             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE                 FILED
                          MARCH 1998 SESSION
                                                             May 5, 1998

                                                         Cecil W. Crowson
NATHAN L. DRAPER,            )                          Appellate Court Clerk
                             )
             Appellant,      )    No. 01C01-9706-CR-00225
                             )
                             )     Davidson County
v.                           )
                             )     Honorable Seth Norman, Judge
                             )
STATE OF TENNESSEE,          )     (Post-Conviction)
                             )
             Appellee.       )


For the Appellant:                For the Appellee:

Brent Owen Horst                  John Knox Walkup
42 Rutledge Street                Attorney General of Tennessee
Nashville, TN 37201                      and
                                  Clinton J. Morgan
                                  Assistant Attorney General of Tennessee
                                  450 James Robertson Parkway
                                  Nashville, TN 37243-0493

                                  Victor S. Johnson, III
                                  District Attorney General
                                          and
                                  Roger Moore
                                  Assistant District Attorney General
                                  Washington Square, Suite 500
                                  222 2nd Avenue North
                                  Nashville, TN 37201-1649




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                       OPINION



              The petitioner, Nathan L. Draper, appeals as of right from the Davidson

County Criminal Court’s denial of post-conviction relief. He is presently in the custody

of the Department of Correction serving a Range I sentence of ten years for his 1994

conviction upon a guilty plea for aggravated robbery, a Class B felony. The petitioner

contends that he received the ineffective assistance of counsel resulting in his guilty

plea not being entered knowingly and voluntarily. He argues that his trial counsel failed

to discuss possible trial strategy with him and failed to advise him that his ten-year

sentence would run consecutively to a sentence he was serving on parole when he

committed the present offense. We affirm the trial court’s denial of post-conviction

relief.



              The record reflects that the petitioner and a codefendant were originally

charged with especially aggravated robbery, a Class A felony. The petitioner pled guilty

to the offense of aggravated robbery for an agreed Range I sentence of ten years.



              At the post-conviction hearing, the petitioner testified that his counsel

discussed the case with him only when he appeared in court. He conceded that his

counsel told him that the victim could not identify him from a lineup. The petitioner

stated that although his counsel told him that the codefendant and the codefendant’s

girlfriend had given the police a statement implicating the defendant, counsel did not

discuss the details of the statements, whether the codefendant had been given a plea

offer, or whether counsel conducted an independent investigation. The petitioner said

that counsel did not tell him that the robbery occurred six hours before he was arrested

for possession of the victim’s stolen credit cards. He admitted that counsel discussed

with him how the codefendant’s credibility could be attacked. The petitioner testified




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that counsel did not discuss any trial strategies and that he would not have pled guilty if

trial strategy had been discussed with him.



              Regarding the nature of the plea, the petitioner testified that he believed

that the sentence was to be served concurrently with a sentence for which he was on

parole when the robbery occurred. He said that counsel told him that he would be

released in no more than three years. He stated that he would not have pled guilty had

he known that his sentences would be served consecutively or that he would not be

released in approximately three years.



              On cross-examination, the petitioner conceded that his constitutional

rights were carefully explained to him by the trial court before he entered the guilty plea.

He acknowledged that the trial court explained the elements of the charged offense and

that he stated that he understood. He also acknowledged that the court asked him

whether the evidence against him had been explained to him and he said that it had.

The petitioner testified that the trial court explained the sentencing ranges and the

possible fines for especially aggravated robbery and aggravated robbery. The

defendant admitted that he stated at the guilty plea hearing that counsel had consulted

with him before entering the plea and that he was satisfied with counsel’s

representation. He said that he was aware that he could have received a much greater

sentence because he had several prior felony convictions, including theft of a car,

receiving stolen property, aggravated robbery, assault with the intent to commit robbery,

breaking into a vehicle, and selling a controlled substance. He stated that he

understood that especially aggravated robbery was a more severe crime than

aggravated robbery, the offense to which he pled guilty.



              The petitioner acknowledged that the trial court ruled against the motion to

suppress filed by counsel, finding that a gun, ski mask, and the victim’s credit cards



                                              3
located in the defendant’s car were seized pursuant to a search to which the petitioner

consented. He also acknowledged that he was aware that the codefendant and his

girlfriend were in the car with him when he was stopped by the police. However, the

petitioner claimed that counsel could have investigated the scene, given him the

victim’s initial report, given him the statements of the witnesses, reviewed the

statements of the codefendant and his girlfriend, and visited him in jail.



              The petitioner’s counsel testified that he negotiated a plea for aggravated

robbery and a Range I sentence of ten years. He stated that the petitioner was at least

a Range II, multiple offender. He said that he had focused on negotiating a plea. The

petitioner’s counsel testified that he spoke to both the petitioner and the prosecutor at

each of the eight court appearances. He believed that the state had a very strong case

against the petitioner, though consisting of circumstantial evidence. He expressed the

opinion that the defendant would be convicted if he went to trial and would receive a

sentence as a Range II offender.



              The petitioner’s counsel testified that he learned of the evidence against

the petitioner by reviewing the state’s file with the prosecutor’s permission. He said that

he reviewed several documents, including an extensive police case report, medical

records, and statements. He stated that his investigation revealed that the victim was

attacked by a black male wearing a ski mask over his face and carrying a handgun. It

showed that the victim was beaten and robbed, requiring that she be taken to the

hospital to receive treatment. The petitioner’s counsel testified that he learned that later

that evening, the defendant, the codefendant, and the codefendant’s girlfriend were

stopped at a market in east Shelby County because they were trying to purchase items

with the credit cards stolen from the victim. He stated that all three were arrested, and

the codefendant informed the police that there was a secret compartment under the

dash behind the glove compartment of the defendant’s car in which the three were



                                             4
riding. He said that after obtaining the defendant’s consent to search the car, the

officers found in the secret compartment two ski masks and a pistol consistent with

those used during the robbery. The petitioner’s counsel testified that the codefendant

and his girlfriend then gave a statement implicating the petitioner. He said that he also

learned that there were no other witnesses to the crime and that the victim was unable

to identify the petitioner as the robber. He stated that he sent the petitioner a

memorandum and, at one point, a complete copy of his file.



              The petitioner’s counsel testified that he filed a motion to suppress the

evidence seized pursuant to the search of the defendant’s car, but the motion was

denied. He said that the defendant never provided an alibi or names of witnesses to be

interviewed. The petitioner’s counsel stated that he was aware that the petitioner had

violated his parole conditions, but he did not recall discussing the effect of the

petitioner’s parole violation if he entered a guilty plea. He said that he fully explained to

the petitioner his eligibility for release, including that the ultimate decision to release the

petitioner rested with the Board of Paroles and that the release eligibility could be

adjusted downward because of prison overcrowding. He testified that he told the

petitioner that it was not guaranteed that he would be released when he had served

thirty percent of his sentence. The petitioner’s counsel admitted that the petitioner was

reluctant to plead guilty because the petitioner believed that the circumstantial evidence

was not sufficient for a conviction.



              On cross-examination, the petitioner’s counsel testified that he could not

remember whether he talked to the petitioner about an alternate theory if he proceeded

to trial. He admitted that it was possible that the codefendant committed the robbery

because he was a passenger in the car. He conceded that there was no evidence

linking the gun and the mask to the crime. The petitioner’s counsel testified that he did

not interview the codefendant, the codefendant’s girlfriend or the victim. He also



                                               5
conceded that he did not sign the guilty plea submission form certifying that he had

explained the plea to the petitioner. The petitioner’s counsel believed that he was

successful in plea negotiations because there was some question as to whether the

injuries suffered by the victim constituted serious bodily injury.



              The trial court denied the petitioner post-conviction relief. It held that the

petitioner failed to show that he received the ineffective assistance of counsel. It found

that the petitioner discussed with his counsel the facts of the case before entering the

plea. The trial court also found that the trial court was extremely thorough in explaining

to the defendant his rights before accepting his plea.



              On appeal, the petitioner challenges his convictions based upon claims

that he received ineffective assistance of counsel that caused him to enter unknowing

and involuntary guilty pleas. Under the Sixth Amendment, when a claim of ineffective

assistance of counsel is made, the burden is upon the petitioner to show (1) that

counsel's performance was deficient and (2) that the deficiency was prejudicial in terms

of rendering a reasonable probability that the result of the trial was unreliable or the

proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S.

Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838,

842-44 (1993). The Strickland standard has been applied, as well, to the right to

counsel under Article I, Section 9 of the Tennessee Constitution. State v. Melson, 772

S.W.2d 417, 419 n.2 (Tenn. 1989). Relative to a claim that the ineffective assistance of

counsel resulted in an invalid guilty plea, a petitioner must prove that counsel performed

deficiently and that but for counsel’s errors, the petitioner would not have pled guilty and

would have insisted upon going to trial. Hill v. Lockhart, 464 U.S. 52, 59, 106 S. Ct.

366, 370 (1985).




                                              6
                In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court

decided that attorneys should be held to the general standard of whether the services

rendered were within the range of competence demanded of attorneys in criminal

cases. Further, the court stated that the range of competence was to be measured by

the duties and criteria set forth in Beasley v. United States, 491 F.2d 687, 696 (6th Cir.

1974) and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also,

in reviewing counsel's conduct, a "fair assessment of attorney performance requires

that every effort be made to eliminate the distorting effects of hindsight, to reconstruct

the circumstances of counsel's challenged conduct, and to evaluate the conduct from

counsel's perspective at the time." Strickland v. Washington, 466 U.S. at 689, 104 S.

Ct. at 2065; see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982) (counsel's conduct will

not be measured by "20-20 hindsight"). Thus, the fact that a particular strategy or tactic

failed or even hurt the defense does not, alone, support a claim of ineffective

assistance. Deference is made to trial strategy or tactical choices if they are informed

ones based upon adequate preparation. See Hellard, 629 S.W.2d at 9; DeCoster, 487

F.2d at 1201.



                The burden was on the petitioner in the trial court to prove his allegations

that would entitle him to relief by clear and convincing evidence. T.C.A. § 40-30-210(f).

On appeal, we are bound by the trial court’s findings unless we conclude that the

evidence preponderates against those findings. Black v. State, 794 S.W.2d 752, 755

(Tenn. Crim. App. 1990). The petitioner has the burden of illustrating how the evidence

preponderates against the judgment entered. Id.



                In this case, the petitioner has failed to meet his burden of showing that

the evidence preponderates against the judgment entered with respect to either of his

claims of ineffective assistance of counsel. First, the petitioner argues that trial counsel

was ineffective for failing to discuss any trial strategy with the petitioner. He argues that



                                              7
the most obvious defense available to the petitioner that should have been discussed

with him was that the codefendant actually committed the robbery without the

petitioner’s knowledge and that the codefendant and his girlfriend implicated the

petitioner to avoid prosecution. At the post-conviction hearing, the petitioner’s counsel

testified that the state had a very substantial case against the petitioner. He believed

that the petitioner would have been convicted and would have received a greater

sentence if he went to trial. He said that as a result he focused on plea negotiations.

As acknowledged by the petitioner at the post-conviction hearing and on appeal, his

trial counsel negotiated a very favorable plea bargain. We do not use the benefit of

hindsight to second-guess trial strategy by counsel and criticize trial counsel’s tactical

decisions. Hellard, 629 S.W.2d at 9. The petitioner has failed to demonstrate deficient

performance by counsel.



              The petitioner also has failed to establish that counsel was ineffective by

failing to advise the petitioner the effect of his parole violation upon his sentence. This

claim is not supported by the record. Though the petitioner claimed that trial counsel

told him that his sentences would run concurrently, the petitioner’s trial counsel testified

that he did not remember discussing the effect of the petitioner’s parole violation on the

sentence imposed. Also, the petitioner’s trial counsel stated that he explained his

eligibilty for release and told him that it was not guaranteed that he would be released in

three years as the decision to release the petitioner ultimately rested with the Board of

Paroles. The trial court obviously accredited the testimony of the petitioner’s trial

counsel. In this respect, this court has held that trial counsel is not ineffective for failing

to inform the petitioner that a guilty plea could lead to revocation of parole and the

imposition of consecutive sentencing. Bailey v. State, 924 S.W.2d 918, 918-19 (Tenn.

Crim. App. 1995).




                                               8
               In consideration of the foregoing and the record as a whole, the judgment

of the trial court is affirmed.




                                         Joseph M. Tipton, Judge



CONCUR:




David H. Welles, Judge




Joe G. Riley, Judge




                                            9
