         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON

                         MARCH 1998 SESSION
                                                  FILED
                                                     June 5, 1998

                                                 Cecil Crowson, Jr.
BRUCE WAYNE FLOURNOY,            )                Appellate C ourt Clerk
                                 )    NO. 02C01-9611-CC-00391
      Appellant,                 )
                                 )    MADISON COUNTY
VS.                              )
                                 )    HON. C. CREED McGINLEY,
STATE OF TENNESSEE,              )    JUDGE BY INTERCHANGE
                                 )
      Appellee.                  )    (Post-Conviction)



FOR THE APPELLANT:                    FOR THE APPELLEE:

RUSSELL A. LARSON                     JOHN KNOX WALKUP
(At Hearing)                          Attorney General and Reporter
211 E. Main Street
P.O. Box 2163                         ELIZABETH T. RYAN
Jackson, TN 38302-2163                Assistant Attorney General
                                      Cordell Hull Building, 2nd Floor
PAMELA J. DREWERY                     425 Fifth Avenue North
(On Appeal)                           Nashville, TN 37243-0493
1008 W. Forest
Jackson, TN 38301                     JAMES G. (JERRY) WOODALL
                                      District Attorney General

                                      ALFRED LYNN EARLS
                                      Assistant District Attorney General
                                      225 Martin Luther King Drive
                                      P.O. Box 2825
                                      Jackson, TN 38302-2825




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                         OPINION



       The petitioner, Bruce Wayne Flournoy, appeals the order of the Madison

County Circuit Court denying his petition for post-conviction relief after an

evidentiary hearing. Petitioner was convicted upon his guilty pleas to first degree

murder and aggravated rape and received concurrent sentences of life

imprisonment and twenty (20) years, respectively. On appeal, petitioner claims that

he received ineffective assistance of counsel and his guilty pleas were not

knowingly, intelligently and voluntarily entered. After a thorough review of the

record, the briefs submitted by the parties, and the law governing the issues

presented for review, it is the opinion of this Court that the judgment of the trial court

should be affirmed.



                                              I



       In 1992, petitioner pled guilty to the first degree murder of his wife and the

aggravated rape of his daughter. The trial court sentenced him to concurrent terms

of life imprisonment and twenty (20) years, respectively, for the offenses. At the

post-conviction hearing, petitioner and his brother, Ricky, testified that petitioner’s

attorneys informed them that if petitioner received a life sentence, the “life sentence”

would be twenty-five (25) years at 30% and petitioner would be out of prison in

approximately seven (7) years.1           Petitioner claims that if he had not been

misinformed, he would have insisted on going to trial. As a result, he further argues

that his guilty plea was involuntary because his attorneys misinformed him regarding

his sentence.

       Petitioner also asserts that his attorneys were ineffective for allowing him to

plead guilty to first degree murder when the evidence would not support a first



       1
         Petitioner testified that his attorneys told him he would be released from prison in
seven (7) to seven and one-half (7 ½) years. Ricky Flournoy testified that petitioner’s
attorney told him that petitioner would have to serve seven (7) to ten (10) years before being
released.

                                              2
degree murder conviction if he had gone to trial. Petitioner testified that he had

been drinking and smoking marijuana on the day in question; therefore, he could

not have formed the specific mens rea for first degree murder. He contends that the

state had no proof of premeditation or deliberation and, because there is evidence

that he killed his wife as a result of a domestic dispute, the evidence would merely

support a conviction for second degree murder, at best.2

       At the post-conviction hearing, defense attorneys John Van den Bosch and

Mike Mosier testified. Both stated that they conducted a thorough investigation of

the state’s evidence against petitioner on both offenses. Both denied ever telling

petitioner or his brother that he could be released in seven (7) years if sentenced

to life imprisonment. They believed that the state would be able to prove its case

on both offenses. Mosier testified that, in his experience, voluntary intoxication was

not a viable defense to first degree murder. Furthermore, they were aware of a

witness who might negate an intoxication defense.            Both were particularly

concerned with petitioner receiving the death penalty, as the state had indicated its

intention to seek the death penalty on the first degree murder charge.

       In its written order denying post-conviction relief, the trial court found that

petitioner’s guilty pleas were knowingly and voluntarily entered.          The court

specifically determined that the evidence did not support petitioner’s claim that his

attorneys misinformed him as to the amount of time petitioner would be required to

serve on a life sentence. Furthermore, the trial judge noted that he informed

petitioner at the guilty plea that a sentence for first degree murder was either life

imprisonment or death by electrocution. The trial court determined, “it appears that

[petitioner’s] plea of guilty to life imprisonment was a well reasoned, well informed

and competent decision, made after full consultation with counsel and a full

discussion of all evidence against [petitioner].” The court further concluded that

petitioner received effective assistance of counsel in that “there is nothing in the

record that would remotely suggest that the [petitioner] was not afforded his




       2
        However, throughout his testimony, petitioner maintained his innocence of the
murder of his wife and the rape of his daughter.

                                          3
constitutional rights to effective assistance of counsel.”



                                          II



       This Court reviews a claim of ineffective assistance of counsel under the

standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner

has the burden to prove that (1) the attorney’s performance was deficient, and (2)

the deficient performance resulted in prejudice to the defendant so as to deprive

him of a fair trial. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064;

Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d

6, 11 (Tenn. 1994); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). In Hill v.

Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the Supreme Court

applied the two-part Strickland standard to ineffective assistance of counsel claims

arising out of a guilty plea. The Court in Hill modified the prejudice requirement by

requiring a defendant to show that there is a reasonable probability that, but for

counsel's errors, he would not have pleaded guilty and would have insisted on going

to trial. 474 U.S. at 59, 106 S.Ct. at 370.

       The testimony of the petitioner and his attorneys conflicted on every material

issue and fact. The trial court found that petitioner entered knowing and voluntary

guilty pleas and received effective assistance of counsel. The trial court accredited

the testimony of defense counsel and thereby rejected the testimony of petitioner.

The trial judge's findings of fact on post-conviction hearings are conclusive on

appeal unless the evidence preponderates otherwise. Butler v. State, 789 S.W.2d

898, 899 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 341 (Tenn. Crim. App.

1995). The burden of establishing that the evidence preponderates otherwise is on

petitioner. Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). Petitioner has

failed to carry his burden.



                                          III



                                          4
         On appeal, petitioner also claims that his attorneys were ineffective for failing

to attempt to suppress a “confession” made in the presence of law enforcement

authorities. He insists that the state had in its possession a statement documenting

a telephone call made from the “CID office” wherein petitioner confided to his

mother that he had “messed up.” Petitioner argues that this statement implicated

his constitutional rights, and trial counsel were deficient in failing to attempt to

suppress it.     However, this issue was not presented in the petition for post-

conviction relief. Further, the statement is not in the record before this Court. We,

therefore, decline to consider this as this Court is not at liberty to speculate as to the

contents of the statement. Nor will we speculate as to the impact the “confession”

had upon the state’s case for first degree murder. Moreover, petitioner has not

shown that a motion to suppress would have been successful. This issue is without

merit.



         For these reasons, the judgment of the trial court is affirmed.




                                                     JOE G. RILEY, JUDGE

CONCUR:




GARY R. WADE, PRESIDING JUDGE




JERRY L. SMITH, JUDGE




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