        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE               FILED
                            MAY 1995 SESSION
                                                          October 4, 1995

                                                        Cecil Crowson, Jr.
                                                         Appellate Court Clerk



DAVID E. CAMPBELL,                )
                                  ) C.C.A. No. 01C01-9209-CR-00266
     Appellant,                   )
                                  ) Davidson County
V.                                )
                                  ) Hon. Walter C. Kurtz, Judge
                                  )
STATE OF TENNESSEE,               ) (Post-Conviction)
                                  )
     Appellee.                    )


FOR THE APPELLANT:                  FOR THE APPELLEE:

Anne C. Martin                      Charles W. Burson
Dodson, Parker & Behm               Attorney General & Reporter
Attorneys at Law
306 Gay Street, Suite 400           Christina S. Shevalier
Nashville, TN 37201                 Assistant Attorney General
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0943

                                    Victor S. (Torry) Johnson III
                                    District Attorney General

                                    Kymberly L. A. Hattaway
                                    Asst. Dist. Attorney General
                                    Washington Square
                                    222 2nd Ave. N, Suite 500
                                    Nashville, TN 37201-1649


OPINION FILED: ___________________


AFFIRMED


PAUL G. SUMMERS,
Judge
                                    OPINION

       The appellant, David Campbell, pled guilty in the Davidson County

Criminal Court to second-degree murder in January 1988. He was sentenced to

forty-two years confinement. He filed a post-conviction relief petition alleging

that his original trial lawyer who represented him during the plea process was

ineffective. The trial court held an evidentiary hearing and denied appellant

relief. Campbell now appeals to this Court. We affirm the trial court's dismissal

of the post-conviction relief petition.



       Campbell testified at his hearing. Charged with a co-defendant, he

entered a guilty plea to second-degree murder. His co-defendant was ultimately

convicted and received a sentence of life plus fifteen years. Campbell alleged

that his lawyer was ineffective, however, Campbell's proof did not substantiate

his allegation. He intertwined an allegation that as a result of the lawyer's

ineffectiveness, his plea was not rendered voluntarily. Neither the proof nor the

record substantiates his claim.



       His former attorney testified at the hearing. Counsel remembered that he

was appointed to represent Campbell at trial. Although counsel did not

remember several of the specifics of the case he did relate as follows:



       I've given it some thought and I can say categorically that I have
       never worked any harder on any case, on any client, any defendant
       I've ever represented than on David Campbell. This . . . case went
       on forever.

       At one point we went all the way to the point of trial. [The trial
       judge] did rule on the suppression motion after a lengthy hearing
       and even a brief being filed.

       We actually came into court and were prepared to go to trial with
       both the co-defendant and Mr. Campbell on the same day. And if I
       recall it correctly, I came across some sort of way of getting the two
       severed which caused a lot of consternation for everyone at the
       last moment and so fortunately they were severed. And [the
       prosecutor] elected to go forward in the co-defendant's case. Of
       course he wound up getting life plus fifteen.




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       In any case, to answer your question, I don't recall how many times
       I met with David, but I met with David many, many, many times.
       David was a difficult person to deal with.



       The record shows that counsel investigated the case, filed motions, and

argued pretrial issues on behalf of Campbell. He filed a brief in support of a

motion to suppress. Faced with Campbell's incriminatory statement to the

police, the trial lawyer negotiated a guilty plea for Campbell which was related to

Campbell in a painstaking manner. The lawyer testified at the hearing that he

"did everything humanly possible to protect Mr. Campbell's interests and my

interests."



       Although the record shows that Campbell is somewhat illiterate, he has

intelligence. He certainly is not stupid or ignorant. The record reveals that,

according to his lawyer, Campbell is a difficult person to represent. The record

also indicates that Campbell has had in-depth involvement with the criminal

justice system before and seems to understand what is happening to him.



       Counsel related that after Campbell's co-defendant was convicted, he

feared that the co-defendant would testify against Campbell. Furthermore,

counsel was concerned that the co-defendant, having nothing to lose and in

retaliation, would make sure that Campbell got a stiff sentence as well.



       Campbell also contends that his trial attorney failed to preserve the

suppression issue as a certified question of law pursuant to Rule 37 of the

Tennessee Rules of Criminal Procedure. Rule 37 provides, in part, that a

criminal defendant may appeal from any judgment or conviction upon a plea of

guilty if the "[d]efendant explicitly reserved, with the consent of the [trial] court,

the right to appeal a certified question of law [which] is dispositive of the case."

See Tenn.R.Crim.P. 37(b)(2)(iv). At the post-conviction evidentiary hearing, trial

counsel testified that the suppression issue was not dispositive of the case.



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Furthermore, counsel testified at the post-conviction evidentiary hearing that he

felt that the trial judge "probably was correct" in denying the motion to suppress.

The record further shows that the state had independent evidence in addition to

Campbell's statement to the authorities which would have corroborated the co-

defendant's testimony had Campbell gone on to trial.



       The trial judge at the evidentiary hearing on the post-conviction petition

accredited the lawyer's testimony as opposed to Campbell's testimony. He

found that Campbell had not proven his allegations of ineffective assistance of

counsel and involuntary plea by a preponderance of the evidence. He found that

Campbell was not pressured into pleading guilty and that his was not a case

under Rule 37 which would have been a dispositive appeal. See Rule 37(b)(2);

see also State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988). If the trial counsel

could not have preserved his issue pursuant to Rule 37, then obviously he was

not in error by failing to do so.



       The appropriate test for determining whether counsel provided effective

assistance at trial is whether his or her performance was within the range of

competence demanded of attorneys in criminal cases. Baxter v. Rose, 523

S.W.2d 930 (Tenn. 1975). Under Strickland v. Washington, 466 U.S. 668, 687

(1984), the United States Supreme Court places the burden on the appellant to

show that: (1) the representation was deficient which requires a showing that

counsel made errors so serious that she or he was not functioning as "counsel"

as guaranteed a defendant by the Sixth Amendment, and (2) the deficient

representation prejudiced the defense to the point of depriving the defendant of

a fair trial with a reliable result. To succeed on his claim, appellant must show

that there is a "reasonable probability," which is a probability sufficient to

undermine confidence in the outcome, that, but for the counsel's unprofessional

errors, the results of the proceeding would have been different. Id. at 694. The

burden rests on the appellant to prove his allegations by a preponderance of the



                                          -4-
evidence. Long v. State, 510 S.W.2d 83, 86 (Tenn. Crim. App. 1974). We also

do not use the benefit of hindsight to either second-guess trial strategy by

counsel or criticize counsel's tactics. State v. Martin, 627 S.W.2d 139, 142

(Tenn. Crim. App. 1981).



       In Hill v. Lockhart, 474 U.S. 52 (1985), the Supreme Court applied the

Strickland two-part standard to ineffective assistance of counsel claims arising

out of the plea process. The Court in Hill modified the "prejudice" requirement

by stating that "the defendant must show that, but for counsel's errors he would

not have pleaded guilty and would have insisted on going to trial." Id. at 59.



       In post-conviction proceedings, the petitioner has the burden of proving

the allegations in his petition by a preponderance of the evidence. McBee v.

State, 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, the findings

of the trial court in post-conviction 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); Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim.

App. 1978).



       Campbell did not carry his burden of proving the allegations in his petition.

The hearing judge chose to accredit the lawyer's testimony over that of the

petitioner. That is the trial judge's prerogative. We find that the evidence does

not preponderate against the post-conviction findings of the trial court. We,

therefore, affirm the dismissal in all respects.



AFFIRMED




                                          -5-
                                     ______________________________
                                     PAUL G. SUMMERS, JUDGE


CONCUR:




_____________________________________
JOE B. JONES, JUDGE




_____________________________________
ALLEN R. CORNELIUS, JR., SPECIAL JUDGE




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