prove by

clear and convinci ng evid ence that he was denied effective assistance of counse

l. We affi

rm the tri al court ’s denia l of petiti oner’s p etiti on for p ostconviction relief. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OHN E VERE TT W IL LI AMS , J., delivered t he opinion of the court, in which D AVID G. H AYES and J AMES C URWOOD W ITT , JJ., joined. Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant, Donald Blair, Jr.
Paul G. Summers, Attorney Gene ral and Reporter; Kathy D. A slin ger, Assistant Attorney Ge neral; Randall E

ugene Nichols, D istrict At

torney Genera l; and Robe

rt L. Jolley , Jr., Assis tan t District Attorney Gene

ral, for the appellee, State of Tennessee

.

OPINION
On January 13, 2000, petitioner Donald B lair, Jr., pled guilty to one count of secon d degree murder, one count of attem pte d first degree murder, and four counts of aggravated assault. Petitioner was sentenced as a Range I standard offender to twenty -two year s, to be served co ncurrently, on the charges of second deg

ree murder and attempted first deg ree murd er
. Petitioner was sente

nced as a Ra nge I stan dard offender to three y ears for each of the char

ges of aggravated

assault. The tria

l court orde red the s entence s on the fo ur countsof agg

ravate d assault to be served concurrently with e ach other

and consecutively

with the sentences for second degr ee murder and attempt ed fir st degree murder. There fore, petitioner received an eff ective sentence of twenty-five

years. On December 20, 2000 , petitioner filed a pro se petition for post-conviction relief. Petitioner as se rt ed th at hi s g ui lt y pl ea s w er e e nt er ed in to un kn ow in gl y d ue to ineffective assistance of counsel. Petition er’s counsel was appointed to represent petitioner on January 5,-2-

2001, and an amendment to the original petition for post-c onviction rel ief was filed on January 22, 2001. The trial cour t held an evidentiary hearing on April 12, 2001, and dismissed petitioner’s petition. This appeal timely followed.

Facts
At his p lea hea ring, p etit ioner Donal d Blai r, Jr . sti pulat ed tha t he, a long with T yson Bivens and Anthony L

igon, participated in a drive-by shooting that resulted in t he death of Alvin McKenzie

and the w oundin g of Zolton Johnson. Petitioner testified that he knew that the State’s witnesse s, two co-d

efenda nts, would

testi fy that petit

ioner wa s the one f

iring the shots. Petitioner was convicted of second degree murder and attempted first degree murder. Pet i tioner ad mi tt ed hi s g ui lt on th e o ff en se s a nd as se rt ed th at hi s p le as we re gi ve n f re el y an d v ol un ta ri ly.
When he entere d his guilty pleas, attorne y L eslie Jeffress represented petitioner. Petitioner testifi ed that he met Mr. Jeffress about eight times for a total of approximately five or six hours pri or to ente

ring hisplea. Du

ring the se meetings, Mr. Jeffr ess discussed the State’s evidence with petiti oner and told petiti oner th at tw o witnesses would testify that petitioner wa s the shooter. Petitioner admitted to M r. Jeffre ss th at pet itio ner was invo lved i n the s hoot ing. Petitioner also asserted that no theory of defense was discussed.
Petitioner testified that he did not draw up the plea agreeme nt. However, he testified that his attorn ey explained the plea agree ment to him a

nd that he

understo od the sen

tence he would receive. He state d th at he voluntarily ac cepted the State’s plea offer beca use he believed it was in his best interest. Petitioner claimed that he wanted to take some of his cases to trial but believedthat his at

torney was not pr

epared to go to trial. Pet

itio ner stated that his belief was basedon the fa ct that no defe nse was prepared or discussed. Petitioner testified that he wa nted to argue at trial that although he wa s inv olved in the s hooting, he was not the actual shooter, but his a tto rney told petitioner that such a defense was not possible because of the State’s witnesses that would testify otherwise. The reafter, petitioner pled guilty

. On cross-examination, petitioner admitted that while he was to be preparing f or trial he fledthe state

and went to Georg ia. While in

Georg ia, petiti oner fa

iled to ap pear in c ourt on his scheduled trial date.
Petitioner’s trial counsel Leslie Jeff r ess testified that he had been practicing law since 1967. He testif

ied that he was p et itioner’ s trial counsel. Mr . Jeffres s testifie d that he m et with peti tioner on sever

al occa sions to disc

uss petitio ner’s c ase. Mr. Jeffressstated tha t he met with petitioner o n seven occasions for a total of approximately twelve hours. He further stated tha t petitioner missed three scheduled conference s. In addition to the persona l confe rences, Mr. Jeffresssaw petitioner during schedu led cour t hearing s. Mr. Jeff

ress also arrang ed for pr

ivate investigator Barry

Rice to help investigate the case. Mr. Rice also met with petitioner.
Mr. Jeffresstestifie d that he a nd petiti onerdiscussed the case, and petitioner told Mr. Jeffressthat petitioner want ed Mr. Jeffress to “make the best deal possible” for petitioner.-3-

Petitioner’s father also talked to the district attorney in an effort

to red uce petitioner’s sentence, and the State ultimately offered a twenty-two- year se ntence for the murder and attempted murder charg es, with a tot al sentence of twenty -five ye ars for all offenses. Mr. Jeffress testified that he believedthe sentence r eceive d was “ a very g ood resolution of the case.” He testified that the origi n al plea offer had been “some thirty-odd year s.” Mr. Jeffress stated that he discussed possib le defense t heories with petitioner “to the extent that that was possible,” but the evidence obtained by the private investig ator establ ished that pe titioner was the person in control of the weapon which killed the victim. Mr. Jeffress discu ssed the ev idence with petitioner, and petitioner made the decision to accept the plea offer . M r. Jeffr ess never told petitioner to take the plea offer. Mr. Jeffress further testified tha t petitioner was “eager to take . . . this offe r.”
At the conclusion of the evidence, t he trial court de

termined that ther

e was littl e contradictory

evidence , the petitioner and Mr. Jeffress had met and discussed the evidence , and the defendant wa nted to g et the be st deal po ssible an d entered guilty pleas to th

e offen ses as a result of the discussions with his attorney. The trial c ourt concluded that petitioner fa iled to meet his burden of proving a violation of h is attorney’s duty . Hence, the trial court dismissed petitioner’s post-conviction petition.
Analysis
This court reviews a claim of ineffective a ssistance of counsel under the standards of B a xterv. Rose , 523 S.W.2d 930 (Tenn.1975), and Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L .Ed.2d 674 (1984). T

he petitio ner has t

he burde n to demons trate th at (1) hi s attorney’sperformanc e was de fic ient, and (2) the d eficien t perfor mance r esulted in prejudic e to the defendant so as to deprive him of a fair trial. Strickland , 466 U.S. at 687, 104 S. Ct. at 2064; Goadv. State , 938 S.W.2d 363, 369 (Tenn. 1996). In Baxter , our Supreme Court held that at to rn eys should be h

eld to the range of compe

tence de manded of

attorne ys in cr iminal ca ses. Further, the court stated that the range of compe tence was to be measured by the duties and criteri a set forth in Beasley

v. United States , 491 F.2d 687, 696 (6th Cir.1974) and United States v. DeCoster , 487 F.2d 1197, 1202-04 (D.C.Cir.1973). Baxter , 523 S.W.2d at 936.
In Hill v. Lockhart , 474 U.S. 52, 106 S. Ct. 366, 88 L.Ed.2d 203 (1985), the Supreme Cou rt applied t he two-p art Strickland standar d to ineff ective a ssistance

of counse

l claims arisin g outof a guilty ple a. Under Hill , a petitio ner is als o requ ired to sh ow that the re is a re asonable probabil ity that, but for counsel’s errors, he would not have pled g uilty and wo uld have i n sisted on going to trial. 474 U.S. at 59, 106 S. Ct. at 370.
The petitioner’s burdenof proo f in all pos t-conviction case s filed af ter May 12, 1995, i s one of clear and convincing evidenc e, see Te nn. Code Ann. § 40- 30-210(f ), and re viewing courts must indulge a strong presumption that counsel’s conduct fa lls within t he ra nge of reasona bleness. Finally , th e trial j udge’s findings of fact on post-conviction hearings are conclusive on appeal u nle ss the evidence preponderates otherwise. Butler v . State , 789 S.W.2d 898, 899 ( Tenn. 199 0); Adkins v. St ate , 911 S.W.2d 334, 341 (Tenn. Crim. App. 1995).-4-

In the in stant case, we conclude that petitioner failed to prove by clear and convincing evidence that he wa s denied e ffectiv e assistanc e of counsel. Likewise, pe titioner failed to prove that he would not have pled guilty to second degree murder, a ttempted first degree murder, and four counts of aggrava

ted assault, but for trial counsel’s performance
The eviden ce a dduced at trial shows that petitioner entered into the plea ag reement vo lu nt ar il y, and petition erunderstood the sentence he would receive pur suant to the plea agree ment. The evidence shows that petitioner met with his attorney on seven different occasions and that p etitioner failed to show up on t

hree oth er occa sions. Petitioner and cou nsel spe ntapproximately twelve hours discussing the case. Petitioner also fled to Georgia and missed a court date. Counsel’s private investigator also met with petitioner for at least three hours.
The evidence reveals that the trial court accredited the te stimony of petitioner’s counsel that petitioner wanted the “best deal possible” and that petitioner didn ’t ha ve an y p roblems w ith the plea agreement. Furthe r, we conclude that the trial cou rt properly a ccredited counsel’s testimonythat counsel thought that the pl ea agr eement and the corresponding twenty -five-ye ar sentence was a “very

good resolution” of the case, that some d efense theories were not practical giventhe strength of the State’s case, that petitioner was “ eager to take the o ffer,” and t hat the offer w as in petit

ioner’sbest inter

est.
We conclude

that petit

ioner’strial cou

nsel act ed wit hin the range of competence expected of attorn

ey s in crimin al case s and that the evide

nce bef ore us doe s not pr eponder ate against the trial court’s findings.
CONCLUSION Accordingly , we affirm the judgment of the trial court.

___________________________________ JOHN EVERETT WILL

IAMS, JUDGE