          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE               FILED
                            FEBRUARY 1998 SESSION             May 20, 1998

                                                          Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk

BILLY EUGENE COOK,                    )
                                      )   No. 03C01-9709-CR-00390
            Appe llant,               )
                                      )   Knox C ounty
vs.                                   )
                                      )   Honorable Mary Beth Leibowitz,
STATE OF TENNESSEE,                   )   Judge
                                      )
            Appellee.                 )   (Post-Conviction)



FOR THE APPELLANT:                        FOR THE APPELLEE:

MARK E. STEPHENS                          JOHN KNOX WALKUP
Public Defender                           Attorney General & Reporter

JULIA AUER                                JANIS L. TURNER
Assistant Public Defender                 Coun sel for State
1209 Euclid Avenue                        Cordell Hull Bldg., Second Floor
Knoxville, TN 37921                       425 Fifth Avenu e, North
                                          Nashville, TN 37243-0493

                                          RANDALL E. NICHOLS
                                          District Attorney General

                                          STEVE GARRETT
                                          Assistant District Attorney
                                          City-County Bldg.
                                          Knoxville, TN 37902



OPINION FILED:____________________



AFFIRMED PURSU ANT TO RU LE 20


WILLIAM B. ACREE, JR.
SPECIAL JUDGE
                                          OPINION

       The petition er, Billy E ugen e Coo k, app eals a s of righ t the trial c ourt’s
dismiss al of his pe tition for post-c onviction re lief.


       The petitioner entered guilty pleas on March 26, 1982, to burglary in the
third degree (two cases) and grand larceny. He received concurrent sentences of
three to ten years. The petitioner was later found to be an habitual criminal by
the Da vidson C ounty C riminal C ourt and was se ntence d to life impr isonm ent.
Thes e convictio ns were underlyin g convictio ns for the h abitual crim inal sente nce.
The petitioner filed this petition on June 30, 1989.1 Following an e videntiary
hearing held on May 1, 1997, the trial court dismissed the petition.


       We affirm the judgment of the trial judge.


       The petitioner alleges that he did not receive effective assistance of
counsel when he pled guilty. Specifically, the petitioner contends that his trial
counsel did not fully advise him about the Habitual Criminal Act. He claims that
he pled guilty because he believed if he were found guilty, he could be declared
to be a ha bitual crim inal.


       Prior to the ac cepta nce o f the gu ilty pleas , the dis trict attor ney ge neral to ld
the court in the presence of the petitioner that the petitioner was not subject to the
Hab itual Cr imina l Act. T he trial c ourt ad vised th e petitio ner tha t if he sh ould
com mit an other fe lony, he would be su bject to being tried as an ha bitual c rimina l.


       At the post-conviction hearing, the petitioner admitted that his trial counsel
told him h e did not th ink that the State co uld conv ict him as an hab itual crimina l.
He the n gave th is testimo ny:


              Mr. Cook: But thinking is not for sure. So, I don’t want to take
       a chance on a life sentence instead of the three to ten years
       senten ce. I would rather ha d the thre e to ten ye ars sen tence tha n to
       take a chance on thinking you know. If he said, “Well, I know he
       can’t c onvict y ou on a life sen tence ,” I would have to ok it to tria l.




              The Court: He did advise you, though, that he didn’t think they


       1
        The Post-Conviction Act came into effect on July 1, 1986. The petitioner had until July
1, 1989 to file this petition. Abston v. State, 749 S.W.2d 487, 488 (Tenn.Crim.App. 1988).
       could convict you on an habitual criminal charge?

              Mr. Cook: He said he didn’t think, but he wasn’t for sure.


       In the post-conviction proceeding, the trial judge found that the petitioner
was fu lly advise d of his rights a nd of th e effec t of the H abitua l Crim inal
Act upon his conviction. The trial judge further found that he entered his plea
freely, voluntarily and knowingly, and that the advice given him by his trial counsel
was no t at fault.


       “In post-conviction relief proceedings, the petitioner has the burden of
proving the allega tions in his petition by a prep onderanc e of the evidenc e.”
McBe e v. State, 655 S.W.2d 191, 195 (Tenn.Crim.App. 1983). Furthermore, the
factual findings of the trial court and hearings “are conclusive on appeal unless
the evidence preponde rates against the judgmen t.” State v. Buford , 666 S.W.2d
473, 475 (Tenn.Crim.App. 1983). Post-conviction relief is available only when the
conviction or sentence is void or voidable because of the abridgement in any way
of any righ t guaran teed by th e Con stitution of T ennes see or o f the Unite d States .
Snea d v. State, 942 S.W .2d 567, 568 (Tenn.C rim.App. 199 6).


       In the cas e at bar, the evidenc e supp orts the find ings of the trial court.
Furthermore, the petitioner has neither alleged nor proved the violation of any
right guaranteed to him by the Constitution of the United States or of Tennessee.


       We find that the appellant was not denied the effective assistance of
counsel in regard to his pleas of guilty and that his pleas were voluntarily and
knowingly entered.


       The judgment of the trial court is affirmed in accordance with Rule 20,
Tennessee Court of Criminal Appeals.


                                    ___________________________________
                                    WILLIAM B. ACREE, JR., SPECIAL JUDGE


CONCUR:

____________________________________
JERRY L. SMITH, JUDGE

____________________________________
THOMAS T. WOODALL, JUDGE
