          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT JACKSON
                       AUGUST SESSION, 1997


                                                            FILED
GEORGE EDWARD RAYFORD, )                                October 8, 1997
                       )        No. 02C01-9705-CR-00172
     Appellee          )                              Cecil Crowson, Jr.
                       )        SHELBY COUNTY          Appellate C ourt Clerk
vs.                    )
                       )        Hon. W. FRED AXLEY, Judge
STATE OF TENNESSEE,    )
                       )        (Post-Conviction)
     Appellant         )



For the Appellant:              For the Appellee:

RICHARD F. VAUGHN               JOHN KNOX WALKUP
1928 - 100 N. Main              Attorney General and Reporter
Memphis, TN 38103
                                ELIZABETH T. RYAN
                                Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493


                                WILLIAM GIBBONS
                                District Attorney General

                                MS. RHEA CLIFT
                                Asst. District Attorney General
                                Criminal Justice Complex
                                Suite #301, 201 Poplar St.
                                Memphis, TN 38103



OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                    OPINION



       The appellant, George Edward Rayford, appeals as of right from the trial

court’s dismissal of his petition for post-conviction relief. Specifically, the

appellant contends that he was deprived of the ability to enter intelligent and

voluntary guilty pleas due to the ineffective assistance of counsel. After an

evidentiary hearing, the Criminal Court of Shelby County concluded that the

appellant failed to show by a preponderance of the evidence that he received

ineffective assistance of counsel at his guilty plea hearing.



       After a review of the record, we affirm the post-conviction court’s dismissal

of the appellant’s petition.



       On January 31, 1989, the appellant pled guilty to four counts of robbery

with a deadly weapon, two counts of robbery, and one count of unlawful

possession of a controlled substance with the intent to sell. Pursuant to a plea

agreement between the appellant and the State, the trial court sentenced him to

an effective sentence of forty years in the Department of Correction as a range II

offender. In particular, the trial court imposed sentences of forty years for each

robbery with a deadly weapon, ten years for each robbery, and ten years for

possession with intent to sell. These sentences are concurrent but consecutive

to the sentences for which the appellant was on parole at the time these crimes

were committed.



       The background of the case is as follows: On March 1, 1988, the

appellant was released on parole after serving four years of a ten year sentence

for two counts of simple robbery, three counts of armed robbery, one count of

grand larceny, and one count of receiving stolen property. The series of


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robberies to which the appellant pled guilty occurred between May 20 and May

31, 1988. The appellant was arrested on June 8, 1988, when he was

apprehended, along with a co-defendant, for possession of cocaine.



       In his petition for post-conviction relief, the appellant argues that

ineffective assistance of counsel caused him to enter uninformed and involuntary

guilty pleas. Specifically, with regard to the ineffective assistance of counsel

claim, the appellant contends that his initial trial counsel, Tommy Jagendorf,

failed to inform him that he had associated another attorney, Ronald Riggs, to

assist in his defense. Second, the appellant alleges that Mr. Riggs did not

conduct an adequate pre-trial investigation because he failed to interview all

potential witnesses and failed to visit the crime scenes. Additionally, the

appellant contends that trial counsel failed to keep him informed as to the

developments in his cases.



       At the post-conviction hearing, the State established that Mr. Riggs met

with the appellant five or six times in jail to discuss the charges against him. The

district attorney had informed Mr. Riggs that he would first proceed against the

appellant on the Esquire Cleaners robbery charge. Trial counsel also testified

that discovery was obtained from the State on all of the seven charges pending

against the appellant. Mr. Riggs further testified that, because this charge was

the first case pending against the appellant, he concentrated his efforts on this

offense. The State’s proof in this case included a positive identification of the

appellant by the victim and the appellant’s fingerprints found on the door to the

cleaners. Trial counsel attempted to interview the victim of the Esquire Cleaners

robbery, taped an interview he had with the appellant concerning that particular

robbery, and investigated the scene of that particular crime. He further

investigated the appellant’s alibis and found that none could be substantiated.

Additionally, Mr. Riggs obtained the appellant’s elementary and high school


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records and had the appellant evaluated by the Memphis Mental Health Center.



       The State offered the appellant an effective forty year sentence for all

charges against him. The record reflects that, if convicted, the appellant faced a

sentence of “thirty-five years to life” on each of the four aggravated robbery

charges. Consequently, based on the overwhelming evidence of the appellant’s

guilt and that a conviction would likely occur, Mr. Riggs advised the appellant that

a forty year sentence was a “fair settlement” for all the cases, “considering what

was at risk.” The decision to plead rested with the appellant. During the guilty

plea hearing, the trial court fully advised the appellant of his rights and informed

him of the consequences of his pleas. Based upon the evidence presented to

the trial court and the proof shown at the post-conviction hearing, the post-

conviction court found that the appellant’s pleas were knowing and voluntary.

The post-conviction court concluded that the appellant’s claims of ineffective

assistance of counsel were not supported by a preponderance of the evidence.



       On appeal, we must determine whether the evidence presented at the

post-conviction hearing preponderates against that court’s findings. In North

Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164 (1970), the United States

Supreme Court held, “The standard was and remains whether the plea

represents a voluntary and intelligent choice among the alternative courses of

action open to the defendant.” In evaluating the knowing and voluntary nature of

the appellant’s pleas, this court must look to the totality of the circumstances.

State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995), perm. to appeal

denied, (Tenn. 1996). See also Chamberlain v. State, 815 S.W.2d 534, 542

(Tenn. Crim. App. 1990), perm. to appeal denied, (Tenn. 1991). We may

consider any relevant evidence in the record of the proceedings, including post-

conviction proceedings. Id. The evidence before the post-conviction court

included the appellant’s prior record, the overwhelming evidence against him,


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and the appellant’s exposure to lengthy multiple sentences. 1 Based on the

totality of these circumstances, the post-conviction court concluded that the

appellant’s guilty pleas were knowing and voluntary.



        The record also supports the post-conviction court’s finding that

appellant’s counsel rendered effective assistance. As noted earlier, on appeal,

this court is bound by the post-conviction court’s findings of fact unless the

evidence in the record preponderates against those findings. Davis v. State, 912

S.W.2d 689, 697 (Tenn. 1995). See also Black v. State, 794 S.W.2d 752, 755

(Tenn. 1990). In other words, in post-conviction proceedings, the appellant must

prove the allegations in his petition by a preponderance of the evidence. Davis,

912 S.W.2d at 697. Specifically, when a claim of ineffective assistance of

counsel is raised, the appellant bears the burden of showing that (a) the services

rendered by trial counsel were deficient and (b) the deficient performance was

prejudicial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064

(1984); Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993); Butler v. State, 789

S.W.2d 898, 899 (Tenn. 1990). With respect to deficient performance, the court

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

competence demanded of attorneys in criminal cases. Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975). To satisfy the prejudice prong of the Strickland

test, the appellant must show a reasonable probability that, but for counsel’s

ineffective performance, the result of the proceeding would have been different.

Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Accordingly, when the appellant

seeks to set aside a guilty plea on the ground of ineffective assistance of

counsel, he must demonstrate a reasonable probability that, but for counsel’s

deficiency, he would have insisted upon proceeding to trial. Hill v. Lockhart, 474

U.S. 52, 59, 106 S.Ct. 366, 370 (1985); Bankston v. State, 815 S.W.2d 213, 215



        1
         The post-conviction court noted that the appellant faced sen tences which could have
totaled 190 years.

                                                5
(Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1991); Manning v. State, 883

S.W.2d 635, 637 (Tenn. Crim. App. 1994). The post-conviction court found that

Mr. Riggs adequately prepared for and investigated the cases against the

appellant. Moreover, the trial court found that the performance of counsel was

within the range of competence demanded of attorneys in criminal cases.



       We conclude that the evidence in the record does not preponderate

against the post-conviction court’s findings. Accordingly, the judgment of the

post-conviction court dismissing the appellant’s petition is affirmed.




                                   ____________________________________
                                   DAVID G. HAYES, Judge




CONCUR:



_________________________________
JERRY L. SMITH, Judge




________________________________
THOMAS T. W OODALL, Judge




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