        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE            FILED
                        FEBRUARY 1999 SESSION
                                                       May 21, 1999

                                                   Cecil W. Crowson
                                                  Appellate Court Clerk
STANLEY POWELL,               )
                              )   C.C.A. No. 01C01-9804-CC-00169
           Appellee,          )
                              )   Giles County
V.                            )
                              )   Honorable W illiam B. Cain, Judge
STATE OF TENNESSEE,           )
                             )    (Post-Conviction - Aggravated Kidnaping,
                              )   Aggravated Rape)
           Appellant.         )



FOR THE APPELLANT:                FOR THE APPELLEE:

HERSHELL KOGER                    JOHN KNOX WALKUP
131 N. 1st Street                 Attorney General and Reporter
P. O. Box 1148
Pulaski, TN 38478                 ELIZABETH B. MARNEY
                                  Assistant Attorney General
                                  425 Fifth Avenue North
                                  2d Floor, Cordell Hull Building
                                  Nashville, TN 37243

                                  MIKE BOTTOMS
                                  District Attorney General

                                  RICHARD DUNAVANT
                                  Assistant District Attorney
                                  Giles County Courthouse
                                  Pulaski, TN 38478




OPINION FILED: _______________


AFFIRMED



JOHN EVERETT WILLIAMS,
Judge
                                        OPINION



       The petition er, Sta nley P owell, a ppea ls from the trial c ourt’s

dismissal of his claim for post-conviction relief. Powell is presently serving

thirteen years a s a ran ge II offe nder in the De partm ent of C orrect ion for h is

guilty plea to aggrava ted kidna ping an d aggra vated rap e on Ju ne 27, 1 994.

The trial court dismissed his post-conviction petition following a hearing on

the merits. After a review of the record, the briefs of the parties and the

applic able la w, we a ffirm the trial cou rt’s dism issal.



       The petition er claim ed at h is post -conv iction h earing that his

appointed counsel was ineffective for failing to interview witnesses and that

his plea was e ntered into unk nowingly and involuntarily.



       The trial court reviewed the transcript of the hearing in which the

defen dant p leade d guilty, a nd he ard the testim ony fro m the Petition er, his

court appointed counsel and three other witnesses, before finding as

follows:



              There is nothing in the post-conviction relief petition that
       has a ny me rit, and th e cred ibility of the defen dant in his
       testimony today is nonexistent. He knew at the time that he
       was facing the possibility--and strong possibility--of being
       declared a career offender, following his extensive criminal
       record, and that he could spend many, many years in the
       penitentiary.


       Following this ass essme nt of the petitioner’s credibility, the trial court

clearly placed gre at weight upon the testimony o f the petitioner’s court


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appointed counsel and very little, if any, upon the testimony of the

petitioner.



            The test for de termining wh ether trial counsel pro vided effective

assist ance to his or her clie nt rests on wh ether c ouns el’s pe rform ance is

within the ra nge of co mpete nce de mand ed of attorn eys in crim inal case s.

See Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). The burden is on an

appellant to show that representation was deficient in that counsel made

errors so serious that she or he was not functioning as “counsel” as

guaran teed by th e Sixth Am endm ent. See Strickland v. Washington, 466

U.S. 668, 687 (1984). Where a defendant pleads guilty, he must show that

but for counse l’s errors he would n ot have plead ed guilty and wo uld have

insisted o n going to trial. See Hill v. Lockhart 474 U .S. 52, 59 (1985); see

also State v. Neal, 810 S.W.2d 131, 138-39 (Tenn. 1991) (reiterating the

standard in Hill).



            The trial court’s findings of fact in a post-conviction proceeding are

afforded the weight of a jury verdict and are conclusive on appeal unless

the evidence in the record preponderates against them.1 See Caruthers v.

State, 814 S.W .2d 64, 67 (Tenn . Crim. A pp. 199 1); Butler v. Sta te, 789

S.W.2d 898, 899-900 (Tenn. 1990). Petitioner bears the burden of

establishing that the evidence preponderates against the post-conviction

court’s find ings of fac t. See Black v. S tate, 794 S.W.2d 752, 755 (Tenn.

Crim. App. 1990). Petitioner did not carry his burden in the trial court and

he has not carried his burden here.




1
    This pe tition was filed in 1 994 an d is contro lled by the pre -1995 P ost Con viction Act.

                                                       -3-
      The jud gmen t of the trial cou rt dismiss ing the pe titioner’s pos t-

conviction relief petition is therefore AFFIRMED.




                                              _____________________________
                                              JOHN EVERET T WILLIAMS, Judge




CONCUR:




______________________________
DAVID G. HAYES, Judge




_______________________________
JAMES CURW OOD W ITT, JR., Judge




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