            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT NASHVILLE             FILED
                          NOVEMBER 1998 SESSION
                                                            January 28, 1999

                                                         Cecil W. Crowson
TOD J. WALLER,                         *                Appellate Court Clerk
                                             C.C.A. # 01C01-9712-CR-00565

             Appellant,                *     DAVIDSON COUNTY

VS.                                    *     Hon. Ann Lacy Johns, Judge

STATE OF TENNESSEE,                    *     (Post-conviction)

             Appellee.                 *




For Appellant:                         For Appellee:

Judson W. Phillips                     John Knox Walkup
315 Deaderick Street, Suite 2395       Attorney General and Reporter
Nashville, TN 37238-2395
                                       Daryl J. Brand
                                       Senior Counsel
                                       Criminal Justice Division
                                       425 Fifth Avenue North
                                       Nashville, TN 37243

                                       Patty Ramsey
                                       Assistant District Attorney General
                                       Washington Square Building
                                       222 Second Avenue North
                                       Nashville, TN 37201




OPINION FILED:__________________________


AFFIRMED


GARY R. WADE, PRESIDING JUDGE
                                         OPINION

              The petitioner, Tod J. Waller, appeals the trial court's denial of his

petition for post-conviction relief. In this appeal of right, the petitioner claims that his

trial counsel was ineffective and that the judgment of conviction should be set aside.



              We find no error and affirm the judgment of the trial court.



              On October 17, 1996, the petitioner entered negotiated pleas of guilt to

two counts of attempted aggravated rape and two counts of attempted aggravated

kidnapping. As a part of the plea agreement, the state did not prosecute a third

count of aggravated rape and two additional counts of aggravated kidnapping. The

trial court imposed consecutive, ten-year Range I sentences for each attempted

aggravated rape conviction and five-year Range I sentences for each of the two

attempted aggravated kidnapping convictions. The sentences for attempted

aggravated kidnapping were concurrent to each other but ordered to be served

consecutively to the sentences for attempted aggravated rape. Thus, the effective

sentence was twenty-five years.



              In this petition for relief, the petitioner claimed that his pleas of guilty

were not knowing or voluntary, that his trial counsel had been ineffective, and that,

but for the advice of trial counsel, he would not have entered pleas of guilt and

would have insisted on proceeding to trial.



              At the evidentiary hearing, the petitioner testified that he had

attempted suicide a number of times up to and including the day of his arrest. He

claimed that he was intoxicated on the day of his arrest and admitted to an alcohol

addiction. He recalled that he discussed with his trial counsel the possibility of a


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psychological defense. He claimed that he had wanted a trial but that his trial

counsel had told him that a trial was not in his best interest. While he remembered

that his trial counsel had informed him of his constitutional rights, he claimed at the

evidentiary hearing that he had not understood his rights entirely. In particular, the

petitioner believed that he would be released after serving thirty percent of his

twenty-five-year sentence because his trial counsel did not inform him that he was

merely parole eligible at that time.



              The petitioner maintained that he was just "going through the motions"

and responding to the questions imposed by the trial judge as he was instructed:

"[J]ust say yes." The petitioner claimed that, had he gone to trial, there was a

possibility that the some of the kidnapping charges could have been dismissed, a

fact his trial counsel had failed to point out. See State v. Anthony, 817 S.W.2d 299

(Tenn. 1991).



              Trial counsel, who had been employed by the public defender's office

for approximately twelve years and had represented thousands of defendants,

testified that he met with the petitioner before the preliminary hearing and several

other times throughout the course of his representation. He testified that he met

with the petitioner's mother, obtained discovery from the state, investigated the

facts, and advised the petitioner that, if he proceeded to trial, he would likely be

convicted of some of the charges. Trial counsel recalled that the victim had been an

effective witness at the preliminary hearing and that the petitioner's version of

events did not entirely refute the charges. Trial counsel remembered informing the

petitioner of the sentencing ranges and parole eligibility. He maintained that he had

no difficulty communicating with the petitioner. Trial counsel testified that he

obtained the petitioner's medical records from Middle Tennessee Mental Health


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Institute and that he obtained the results of a separate mental evaluation arranged

by the petitioner's parents. Trial counsel recalled discussing the results of the

evaluation with the psychologist. He also testified that he was aware of the 1991

supreme court opinion in State v. Anthony, 817 S.W.2d 299 (Tenn. 1991), and had

considered the opinion in his assessment of the case.



              Trial counsel testified that on the day of the guilty plea, he

communicated with the petitioner for thirty to forty-five minutes and that the

petitioner gave no indication that he did not understand their discussion. He did not

deny advising the petitioner to "hold it together a little longer" during the submission

hearing, explaining that the petitioner was "high strung" and tended to be overly

emotional. Trial counsel claimed that his advice was aimed to discourage the

petitioner from becoming overcome by his anxieties.



              The trial court denied post-conviction relief, concluding that trial

counsel had provided competent representation. In its findings of fact, the trial court

determined that trial counsel was "highly attuned to ... [the] psychological and

emotional issues" in the case, that he had maintained adequate contact with the

petitioner, and that he had advised petitioner of the legal consequences of the plea

"in detail." The trial court also concluded that, from the factual excerpt presented at

the submission hearing, this was "not a clear cut situation where there would have

been merger" under the rule established in Anthony.



              When a petitioner seeks post-conviction relief on the basis of

ineffective assistance of counsel, he must first establish that the services rendered

or the advice given was below "the range of competence demanded of attorneys in

criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Second, he


                                            4
must show that the deficiencies "actually had an adverse effect on the defense."

Strickland v. Washington, 466 U.S. 668, 693 (1984). Should the petitioner fail to

establish either factor, no relief is warranted. As to guilty pleas, the petitioner must

establish a reasonable probability that, but for the errors of his counsel, he would

not have entered the plea and would have insisted on going to trial. Hill v. Lockhart,

474 U.S. 52, 59 (1985).



              Under our statutory law, the petitioner bears the burden of proving his

allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). On

appeal, the findings of fact made by the post-conviction trial court are conclusive

and will not be disturbed unless the evidence contained in the record preponderates

against them. Brooks v. State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The

burden is on the petitioner to show that the evidence preponderated against those

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



              In our view, the testimony at the evidentiary hearing does not

preponderate against the post-conviction trial court's conclusion that trial counsel

rendered effective assistance to the petitioner. The petitioner has neither identified

any investigative step that his trial counsel failed to undertake nor presented any

material evidence that his trial counsel failed to discover.



              The petitioner also alleged that his trial counsel should have obtained

an additional psychological evaluation. At the evidentiary hearing, however, trial

counsel established as fact that he had reviewed the mental evaluation obtained by

the parents of the petitioner and had discussed the results with the psychologist who

conducted the evaluation. Trial counsel, who had prior experience in advancing a

defense based upon mental condition, determined that such a defense was not a


                                            5
viable in this case. The record establishes that the petitioner was unable to present

any testimony to controvert that conclusion and this court may not second-guess the

tactical and strategic choices made by trial counsel unless those choices are

uninformed because of inadequate preparation. Hellard v. State, 629 S.W.2d 4, 9

(Tenn. 1982).



              The petitioner also asserts that his trial counsel's acknowledgment that

he "did not have a particularly good memory" supports a conclusion that the trial

court erred in accrediting the testimony of trial counsel. We disagree. This court

may not reweigh or reevaluate the evidence or substitute its inferences for those

drawn by the trial court and may not reassess the credibility of witnesses or the

weight and value to be given their testimony. Black v. State, 794 S.W.2d 752, 755

(Tenn. Crim. App. 1990).



              Next, the petitioner alleges that the transcript of the plea submission

hearing demonstrates that his emotional instability at the time of the plea would

negate the validity of his guilty pleas. He asserts that trial counsel's advice to "hold

it together just a little longer" supports his quest for post-conviction relief. The

explanation by trial counsel and his testimony that he had seen no indication that

the petitioner had problems understanding the proceedings was satisfactory. The

transcript of the submission hearing supports the trial court's conclusion that the

petitioner knowingly and voluntarily entered his pleas and does not support his claim

that he would have insisted on going to trial but for erroneous advice of trial counsel.




              Finally, the petitioner argued during his post-conviction proceeding that

his trial counsel was ineffective by failing to advise him regarding the possibility of


                                            6
either dismissing altogether or merging some of the aggravated kidnapping

convictions with the aggravated rape convictions under the rationale expressed in

Anthony. In this appeal, however, the petitioner has omitted all reference to this

issue and has provided no supporting argument. In consequence, this issue must

be treated as waived. Tenn. Ct. Crim. App. R. 10(b).



             Accordingly, the judgment is affirmed.



                                         _________________________________
                                         Gary R. Wade, Presiding Judge

CONCUR:



_____________________________
John H. Peay, Judge



_____________________________
Jerry L. Smith, Judge




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