### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE

CHARLES D. BURTON v. S TATE OF TENNESSEE

Criminal Court for Davidson County

No. 97-C-1572

No. M1999-01400-CCA-R3-PC

ORDER

The petitioner, Charles D. Burton, appeals the order of the Davidson County Criminal Court denying his petition for post

conviction relief. In March of 1 998, the petitioner pled guilty

to two (2) counts of kidnapping and o

ne (1) count of a

ggravated a

ss ault and was se

ntenced as a Car

eer Offender

to consecutive terms of fi ve (5) years for each count. Subsequently , the petitioner filed the present petition for post-conviction relief, alleging, inter alia , that trial counsel was ineffective for failing
to inform him that his sentences would run consecutively and fo r faili ng to explain to him the difference

between concurrent and consecutive sentences. Aft e r an evidentiary hearing, the trial
court deniedthe petition. After a thorough review of the record before this Court, we affirm the trial court’s judgmen

t pursuant to Rule 20

of the Tennessee

Court of Criminal Ap

peals. The petitioner contends that trial counsel was ineffective in that counsel failed to inform him that his sentences wou

ld be served cons

ecutively for an effective sentence of fifteen (15) years. He further asserts that tria

l counsel failed to

explain to him

the difference between concurrent sentences andconsecutive sentences. In this regard, the petitioner testified at the post-conviction hear ing, “I’ve learned of the term conc urren t versus consecutive, which the terms [sic] concurrent was never brought up in the 11 months that we spoke or that I talked to [counsel], b

ecause I wo

uld definitely have asked for a sentence to run concurrent rather than consecutive.” This Court reviews a claim of ineffective assistance of counsel under the standards of Baxter

v. 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) . The pe titioner has the burden to demonstrate that (1) his attorney’s performance

was deficient,

and (2) the deficient performance resulted in prejudice to the defendant

so as to deprive him of a fair trial. Strickland v. Washington , 466 U.S. at 687, 104 S.Ct. a t 20 64; Goadv. State , 938 S.W.2d 363, 369 (Tenn. 1996). In Hill v. Lockhart , 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 ( 1985), the Supreme Court applied the two-part Stricklandstandard to ineffective assistance of counsel claims arising out of a guilty plea. Under Hill , a petitioner is required to show that there is a reasonable probability that, but for counsel’s errors, he w ould nothave pled guilty and would have insisted on going to trial. 474 U.S. at 59, 106 S.Ct. at 370. The trial court determine

d that the petitione

r had not carrie

d his burden of proof t

o establish that trial counsel was ineffective under the standards of Baxter and Strickland . We agre e. C lea rly, the evidence in the record does not indicate that “but for” counsel’s alleged failure to infor m the1 The petitioner wa s originally

charged with se

ven (7) felonie

s and one (1) misdemeanor. The agreement required the petitioner to plead guilty to three (3) felonies at a higher sentencing range than that for

which he qualified. Although he was originally charg ed with two (2) counts of aggravated

kidnapping, as pa

rt of the plea ag

reement, the petitioner was allowed to plead to two (2) counts of t he lesser of fense of kid napping.



### -2- petitioner regarding the meaning of concurrent sentences, the petitioner would not

have pled guilty andwould have insisted on going to trial. Even assuming that the p etitioner wa s unaware of the distinction between concurrent versus consecutive sentencing at the time of his plea, the petitioner’s

own testimony at the post-conviction hearing merely establishes that had he known the difference, he “would

definitely h

ave asked for”

a shorter senten

ce. However, th

ere is no showing

in the record that the state would ha

ve agreed to

a shorter sentence upon the petitioner’s guilty plea. Indeed, trial counsel testified at the post-conviction hearing that the state’s plea offer rested upon the petitioner serving a fifteen(15) year sentence. 1 Moreover, the transcript of the guilty plea hearing demonstrates that the petitioner

fully understood that he would be receiving an effective sentence of fifteen ( 15) years for his convictions. The petitioner has not established tha t, but for counsel’s alleged deficient performance, he would not have pled gui

lty and would have insisted on going to trial. Thus, the record supports the trial court’s determination that the petitioner has not shown by clear and convincing evidence that he received ineffective

assistance of counsel. Accordingly, we affirm the judgment of the trial court pursuant to Rule 20 of

the Tennessee Co

urt of Criminal Appe

als. Costs of the appeal will be paid by the State o

f Tennessee as i

t appears that the

petitioner is indig

ent.

____________________________________ JERRY L. SMITH, JUDGE

____________________________________ JOHN EVERETT WILLIAMS, JUDGE

____________________________________ ROBERT W. WEDEMEYER, JUDGE