             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                           FEBRUARY 1998 SESSION
                                                      FILED
                                                         April 30, 1998

                                                      Cecil Crowson, Jr.
MARIO BOYD,                        )                  Appellate C ourt Clerk
                                   )    C.C.A. NO. 02C01-9703-CR-00110
             Appellant,            )
                                   )    SHELBY COUNTY
VS.                                )
                                   )    HON. L. T. LAFFERTY,
STATE OF TENNESSEE,                )    JUDGE
                                   )
             Appellee.             )    (Post-conviction)



FOR THE APPELLANT:                      FOR THE APPELLEE:


THOMAS C. FILA                          JOHN KNOX WALKUP
200 Jefferson Ave., Suite 925           Attorney General & Reporter
Memphis, TN 38103
                                        GEORGIA BLYTHE FELNER
                                        Counsel for the State
                                        450 James Robertson Pkwy.
                                        Nashville, TN 37243-0493

                                        WILLIAM L. GIBBONS
                                        District Attorney General

                                        J. ROBERT CARTER
                                        Asst. District Attorney General
                                        Criminal Justice Complex, Suite 301
                                        201 Poplar St.
                                        Memphis, TN 38103




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                    OPINION



               The petitioner was charged with first-degree murder and pled guilty to

second-degree murder pursuant to a negotiated plea agreement. As part of the plea

bargain, he was sentenced as a Range II multiple offender to thirty-five years

incarceration. Absent the plea agreement, the petitioner would have been sentenced as

a Range I offender. A little over a year after his plea, the petitioner filed for post-

conviction relief alleging that he had received ineffective assistance of counsel and that

his plea had not been knowingly and voluntarily entered. Following an evidentiary

hearing, the court below denied relief and this appeal as of right followed. We affirm the

court below.



               “In post-conviction relief proceedings the petitioner has the burden of

proving the allegations in his petition by a preponderance of the evidence.” McBee v.

State, 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, the factual findings

of the trial court in hearings “are conclusive on appeal unless the evidence preponderates

against the judgment.” State v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983).



               This Court should not second-guess trial counsel’s tactical and strategic

choices unless those choices were uninformed because of inadequate preparation,

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982), and counsel should not be deemed to

have been ineffective merely because a different procedure or strategy might have

produced a different result. Williams v. State, 599 S.W.2d 276, 280 (Tenn. Crim. App.

1980).



               In reviewing the petitioner’s Sixth Amendment claim of ineffective



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assistance of counsel, this Court must determine whether the advice given or services

rendered by the attorney are within the range of competence demanded of attorneys in

criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a

claim of ineffective counsel, a petitioner “must show that counsel’s representation fell

below an objective standard of reasonableness” and that this performance prejudiced the

defense. There must be a reasonable probability that but for counsel’s error the result

of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668,

687-88, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985).



              To satisfy the requirement of prejudice, he would have had to demonstrate

a reasonable probability that, but for counsel’s errors, he would not have pled guilty and

would have insisted on going to trial. See Hill v. Lockart, 474 U.S. 52, 59 (1985);

Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991).



              At the hearing on the petitioner's claim for relief, both the petitioner and his

former lawyer testified. The petitioner's main complaint, as found by the court below, is

that neither his lawyer nor the trial court had informed him that the minimum sentence

available for second-degree murder was fifteen years, had he been convicted of that

offense by a jury and subsequently sentenced as a Range I offender. He claims that,

had he known this fact, he would not have pled guilty and would have gone to trial, in

spite of the fact that he would have been tried for first-degree murder, and, had he been

convicted of that offense, would have received a life sentence, albeit with the possibility

of parole. The petitioner's former lawyer testified that he was sure he had informed the

petitioner about the entire range of punishment for second-degree murder. The court

below found that the lawyer's testimony was “more credible [on] this issue” and that “the

State has proven by extrinsic evidence that the petitioner was aware of the range of



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punishment for murder second degree.” As the proof does not preponderate against

these findings, this issue is without merit.



              The petitioner further alleged that his lawyer did not adequately investigate

the case, failed to prepare a defense, failed to confer with and inform him sufficiently, and

failed to request expert services In its findings on these allegations, the court below

stated:

              [The petitioner's lawyer] met with [him] eight (8) times from
              arraignment to March 15, 1995. . . . [His lawyer] did not find
              it necessary to have the petitioner mentally examined since
              the Juvenile Court did this routinely. [The petitioner's
              attorney] was aware that the petitioner had a [7th] grade
              education. [He] . . . mailed to the petitioner copies of motions
              and discovery he had obtained from the State. The petitioner
              corroborated this testimony. [The petitioner's lawyer] was not
              able to prepare a defense to the charge of murder, as there
              were numerous scene witnesses; the two defendants gave
              implicating statements to the police; and the [petitioner] did
              not deny his involvement, but denied the shooting. The State
              advised [the petitioner's attorney] that in the event of trial, the
              co-defendant Anthony Jackson, would be a witness for the
              State and claim the petitioner was the shooter. [The
              petitioner's lawyer] was able to get the State to reduce the
              offer of settlement from 45 years to 35 years, always in
              Range II. The petitioner felt it was in his own best interest to
              plead guilty and accept 35 years in lieu of life.

Thus, the court below concluded that the petitioner “failed to prove factually and legally

that [his former lawyer] violated the holdings [of Strickland v, Washington and Baxter v.

Rose]”. Again, the proof does not preponderate against this finding, and this issue is

therefore also without merit.



              Upon our review of the entire record of this matter, the evidence does not

preponderate against the lower court's findings. Given these findings, the denial of relief

was proper and we therefore affirm the court below.




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                                     ______________________________
                                     JOHN H. PEAY, Judge



CONCUR:



______________________________
JOE B. JONES, Judge



______________________________
THOMAS T. WOODALL, Judge




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