     IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT KNOXVILLE               FILED
                       AUGUST 1997 SESSION
                                                      October 1, 1997

                                                     Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk

                              )
MICHAEL B. DAVIS,             )
                              ) C.C.A. No. 03C01-9702-CR-00060
     Appellant,               )
                              ) Knox County
V.                            )
                              ) Honorable Ray Jenkins, Judge
STATE OF TENNESSEE,           )
                              ) (Post-Conviction: Second Degree Murder)
     Appellee.                )
                              )




FOR THE APPELLANT:               FOR THE APPELLEE:

John B. Blair, III               John Knox Walkup
Attorney at Law                  Attorney General & Reporter
176 2nd Avenue North
Suite 406                        Sandy Copous Patrick
Nashville, TN 37201              Assistant Attorney General
                                 2d Floor Cordell Hull Bldg.
                                 425 Fifth Avenue North
                                 Nashville, TN 37243-0943

                                 Randall E. Nichols
                                 District Attorney General

                                 Fred Bright
                                 Assistant District Attorney General
                                 City-County Bldg.
                                 Knoxville, TN 37902




OPINION FILED: ___________________


AFFIRMED

PAUL G. SUMMERS,
Judge
                                  OPINION



      The appellant, Michael B. Davis, appeals the denial of his petition for

post-conviction relief, arguing that his guilty plea was not entered knowingly and

voluntarily because he received ineffective assistance from his attorney and

because he was coerced into pleading guilty due to the possibility of federal gun

charges. The appellant pled guilty to second degree murder, possession of

cocaine for resale, and possession of a weapon in the commission of a felony.

He was sentenced as a Range I, standard offender to the minimum sentence of

fifteen years on the murder charge, six years on the drug charge, and one year

on the weapons charge. The six-year sentence and the one-year sentence were

to be served concurrently to each other, but consecutively to the murder charge.

Thus, the appellant received a total sentence of twenty-one years to be served in

the Department of Correction. We affirm.



       The appellant presents for our review one issue: whether his guilty plea

was voluntarily entered despite his attorney’s representations regarding his

possible release eligibility date and despite the threat of prosecution on federal

gun charges.



       The appellant killed a man after a fight and was subsequently charged

with first degree murder. After he was charged with this crime, the appellant

became involved in an altercation with a man on Cumberland Avenue in

Knoxville, but a police officer intervened and stopped the altercation. The police

officer noticed the butt of a gun exposed from under the appellant’s car seat.

The car was searched, and the search produced several grams of cocaine. This

incident occurred during “Operation Trigger Lock,” a federal project involving the

prosecution of drug and gun violations.




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          Although the appellant pled guilty in state court, he asserted in his

petition for post-conviction relief that his plea was not voluntarily entered

because of ineffective representation by his attorney. Donald Bosch, a private

attorney, represented the appellant at the plea. According to the appellant, Mr.

Bosch informed him that he could be released in as little as three or four years

under the proposed plea agreement. Furthermore, the appellant asserts that Mr.

Bosch informed him that he would be prosecuted on federal gun charges if he

did not accept the plea agreement. According to the appellant, Mr. Bosch did

not inform the trial court of the possibility of federal gun charges.



          The state, however, argues that the post-conviction court properly

dismissed the appellant’s petition for post-conviction relief. The state contends

that the appellant was not “induced to plead guilty by his attorney’s

misrepresentation as to the release eligibility dates and the federal government’s

threat of prosecution.”     The state maintains that the appellant has failed to show

“that his attorney’s ineffectiveness prejudiced him by forcing him to accept the

guilty plea.” Furthermore, the state argues that the record from the appellant’s

guilty plea hearing indicates that the appellant had not been pressured to plead

guilty.



          To be granted relief on the ground of ineffective assistance of counsel, an

appellant must establish that the advice given or the services rendered were not

within the competence demanded of attorneys in criminal cases and that, but for

counsel’s deficient performance, the result of his or her trial would have been

different. Strickland v. Washington, 466 U.S. 668 (1984). This two-part

standard, as it applies to guilty pleas, is met when the appellant establishes that,

but for counsel’s error, he or she would not have pled guilty and would have

insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985). In

Tennessee, the appropriate test is whether counsel’s performance was within the




                                           -3-
range of competence demanded of attorneys in criminal cases. Baxter v. Rose,

523 S.W.2d 930, 936 (Tenn. 1975).



       In post-conviction proceedings, petitioners bear the burden of proving

their allegations by a preponderance of the evidence. Black v. State, 794

S.W.2d 752, 755 (Tenn. Crim. App. 1990); McBee v. State, 655 S.W.2d 191,

195 (Tenn. Crim. App. 1983). Furthermore, the trial court’s findings of fact in

post-conviction hearings are conclusive on appeal unless the evidence

preponderates against those findings. Butler v. State, 789 S.W.2d 898, 899

(Tenn. 1990); 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).



       Because a guilty plea involves the waiver of several of the defendant’s

constitutional rights, the trial court may not accept a guilty plea without an

affirmative showing that the defendant’s plea decision was knowing and

voluntary. Boykin v. Alabama, 395 U.S. 238 (1969); State v. Mackey, 553

S.W.2d 337 (Tenn. 1977). If a plea of guilty is induced by coercion, fraud,

duress, or mistake, then relief may be granted. Capri Adult Cinema v. State, 537

S.W.2d 896, 898 (Tenn. 1976).



       The appellant argues that his guilty plea was not voluntarily made

because his attorney was ineffective by misrepresenting to the appellant his

possible release eligibility date. However, the appellant admitted that his

attorney told him that he could serve three or four years or he could serve the

entire twenty-one year sentence. Furthermore, the transcript of the plea hearing

clearly indicates that the appellant understood his rights, and he indicated at that

time that he had not been pressured or coerced into pleading guilty.

       We conclude that the trial court’s acceptance of the appellant’s guilty plea

complied with the requirements of Boykin and Mackey. Furthermore, this Court

finds that the appellant has failed to carry the burden of establishing that his




                                         -4-
attorney was ineffective. Because the evidence does not preponderate against

the post-conviction court’s findings, we affirm that court’s judgment .




                                               _____________________________
                                               PAUL G. SUMMERS, Judge


CONCUR:




______________________________
GARY R. WADE, Judge



______________________________
WILLIAM M. BARKER, Judge




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