           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE           FILED
                            APRIL 1999 SESSION
                                                            May 13, 1999

                                                       Cecil W. Crowson
                                                      Appellate Court Clerk
DERRICK SAWYERS,                    )
                                    )   C.C.A. NO. 01C01-9806-CR-00254
           Appellant,               )
                                    )   DAVIDSON COUNTY
VS.                                 )
                                    )   HON. J. RANDALL WYATT, JR.,
STATE OF TENNESSEE,                 )   JUDGE
                                    )
            Appellee.               )   (Post-Conviction)



FOR THE APPELLANT:                      FOR THE APPELLEE:


PAUL J. BRUNO                           PAUL G. SUMMERS
Washington Square, Suite 350M           Attorney General & Reporter
222 Second Ave., North
Nashville, TN 37201                     MARVIN E. CLEMENTS, JR.
                                        Asst. Attorney General
                                        John Sevier Bldg.
                                        425 Fifth Ave., North
                                        Nashville, TN 37243-0493

                                        VICTOR S. JOHNSON, III
                                        District Attorney General

                                        LILA STATUM
                                        Asst. District Attorney General
                                        Washington Square, Suite 500
                                        222 Second Ave., North
                                        Nashville, TN 37201




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                     OPINION



               The petitioner was charged with first-degree murder, possession of cocaine

over .5 grams with the intent to sell, and possession of cocaine under .5 grams with the

intent to sell. After negotiations, the petitioner entered into a plea agreement and pled

guilty to second-degree murder and to the drug offenses as charged. On the second-

degree murder charge, the trial court sentenced the petitioner as a violent offender to

twenty-five years in prison at one hundred percent. On the drug charges, the trial court

sentenced the petitioner as a Range I standard offender to a concurrent eight year prison

sentence and a consecutive three year prison sentence, for an effective sentence of

twenty-eight years. In May 1997, the petitioner filed a petition for post-conviction relief,

alleging that he was denied effective assistance of counsel and that his guilty pleas were

not knowingly, intelligently, and voluntarily made. Following a hearing, the post-conviction

court denied the petitioner relief. The petitioner now appeals. Finding no error, we affirm

the denial of relief.



               Under the Post-Conviction Procedure Act of 1995, the petitioner has the

burden of proving the factual allegations in his or her petitioner by clear and convincing

evidence. T.C.A. § 40-30-210(f). Furthermore, the factual findings of the trial court in

hearings “are conclusive on appeal unless the evidence preponderates against the

judgment.” State v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983).



               The petitioner first argues that his trial counsel, Carlton Lewis, was

ineffective. In reviewing the petitioner’s Sixth Amendment claim of ineffective assistance

of counsel, this Court must determine whether the advice given or services rendered by

the attorney are within the range of competence demanded of attorneys in criminal cases.



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Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a claim of ineffective

counsel, a petitioner “must show that counsel’s representation fell below an objective

standard of reasonableness” and that this performance prejudiced the defense. There

must be a reasonable probability that but for counsel’s error the result of the proceeding

would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694

(1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985). A petitioner who

pleads guilty satisfies the requirement of prejudice by demonstrating a reasonable

probability that but for counsel’s errors, he or she would not have pled guilty and would

have insisted on going to trial. See Hill v. Lockart, 474 U.S. 52, 59 (1985); Bankston v.

State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991).



              The petitioner claims Mr. Lewis was ineffective because he met with him to

discuss his case only once between his arraignment and his guilty plea hearing. As

support for this argument, the petitioner points to his testimony at the post-conviction

hearing and Mr. Lewis’s testimony that his time sheet reflected he met with the petitioner

only once. Mr. Lewis, however, also testified that his time sheet did not reflect every time

he met with the petitioner and that he specifically recalled meeting with him at least four

times at the jail. The petitioner also claims that Mr. Lewis was ineffective by not

discussing the drug cases with him. The petitioner’s only evidence for this argument is

his own testimony. To contrast, Mr. Lewis testified that while he focused primarily on the

homicide case, he did discuss the drug cases with the petitioner. Further, the petitioner

claims that Mr. Lewis was ineffective for advising him he would be released from prison

in ten or fifteen years, which is contrary to the law. Again, the petitioner’s only evidence

is his own testimony, while Mr. Lewis testified that he never so advised the petitioner, that

he never attempts to calculate release dates, and that he told the petitioner he would

have to serve over fifty years if convicted on first-degree murder charges. On all of these



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points, the post-conviction court specifically accredited Mr. Lewis’s testimony in a written

order, finding the petitioner’s testimony not credible. Because the evidence does not

preponderate otherwise, these findings are conclusive. Buford, 666 S.W.2d at 475.



              Regarding his plea to second-degree murder, the petitioner claims Mr.

Lewis was ineffective for interviewing only three or four witnesses listed on the murder

indictment, failing to show him a copy of the discovery response provided by the State,

and failing to accurately inform him of the evidence the State had. He complains that Mr.

Lewis did not inform him that one of the witnesses, Angela Lee, had said the petitioner

was not the individual who shot the victim. The petitioner also contends that had he been

aware that another of the witnesses, Sheila Alexander, could have testified she saw the

victim of the shooting reach into his pocket, he would not have pled guilty because he

could have established self-defense at trial.



              At the post-conviction hearing, Mr. Lewis recalled reviewing “in some detail”

the discovery response and the State’s evidence with the defendant. He also testified

that he sent to every non-emergency personnel witness listed on the murder indictment

a letter requesting to talk to them. Because the letters did not generate much response,

he went to the apartment complex where the shooting occurred and knocked on nearly

every door. Still, most of the witnesses were reluctant to cooperate. Mr. Lewis testified

that Ms. Lee’s statement that the petitioner was not the shooter would not have been

helpful to the petitioner’s case because Ms. Lee had originally identified the petitioner as

the shooter to police investigators and because the petitioner was not asserting an alibi

defense. With regard to Ms. Alexander’s potential testimony, Mr. Lewis testified that

there were inconsistencies between her statement to investigators and her testimony at

the preliminary hearing. He also testified that even if she would have testified she saw



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the victim reach into his pocket shortly before the shooting, her testimony would not have

supported a self-defense theory because a gun was not found on the victim and because

the victim was shot in the back.



              Again, the post-conviction court accredited Mr. Lewis’s testimony on each

of these points. The post-conviction court also specifically questioned Ms. Alexander’s

credibility as a potential witness for the petitioner. The court further found, “It is evident

to the Court that Mr. Lewis was cognizant of the shortcomings in his case and that he

advised his client accordingly.” Because the evidence does not preponderate otherwise,

these findings are conclusive. Buford, 666 S.W.2d at 475. Moreover, even if Mr. Lewis’s

representation fell below a reasonable standard, the petitioner has not shown how he was

prejudiced. Accordingly, the petitioner’s claims of ineffective assistance must fail.

Bankston, 815 S.W.2d at 215.



              In his last issue, the petitioner argues his guilty pleas were not knowingly,

intelligently, and voluntarily entered because he did not understand the significant

consequences of his pleas. To support this argument, the petitioner cites his testimony

that Mr. Lewis did not correctly explain his potential release eligibility and that he failed

to discuss his drug cases with him. As discussed above, these claims lack merit.



              As additional support for his argument, the petitioner claims Mr. Lewis failed

to review his plea petitions with him and that he did not know that his three year sentence

on one of his drug charges would be consecutive to his murder sentence. Mr. Lewis’s

testimony at the post-conviction hearing directly contradicted these claims, and the post-

conviction court specifically accredited Mr. Lewis’s testimony and noted that the

sentencing court “also explained the terms of the petitioner’s sentence in its entirety prior



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to the entry of the plea.”



              Further, the petitioner claims that because he dropped out of high school,

Mr. Lewis should have spent a “significant amount of time” with him to ensure he

understood the consequences of his pleas. Mr. Lewis testified he spent “quite a bit of

time” going over the case with the petitioner because he was aware of the petitioner’s

limited education and because of the seriousness of the offenses. The post-conviction

court again accredited Mr. Lewis’s testimony.



              Finally, the petitioner claims his pleas were not knowingly, intelligently, and

voluntarily made because Mr. Lewis pressured him into pleading guilty. At the post-

conviction hearing, the petitioner testified Mr. Lewis “pressured” him into pleading guilty

by telling him he would not win at trial. Mr. Lewis denied pressuring or coercing the

petitioner to plead guilty, and in its order, the post-conviction court noted there was no

evidence suggesting “Mr. Lewis coerced or pressured the petitioner into accepting the

plea agreement.” The petitioner’s argument lacks merit.



              In sum, the petitioner has not shown how he was denied effective

assistance of counsel or how his pleas were not knowingly, intelligently, and voluntarily

made. Accordingly, we affirm the trial court’s denial of post-conviction relief.




                                                  _______________________________
                                                  JOHN H. PEAY, Judge




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CONCUR:



______________________________
DAVID H. WELLES, Judge



______________________________
J. CURWOOD WITT, JR., Judge




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