         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                            JUNE SESSION, 1997                 FILED
                                                           July 23, 1997
DAVID WAYNE BRITT,            )    C.C.A. NO. 02C01-9607-CC-00224
                              )                          Cecil Crowson, Jr.
                                                               Appellate C ourt Clerk
      Appellant,              )
                              )
                              )    HARDEMAN COUNTY
VS.                           )
                              )    HON. JON KERRY BLACKWOOD
STATE OF TENNESSEE,           )    JUDGE
                              )
      Appellee.               )    (Post-Conviction)


               ON APPEAL FROM THE JUDGMENT OF THE
                CIRCUIT COURT OF HARDEMAN COUNTY


FOR THE APPELLANT:                 FOR THE APPELLEE:

GARY F. ANTRICAN                   JOHN KNOX W ALKUP
District Public Defender           Attorney General and Reporter

C. MICHAEL ROBBINS                 CLINTON J. MORGAN
Assistant Public Defender          Assistant Attorney General
P.O. Box 700                       450 James Robertson Parkway
Somerville, TN 38068               Nashville, TN 37243-0493

                                   ELIZABETH RICE
                                   District Attorney General
                                   302 Market Street
                                   Somerville, TN 38068



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                 OPINION

      The Petitioner, David W ayne Britt, appeals as of right pursuant to Rule 3

of the Tennessee Rules of Appellate Procedure from the trial court’s denial of his

petition for post-conviction relief. On April 9, 1990, the Petitioner pleaded guilty

to first-degree m urder, conspiracy to commit first-degree murder, and possession

of a deadly weapon with the intent to employ it in the commission of an offense.

Upon the recommendation of the district attorney general, the trial court

sentenced him to life imprisonment for first-degree murder, three years for

conspiracy to commit first-degree murder, and one year for possession of a

deadly weapon with the intent to employ it in the commission of an offense. The

Petitioner was classified as a Range I standard offender, and his sentences were

ordered to run concurrently. He filed a pro se petition for post-conviction relief on

April 27, 1994, which was amended with the assistance of counsel on January

2, 1996, and again on February 6, 1996. In his petition for post-conviction relief,

the Petitioner argued that he was denied effective assistance of counsel at his

guilty plea proceeding. After conducting an evidentiary hearing, the trial court

found that the Petitioner had received effective assistance of counsel and denied

the petition. W e affirm the judgment of the trial court.



      Initially, we note that the procedural history of this petition indicates that it

was originally dismissed as having been barred by the three-year statute of

limitation. See Tenn. Code Ann. § 40-30-102 (repealed 1995). On July 26, 1995,

the dismissal of the petition was reversed on appeal to this Court. See State v.

David W ayne Britt, C.C.A. No. 02C01-9410-CC-00234, Hardeman County (Tenn.



                                         -2-
Crim. App., Jackson, July 26, 1995) (holding that the statute of limitation was

tolled while the Petitioner was a minor pursuant to Tennessee Code Annotated

section 28-1-106). Upon remand to the trial court, the Petitioner was appointed

counsel, amended the original petition, and received an evidentiary hearing.



      The only evidence concerning the circumstances of the offenses comes

from a stipulation of facts which was read into the record at the Petitioner’s guilty

plea proceeding. That stipulation reveals that the Petitioner became romantically

involved with a teacher’s assistant, Brenda Diane Oakley, at the W ilder Youth

Development Center in 1989. He was sixteen years old at the time and Oakley

was thirty-eight years old. According to the Petitioner, Oakley made allegations

that she had been abused by her husband. She indicated that she wanted to be

with the Petitioner and that the only way she could do so was for him to kill her

husband. The Petitioner eventually came to believe her and did not want to lose

her affections.



      According to the Petitioner, Oakley devised plans for the killing of her

husband. She provided a map of the route to her home and details about the

layout of the house. W hen the Petitioner did not follow through with the first plan,

Oakley was not pleased.       She informed him that unless her husband was

eliminated as soon as possible, their love affair was over. As a result, the

Petitioner made arrangements to kill her husband.



      The Petitioner arranged for a friend to drive him to Somerville, the location

of the Oakley hom e, on Septem ber 30, 1989. He acquired a .22 caliber rifle and

brought it with him. He concealed the true purpose of his having the gun from his

                                         -3-
friends. They drank some beer on the way to Somerville. Once they arrived in

Somerville, the Petitioner instructed his friends to drive by the Oakley home in

order “to check out the situation.” Satisfied with the situation, the Petitioner

instructed his friends where to park and wait for him. He put on a mask and

rubber gloves and approached the Oakley home. He found the door unlocked

and entered the house. According to the Petitioner, Diane Oakley was awake

and knew of his presence. Her husband stirred from his sleep, apparently

realizing that someone was in the room, and the Petitioner shot him in the head.



      After the shooting, the Petitioner and Oakley embraced. He then took

steps to make the shooting appear to be part of a robbery, including binding

Oakley with cloth he had brought and taking her diamond pendant. He left the

house running and joined his friends where they had parked to await him. They

drove away and the Petitioner later took steps to cover up the crime. In all, the

crime had taken place in the format which he and Oakley had planned and

discussed several times.



      Law enforcement authorities soon suspected the Petitioner of being

involved in the shooting. He eventually confessed to the crime. As a result, he

was indicted on the charges to which he pleaded guilty on April 9, 1990. He filed

a petition for post-conviction relief on April 27, 1994.       After conducting an

evidentiary hearing on March 8, 1996, the trial court denied the petition. It is from

the trial court’s order of denial that the Petitioner now appeals.



      In his petition, he argued that his attorneys at the guilty plea proceeding,

Jack Hinson and Tom Anderson, rendered ineffective assistance of counsel in

                                         -4-
three respects. The Petitioner first contended that his attorneys encouraged him

to plead guilty to first-degree murder but did not correctly advise him of the

alternatives to or consequences of doing so. Second, he contended that his

attorneys were ineffective in that they did not discuss and pursue a defense

based on his being under the influence of drugs and alcohol at the time of the

offense. Third, he contended that attorney Tom Anderson was ineffective in that

he had a conflict of interest arising from a previous matter concerning the

Petitioner.



      Both Jack Hinson and Tom Anderson testified at the post-conviction

hearing. Hinson stated that he had handled a matter involving the Petitioner in

the past. As a result, the Petitioner’s mother, Helen Overm an, contacted him

upon the Petitioner’s arrest for the Somerville murder. Hinson met with the

Petitioner and was then hired by Overman to represent him. She paid a five

thousand dollar ($5000) retainer fee at that time. Hinson soon realized that he

would need the help of a more experienced attorney for this difficult murder trial.

He contacted Tom Anderson for that reason. Anderson met with Hinson, the

Petitioner and Overman to discuss the case.         Although neither Hinson nor

Anderson recalled specific details discussed during their meetings with Overman

and the Petitioner, it was clear to both attorneys that Overman and the Petitioner

agreed to Anderson’s association on the case. Anderson and Hinson agreed to

split the retainer fee and, according to them, they were paid no additional money

by Overman.     The Petitioner was later declared indigent, and Hinson and

Anderson were appointed to represent him.




                                        -5-
      The record reveals that Anderson sat as a special judge on a juvenile

matter involving the Petitioner approximately two years prior to his arrest on the

murder charge. On that occasion, Anderson entered an order committing the

Petitioner to the supervision of the Department of Correction for six counts of

larceny.   At the post-conviction hearing, Anderson testified that he did not

remember committing the Petitioner at the time he became associated with

Hinson for the murder trial. In fact, the Petitioner reminded Anderson of that

proceeding during one of their meetings and laughed about it. According to both

Hinson and Anderson, neither the Petitioner nor Overman objected to Anderson’s

participation in the murder trial because of the prior commitment proceeding.



      Both Hinson and Anderson were aware that the Petitioner had consumed

alcohol on the trip to Somerville. Neither attorney recalled any mention of drug

use by the Petitioner. Because of the Petitioner’s precise actions in following the

plan to murder Mr. Oakley, neither attorney believed that a defense suggesting

that the Petitioner could not have formed the requisite m ental state for first-

degree or second-degree murder because of the influence of alcohol would be

successful. Accordingly, they decided that alcohol would not be a major factor

in their defense of the Petitioner.



      Instead, the principal theory of defense would be that the adolescent

Petitioner was manipulated by the older Diane Oakley into committing the

offense.   They hoped to show that Oakley was the impetus behind the

commission of the offense and to portray the Petitioner as having been used by

her. Given that the Petitioner had confessed to the the crime and their motion to




                                        -6-
suppress the confession had been denied, both attorneys agreed that the best

outcome they could likely hope for was a conviction for second-degree m urder.



       The Petitioner’s trial was set for Monday, April 9, 1990. By that time, his

attorneys had already filed several pretrial motions, some of which had been

successful (such as the motion to change venue) and some of which had been

denied (such as the motion to suppress the Petitioner’s confession). Hinson and

Anderson testified that they were prepared to go to trial. They had completed

discovery and preparation of their defense and had issued subpoenas for the

trial. On April 6, 1990, Overman called the attorneys and indicated that the

Petitioner wanted to plead guilty. Overman requested that they contact the

district attorney general’s office to discuss that possibility. Hinson and Anderson

went to visit the Petitioner to confirm his wishes. They advised him not to plead

guilty. They informed him of the ranges of punishment for first-degree and

second-degree murder and explained that it would not be in his best interest to

plead guilty to first-degree murder. The Petitioner decided that he wanted to do

so anyway.



       As a result, the attorneys contacted the district attorney general’s office

and relayed the Petitioner’s intention to plead guilty. The district attorney general

agreed to recommend that the Petitioner’s sentences run concurrently. On April

9, 1990, the date originally set for trial, the Petitioner pleaded guilty to first-degree

murder, conspiracy to commit first-degree murder, and possession of a deadly

weapon with the intention to employ it in the commission of an offense. At the

guilty plea proceeding, both the Petitioner and Overman specifically noted that

his attorneys had advised him not to plead guilty. It appears that the Petitioner

                                           -7-
discussed pleading guilty with his family and came to a decision that it would be

the best thing for him to do. The Petitioner himself stated, “I’d like to say I’m

sorry for what happened and I feel like pleading guilty will take away any grief off

the family and my family and I’d like to ask for forgiveness from the Oakley family

for what’s happened.” The trial court fully advised the Petitioner of his rights and

the consequences of pleading guilty. The Petitioner, Overman, and his attorneys

discussed the guilty plea forms in a private room just outside the courtroom.

They all signed the forms before returning to court to enter the pleas.



      The record indicates that Jack Hinson had been practicing law for a year

and a half when he was retained by Helen Overman to represent the Petitioner

for the Somerville murder. He had handled several small criminal cases, some

by appointment and others by retainer. Tom Anderson had been practicing law

for nine and a half years at the time of the Petitioner’s murder arrest. He had

handled numerous criminal cases, including jury trials and guilty pleas. He and

Hinson had agreed that Anderson was to serve as lead counsel for the

Petitioner’s murder trial.



      The Petitioner testified in his own behalf at the post-conviction hearing. He

stated that he learned that his mother had hired Hinson to be his attorney in

October of 1989. A few weeks after meeting with Hinson, Anderson joined the

case. Neither Hinson nor Anderson ever spoke with him about consenting to

Anderson’s participation in the case. During discussions about the case, the

Petitioner informed his attorneys that he had been under the influence of both

alcohol and LSD at the time of the offenses. Hinson and Anderson told the

Petitioner that the influence of drugs and alcohol did not matter. The Petitioner

                                        -8-
testified that the attorneys spoke about a plea more than they ever discussed

going to trial or trial strategy. According to the Petitioner, Hinson and Anderson

advised him to plead guilty. They informed him that he would serve less time if

he pleaded guilty to first-degree murder than if he went to trial and was convicted

of second-degree murder. Hinson and Anderson told the Petitioner that the

district attorney general was asking for an eighty-year sentence and that the trial

judge usually agreed to what the prosecutor recommended. The Petitioner

testified that he was not informed about the possible minimum and maximum

sentences for his offenses. He stated that the advice given by his attorneys

played a large role in his decision to plead guilty.



      On cross-examination, the Petitioner stated that he had lied during the

guilty plea proceeding when the trial judge asked him if anyone had told him

about how much time he would serve in prison before being released.              In

addition, he had inaccurately reported the reasons for his pleading guilty. The

Petitioner also admitted that he never said that he did not want Anderson

participating in his defense.



      The Petitioner’s mother, Helen Overman, testified at the post-conviction

hearing. She stated that, in addition to the five thousand dollar ($5000) retainer

fee, she paid an additional two thousand dollars ($2000) at some later time. She

did not, however, have a receipt for this payment. Although she remembered

Anderson from the prior juvenile commitment proceeding, she simply trusted

Hinson’s judgment with regard to his association. Overman testified that she was

distracted at the time because her granddaughter was very ill. According to

Overman, Hinson and Anderson told her that if the Petitioner went to trial and

                                        -9-
was convicted he would receive an eighty-year sentence, whereas if he pleaded

guilty he would be released from prison in nine or ten years. Overman stated that

the Petitioner never expressed any desire to plead guilty before his attorneys

advised him to do so. She testified that the attorneys told her and the Petitioner

that it was in his best interest to plead guilty.



      On cross-examination, Overman admitted that she was never so

dissatisfied with the performance of Hinson and Anderson that she asked for

either of them to be taken off the case. She also admitted that she lied at the

guilty plea proceeding regarding the Petitioner’s desire to plead guilty, but stated

that she did so because of pressure exerted by the attorneys.



      Steven Britt, the Petitioner’s brother, also testified at the post-conviction

hearing. He stated that he was present during the meeting in the private room

next to the courtroom prior to the Petitioner’s entry of his guilty pleas. During that

meeting, the Petitioner’s attorneys advised him that it would be in his best interest

to plead guilty. They informed the Petitioner that if he went to trial and was

convicted, he would receive a longer prison sentence than if he pleaded guilty.



       After the hearing, the trial court denied the petition and entered written

findings of fact and conclusions of law. The order of denial indicates that the trial

court found the testimony of Hinson and Anderson to be credible. As a result, the

trial court concluded that the Petitioner acquiesced in the participation of

Anderson in his defense even though Anderson had previously served as a

special judge in a juvenile matter relating to him. The trial court further concluded

that the decision to enter guilty pleas was the Petitioner’s and that his attorneys

                                         -10-
had advised him not to plead guilty. Accordingly, the trial court denied the

petition, stating that Hinson and Anderson had provided effective assistance of

counsel. The Petitioner then appealed to this Court.



      In determining whether or not counsel provided effective assistance at trial,

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 (Tenn. 1975).       To succeed on a claim that his counsel was

ineffective at trial, a petitioner bears the burden of showing that his counsel made

errors so serious that he was not functioning as counsel as guaranteed under the

Sixth Amendment and that the deficient representation prejudiced the petitioner

resulting in a failure to produce a reliable result. Strickland v. W ashington, 466

U.S. 668, 687, reh’g denied, 467 U.S. 1267 (1984); Cooper v. State, 849 S.W .2d

744, 747 (Tenn. 1993); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). To

satisfy this second prong the petitioner must show a reasonable probability that,

but for counsel’s unreasonable error, the fact finder would have had reasonable

doubt regarding petitioner’s guilt. Strickland, 466 U.S. at 695. This reasonable

probability must be “sufficient to undermine confidence in the outcom e.” Harris

v. State, 875 S.W.2d 662, 665 (Tenn. 1994).



      When reviewing trial counsel’s actions, this court should not use the benefit

of hindsight to second-guess trial strategy and criticize counsel’s tactics. Hellard

v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors should be

judged at the time it was made in light of all facts and circumstances. Strickland,

466 U.S. at 690; see Cooper, 849 S.W .2d at 746.




                                        -11-
        This two part standard of measuring ineffective assistance of counsel also

applies to claims arising out of the plea process. Hill v. Lockhart, 474 U.S. 52

(1985). The prejudice requirement is modified so that the petitioner “must show

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.” Id. at 59.



        W e note that under the provisions of the applicable Post-Conviction

Procedure Act, a petitioner bears the burden of proving the allegations in the

petition by a preponderance of the evidence. See McBee v. State, 655 S.W.2d

191, 195 (Tenn. Crim. App. 1983). In addition, the factual findings of the trial

court are conclusive on appeal unless the evidence in the record preponderates

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



        W ith regard to the Petitioner’s first contention, that his attorneys

encouraged him to plead guilty to first-degree murder but did not correctly inform

him of the ranges of punishment of the various possible offenses, we believe that

the Petitioner has failed to establish that Hinson and Anderson’s representation

was constitutionally deficient. It is true, as the Petitioner asserts, that the trial

court at the guilty plea proceeding incorrectly advised the Petitioner that the

applicable range of punishment for second-degree murder under the law as it

existed at the time of the offenses was ten to thirty years imprisonment. 1 In fact,

the applicable range of punishment at that time was ten to thirty-five years

imprisonment. See Tenn. Code Ann. §§ 39-2-212, 40-35-109(a) (1982). It is


        1
          The trial judge informed the Petitioner of the range of punishment for second-degree murder
as part of his discussion to ensure that the Petitioner fully understood the pleas which he was seeking
to enter and their consequences. The trial judge advised the Petitioner that if he went to trial he might
be convicted of a lesser included offense, such as second-degree murder, which carried a lighter
sentence than first-degree m urder.

                                                  -12-
also true that neither Hinson nor Anderson brought the trial court’s error to the

attention of the Petitioner. Yet both Hinson and Anderson testified at the post-

conviction hearing that they had personally informed the Petitioner of the correct

ranges of punishment for all of the offenses for which the Petitioner might have

been convicted prior to the guilty plea proceeding. Of course, the Petitioner

testified that his attorneys had not informed him of the possible ranges of

punishment. After hearing the testimony and evaluating the credibility of the

witnesses, the trial judge specifically found Hinson’s and Anderson’s testimony

to be persuasive. W e cannot conclude that the evidence preponderates against

the trial court’s findings.



       Moreover, the testimony of Hinson and Anderson, accredited by the trial

court, reveals that they specifically advised the Petitioner not to plead guilty.

Pleading guilty was the Petitioner’s own decision based on his personal reasons.

The trial court’s incorrect statement of the possible range of punishment for

second-degree murder could only have made going to trial, with the potential for

a second-degree rather than first-degree murder conviction, more attractive than

if the correct range had been stated. The Petitioner elected to plead guilty

nonetheless. From our review of the record, we can only conclude that the

Petitioner has failed to demonstrate either that his attorneys provided deficient

representation in this regard or that their representation prejudiced him.

Accordingly, his first contention lacks merit.



       W ith regard to the second contention, that Hinson and Anderson were

ineffective for failing to pursue and discuss with the Petitioner a diminished

capacity type of defense based on alcohol and drug consumption, we again

                                       -13-
believe that the Petitioner has failed to establish that the performance of his

attorneys was constitutionally deficient. Hinson and Anderson testified at the

post-conviction hearing that they discussed the Petitioner’s consumption of beer

prior to the offenses but that he did not inform them of any drug use on the date

of the offenses. As far as alcohol consumption, Hinson and Anderson agreed

that the alcohol’s effect on the Petitioner’s mental state would play only a minor

role in their defense because the circumstances of the offense rebutted any

indication that the Petitioner was impaired. The facts stipulated to at the guilty

plea proceeding reveal that the offense was deliberately planned and precisely

carried out by the Petitioner. The Petitioner has offered no credible evidence to

refute those facts. From this record, we can only conclude that Hinson and

Anderson’s tactical decision that the consumption of alcohol and its effect on the

Petitioner’s mental state would play a minor role in their theory of defense was

fully supported by the facts of the case and was within the range of competence

demanded of attorneys in criminal cases. The second contention is without merit.



      W ith regard to the third contention, that Anderson was ineffective in that

he had a conflict of interest due to his service as a special judge on a prior

juvenile matter involving the Petitioner, we believe that the Petitioner has failed

to demonstrate that he was prejudiced in any way by Anderson’s representation,

regardless of his previous service as a special judge. Both Hinson and Anderson

testified at the post-conviction hearing that the Petitioner was aware of

Anderson’s prior service as a special judge and that he agreed to Anderson’s

association in the murder case. The trial court specifically found their testimony

to be credible and concluded that the Petitioner had acquiesced in Anderson’s

participation in his defense. Furthermore, as we pointed out above, the trial court

                                       -14-
found that the Petitioner had made a voluntary, personal decision to plead guilty

against the advice of his attorneys. The transcript of the guilty plea proceeding

clearly confirms Hinson’s and Anderson’s testimony, accredited by the trial court,

that they advised the Petitioner not to plead guilty. The Petitioner has not alleged

any manner in which Anderson’s prior duties as a special judge or representation

in the murder case contributed to his decision to plead guilty or that he would not

have done so had the situation been otherwise. We fail to see any prejudice

inuring to the Petitioner as a result of Anderson’s representation. The third

contention is without merit.



         For the reasons set forth in the discussion above, we conclude that the

Petitioner has failed to demonstrate that the trial court erred in denying the

petition for post-conviction relief. W e therefore affirm the judgment of the trial

court.



                                 ____________________________________
                                 DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JOHN H. PEAY, JUDGE



___________________________________
JOE G. RILEY, JUDGE




                                        -15-
