         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE             FILED
                         JANUARY SESSION, 1997         April 24, 1997

                                                   Cecil W. Crowson
ROO SEV ELT J OHN SMIT H,    )                   Appellate Court Clerk
                                  C.C.A. NO. 01C01-9604-CR-00135
     JR.,                    )
                             )
      Appellant,             )
                             )
                             )    DAVIDSON COUNTY
VS.                          )
                             )    HON . SETH N ORM AN
STATE OF TENNESSEE,          )    JUDGE
                             )
      Appellee.              )    (Post-Conviction)


               ON APPEAL FROM THE JUDGMENT OF THE
               CRIMINAL COURT OF DAVIDSON COUNTY


FOR THE APPELLANT:                FOR THE APPELLEE:

SHAW N A. TIDWELL                 CHARLES W. BURSON
209 T enth Av enue, S outh        Attorney General and Reporter
Suite 511
Nashville, TN 37203               LISA A. NAYLOR
                                  Assistant Attorney General
                                  450 James Robertson Parkway
                                  Nashville, TN 37243

                                  VICTOR S. JOHNSON
                                  District Attorney General

                                  SHARON L. BROX
                                  Assistant District Attorney General
                                  Washington Square, Suite 500
                                  222 Se cond A venue N orth
                                  Nashville, TN 37201




OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                  OPINION

      The Petitioner appeals as of right pursuant to Rule 3 of the Tennessee

Rules of Appellate Procedure from the trial cour t’s denial of h is petition for p ost-

conviction relief. On S eptember 8 , 1994, th e Petitio ner ple aded guilty to s ix

counts of aggravated burglary and one count of possession of cocaine with intent

to sell or deliver. As specified in the plea agreement, the trial court sentenced

him to fifteen years imprisonment for each aggravated burglary conviction, all

running concurrently, and to twenty years for the drug conviction. The drug

sentence was ordered to run conse cutively to the burglary sentences, resulting

in an effective senten ce of thirty-five years in the Department of Correction. The

Petitioner was classified as a Range III Persistent Offender. He filed a pro se

petition for post-conviction relief on July 11, 1995, which was amended with the

assistance of counsel on October 20, 1995. In his petition for post-conviction

relief, the Petitioner argued that he was denied effective assistance of counsel

at his guilty plea procee ding. After condu cting an evidentiary hearing, the trial

court found that the Petitioner had received effective assistance of counsel and

denied the petition . We affirm the ju dgme nt of the trial co urt.



       Although    the   record    contains     little   information   concerning   the

circumstances of the offen ses, we begin by setting forth the releva nt facts

pertaining to the Petitioner’s issue. The Petitioner was charged with several

offenses through three separate indictm ents.            Indictmen t number 94-B-884

charged him with one count of aggravated burglary and one count of theft of

property valued between one thousand dollars ($1,000) and ten thousand dollars



                                          -2-
($10,000).    Indictment number 94-B-886 charged him with two counts of

aggravated burglary and two counts of theft of property valued between one

thousand dollars ($1,000) and ten thousand dollars ($10,000).                Indictment

number 94-B-887 charged him with three counts of aggravated burglary and

three co unts of the ft of property valued between one thousand dollars ($1,000)

and ten thous and do llars ($10,0 00). In addition, the Petitioner was charged by

information with one count of possession of cocaine with intent to sell or deliver.

It appears that the Petitioner was on parole at the time of the alleged commission

of the offenses.



       Larry Hoover was appointed to represent the Petitioner. Hoover consulted

the Petitioner and began negotiating with the district attorney’s office. The initial

offer allowed the Petitioner to plead guilty to the aggravated burglaries as well as

the drug offense a nd receive an effective sentence of forty-five years to be served

as a career offender at sixty percent (60%). Hoover eventually convinced the

assistant district attorney to offer a sentence of thirty-five years to be served as

a persistent offen der at fo rty-five pe rcent (4 5%). The P etitione r acce pted th is

offer and, on September 8, 1994, entered guilty pleas to six counts of aggravated

burglary and o ne count of po ssession of co caine with intent to se ll or deliver.



       On July 11, 1995, the Petitioner filed a pro se petition for post-conviction

relief, challenging only his drug conviction. The petition was amended with the

assistance of counsel, but the amended petition still challenged only the drug

conviction. The Petitioner argued that his attorney at the guilty plea proceeding,

Larry Hoover, rendered ineffective assistance of counsel in two respects. The

Petitioner first con tende d that h is trial co unse l errone ously informed him that the

                                           -3-
sente nce for the drug conviction would run concurrent with his sentences for

aggravated burglary. Secondly, he contended that his trial counse l failed to

investigate the circumstances surrounding the drug offens e. The trial court

conducted an evidentiary hearing on October 20, 1995.



       The Petitioner testified in his own behalf at the evidentiary hearing. He

stated that he ha d met w ith his attorney approximately four times before pleading

guilty. According to the Petitioner, he was not present at the plea negotiations.

His attorney informed him that, under the plea agreem ent, he would re ceive

fifteen year sentences for the burglaries and a twenty year sentence for

possession of coc aine w ith inten t to sell or deliver. He and his attorney spent

only five to ten m inutes go ing over th e plea ag reeme nt, and h e did n ot com pletely

read it before signing it. The Petitioner understood his effective sentence to be

twenty years. He stated that he wou ld have p roceed ed to trial if he had realized

that his effective sentence was thirty-five years.



       The Petitioner’s testimon y also provided the o nly facts in the record

pertaining to the drug offense. He testified that he was driving a van which was

titled in the name of Karen Wills. There were apparently other individuals in the

van. The Petitioner pulled into a car wash and knocked on the door of the

service booth. He heard a voice ask him to wait for a minute. He waited and

event ually knocked on the door again. Accord ing to the Petitioner, the door

opened and a police officer put a gun to his head, pulled him inside, and

handcuffed him. The officer searched him for weapons and contraband but found

none. Officers then searched the van and found cocaine. The Petitioner testified




                                           -4-
that he had not given consent to search the van and the officers did not have a

warran t.



      The Petitioner informed his attorney of these facts and stated that he was

not guilty of the d rug offen se.   He m aintained that the drugs belong ed to

someone else. He admitted that he had committed the burglaries, and he even

cooperated with police officers on tho se cases.       H e never m ade any s uch

admissions with regard to the drug offense though. In fact, he testified that he

wanted to proce ed to trial on that charg e beca use he was inno cent.



       On cross-examination, the Petitioner admitted that he had been through

a plea process before and was actually on parole at the time of the burglaries and

drug offense. He stated th at his a ttorney talked with him abou t the po ssible

range of his sentence and informed him that he probably faced a greater

sentence if he proceede d to trial. He te stified further that he sig ned the guilty

plea form fre ely and voluntarily and that he did not dispute the facts supporting

the offenses as the y were read by the assistant district attorney at the guilty plea

proceeding.



       The Petitioner’s attorney at the guilty plea proceeding, Larry Hoover, also

testified at the post-conviction hearing. Hoover stated that he was lice nsed in

1992 and that his practice was thirty to forty-five percent (30%-45%) criminal law.

He had h andle d approximately forty to sixty criminal cases, including seven or

eight jury trials. Hoover recalled that he met with the Petitioner four times. He

discussed the cases with the Petitioner and came to conclusion that he had no

viable defenses. According to Hoover, he and the Petitioner came to a mutual

                                         -5-
understanding that the res olution of h is cases was m ore abo ut the time to be

served rather than defenses. Given that the Petitioner had nine prior felony

convictions, Hoov er’s m ain co ncern beca me a poten tially large effective

sentence. Hoover stated that the State’s initial plea offer was forty-five years at

sixty percent (60%). He negotiated with the assistant district attorney and

received an offer of thirty-five years at forty-five percent (45% ). He explained the

offer to the Petitioner, and the Pe titioner u nders tood th at his effective sentence

was thirty-five years.



      On cross-examination, Hoover stated that the number of sentences at

issue could have been confusing to the Petitioner. In fact, Hoover himself was

unsure prior to the post-conviction hearing ab out which sen tences were

supposed to run concu rrently and which w ere to run con secutively.            Upon

reviewing the plea agreement, howeve r, it was clear to him that the drug

sentence was to ru n cons ecutive to th e burgla ry senten ces. He testified further

that it was his normal practice to go over plea agreements very carefully with

defendants.



      Upon additio nal qu estion ing, Ho over a dmitted that he was unaware of what

had occurred at the preliminary hearing concerning the drug offense. He stated

that he had not requ ested for mal disc overy with regard to the drug offense. He

also did not interview any o f the police officers involved in the search of the van,

nor did he interview any of the other individuals who were in the van at the time

of the search. Hoover stated that his main focus was on the burglary offenses

and, more specifically, the potential sentence associated with those offenses.




                                         -6-
Hoover did, however, acquire a copy of the lab report indicating that the

substance found in the van was cocaine.



      At the conclusion of the hearing, the trial court found Hoover’s testimony

to be credible and found that the plea had been fully explained to the Petitioner.

As a result, the trial court conclud ed that the Pe titioner was aware that he wo uld

serve an effective sentence of thirty-five years under the plea agreeme nt.

According ly, the trial court denied the petition, stating that Hoover had provided

effective as sistance of couns el. The P etitioner the n appe aled to this Court.



      In determining whether or not counsel provided effective assistance a t trial,

the court must decide whether or not counsel’s performance was within the range

of competence dem anded of attorney s in crimin al cases . Baxter v. Rose, 523

S.W.2d 930 (T enn. 19 75).      To succee d on a cla im that his counsel was

ineffective at trial, a petitioner bears the burden of showing that his counsel made

errors so serious that he was not functioning as counsel as guaranteed under the

Sixth Amendment and that the deficient representation prejudiced the petitioner

resulting in a failure to produ ce a reliab le result. Strickland v. Washington, 466

U.S. 668, 68 7, reh’g denied, 467 U.S . 1267 (1 984); Cooper v. State, 849 S.W.2d

744, 74 7 (Ten n. 1993 ); Butler v. Sta te, 789 S.W.2d 898, 899 (Tenn. 1990). To

satisfy this second prong the petitioner must show a reaso nable p robability tha t,

but for cou nsel’s unreasonable error, the fact finder w ould h ave ha d reas onab le

doubt regarding petitioner’s g uilt. Strickland, 466 U.S. at 695. T his rea sona ble

probab ility must be “su fficient to undermine confidence in the outcome .” Harris

v. State, 875 S.W .2d 662, 665 (Tenn. 199 4).




                                         -7-
      When reviewing trial counsel’s actions, this court should n ot use the be nefit

of hindsight to second-guess trial strategy and criticize coun sel’s tactics. Hellard

v. State, 629 S .W .2d 4, 9 (Ten n. 198 2). Co unse l’s allege d error s sho uld be

judged at the time it was mad e in ligh t of all facts and circums tances . Strickland,

466 U .S. at 690 ; see Cooper, 849 S.W.2d at 746.



      This two part standa rd of meas uring ineffective assistance of counsel also

applies to claims arising out of the plea process. Hill v. Lockhart, 474 U.S. 52

(1985). The prejudice requirement is modified so that the petitioner “must show

that there is a reasonable probability that, but for counsel’s errors he would not

have pleade d guilty and wou ld have insisted on going to trial.” Id. at 59.



      W e note that under the provisions of the Post-Conviction Procedure Act of

1995, a petitioner bears the burden of proving the allegations in the petition by

clear and convincin g eviden ce. Ten n. Cod e Ann. § 40-30-2 10(f) (Supp. 199 6).

In addition, the factual findings of the trial court are conclusive on appeal unless

the evidence in the record p repond erates a gainst the m. State v. Buford, 666

S.W .2d 473, 475 (Tenn. Crim . App. 1983 ).



      With regard to the P etitione r’s con tention that his trial cou nsel e rrone ously

informed him th at the tw enty-ye ar drug sente nce w ould ru n con curren t with his

fifteen-year burglary senten ces, we believe tha t the Petition er has fa iled to

establish that his counsel’s representation was constitutionally deficient. The

Petitioner testified at the post-conviction hearing that his trial counsel, Larry

Hoover, led him to believe that his drug s enten ce wo uld run conc urren t with his

burglary sentences . Hoover, on the other hand, testified that it was his practice

                                          -8-
to review the terms o f plea agre emen ts carefu lly with defendants and that the

Petitioner was fully aware th at his effec tive senten ce was thirty-five years. After

hearing testimony and evaluating the credibility of the witnesses, the trial judge

specifically found Hoover’s testimony to be persuasive. From our review of the

record, we cannot conclude that the evidence preponderates against the finding

of the trial court. Accordingly, we conclude that counsel Hoover’s representation

with regard to the Petitioner’s sentence was within the range of competence

demanded of attorneys in criminal cases.



      The Petitioner also contends that Hoover rendered ineffective assistance

by failing to investigate the circumstances surrounding the drug offense. The

testimony at the post-conviction hearing reveals that Hoover was unaware of any

facts pertaining to the drug offen se which we re developed at the preliminary

hearing. Hoover did not request formal discovery with regard to the drug offense,

did not interview the police officers involved in the search of the van, and did not

intervie w any of the other individuals allegedly present at the time of the

discovery of the cocaine. It appears that Hoover’s investigation of the drug

offense was limited to examining the lab report analyzing the drugs found in the

van. According to Hoover himself, his primary focus was on the Petition er’s

burglary offenses.



      It is well-estab lished that defe nse co unsel m ust cond uct an ap propriate

investigation into both the facts and the law to determine what matters of defense

can be deve loped. See, e.g., Baxter v. Rose, 523 S.W .2d at 936 ; McBee v.

State, 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, our supreme

court recognized in Baxter that the American Bar Association Standards for

                                         -9-
Criminal Justice provide useful guidance with regard to the function and

responsibilities of defense counsel. The American Bar Association standards

explain defense counsel’s duty to investigate with the following language:

      It is the duty of the lawyer to conduct a prompt investigation of the
      circumstances of the case and to explore all aven ues lead ing to
      facts relevant to the merits of the case and the penalty in the event
      of conviction . The inve stigation sh ould alwa ys include efforts to
      secure informa tion in the possession of the prosecution and law
      enforcement authorities. The duty to investigate exists regardless
      of the accused’s admissions or statem ents to the lawyer of fa cts
      constituting guilt or the acc used’s stated d esire to plead gu ilty.

ABA Standa rds for Crim inal Justice § 4-4.1 (2 d ed. Su pp. 1986). Applying the

foregoing principles to the case sub judice, we believe that cou nsel Hoove r’s

representation was a rguab ly deficie nt in tha t he faile d to investigate the drug

offense ade quately.



      Even if we were to find cou nsel Ho over’s rep resenta tion deficient, however,

we do not b elieve that the Petition er has d emon strated su fficient prejud ice to

satisfy the second prong of the Strickland standard. It appears that the Petitioner

argues that he was p rejudic ed be caus e a pro per inv estiga tion of the facts

surrounding the drug offense may have indicated the evidence was

unco nstitutio nally obtained and co uld have been s uppres sed. We note that the

prejudice analys is app licable to this typ e of alle ged e rror of c ouns el close ly

resembles the prejudice an alysis applicable to jury co nvictions.        See Hill v.

Lockhart, 474 U.S. at 5 9, 106 S.C t. at 370. As the U nited States S upreme Court

explained in Hill v. Lockhart, whether such an error prejudiced the defendant by

causing him to plead guilty often depends on the likelihood that a correction of

the error would have led counsel to ch ange the rec omm endation to plea d guilty.

Id. This assessment, in turn, depends on a prediction of whether the evidence


                                         -10-
discovered through a full inve stigatio n wou ld have c hang ed the outco me o f a trial.

Id.



         The Petitioner suggests that a more thorough investigation of the

circumstances of the drug offense might have led to suppression of the cocaine

seized from the van he was driving. At the post-conviction hearing, however, the

Petitioner offered no evidence to support this speculation. Neither the police

officers involved in the search nor the other individuals in the va n were called to

testify. Instea d, the o nly evid ence offered to sup port this contention came from

the Petitioner himself, whose testimony the trial judge found to be unpersuasive.

Given these circum stances, we cannot spe culate that a m ore thorough

investigation of the drug offense would have revealed that the cocaine was

uncons titutiona lly seized and, therefore, would have led counsel Hoover to

change his recommendation to plead guilty. See Wa de v. State , 914 S.W.2d 97,

102 (Tenn . Crim. A pp. 199 5); Black v. S tate, 794 S.W.2d 752, 757-58 (Tenn.

Crim. App. 1990). As a result, we conclude that the Petitioner has n ot carrie d his

burden of establishing sufficient prejudice stem ming from h is coun sel’s alle gedly

deficient representation.



         For the reasons set forth in the discussion above, we conclude that the

Petitioner has failed to demonstrate that the trial court erred in denying the

petition for post-conviction relief. We therefore affirm the judgment of the trial

court.




                                          -11-
                         ____________________________________
                         DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JERRY L. SMITH, JUDGE



___________________________________
JOE G. RILEY, JUDGE




                             -12-
