         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                            JUNE 1998 SESSION           FILED
                                                           July 24, 1998

                                                       Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk
MICHAEL LEWIS,                     )
                                   ) C.C.A. No. 02C01-9712-CR-00467
      Appellant,                   )
                                   ) Shelby County
V.                                 )
                                   ) Honorable John P. Colton, Jr., Judge
                                   )
STATE OF TENNESSEE,                ) (Post-Conviction)
                                   )
      Appellee.                    )




FOR THE APPELLANT:                    FOR THE APPELLEE:

Robert B. Gaia                        John Knox Walkup
Attorney at Law                       Attorney General & Reporter
100 North Main Bldg., Suite 3201
Memphis, TN 38103                     Douglas D. Himes
                                      Assistant Attorney General
                                      425 Fifth Avenue North
                                      Nashville, TN 37243-0493

                                      William L. Gibbons
                                      District Attorney General

                                      Alanda Horne
                                      Assistant District Attorney General
                                      201 Poplar Avenue, Third Floor
                                      Memphis, TN 38103



OPINION FILED: ___________________


AFFIRMED

PAUL G. SUMMERS,
Judge
                                    OPINION



       In August 1994, the appellant, Michael Lewis, pled guilty to aggravated

robbery and theft of property less than $500. He was sentenced to concurrent

Range I sentences of eight years and one year, respectively. In April 1996, the

appellant filed a pro se motion for post-conviction relief. Counsel was appointed.

An amended petition was filed alleging that the appellant’s guilty pleas were

involuntarily entered due to ineffective assistance of counsel. After a hearing,

the Shelby County Criminal Court denied the petition. The sole issue for our

review is whether the evidence preponderates against the findings of the trial

court. We affirm the hearing court.



       The appellant contends that he pled guilty only because his attorney told

him he would serve two and one-half years of the eight-year sentence offered in

the plea agreement. The appellant also alleged that his attorney failed to

investigate his case, failed to discuss trial strategy, failed to file motions on his

behalf, and failed to prepare for his trial.



       An assistant public defender, Sherry Brooks, was appointed to represent

the appellant on the original charges. At the hearing on the appellant’s petition,

Ms. Brooks testified that she interviewed the appellant after he was arraigned.

Ms. Brooks testified that the appellant told her that he did not want a jury trial.

He admitted that he committed the crimes. Ms. Brooks testified that the

appellant was adamant about pleading guilty on arraignment day. Brooks

testified that she read through the state’s files on the charges. The victim of

each offense had positively identified the appellant as the perpetrator. The

appellant gave a statement to the police in which he confessed to the aggravated

robbery. Ms. Brooks testified that she discussed the state’s proof and the state’s

offer with the appellant. Thereafter, the appellant pled guilty.



                                           -2-
       The appellant testified that he pled guilty because Ms. Brooks told him

that he would serve approximately two and one-half years of his sentence. He

testified that he thought that this was a good deal so he pled guilty. The Board

of Paroles denied the appellant parole because he was involved in fights while

serving his sentence in prison. The appellant testified that Ms. Brooks failed to

discuss his case, his statement, and trial strategy with him. The appellant

admitted that he told the judge at the plea hearing that Ms. Brooks had

discussed his case with him and that he understood his constitutional rights. The

appellant testified that he answered the trial court’s questions affirmatively

because Ms. Brooks told him to agree with everything that the court said.



       Ms. Brooks testified that she never told the appellant that he would be

released in two and one-half years. Ms. Brooks denied instructing the appellant

to agree with everything that the judge said.



       The appellant testified that if the trial court granted his petition for post-

conviction relief, then he would go to trial. He testified that if his statement was

suppressed that a victory at trial on the theft charge “would be guaranteed.” The

appellant did not establish why his statement was likely to be suppressed. He

made no showing as to how he was likely to be found not guilty on the

aggravated robbery count. Ms. Brooks testified that the appellant would have

been convicted of both offenses, even if the statement had been suppressed

because the victims had identified the appellant as the perpetrator.



       The trial court denied the appellant’s petition. The court found that the

appellant entered his pleas voluntarily. The court noted that the trial court

carefully explained to the appellant his constitutional rights before accepting his

guilty pleas. The court found that the appellant failed to establish that his

attorney had rendered ineffective assistance of counsel.




                                          -3-
       In order for the petitioner to be granted relief on grounds of ineffective

assistance of counsel, he or she must establish that the advice given or the

services rendered was not within the "range of competence demanded of

attorneys in criminal cases" and that, but for counsel's deficient performance, the

result of his trial would have been different. Strickland v. Washington, 466 U.S.

668 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). This two-part

standard, as it applies to guilty pleas, is met when the petitioner establishes that,

but for his counsel's error, he would not have pleaded guilty and would have

insisted on trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985).



       The burden is on the petitioner to show that the evidence preponderates

against the findings of the trial judge. Clenny v. State, 576 S.W.2d 12, 14 (Tenn.

Crim. App. 1978). Otherwise, the findings made by the trial court are conclusive.

Graves v. State, 512 S.W.2d 603, 604 (Tenn. Crim. App. 1973)



       The appellant has failed to show that the evidence preponderates against

the trial court’s findings. The appellant’s primary argument is that he pled guilty

because his attorney told him that he would only serve two and one-half years.

The appellant, however, admitted that he understood that his sentence was eight

years with a 30% release eligibility date. Ms. Brooks denied that she told the

appellant that he would be released in two and one-half years. The court found

her testimony credible.



       The record supports the court’s finding that the appellant failed to show

that he received ineffective assistance of counsel. Ms. Brooks testified that the

evidence in the state’s files would have most likely led to convictions on both

offenses. She testified that the appellant was adamant about pleading guilty on

arraignment day. We find her representation appropriate and effective.



       We affirm the judgment of the trial court denying relief.




                                         -4-
                                    ________________________
                                    PAUL G. SUMMERS, Judge


CONCUR:




___________________________
DAVID H. WELLES, Judge




___________________________
JOE G. RILEY, Judge




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