             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE            FILED
                        FEBRUARY 1998 SESSION
                                                        August 7, 1998

                                                     Cecil W. Crowson
ROGER TERRY JOHNSON              )                  Appellate Court Clerk
                                 )           01C01-9705-CR-00172
      Appellant                  )
                                 )           DAVIDSON COUNTY
v.                               )
                                 )           Hon. J. Randall Wyatt
STATE OF TENNESSEE               )
                                 )           (Post Conviction)
      Appellee.                  )
                                 )



For the Appellant:                           For the Appellee:

Thomas A. Longaberger                        John Knox Walkup
300 James Robertson Parkway                  Attorney General & Reporter
Nashville, TN. 37201
                                             Lisa A. Naylor
                                             Assistant Attorney General
                                             2d Floor, Cordell Hull Building
                                             425 Fifth Avenue North
                                             Nashville, TN. 37243-0493

                                             Victor S. Johnson, III
                                             District Attorney General

                                             Katrin Miller
                                             Assistant District Attorney
                                             Washington Square, Ste. 500
                                             222 Second Avenue South
                                             Nashville, TN. 37201-1649




OPINION FILED:_____________________

AFFIRMED

WILLIAM M. BARKER, JUDGE
                                                  OPINION

          The appellant, Roger Terrance Johnson, appeals as of right from the Davidson

County Criminal Court’s dismissal of his petition for post conviction relief. W e affirm

the judgment of the trial court.

          On December 7, 1994, the appellant pled guilty to first degree murder and

second degree murder and was sentenced to life imprisonment and thirty (30) years

respectively.1 The thirty (30) year sentence for second degree murder was later

modified to twenty five (25) years and eight (8) months. The trial court ordered the

sentences to be served consecutively.

          The appellant filed a pro se petition for post conviction relief on May 9, 1996,

alleging that his trial counsel was ineffective in failing to properly investigate his case

and in failing to file a motion to suppress his pre-trial statements. Through a newly

appointed counsel, appellant filed an amended post-conviction petition raising the

same grounds for relief.

          Following an evidentiary hearing, the trial court dismissed appellant’s petition

upon finding that his trial counsel provided competent and effective assistance. The

appellant contends on appeal that the trial court erred in denying him post-conviction

relief.

          To prevail on a claim of ineffective assistance of counsel in this proceeding, the

appellant must prove by clear and convincing evidence2 that the advice or services

provided by his counsel fell below the range of competence demanded of attorneys in

criminal cases. See Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).

Furthermore, he must demonstrate prejudice by proving that, but for counsel’s

incompetence, he would not have pled guilty and would have insisted upon going to

trial. See Hill v. Lockart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985);

          1
         The murder charges in this case were based upon the 1994 deaths of Patrice Phelps and her
unborn fetus. The circumstances surrounding the murders were not made a part of the record on
app eal.

          2
              Tenn. Code A nn. § 40-30-210(f) (Supp. 1996).

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Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991), per. app. denied

(Tenn. July 1, 1991).

         The appellant first argues that his counsel was ineffective in failing to properly

investigate his case. He contends that counsel should have interviewed additional

witnesses and explored possible defenses before encouraging him to plead guilty.

         At the post-conviction hearing, appellant’s counsel testified that she interviewed

four individuals from the State’s list of twenty-two potential witnesses. Those

interviewed included two police detectives who recorded appellant’s confession, the

appellant’s sister, and a business manager who operated a local billiards hall. 3

Counsel testified that she also met with the appellant’s parents on several occasions

and she met with the appellant approximately eighteen times before discussing the

final plea negotiation with him.

         During meetings between appellant and his counsel, the appellant informed her

that he suffered from a chronic addiction to drugs and alcohol. Counsel testified that

she noted the appellant’s substance abuses and explored a defense based upon

induced dementia. However, she decided not to pursue that defense because she

found no evidence that appellant was under the influence of drugs or alcohol when the

crimes occurred.

         Appellant’s counsel testified that with the help of the Davidson County Public

Defender and an investigator from the Public Defender’s Office, she carefully reviewed

the evidence against the appellant and determined that a plea agreement was in his

best interest. The evidence against the appellant included his two confessions,

positive identification of the appellant from a photograph lineup, clothing taken by

police from appellant’s home, bloody footprints matching his left shoe, and the victim’s



         3
          Befo re ple ading guilty, th e app ellant cont end ed th at he was playing billiard s at a local p ool ha ll
when the crimes occurred. Appellant’s counsel investigated the possible alibi and discovered that the
pool hall had a security camera which monitors and records the activities inside the business. The
billiards manager, Patricia Searcy, told counsel that the recorded tapes from the evening in question
could not be located. Ms. Searcy also told counsel that neither she nor her staff recalled seeing
appellan t at the poo l hall on the ev ening of th e crim es.

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body. Based upon that evidence and the prosecution’s intent to seek the death

penalty at trial, appellant’s counsel believed that plea negotiations were the most

viable strategy for the appellant’s defense.

       The trial court reviewed the evidence and found nothing in counsel’s

investigations that rose to the level of ineffective assistance. That determination is

conclusive on appeal and will not be overturned unless the evidence preponderates

against the judgment. See State v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App.

1983). From our review of the record, we affirm the trial court’s finding and conclude

that appellant’s counsel conducted a sufficient investigation of the case.

       The appellant also alleges that his counsel was deficient in failing to file a

motion to suppress his pre-trial statements. He contends that his decision to enter

guilty pleas was influenced by counsel’s failure to challenge the admissibility of his

pre-trial confessions.

       The record reflects that the appellant confessed to the murders on two

occasions following his arrest. The appellant first implicated himself in the crime while

discussing the case with his parents at their family home. In the presence of police,

the appellant told his parents that he was responsible for the murder of Patrice

Phelps. The police thereafter took appellant back to police headquarters where he

signed a “waiver of rights” form and made a second confession on video tape.

       Appellant’s counsel testified that she examined the statements to determine if

there were grounds for a motion to suppress. Counsel discussed the matter with the

appellant and decided not to file a motion to suppress. Counsel determined that the

first statement made to appellant’s parents was voluntary and uncoerced by State

officials. As such, she believed that the first statement would be admissible against

the appellant at trial.

       Counsel concluded that the only possible challenge to appellant’s confessions

pertained to the second statement made on video tape. The appellant was



                                               4
mirandized and he signed a waiver form before making the statement. However, the

interviewing police officer marked the waiver form to indicate that appellant lacked the

mental capacity to make a knowing and voluntary waiver of his rights. Appellant’s

counsel questioned the admissibility of the second statement; however, she

nevertheless declined to file a motion to suppress.

      Counsel’s decision in that regard must be reviewed with deference and from

the counsel’s perspective at that time. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn.

1982). Every effort is made to avoid judging counsel’s performance from hindsight;

however, we must ensure that the appellant was afforded reasonably effective and

competent assistance in his case. See id.

      We agree with the trial court’s finding that appellant’s counsel made a tactical

decision not to pursue a motion to suppress during the plea negotiations. Counsel

carefully reviewed appellant’s pre-trial statements and other incriminating evidence

and determined that the appellant should negotiate a settlement instead of facing a

possible death sentence at trial. Although the decision not to pursue a motion to

suppress may have been incorrect or imprudent, counsel’s defense strategy was

based upon her preparation and knowledge of the case. As such, we decline to

second guess counsel’s strategies even if other lawyers judging in hindsight may have

made a better choice of tactics. See Hellard 629 S.W.2d at 9.

      We conclude that the tactical decisions and services provided by appellant’s

counsel were within the standard demanded of attorney’s in criminal cases. From the

beginning of appellant’s case, counsel pursued a plea agreement with the State and

she met with the appellant approximately eighteen times to keep him informed of the

negotiations and the status of his case. The appellant faced a substantial amount of

incriminating evidence and a possible death sentence if he were convicted at trial.

Under those circumstances, counsel relied upon her experience as a public defender




                                            5
and her knowledge of the case to defend the appellant’s interests and to protect his

life.

        Furthermore, assuming arguendo that appellant’s counsel was somehow

deficient in this case, the appellant has made no showing that but for counsel’s

incompetence, he would have insisted upon going to trial. The record reflects instead

that the appellant was well informed of the circumstances of his case and that he

chose voluntarily to enter a plea agreement in light of the evidence against him. At the

plea hearing, the trial judge addressed the appellant in open court and apprised him of

his rights and the consequences of pleading guilty. Appellant indicated that he

understood his rights and the nature of his pleas.

        In sum, the appellant has failed to carry his burden of proving that the advice

and services provided by his trial counsel amounted to ineffective assistance.

Appellant was fully aware that his life was at stake and that the evidence weighed

heavily against him. He took the advice of counsel and entered guilty pleas to the

offenses of first and second degree murder.

        Having been informed of his rights and the consequences of pleading guilty, the

appellant made a voluntary and knowing decision within the purview of Boykin v.

Alabama, 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709 (1969), and State v. Mackey,

553 S.W.2d 337, 341 (Tenn. 1977). We, therefore, affirm the trial court’s dismissal of

his petition for post conviction relief.



                                                 ____________________________
                                                 WILLIAM M. BARKER, JUDGE



CONCUR:

____________________________
GARY R. WADE, Presiding Judge

____________________________
J. CURWOOD WITT, JUDGE


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