          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON               FILED
                             MAY SESSION, 1998                June 15, 1998

                                                           Cecil Crowson, Jr.
                                                            Appellate C ourt Clerk

STEP HAN A. T HOR PE,                )    C.C.A. NO. 02C01-9709-CR-00357
                                     )
            Appe llant,              )
                                     )    SHELBY COUNTY
V.                                   )
                                     )
                                     )    HON. JOSEPH B. DAILEY, JUDGE
STATE OF TENNESSEE,                  )
                                     )
            Appellee.                )    (POST-CONVICTION)



FOR THE APPELLANT:                        FOR THE APPELLEE:

ETAND RA DOU GLAS                         JOHN KNOX WALKUP
46 North Third Street, Suite 725          Attorney General & Reporter
Memphis, TN 38103
                                          MAR VIN E. C LEM ENT S, JR.
                                          Assistant Attorney General
                                          2nd Floor, Cordell Hull Building
                                          425 Fifth Avenu e North
                                          Nashville, TN 37243

                                          JOH N W. P IERO TTI
                                          District Attorn ey Ge neral

                                          JAMES M. LAMMEY
                                          Assistant District Attorney General
                                          Criminal Justice Center, Suite 301
                                          201 Poplar Avenue
                                          Memphis, TN 38103




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION
         The Petitioner, Stepha n A. Thorp e, appeals from the order denying his petition

for post-conviction relief. Petitioner was indicted on four (4) counts of aggravated

sexual battery. Pu rsuant to an agreem ent with the State, Pe titioner pled guilty to

attempt to commit aggravated sexual battery in violation of Tennessee Code

Annotated sections 39-12-101 and 39-13-504 in the Criminal Court of Shelby

County. Petitioner a lso pled g uilty to three (3 ) counts of indecent exposure, although

these pleas are no t the su bject o f his pe tition for post-conviction relief. According

to the agreement, he was sentenced as a Range II Offender to serve eight (8) yea rs

for the attempted aggravated sexual battery conviction. In his petition for post-

conviction relief, Petitione r claimed that his Fifth A mend ment rig ht agains t self-

incrimination was vio lated a nd his Sixth Amendmen t right to the effective assistance

of couns el was de nied. Following an evidentiary hearing, the trial cour t denied re lief.

Petitioner appealed to this court strictly on the issue of ineffective assistance of

counsel based upon his involuntary guilty plea. We affirm the judgment of the trial

court.



         “In post-conviction relief proceedings the petitioner has the burden of proving

the allegations in his petition by a preponde rance of the evide nce.” McBee v. State,

655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, the factual findings of

the trial court in hearings “are conclusive on appeal unless the evidence

preponderates against th e judgm ent.” State v. Buford , 666 S.W.2d 473, 475 (Tenn.

Crim. App. 19 83). In review ing the P etitioner’s S ixth Ame ndm ent cla im of ineffective

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

services rendered by the attorney are within the range of competence demanded of

                                            -2-
attorneys in criminal c ases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To

preva il on a claim of ineffec tive cou nsel, a petition er “mu st sho w that c ouns el’s

representation fell belo w an o bjective stand ard of re ason ablen ess” a nd tha t this

performance prejudiced th e defense.        To satisfy the requirement of prejudice,

petitioner would have had to demonstrate a reasonable probability that, but for

coun sel’s errors, he wou ld not have pled guilty and would h ave insisted on going to

trial. See Hill v. Lockhart, 474 U.S . 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203

(1985); Banks ton v. State , 815 S.W .2d 213, 215 (Tenn. Crim . App. 1991 ).



      Petitioner argues that his guilty plea was uninformed and involuntary based

upon trial couns el’s failure to info rm him of the effec t of his status as a Rang e II

Offender on his parole eligibility as a sex offender. At the evidentiary hearing,

Petitioner testified that during his meetings with trial counsel they discussed the eight

(8) years as being the minimum sentence for the attempted aggravated sexual

battery charge. Petitioner claimed that counsel advised him that his status as a

Range I or Ra nge II O ffende r did no t matte r either w ay as fa r as the length of

sentence was concerned. Petitioner did not know that a R ange II Offen der ord inarily

has two (2) to four (4) felony convictions. This was Petitioner’s first felony conviction.

W hile Petitioner did not understand, he did not ask his attorney any questions. He

admitted that he ple d guilty freely and voluntarily, although he felt that he did not

have the proper in formatio n to ma ke the de cision to ple ad guilty.



      On cross -exam ination , Petition er adm itted tha t he res pond ed affirmatively

when questioned by the trial court at the guilty plea hearing as to whether his plea

was ma de voluntarily.




                                           -3-
         Trial coun sel tes tified tha t from th e day h e me t the Pe titioner, P etitione r said

that he had a problem, he was guilty, and he did not want to go through a trial and

bring these childre n into c ourt. P etitioner asked counsel to get the best offer he

could get as Petitioner did not have any felony convictions. When the offer was

made for eight (8) years in exchange for his guilty plea, counsel met with Petitioner

and explained to him that he was not going to be able to be paroled on these sex

offenses. Also, counsel advised him that the difference between eight (8) years as

a Range I Offender would probably not be any different than a Range II Offender

because counsel did not think that Petitioner could get parole on either one.



         In its order denying the Petitioner’s petition for post-conviction relief, the trial

court found that the Petitioner was interested at all times in settling the case and not

submitting to a trial.       It specifically held that trial counsel fully explained the

difference between Range I and Rang e II senten ces an d that by p leading to criminal

attempt as opposed to the charged offense of aggravated sexual battery, Petitioner

would have the opp ortunity to petition the court for probation. Th e trial court found

that trial cou nsel thoroughly and professionally handled all aspects of the

representation from which Petitioner complains and that Petitioner received

outstanding representation as required by Baxter v. Rose, 523 S.W.2d 930 (Tenn.

1975).



         In light of th e reco rd and the brie fs, the e videnc e in the case sub judice does

not prepon derate again st the tria l court’s finding s. As th e trial co urt poin ted ou t in

its order, the Petitioner was interested in gettin g a de al and not go ing to tria l.

Equa lly clear is the fact that Petitioner was advised of his rights, both prior to the

guilty plea hearing and during the guilty plea hearing. The record demonstrates that

                                                -4-
the guilty ple a was made voluntarily, understandingly and knowingly, and that the

trial court complied with the conditions of State v. Mackey, 553 S.W.2d 337 (Tenn.

1977). See Boykin v. Alabama, 395 U.S . 238, 242 (1969).



      In effect, the relief Petitioner truly seeks is a reduced sentence. During the

evidentiary hearin g, the P etitione r respo nded as follows to th e trial co urt’s

questioning:

      W ell, Judge, it really boils down to - - the simplicity of it is, I’ve been
      down for almost three ye ars. I have a little six year old son tha t I’ve
      missed the last thre e years o f his life. I have a family to take care of
      that -- well, my w ife doesn ’t work. Sh e teach es my s on at ho me. And
      stuff like that. They have financial problem s and prob lems with the ca rs
      and different thin gs that I could help out with if I was there. And I
      haven ’t had any write-ups. No disciplinary actions at all since I’ve been
      locked up. And I was just w onderin g if, you kno w, if I could as k the
      mercy of the court, that I could get some type of time reduction or
      something to help m e out with being ab le to go ba ck, you know , to help
      my family out. That was -- as far as the time goes, you know, I’ve been
      in the arm y. I can do, you know, I can do the time. A nd, you know , I’m
      not changing my -- I’m not interested in chang ing my p lea. But I would
      just like to see if there was any possibility of being ab le to get ou t to my
      family any soon er.


When asked on cross-examination if all he wanted was a “time cut,” the Petitioner

agreed . The cou rt does not have the authority to reduce the Petitioner’s sentence

under this petition for post-conviction relief as this is not a proper ground for

consideration. Tenn. Code Ann. §§ 40-30-202, -203. If Petitioner’s plea was made

voluntarily, knowingly and understandingly, then there is no basis regarding relief for

the length of his sentence.



      We affirm the ju dgme nt of the trial co urt.



                                  ____________________________________
                                  THOMAS T. W OODALL, Judge

                                           -5-
CONCUR:


___________________________________
JOHN H. PEAY, Judge


___________________________________
PAUL G. SUMMERS , Judge




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