      IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON

                            JUNE 1997 SESSION
                                                     FILED
                                                       July 16, 1997

                                                    Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk
JEFFERY D. YATES,                 )
                                  ) C.C.A. No. 02C01-9608-CR-00276
      Appellant,                  )
                                  ) Shelby County
V.                                )
                                  ) Honorable Bernie Weinman, Judge
                                  )
STATE OF TENNESSEE,               ) (Post-Conviction: Ineffective Assistance
                                  ) of Counsel)
      Appellee.                   )




FOR THE APPELLANT:                   FOR THE APPELLEE:

A C Wharton, Jr.                     Charles W. Burson
Shelby County Public Defender        Attorney General & Reporter

On Appeal                            Sarah M. Branch
Walker Gwinn                         Counsel for the State
Assistant Public Defender            450 James Robertson Parkway
                                     Nashville, TN 37243-0493
At Trial
Donna Armstard                       William L. Gibbons
Assistant Public Defender            District Attorney General
Criminal Justice Complex
201 Poplar, Suite 201                Reginald Henderson
Memphis, TN 38103                    Assistant District Attorney General
                                     Criminal Justice Complex
                                     201 Poplar, Suite 301
                                     Memphis, TN 38103




OPINION FILED: ___________________


AFFIRMED


PAUL G. SUMMERS,
Judge
                                    OPINION


       The appellant, Jeffery D. Yates, was convicted by a jury of especially

aggravated kidnapping, aggravated kidnapping, and attempted aggravated

robbery. He was sentenced to eighteen years for the especially aggravated

kidnapping, ten years for the aggravated kidnapping, and five years for the

attempted aggravated robbery. His sentences are to be served concurrently.

The appellant filed a pro se petition for post-conviction relief alleging ineffective

assistance of counsel, and then his appointed attorney filed an amended petition

for post-conviction relief. Also, a second pro se amended petition was filed with

the court. The trial court denied the appellant relief at a post-conviction hearing.

We affirm.



       On appeal, the appellant argues that he was denied effective counsel

because his attorney failed to properly investigate his case or prepare for trial.

Because the appellant was a juvenile at the time of the crimes, he received a

hearing in Juvenile Court before being transferred to Criminal Court. The

appellant claimed that no witness identified him at the hearing; and had his

attorney requested a transcript of this hearing or had he listened to the tape of

the hearing, the appellant would have been acquitted of the charges. Also, the

appellant alleges that his attorney was ineffective for failing to visit the scene of

the crime.



       The state argues that the appellant’s attorney was effective. The state

contends that the appellant has not shown how his attorney’s failure to obtain the

transcript of the transfer hearing prejudiced his case, having failed himself to

present a copy of this transcript during his post-conviction hearing and having

failed to show how this transcript would result in his acquittal.




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       With regard to the appellant’s argument, the appellant’s attorney testified

that he discussed the juvenile court transfer hearing with the appellant. Also, the

attorney stated that he interviewed the state’s witnesses and the appellant’s

girlfriend once or twice before trial; and he stated that he told the appellant that his

co-defendant’s testimony at trial would be damaging to the appellant. The

attorney denied that the appellant gave him the names of any other possible

witnesses. Furthermore, the attorney testified at the post-conviction hearing that

he was fully prepared for trial, having discussed the case with the appellant on

several occasions before trial and having discussed the indictments and possible

ranges of punishment with him as well. The attorney explained that he did not

file any pretrial motions because there was an open file regarding discovery in

the case.



       The appellant’s attorney reviewed the psychiatric examination of the

appellant that was completed in January 1992. Because that examination

determined that the appellant was competent to stand trial, the attorney did not

order another examination. Although the appellant’s attorney obtained a

settlement offer which included a five-year concurrent sentence, the judge would

not accept the plea because the appellant testified that he was not guilty.



       To be granted relief on the ground of ineffective assistance of counsel, an

appellant must establish that the advice given or the services rendered were not

within the competence demanded of attorneys in criminal cases and that, but for

counsel’s deficient performance, the result of his or her trial would have been

different. Strickland v. Washington, 466 U.S. 668 (1984). In Tennessee, the

appropriate test is whether counsel’s performance was within the range of

competence demanded of attorneys in criminal cases. Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975).




                                         -3-
      In post-conviction proceedings, petitioners bear the burden of proving

their allegations by a preponderance of the evidence. Black v. State, 794

S.W.2d 752, 755 (Tenn. Crim. App. 1990); McBee v. State, 655 S.W.2d 191,

195 (Tenn. Crim. App. 1983). Furthermore, the trial court’s findings of fact in

post-conviction hearings are conclusive on appeal unless the evidence

preponderates against those findings. Butler v. State, 789 S.W.2d 898, 899

(Tenn. 1990); State v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983);

Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).



      This Court finds that the appellant has failed to carry the burden of

establishing that his attorney was ineffective. Because the evidence does not

preponderate against the hearing court’s findings, we affirm that court’s

judgment.




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                                     _____________________________
                                     PAUL G. SUMMERS, Judge


CONCUR:




____________________________
DAVID H. WELLES, Judge




____________________________
JOE G. RILEY, Judge




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