            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE

                         JANUARY 2000 SESSION
                                                        FILED
                                                         February 1, 2000
                                                       Cecil Crowson, Jr.
                                                      Appellate Court Clerk
JOHNNIE LAMONT DALTON,              )
                                    )   M1999-00369-CCA-R3-PC
     Appellant,                     )
                                    )   Davidson County
v.                                  )
                                    )   Honorable Seth Norman, Judge
STATE OF TENNESSEE,                 )
                                    )   (Post Conviction Relief)
     Appellee.                      )




FOR THE APPELLANT:                      FOR THE APPELLEE:

THOMAS A. LONGABERGER                   PAUL G. SUMMERS
69 Arcade                               Attorney General & Reporter
Nashville, Tennessee 37219
                                        DAVID H. FINDLEY
                                        Assistant Attorney General
                                        425 Fifth Avenue North
                                        2nd Floor, Cordell Hull Building
                                        Nashville, Tennessee 37243-0493




AFFIRMED

L. T. LAFFERTY, SENIOR JUDGE
                                            OPINION
          The appellant, Johnnie Lamont Dalton, appeals the Davidson County Criminal

Court’s dismissal of his petition for post-conviction relief. On May 5, 1997, the defendant
entered a plea of guilty to murder second degree during the voir dire of a jury, wherein he
was charged with the offense of murder first degree. The petitioner, collaterally, attacks

his guilty plea and conviction for murder second degree upon the grounds of ineffective
assistance of counsel. More specifically, he contends that trial counsel failed to (a)
adequately investigate and prepare for trial; (b) failed to interview and subpoena state

witnesses; and (c) failed to subpoena potential witnesses, including one witness who the
defendant contends would have established that the defendant was not the murderer. The
petitioner asserts that were it not for the above actions, he would not have pled guilty on

the mistaken advice of counsel.
          After a review of the record, we AFFIRM the trial court’s denial of post-conviction
relief.

                                            ANALYSIS
          On May 8, 1998, the petitioner filed a pro se petition for post-conviction relief
alleging that he had received ineffective assistance of counsel, and therefore, he did not

knowingly and voluntarily enter his guilty plea. The trial court appointed counsel on May
12, 1998. An evidentiary hearing was held on March 26, 1999. On March 30, 1999, the

trial court entered an order denying the petition for post-conviction relief.
          In dismissing the petition, the trial court found, in parts pertinent to this appeal:

                 The transcript of the guilty plea in this case clearly shows that
                 the petitioner was advised of these rights. There is no proof in
                 that transcript that would lead the Court to believe the contrary.
                 In addition, at the time of the entry of the plea the petitioner
                 told the Court that he was satisfied with his lawyers....

                                                ***

                 In the case at hand, there is no proof that would indicate that
                 the representation of the petitioner was anything other than
                 excellent. He had three very fine attorneys. Each of the three
                 are experienced and knowledgeable. This Court can find no
                 proof that would substantiate a claim of ineffective assistance
                 of counsel.

          To succeed in a post-conviction claim of ineffective assistance of counsel, the
petitioner must show, by clear and convincing evidence that the services rendered by trial

counsel were deficient and that, but for the deficient performance, the results of the
proceeding would have been different. Tenn. Code Ann. § 40-30-210(f) (1997). Strickland
v. Washington, 466 U. S. 668, 104 S. Ct. 2052, 2064 (1984). When this Court undertakes
review of a lower court’s decision on a petition for post-conviction relief, the lower court’s


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finding of facts are given the weight of a jury verdict and are conclusive on appeal absent

a finding that the evidence preponderates against the judgment. See Davis v. State, 912

S.W.2d 689, 697 (Tenn. 1995). Unfortunately, the record does not contain a transcript of
the guilty plea hearing. However, after reviewing the record, we conclude that the evidence

does not preponderate against the dismissal entered by the trial court.

       At the evidentiary hearing, Ms. Wendy Tucker, Assistant Public Defender, testified
that she and the defendant had a good working relationship, but on one occasion he

wanted her replaced by another attorney. Ms. Tucker stated that she filed a number of

motions prior to trial. She had also subpoenaed two alibi witnesses, Shandell Booker and
Barbara Booker. On the day of trial, Ms. Tucker described the defendant as being nervous

as one would be going to trial on murder first degree. Ms. Tucker testified that, prior to the

luncheon break of the voir dire of the jury, she was approached by Ms. Mary Hausman,
Assistant District Attorney General, that a witness, whom Ms. Tucker had subpoenaed,

peeked in the courtroom door and saw the defendant. The witness then became hysterical

and definitely identified the petitioner as the shooter. During Ms. Tucker’s investigation,
this witness had informed Ms. Tucker, through an investigator, that he could not identify

the petitioner in a lineup. Thus, Ms. Tucker had subpoenaed this witness. Ms. Tucker

stated that she advised Mr. Mike Engle, a co-attorney in the Public Defender’s Office,

about what had happened. Mr. Engle had represented the petitioner in the past on his first

murder conviction. Ms. Tucker and Mr. Engle, and Ms. Tucker's co-counsel, Ms. Sheila
Jones, talked to the petitioner. That is when the petitioner learned about the new

development of the witness.

       As to the witness, Vanessa Green, Ms. Tucker testified that she decided not to
subpoena this witness. The witness had testified at the preliminary hearing that the

petitioner was the shooter. She had testified that she knew the petitioner from school, but

the petitioner was in prison during this school period. Ms. Tucker believed it was not
strategically feasible to call a witness just to prove that her identification of the defendant

in a lineup was not credible.

       Joseph M. Engle, Assistant Public Defender, testified that he had represented the

petitioner in the past for criminal offenses.        During the course of Ms. Tucker’s
representation, Mr. Engle and Ms. Tucker had talked many times about the merits of the

petitioner’s case. As to Ms. Tucker’s representation, Mr. Engle testified that Ms. Tucker

has always properly prepared for trial. He had reviewed her file and believed she was
exceptionally well prepared. On the day of the guilty plea, Mr. Engle described the

petitioner as nervous, anxious, and frustrated. The petitioner was able to articulate


                                              3
questions that both went to the nature of the plea bargaining offer and to Ms. Tucker’s

appraisal of his prospects of the trial. The petitioner was able to listen to the answers and

able to debate those questions. In Mr. Engle’s opinion, the petitioner was coherent and
competent.

       As to his guilty plea, the petitioner testified that his testimony before the judge was

not voluntarily and knowingly, because he did not understand the law. As to Ms. Tucker’s
representation, the petitioner testified that she did not interview any state witnesses in

preparation for trial, especially Patrick Elrat. The petitioner testified that he took the plea

upon advice of counsel after a lack of investigation and preparing for a murder case. The
petitioner wanted Ms. Tucker to subpoena Vanessa Green, because he felt this was a

potential witness who could help his case. The petitioner did not call any other witnesses

in support of his petition.
       The totality of the circumstances in this case indicates that the petitioner’s plea of

guilty was given both voluntarily and knowingly. Although the petitioner testified at the

post-conviction hearing that he did not understand the law and pleading procedure at the
time he pled guilty, the petitioner had apparently been through this process before. He

admitted to pleading guilty to another murder charge in 1992 under nearly identical

circumstances and had accepted his punishment. At the time this plea was entered on

May 5, 1997, the petitioner stated under oath that he was satisfied with his representation

by Wendy Tucker, Sheila Jones, and Mike Engle. The court also advised him of his rights
and the consequences of a guilty plea. As a result, we find no error of law requiring

reversal. The judgment of the trial court in dismissing the petitioner’s petition for post-

conviction relief is affirmed.




                                                  L. T. LAFFERTY, SENIOR JUDGE



CONCUR:




JERRY L. SMITH, JUDGE




THOMAS T. WOODALL, JUDGE




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