         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE         FILED
                         JUNE 1998 SESSION
                                                   July 15, 1998

                                                Cecil W. Crowson
                                               Appellate Court Clerk
DEON BRADEN,                     )
                                 )    NO. 01C01-9708-CC-00351
      Appellant,                 )
                                 )    MAURY COUNTY
VS.                              )
                                 )    HON. JIM T. HAMILTON,
STATE OF TENNESSEE,              )    JUDGE
                                 )
      Appellee.                  )    (Post-Conviction)



FOR THE APPELLANT:                    FOR THE APPELLEE:

HERSHELL D. KOGER                     JOHN KNOX WALKUP
131 North First Street                Attorney General and Reporter
P.O. Box 1148
Pulaski, TN 38478                     LISA A. NAYLOR
                                      Assistant Attorney General
                                      Cordell Hull Building, 2nd Floor
                                      425 Fifth Avenue North
                                      Nashville, TN 37243-0493

                                      T. MICHAEL BOTTOMS
                                      District Attorney General

                                      STELLA L. HARGROVE
                                      Assistant District Attorney General
                                      10 Public Square
                                      P.O. Box 1619
                                      Columbia, TN 38402-1619




OPINION FILED:



REMANDED



JOE G. RILEY,
JUDGE
                                      OPINION



       The petitioner, Deon Braden, appeals the trial court's denial of his petition

for post-conviction relief. He alleges his original guilty plea was involuntary and

trial counsel rendered ineffective assistance by failing to inform him of the

potential sentence he could receive. After a thorough review of the record, we

REMAND to the trial court with instructions to enter findings of fact and

conclusions of law. Alternatively, if the trial court is unable to make findings of

fact due to the passage of time, a new hearing should be held.



                                           I.



       The petitioner pled guilty on April 27, 1994, to one (1) count of aggravated

assault, one (1) count of attempted aggravated assault and two (2) counts of

possession of cocaine for resale. He was given an effective sentence of fifteen

(15) years to be served consecutively with an earlier sentence for which the

petitioner was on probation at the time of the instant offenses.



       The petitioner filed a petition for post-conviction relief on August 3, 1995.

A hearing on the petition was held on September 13, 1996. The testimony at the

hearing was conflicting as to whether counsel made the petitioner aware of the

potential sentences he faced upon pleading guilty. At the conclusion of the post-

conviction hearing, the trial court stated, “All right. I’m going to read this

transcript, and I’ll get an order out.” No order was entered. On July 24, 1997,

the petitioner filed a motion for clarification of judgment. A hearing was held

August 5, 1997, on the motion to clarify. The trial court ruled at the conclusion of

that hearing, “All right. I’m going to overrule the PCR and dismiss it. Draw me

an order.” The trial court then entered a form judgment which stated in pertinent

part, “This PCR has no merit and is denied and dismissed.” There were no

findings by the trial court.


                                           2
                                          II.



       The transcript of the guilty plea reveals that the trial court did not advise

the petitioner of the range of punishment for the offenses to which he pled as

required by Tenn. R. Crim. P. 11(c)(1). However, this obligation of the trial court

is not constitutionally based and cannot provide the basis for post-conviction

relief. Sneed v. State, 942 S.W.2d 567, 568 (Tenn. Crim. App. 1996).

Nevertheless, counsel should advise a person pleading guilty as to the range of

punishment he or she faces. A failure to do so should be considered in

determining whether the person received effective assistance of counsel.



                                          III.



       This Court reviews a claim of ineffective assistance of counsel under the

standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The

petitioner has the burden to prove that (1) the attorney’s performance was

deficient, and (2) the deficient performance resulted in prejudice to the defendant

so as to deprive him of a fair trial. Strickland v. Washington, 466 U.S. at 687,

104 S.Ct. at 2064; Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Overton v.

State, 874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State, 789 S.W.2d 898, 899

(Tenn. 1990).



       In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the

Supreme Court applied the two-part Strickland standard to ineffective assistance

of counsel claims arising out of a guilty plea. The Court in Hill modified the

prejudice requirement by requiring a defendant to 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. 474 U.S. at 59, 106 S.Ct. at 370.




                                           3
                                         IV.



       The trial judge's findings of fact on post-conviction hearings are conclusive

on appeal unless the evidence preponderates otherwise. Butler v. State, 789

S.W.2d 898, 899 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 341 (Tenn.

Crim. App. 1995). However, in the instant case, there are no findings of fact for

this Court to review. The petitioner claims he was not informed by his attorney of

the possible sentences and would have proceeded to trial if he had been so

informed. The petitioner’s attorney testified he could not remember what he

advised the petitioner.



                                   CONCLUSION



       This case is, therefore, remanded for the trial court to set forth written

findings of fact and conclusions of law, pursuant to Tenn. Code Ann. § 40-30-

211(b), regarding the petitioner’s claim of ineffective assistance of counsel.

Alternatively, should the trial court find itself unable to make findings of fact due

to the passage of time, a new hearing should be conducted.




                                                  _________________________
                                                  JOE G. RILEY, JUDGE



CONCUR:

                                          4
________________________________
CURWOOD WITT, JUDGE




________________________________
LEE MOORE, SPECIAL JUDGE




                               5
