           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                            DECEMBER SESSION, 1996


KETO BROWN,                     )      C.C.A. NO. 02C01-9601-CR-00021
                                )
      Appellant,                )
                                )
                                )      SHELBY COUNTY
VS.                             )
                                )      HON. CHRIS CRAFT
STATE OF TENNESSEE,             )      JUDGE
                                )
      Appellee.                 )      (Post-Conviction Relief)



FOR THE APPELLANT:                     FOR THE APPELLEE:

DANE BLUE                              CHARLES W. BURSON
147 Jefferson Avenue                   Attorney General and Reporter
Memphis, TN 38103
                                       SARAH M. BRANCH
W. MARK WARD                           Assistant Attorney General
Assistant Public Defender              450 James Robertson Parkway
147 Jefferson Suite 900                Nashville, TN 37243
Memphis, TN 38103
                                       WILLIAM L. GIBBONS
                                       District Attorney General

                                       JAMES M. LAMMEY
                                       Assistant District Attorney
                                       201 Poplar Avenue, Third Floor
                                       Memphis, TN 38103



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                      OPINION


Appellant Keto Brown pled guilty in the Shelby County Criminal Court to two

counts of attempted second degree murder. As a Range I standard offender, he

received an eight year sentence for each offense. The trial court ordered the

sentences served conc urren tly, for an effective sente nce o f eight years in the

Tennessee Depa rtment o f Correc tion. In this appeal of the denial of a petition for

post-conviction relief, Appellant presents the following issue: whether he received

effective assista nce o f coun sel.



       After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                           I. FACTUAL BACKGROUND

       On November 8, 1992, Appe llant fired six sho ts at Ma rshall Williams. He

missed his intend ed targe t but seriou sly injured a secon d perso n, Brian Rawlings.

Indicted on two counts of attempted first degree murde r, Appella nt pled gu ilty to

two counts of attem pted secon d degree m urder and rec eived an effective

sentence of eight years.



       On November 14, 1994, Appellant filed a petition for post-con viction relief,

alleging that he rec eived ineffe ctive assista nce of coun sel during plea

negotiations. The trial co urt denie d the p etition. A ppella nt app eals fro m this

judgm ent.




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                        II. POST CONVICTION RELIEF

      Appellant alleges that the trial court erred in finding that his attorney

rendered effective as sistance . In post-conviction proceedings, the petitioner has

the burden of proving the claims raised by a preponderance of the evidence.

Tidw ell v. State, 922 S.W .2d 497 , 500 (T enn. 19 96); Wa de v. State , 914 S.W.2d

97, 101 (Tenn. Crim. App. 1995). Finding s of fact made by the trial court are

conclusive on appeal unless the evidence preponderates against the judgm ent.

Cooper v. State, 849 S.W.2d 744, 746 (Tenn . 1993); Butler v. Sta te, 789 S.W.2d

898, 899 (T enn. 1990 ).



      W h en an appeal challenges the effective assistance of counsel, the

appellant has the burden of establishing (1) deficient representation and (2)

prejudice resulting from that d eficiency. Strickland v. Washington, 466 U.S. 668,

686 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Deficient

representation occurs when counsel provides assistance that falls below the

range of comp etence dema nded o f criminal a ttorneys. Banks ton v. State , 815

S.W .2d 213 , 215 (T enn. C rim. App . 1991).

The reviewing court should not use hindsight to "second-guess trial strategy by

counsel and criticize couns el's tactics." Cox v. Sta te, 880 S.W.2d 713, 718

(Tenn. Crim . App. 1 994). P rejudic e is the reaso nable likelihood that, but for

deficient represe ntation, the outcom e of the proceedings would have been

different. Overton v. State, 874 S.W.2d 6, 11 (T enn. 1 994). O n revie w, ther e is

a strong presumption of satisfactor y represe ntation. Barr v. Sta te, 910 S.W.2d

462, 464 (T enn. Crim. A pp. 1995).




                                        -3-
         Appellant first argue s that h is attorney was deficient in failing to interview

Leslie Crutcher, a witness to the shooting. Appellant’s attorney testified that he

made an unsuccessful attempt to contact Ms. Crutcher and also encouraged

Appellant to bring her to his office so that she could make a statement. Without

giving any reason, Appellant admitted that he did not arrange for Ms. C rutcher to

visit his attorney’s office. The perform ance o f the accu sed is an approp riate

consideration when evaluating the merits of an ineffective assistance of counsel

claim. See State v. Mitch ell, 753 S.W .2d 148, 149 (Tenn. Crim . App. 1988 ).

Moreover, Appellant fails to establish that Ms. C rutche r’s testimony wo uld have

been beneficial or even m aterial to his c ase. See Kilburn v. S tate, No. 02C01-

9309-CC-00219, 1994 W L 6979 91, at *2 (T enn. C rim. App . Dec. 14, 1994).

Under the circumstances, Appellant is not entitled to relief with respect to th is

issue.



         Appellant also argues that his attorney incorrectly advised him that he

would be released after serving only thirty percent of his eight-year sentence.

Appe llant’s attorney testified that he “vividly” recalled explaining to Appellant that

“it was bette r for him to ta ke an e ight-year o ffer and se rve thirty percen t and be

eligible for paro le than to run the risk of p ossib ly getting as much as fifty years out

of . . . these two offenses, if the jury return ed a ve rdict of g uilty.” (em phas is

added) The trial court found that Appellant’s testimony lacked credibility and

reconciled the conflicting testimony in favor of Appellant’s attorne y. We b elieve

that the evide nce fully su pports su ch a findin g. See Cooper, 849 S.W.2d at 746;

Butler, 789 S.W.2d 899.




                                            -4-
       Appellant has failed to adequately demonstrate deficient representation

by his trial attorn ey. Acco rdingly, the ju dgme nt of the trial co urt is affirme d.



                                    ____________________________________
                                    JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOE B. JONES, PRESIDING JUDGE


___________________________________
JOSEPH M. TIPTON, JUDGE




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