          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE            FILED
                            JANUARY SESSION, 1999          April 8, 1999

                                                       Cecil W. Crowson
                                                      Appellate Court Clerk
ROBERT LEE SHEFFIELD,               )   C.C.A. NO. 01C01-9803-CR-00098
                                    )
             Appe llant,            )
                                    )   DAVIDSON COUNTY
V.                                  )
                                    )
                                    )   HON. STEVE R. DOZIER, JUDGE
STATE OF TE NNE SSE E,              )
                                    )
             Appellee.              )   (POST-CONVICTION)



FOR THE APPELLANT:                      FOR THE APPELLEE:

WILL IAM M . KALU DIS                   JOHN KNOX WALKUP
211 T hird Aven ue No rth               Attorney General & Reporter
Nashville, TN 37201
                                        TIMOTHY BEHAN
                                        Assistant Attorney General
                                        2nd Floor, Cordell Hull Building
                                        425 Fifth Avenue North
                                        Nashville, TN 37243

                                        VICTO R S. JO HNS ON, III
                                        District Attorney General

                                        JON SEABORG
                                        Assistant District Attorney General
                                        Washington Square, Suite 500
                                        222 2nd Avenue North
                                        Nashville, TN 37201-1649




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                     OPINION
        The Petitioner, Robe rt Lee Sh effield, app eals as o f right the D avidson Coun ty

Criminal Cour t’s dism issal of h is petitio n for po st-con viction relief. In th is app eal,

Petitioner argues that he received the ineffective assistance of trial counsel. After

a carefu l review of the record, w e affirm the judgm ent of the tria l court.



        Petitioner pled guilty to weapon and drug offenses on February 6, 1997. He

filed a petition for post-conviction relief on July 31, 1997, and an amended petition

on October 8, 1997. Following a hearing, the trial court dismissed the petition,

finding that Pe titioner h ad en tered a volunta ry plea and that he had received the

effective as sistance of couns el.



        In post-con viction proce eding s, the b urden is on the petition er to pro ve his

grounds for relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-

210(f). This Court must give the findings of the trial court the w eight of a ju ry verdict,

and the judgment of the trial court will not be reversed unless the evidence contained

in the reco rd prepo nderate s agains t the finding s of fact m ade by th e trial court. State

v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983). Our supreme court has

held:

              If the transcript shows that the petitioner was aware of his
              constitutional rights, he is not entitled to relief on the
              grounds that the mandated advice was not given. Also, if
              all the proof presented at the post-conviction hearing,
              includ ing the transcript of the guilty plea hearing, shows
              that the petitioner was aware of his constitutional rights, he
              is not entitled to relief.

Johns on v. State, 834 S.W .2d 922, 926 (Tenn. 199 2).




                                             -2-
       In determining wheth er cou nsel p rovide d effec tive ass istanc e at trial, the court

must decide w hether counsel’s performance was within the range of competence

demanded of attorney s in crimin al cases . Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975). To succeed on a claim that his counsel was ineffective at trial, a

petitioner bears the burden of showing that his counsel made errors so serious that

he was not functioning as counsel as guaranteed under the Sixth Amendment and

that the deficient representation prejudiced the petition er resulting in a failure to

produc e a reliable result. Strickland v. Washington, 466 U.S . 668, 693 , 104 S. C t.

2052, 80 L. Ed . 2d 674 , reh’g denied, 467 U.S . 1267 (1 984); Coope r v. State, 849

S.W.2d 744, 74 7 (Ten n. 1993 ); Butler v. Sta te, 789 S.W.2d 898, 899 (Ten n. 1990).

To satisfy the second prong the petitioner m ust show a reaso nable p robability tha t,

but for cou nsel’s unrea sona ble erro r, the fac t finder w ould h ave ha d reas onab le

doubt regarding pe titioner’s gu ilt. Strickland, 466 U .S. at 69 5. This reaso nable

probab ility must be “sufficient to underm ine confidence in the outcom e.” Harris v.

State, 875 S.W.2d 662, 665 (T enn. 19 94) (citation omitted) . In regard to guilty pleas,

the petitioner must establish a reasonable probability that, but for the errors of

coun sel, he would no t have entered into the ple a. Adkins v. State, 911 S.W.2d 334,

349 (Ten n. Crim. App . 1994).



       When review ing trial c ouns el’s actio ns, this Cour t shou ld not us e the b enefit

of hindsigh t to secon d-gues s strategy and criticize couns el’s tactics. Hellard v. State,

629 S.W .2d 4, 9 (Ten n. 198 2). Co unse l’s allege d error s sho uld be judged at the

time they we re ma de in lig ht of all facts and circums tances . Strickland, 466 U.S. at

690; see Cooper, 849 S.W.2d at 746.




                                             -3-
       W e have review ed Pe titioner’s various claims and we find that Petitioner has

failed to present any evidence showing that his attorney represented him in any

manner other tha n com petently. In its Ord er den ying P etitione r’s petition for p ost-

conviction relief, the trial court found the following:

              After reviewing the transc ript of the ple a, the exh ibits
              introduced during the hearing, and considering the
              testimony introduced at the hearing, this Court is of the
              opinion that the petition for pos t convic tion sh ould be and
              is hereby denied. The Court finds that based on the proof
              in this cause, that the petitioner was adequately advised
              of his rights in open court and explained those sa me righ ts
              by his counsel prior to the plea. The Court finds that [trial
              coun sel] provided more than adequate representation of
              the petition er. Th e petitio ner faile d to sh ow tha t coun sel’s
              representation fell below the standard required by
              Strickland v. Washington and Baxter v. Rose [citations
              omitted]. The proof in this cause was abundantly clear
              that [trial counsel] provided more th an ade quate
              representation including pers onal visits and phone
              convers ations with the pe titioner and his moth er prior to
              the plea being entered in this case. The petitioner was
              specifically asked at the time of the plea whether he was
              satisfied with his attorney and wheth er or no t any po ssible
              defenses had be en inves tigated and he gave an
              affirmative response.




       W e agree with the trial co urt’s findings . It should be noted that Petitioner does

not argue in his brief on appea l that he wa s not adv ised of his c onstitution al rights

in open court when he pled guilty. Instead, he focuses his argument on his trial

coun sel’s alleged failure to “conduct an adequate pre-trial investigation into the fac ts

and circums tances of his case and tha t, as a result of such failure, he was coerced

into pleading guilty to offenses for wh ich he was n ot guilty.” Petitioner testified at the

hearing that he info rmed h is trial couns el of the ide ntities and locations of several

important defense witnesses. His trial counsel testified that he told Petition er, “[W ]e

can chase all the witnesses that you want to; but I don’t want you to send me after



                                              -4-
anybody except a truthful witness that will te ll your sid e of it fully,” and that Petitioner

said he did not have any witnesses like that. He further stated that Petitioner never

gave him a ny spe cific names of witnesses or any addresses where witnes ses co uld

be located. Trial counsel also noted at the hearing that there “was a prosecutorial

eyeba ll witness to every case that we entered a plea, and alibi never entered into it.”



       Petitioner also a lleges that his trial cou nsel fa iled to d iscuss his case w ith him.

Petitioner testified at the hearing that he m et with his trial counsel only once.

Howeve r, his trial counsel testified that he m et with P etitione r three times in person

and talked with him several times on the phone. He also said that he would relay

messages to Petition er by P etitione r’s mother. He estimated that he spent at least

thirty hours on Petitioner’s case. Petitioner also asserts that his trial counsel

informed him that he should plead guilty, despite Petitioner’s wish not to plead gu ilty.

Howeve r, his trial counsel testified that both he and the trial court fully informed

Petitioner of his constitutional rights be fore he pled guilty, and that if Petitioner had

voiced any disagreement with the plea then he would “[a]bsolutely not” have let

Petitione r sign the p lea form .



       The trial c ourt cho se to acc redit the tes timony o f Petitioner’s trial couns el.

Questions concerning the credibility of witnesses and the weight and value to be

given the ir testimon y are reso lved by the trial court, not th is Court. See Black v.

State, 794 S .W .2d 75 2, 755 (Ten n. Crim . App. 1 990). T he evid ence conta ined in

the record does not preponderate against the trial court’s finding that Petitioner

receive d the e ffective a ssista nce o f coun sel.




                                             -5-
       Based on all the foregoing, we affirm the trial court’s dismissal of

Petitione r’s petition for p ost-con viction relief.



                                     ____________________________________
                                     THOMAS T. W OODALL, Judge




CONCUR:



___________________________________
JOHN H. PEAY, Judge


___________________________________
DAVID H. WELLES , Judge




                                              -6-
