       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE          FILED
                       JANUARY SESSION, 1997          April 24, 1997

                                                Cecil W. Crowson
KENNY D. COVINGTON,          )                 Appellate Court Clerk
                                  C.C.A. NO. 01C01-9604-CR-00149
                             )
      Appe llant,            )
                             )
                             )    DAVIDSON COUNTY
VS.                          )
                             )    HON. J. RANDALL WYATT, JR.
STATE OF TENNESSEE,          )    JUDGE
                             )
      Appellee.              )    (Post-Conviction)


              ON APPEAL FROM THE JUDGMENT OF THE
              CRIMINAL COURT OF DAVIDSON COUNTY


FOR THE APPELLANT:               FOR THE APPELLEE:

ROBERT J. MENDES                 CHARLES W. BURSON
209 T enth Av enue S outh        Attorney General and Reporter
Suite 511
Nashville, TN 37203              CLINTON J. MORGAN
                                 Assistant Attorney General
                                 450 James Robertson Parkway
                                 Nashville, TN 37243

                                 VICTOR S. JOHNSON
                                 District Attorney General

                                  CHERYL BLACKBURN
                                  Assistant District Attorney General
                                  Washington Square, Suite 500
                                  222 Se cond A venue N orth
                                  Nashville, TN 37201-1649



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                               OPINION

      The Petitioner a ppeals the trial cour t’s denial of h is petition for p ost-

conviction relief pursuant to Rule 3 of the Tennesse e Rules of Appe llate

Procedure. He was convicted by a guilty plea of three counts of selling over

.5 grams of cocaine, one count of selling over 26 grams of cocaine, one count

of possession for sale of over 26 grams of cocaine, one count of possession

for sale of over .5 grams of cocaine, one count of possession of drug

paraphernalia, and one count of a felon possessing a weapon. He was

sentenced by the trial court as a R ange I offende r to thirty (30) years

imprison ment. In this appeal, the Petitioner contends that counsel rendered

ineffective assistance and that his gu ilty plea was not entere d voluntarily,

knowin gly, or und erstand ingly. W e affirm the judgm ent of the tria l court.



      The Petitioner filed a pro-se petition for post-conviction relief on August

4, 1995. Counsel was appointed and filed an amended petition on Oc tober

2, 1995. A hearing in the trial court was conducted on October 23, 1995 and

an order was issued on November 17, 1995, denying the petition. The

Petitioner now a ppeals the trial court’s ord er.



      As his first issue, the Petitioner argues that he was d enied the effective

assis tance of counsel. In de termining wh ether couns el provided effective

assistance at trial, the court mus t decid e whe ther co unse l’s performance was

within the range of competence demanded of attorneys in criminal cases.

Baxter v. Rose, 523 S.W .2d 93 0, 936 (Ten n. 197 5). To succe ed on a claim



                                        -2-
that his coun sel was in effective at trial, a petitioner bears the burden of

showing that his counse l made errors so serious that he was not functioning

as counsel as guaranteed under the Sixth Amendment and that the deficient

representation prejudiced the petitioner resulting in a failure to produce a

reliable result. Strickland v. Washington, 466 U.S . 668, 687 , reh’g denied,

467 U.S. 1 267 (1984 ); Coop er v. State, 849 S.W .2d 744, 747 (Tenn. 199 3);

Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). To satisfy the second

prong the petitioner mus t show a reas onab le proba bility that, b ut for co unse l’s

unrea sona ble error, the fact finder would have had reasonable doubt

regarding petitioner’s guilt. Strickland, 466 U .S. at 69 5. This reaso nable

probability must be “sufficie nt to unde rmine c onfiden ce in the o utcom e.”

Harris v. S tate, 875 S.W .2d 662, 665 (Tenn. 199 4).



       When reviewing trial counsel’s actions, this court should not use the

bene fit of hindsight to second-guess trial strategy and c riticize c ouns el’s

tactics. Hellard v. S tate, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged

errors should be ju dged at the time they were made in light of all facts and

circumstances. Strickland, 466 U.S. at 69 0; see Cooper, 849 S.W.2d at 746.



       This two part standard of measuring ineffective assistance of counsel

also applies to claims a rising out o f the plea p rocess . Hill v. Lockhart, 474

U.S. 52 (1985). The prejudice requirement is modified so that the petitioner

“must show th at there is a reason able pro bability that, bu t for cou nsel’s errors

he would not ha ve plea ded g uilty and would have in sisted on go ing to tria l.”

Id. at 59.




                                         -3-
      In the case sub judice, the Petitioner was represented by three

attorneys and he alleges that all three had a role in failing to provide effective

assistance. The Petitioner was arrested on August 14, 1993 based on a

warrant for his arrest for possessing and selling cocaine. A police informant

had made several controlled buys of cocaine from the Petitioner and the

police had made audio tapes of telephone calls involving discussions about

drug sa les.



      His first attorney, Glen Funk, represented the Petitioner when he was

arrested. Mr. Funk went to the jail and met with him , represented h im the next

day when the case was bound over to the grand jury and was making

preparations to represent him at a Community Corrections revocation hearing.

Mr. Funk’s assessment of the case was that the State had very strong proof

against the Petitioner.   Mr. Funk reviewed with the Petitioner the search

warran t, the execution of the search warrant, and the po tential penalties for

the alleged crimes . Mr. Funk advised him to waive a preliminary hearing

because the Petitioner had indicated that he was going to c oopera te with the

police and give information about other drug dealers. Mr. Funk testified that

he advised him to waive the he aring be cause the Petition er wante d to

cooperate with the police and th e Com mun ity Corre ctions hearin g would

serve the purpose of a preliminary hearing in terms of presenting and cross-

examining witnesses . The Petitioner claims that he did not understand the

purpose of a preliminary hearing, yet he had been previously represented by

Mr. Funk and had extensive meetings regarding another case. Before the

hearing, the Petitioner’s family told Mr. Funk that another attorney, Jack

Butler, would be as sum ing his represe ntation. W e cannot conclude, from the

                                       -4-
evidence before us, that Mr. Funk’s representation fell belo w the a ccep table

range of competence. Furthermore, the Petitioner has presented no evidence

regarding any prejudice he suffered because of Mr. Funk’s representation.



       Jack Butler , the Pe titioner’s seco nd atto rney, re prese nted h im through

his arraignm ent. Mr. Butler investigated the case, interviewed witnesses, and

made reque sts for d iscove ry. His paralegal reviewe d the discovery mate rials

with the Petitioner. Mr. Butler testified that he did not listen to the audiotapes

becau se they w ere set o ut in the se arch wa rrant. He also stated that would

have listened to the tapes had the case gone to trial, but that the case at that

point was focu sed on settling. He also concluded that the State’s proof was

extrem ely strong. T he Petition er conte nds an d Mr. Bu tler testified that the

State offered a plea agreement of twenty-four years if both he and his co-

defend ant, his girlfrie nd, wo uld ag ree. S he ap paren tly refused the offer. The

State counters that the only offer that was made to the Petitioner was for thirty

years as a R ange II offende r.



       The Petitioner contends that he was advised to refuse the offer.

Howeve r, Mr. Butler testified that he did not so advise the Petitioner because

he had a lready indica ted he would not agree. M r. Butler filed a motion to

withdraw from represe ntation after discovering that the Petitioner had been

communicating on his own with his co-defendant’s attorney. Although Mr.

Butler did not advise the Pe titioner o n his option s, he te stified th at he w ould

not have recommended going to trial because the proof was so strong, and

that his other options were to accept the plea agreement or plead guilty and




                                         -5-
subm it to sentencing by the trial judge. He would have recommended taking

the thirty-yea r agreem ent.



       The Petitioner was represented by his third attorney, Mr. R.N . Taylor,

through his guilty plea and sentencing. Mr. Taylor requested the file from Mr.

Butler and reviewed the evidence against the Petitioner. He also concluded

that the proof wa s very stron g and th at he wo uld not rec omm end a trial. He

did, however, advise the Petitioner to plead guilty and leave the sentence

open to be determined at a sentencing hearing. He asse ssed the Pe titioner’s

case and advised that he might do better than the fixed thirty-yea r, Rang e II

sentence at 35% offered by the State. At the hearing, the Petitioner was

sentenced to thirty years as a Range I offender at 30%. He claims that the

advice of his attorney was erroneous and that he would have proceeded to

trial. However, the outcome after the sentencing hearing was better than the

State ’s offer. T herefo re, this a rgum ent m ust fail.



       The Petitioner also ass erts that both Mr. Butler and Mr . Taylor faile d to

investigate the ca se ad equa tely. It is well-established that defense counsel

must condu ct an app ropriate inv estigation into both the facts and the law to

determine what matters of defe nse ca n be de veloped . See e.g., Baxter v.

Rose, 523 S.W .2d at 936 ; McBee v. State, 655 S.W.2d 191, 195 (Tenn. Crim.

App. 1983). Furthermore, our supreme court recognized in Baxter that the

American Bar As sociation Standa rds for Criminal Justice provide useful

guidance with regard to the function and responsibilities of defen se co unse l.

The American Bar Association standard s explain d efense couns el’s duty to

investigate with the following language:

                                          -6-
       It is the duty of the lawyer to conduct a prompt investigation of
       the circumstances of the case and to explore all avenues leading
       to facts relevant to the merits of the case and the penalty in the
       event of con viction. T he inve stigation should always include
       efforts to secure information in the possession of the prosecution
       and law enfor ceme nt autho rities. The d uty to investig ate exists
       regardless of the accused’s admissions or statements to the
       lawyer of facts constituting guilt or the accuse d’s stated desire to
       plead guilty.

ABA S tandards for C riminal Justice § 4-4 .1 (2d ed. Sup p. 1986).


       Specifically, the Petitioner argues that his attorneys failed to review the

surveillance tapes with him. Furthermore, he contends that Mr. Taylor failed

to request independent testing of the substances seized or challenge the

validity of the warrant. However, there is evidence that Mr. Butler reviewed

the tape transcripts. Furthermore, Mr. Ta ylor ha d the ta pes in his possession,

although he did not sp ecifica lly recall reviewing them. There is also evidence

that both attorneys reviewed the search warrant and the nature of the

informa tion supporting that warrant.          Finally, the Petitioner had all along

admitted to the police, the Assistant District Attorney, and to his attorneys that

he had made the drugs sales in question and he initially indicated a desire to

become an informant. The focus of the representation, in the face of such

strong proof, was to obtain a favorable plea agre ement. All the a ttorneys

agreed that a trial wa s not in the Petitioner’s best intere st.



       W e are reluctant to, and indeed precluded from , second-gu essing Mr.

Butler’s and M r. Taylo r’s actio ns.      Fro m a re view of th e surro undin g

circumstances, we cannot conclude that any failure by the attorneys to review

the tapes rende red their represe ntation deficient. The attorneys did evalua te

the strength of the case against the Pe titioner a nd co nclud ed tha t a trial wo uld



                                         -7-
not be in his best interest.     There was no evidence suggesting that the

substances obtained from the Petitioner were not cocaine nor did the warrant

appear defective. Although the Petitioner claims that he w ould ha ve gone to

trial, he has presented no evidence that suggests how further investigation

would have benefitted him ; his allegatio ns are m erely spe culative. W e note

that under th e provision s of the P ost-Co nviction P rocedu re Act of 1 995, a

petitioner bears the burden of proving the allegations in the petition by clear

and convincing evidence. Tenn. Code Ann. § 40-30-2 10(f) (Su pp. 199 6). In

reviewing post-conviction proceedings, "the factual findings of the trial court

are conclus ive unless the evide nce pre ponde rates ag ainst such findings ."

Cooper v. State, 849 S.W .2d 744 , 746 (T enn.19 93); Butler v. Sta te, 789

S.W.2d 898, 899 (Tenn.1990).          Under these circumstances, we cannot

conclude that the evidence preponderates against the trial court’s findings.



       Second, the Petitioner argues that he did no t know ingly or in telligen tly

enter into his guilty plea because: (1) he relied on erroneous legal advice; (2)

a full investigatio n was not conducted; (3) he waived a preliminary hearing;

and (4) counsel failed to make two motions requested by him. A defendant

must be advised o f his constitutional rights befo re he is allowed to ente r a

guilty plea. Boykin v. Alabama, 395 U.S. 238 (1969 ). Among those rights are

the right again st self-incrim ination, the right to confront witnesses and the right

to a trial by jury. Id. at 243. The record must show that a guilty plea was

made voluntarily, understa ndingly, an d know ingly. Id. at 242. In State v.

Mackey, 553 S.W .2d 337 (Te nn. 1977), the T ennesse e Suprem e Court

imposed stricter standards than those mandated in Boyk in. Included in the

Mackey requirements:

                                         -8-
      A. Before accepting a plea of guilty, the court must address the
      defend ant pers onally in op en cou rt . . . . . . . .

      D. A verbatim record of the proceedings at which the defendant
      enters a plea shall be made and, if there is a plea of guilty, the
      record shall include, without limitation, (a) the court’s ad vice to
      the defendant, (b) the inquiry into the voluntariness of the plea
      including any plea agreement and into the defendant’s
      understanding of the consequences of his entering a plea of
      guilty, and (c) the inquiry into the accuracy of a guilty plea.


Id. at 341.



         In State v. Neal, 810 S.W.2d 131 (Tenn. 1991), our supreme court

stated that the purp ose for the se guide lines is to "seek to insulate guilty pleas

from coercion and relevant defendant ignorance. They are d esigned to insu re

that guilty pleas are voluntary a nd kno wing." Id. at 135. The Tennessee

Supre me C ourt has also state d:


      For the plea to be a ccep table it must be voluntary. That does not
      mean that the de fenda nt wou ld want to plead guilty if he or she
      had the option av ailable to g o free. The option available is to go
      to trial, with its unc ertainties, o r to plead g uilty. The knowledge
      that is most relevant to this decision of the ac cused pertains to
      the rights that are available to him or her up on a trial that are
      given up by plea ding guilty.


Id.



          The Petitioner cites Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88

L.Ed.2d 203 (19 85), for the propos ition that a gu ilty plea may be made

involun tarily because of the ineffective assistance of counsel. We iterate that

we have determ ined that the trial court did not err in finding that he was

provided effective assistance of counsel. Therefore, the Petitioner’s argument



                                           -9-
that his plea was not knowingly or intelligently entered fails on this ground.

Furthermore, the trial court reviewed with the petitioner the consequences of

waiving a jury trial at the time he pleaded guilty and the Petitioner indicated

that he understood. In Hill, the attorney wrongly advised the defendant about

his parole e ligibility upon which he relied in choo sing to plead gu ilty. Hill, 474

U.S. at 60, 106 S.Ct. at 371. Here, the attorneys did not provide incorrect

information, but instead rendered legal advice considering the circumstances

of the case. There was no guarantee of the outcome, which unfo rtunate ly

was not to the Petitioner’s liking. However, he was informed of his options

and their po tential ris ks an d the P etitione r then m ade a choice . Although

there was some failure to fully investigate, the Petitioner has not

demonstrated how this prejudiced him. As for the preliminary hearing waiver

and the failure to make motions, the Petitioner has only made conclusory

allegations. Without more, we cannot adequately review these claim s. This

issue is w ithout me rit.



       Accord ingly, we affirm the judgm ent of the tria l court.




                                   ____________________________________
                                   DAVID H. WELLES, JUDGE




                                        -10-
CONCUR:



___________________________________
JERRY L. SMITH, JUDGE


___________________________________
JOE G. RILEY, JUDGE




                            -11-
