         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON            FILED
                       JUNE 1998 SESSION          August 13, 1998

                                                 Cecil Crowson, Jr.
                                                 Appellate C ourt Clerk
WILLIAM CHARLES PARKER,        )
                               )    NO. 02C01-9711-CC-00432
      Appellant,               )
                               )    HENRY COUNTY
VS.                            )
                               )    HON. JULIAN P. GUINN,
STATE OF TENNESSEE,            )    JUDGE
                               )
      Appellee.                )    (Post-Conviction)



FOR THE APPELLANT:                  FOR THE APPELLEE:

TERESA McCAIG MARSHALL              JOHN KNOX WALKUP
308 W. Washington Street            Attorney General and Reporter
P.O. Box 459
Paris, TN 38242-0459                CLINTON J. MORGAN
                                    Assistant Attorney General
                                    Cordell Hull Building, 2nd Floor
                                    425 Fifth Avenue North
                                    Nashville, TN 37243-0493

                                    G. ROBERT RADFORD
                                    District Attorney General

                                    STEVEN L. GARRETT
                                    Assistant District Attorney General
                                    111 Church Street
                                    P.O. Box 686
                                    Huntingdon, TN 38344-0686




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                     OPINION



       The petitioner, William Charles Parker, appeals the trial court’s denial of

his petition for post-conviction relief. He received a life sentence after pleading

guilty to first degree murder and now claims the plea was the result of ineffective

assistance of counsel. The judgment of the trial court is AFFIRMED.



                                          I.



       The petitioner, accompanied by two (2) uncles, presented himself at the

Henry County jail and stated he wished to confess to a murder. The petitioner

had previously admitted to his uncles his involvement in the murder. The officers

present instructed the petitioner not to make any statement until counsel had

been obtained.



       The petitioner’s appointed counsel arrived at the jail a short time later.

The attorney was informed by the officers that they had been told by several

persons that the defendant had admitted his involvement in the murder, and that

the defendant had been seen with the victim within hours of the murder. The

petitioner informed counsel that he was worried about his “soul” and wished to

confess to clear his conscience. Counsel informed the petitioner that he could

not be forced to give a statement or testify against himself, and that the state

would be forced to prove their case against him without that evidence. Counsel

also discussed possible defenses with petitioner, including presenting evidence

of diminished capacity. Counsel testified that he advised the petitioner that if he

gave a statement, he should tell the truth.



       The petitioner insisted upon making a statement and admitted




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involvement in the murder after being read his Miranda rights by the officers.1

After giving the statement, the petitioner was formally arrested and later pled

guilty to first degree murder. Pursuant to a plea agreement, the petitioner was

sentenced to life imprisonment with the possibility of parole.



                                           II.



       The petitioner contends that his guilty plea was the result of ineffective

assistance of counsel. The petitioner claims his counsel should not have

allowed him to give a statement to the police without an investigation to

determine whether such a statement was in the petitioner’s best interests.



                                           A.



       This Court reviews a claim of ineffective assistance of counsel under the

standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The

petitioner has the burden to prove that (1) the attorney’s performance was

deficient, and (2) the deficient performance resulted in prejudice to the defendant

so as to deprive him of a fair trial. Strickland v. Washington, 466 U.S. at 687,

104 S.Ct. at 2064; Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Overton v.

State, 874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State, 789 S.W.2d 898, 899

(Tenn. 1990).



       The test in Tennessee in determining whether counsel provided effective

assistance is whether his performance was within the range of competence

demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d at 936.

The petitioner must overcome the presumption that counsel’s conduct falls within



       1
        Unfortunately, the statement given by the defendant is not in the record.
Based upon the entire record, we assume the statement was incriminating.

                                            3
the wide range of acceptable professional assistance. Strickland v. Washington,

466 U.S. at 689, 104 S.Ct. at 2065; Alley v. State, 958 S.W.2d 138, 149 (Tenn.

Crim. App. 1997); State v. Williams, 929 S.W.2d 385, 389 (Tenn. Crim. App.

1996). Therefore, in order to prove a deficiency, a petitioner must show that

counsel’s acts or omissions were so serious as to fall below an objective

standard of reasonableness under prevailing professional norms. Strickland v.

Washington, 466 U.S. at 688, 104 S.Ct. at 2065; Henley v. State, 960 S.W.2d

572, 579 (Tenn. 1997); Goad v. State, 938 S.W.2d at 369.



       In reviewing counsel's conduct, a "fair assessment . . . requires that every

effort be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel's challenged conduct, and to evaluate the conduct

from counsel's perspective at the time." Strickland v. Washington, 466 U.S. at

689, 104 S.Ct. at 2065. The fact that a particular strategy or tactic failed or hurt

the defense, does not, standing alone, establish unreasonable representation.

However, deference to matters of strategy and tactical choices applies only if the

choices are informed ones based upon adequate preparation. Goad v. State,

938 S.W.2d at 369; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); Alley v.

State, 958 S.W.2d at 149; Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.

App. 1992).



       In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the

Supreme Court applied the two-part Strickland standard to ineffective assistance

of counsel claims arising out of a guilty plea. The Court in Hill modified the

prejudice requirement by requiring a defendant to show that there is a

reasonable probability that, but for counsel's errors, he would not have pleaded

guilty and would have insisted on going to trial. 474 U.S. at 59, 106 S.Ct. at 370.




                                          4
                                          B.



       The petitioner’s counsel did not specifically advise the petitioner against

making a statement. The failure to do so at least raises the question of the first

Strickland prong, deficient performance. However, counsel’s performance must

be judged in the light of the circumstances at the time, not from hindsight.

Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065.



       Counsel was summoned to the jail on a Sunday afternoon and informed

he had been appointed to represent a person who wished to confess to a murder

in order to clear his conscience. Counsel had been apprised by the officers of

other evidence implicating the petitioner in the murder. Counsel fully explained

to the petitioner his constitutional right against self-incrimination, yet the

petitioner insisted upon making a statement. Counsel advised the petitioner that

if he insisted upon making a statement, to be truthful in doing so as it would inure

to his benefit in sentencing. Counsel realized that petitioner faced the possibility

of the death penalty.



       In his excellent findings of fact, Judge Julian P. Guinn noted the following:


                      Some five days following the killing that gave
              rise to the underlying case, petitioner revealed his
              involvement to two of his uncles. Following
              discussion, the uncles took him to the county jail for
              questioning. It was during this questioning that
              petitioner indicated that he wanted “get it off (his)
              conscience” by admitting guilt. Questioning was
              halted at that time and counsel contacted. Petitioner
              was not under arrest at that time. Counsel
              immediately came to the jail and conferred with both
              petitioner and his uncles. Petitioner was insistent
              upon admitting guilt and did so after being fully,
              properly and completely informed of his constitutional
              right against self-incrimination. An investigation that
              revealed every iota and scintilla of evidence available
              at that time would have been of no avail in view of the
              petitioner’s adamant insistence upon admitting guilt.


This Court is bound by these findings unless the evidence preponderates



                                           5
otherwise. Henley v. State, 960 S.W.2d at 578; Dixon v. State, 934 S.W.2d 69,

72 (Tenn. Crim. App. 1996).



       Based upon the circumstances surrounding the petitioner’s statement, we

are reluctant to find counsel’s performance deficient. Counsel was faced with a

client who, according to the trial court, was “adamant” in confessing to the

murder. Under the totality of the circumstances, we are unable to determine that

counsel was deficient.



       This issue is without merit.



                                         C.



       In addition, the petitioner bears the burden of demonstrating that he would

not have entered a plea of guilty had he not given the statement. See Hill v.

Lockhart, 474 U.S. at 59, 106 S.Ct. at 320. The substance of petitioner’s

argument in this regard is that the statement was given before his cooperation

could be used as a bargaining tool for a lighter sentence.



       Petitioner’s cooperation was apparently helpful in securing evidence

against his co-defendant. The defendant was offered and, in fact, received a life

sentence with the possibility of parole. Considering the evidence against the

defendant at the time of his statement and the possibility of the death penalty if

he went to trial, the petitioner has failed to show that he would not have pled

guilty absent this statement.



       This issue is without merit.




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                                 CONCLUSION



      The evidence does not preponderate against the trial court’s finding that

counsel was not deficient. Further, petitioner has failed to demonstrate

prejudice. Accordingly, the judgment of the trial court is AFFIRMED.




                                               _________________________
                                               JOE G. RILEY, JUDGE




CONCUR:




_________________________
PAUL G. SUMMERS, JUDGE




_________________________
DAVID H. WELLES, JUDGE




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