### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs D ec em be r 21, 200 5

SHA WN D ONZ ELL A NGL IN v. STA TE OF TEN NES SEE

Appeal f romthe Cr im inal Cou rt for Davidson Coun ty No. 2002-C- 1610 Cheryl Blackbu rn, Judge

No. M2005- 00941-CCA -R3-P C - F iled Fe bruary 6, 2006

This is an appea l from the denial of post-conviction relief. The P etitioner, S hawn Donzell Ang lin, pled g uil t y t o and wa s convicted of fac ilitation of possession for resa le of more than 0.5 g rams of

c oc a in e

. P u r s u a n t t o a p l e a a g r e e m e n t , t h e P e t i t i o n e r w a s s e n t e n c e d t o t e n y e ar s t o b e s e r v e d in Com mun ity

Cor re c tio ns a ndwa s f

ine d $ 2, 00 0. Th e Pe tit ion e r f ile d f or a ndwa s d e nie d p os tconviction re lief. The Petitioner now appea ls the trial court’s order deny ing post-c onviction relief, claiming his trial counsel provided ine ffe ctive assistanc e of counsel whic h resulted in an involuntary g uiltyplea. We af

firm the judg ment of the trial c ourt.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

D AVI D H. W EL L ES , J ., delivere d the opinion of the court, in which J OHN E VE R E TT W I L L I AMS a ndJ.C. M C L IN , J J ., joined.

Ry an C. Caldwell, Nashville, Te nnessee , for the a ppellant, Shawn Donzell Ang lin.

Paul G. Summers, Attorney Gene ral a nd Reporter ; J ane L . Be ebe, A ssistant Atto rn e y G e n e r a l; Vic tor S. J ohnson, District Attorney Gene ral; and B ret Gunn, Assistant District Attorney Gene ral, for

the appellee , State of Tenne ssee.

OP IN ION

F AC TS

The fa cts leading to the conviction and sentence at issue in this case wer e st ipulated at the De fe nd a nt’ s g uil ty

ple a he ari ng a s f

oll ow s:
The testimony

would be that in the ea

rly morning hours o f May

3rd, 2002, Serg eant Chick of the Metropolitan Police Depa rtment al o ng with Office r B rad Burnes basica lly stopped Mr. Ang lin based upon suspicion they had, various -- hadT he d ri vi ng wi t h a s uspend ed l i cense charge was app arent l y dro p p ed as p art of t he p l ea o f fer. 1

-2- seen va rious activities g oing on, de termined that he had n o driver’ s license, a nd ultimately

ob t ai n ed co n s en t to searc h the vehicle he wa s driving. . . . In any event they ultimately

found a qua ntityof coc aine, some in the passeng er c ompartment of the v e h ic le a n d a n o th e r

in th e r e ar

c o mp ar tm e n t, w h ic h w a s o v e r a h a lf g r a m of

coca ine, circ umstances indicating it was p o s s es s ed for sale or de livery . That

occur red in Da vidson County , Tenne ssee.

I n Aug ust of 2002, a Da vidson Cou n t y g rand jury

indicted the Petitioner on one c ount of possession with intent to s ell or deliver twenty -six g rams or more of cocaine, s ee Tenn. Code Ann. § 39-17-417, a nd one count of driving with a suspended lice nse, see Tenn. Code Ann. § 55- 50-504. I n Se pte mbe r o f 2 00 3, the Pe tit ion e r, pu rs ua nt t o a ple a a g re e me nt, ple d g uil ty to the le sse r o ff

e ns e

o f fa ci l itation of possession for re sale of mor e than 0.5 g rams of c ocaine

. The plea ag ree ment 1

s t i p u l at ed a f

i n e o f $ 2
, 0 0 0 wa s t o b e im p o s ed an d t h e P et i t i o n erwo u l d s er v e t en y ea rs as a R an ge I , s ta nd ardof

fe nd e r i n th e Com mun ity Cor re c tio ns pr og ram.

I n Apr i l o f 2004, the Petitioner violated the c onditions of his C ommunityCorrec tions p r o g r a ma n d w a s s u b s e q u e n t l y o r d e r e d t o s e r v e t h e r e m a i n d e r o f h i s t e n

- y e ar s e n t e n c e i n p r i s o n

. In Aug ust of 2004, the Petitioner filed a pro se petition for post-c onviction relief. T he trial c ourt found
t h e p et i t i o n p re s en t ed a c o l o r a b l e cl ai m , ap p o i n t ed co u n s el an d s ch ed u l ed an ev i d en t i ar y h ea ri n g. I n November

of 2004, the Petitioner filed a n amende d petition for post-conviction re lief ra ising the issues of ineff

ective a ssistance of c ounsel and a n involuntary g uiltyplea.

Th e tr ia l c ou rt

c on du c te d a n e vid e nti ary he ari ng on the pe tit ion fo r po st- c on vic tio n re lie f i n F e br ua ry of 20 05 . A t th is h e ari ng , th e Pe tit ion e r te sti fi e d that his tr ia l c ou ns e l ( “ Cou ns e l” ) c a me to meet with him while he wa s in jail only on ce ; Counsel never se nt him mail; Counsel never called him ; a ndCou ns e l me t w ith him ou tsi de of

the ja il o nly

on day s he app e are d in c ou rt a ndthe se

me e tin g s la ste d o nly

“ fi ve to t e n mi nu te s. ” Th e Pe tit ion e r a lso state d th a t he re qu e ste d Co un se l to proce ed with a suppression hearing a “couple ” of times. Howeve r, this he aring never took place, a nd Cou ns e l f a ile d to e xpla in w hy . T he Pe tit ion e r f urthe r t e sti fi e d th a t Co un se l ne ve r d isc us se d w ith him wh a t he wa s c ha

rg e d w ith or

po ssi ble de fe ns e s a va ila

ble . He a lso ins ist e d th a t a lth ou g h h e e xpre ssl y informed Counsel that he w anted to g o to trial, Counsel ig nored his re quest. When the Petitioner

was a s k ed wh y

he did not reque st a trial in open court the day he ente red his plea , he re sponded:

“ B e c a us e I

fe e l it -- t o me, it was lik e [Cou ns e l] di dn ’t ha ve the c on fi de nc e wi thi n h iss e lf [sic ] to

e ve n try to ev e n re pr e se nt me in g oin g to tr ia l, so I fe lt tha t I sh ou ld ha ve g on e on a ndjus t ta ke thi s offe r that they

was off ering me.”

On c ro ss- e xami na tio n, the Pe tit ion e r a dmi tte d that he wa s a wa re that he fa c e d a

c on sid e ra bly longe r sentenc e if c onvicted of the o ri gi n al ch arg es than that off ere d in the plea a g ree ment, and further conce ded that he did not seek post-conviction relief until after he had violated the c onditions of his Communi ty

Correc tions sentence. Ho we v er , the Petitioner maintained that Counsel neve r explained to him t he proviso that the S tate would withdraw its plea offer if he insisted on proce eding-3-

with a suppression hearing. The Petitioner did not call any other witnesses or prese nt any evidenc e

o t h ert h an h i s o wn t es t i m o n y at t h e p o s t -c o n v i ct i o n h ea ri n g.

Counsel testified that he had be en practicing exclusively criminal l aw since 1992. He f urther stated that he ha d been r etained by the P et itioner at the Ge nera l Sessions l evel a nd visited the Petitioner when he was inca rce rate d “one or t wo times.” Counsel expl ained that the of fer of ten
y ear s as a Rang e I offe nder, one g rade lower than the Petitioner’s rec ord supported, a nd service of the sentenc e in the CommunityCorrec tions progr am was c onditioned upon abandoning pursuit of a suppre ssion hearing . Counsel also stressed that he ex p l ai n ed
, and he believed the pe titioner

un de rs too d, the tr a de -o ff in p os sib ly

wi nn ing a t th e su ppres si on he ari ng a ndha vin g the c a se dismiss ed ver sus losing at the suppr ession hearing and fac ing a signific ant amount of time i n prison. Cou ns e l a l s o t e s t i f

i e d t h a th e r e a d t h e p l e a

a g r e e m e n tt o t h e P e t i t i o n e r a n d d i s c u s s e d i t s c on te nts

. He sa id that the Petitioner had over a month to cons i d er h i s o p t i ons while he flattened a prior
sentenc e.

On cr oss-examination, Couns el testified that he had “long conver sations” with the Petitioner

conce rning his case, a nd he also re called “ draw ing [the P eti tioner] diagr ams on a leg al pad”

c on c e rn ing the po ssi ble se nte nc ing ou tc ome s b a se d o n a c c e pti ng the ple a a g re e me nt or

e le c tin g to g o t o t r i a l

. C o u n s e l t e s t i f i e d t h a tt h e P e t i t i o n e r w a s p r i m ar i l y c o n c e r n e d ab o u t t h e “ q u i c k e s tw a y” to ge t out of serving any additional time in prison. W hen aske d if the Petitione r ex p re ssed any

rese rvations the day

he ac cepte d the plea a g ree ment for a Communi ty C o rr ections sentenc e and
enter ed his plea of

g uilty , Counsel responded: “ No. He w as pre tty excited to ge t out.”

I n A pr il o f 2 00 5, the tr ia l c ou rt iss ue d a n o rd e r d e ny ing the Pe tit ion e r’ s r e qu e st f or po stconviction re lief. This appe al followed.

AN AL YSI S O n ap p e a l th e Pe ti ti o n e r

c la im s : “ T h e Po s t- Co n v ic ti o n Co u r t e rr e din f in d in g A p p ellant’s g uiltypleas we re e ntere d knowing ly and voluntarily

and we re not the r esult of counse l’s ineffe ctive

a s s is ta n c e in : A ) f

a il in g to a d e q u a te ly

c o n s u lt w ith th e A p p e llant a n d a d v is e h im o f th e p le a [] conseque nces; [and] B) c oerc ing A ppellant to involuntarily enter his guilty plea[].”

To sustain a p et i tion for post-conviction re lief, a pe titioner must prove his or her f actua l alleg ations by

clea r and convincing evidenc e at a n evidentiary hearing. See Tenn. Code Ann. § 40- 30-110(f ); Momon v. State, 18 S.W .3d 152, 156 (Tenn. 1999) . Upon re view, this Court will not reweig h or re -eva luate the evidenc e below; all questions conce rning the cr edibilityof witnesses, the weig ht and value to be g iven their testimony , and the f actua l issues raised by

the evidenc e ar e to be resolved by

the trial judg e, not the appe llate courts. See Momon, 18 S.W .3d at 156; Henley v. State, 96 0 S. W.2 d 5 72 , 5 78-79 (Ten n. 19 97 ). Th e tr ia l ju dg e ’s fi nd ing s o f f a c t on a pe tit ion fo r p os tconviction re lief ar e af

forde d the weig ht of a jury verdi ct an d ar e co nclusive on appe al unless the evidenc e pre ponderates ag ainst those finding s. See Mom on, 18 S.W .3d at 156; Henley , 960 S.W .2d at 578.-4-

Both the Six th Amendment to the United States Constit ution a nd Article I , Section 9 of the Tenne ssee Constitution guar antee a criminal defenda nt the rig ht to r epre sentation by counsel. See State v. Burns, 6 S.W .3d 453, 461 (Tenn. 1999) ; Ba x ter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Both the U nited States Supreme Court and the Tenne ssee Supreme Court have r ecog nized that the rig ht to such repr esenta tion include s the rig ht to “re asonably eff ective” assistance
, that is, within t he rang e of c ompetence demande d of attorne y s in criminal case s. See Strickland v. Washington, 466 U.S. 668, 687 (1984); B urns, 6 S.W.3d at 461; Baxt er, 523 S.W.2d at 936.

A l a wy e r’ s a ssi sta nc e to h is or her cli e nt i s in e ff e c tiv e if the la wy e r’ s c on du c t “ so underm ined the prope r func tioning of the adver sarial pr ocess that the trial cannot be relied on a s having produce d a just result.” Strickland, 466 U.S. at 686. This over all standard is c omprised of two components: d efic ient perf ormanc e by

the def endant’ s lawy er, a nd actua l prejudice to the defe nse caused by

the def icient per formanc e. See id. at 687; B urns, 6 S.W.3d at 461. The defe ndant bear s the burden of establishing both of these components by clea r and c onvincing evidenc e. See Tenn. Code Ann. § 40-30-110( f); Burns, 6 S.W .3d at 461. The de fenda nt’s failure to prove e ither defic iency

or pre judice is a suff

icient basis upon which to deny relief on an inef

fec tive assistance of counsel c laim. See B urns, 6 S.W.3d at 461; Goad v. State, 938 S.W .2d 363, 370 (Tenn. 1996)

.

Th is t wo -p art

sta nd ardof

me a su ri ng ine ff

e c tiv e a ssi sta nc e of

c ou ns e l a lso app lie s to c la ims arising out of a g uiltyplea. See Hill v. L ockhart, 474 U.S. 52, 58 (1985). The pr ejudice c omponent is modified such that the def endant “ must show that there is a r easona ble proba bilitythat, but for counsel’s e rror s, he would not have pleade d g uiltyand would have insisted on g oing to trial.” I d. at 59; see a lso Hicks v. State, 983 S.W .2d 240, 246 (Tenn. Crim. App. 1998)

.

I n evaluating a

lawy er’ s perf

ormanc e, t h e reviewing court uses a n objective standa rd of “re asonable ness.” See Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The re viewing court must be highly

defe rential to counse l’s choice s “and should indulg e a strong presumpti on that counsel’s c onduct fa l l s wi thin the wide ra ng e of r easona ble profe ssional assistance.” Burns, 6 S.W .3d at 462; see a lso St rickland, 466 U

. S

. at 6 8 9

. T he court should not use the benef it of hindsight to second- g uess trial strate g y or to criticize counse l’s tacti cs , s ee Hellar d v. State, 629 S.W .2d 4, 9 (Tenn. 1982) , and counsel’s alleg ed errors should be judg ed in light of all the fa cts and circ umstances a s of the time they wer e made , see Strickland, 466 U .S. at 690; Hicks v. State, 983 S.W .2d 240, 246 (Tenn. Crim. App. 1998)

.

A t rial court’s determination of an ineff ective a ssistance of c ounsel claim pre sents a mix ed qu e sti on of

la w a ndfa c t on app e a l. S e e F ie lds v. S tat e, 40 S.W. 3d45 0, 45 8 ( Te nn . 2 00 1) . T his Court r eviews the trial court’ s findings of fac t with reg ard to the e ffe ctiveness of counsel unde r a de novo standard, a ccompa nied wit h a p resumpti on that those finding s are corr ect unless the preponde ranc e of the evidenc e is othe rwise. See id. “How ever , a trial c ourt’s conc lusions of law-- such as whe ther counsel’s performanc e wa s deficie nt or whethe r that def iciency was pre judicial--a

re revie wed unde r a pur ely

de novo s t an d ar d
, wi th no presumption of corr ectne ss give n to the trial court’s c onclusions.” I d.-5-

Ad dit ion a lly , o ur

su pr e me c ou rt , i ns e tt i n g f o r thth es t an d ardfo r i de nti fying a c on sti tut ion a lly valid g uiltyplea, noted that “bef ore a trial judg e can acc ept a g uilty plea, ther e must be an a ffirmative showing that it was g iven intellige ntly and voluntarily .” State v. Pettus, 986 S.W .2d 540, 542 (Tenn. 1999) (c iting to B oykin v. Alabama
, 395 U.S. 238, 242 (1969))

. Our high court further noted that “a ple a is not ‘voluntary ’ if it is the product of ‘ [i ]gnore nce, inc omprehe nsion, co er cion, t err or, inducements, [or] subt le or blata nt threats,’” Bla nkenship v. State, 858 S.W .2d 8 9 7, 904 (Tenn. 1993) (quoting Boy

kin, 395 U.S. at 242-43), or i f t he defenda nt is “incompetent or othe rwise not in control of his mental fa cilities” when the plea wa s entere d. I d.

After considering the testimony prese nted at the post

- c o n v ic ti o nh e a r in g , th etr ia l c ourt issued an orde r conta ining de tailed finding s of fa ct and a thoroug h leg al analy sis in which it conc luded that post-conviction relief was unwar rante d. Addre ssing the Petitioner’s cl ai m o f deficient communication, the court rec ounted the conf licting t es timonyof the Petitioner and Counsel, a nd

c on c lud e d: “ Th e Cou rt

[fi nd s Co un se l’ s] te sti mon y to b e c re dib le a nddo e s n ot f indthat [Cou ns e l] failed to a dequate ly

consult with petitioner.” The trial court c ontinued, noting that e ven “[a]ssum ing, in a

rg uendo, . . .that [C ]ounsel only met with Petitioner on c ourt dates f or five to ten minutes eac h vi s i t as P etitioner alleg es, Petitioner has still failed to show that the number of meeting s he had with [C ]ounsel was so defic ient as t o constitute ineffe ctive assistanc e of c ounsel.” Thus, the trial court found “[n] othing in the rec ord indicate s that [C ounsel] failed to meet with the Petitioner and kee p him informed of the pr ocee dings.” The t ri al court also noted that “during Petitioner’s plea c olloquy , Petitioner informed the Court that he was satisfied w ith the work [Cou ns e l] did fo r him .” Ac c or din g ly , the tr ia l c ou rt c on c lud e d: “ Pe tit ion e r h a s f a ile d to de mon str a te by clea r and c onvincing evidenc e that trial c ounsel wa s i neff ective or that he wa s prejudice d by [C ]ounsel’s alleg ed def

icient per formanc e.”

The trial c ourt also acc redited the testimony of Counsel that “if Petitioner proc eede d with the suppression hea

ring and lost then the community corr ection offer w ould no longe r be a vailable a nd the only plea of fer would be at Rang e I I

offe nder status re quiring time to be serve d in the TDOC.” Th e c ou rt fu rthe r f ou ndthat “ thi s ty

pe of ple a ne g oti a tio n- -that is, takin g of f the ta ble a pr e vio us ly offe red ple a af

ter a suppression hea

ring --is not unusual.” Noting that Counsel testified that he and the Petitioner ca

ref ully discussed the State’s of

fer and the “ pros and c ons” of the options ava ilable, the trial court c oncluded: “Ag ain, the Court finds [Couns el’s] testimonyto be cr edible and that the Petitioner has not shown by clea r and c onvincing evidenc e that [Counsel’s] repr esenta tion was defic ient nor has he shown that he wa s prejudice d by the alleg ed def

iciency .”

As to the Petitioner’s claim that his ple a was not voluntary beca use he fe lt pressured to plea d g uiltydue to the def

iciencie s of Counsel’s re prese ntation, the trial court found that this claim failed be c a us e 1) Cou ns e l was no t de fi c ie nt i n h is r e pr e se nta tio n, 2) the Pe tit ion e r f

a ile d to de mon str a te any prejudice due to the alleg ed defic iency
, and 3) the Petitioner expressly told the court during the plea c olloquy

that he was satisfied with Counsel’ s repr esenta tion. Accor dingly , the trial court found that “the Petitioner wa s awa re of the plea pr ocess a nd its ramifications and that he knowing ly and voluntarily

enter ed his g uiltyplea.” I n conclusion, the trial court stated, “this Court f inds the issues-6-

c on ta ine d wi thi n the Pe tit ion e r’ s g ro un d[s] fo r re lie f to be wi tho ut me ri t,” a nd de nied postconviction re lief.

After considering the ar g uments prese nted to us on appea l, we conclude that the Petitioner has fa iled to car

ry his burden of establishing that the evidence preponder ates a g ainst the trial court’s finding s. The P etitioner would have this Court acc redit hi s testimonyoffe red at the post-conviction hearing, in whic h he alleg ed his trial counse l pro v i d ed deficient communica tion by conducting infreque nt and short meeting s, failed to discuss the c harg es he f ace d and any

possible defe nses available , and fa iled to expl ain that the offe red ple a ag ree ment was c onditioned upon abandoning a suppre ssion hearing . By im p lication, the Petitioner asks this Court to ex pressly discredit the
contra ry testimony of C ounsel and to overturn the ca ref ully considere d finding s of the trial c ourt. Howeve r, as state d above, this Court will not re-we igh or re- evaluate ev i dence , and all questions

c on c e rn ing the c re dib ili ty of wi tne sse s a ndthe we ig ht a ndva lue to b e g ive n th e ir te sti mon y

are to be re solv ed b y t h e trial court, and not by the appe llate courts. See Momon, 18 S.W .3d at 156. Acc ording ly , we c onclude that the e vidence does not preponde rate ag ainst the finding s of the trial court. We af

firm the trial c ourt’s ruling that the petitioner ha s neither de monstrated def icient repr esentation by

his Counsel nor established pre j u d i ce

. He is not entitled to relief based on ine ff e c tiv e a ssi sta nc e of

c ou ns e l.

We are also unpersua ded by the Petitioner’s unsupported a ssertion that his guilty plea wa s

e ith e r c oe rc e d o r e nte re d in vo lun tari ly du e to h is l a c k of con fi de nc e in e ith e r C ou ns e l’ s a bil ity to take the c ase to trial or

resolve to do so. While the Petitioner may have f elt pressure d to acc ept the plea a g ree ment, any

coer cion he f

ace d can be attributed to his own desire to g et out and stay out of prison as “quic kly ” as possible a nd cannot pr operly be imputed to Counsel. It is well settled law that the mere inducement to plea d g uiltyso as to se cure leniency or a shorter sentenc e than that whic h may result fro m a j u rytrial does not constitute g rounds for inva lidating a g uiltyplea. See Bla nkenship, 858 S.W .2d at 904. See also Geor g e v. State, 533 S.W .2d 322, 326 (Tenn. Crim. App. 1975) (holding that a g uilty plea is not rende red involunt ary by the fa ct that the ac cused w as fa ced wi th the dif

fi c ult e le c tio n b e tw e e n a lik e ly le sse r se nte nc e on a ple a a g re e me nt andthe po ssi bil ity of a g reater sente nce upon ple a of not g uilty , or fe ar that h e wo u ld be prosec uted for a dditional offe nses).

F urthe rm or e , th e re c or d on app e a l re fl e c ts that be fo re the Pe tit ion e r de c ide d to e nte r a g uil ty plea, h e car efully

discussed the “ pros and c ons” of the ple a off er w ith Counsel. The Petiti oner ruminated o v e r th e d e c is io n f o r mo r e th a n a mo n th a s h e r e main e d in p r is o n s e r v in g o u t the

rema inder of a

previous sentence. Moreove r, the trial c ourt meticulously followed the B oykin due proce ss safeg uards whe n questioni ng the Petitioner at the plea hearing, and at this hearing the Petiti o n e r e xp r e s s ly a f f ir me d his satisfaction with Counsel’s repr esenta tion. See Boy kin v. Alabama, 395 U.S. 238, 242-44 (1969). Thus, the evidenc e demonstrates that the Petitioner di d indeed e nter his ple a kn ow ing ly , in te lli g e ntl y

a ndvo lun tari ly . A c c or din g ly
, we a g re e that th e Pe tit ion e r’ s g uil ty plea wa s not entere d involuntarily due to Counsel’s alleg ed def icient re prese ntation.-7-

After examining the entire rec ord on appea l, we find that the Petitioner ha s failed to prove his trial counsel provided de ficient re prese ntation in any respe ct. Having found that the Petitioner failed to me et the first prong of the Strickland test, we are not require d to examine the issue further

. Nonethele ss, we note that the P etitioner has also failed to prove that “but for” t he allege d err ors of his trial counsel he w ould have insisted upon g oing to tria l. L ockhart, 474 U.S. at 59. To the
contra ry , the Petitioner prese nted no evidenc e which preponde rate d ag ainst the trial court’s finding that he wa s not prejudiced by any of the a lleg ed cla ims of deficie ncy

.

I n s u m, th e Pe ti ti o n e r h a s f a il e d to p r o v e b y c le ar a n d c o n v in c in g e v id e n c e th at his trial counsel’s r epre sentation fell out side the wide r ang e of r easona ble profe ssional assistance. B ased on the evidenc e in the appe llate rec ord, the Petitioner’s tria l counsel provided r epre sentation that was neither de ficient nor pr ejudicial. Ac cording ly , we c onclude that the Petitioner’ s trial counsel did not pr ov ide ine ff

e c tiv e a ssi sta nc e of

c ou ns e l. A dd iti on a lly , w e ho ld that th e tr ia l c ou rt di d n ot e rr in finding the Petitioner’s g uiltyplea wa s entere d knowing ly and voluntarily and was not the re sult of

c oe rc ion du e to the a lle g e d in e ff e c tiv e a ssi sta nc e of

c ou ns e l. T his iss ue is w ith ou t me ri t.

CO NC LU SION Finding no err or, the judg ment of t he trial court deny ing the Petitioner post-conviction relief is affirme d.

___________________________________ DAVID H. WELLES, J UDGE