             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON

                           SEPTEMBER 1997 SESSION         FILED
                                                          December 4, 1997

CHARLES AUSTIN,                      )                    Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk
                                     )
                   APPELLANT,        )
                                     )    No. 02-C-01-9611-CR-00386
                                     )
                                     )    Shelby County
v.                                   )
                                     )    Joseph B. Brown, Jr., Judge
                                     )
                                     )    (Post-Conviction Relief)
STATE OF TENNESSEE,                  )
                                     )
                    APPELLEE,        )



FOR THE APPELLANT:                        FOR THE APPELLEE:

Craig B. Floyd, II                        John Knox Walkup
Attorney at Law                           Attorney General & Reporter
100 North Main Bldg., Suite 2400          500 Charlotte Avenue
Memphis, TN 38103                         Nashville, TN 37243-0497

                                          Clinton J. Morgan
                                          Assistant Attorney General
                                          450 James Robertson Parkway
                                          Nashville, TN 37243

                                          William L. Gibbons
                                          District Attorney General
                                          201 Poplar Avenue, Suite 3-01
                                          Memphis, TN 38103

                                          John W. Campbell
                                          Assistant District Attorney General
                                          201 Poplar Avenue, Suite 3-01
                                          Memphis, TN 38103




OPINION FILED:_________________________________

AFFIRMED PURSUANT TO RULE 20

Joe B. Jones, Presiding Judge
                                    OPINION

       The appellant, Charles Austin (petitioner), 1 appeals as of right from a judgment of

the trial court denying his action for post-conviction relief following an evidentiary hearing.

While the petitioner presents two issues for review, the gist of these issues is that the

petitioner was denied his constitutional right to the effective assistance of counsel.

       The evidence adduced during the hearing conflicts as to every material fact, and

these conflicts cannot be reconciled. The petitioner testified he entered pleas of guilty

pursuant to a plea agreement because he was afraid he would receive a death sentence

if he went to trial. He further testified his retained counsel coerced him to plead guilty. The

submission hearing reveals the assistant district attorney general advised the trial court the

state did not have grounds to seek a death sentence due to recent decisions of the

Supreme Court. The petitioner’s trial counsel testified that the state never gave notice or

indicated it would seek a death sentence; and he emphatically denied he told the petitioner

he could receive a death sentence if he went to trial. Furthermore, defense counsel stated

the decision regarding whether the petitioner should enter guilty pleas was made by the

petitioner and his mother.

       Counsel’s main concern was the imposition of consecutive sentencing. An assistant

district attorney general told counsel the petitioner could enter pleas of guilty and the state

would recommend the sentences be served concurrently. However, if the petitioner went

to trial, the assistant district attorney general asserted the state would make every effort

to have the trial court order that the sentences be served consecutively.

       When questioned about the proceedings during the submission hearing, the

petitioner stated he was there physically but not mentally; and he committed perjury during

the hearing. He claimed he gave the answers his attorney suggested.

       The trial court found the petitioner failed to prove the grounds alleged in the petition

by a preponderance of the evidence. Given the preposterous answers he gave during his

testimony, it is doubtful the trial court believed him or a former co-defendant who testified



       1
       The petitioner was indicted as “Charles E. Austin,” “Charles Edward Austin,” and
“Charles Austin.” He initiated this action as “Charles Austin.” All of these names refer to
the same person.

                                              2
in support of the petitioner’s theory of how the murder occurred.

       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

petitioner has failed to establish the evidence preponderates against the judgment of the

trial court. Thus, the judgment of the trial court is affirmed pursuant to Rule 20, Tennessee

Court of Criminal Appeals.




                                   ____________________________________________
                                         JOE B. JONES, PRESIDING JUDGE




CONCUR:




______________________________________
       DAVID H. WELLES, JUDGE




______________________________________
        JOE G. RILEY, JUDGE




                                             3
