         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE            FILED
                          APRIL 1998 SESSION               May 18, 1998

                                                       Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk

JOHNNY PARKER,                   )
                                 ) C.C.A. No. 03C01-9706-CR-00214
      Appellant,                 )
                                 ) Knox County
V.                               )
                                 ) Honorable Ray L. Jenkins, Judge
STATE OF TENNESSEE,              )
                                 ) (Post-Conviction)
      Appellee.                  )
                                 )




FOR THE APPELLANT:                  FOR THE APPELLEE:

Brandt Davis                        John Knox Walkup
Attorney at Law                     Attorney General & Reporter
1707 Cove Creek Lane, Suite 2
Knoxville, TN 37919                 Ellen H. Pollack
                                    Assistant Attorney General
                                    425 Fifth Avenue North
                                    Nashville, TN 37243-0943

                                    Randall E. Nichols
                                    District Attorney General

                                    Zane Scarlett
                                    Assistant District Attorney General
                                    City-County Building
                                    Knoxville, TN 37902




OPINION FILED: ___________________


AFFIRMED

PAUL G. SUMMERS,
Judge




                                OPINION
         The appellant, Johnny Parker, appeals the denial of post-conviction relief,

arguing that he received ineffective assistance from his attorney. In 1992, the

appellant was convicted of attempt to commit first degree murder and received a

twenty-three year sentence in the Tennessee Department of Correction. The

appellant filed a pro se petition for post-conviction relief, and counsel was

appointed for the appellant. After a hearing on January 23 and 24, 1997, the trial

court denied post-conviction relief.



         The appellant’s sole issue for review is whether the trial court properly

concluded that he received effective assistance of counsel. We affirm.



         The appellant argues that he has carried the burden of proving that his

attorney was ineffective. Mr. William Talman was appointed to represent the

appellant at trial and also represented him on appeal. The appellant, who had a

murder charge pending against him, did not testify and did not offer any proof at

trial.   The appellant was convicted of attempt to commit first degree murder of

Jerry Gibson.



         Appellant had several complaints about his lawyer. At the post-conviction

hearing, the appellant testified that his attorney had met with him approximately

three times for fifteen to twenty minutes each time before trial. He had told his

attorney about Avonia Tompkins and Jackie Gilmore, witnesses who could

provide him an alibi. He had spoken with Curtis Cowan in the penitentiary after

his conviction, Cowan was present at the shooting, and knows that the appellant

was not the shooter. He says Mr. Talman never discussed the state’s evidence

or discovery production with him. He was arrested at the location he claimed to

have been present as the basis for his alibi. He says he was told that evidence

would be presented on his behalf at trial and that he would testify, which he

wished to do, but did not do. Furthermore, the appellant contends that no time

sheets or records were introduced to indicate how much time counsel actually

spent with him pretrial; and no testimony was provided concerning any plea

offers and whether they were accepted or rejected by the appellant.

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       The state argues that the appellant received effective assistance. First, it

contends that Mr. Talman met with the appellant on a number of occasions; went

to the crime scene several times to investigate; and spoke with the victim, the

victim’s companion at the time of the crime, and a police officer. Second, the

state maintains that Mr. Talman could not locate Jackie Gilmore and had a

difficult time getting Avonia Tompkins to speak with him. W hen she did finally

speak with him, she told him that the appellant had not been with her at the time

of the attempt on the victim. Therefore, Mr. Talman did not file a notice of an

alibi defense because he could not substantiate it. Third, regarding the decision

about testifying, Mr. Talman stated that he did discuss with the appellant the trial

strategy of the appellant taking the witness stand, but the only thing the appellant

could testify to was that he was not the one who had shot the victim. Mr.

Talman, though concerned about the appellant’s pending murder charge,

contends that the appellant made the decision not to testify.



       After his permission to appeal had been denied by the Tennessee

Supreme Court, the appellant told Mr. Talman that he had met Curtis Cowan in

prison and that Cowan would testify that he was at the crime scene, that he had

sold the victim cocaine, and that someone else had shot the victim. Although

Talman was skeptical of this new information, he had planned to talk to the

appellant and Cowan; but before he could, the appellant filed a petition for post-

conviction relief. At the post-conviction hearing, Cowan, who was in prison for

selling cocaine and for robbery, testified that he had sold cocaine to the victim

just before the shooting and that someone with a New York or New Jersey

“dialect” had shot the victim.



       To be granted relief on the ground of ineffective assistance of counsel, an

appellant must establish that the advice given or the services rendered were not

within the competence demanded of attorneys in criminal cases and that, but for

counsel’s deficient performance, the result of his or her trial would have been

different. Strickland v. Washington, 466 U.S. 668 (1984). In Tennessee, the

appropriate test is whether counsel’s performance was within the range of

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competence demanded of attorneys in criminal cases. Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975).



       In post-conviction proceedings, petitioners bear the burden of proving

their allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-

210 (1997). Furthermore, the trial court’s findings of fact in post-conviction

hearings are conclusive on appeal unless the evidence preponderates against

those findings. Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990); State v.

Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983); Clenny v. State, 576

S.W.2d 12, 14 (Tenn. Crim. App. 1978).



       This Court finds that the appellant has failed to carry the burden of

establishing that his attorney was ineffective. Based upon the record before us,

the appellant’s attorney investigated the appellant’s case, which included talking

to witnesses and visiting the crime scene, and pursued a trial strategy beneficial

to the appellant, especially in light of his pending murder charge. At his post-

conviction hearing, the appellant admitted that the crux of his complaint was that

his attorney did not produce two witnesses to testify at his trial, although neither

one of these witnesses would have provided the appellant an alibi, and that his

attorney did not represent him “to the fullest of his capabilities.” However, the

record clearly indicates that the appellant received prudent and competent

assistance from Mr. Talman. Therefore, because the evidence does not

preponderate against the trial court’s findings, we affirm the judgment denying

post-conviction relief.



                                        _______________________
                                        PAUL G. SUMMERS, Judge




CONCUR:



_____________________________
JERRY L. SMITH, Judge

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______________________________
CURWOOD W ITT, Judge




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