            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                          JUNE SESSION, 1998             FILED
                                                          August 17, 1998

                                                      Cecil Crowson, Jr.
FREDRICK L. BROWN,               )                       Appellate C ourt Clerk
                                 )   No. 03C01-9701-CR-00034
      Appellant                  )
                                 )   HAMILTON COUNTY
vs.                              )
                                 )   Hon. Stephen M. Bevil, Judge
STATE OF TENNESSEE,              )
                                 )   (Post-Conviction)
      Appellee                   )



For the Appellant:                   For the Appellee:

Ardena J. Garth                      John Knox Walkup
District Public Defender             Attorney General and Reporter

Donna Robinson Miller                Todd R. Kelley
Asst. District Public Defender       Assistant Attorney General
Suite 300 - 701 Cherry Street        Criminal Justice Division
Chattanooga, TN 37402                450 James Robertson Parkway
                                     Nashville, TN 37243-0493


                                     William H. Cox III
                                     District Attorney General

                                     Bates Bryan
                                     Asst. District Attorney General
                                     600 Market Street, Suite 300
                                     Courts Building
                                     Chattanooga, TN 37402



OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                            OPINION



        The appellant, Fredrick L. Brown, Jr., appeals the post-conviction court’s

denial of his petition for post-conviction relief. On April 23, 1993, pursuant to a plea

agreement, the appellant pled guilty to two counts of first degree murder and, in

accordance with the State’s recommendation, received two concurrent sentences of

life imprisonment. A charge of aggravated robbery was dismissed.1 On appeal, the

appellant argues that ineffective assistance of counsel caused him to enter

uninformed and involuntary guilty pleas.



        After review, we affirm.




                                        BACKGROUND



        The record before us establishes that, on April 27, 1993, the appellant

entered guilty pleas to the September 5, 1991, murder of Samuel R. Scott and the

March 24, 1992, murder of Corey C. Strickland. The victim, Scott, was shot seven

times while attempting to flee from the appellant. Three witnesses observed the

shooting. The second victim, Strickland, was murdered by the appellant during the

course of a robbery. Again, eyewitnesses were present at the murder scene.



        The appellant’s petition for post-conviction relief was filed on February 8,

1994.




        1
        Additionally, the State agreed not to pursue aggravated assault charges against the
eighteen year old appellant which he allegedly committed while a juvenile.

                                               2
                                        ANALYSIS



         When a claim of ineffective assistance of counsel is raised, the appellant

bears the burden of showing that (a) the services rendered by trial counsel were

deficient and (b) the deficient performance was prejudicial. Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984); Cooper v. State, 849

S.W.2d 744, 746 (Tenn. 1993). With respect to deficient performance, the court

must decide whether or not counsel’s performance was within the range of

competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d

930, 936 (Tenn. 1975). When a defendant makes a claim of ineffective counsel

within the context of a guilty plea, the defendant must demonstrate a reasonable

probability that, but for counsel’s deficiency, the defendant would not have pleaded

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

106 S.Ct. 366, 370 (1985); Manning v. State, 833 S.W.2d 635, 637 (Tenn.Crim.App.

1994).



         In his petition, the appellant claims that his two pleas to first degree murder

were involuntary because his trial counsel misled him as to the length of sentences

that would be imposed. Specifically, in his petition he alleges:

         During the plea negotiations on the two murder counts, the petitioner
         was advised by his attorney that the prosecution was willing to settle
         the case(s) for a thirty-six (36) year sentence in exchange for the
         petitioner’s guilty plea. Unknown to the petitioner, this 36 year
         sentence was in fact a life term that offered the petitioner no
         opportunities for a release consideration until he had served at least
         thirty-six years in the Tennessee Department of corrections. (sic)



         The appellant did not testify at the post-conviction hearing. The appellant’s

father, Fredrick Brown, Sr., and his grandmother, Louise Minafee, testified on behalf

of the appellant. Also testifying was appellant’s trial counsel, Jerry Summers. The

post-conviction court’s summarization of the respective witnesses’ testimony is as

follows:


                                           3
       Mr. Brown, Sr. testified that he was under the impression that
       petitioner was getting thirty-six years at thirty percent (30%). He also
       testified that the petitioner told him he was getting two (2) life
       sentences. He also testified that there was conversation with the
       petitioner about thirty-six (36) and sixty (60) years. Ms. Minafee
       testified that she talked to petitioner about pleading guilty to thirty-six
       years. Neither Mr. Brown, Sr. nor Ms. Minafee was present in court
       when the petitioner entered his plea of guilty.

       Attorney, Jerry Summers, testified that he had met with the petitioner
       and the petitioner’s father. He never specifically represented to the
       petitioner exactly how much time he would serve because of the
       changes in the law, the overcrowding of the penitentiary, and other
       factors. He did testify that he thought the petitioner would “flatten out”
       the sentence in thirty-six (36) years, and it might be less than that. It
       was Mr. Summers’ understanding that a life sentence meant thirty-six
       (36) years. He further testified that in his years as an attorney, he had
       never plead anyone to first degree murder before, but the fact that
       there were two (2) murder cases against the petitioner was a strong
       incentive for the petitioner to plead.


       The transcript of the guilty plea hearing clearly reflects that, at least on four

specific occasions, appellant was informed that he would be pleading to two

concurrent life sentences. Those instances occurred during (1) the district attorney

general’s recommendation of punishment, (2) the trial court’s advisement of the

penalties provided by law, (3) the statement by trial counsel before sentencing, and

(4) the imposition of sentences by the trial judge.



       We do not view the appellant’s responses, which were entered under oath at

the plea hearing, as hollow expressions which may later be casually disregarded

and held for naught. Indeed, we conclude, as observed by the post-conviction court,

that “the transcript of the original plea removes any ambiguity as to the petitioner’s

plea of guilty.”



       The trial court, at the guilty plea hearing, and the post-conviction court found

that the appellant’s guilty pleas were knowingly and voluntarily entered. On appeal,

this court is bound by the post-conviction court’s findings of fact unless the evidence

in the record preponderates against those findings. Clenny v. State, 576 S.W.2d 12,

14 (Tenn.Crim.App. 1978). The record is clear that the appellant was repeatedly


                                           4
advised that he would be receiving sentences of life imprisonment for each of the

murders to which he pled guilty.



       After review of the record, we conclude that the evidence does not

preponderate against the post-conviction court’s findings.



       Accordingly, the judgment of the post-conviction court dismissing the

appellant’s petition is affirmed.




                                    ____________________________________
                                    DAVID G. HAYES, Judge



CONCUR:



_______________________________
JOHN H. PEAY, Judge



_______________________________
JOSEPH M. TIPTON, Judge




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