         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                         AT NASHVILLE         FILED
                       JUNE 1998 SESSION
                                              September 3, 1998

                                              Cecil W. Crowson
                                             Appellate Court Clerk
JOHN RUCKER,                   )
                               )    NO. 01C01-9709-CR-00411
      Appellant,               )
                               )    DAVIDSON COUNTY
VS.                            )
                               )    HON. J. RANDALL WYATT, JR.,
STATE OF TENNESSEE,            )    JUDGE
                               )
      Appellee.                )    (Post-Conviction)



FOR THE APPELLANT:                  FOR THE APPELLEE:

DWIGHT E. SCOTT                     JOHN KNOX WALKUP
4024 Colorado Avenue                Attorney General and Reporter
Nashville, TN 37209
                                    TIMOTHY F. BEHAN
                                    Assistant Attorney General
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    VICTOR S. JOHNSON, III
                                    District Attorney General

                                    KATRIN NOVAK MILLER
                                    Assistant District Attorney General
                                    Washington Square, Suite 500
                                    222 Second Avenue, North
                                    Nashville, TN 37201-1649




OPINION FILED:



AFFIRMED



LEE MOORE,
SPECIAL JUDGE
                                      OPINION



        The petitioner, John Rucker, appeals the dismissal of his petition for post-

conviction relief. On March 30, 1995, petitioner entered a best interest plea of guilty

to two (2) counts of second degree murder, one (1) count of especially aggravated

robbery and one (1) count of especially aggravated kidnaping.



        On April 1, 1996, the petitioner filed a petition for post-conviction relief. A

second petition for post-conviction relief was filed on July 8, 1996. A post-conviction

hearing was conducted on April 7, 1997. The trial court denied the petition for post-

conviction relief on April 22, 1997. A notice of appeal was timely filed on April 30,

1997.



        After a review of the post-conviction record on appeal and the applicable

law, we affirm the judgment of the trial court.



                             PROCEDURAL HISTORY



        In July of 1992, petitioner was indicted for six (6) separate felony counts

including two (2) counts of first degree murder, two (2) counts of felony murder, one

(1) count of especially aggravated robbery, and one (1) count of especially

aggravated kidnaping. Petitioner was later indicted for aggravated rape relating to

the same criminal episode. On March 30, 1995, petitioner entered a best interest

plea of guilty to two (2) counts of second degree murder, one (1) count of especially

aggravated robbery and one (1) count of especially aggravated kidnaping. The

petitioner received four (4) consecutive fifteen (15) year sentences for a total

effective sentence of sixty (60) years. The aggravated rape charge was dismissed

under the plea agreement.



        On April 1, 1996, the defendant filed a petition for post-conviction relief. A


                                           2
second petition was filed on July 8, 1996. A hearing on the petition was conducted

on April 7, 1997. The petitions for post-conviction relief were denied by order

entered on April 22, 1997. The defendant timely filed his notice of appeal on April

30, 1997.



       The defendant raised three (3) issues on appeal as follows:

       1.     Was appellant's guilty plea made understanding the nature and

elements of the offenses and the consequences of his plea?

       2.     Was the plea voluntary or obtained by way of threats, intimidation or

coercion?

       3.     Was appellant provided with ineffective assistance of counsel?



               POST-CONVICTION - STANDARDS FOR REVIEW



       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). The trial court's findings of fact are afforded the weight of a jury

verdict, and this Court is bound by the trial court's findings unless the evidence in

the record preponderates against those findings. Henley v. State, 960 S.W.2d 572,

578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997);

Dixon v. State, 934 S.W.2d 69, 72 (Tenn. Crim. App. 1996). This Court may not

reweigh or reevaluate the evidence, nor substitute its inferences for those drawn by

the trial judge. Henley v. State, 960 S.W.2d at 578-79; Massey v. State, 929

S.W.2d 399, 403 (Tenn. Crim. App. 1996); Black v. State, 794 S.W.2d 752, 755

(Tenn. Crim. App. 1990). Questions concerning the credibility of witnesses and the

weight and value to be given to their testimony are resolved by the trial court, not

this court. Henley v. State, 960 S.W.2d at 579; Black v. State, 794 S.W.2d at 755.

The burden of establishing that the evidence preponderates otherwise is on

petitioner. Henley v. State, 960 S.W.2d at 579; Black v. State, 794 S.W.2d at 755.



                                         3
     INEFFECTIVE ASSISTANCE OF COUNSEL STANDARD OF REVIEW



       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).



       The test in Tennessee in determining whether counsel provided effective

assistance is whether his performance was within the range of competence

demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d at 936. The

petitioner must overcome the presumption that counsel's conduct falls within the

wide range of acceptable professional assistance. Strickland v. Washington, 466

U.S. at 689, 104 S.Ct. at 2065; Alley v. State, 958 S.W.2d 138, 149 (Tenn. Crim.

App. 1997); State v. Williams, 929 S.W.2d 385, 389 (Tenn. Crim. App. 1996).

Therefore, in order to prove a deficiency, a petitioner must show that counsel's acts

or omissions were so serious as to fall below an objective standard of

reasonableness under prevailing professional norms. Strickland v. Washington, 466

U.S. at 688, 104 S.Ct. at 2065; Henley v. State, 960 S.W.2d at 579; Goad v. State,

938 S.W.2d at 369.



       In reviewing counsel's conduct, a "fair assessment. . . 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. The fact that a particular strategy or tactic failed or hurt the defense,



                                           4
does not, standing alone, establish unreasonable representation. However,



deference to matters of strategy and tactical choices applies only if the choices are

informed ones based upon adequate preparation. Goad v. State, 938 S.W.2d at

369; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); Alley v. State, 958 S.W.2d at

149; Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).



       In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed. 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.



                                        FACTS



       At the post-conviction hearing, appellant testified that his attorney did tell him

the charges against him but indicated that he did not go into detail as to what they

meant. He stated that his attorney did not tell him what the state had to do to

convict him of first degree murder, second degree murder, kidnaping, robbery or

the terms "aggravated" and "especially aggravated". He indicated his attorney

never explained to him criminal responsibility. He testified that trial counsel led him

to believe he was pleading guilty to accessory before and after the fact to those

crimes. He indicated that trial counsel kept telling him that he was going to get

nothing but fifteen (15) years. He thought the sentences would run concurrently

rather than consecutively. He testified that trial counsel went over the plea petition

on " the day that he had me to cop out." He testified that trial counsel gave him the

petition to read but did not read it to him. He stated that he read certain parts of it

but could not recall the parts he read. He had a ninth grade education. He

indicated he could read good enough to get by. He felt like he was being forced to



                                           5
plead because his trial counsel kept telling his daddy that he would get life if he did

not plead guilty. He did not think he would have pled guilty if trial counsel had



taken more time to counsel with him thoroughly. He did admit on cross-examination

that he had signed the petition for the guilty plea. When asked if he remembered

Judge Wyatt having gone over his rights and asking him if his plea was voluntary,

he indicated that he was in such a daze that he was really not paying attention. He

was twenty-one (21) years old at the time of his guilty plea. The guilty plea was

entered two (2) weeks before his case was to be tried.



       Trial counsel, Thomas H. Ware, testified that he conferred with appellant on

approximately seventeen (17) occasions while representing him. His time sheet

showed eighteen (18) visits. He spent approximately 14.4 hours consulting with Mr.

Rucker at the jail not counting telephone contacts or the times he saw Mr. Rucker

in court. He had attempted to work out a lesser sentence based on petitioner

cooperating with the state. DNA testing, however, contradicted petitioner's story

and put them in a bind. He testified that he discussed in detail with petitioner the

elements of aggravated and especially aggravated robbery and kidnaping. He

advised Mr. Rucker that the murder charges were "just almost open and shut." He

discussed first degree murder and second degree murder. He testified that he read

the petition for the plea agreement to Mr. Rucker. He indicated that Mr. Rucker was

always willing to enter a plea. He, however, was not happy with the number of

years the state was offering. The state had started off asking for seventy-five (75)

years and eventually they negotiated a plea bargain for sixty (60) years. Mr. Rucker

would not initially plead guilty to an effective sixty (60) year sentence. He requested

an effective forty (40) year sentence. Trial counsel testified that it was his opinion

that if Mr. Rucker went to trial that he would be convicted of at least two (2) felony

murder counts and probably would have received two (2) life sentences consecutive

to each other. He thought that they had somewhat of a chance on the aggravated

robbery and aggravated kidnaping charges. He, however, did not have any chance



                                          6
on the aggravated rape case. After DNA testing was returned, Mr. Rucker did

confirm that he had sexual relations with one of the murder victims.




       The Petition To Enter A Plea Of Guilty indicates that petitioner has read and

discussed the indictment with his attorney and that he has told his attorney

everything about the facts and circumstances surrounding the charges against him.

It indicates further that the petitioner understands the definitional elements of the

crimes and that his attorney has explained what the state has to prove beyond a

reasonable doubt to convict him.



       Paragraph 6 of the petition describes the various charges and the ranges of

punishments for each charge. Paragraph 22 sets out specifically that he is entering

a best interest plea as follows:

       Count One - murder, second degree - fifteen (15) years imprisonment
       Count Three - especially aggravated robbery - fifteen (15) years
             imprisonment - consecutive to Count One
       Count Four - especially aggravated kidnaping - fifteen (15) years
             imprisonment - consecutive to Counts One and Three
       Count Five - murder, second degree - fifteen (15) years imprisonment -
             consecutive to Counts One, Three and Four
       Counts Two and Six - to be dismissed
       Case No. 958172 - to be dismissed


       The transcript of the guilty plea hearing held on March 30, 1995, shows

clearly that the court went over the range of punishment for second degree murder,

especially aggravated robbery and especially aggravated kidnaping. The court also

described the elements of the three (3) offenses and advised the petitioner that he

had four (4) Class A felony convictions and any future convictions could enhance

any punishment he might receive. His case was set for jury trial a couple of weeks

off. He was advised of his right to a jury trial and that he had the presumption of

innocence at trial. The court advised the petitioner that the state would have the

burden of proof at trial and described the burden of proof beyond a reasonable

doubt. He was advised of his right to confront his witnesses or accusers, his right

against self-incrimination and his right to appeal. He identified the petition to enter

                                          7
a plea of guilty and admitted that he had been advised of his rights set forth in that

document. He admitted going over the document with his attorney. He admitted




understanding exactly what he was doing on that date. He admitted that he

understood the sentence that was going to be imposed and the results of pleading

guilty. Trial counsel indicated on the record that he had discussed the matter with

the petitioner and was convinced that he understood the charges and the plea

agreement.



                                   CONCLUSION



        The post-conviction transcript is clear that petitioner understood the nature

and the elements of the charges against him along with the consequences of his

plea.    The record is clear that the plea of guilty was entered knowingly,

understandably and voluntarily by petitioner. There is no evidence in the record to

indicate that trial counsel's performance was deficient or that any deficient

performance resulted in prejudice to petitioner. Petitioner has failed to overcome

the presumption that trial counsel's conduct falls within the wide range of acceptable

professional assistance. In this case, the record is clear that trial counsel's conduct

was well within the range of competence demanded of attorneys in criminal cases.



        Accordingly, the judgment of the trial court is AFFIRMED.




                                                  LEE MOORE, SPECIAL JUDGE


CONCUR:




JOE G. RILEY, JUDGE


                                          8
CURWOOD WITT, JUDGE




                      9
          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT NASHVILLE



JOHN RUCKER,                               )
                                           )       C.C.A. No. 01C01-9709-CR-00411
       Appellant,                          )
                                           )       Davidson County No. 92-C-1496
vs.                                        )
                                           )       (Post-Conviction)
STATE OF TENNESSEE,                        )
                                           )       AFFIRMED
       Appellee.                           )



                                    JUDGMENT



       Came the appellant, John Rucker, by counsel, and the state, by the Attorney

General, and this case was heard on the record on appeal from the Criminal Court

of Davidson County; and upon consideration thereof, this Court is of the opinion

that there is no reversible error in the judgment of the trial court.



       It is, therefore, ordered and adjudged by this Court that the judgment of the

trial court is AFFIRMED, and the case is remanded to the Criminal Court of

Davidson County for execution of the judgment of that court and for collection of

costs accrued below.



       It appears that appellant is indigent. Costs of appeal will be paid by the State

of Tennessee.



                                                   Per Curiam

                                                   Lee Moore, Special Judge
                                                   Joe G. Riley, Judge
                                                   Curwood Witt, Judge
11
