            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE                FILED
                          JUNE 1998 SESSION
                                                          June 11, 1998

                                                       Cecil W. Crowson
                                                      Appellate Court Clerk
TIMOTHY JOHN HICKMAN,              )
                                   )    C.C.A. NO. 01C01-9711-CR-00527
      Appellant,                   )
                                   )    DAVIDSON COUNTY
VS.                                )    (No. 94-A-59 Below)
                                   )
STATE OF TENNESSEE,                )    The Hon. Cheryl A. Blackburn
                                   )
      Appellee.                    )    (Denial of Post-Conviction Relief)




FOR THE APPELLANT:                 FOR THE APPELLEE:

WILLIAM A. LANE                    JOHN KNOX WALKUP
3236 Dilton Mankin Road            Attorney General and Reporter
Murfreesboro, TN 37127
                                   TIMOTHY F. BEHAN
                                   Assistant Attorney General
                                   Cordell Hull Building, Second Floor
                                   425 Fifth Avenue North
                                   Nashville, TN 37243-0493

                                   VICTOR S. JOHNSON III
                                   District Attorney General

                                   ROGER D. MOORE
                                   Assistant District Attorney General
                                   Washington Square, Suite 500
                                   222 Second Avenue North
                                   Nashville, TN 37201-1649




OPINION FILED _______________________


AFFIRMED

JOE G. RILEY, JUDGE
                                       OPINION

              The petitioner, Timothy John Hickman, appeals the trial court's denial of his

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

guilty plea was neither knowingly nor voluntarily made due to the ineffective assistance of

his attorney. Based on our review, we affirm the judgment.



              After being indicted on charges of aggravated rape, especially aggravated

kidnapping, aggravated robbery, reckless endangerment, unlawful possession of a

weapon, and possession of a prohibited weapon, the petitioner pled guilty to two counts

of aggravated rape and one count of aggravated robbery. Pursuant to a plea agreement,

he was sentenced as a Range I, standard offender, and received consecutive 20-year

sentences for the aggravated rape charges and a concurrent 10-year sentence for

aggravated robbery.



              The issue raised in this appeal is whether the trial court erred by denying

post-conviction relief based on the petitioner’s claim that his guilty plea was not knowing

and voluntary. Specifically, the petitioner contends that he was put in a position of making

a decision to plead guilty without fully understanding the consequences and not feeling

confident in the preparation of his attorney, along with the pressure he felt from being

abused in the county jail. The appellant avers that if counsel had adequately prepared his

case by investigating and interviewing all possible alibi witnesses, he would have been

provided adequate information to allow for a reasonable justification for going to trial.



              In order to receive post-conviction relief on the basis of ineffective assistance

of counsel, the petitioner 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 must show that the deficiencies

"actually had an adverse effect on the defense." Strickland v. Washington, 466 U.S. 668,

693, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984). Moreover, the petitioner has the

burden to show that the evidence preponderates against the findings of the trial court.

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

                                             -1-
fact by the trial court are conclusive. Graves v. State, 512 S.W.2d 603, 604 (Tenn. Crim.

App. 1973). In post-conviction claims, the credibility of the witnesses and the weight and

value to be given their testimony is within the exclusive authority of the trial court. Taylor

v. State, 875 S.W.2d 684, 686 (Tenn. Crim. App. 1993).



               Moreover, in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d

274 (1969), the United States Supreme Court ruled that defendants should be advised of

certain constitutional rights before entering guilty pleas, including the right against

self-incrimination, the right to confront witnesses, and the right to a trial by jury. Id. at 243.

The overriding requirement under Boykin is that the guilty plea must be knowingly and

voluntarily made. Id. at 242-44. If the proof establishes that the petitioner was aware of

his constitutional rights, he is entitled to no relief. Johnson v. State, 834 S.W.2d 922, 926

(Tenn. 1992).



               At a hearing on the post-conviction petition, trial counsel and the petitioner

testified. The proof showed that trial counsel was aware of the abuse problems the

petitioner was facing in the county jail. She spoke with authorities to have him transferred

to Williamson County. According to trial counsel, she met with the petitioner fifteen times

before the guilty plea hearing and two or three times afterwards. The petitioner indicated

to counsel that he wished to resolve the case as quickly as possible. Although the DNA

report was not conclusive, in the opinion of trial counsel, the state’s case was very strong

based on the fact that the victim was confident in her testimony and gave an accurate

description of the petitioner. Moreover, the petitioner was found in the victim’s cab shortly

after the crimes were committed. Finally, trial counsel testified that she went over the plea

agreement in detail with the petitioner.



               The petitioner testified that he decided to enter a guilty plea because he had

been returned to the jail in Davidson County and was afraid of further abuse while awaiting

trial and because his attorney told him she was taking off for the summer and would not

be available to help him. Although the petitioner stated under oath at the guilty plea

hearing that he had not been coerced or threatened into pleading guilty, he testified at the


                                               -2-
post-conviction hearing that his attorney instructed him to tell the judge what she wanted

to hear or else the plea would be denied.



               In dismissing the petition, the trial court held that the plea was not the result

of erroneous advise or coercion and that the plea was entered knowingly, voluntarily, and

intelligently. The trial court also held that the petitioner’s testimony regarding trial counsel’s

representation of him was not credible and that trial counsel’s services were well within the

range of competence demanded of attorneys in criminal cases.



               The petitioner has failed to meet his burden of showing that the evidence

preponderates against the trial court's findings. The trial court found, and we have agreed,

that the petitioner was well represented by trial counsel. Furthermore, the hearing on the

petitioner’s guilty plea reflects that the trial court advised the petitioner of his constitutional

and appellate rights and the fact that he was waiving those rights by pleading guilty. The

petitioner indicated at the guilty plea hearing that he understood his rights and that he was

not being coerced or threatened into waiving said rights. The trial court did not find the

petitioner’s explanations at the post-conviction hearing to be credible, and the evidence

does not preponderate against that finding.



               Accordingly, from our review of the record, we do not find that the evidence

preponderates against the trial court’s finding that the petitioner received effective

assistance of counsel and that his pleas were knowing and voluntary. The judgment is

affirmed.

                                                 ________________________________
                                                 JOE G. RILEY, JUDGE

CONCUR:

________________________________
CURWOOD WITT, JUDGE

________________________________
LEE MOORE, SPECIAL JUDGE




                                               -3-
