             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE                  FILED
                            FEBRUARY 1996 SESSION
                                                               June 30, 1997

                                                            Cecil W. Crowson
WILLIAM LEE BRAMLETT,           )                          Appellate Court Clerk
                                )
             Appellant,         )    No. 01C01-9506-CC-00207
                                )
                                )    Humphreys County
v.                              )
                                )    Honorable Allen W. Wallace, Judge
                                )
STATE OF TENNESSEE,             )    (Post-Conviction)
                                )
             Appellee.          )


For the Appellant:                   For the Appellee:

Shipp R. Weems                       Charles W. Burson
District Public Defender             Attorney General of Tennessee
       and                                  and
Robbie T. Beal                       Sarah M. Branch
Assistant Public Defender            Assistant Attorney General of Tennessee
P.O. Box 160                         450 James Robertson Parkway
Charlotte, TN 37036                  Nashville, TN 37243-0493

                                     Dan Mitchum Alsobrooks
                                     District Attorney General
                                     Court Square, P.O. Box 580
                                     Charlotte, TN 37036-0580

                                     George C. Sexton
                                     Assistant District Attorney General
                                     Humphreys County Court House
                                     Waverly, TN 37185




OPINION FILED:____________________



AFFIRMED

Joseph M. Tipton
Judge
                                       OPINION



              The petitioner, William Lee Bramlett, appeals as of right from the

Humphreys County Criminal Court’s dismissal of his petition for post-conviction relief.

The petitioner pled guilty to four counts of grand larceny, two counts of obtaining money

under false pretenses, statutory rape, contributing to the delinquency of a minor,

vandalism, forgery, passing a forged instrument, and three counts of passing worthless

checks. In exchange for his pleas, he received an effective sentence of ten years for

the various convictions, to be served under the Community Corrections Act of 1985,

and the state agreed to the dismissal of several other charges. His community

corrections sentence was eventually revoked, and the trial court ordered that he serve

his ten-year sentence in the Department of Correction. On July 19, 1991, the petitioner

filed a pro se petition for post-conviction relief. Although somewhat rambling, the

petition alleged that the petitioner received ineffective assistance of counsel and

entered an involuntary plea. The trial court summarily dismissed the petition. This

court reversed the summary dismissal and remanded the case for the appointment of

counsel. William Lee Bramlett v. State, No. 01C01-9202-CC-00049, Humphreys

County (Tenn. Crim. App. May 19, 1994). After the appointment of counsel and an

evidentiary hearing, the trial court denied the petition because it concluded that the

petitioner understood the terms of his original plea and that his original counsel was

effective in his pretrial preparation. The petitioner contests these findings and claims

that the trial court improperly refused to grant his request for a copy of the transcript

from his guilty plea submission hearing.



              The petitioner was the only person to testify at the post-conviction

hearing. He complained that his trial attorney failed to explain the specifics of his

community corrections sentence. He said that his attorney never told him that he could

be resentenced if he violated the terms of his sentence. Although he recalled meeting


                                              2
with his attorney and a corrections officer at his attorney’s office, he said that the

corrections officer only told him that he would be required to serve ninety days on

house arrest and would be required to enroll in a GED program. He said that his

attorney told him that once he served ninety days on house arrest, paid restitution, and

performed two hundred hours of public service, the rest of his sentence would be

served on probation. The petitioner also complained that his attorney failed to

investigate the facts of his case adequately.



              During cross-examination, the petitioner recalled that when he entered his

plea he knew what the charges were against him and knew the charges to which he

was pleading guilty. He said that he understood that he had the right to a jury trial, the

right to choose whether to testify and the right to cross-examine witnesses. He also

said that he understood that there would not be a trial if he pled guilty. The petitioner

testified that he understood that in exchange for his plea he would receive two five-year

sentences “run together” with all of his other sentences to be served concurrently. He

again criticized his attorney for telling him that he would only have to serve ninety days

on house arrest and that the rest of his sentence would be on probation. He said that

the trial judge never informed him that he may end up serving the entire ten-year

sentence.



              The petitioner recalled being told that he would serve ten years at thirty

percent when he violated house arrest. He said that he thought he would have to serve

thirty percent of his sentence but complained that he had already served four years and

would not be eligible for parole again for another two years.



              Under questioning from the court, the petitioner testified that he entered

the plea in order to take care of his family and avoid going to prison. He admitted that

the trial court explained to him that he was receiving a community corrections sentence



                                              3
and not a probationary sentence. However, he said that he did not remember the court

ever explaining the difference between the two. He also admitted that he signed the

last page of the presentence report, a behavioral contract agreement, and a restitution

agreement. The paragraphs directly above the defendant’s signature on the

presentence report and the restitution agreement warn that a violation of the terms of

the agreements can result in incarceration and termination from the community

corrections program.



                The trial court concluded that the petitioner had been fully advised and

well represented by counsel when he entered his plea. In reaching its decision, the

court noted that it did not increase the petitioner’s sentence when he violated the terms

of his community corrections sentence, although an increase would have been justified.



                                                      I

                The petitioner contends that the trial court erred by denying him post-

conviction relief based upon his claim of ineffective assistance of counsel. He argues

that in the absence of proof from the state, the trial court should have granted him relief

on the ineffective assistance of counsel claim based on the allegations in the pro se

petition and on the petitioner’s testimony concerning his attorney’s failure to investigate

possible defenses and failure to advise him of his rights.



                The burden was on the petitioner in the trial court to prove his allegations

that would entitle him to relief by a preponderance of the evidence.1 Brooks v. State,

756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). On appeal, we are bound by the trial

court’s findings unless we conclude that the evidence preponderates against those

findings. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). In this respect,




        1
           For pos t-conviction petitions filed after May 10, 1995 , petitioners have the burd en of
proving factual allegations by clear and convincing evidenc e. T.C.A. § 40-30-2 10(f) (Supp. 1996 ).

                                                     4
the petitioner has the burden of illustrating how the evidence preponderates against the

judgment entered. Id.



              In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court

decided that attorneys should be held to the general standard of whether the services

rendered were within the range of competence demanded of attorneys in criminal

cases. Further, the court stated that the range of competence was to be measured by

the duties and criteria set forth in Beasley v. United States, 491 F.2d 687, 696 (6th Cir.

1974) and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973), cert.

denied, 444 U.S. 944 (1979). Also, in reviewing counsel's conduct, a "fair assessment

of attorney performance requires that every effort be made to eliminate the distorting

effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct,

and to evaluate the conduct from counsel's perspective at the time." Strickland v.

Washington, 466 U.S. at 689, 104 S. Ct. at 2065; see Hellard v. State, 629 S.W.2d 4, 9

(Tenn. 1982) (counsel's conduct will not be measured by "20-20 hindsight"). Thus, the

fact that a particular strategy or tactic failed or even hurt the defense does not, alone,

support a claim of ineffective assistance. Deference is made to trial strategy or tactical

choices if they are informed ones based upon adequate preparation. Hellard, 629

S.W.2d at 9; DeCoster, 487 F.2d at 1201.



              Also, we note that the approach to the issue of the ineffective assistance

of counsel does not have to start with an analysis of an attorney's conduct. If prejudice

is not shown, we need not seek to determine the validity of the allegations about

deficient performance. Strickland v. Washington, 466 U.S. at 697, 104 S. Ct. at 2069.

In this vein, the petitioner had the burden of demonstrating that, but for his counsel’s

errors, he would have insisted on having a trial. See Hill v. Lockart, 474 U.S. 52, 59,

106 S. Ct. 366, 370 (1985); Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App.

1991).



                                             5
                 The petitioner argues that his trial counsel was deficient for failing to

advise him of his rights and failing to investigate his cases. However, he has failed to

demonstrate that he was prejudiced by the alleged deficiencies. According to the

petitioner’s testimony, he understood that he was waiving his right to a trial, right to

cross-examine witnesses against him, and the right not to testify when he entered his

plea. The petitioner also testified that the trial court informed him he was receiving a

community corrections sentence and that he pled guilty to avoid going to prison. The

petitioner does not claim that his counsel’s errors caused him to plead guilty. To the

contrary, the petitioner’s attorney informed the court during the post-conviction hearing

that if the petition for post-conviction relief was granted, the petitioner would seek to

enter into another plea agreement.2 Under these circumstances, the trial court did not

err in denying post-conviction relief on the ground of ineffectiveness of trial counsel.



                                                      II

                 The petitioner also contends that the trial court erred by denying his post-

conviction petition because the record does not demonstrate that he was adequately

advised by the court as to his rights or his understanding of the terms of the plea

bargain. He argues that in the absence of proof to the contrary, this court must assume

that the trial court failed to advise him. The state counters that the petitioner failed to

meet his burden of proving that his plea was involuntary and that the petitioner’s own

testimony was sufficient to establish that he entered a knowing and voluntary plea. We

agree.



                 The issue concerning invalid guilty pleas is controlled by State v. Neal,

810 S.W.2d 131 (Tenn. 1991) and Johnson v. State, 834 S.W.2d 922 (Tenn. 1992),




                 2
                   As a matter of fact, the record reflects that the petitioner’s real complaints dealt with,
according to him, how the Department of Correction was computing his parole eligibility for his sentences
in a manner differently than he had expected. Thus, his “goal” in this proceeding was to have the trial
cou rt vacate his conviction s in order for him to renego tiate and res tructu re a p lea ag reem ent.

                                                      6
which bear upon the procedural and substantive requirements for the entry of a guilty

plea in order that a valid judgment of conviction may be obtained and for subsequent

review of the validity of a conviction based upon a guilty plea. These cases stem, in

part, from Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712 (1969) in which

the Supreme Court stated that entry of a guilty plea effectively constituted a waiver of

certain constitutional rights: the right against compulsory self-incrimination, the right to

confront one's accusers, and the right to trial by a jury. Boykin held that a valid waiver

of such a right required the intentional relinquishment or abandonment of a known right

and that such a waiver may not be presumed from a silent record. Id. The petitioner’s

testimony reflects that he understood at the time he entered his plea that he was

waiving his constitutional rights to be free from compulsory self-incrimination, to a trial

by jury, and to confront and cross-examine witnesses. Therefore, no Boykin violation

occurred.



              Also, there is nothing in the record before us to indicate that the petitioner

was coerced into entering his plea. When the post-conviction court asked the petitioner

how he was coerced into pleading guilty, the petitioner replied that he pled guilty

because he wanted to take care of his family and avoid going to prison. The

presentence report and the restitution agreement the petitioner signed explicitly warned

the petitioner that he could be incarcerated if he failed to comply with the terms of his

sentences. The record supports the trial court’s finding that the petitioner knowingly

and voluntarily entered his pleas.



                                             III

              Finally, the petitioner contends that the trial court erred by not granting his

request for a transcript of his guilty plea submission. When the post-conviction court

inquired as to why the petitioner needed a transcript of the guilty plea submission, the

petitioner’s attorney responded that the transcript was needed to show that the



                                              7
petitioner was not advised that he could be resentenced if he violated his community

corrections sentence. The trial court refused to grant the transcript because it

concluded that the petitioner was not entitled to relief even if the court failed to give him

such advice. We agree with the trial court’s conclusion under the circumstances in this

case.



              Under T.C.A. § 40-30-113(1990) [repealed 1995], a post-conviction court

has the authority to furnish an indigent petitioner with “certified copies of such

documents or parts of the record on file in his office as may be required.” However, the

trial court is not obligated to furnish an indigent petitioner a transcript unless it “may be

of reasonable assistance to the petitioner in establishing his right to the relief sought.”

Dotson v. State, 477 S.W.2d 763, 64 (Tenn. Crim. App. 1971). Obviously, once the trial

court assumed the truth of the only fact that the petitioner sought to prove with the

transcript, in the present case, the transcript was not needed.



              In the context of this case, the trial court’s failure to advise the petitioner

that he could be resentenced for violating the terms of the community corrections

program does not rise to the level of constitutional error that would entitle the petitioner

to post-conviction relief. As previously noted, the petitioner’s testimony established that

he understood that he was receiving an effective ten-year community corrections

sentence. The presentence report and the restitution agreement the petitioner signed

explicitly warned the petitioner that he could be incarcerated if he failed to comply with

the terms of his sentence. Although the petitioner sought a copy of his guilty plea

submission transcript to prove that he was not advised of the potential for resentencing

under the Community Corrections Act, it is significant that his resentencing was for the

same term of years. Moreover, he never claimed that he would not have pled guilty if

he had been advised of the potential for resentencing upon revocation. We agree with

the trial court’s assessment that the petitioner entered a knowing and voluntary plea



                                              8
even if the trial court failed to advise him that he could be resentenced under the

Community Corrections Act. Thus, the trial court was justified in denying the

petitioner’s request for a transcript of the plea submission hearing.



               In consideration of the foregoing and the record as a whole, the judgment

of the trial court is affirmed.




                                                 Joseph M. Tipton, Judge

CONCUR:



Paul G. Summers, Judge



David H. Welles, Judge




                                             9
