IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

CHARLES D. BURTON v. STATE 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 1998, the petitioner pled guilty to two (2) counts

of kidnapping and one (1) count of aggravated assault and was sentenced as a Career Offender to

consecutive terms of five (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 for failing to explain to him the

difference between concurrent and consecutive sentences. After an evidentiary hearing, the trial

court denied the petition. After a thorough review of the record before this Court, we affirm the trial

court’s judgment pursuant to Rule 20 of the Tennessee Court of Criminal Appeals.

The petitioner contends that trial counsel was ineffective in that counsel failed to inform him

that his sentences would be served consecutively for an effective sentence of fifteen (15) years. He

further asserts that trial counsel failed to explain to him the difference between concurrent sentences

and consecutive sentences. In this regard, the petitioner testified at the post-conviction hearing, “I’ve

learned of the term concurrent versus consecutive, which the terms [sic] concurrent was never

brought up in the 11 months that we spoke or that I talked to [counsel], because I would 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 petitioner 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. at 2064;

Goad v. 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 Strickland standard 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 would not have pled guilty and

would have insisted on going to trial. 474 U.S. at 59, 106 S.Ct. at 370.

The trial court determined that the petitioner had not carried his burden of proof to establish

that trial counsel was ineffective under the standards of Baxter and Strickland. We agree. Clearly,

the evidence in the record does not indicate that “but for” counsel’s alleged failure to inform the
1

The petitioner was originally charged with seven (7) felonies 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 charged with two (2) counts of

aggravated kidnapping, as part of the plea agreement, the petitioner was allowed to plead to two (2)

counts of the lesser offense of kidnapping.

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petitioner regarding the meaning of concurrent sentences, the petitioner would not have pled guilty

and would have insisted on going to trial. Even assuming that the petitioner was 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 have asked for” a shorter sentence. However, there is no showing in the record

that the state would have 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 that, but for counsel’s alleged deficient performance, he

would not have pled guilty 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 Court of Criminal Appeals. Costs of the appeal will be paid

by the State of Tennessee as it appears that the petitioner is indigent.

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JERRY L. SMITH, JUDGE

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JOHN EVERETT WILLIAMS, JUDGE

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ROBERT W. WEDEMEYER, JUDGE