            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                 FILED
                            AT KNOXVILLE                      August 25, 1999

                                                             Cecil Crowson, Jr.
                          JULY 1999 SESSION                  Appellate C ourt
                                                                 Clerk



ADRIAN WAITE,               *    C.C.A. # 03C01-9809-CR-00343

      Appellant,            *    HAMILTON COUNTY

VS.                         *    Hon. Stephen M. Bevil, Judge

STATE OF TENNESSEE,         *    (Post-Conviction)

      Appellee.             *




For Appellant:                   For Appellee:

Tom Landis, Attorney             Paul G. Summers
Suite 327                        Attorney General and Reporter
744 McCallie Avenue
Chattanooga, TN 37403            Todd R. Kelley
                                 Assistant Attorney General
                                 425 Fifth Avenue North
                                 Second Floor, Cordell Hull Building
                                 Nashville, TN 37243-0493

                                 Mark A. Hooton
                                 Assistant District Attorney General
                                 Third Floor
                                 Hamilton County-City Courts Building
                                 Chattanooga, TN 37402



OPINION FILED:__________________________



AFFIRMED



GARY R. WADE, PRESIDING JUDGE
                                         OPINION

              The petitioner, Adrian Waite, appeals the trial court's denial of post-

conviction relief. The single issue presented for review is whether the defendant

was denied the effective assistance of counsel prior to entering a guilty plea. We

find no error and affirm the judgment of the trial court.



              On May 13, 1993, the petitioner entered pleas of guilt to second

degree murder and aggravated assault. The trial court imposed consecutive

sentences of twenty years and six years, respectively. On November 16, 1995, the

petitioner filed this petition for post-conviction relief, claiming that because his trial

counsel was ineffective, his guilty pleas were neither knowingly nor intelligently

made. More specifically, he contended that the pleas were made under duress and

that his trial counsel failed to adequately investigate the charges, failed to develop a

strategy of defense, and otherwise failed to comport with the standards required of

the profession.



              The trial court summarily dismissed the petition and, on appeal, this

court reversed, holding as follows:

              Before there can be a preliminary dismissal ..., the
              statute requires the trial court to assume "as true" the
              facts alleged by the petitioner. Here, the petitioner,
              notwithstanding the contents of the transcript of his guilty
              pleas, contended that his submission to the charges was
              brought about through "duress," "false promise," and
              "coerced help." He asserted that, as a result of these
              improper influences, his pleas were neither knowingly nor
              voluntarily entered; he insisted that but for the deficient
              representation of his counsel, he would not have
              conceded his guilt to the charges.

              Those allegations, of course, may be exceedingly difficult
              to prove. Yet, even when it is unlikely that a petitioner
              could adequately establish the violation of his
              constitutional rights, the new post-conviction statute
              contemplates and due process requires that he at least
              be afforded the opportunity. The transcript is indeed

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                persuasive evidence that the pleas were freely,
                voluntarily, and intelligently made; the content of the
                petition, if taken as true, does, however, raise potential
                grounds for relief.

Adrian Waite v. State, No. 03C01-9602-CR-00083, slip op. at 4 (Tenn. Crim. App.,

at Knoxville, March 11, 1997).



                On remand, counsel was appointed for the petitioner, amendments

were filed, and an evidentiary hearing was conducted. The claim for relief is based

in great measure on a May 6, 1993, hearing wherein the trial court convened to

consider the submission of a guilty plea. At that proceeding, the petitioner initially

refused to answer questions and ultimately denied any participation in the murder.

The trial court adjourned without approving the proposed plea agreement. A week

later, the petitioner acknowledged that he had stabbed the victim, Angela Ransom,

and that he wanted to accept the plea agreement. At that time, the petitioner

assured the trial judge that he had been neither forced nor threatened to accept the

plea and expressed a full understanding of the consequences of his plea. He also

stipulated that he had attacked a second victim, Jolene McClendon, causing slight

bodily injury. As a part of the agreement, a rape charge was voluntarily dismissed

by the state.



                At the evidentiary hearing, the petitioner's mother, Shirley Waite,

testified that she had attempted to persuade the defendant to plead guilty based

upon the advice of his trial counsel, Brenda Siniard. On cross examination, Ms.

Waite acknowledged that she had not been present during the submission hearing

on May 13, 1993. Maxine W. Smith, the grandmother of the petitioner, also

testified. She recalled that the she had also persuaded the petitioner to plead guilty

for fear that he might either receive a life sentence or face the death penalty on the

murder charge. Ms. Smith was also not present at the submission hearing.

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               The petitioner testified that he was innocent of the crimes. He stated

that he pled guilty because his trial counsel failed to interview witnesses who might

testify on his behalf. He testified that his relatives had asked him to plead guilty and

that his trial counsel had advised that the trial judge would not accept a guilty plea

unless he acknowledged having stabbed the victim. The petitioner claimed that he

was merely following his counsel's advice, despite his strong disagreement and did

so only because he was "so shaken up."



               Trial counsel recalled that the petitioner had been charged with first

degree murder, aggravated rape, and aggravated assault. She testified that the

petitioner had waived a potential conflict of interest so that she could serve as

defense counsel. Trial counsel acknowledged that she recommended acceptance

of the guilty plea due to her belief that if the petitioner chose a trial, it was likely that

he would be found guilty of first degree murder. She contended that she had

conducted an adequate investigation before suggesting acceptance of the offer

made by the state and that she had conducted an in depth review of the file of the

prosecution. Trial counsel claimed that the only hesitancy exhibited by the petitioner

before his plea of guilt related to the length of the proposed sentence, not any claim

of innocence.



               At the conclusion of the evidentiary hearing, the trial court determined

that the pleas had been knowingly and voluntarily entered. The trial court observed

that none of the evidence offered during the evidentiary hearing contradicted the

content of the transcript of the submission hearing. It found "nothing in the record to

support [the] allegation that there was ineffective assistance of counsel or that there

was any pressure on [the petitioner] to plead guilty." The trial court specifically

accredited the testimony of trial counsel over that offered by the petitioner.


                                              4
              In order for the petitioner to be granted post-conviction relief on the

grounds of ineffective assistance of counsel, he must establish that the advice given

or the services rendered were not within the range of competence demanded of

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

results of his trial would have been different. Baxter v. Rose, 523 S.W.2d 930

(Tenn. 1975); Strickland v. Washington, 466 U.S. 668 (1984). This two-part

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

for his counsel's errors, he would not have pleaded guilty and would have insisted

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



              The burden is on the petitioner to show the evidence preponderates

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

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

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



              The content of the record does not preponderate against the findings

made by the trial judge. In our view, that the petitioner followed the advice of his

grandmother, his mother, and his trial counsel does not mean that the plea was

involuntary. In fact, that kind of collaboration suggests that the pleas were

knowingly and intelligently made, after a careful consideration of the facts and

circumstances surrounding the charges. That an aggravated rape charge was

dismissed by the state as a part of the agreement and that the first degree murder

charge was reduced to second degree murder indicates some benefit from the

efforts of trial counsel and the thoughtful participation of the petitioner before his

acknowledgment of responsibility for each of the crimes. In summary, the evidence

does not preponderate against the conclusions made by the trial judge.




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          Accordingly, the judgment is affirmed.



                                     ________________________________
                                     Gary R. Wade, Presiding Judge

CONCUR:



_____________________________
David H. Welles, Judge



_____________________________
Joe G. Riley, Judge




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