             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE                FILED
                          SEPTEMBER 1998 SESSION
                                                         November 30, 1998

                                                          Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk
RAYMOND WRIGHT,              )
                             )
             Appellant,      )    No. 03C01-9710-CR-00460
                             )
                             )    Hamilton County
v.                           )
                             )    Honorable Douglas A. Meyer, Judge
                             )
STATE OF TENNESSEE,          )    (Post-Conviction)
                             )
                             )
             Appellee.       )


For the Appellant:                For the Appellee:

Robert N. Meeks                   John Knox Walkup
P.O. Box 8086                     Attorney General of Tennessee
Chattanooga, TN 37414                    and
                                  Todd R. Kelley
                                  Assistant Attorney General of Tennessee
                                  425 Fifth Avenue North
                                  Nashville, TN 37243-0493

                                  William H. Cox, III
                                  District Attorney General
                                          and
                                  C. Leland Davis
                                  Assistant District Attorney General
                                  600 Market Street, Suite 310
                                  Chattanooga, TN 37402




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                                OPINION



                 The petitioner, Raymond Wright, appeals as of right from the judgment of

the Hamilton County Criminal Court denying him post-conviction relief. He was

convicted in January 1993 upon his guilty plea to second degree murder, a Class A

felony. Pursuant to his plea agreement, he was sentenced as a Range III, standard

offender to fifty years confinement to be served in the Department of Correction.1 He

contends that he received the ineffective assistance of counsel resulting in an

unknowing and involuntary guilty plea. We disagree.



                 At the evidentiary hearing, the petitioner testified that his trial attorney

never read any indictment to him. He said his attorney never explained the elements of

any of the crimes for which he was charged, nor did he explain the elements of second

degree murder. He said if he had understood the elements of second degree murder,

he would not have pled guilty.



                 The petitioner testified that his attorney discussed a possible defense of

insanity but told him the trial court would not accept a defense of temporary insanity.

He said his attorney told him he had to be insane at all times, and the petitioner said he

did not want to use insanity as a defense because he was not insane. He said that if he

had known that insanity and diminished capacity were available as defenses, he would

not have pled guilty. He said that he pled guilty because he thought he would be

reindicted for felony murder and the state would seek the death penalty. He also said

his attorney and the district attorney told him he would probably be released from jail in

ten to twelve years. He said he thought the trial judge may have explained the

elements of the offenses to him at the guilty plea hearing, but he was not positive. On


                 1
                    The record reflects that the petitioner was originally indicted for premeditated murder
and su bsequ ently for felony m urder. As part of his p lea agree men t, the petitioner agreed to plead gu ilty to
second degree murder in excha nge for a sentence as a Range III offender, thereby serving forty-five
percent of a fifty-year sentence before being eligible for parole.

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cross-examination, he admitted that at the guilty plea hearing, he said he had a week to

examine the plea agreement.



              The petitioner’s trial attorney testified that he talked with the petitioner and

the petitioner’s sister numerous times. He said a psychological evaluation revealed that

the petitioner was competent and sane. He said he believed the petitioner understood

everything he told him. He said he showed the petitioner the indictment for felony

murder and discussed it with him. He said he explained all the elements the state

would have to prove to convict the petitioner of premeditated and felony murder. He

said the petitioner understood his options, and he accepted the plea agreement almost

immediately. He said he told the petitioner to think it over for a week before agreeing to

the plea. He said the petitioner readily accepted the plea, and he did not coerce or

persuade the petitioner to accept it. He testified that he never told the petitioner that he

would probably get out of jail in ten to twelve years.



              The trial court denied the petitioner post-conviction relief. It found that the

petitioner freely, voluntarily, and knowingly entered his plea of guilty and that his trial

attorney’s performance was within the range of competence demanded of attorneys in

criminal cases.



              On appeal, the petitioner challenges his conviction based upon the claim

that he received the ineffective assistance of counsel that caused him to enter an

unknowing and involuntary guilty plea. In his brief, the petitioner presents two separate

claims. First, he argues that his plea was involuntary and unknowing because counsel

failed to explain the elements of second degree murder, and second, he argues that

counsel was deficient for failing to explain the elements. Because the petitioner’s

essential claim is that his attorney’s deficient performance resulted in an involuntary

and unknowing plea, we address his claims together.



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              Under the Sixth Amendment, when a claim of ineffective assistance of

counsel is made, the burden is upon the petitioner to show (1) that counsel’s

performance was deficient and (2) that the deficiency was prejudicial in terms of

rendering a reasonable probability that the result of the trial was unreliable or the

proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S.

Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838,

842-44 (1993). The Strickland standard has been applied to the right to counsel under

Article I, Section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417,

419 n. 2 (Tenn. 1989). When a petitioner claims that ineffective assistance of counsel

resulted in a guilty plea, the petitioner must prove that counsel performed deficiently

and that but for counsel’s errors, the petitioner would not have pled guilty and would

have insisted upon going to trial. Hill v. Lockhart, 464 U.S. 52, 59, 106 S. Ct. 366, 370

(1985).



              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). 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, 466 U.S. at 689, 104 S. Ct. at 2065; see

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).




                                             4
              We also 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, 466 U.S. at 697, 104 S. Ct. at 2069.



              In a post-conviction case, the burden is on the petitioner to prove his

grounds for relief by clear and convincing evidence. T.C.A. § 40-30-210(f). 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). The petitioner has the burden of illustrating how the evidence

preponderates against the judgment entered. Id. We conclude that the petitioner has

failed to meet this burden.



              The petitioner argues that his trial attorney was deficient because he

never explained the elements of second degree murder, thereby resulting in an

unknowing and involuntary guilty plea. First, we note that although the petitioner claims

he was never instructed on the elements of second degree murder, at the evidentiary

hearing his trial attorney was never asked if he explained those elements to the

petitioner. Nevertheless, at the guilty plea hearing, the following colloquy took place

between the trial court and the petitioner:



              COURT: Now, you’ve told your attorney all the facts and
              circumstances surrounding the charge against you?

              DEFENDANT: Yes.

              COURT: And [your attorney] has counseled with you about
              those charges, what those charges mean. He’s told you what
              the possible punishment could be. He’s discussed with you
              the possible defenses you might have, including the defense
              of diminished responsibility.

              DEFENDANT: Yes.




                                              5
              COURT: Also, has he taken the time to answer your questions
              that you might have?

              DEFENDANT: Yes.

              COURT: Has he done everything within reason you’ve asked
              of him?

              DEFENDANT: Yes, he has.

               ....

              COURT: . . . And you understand that if you plead guilty, it has
              the same effect as if a jury found you guilty, and that you’re not
              going to have any further hearing in this court or any other
              court about your guilt?

              DEFENDANT: I’m aware of that.



              The petitioner has failed to show how the trial court’s findings are

incorrect. We conclude that the evidence does not preponderate against the trial

court’s findings that the petitioner knowingly and voluntarily entered his guilty plea

pursuant to a plea agreement and that his attorney’s performance was not ineffective.

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

court is affirmed.



                                                  ________________________________
                                                  Joseph M. Tipton, Judge



CONCUR:



_________________________
John H. Peay, Judge



_________________________
David G. Hayes, Judge




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