             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE                 FILED
                          NOVEMBER 1997 SESSION
                                                          December 18, 1997

                                                          Cecil W. Crowson
HARVEY STANLEY BURNS,         )                          Appellate Court Clerk
                              )
             Appellant,       )    No. 01C01-9612-CR-00515
                              )
                              )     Davidson County
v.                            )
                              )     Honorable Seth Norman, Judge
                              )
STATE OF TENNESSEE,           )     (Post-Conviction)
                              )
             Appellee.        )


For the Appellant:                 For the Appellee:

Deanna Bell Johnson                John Knox Walkup
211 Third Avenue, North            Attorney General of Tennessee
Nashville, TN 37201                       and
                                   Daryl J. Brand
                                   Assistant Attorney General of Tennessee
                                   450 James Robertson Parkway
                                   Nashville, TN 37243-0493

                                   Victor S. Johnson, III
                                   District Attorney General
                                           and
                                   Jim Milam
                                   Assistant District Attorney General
                                   Washington Square
                                   222 2nd Avenue North
                                   Nashville, TN 37201-1649



OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                        OPINION



              The petitioner, Harvey Stanley Burns, appeals as of right from the

judgment of the Davidson County Criminal Court denying him post-conviction relief from

his October 1995 conviction for the sale of cocaine, a Class C felony. The petitioner

pled guilty pursuant to an agreement by which he was sentenced to ten years in the

custody of the Department of Correction as a Range III, persistent offender. He

contends that he received the ineffective assistance of counsel and that his sentence

constitutes cruel and unusual punishment. We disagree.



              The petitioner was represented by two assistant public defenders during

his prosecution. At the post-conviction evidentiary hearing, the petitioner testified that

his attorneys failed to submit his medical and psychiatric records to the court, which

would show his drug abuse problem. He believed that the records would have led to a

lesser sentence. He also stated that the attorneys did not investigate the case

adequately and that they were prejudiced against him because of his prior record and

the videotape that the police made of the transaction. The petitioner had prior

convictions for six robberies, a voluntary manslaughter, and an aggravated assault.



              The petitioner testified that he had been under a lot of pressure because

his mother was ill and that the attorneys did not give him enough time to think about the

plea offer. He admitted being aware of the terms of the plea the night before he pled

guilty. Also, he claimed that one attorney incorrectly advised him that he would be

eligible for parole after serving two years, including his sixteen months of pretrial jail

credit. He acknowledged, though, that a parole hearing was scheduled for August 15,

1996.




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              One of the petitioner’s attorneys testified. He said that they got the

petitioner’s medical records reviewed by experts, but the result was that the petitioner

was deemed competent and sane. The records showed the petitioner to be marginally

retarded and this was reported to the prosecutor during negotiations. The attorney

stated that the petitioner had been offered seven years as a Range II, multiple offender,

but he had refused to accept it in order that he could remain available at that time for

his ailing mother. At one point, the state offered fifteen years, but the final offer was ten

years. The attorney believed that the petitioner had been eligible for career offender

status with a higher sentence exposure.



              The attorneys reviewed the videotape with the petitioner. It showed the

petitioner passing something to an undercover officer. Testing proved that the

substance contained cocaine. The attorney testified that they interviewed the two

officers involved in the case and reviewed the petitioner’s former convictions to see if

they all could count toward range enhancement. They could. Also, the attorney

testified that he was present when his co-counsel explained to the petitioner that the

petitioner might be eligible for parole within a year after his guilty plea.



              The trial court concluded that the petitioner received the effective

assistance of counsel, as to both the attorneys’ performances and the lack of prejudice

to the petitioner being shown. It also concluded that the petitioner knowingly and

intelligently pled guilty, noting that he received the minimum sentence for the range that

was used. The trial court made no specific ruling about the claim that the sentence was

cruel and unusual punishment, but it dismissed the petition.



              In a post-conviction case, the petitioner must prove his grounds for relief

by clear and convincing evidence. T.C.A. § 40-30-210(f). To establish counsel

ineffectiveness, the petitioner must show that counsel’s performance was deficient and



                                               3
that the deficiency resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2052, 2064 (1984). Relative to a claim that a guilty plea resulted from the

ineffective assistance of counsel, the petitioner must show that but for counsel’s errors

he 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). Relative to our review on

appeal, the factual findings of the trial court are deemed conclusive unless the evidence

of record preponderates against them. Cooper v. State, 849 S.W.2d 744, 746 (Tenn.

1993).



              Although the trial court failed to make detailed findings of fact, it is

apparent from its ruling that the attorney’s testimony was accredited In any event, the

record fails to show any prejudice had befallen the petitioner that would warrant relief.

He had rejected a more lenient plea offer because of his own personal reasons. As the

state points out, he could have been sentenced as a career offender, which would have

required a fifteen-year sentence with release eligibility at sixty percent. See T.C.A. §§

40-35-108(a) and (c), 40-35-501(f). There is no indication that presenting the medical

records to the court would have made any difference. His sentence to the minimum of

a lesser range reflects that the petitioner received effective representation.



              As for the petitioner’s complaint that his attorney advised him that he

would be eligible for parole approximately eight months after he pled guilty, we note that

the parole hearing was to occur approximately ten months after the plea. Moreover, the

petitioner never asserted that such a small difference in time would have led him to

insist upon going to trial. The record before us supports the trial court’s conclusion that

the petitioner received the effective assistance of counsel.



              The petitioner contends that his ten-year sentence with a forty-five percent

release eligibility date -- as required by the 1989 Sentencing Act for a Class C felon



                                              4
who is a Range III, persistent offender -- constitutes cruel and unusual punishment

under the Eighth Amendment to the United States Constitution and Article 1, Section 16

of the Tennessee Constitution. He provides neither authority for his position nor

argument regarding how the sentence is improper. Although we deem this issue to be

waived, we view it to be without merit, as well. See State v. Black, 815 S.W.2d 166,

189 (Tenn. 1991) (providing standard for determining propriety of punishment under

Article I, Section 16 of Tennessee Constitution); Harmelin v. Michigan, 501 U.S. 957,

994-95, 111 S. Ct. 2680, 2701 (1991) (mandatory life sentence for possession of more

than six hundred fifty grams of cocaine not cruel and unusual punishment); State v.

Hinsley, 627 S.W.2d 351 (Tenn. 1982) (determinate sentence of not less than ten years

nor more than life for habitual drug offender not cruel and unusual punishment); State

v. Dock Battles, No. 02C01-9212-CR-00294, Shelby County (Tenn. Crim. App. Sept.

30, 1996), app. denied (Tenn. Jan. 27, 1997) (ten years for Range I, Class B cocaine

felon with substantial record of prior criminal behavior and convictions not cruel and

unusual punishment).



             In consideration of the foregoing, the judgment of the trial court is

affirmed.



                                                ______________________________
                                                Joseph M. Tipton, Judge

CONCUR:



_________________________
John H. Peay, Judge



_________________________
David H. Welles, Judge




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