         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs December 13, 2005

                JOHN W. BREWER, III v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Davidson County
                       No. 2002-B-1184    J. Randall Wyatt, Jr., Judge



                     No. M2005-00302-CCA-R3-PC - Filed March 15, 2006


The petitioner, John W. Brewer, III, appeals from the Davidson County Criminal Court’s dismissal
of his petition for post-conviction relief from his guilty plea to second degree murder, a Class A
felony, for which he received a nineteen-year sentence. He contends that he received the ineffective
assistance of counsel, rendering his guilty plea involuntary. We affirm the judgment of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which DAVID G. HAYES and JAMES
CURWOOD WITT , JR., JJ., joined.

James O. Martin, III, Nashville, Tennessee, for the appellant, John W. Brewer, III.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
Victor S. (Torry) Johnson, III, District Attorney General; and Kathy Morante, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                              OPINION

       This case arises from the petitioner’s conviction for killing Larry Gamble during a robbery.
A Davidson County grand jury indicted the petitioner for one count of premeditated first degree
murder, one count of felony murder, two counts of especially aggravated robbery, a Class A felony,
two counts of attempted first degree murder, a Class A felony, one count of attempted especially
aggravated robbery, a Class B felony, and one count of aggravated burglary, a Class C felony.
Pursuant to a plea agreement, the petitioner entered a guilty plea on July 25, 2003, to the lesser
offense of second degree murder, a Class A felony, and all the other counts were dismissed.

       The state presented the following account of the facts of this case at the guilty plea hearing.

               [T]he state’s witnesses would be available to testify that on March the
               13th of 2002, [the petitioner], along with his co-defendant, Mr.
Giddens, went to Pappas Court with the intent of committing a
robbery. This robbery was set up by an unnamed individual, believed
to be a female and a friend of Mr. Giddens. Both [the petitioner] and
Mr. Giddens believed that drugs were being sold out of the house and
a quantity of money would be present there.

       In the early morning hours, Mr. Giddens and [the petitioner],
who concealed their faces with masks, came up to the Pappas address.
[The petitioner] was armed with a twenty-two (.22) caliber revolver.
And Mr. Giddens was armed with an automatic handgun. They
knocked on the side door. And the door was opened by one of the
victims, Kelvin Johnson. Mr. Johnson was, then, forced back into the
residence at gunpoint and into the living room, where Charles
Thomas and Larry Gamble were sleeping. All three individuals were
awoken and forced on the ground and money and drugs were
demanded of them.

        [The petitioner] was watching the scene while Mr. Giddens
began searching the victims who were lying on the ground. At that
point, Larry Gamble arose and tackled Mr. Giddens in an attempt to
thwart the robbery. At that point, [the petitioner] discharged his
weapon until it was empty, striking all three victims. Mr. Gamble
died as a result of his injuries. Mr. Thomas and Mr. Johnson were
treated at local hospitals.

        [The petitioner] fled the scene. Mr. Giddens was also shot by
one of the victims, allegedly, and remained at the scene. [The
petitioner] and Mr. Giddens had gone to the scene in Mr. Giddens’
vehicle. They had concealed the license plate with mud, in an attempt
to conceal their identity. [The petitioner], when he entered the
Pappas residence, picked up a cell phone that was there in an effort
to prevent the victims from contacting the police. After he left the
residence, after the shooting, he used that cell phone to call his
girlfriend, [Londria] Cole, and asked her to come and pick him up.
Ms. Cole did, in fact, do that and later gave a statement to the police
that she provided [the petitioner] a ride from that location to another
location and [the petitioner] indicated what had happened.

       The state was able to secure the Cricket phone records from
that phone. And those phone records did, in fact, corroborate her
testimony.




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         On March 17, 2004, the petitioner filed a pro se petition for post-conviction relief alleging
that the trial court accepted his guilty plea without first ascertaining a factual basis, that his guilty
plea was not knowingly, intelligently, and voluntarily entered, and that he received the ineffective
assistance of counsel. The trial court appointed counsel, and an amended petition for post-conviction
relief was filed alleging that the petitioner received the ineffective assistance of counsel because 1)
his counsel failed to interview a potential witness, Shelia Green, 2) his counsel failed to inform the
petitioner that allegations made by Londria Cole could be impeached with evidence of bias, 3) his
counsel failed to inform the petitioner that he could be appointed new counsel when his counsel was
appointed to a judgeship before the petitioner’s cases concluded, and 4) his counsel’s actions led the
petitioner to believe there was not a good defense and gave him “little choice but to waive his right
to a trial and plead guilty.”

        At the hearing for post-conviction relief, trial counsel testified that he was a criminal court
judge and had practiced criminal defense before becoming a judge. He said he was appointed to
represent the petitioner post-indictment and received funding to hire an investigator, Bobby Brown.
He said he talked to the petitioner at least thirty-four times before settling the case. He said he
received information in discovery that Shelia Green was a potential witness and that she would have
testified “the person she saw the evening of the incident was someone totally different from [the
petitioner].” He said he never interviewed Ms. Green but believed Mr. Brown did. He said Mr.
Brown did not prepare any written reports of his interview with Ms. Green, but he remembered
talking to Mr. Brown about it. He said he did subpoena Ms. Green for the trial. He said he talked
to the petitioner about Ms. Green’s testimony but could not remember exactly what they had talked
about.

        Counsel testified that the testimony of Londria Cole would have been “extremely damaging”
to the petitioner. He said he listened to Ms. Cole’s taped statement to police and read the police
officer’s written report of Ms. Cole’s interview, which placed the petitioner at the scene. He said
Ms. Cole told the police that the petitioner used one of the victims’ cell phones to call her and that
she used the same phone to call her cousin. He said the state provided him with the phone records
showing the calls were made. He said Ms. Cole’s testimony was the only evidence placing the
petitioner at the scene. He said Ms. Cole and the petitioner previously had a relationship, which
ended after Ms. Cole became pregnant and had an abortion. He said he talked to the petitioner about
how Ms. Cole’s negative feelings toward him could be used to impeach her testimony. He said Ms.
Cole contacted the police about this case after the petitioner and Ms. Cole had an argument and the
petitioner threatened “to get” Ms. Cole or “beat her up.” He said he did not believe showing Ms.
Cole’s bias to the jury would have been enough to win the case.

         Counsel testified that the petitioner had told him at one point during his representation, “If
you can get me anything less than twenty years, I think I’ll take that.” He said the plea was entered
the Friday before the case was set to go to trial on Monday. He said the petitioner had no reluctance
in entering the plea. He said the petitioner, in exchange for the plea agreement, spoke to the assistant
district attorneys and gave a statement which provided information about his co-defendant, Mr.
Giddens. He said he told the petitioner about his potential appointment to a judgeship but did not


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apply for the judgeship until thirteen months after he began representing the petitioner. He said the
only thing he may have said to the petitioner was that if he was appointed to a judgeship he could
not represent the petitioner anymore. He said that the plea was entered in July 2003 and that he was
not appointed criminal court judge until August 27, 2003.

        On cross-examination, counsel acknowledged accompanying the petitioner to talk with the
assistant district attorneys on the day of the plea and acknowledged the petitioner implicated both
himself and the co-defendant in this crime. He acknowledged that the petitioner had agreed to testify
for the state if needed but that the petitioner was not called as a witness in the case against the co-
defendant. He acknowledged he was aware Ms. Cole would have testified she picked the petitioner
up close to the scene of the murder, and he acknowledged telling the petitioner about this
information. He said the chance of obtaining a sentence of less than nineteen years at the trial was
“zero.”

       On re-direct examination, counsel testified that he did not interview Ms. Cole and that Mr.
Brown attempted to talk to Ms. Cole but was unsuccessful. He said that the petitioner and Mr.
Brown did not get along and that the petitioner did not think Mr. Brown was doing what needed to
be done.

        The petitioner testified that he believed Ms. Green’s testimony would contradict everything
Ms. Cole would say about the clothing he was wearing. He said Ms. Cole would have testified he
was wearing brown khaki pants and brown boots. He said Ms. Green would have said the guy she
saw had white high water pants, white tennis shoes, and was a light-skinned black man. He said he
told his counsel he thought Ms. Green was an important witness and told Mr. Brown to talk to her.
He said Mr. Brown brought him a picture of Ms. Green and told him “her real name was [Ms. Green]
and this is the woman.” He said that neither his counsel nor Mr. Brown ever told him that they had
interviewed Ms. Green.

        The petitioner testified that Ms. Cole was the main witness against him and that if his
attorney had interviewed her he would have seen she was biased and had a motive to lie. He said
his attorney did not talk to him about how they could use Ms. Cole’s testimony to their advantage.
He said that when he asked his attorney what their defense was, the attorney said, “[W]e don’t have
a defense.” He said he wanted to go to trial and had counsel interviewed Ms. Cole or investigated
his case, they would have been ready to go to trial. He said that on the day he entered the plea, his
attorney told him the state had offered him a nineteen-year sentence. He said he responded, “We
going to trial.” He said his attorney told him the trial would be Monday. He said that he asked his
attorney if he had interviewed Ms. Cole or Ms. Green and his counsel told him he had not. He said
he told his attorney to continue the case but his attorney told him he could not because “they’re not
gonna give me a continuance cause I’ve been nominated to become a judge. And, they want my case
load cleared.” He said he did not want to plead guilty and asked again to get it continued. He said
he wanted a continuance to give his attorney time to interview the witnesses and build a defense.
He said he would have agreed to new counsel representing him if he could have gone to trial. He



                                                 -4-
said he felt he had no choice but to plead guilty because his attorney told him, “Man, I don’t want
to lose you for the rest of your life. You know, you gonna get life plus fifty.”

        On cross-examination, the petitioner acknowledged Ms. Green did not witness the crime.
He acknowledged there were other eye witnesses, the two victims who survived the robbery. He
acknowledged the two victims would testify two people were involved in the murder and shootings.
He acknowledged he knew Ms. Cole would testify that he called her on one of the victims’ cell
phones, that she picked him up from the scene, and that he told her he had been involved. He said
they were all lies. He acknowledged the phone records established whoever picked up the victim’s
cell phone called his girlfriend. He said Ms. Cole’s brother made the call. He said he could not
remember the conversation he had with the assistant district attorneys when asked if he ever told
them that he did not commit the crime or that Ms. Cole was lying. He acknowledged telling the trial
court the facts presented by the state were true and correct.

         Shelia Green testified that she was “somewhat” of a witness to the homicide. She said that
on the day of the homicide, she and her former boyfriend, who was deceased at the time she testified,
had been sitting in a truck in front of her house. She said she heard a loud noise like a door being
kicked in and heard three or four gunshots. She said a man ran from the house and up the street past
their truck. She said her boyfriend said, “Hey.” She said the man stopped and looked around. She
said the man had on a black, dark hooded shirt, but she could not see who the person was. She said
the man was black with light skin and was tall and slim. She said she had never seen the petitioner
before. She said she had been subpoenaed to testify at the trial and had talked to the police but had
not been contacted by anyone else investigating the case except a female claiming to be the
petitioner’s girlfriend.

        On cross-examination, Ms. Green acknowledged that she saw someone running and could
give a general description of the man, but that she would not have been able to identify the person.
She admitted she did not know the petitioner or his co-defendant.

        In denying the petition for post-conviction relief, the trial court found that counsel adequately
investigated Ms. Green as a potential witness and was aware of her expected testimony. The trial
court found that counsel knew Ms. Cole had “feelings of ill will towards the Petitioner” and that he
explained to the petitioner that they could be used to impeach her testimony. The trial court found
that the petitioner entered a knowing and voluntary plea and that the appointment of counsel to a
judgeship had no effect on the representation provided to the petitioner. The trial court found
counsel competently advised the petitioner about the evidence against him and could not be expected
to “conjure up a defense where one is not available.”

        On appeal, the petitioner contends that the trial court erred in denying his petition for post-
conviction relief. He claims he received the ineffective assistance of counsel, which rendered his
guilty plea involuntary and unknowing. The state contends that the petitioner did not receive the
ineffective assistance of counsel and that he was informed of all his rights.



                                                  -5-
        The burden in a post-conviction proceeding is on the petitioner to prove his grounds for relief
by clear and convincing evidence. T.C.A. § 40-30-110(f). On appeal, we are bound by the trial
court’s findings of fact unless we conclude that the evidence in the record preponderates against
those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). Because they relate to mixed
questions of law and fact, we review the trial court’s conclusions as to whether counsel’s
performance was deficient and whether that deficiency was prejudicial under a de novo standard with
no presumption of correctness. Id. at 457.

        The petitioner contends that he was denied the effective assistance of counsel guaranteed by
the Sixth Amendment of the United States Constitution and article I, section 9 of the Tennessee
Constitution. He asserts the trial court’s order denying post-conviction relief contained significant
factual errors. He contends his counsel failed to investigate Ms. Green adequately. He also contends
counsel failed to inform him the allegations made by Ms. Cole could be impeached with evidence
of bias. He contends counsel did not tell him that in the event counsel was appointed to a judgeship,
the petitioner could be appointed new counsel. He contends that the acts and omissions of counsel
led him to believe a good defense did not exist and that his only choice was to plead guilty. He
asserts that if an adequate investigation had been performed, he would not have entered the guilty
plea and would have proceeded to trial.

         The state contends the petitioner failed to show that his counsel’s performance was deficient
or that he was prejudiced. The state asserts counsel was aware of what Ms. Green’s and Ms. Cole’s
testimony would be. The state asserts the petitioner failed to show counsel would have gained any
more information than he already had from the witnesses. The state says counsel explained to the
petitioner that Ms. Cole’s testimony could be impeached. It asserts the petitioner provided no proof
he was coerced by his counsel. The state contends the record supports counsel’s belief that the
petitioner had no valid defense. The state contends the trial court carefully informed the petitioner
of all his rights and reviewed the terms of the plea agreement. The state asserts the plea agreement
was favorable to the petitioner.

        Under the Sixth Amendment, when a claim of ineffective assistance of counsel is made, the
burden is on the petitioner to show that 1) counsel’s performance was deficient and 2) 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). In other words, a showing that counsel’s performance fell below a reasonable standard
is not enough; rather, the petitioner must also show that but for the substandard performance, “the
result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
The Strickland standard has been applied 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). When a petitioner
claims that the ineffective assistance of counsel resulted in a guilty plea, the 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, 474 U.S. 52, 59, 106 S.
Ct. 366, 370 (1985).


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       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. 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). Baxter, 523 S.W.2d at 936. 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, 466 U.S. at 689, 104 S. Ct. at 2065.

                  I. FAILURE TO INTERVIEW POTENTIAL WITNESS

        The petitioner asserts that neither counsel nor the investigator contacted Ms. Green about her
testimony. The petitioner also claims counsel never discussed with him Ms. Green’s potential
testimony that she had seen someone other than the petitioner leaving the scene of the crime. The
petitioner asserts the trial court denied the petition based on an interpretation of the facts wholly
inconsistent with the testimony. The state asserts counsel spoke to his investigator about Ms. Green
and was aware of her potential testimony. The state argues that counsel’s performance was not
deficient because he did subpoena Ms. Green to testify at the trial.

        When a petitioner contends that his trial counsel failed to discover, interview, or present
witnesses in support of his defense, these witnesses should be presented by the petitioner at the
evidentiary hearing. Black v. State, 794 S.W.2d 752, 757-58 (Tenn. Crim. App. 1990). This is the
only way for a petitioner to prove by clear and convincing evidence that “the failure to discover or
interview a witness inured to his prejudice” or that the failure to “call the witness to the stand
resulted in the denial of critical evidence.” Id. at 757.

       In its order denying the petition for post-conviction relief, the trial court stated:

               [Counsel] testified that Shelia Green was identified as a potential
               defense witness, and Mr. Brown was able to locate and interview her.
               [Counsel] testified that based on Mr. Brown’s report, he understood
               [Ms.] Green’s testimony to be that on the evening of the shooting, she
               heard gunshots, saw an individual running in the area, and her
               description of the individual did not match the Petitioner.

                       ....

                       The Court finds that [counsel] obtained the services of a
               private investigator, Bobby Brown, who interviewed Shelia Green as
               a potential defense witness. The Court finds that [counsel] reviewed
               the private investigator’s report of the interview with [Ms.] Green,
               and that he understood her testimony to be that she heard gunshots,


                                                 -7-
                saw an individual running in the area, and her description of the
                individual did not match the Petitioner. The Court finds that the
                entirety of [Ms.] Green’s testimony at the post-conviction hearing
                was the same as [counsel] testified that he had understood it to be.
                The Court is of the opinion that [counsel] adequately investigated
                [Ms.] Green as a potential witness for the defense, and was fully
                appraised of the substance of [Ms.] Green’s potential testimony. The
                Court is of the opinion that this ground is without merit.

        Initially, we note the trial court’s order contained factual errors. The trial court found 1) that
Mr. Brown interviewed Ms. Green, 2) that counsel reviewed Mr. Brown’s report of Ms. Green’s
interview, and 3) that counsel understood what Ms. Green’s testimony would be. The record does
not support the trial court’s finding that counsel reviewed Mr. Brown’s report. Counsel testified he
did not have any reports from Mr. Brown about an interview with Ms. Green. Also, there is
conflicting testimony about whether or not Mr. Brown interviewed Ms. Green. Ms. Green testified
she was never contacted by anyone investigating the case, but counsel testified Mr. Brown did
interview Ms. Green. Mr. Brown was not called as a witness. However, the record does support the
trial court’s finding that counsel understood what Ms. Green’s testimony would be.

        The record reflects that counsel learned about Ms. Green as a potential witness through a
police report he received in discovery and believed her testimony would have been consistent with
her statement in the police report he had received in discovery. Counsel testified that he remembered
talking to Mr. Brown about an interview with Ms. Green but said he did not have a report from the
interview. He said he expected Ms. Green to testify that “the person she saw the evening of the
incident was someone totally different from [the petitioner]” and that “she did, in fact, see someone
different, but, that’s about the extent of what she saw, someone running in the area that was
different.” When counsel was asked if he discussed Ms. Green’s testimony with the petitioner, he
responded, “I can’t specifically say what I talked with [the petitioner] about with respect to Ms.
Green. I know we talked about it, I just can’t tell you . . . with great particularity as to what we
talked about.” Based on Ms. Green’s expected testimony, he subpoenaed her to the trial.

        The petitioner acknowledged receiving information about Ms. Green in discovery and talking
to his counsel about Ms. Green, but he said neither counsel nor Mr. Brown discussed interviewing
her. He testified that he knew from discovery that Ms. Green was a potential witness and that he
believed Ms. Green’s testimony could have helped him. We conclude the petitioner has failed to
prove by clear and convincing evidence that he was prejudiced by his attorney’s failure to
investigate, and the petitioner is not entitled to relief on this issue.

II. FAILURE TO INFORM PETITIONER THAT WITNESS COULD BE IMPEACHED

        The petitioner contends counsel was ineffective for failing to inform him that Ms. Cole could
be impeached for bias. The petitioner asserts that counsel did not interview Ms. Cole. The state
asserts counsel was aware of what Ms. Cole would have testified and was aware of the petitioner and


                                                   -8-
Ms. Cole’s relationship. The state asserts counsel discussed with the petitioner that Ms. Cole’s bias
could be used to discredit her testimony. The state asserts the investigator attempted to talk to Ms.
Cole without success.

         Counsel testified that he talked to the petitioner about impeaching Ms. Cole and was aware
of the circumstances surrounding the petitioner’s and Ms. Cole’s relationship. He said Mr. Brown
attempted to contact Ms. Cole but was unsuccessful. He said he discussed with the petitioner how
Ms. Cole’s negative feelings toward the petitioner could be used to impeach her testimony at the
trial. The petitioner said they never discussed Ms. Cole’s bias, but he admitted that he knew what
Ms. Cole would say through discovery and that counsel told him that he would “make [Ms. Cole]
look like a liar.” The trial court found that counsel “fully explained to the Petitioner that [Ms.]
Cole’s testimony could be impeached by evidence of bias, and fully explained the relative weight
of such a cross examination in light of the corroborative evidence.” We conclude the petitioner has
failed to carry his burden of proving by clear and convincing evidence that his counsel’s performance
was constitutionally deficient, and the petitioner is not entitled to relief on this issue.

III. FAILURE TO INFORM PETITIONER HE COULD BE APPOINTED NEW COUNSEL

        The petitioner asserts counsel was ineffective for failing to tell him that if counsel was
appointed to a judgeship, the petitioner could be appointed new counsel. He contends counsel’s
deficient performance gave him no choice but to plead guilty. The state asserts that the petitioner
provided no proof that he was coerced by counsel and that the trial court carefully informed the
petitioner of all his rights when he entered the guilty plea.

        In the trial court’s order denying post-conviction relief, it found that counsel “competently
counseled the petitioner so that he was able to enter into the plea agreement knowingly and
voluntarily.” It also found the appointment of counsel to a judgeship, after counsel’s representation
of the petitioner had ended, had no effect on the representation.

        The record reflects the petitioner acknowledged his sentence would be nineteen years at one
hundred percent. The record also reflects petitioner acknowledged he was entering the plea
voluntarily. Although the petitioner testified he repeatedly asked counsel to get a continuance
because he wanted to go trial, the petitioner never requested a continuance from the trial court.
Instead, the petitioner told the trial court he was pleading guilty through his own voluntary decision.
At the post-conviction hearing, counsel testified that the petitioner had no reluctance entering the
guilty plea and had told him previously that if he could get a deal of less than twenty years, the
petitioner would take it. He said that in exchange for the plea deal, the petitioner spoke to the
assistant district attorneys and gave a statement which provided information about the co-defendant’s
involvement in this case. We conclude that the petitioner’s guilty plea was knowing, voluntary, and
intelligent. Therefore, the petitioner has failed to prove by clear and convincing evidence that he was
prejudiced, and he is not entitled to relief on this issue.




                                                 -9-
                         IV. ACTS AND OMISSIONS OF COUNSEL

        The petitioner contends that the counsel’s acts and omissions led him to believe that there
was not a good defense and he had no other choice but to plead guilty. He asserts that counsel failed
to inform him that Ms. Cole could be impeached with evidence of bias, that counsel failed to
interview Ms. Green, and that counsel failed to inform him that he could be appointed new counsel.
He asserts counsel’s deficient performance left him with no defense. The state contends the record
supports counsel’s belief that the petitioner had no valid defense. The state asserts counsel was
aware of what Ms. Green’s expected testimony would be and subpoenaed her to the trial. The state
asserts that counsel was also aware of Ms. Cole’s expected testimony and that his investigator had
attempted to contact Ms. Cole without success. The state contends the petitioner failed to offer any
proof at the post-conviction hearing about what counsel could have done that would have provided
him with a defense.

       In the trial court’s order denying post-conviction relief, it found that counsel

               evaluated the strengths and weaknesses of the State’s case against the
               Petitioner, using his many years of experience handling similar cases
               of a serious nature. The Court is of the opinion that [counsel] advised
               the Petitioner about the evidence against him, and his criminal
               exposure as a result of being charged with several serious felonies,
               including First Degree Murder. The Court is of the opinion that an
               attorney is charged with fully and candidly appraising the client of the
               strengths and weaknesses of the case, and not giving the client false
               hope by dressing up a weak defense or creating a frivolous defense.
               In short, a defense attorney cannot be expected to conjure up a
               defense where one is not available. The Court is of the opinion that
               [counsel] competently counseled the Petitioner so that he was able to
               enter into the plea agreement knowingly and voluntarily.

We conclude the evidence in the record does not preponderate against the trial court’s findings on
this issue. The petitioner is not entitled to relief.

                                         CONCLUSION

       Based on the foregoing and the record as a whole, we affirm the judgment of the trial court.



                                                       ___________________________________
                                                       JOSEPH M. TIPTON, JUDGE




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