             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE                  FILED
                             AUGUST 1997 SESSION
                                                             September 18, 1997

                                                          Cecil W. Crowson
                                                         Appellate Court Clerk
WILLIAM R. WATERS                  )
                                   )     C.C.A. NO. 01C01-9610-CR-00418
      Appellant,                   )
                                   )
VS.                                )     DAVIDSON COUNTY
                                   )
STATE OF TENNESSEE                 )
                                   )     Hon. Thomas H. Shriver
      Appellee.                    )     Judge
                                   )
                                   )     (Post-Conviction)




FOR THE APPELLANT:                       FOR THE APPELLEE:

DWIGHT E. SCOTT                          JOHN KNOX WALKUP
4024 Colorado Avenue                     Attorney General and Reporter
Nashville, Tennessee 37209

                                         PETER M. COUGHLAN
                                         Assistant Attorney General
                                         Criminal Justice Division
                                         450 James Robertson Parkway
                                         Nashville, Tennessee 37209

                                         MARY HAUSMAN
                                         Assistant District Attorney
                                         Washington Square Building
                                         222 Second Avenue North
                                         Nashville, Tennessee 37201




OPINION FILED:____________________



AFFIRMED




JOE H. WALKER, III
Sp. JUDGE
                                             OPINION

       The petitioner entered a plea of guilty to second degree murder, and received a twenty

year sentence as a standard offender.

       He appeals from the denial of a petition for post-conviction relief, alleging ineffective

assistance of counsel. He was assisted by an attorney at the post-conviction hearing, and his

petition was denied after a hearing.

       On appeal, his attorney asserts that the court erred in denying relief based on ineffective

assistance of counsel, and that trial counsel’s lack of investigation led to inadequate advice to the

petitioner, causing the petitioner to plead guilty to second degree murder, rather than voluntary

manslaughter. Petitioner also filed a brief, pro se, alleging that his counsel did not adequately

prepare the case, did not adequately investigate the case, which resulted in petitioner

incriminating himself by entering a plea of guilty to second degree murder.



                                        Factual Background



       On June 29, 1992, petitioner was at his residence in Davidson County, and his vehicle

was parked outside on the street. A group of people were standing around the residence

outside. A car came by with two individuals, and the passenger threw a firecracker out the

window. The firecracker ignited some gasoline which was leaking from petitioner’s vehicle,

causing the car to burst into flames. Petitioner came outside to see his car on fire. He was told

by some of the individuals who were outside the name of the person who had thrown the

firecracker.

       Petitioner then left and went to some apartments in Nashville in search of the person who

had thrown the firecracker. He did not find that person, but found someone he believed to be

driving the car from which the firecracker was thrown, and petitioner then produced a gun and

fired twice, and killed the victim with one of those shots.

       The public defender was appointed to represent petitioner, and on January 7, 1993,

petitioner entered a plea of guilty to second degree murder, upon an agreed sentence of twenty

years as a standard offender.

       The petitioner had a prior conviction for perjury.
       On May 10, 1996, a post-conviction proceeding was conducted, witnesses testified, and

the court found that the public defender did an excellent job for petitioner. Many motions were

filed, and a complete investigation was done. The office of the public defender interviewed some

fifteen witnesses. Petitioner was denying he committed the crime and was going to trial. The

public defender was prepared to go to trial, and only after the public defender negotiated a good

deal for petitioner did petitioner admit his involvement in the homicide.



                                                  I.

       When this court undertakes review of a lower court’s decision on a petition for post-

conviction relief, the lower court’s findings of fact are given the weight of a jury verdict and are

conclusive on appeal absent a finding the evidence preponderates against the judgment. Clenny

v. State, 576 S.W.2d 12, 14 (Tenn.Crim.App. 1978), cert. denied, 441 U.S. 947, 99 S.Ct. 2170,

60 L. Ed. 2d 1050 (1979) Taylor v. State, 875 S.W.2d 684, 686 (Tenn.Crim.App. 1993), perm. to

appeal denied (Tenn. 1994).



       The test in Tennessee in determining whether counsel provided effective assistance at

trial is whether the performance was within the range of competence demanded of attorneys in

criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984), provides a two-prong analysis when a

petitioner claims ineffective assistance of counsel. The petitioner has the burden to prove that (1)

the 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. Id. at 687, 104 S.Ct. At 2064.

       In order to prove prejudice in the context of a guilty plea, the petitioner must demonstrate

that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded

guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct.

366, 370, 88 L. Ed. 2d 203 (1985); see Bailey v. State, 924 S.W.2d 918, 919 (Tenn.Crim.App.

1995); Wade v. State, 914 S.W.2d 97, 101 (Tenn.Crim.App.1995).

                                                 II.

       The defendant complains that his attorney did not interview some relatives who witnessed

his car catch a fire. There was testimony that the public defender did interview these witnesses,

and the court found they were interviewed. However, there was no dispute that the car caught
fire. There was no allegation that any of the witnesses, which petitiioner complained about, had

anything else to offer, and the State was willing to stipulate that petitioner’s car caught fire and

exploded.

        The events leading up to the shooting were thoroughly investigated. The attorney filed

numerous motions, interviewed eight or ten of the fifteen witnesses personally, and completely

prepared for trial.

        Petitioner also complains that his attorney did not personally visit the scene of the crime.

However defense investigators did review the scene, reported to the attorney, and the attorney

was already familiar with the area.

        Petitioner took the position that he did not commit the crime. Until shortly prior to

entering a plea of guilty, he alleged he was elsewhere. Petitioner now complains that his attorney

failed to inquire into his state of mind in an effort to show that he acted in a state of passion

produced by adequate provocation sufficient to lead a reasonable person to act in an irrational

manner. His attorney at the post-conviction hearing stated that it was a little hard to discuss

mental state at the time of the shooting with petitioner, since petitioner indicated he did not

commit the shooting. Petitioner asserts that he finally stopped lying to his attorney, admitted he

shot the victim, and that his attorney should have pursued voluntary manslaughter rather than

settling for a plea of second degree murder. Petitioner insists that his car exploding caused a

state of passion; however, he now admits he obtained a weapon, drove to another location in

search of someone, and that it was sometime later when he shot the victim.

        There was much negotiation between his attorney and the District Attorney General with

regard to a negotiated plea. The petitioner had been convicted of perjury, he remained a suspect

in a different murder, and he was also a suspect in an attempted murder. The District Attorney

was serious about prosecuting the defendant in this case. His attorney repeatedly tried to settle

this case, and testified that he was well pleased with the settlement, based on the fact that the

petitioner actually goes looking for somebody and shoots them in the back from a distance of

twenty feet. He felt that a second degree murder plea for twenty years at thirty percent under the

facts of this case, and the record of the petitioner, was a plea that was in the best interest of

petitioner.

        During the entry of the plea of guilty, the petitioner himself stated to the court that he was
satisfied with the way his attorney had handled the case, that he had spoken with his attorney

about all defenses, and that he was satisfied with the negotiated plea arrangement.



       The petitioner has failed to demonstrate that his attorney’s performance was deficient, or

that there was a probability that he would not have pleaded guilty and would have insisted on

going to trial except for his attorney’s errors. The evidence does not preponderate against the

judgment of the post-conviction court.

       The judgment of the lower court is affirmed.



                                                             __________________________
                                                             JOE H. WALKER, III
                                                             Sp. JUDGE

CONCUR:

_______________________
JOE G. RILEY, JUDGE

______________________
J. CURWOOD WITT, JR., JUDGE
