            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON         FILED
                             APRIL 1997 SESSION
                                                     September 17, 1997

                                                      Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk
ROBERT E. PARKER,                     )   NO. 02C01-9605-CR-00143
                                      )
      Appellant                       )   SHELBY COUNTY
                                      )
V.                                    )   HON. JOSEPH B. DAILEY, JUDGE
                                      )
STATE OF TENNESSEE,                   )   (Post-Conviction)
                                      )
      Appellee                        )


FOR THE Appellant                         FOR THE APPELLEE

Thomas C. Fila                            John Knox Walkup
One Memphis Place                         Attorney General and Reporter
200 Jefferson Avenue, Suite 1025          450 James Robertson Parkway
Memphis, Tennessee 38103                  Nashville, Tennessee 37243-0493

                                          Clinton J. Morgan
                                          Assistant Attorney General
                                          450 James Robertson Parkway
                                          Nashville, Tennessee 37243-0493

                                          John W. Pierotti
                                          District Attorney General
                                          201 Poplar Avenue
                                          Memphis, Tennessee 38103-1947

                                          David Henry
                                          Assistant District Attorney General
                                          201 Poplar Avenue
                                          Memphis, Tennessee 38103-1947




OPINION FILED:______


AFFIRMED


William M. Barker, Judge
                                          Opinion

       The appellant, Robert E. Parker, appeals as of right the judgment of the Shelby

County Criminal Court dismissing his petition for post-conviction relief. He argues on

appeal that the trial court erred in finding that he received the effective assistance of

counsel. He contends that the trial court was in error because his trial counsel failed to

conduct an adequate investigation, failed to adequately and effectively confer with him

prior to trial, and failed to secure the attendance at trial of two witnesses the appellant

believed favorable to his defense. Following our review of the record on appeal, we

find no reversible error and affirm the trial court’s dismissal of the post-conviction

petition.

       On July 9, 1991, a robbery occurred at Butler’s Sundry in Memphis,

Tennessee. During the course of the robbery, Gloria Butler was shot and injured and

approximately seven hundred dollars ($700.00) was stolen by two assailants. After

the robbery, Ms. Butler identified the appellant through a photographic lineup as one

of the two robbers, and he was arrested soon thereafter. Following his arrest, the

appellant gave a statement to the police admitting that he had participated, along with

a co-defendant, in the robbery. Before trial, the appellant’s attorney moved to

suppress the appellant’s confession, but the motion was overruled following an

evidentiary hearing.

       At trial, Gloria Butler positively identified the appellant as one of the robbers.

Additionally, the State introduced the appellant’s confession. The jury thereafter

convicted the appellant of especially aggravated robbery. He was sentenced to a term

of thirty years imprisonment as a Range II offender. He appealed his conviction to this

court and we affirmed. State v. Robert Parker, C.C.A. No. 02C01-9307-CR-00138

(Tenn. Crim. App., Jackson, July 13, 1994). No application for permission to appeal

was filed in our supreme court. However, on September 7, 1994, the appellant filed a

pro se post-conviction relief petition alleging that he received ineffective assistance of



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counsel. The post-conviction court appointed counsel to represent the appellant, an

amended petition was filed, and an evidentiary hearing was conducted.

       The only two witnesses to testify at the evidentiary hearing were the appellant

and his former counsel. The appellant testified that he was housed in the Shelby

County Jail from the time of his arrest awaiting trial and that counsel’s visits to him

were infrequent and not productive. He said that no rapport developed between him

and his counsel and that she would not file pretrial motions which he suggested.

However, he failed to specify the nature of any motions he requested or that he was

prejudiced thereby. Additionally, he testified that he furnished his counsel the names

of two witnesses he thought favorable to his defense, but neither of them was called to

testify on his behalf at trial. Although he offered no specifics, he generally felt that his

trial counsel had inadequately investigated his case.

       The State called the appellant’s trial counsel as a witness. She testified that

she is employed by the Shelby County Public Defender’s office and that office had

represented the appellant initially in the general sessions court, then the trial court,

and finally on his appeal to this court. She was assigned to represent the appellant

following his indictment in the criminal court, and she met with him on numerous

occasions. She testified that investigators from the public defender’s office had

interviewed all of the witnesses for the State and that she had been given access to

the entire file of the prosecutor for review. She further testified that she inquired of the

appellant on two occasions concerning any witnesses that he desired on his behalf at

trial, and on both occasions he indicated that he had none. On one such occasion, he

placed his initials in his counsel’s file indicating that he desired that no witnesses be

subpoenaed.

       Appellant’s counsel also testified that she filed a motion to suppress his

confession and that the trial court had overruled the motion following an evidentiary

hearing. It was her view that with the eyewitness identification and the appellant’s

confession, there was a strong likelihood that the appellant would be convicted and

                                             3
sentenced as a Range II offender if he went to trial. Accordingly, she negotiated a

proposed plea bargain agreement with the State which would have allowed the

appellant to receive a twenty year sentence as a Range I standard offender upon his

plea of guilty. The appellant rejected the plea bargain offer and insisted upon trial.

       Following the evidentiary hearing, the trial court entered an order finding that

the appellant’s counsel had provided him with “excellent representation,” both before

and during his trial. Accordingly, the trial court dismissed the petition for post-

conviction relief.

       In reviewing an appellant’s Sixth Amendment claim of ineffective assistance of

counsel, this Court must determine whether the advice given or services rendered by

the attorney are within the range of competency demanded of attorneys in criminal

cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a claim of

ineffective assistance of counsel, a petitioner “must show that counsel’s

representation fell below an objective standard of reasonableness” and that this

performance prejudiced the defense. There must be a reasonable probability that but

for counsel’s error, the result of the proceeding would have been different. Strickland

v. Washington, 466 U.S. 668, 687-88, 692, 694, 104 S. Ct. 2052, 2064, 2067-68, 80 L.

Ed. 2d 674 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985). The

evidence introduced at the post-conviction hearing clearly supports the trial court’s

finding that appellant’s trial counsel investigated his case sufficiently. An investigator

from the public defender’s office interviewed the State’s potential witnesses. The

appellant’s counsel obtained the State’s entire file in discovery and reviewed it. She

also, on at least two occasions, asked the appellant if he could think of any witnesses

to call in his defense, but he responded in the negative. The appellant’s trial counsel

filed and presented a motion to suppress his confession.

       At the post-conviction hearing, the appellant claimed that two witnesses, whose

testimony would have exonerated him, should have been called to testify at trial.

However, the testimony of those witnesses was not presented at the post-conviction

                                             4
hearing, and we may not speculate on the substance of their testimony. See Black v.

State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).

       The findings of fact by a trial court following an evidentiary hearing on a petition

for post-conviction relief are afforded the weight of a jury verdict, and this Court will not

set aside the trial court’s judgment unless the evidence contained in the record

preponderates against those findings. See State v. Adams, 859 S.W.2d 359, 361

(Tenn. Crim. App. 1992); State v. Killebrew, 760 S.W.2d 228, 233 (Tenn. Crim. App.

1988). The trial court determined that the defendant was not denied his constitutional

right to the effective assistance of counsel, and the evidence in the record on appeal

does not preponderate against those findings. Accordingly, the trial court is affirmed.




                                                  WILLIAM M. BARKER, JUDGE


CONCUR:




JOSEPH M. TIPTON, JUDGE




DAVID G. HAYES, JUDGE




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