            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                      FILED
                                 AT KNOXVILLE                         July 8, 1999

                                                                  Cecil Crowson, Jr.
                               JUNE 1999 SESSION                 Appellate C ourt
                                                                     Clerk




JAMES SPRAGUE,                       )
                                     )    C.C.A. NO. 03C01-9805-CR-00194
            Appellant,               )
                                     )    KNOX COUNTY
VS.                                  )
                                     )    HON. RICHARD BAUMGARTNER,
STATE OF TENNESSEE,                  )    JUDGE
                                     )
            Appellee.                )    (Post-Conviction)



FOR THE APPELLANT:                        FOR THE APPELLEE:


LAURA RULE HENDRICKS                      PAUL G. SUMMERS
606 West Main St., Suite 350              Attorney General & Reporter
P.O. Box 84
Knoxville, TN 37901-0084                  R. STEPHEN JOBE
                                          Asst. Attorney General
                                          Cordell Hull Bldg., 2nd Fl.
                                          425 Fifth Ave., North
                                          Nashville, TN 37243-0493

                                          RANDALL NICHOLS
                                          District Attorney General

                                          SCOTT GREEN
                                          Asst. District Attorney General
                                          400 Main Ave.
                                          Knoxville, TN 37902




OPINION FILED:



AFFIRMED


JOHN H. PEAY,
Judge
                                     OPINION



              The petitioner pled guilty to two counts of sexual exploitation of a minor and

entered a best interest plea to one count of aggravated sexual battery. Pursuant to a

plea bargain, he was sentenced to a term of one year on each count of sexual

exploitation of a minor and eight years for aggravated sexual battery. These sentences

were to run concurrently. His subsequent petition for post-conviction relief was denied

by the post-conviction court after an evidentiary hearing. The petitioner now appeals and

contends that he did not receive the effective assistance of counsel and that his guilty

pleas were not knowing or voluntary. After a review of the record and applicable law, we

find no merit to the petitioner’s contentions and thus affirm the denial of his post-

conviction petition.



              Under the Post-Conviction Procedure Act of 1995, the petitioner has the

burden of proving the factual allegations in his or her petition by clear and convincing

evidence. T.C.A. § 40-30-210(f). Furthermore, the factual findings of the trial court in

hearings “are conclusive on appeal unless the evidence preponderates against the

judgment.” State v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983).



              In reviewing the petitioner’s Sixth Amendment claim of ineffective

assistance of counsel, this Court must determine whether the advice given or services

rendered by the attorney are within the range of competence demanded of attorneys in

criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a

claim of ineffective counsel, a petitioner “must show that counsel’s representation fell

below an objective standard of reasonableness” and that this performance prejudiced the

defense. There must be a reasonable probability that but for counsel’s error the result

of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668,

687-88, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985).

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To satisfy the requirement of prejudice, the petitioner would have had to demonstrate a

reasonable probability that, but for counsel’s errors, he would not have pled guilty and

would have insisted on going to trial. See Hill v. Lockart, 474 U.S. 52, 59 (1985);

Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991).



              The petitioner first contends that his attorney, Raymond Shirley, was

ineffective in that he failed to adequately investigate the facts of the case and witnesses

to the case. The proof at the post-conviction hearing established that Mr. Shirley tried

to locate several witnesses mentioned by the petitioner. However, he was unable to

locate these witnesses by telephone or at the address given by the petitioner. According

to Mr. Shirley, these witnesses “were gone, disappeared.” One of the witnesses came

to Mr. Shirley’s office and he was able to take her statement. Mr. Shirley testified that he

“checked everything out” that the petitioner gave him and “nothing panned out.” Mr.

Shirley stated that he met with the petitioner “many times” and “communicated with [the

petitioner] about what [he] was learning and the investigation from the District Attorney.”

Mr. Shirley further testified that on the petitioner’s trial day, he was prepared for a trial if

the petitioner decided not to plead guilty.



               This Court has previously held, “When a petitioner contends that trial

counsel failed to discover, interview, or present witnesses in support of his defense, these

witnesses should be presented by the petitioner at the evidentiary hearing.” Black v.

State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). The petitioner offered no proof on

this issue other than his own testimony. The petitioner has failed to prove by clear and

convincing evidence that Mr. Shirley did not adequately investigate the facts of and

witnesses to this case or that he was prejudiced by any alleged inadequacy. See id. at

758. As such, this contention is without merit.



               The petitioner further contends that he received the ineffective assistance

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of counsel because Mr. Shirley “did not recognize [the petitioner’s] increasing irrationality

on the day of trial.” The petitioner claims that this “irrationality” was a result of his

hypoglycemia, a condition he was unaware of at the time of his guilty plea, and his allergy

to cigarette smoke. However, the only evidence of any “irrationality” on the part of the

petitioner is the petitioner’s own testimony. According to Mr. Shirley, who has known the

petitioner since the 1950s, there was no indication that the petitioner did not understand

the proceedings. Mr. Shirley testified that the petitioner seemed lucid and was actively

involved in the plea negotiations with the State. In light of the foregoing, the petitioner

has failed to prove by clear and convincing evidence that Mr. Shirley failed to recognize

any alleged “irrationality” on the part of the petitioner or that the evidence preponderates

against the trial court’s finding that he received the effective assistance of counsel. This

contention is also without merit.



              The petitioner further contends that he did not receive the effective

assistance of counsel because Mr. Shirley “was involved in a guilty plea agreement in

which [the petitioner] agreed to plead to more charges than the State was demanding.”

However, the evidence presented at the post-conviction hearing indicated that the

petitioner was offered three different plea bargain choices by the State. The petitioner

rejected two of these offers, but worked with Mr. Shirley in “tweaking” the third offer. The

third offer consisted, in part, of the petitioner pleading guilty to only one Class E felony

of sexual exploitation of a minor. However, according to Mr. Shirley, although it would

have been “more advantageous” to have taken this offer, the petitioner “kept playing

around with [the offer] wanting to adjust, wanting more of this or change this or change

that. At some point in all of that [the State] just said no.” As a result, the petitioner pled

guilty to two Class E felonies as part of his plea bargain. There is no proof in the record

that any subsequent change in the offered plea bargain was the result of ineffective

assistance of counsel. This issue is without merit.




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              The petitioner next contends that his guilty pleas were not voluntarily

entered. The petitioner argues that at the time of the guilty plea he was suffering from

a leg injury, a broken nose, and an ear infection and that he pled guilty because he

believed he could receive the necessary medical treatment only in prison. He further

claims that Mr. Shirley told him if he did not plead guilty, he could be in the county jail for

several years while the charges pending against him were awaiting trial and disposition.

However, the only evidence presented by the petitioner to support these claims was the

petitioner’s own testimony. In fact, Mr. Shirley specifically denied advising the petitioner

he would wait in county jail for several years awaiting disposition of pending cases. Mr.

Shirley also testified that they infrequently discussed the petitioner’s medical problems,

and he did not recall the petitioner telling him he needed medical treatment. He also did

not recall telling the petitioner he could receive medical treatment in prison.



                The petitioner also contends that his guilty pleas were not knowingly

entered. He claims that on the day he pled guilty, he did not eat lunch, and as a result,

he was suffering from low blood sugar when he pled guilty. According to the petitioner,

this low blood sugar caused him to be confused and disoriented. The petitioner also

testified that he is allergic to cigarette smoke and that prior to entering his guilty plea, he

was exposed to cigarette smoke in the county jail cell and in the holding cell. The

petitioner claimed that such exposure caused him to be in a “dreamlike” or “drunken”

state at the time he pled guilty. In contrast, Mr. Shirley testified that the petitioner was

lucid at the time of his guilty plea and that there was no indication that the petitioner did

not understand the proceedings. Mr. Shirley also testified that the petitioner “never

appeared confused” on the day of his guilty plea.



               We note that questions concerning the credibility of witnesses, the weight

and value to be given to their testimony, and the factual issues raised by the evidence

are to be resolved by the trial court, not this Court. Black, 794 S.W.2d at 755. The post-

                                              5
conviction court found that the petitioner “did not suffer from any medical condition that

interfered with his ability to make a knowing, voluntary plea.” The post-conviction court

further found that there was no reasonable basis for petitioner’s assertion that he was

coerced into pleading guilty with the promise of medical treatment. As it was within the

province of the post-conviction court to accredit the testimony of Mr. Shirley over that of

the petitioner and the evidence does not preponderate against the trial court’s judgment,

this issue is without merit.



              Accordingly, we affirm the post-conviction court’s denial of the petitioner’s

post-conviction petition.



                                                 ______________________________
                                                 JOHN H. PEAY, Judge



CONCUR:



______________________________
DAVID G. HAYES, Judge



______________________________
JOHN EVERETT W ILLIAMS, Judge




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