             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT NASHVILLE             FILED
                             OCTOBER 1997 SESSION
                                                             December 18, 1997

                                                             Cecil W. Crowson
                                                            Appellate Court Clerk
JERRY WAYNE MARABLE,                   )
                                       )
                   APPELLANT,          )
                                       )           No. 01-C-01-9611-CC-00493
                                       )
                                       )           Rutherford County
v.                                     )
                                       )           J. S. Daniel, Judge
                                       )
                                       )           (Post-Conviction Relief)
STATE OF TENNESSEE,                    )
                                       )
                    APPELLEE.          )



FOR THE APPELLANT:                          FOR THE APPELLEE:

Jerry Wayne Marable, Pro Se                 John Knox Walkup
South Central Correctional Center           Attorney General & Reporter
P.O. Box 279                                500 Charlotte Avenue
Clifton, TN 38425-0279                      Nashville, TN 37243-0497
(Appeal Only)
                                            Clinton J. Morgan
Howard W. Wilson                            Counsel for the State
Attorney at Law                             450 James Robertson Parkway
6 Public Square, North                      Nashville, TN 37243-0493
Murfreesboro, TN 37130
(Trial Court Only)                          William C. Whitesell, Jr.
                                            District Attorney General
                                            Justice Building, Third Floor
                                            Murfreesboro, TN 37130

                                            Paul A. Holcombe, III
                                            Assistant District Attorney General
                                            Justice Building, Third Floor
                                            Murfreesboro, TN 37130




OPINION FILED:______________________________


AFFIRMED


Joe B. Jones, Presiding Judge
                                    OPINION


       The appellant, Jerry Wayne Marable (petitioner), 1 appeals as of right from a

judgment of the trial court dismissing his action for post-conviction relief following an

evidentiary hearing. The trial court found the petitioner received the effective assistance

of counsel prior to and during the submission hearing, the petitioner’s plea of guilty was

understandingly, voluntarily, and intelligently entered, and the petitioner failed to establish

the District Attorney General’s Office engaged in prosecutorial misconduct. In this court,

the pro se brief filed by the petitioner does not delineate an issue presented for review. It

appears the petitioner asserts his innocence and claims he was denied his constitutional

right to the effective assistance of counsel.

       The record reflects the defendant was charged with the rape of a child under the

age of thirteen. He was permitted to enter a plea of guilty to aggravated sexual battery and

was sentenced as a Range I standard offender to confinement for eight and one-half years

in the Department of Correction pursuant to a plea agreement. He advised the trial court

he was not guilty of the offense in question because the charge was fabricated. He further

stated he was entering the guilty plea for “my best interest for my family.” The trial court

refused to accept the plea unless the petitioner agreed there was a factual basis for his

plea. The petitioner agreed there was a factual basis for his plea.

       The petitioner failed to establish by clear and convincing evidence he was denied

his constitutional right to the effective assistance of counsel. See Tenn. Code Ann. § 40-

30-210(f). He did not testify in support of his grounds. Moreover, the petitioner did not

establish the two-prong test established in Hill v. Lockart, 474 U.S. 52, 106 S.Ct. 366, 88

L.Ed.2d 203 (1985). The submission hearing transcript reveals the petitioner was pleased

with the services of the attorneys who represented him. Counsel met with the petitioner

prior to the date he entered the guilty plea. Counsel revealed the information obtained,

provided the petitioner with copies of statements, and spent several hours explaining the

ramifications of a guilty plea. The trial court was extremely tolerant and patiently advised



       1
       The petitioner was indicted as “Jerry Wayne Marable A/K/A Jerry DeWayne
Marable.”

                                                2
the petitioner of his rights. The court wanted to make sure the petitioner was in fact

understandingly, intelligently, and knowingly pleading guilty to the lesser included offense

of aggravated sexual battery.

       This court is of the opinion the evidence contained in the record does not

preponderate against the findings of fact made by the trial court.




                                   ____________________________________________
                                         JOE B. JONES, PRESIDING JUDGE



CONCUR:



______________________________________
      WILLIAM M. BARKER, JUDGE



______________________________________
       JOE G. RILEY, JUDGE




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