         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs May 6, 2003

                   SAMUEL PEGUES v. STATE OF TENNESSEE

                      Appeal from the Circuit Court for Madison County
                          No. C-02-22     Roy Morgan, Jr., Judge



                     No. W2002-01296-CCA-R3-PC - Filed July 29, 2003


The Appellant, Samuel Pegues, appeals the Madison County Circuit Court’s dismissal of his petition
for post-conviction relief. Pegues was convicted of second degree murder and received a sentence
of twenty-one and one-half years. On appeal, the single issue presented for our review is whether
Pegues was denied the effective assistance of counsel. Following a review of the record, we affirm
the judgment of the post-conviction court dismissing the petition.

                 Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which JOE G. RILEY and JOHN EVERETT
WILLIAMS, JJ., joined.

J. Colin Morris, Jackson, Tennessee, for the Appellant, Samuel Pegues.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Helena Walton
Yarbrough, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and
Alfred Earls, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                             OPINION

                                       Factual Background

       The Appellant was convicted by a Madison County jury of second degree murder and was
sentenced to twenty-one and one-half-years imprisonment. The Appellant's conviction was affirmed
on direct appeal. See State v. Samuel Pegues, No. W1999-01865-CCA-R3-CD (Tenn. Crim. App.
at Jackson, Oct. 11, 2000), perm. to appeal denied, (Tenn. 2001). On January 23, 2002, the
Appellant filed a petition for post-conviction relief, alleging that he received ineffective assistance
of counsel.1 The proof underlying the Appellant’s conviction established that he and his girlfriend,
the victim, maintained a volatile relationship for several years. On this occasion, the Appellant and
the victim were visiting at a friend’s house, when again a violent argument ensued. Both had been
drinking beer throughout the day. The Appellant admitted that he shot the victim with his pistol but
only after she “rushed” at him with a steak knife. In reviewing the sufficiency of the evidence on
direct appeal, this court summarized the proof as follows:

         The [deceased] victim was observed in the kitchen near a bedroom area. There was
         an overturned chair in the kitchen, an overturned vacuum cleaner in the living room,
         a torn curtain in the kitchen, and various knives and forks on the floor of the kitchen.
         A small right-handed ‘paring type knife’ was found lying on the kitchen floor, a small
         knife was found lying on the living room floor near the entrance to the kitchen, and
         a butcher knife was found lying just inside the bedroom area off the kitchen.

         ...

         There was no dispute that the [Appellant] shot and killed [the victim]. The State
         established that [the victim] was shot from a distance of three feet or more. There
         was also proof that the [Appellant] carried a pistol, that he had displayed the pistol
         that evening, and that he ultimately shot the victim once with the pistol. The
         [Appellant] then left the location of the shooting and placed the weapon between two
         pieces of plywood. Although he sought help for [the victim], the [Appellant] did not
         admit at first that he shot her. He told Ms. Fuller that she was having a heart attack.
         A rational jury could have concluded from this evidence that the [Appellant] was
         reasonably certain when he shot [the victim] that her death would be the result of the
         gunshot. Thus, the evidence was sufficient to support the conviction for second
         degree murder.

Samuel Pegues, No. W1999-01865-CCA-R3-CD.

       At the conclusion of the evidentiary hearing, the post-conviction court dismissed the
Appellant’s petition, finding that no relief was warranted. This appeal followed.

                                                      ANALYSIS

        In order to succeed on a post-conviction claim, the Appellant bears the burden of showing
by clear and convincing evidence, the allegations set forth in his petition. Tenn. Code Ann. § 40-30-
210(f) (1997). The Appellant’s claim of ineffectiveness of counsel, in its entirety, follows:


         1
           In the Appellant’s post-conviction petition he also raised three additional issue s, and the State addressed those
issues in it’s brief. However, the po st-conviction court found that these issues were either previously determined or
waived, and counsel for the App ellant did not ob ject to the State’s motion to deny those grounds without a hearing.
Accordingly, we will only address the single issue presented by the App ellant for review.

                                                            -2-
               It is the Petitioner’s position that [trial counsel], being educated in the law
       and having the power of persuasion, should have clearly advised him that his (sic)
       was in his best interest to take the State’s offer of Voluntary Manslaughter with the
       term of six years, Range I, 30% as opposed to going to trial for Second Degree
       Murder. It is the Petitioner’s position that [trial counsel] could have influenced him
       strongly to take this offer. The Petitioner avers that he was not clear as to the
       difference between Second Degree Murder and Voluntary Manslaughter. Further,
       he feels as though [trial counsel] put the issue of self defense in front of the
       Voluntary Manslaughter offer. Petitioner feels that under the facts and circumstances
       of this case that if [trial counsel] would have used his power of persuasion as an
       educated lawyer to convince him that to take the offer would eliminate the risk of
       going to trial on a self defense theory and possibly getting a guilty verdict that he
       would have taken the Voluntary Manslaughter offer. It is Mr. Pegues’ position that
       had [trial counsel] exercised reasonable duty and care in advising him that he would
       have taken the Voluntary Manslaughter Offer.

The Appellant fails to provide this court with any legal authority in support of his argument.
Accordingly, this issue is waived. Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b).
Nonetheless, in the interest of justice, we elect to review the issue presented.

        To succeed in a challenge for ineffective assistance of counsel, the Appellant must
demonstrate that counsel’s representation fell below the range of competence demanded of attorneys
in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984), the Appellant must establish (1)
deficient representation and (2) prejudice resulting from the deficiency. The issues of deficient
performance by counsel and possible prejudice to the defense are mixed questions of law and fact.
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). “A trial court’s findings of fact underlying a claim
of ineffective assistance of counsel are reviewed on appeal under a de novo standard, accompanied
with a presumption that those findings are correct unless the preponderance of the evidence is
otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13(d));
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, conclusions of law are reviewed
under a purely de novo standard, with no presumption of correctness. Fields, 40 S.W.3d at 458.

        In the present case, the State made an offer of a six-year sentence to be served at 30% in
exchange for the Appellant’s guilty plea to voluntary manslaughter. This offer was declined by the
Appellant, and he proceeded to trial. After his jury conviction for second degree murder, he received
a sentence of twenty-one and one-half years to be served at 100%. The Appellant argues that trial
counsel was ineffective because he did not persuade him to plead guilty. Furthermore, at the post-
conviction hearing, the Appellant contended that trial counsel failed to adequately explain the
sentencing range for second degree murder. The Appellant asserts that had he understood the
sentencing ranges for second degree murder and voluntary manslaughter, he would have accepted
the offer instead of going to trial. After review, the post-conviction court, concluding that the
Appellant received the effective assistance of counsel, found as follows:


                                                -3-
       [T]he Court finds that [trial counsel] provided the assistance required under the
       Constitution of the United States and the State of Tennessee. Specifically the Court
       finds:

               A. Counsel obtained all discovery and discussed the discovery and
               facts of the case with the defendant/petitioner.

               B. Counsel discussed the terms of the plea bargain offered by the
               State.

               C. Counsel made numerous visits with the defendant/petitioner.

               D. Counsel did explain the penalty range that the defendant/petitioner
               was facing under the indictment.

               E. Counsel properly discussed the defendant/petitioner’s options of
               going to trial and taking the State’s plea offer. The
               defendant/petitioner therefore made an informed and knowing
               decision to proceed with a trial.

At the post-conviction hearing, trial counsel testified that he did review the State’s offer with the
Appellant and the sentencing ranges of second degree murder and the lesser included offenses if he
proceeded to trial. The post-conviction court found that trial counsel “was very explicit as to going
over the plea bargain offer by the State. . . .” Trial counsel testified that he explained to the
Appellant the “difference in second degree and lesser offenses if convicted of second degree,
particularly the difference of being convicted of second degree and what was on the table.”
Furthermore, trial counsel met with the Appellant on numerous occasions and reviewed with him
the strengths and weaknesses of the case. The post-conviction court noted, “[Trial counsel] was very
explicit as to his numerous visits with this Defendant, his effort in investigating the case in great
detail, finding witnesses on behalf of the Defendant. He worked very hard, the best I could tell, from
his testimony.” The post-conviction court obviously credited the testimony of trial counsel that he
informed the Appellant of the State’s offer and the possible sentences the Appellant could receive
if he proceeded to trial. Because we do not revisit the issue of credibility on appeal, we defer to the
post-conviction court's ruling in that regard. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim.
App. 1990). Moreover, there is no constitutional right of an accused to plea bargain, and there is no
duty of the government to engage in plea negotiations. Joseph Lance Risner v. State, No. E2002-
01112-CCA-R3-PC (Tenn. Crim. App. at Knoxville, June 30, 2003) (citing 22 C.J.S. Criminal Law
§ 366 (1989)). We conclude that the record fully supports the finding of the post-conviction court
that the Appellant has not proven by clear and convincing evidence that he was inadequately advised
as to the possible punishment for second degree murder if he proceeded to trial. Therefore, this issue
is without merit.




                                                 -4-
                                          CONCLUSION

       Based upon the foregoing, we find that the post-conviction court did not err in ruling that the
Appellant received the effective assistance of counsel. Accordingly, the judgment of the post-
conviction court is affirmed.




                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE




                                                 -5-
