            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE              FILED
                            AUGUST 1997 SESSION
                                                         December 9, 1997

                                                        Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk
WILLIAM HAMILTON,              *    C.C.A. # 03C01-9611-CR-00439

      Appellant,               *    HAMILTON COUNTY

VS.                            *    Hon. Stephen M. Bevil, Judge

STATE OF TENNESSEE,            *    (Post-Conviction)

      Appellee.                *




For Appellant:                      For Appellee:

Tom Landis, Attorney                Charles W. Burson
Suite 327                           Attorney General and Reporter
744 McCallie Avenue
Chattanooga, TN 37403               Clinton J. Morgan
(on appeal)                         Counsel for the State
                                    450 James Robertson Parkway
Steven G. Moore, Attorney           Nashville, TN 37243-0493
1800-A Lafayette Road
Fort Oglethorpe, GA 30742           Bates W. Bryan, Jr.
(at evidentiary hearing)            Assistant District Attorney General
                                    Courts Building, 600 Market Street
                                    Chattanooga, TN 37402




OPINION FILED:__________________________




AFFIRMED




GARY R. WADE, JUDGE
                                        OPINION

              The petitioner, William Hamilton, appeals the trial court's denial of

post-conviction relief. The issue presented for our review is whether the guilty plea

was involuntary due to the ineffective assistance of trial counsel.



              We affirm the judgment of the trial court.



              On May 7, 1992, the petitioner pled guilty to attempted second degree

murder. The trial court imposed a Range II, twelve-year sentence. On April 25,

1995, the petitioner filed this petition for post-conviction relief alleging, among other

things, that his plea was not knowingly and voluntarily entered and that his counsel

was ineffective. Post-conviction counsel was appointed and an amended petition

was filed on behalf of the petitioner. At the conclusion of the evidentiary hearing,

the trial court determined that petitioner had been provided the effective assistance

of counsel and had knowingly and voluntarily entered a plea of guilt.



              In order for the petitioner to be granted relief on grounds of ineffective

assistance of counsel, he must establish that the advice given or the services

rendered was not within the "range of competence demanded of attorneys in

criminal cases" and that, but for his counsel's deficient performance, the result of his

trial would have been different. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975);

Strickland v. Washington, 466 U.S. 668 (1984). This two-part standard, as it applies

to guilty pleas, is met when the petitioner establishes that, but for his counsel's error,

he would not have pleaded guilty and would have insisted on trial. Hill v. Lockhart,

474 U.S. 52, 59 (1985).



              The burden is on the petitioner to show that the evidence


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preponderates against the findings of the trial judge. Clenny v. State, 576 S.W.2d

12, 14 (Tenn. Crim. App. 1978). Otherwise, the findings made by the trial court are

conclusive. Graves v. State, 512 S.W.2d 603, 604 (Tenn. Crim. App. 1973).



              In Boykin v. Alabama, 395 U.S. 238 (1969), the Supreme Court ruled

that trial courts must establish a record at the submission hearing that all guilty pleas

are knowingly and voluntarily entered. In order to meet constitutional standards, the

plea must represent "a voluntary and intelligent choice among the alternative

courses of action [available]." North Carolina v. Alford, 400 U.S. 25 (1970); Clark v.

State, 800 S.W.2d 500 (Tenn. Crim. App. 1990).



              At the evidentiary hearing, the petitioner complained that the trial judge

had represented that his sentence would be served in the county workhouse rather

than the state penitentiary. He also insisted that the trial judge should have

dismissed the indictment rather than granting a second continuance when state

witnesses failed to appear at trial. He argues that his trial counsel was ineffective

for failing to seek a dismissal.



              The record shows that the petitioner had prior convictions which had

resulted in periods of incarceration. In 1964, the petitioner received a five-year

sentence for felonious assault. In 1971, the petitioner received concurrent

sentences of three and ten years for felonious assault and second degree murder.



              At the evidentiary hearing, the petitioner's trial counsel recalled that the

trial judge allowed the defendant a period of time after his plea to provide care for

his mother before reporting to serve his sentence. While the record indicates that

the trial judge did advise the petitioner to report to either the county workhouse or


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the court to begin the service of his sentence, trial counsel explained that "it was

never part of the plea agreement that he was to actually serve his sentence at the

workhouse, that would have been an impossibility." The petitioner was to merely

surrender himself at a later date to the jail or to the court. Trial counsel believed the

petitioner understood the plea and that because a self-defense theory was not

viable in light of four stab wounds to the victim and several state witnesses refuting

the claim, the plea agreement was "absolutely" advantageous to the petitioner.



              The submission hearing record demonstrates that the petitioner

responded intelligently to a variety of questions imposed by the judge. The

petitioner clearly acknowledged that his plea was free and voluntary and that he

willingly accepted the state's offer to reduce the charge in return for the guilty plea.



              In our view, the petitioner's plea was knowingly and voluntarily entered.

Moreover, there is no indication that trial counsel was ineffective. Trial counsel

testified that she had sought a dismissal when the state moved to continue the case

from its original trial date on February 6, 1992. The trial court properly denied that

motion. Had counsel insisted on a dismissal for deprivation of the right to a speedy

trial, that relief would not have been warranted under these circumstances. The

crime was committed in September of 1991. The petitioner entered a guilty plea on

his scheduled trial date of May 7, 1992. See Barker v. Wingo, 407 U.S. 514 (1972);

State v. Bishop, 493 S.W.2d 81 (Tenn. 1973). From all of this, it appears that trial

counsel performed within the applicable standards.



              Accordingly, the judgment is affirmed.



                                           ________________________________
                                           Gary R. Wade, Judge

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CONCUR:



_____________________________
Paul G. Summers, Judge



_____________________________
William M. Barker, Judge




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