            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT NASHVILLE             FILED
                             NOVEMBER 1998 SESSION
                                                          December 10, 1998

                                                        Cecil W. Crowson
JAMES ROBERT MAJORS, SR.,             *                Appellate Court Clerk
                                            C.C.A. # 01C01-9804-CR-00172

             Appellant,               *     SUMNER COUNTY

VS.                                   *     Hon. Jane W. Wheatcraft, Judge

STATE OF TENNESSEE,                   *     (Post-Conviction)

             Appellee.                *




For Appellant:                        For Appellee:

David A. Simpson, Attorney            John Knox Walkup
113 West Main Street                  Attorney General and Reporter
Gallatin, TN 37066
                                      Timothy Behan
                                      Assistant Attorney General
                                      Criminal Justice Division
                                      425 Fifth Avenue North
                                      Nashville, TN 37243-0493

                                      Sallie Wade Brown
                                      Assistant District Attorney General
                                      113 East Main Street
                                      Gallatin, TN 37066




OPINION FILED:__________________________



AFFIRMED



GARY R. WADE, PRESIDING JUDGE
                                         OPINION

              The petitioner, James Robert Majors, Sr., appeals the trial court's

denial of his petition for post-conviction relief. In this appeal of right, the petitioner

claims that his trial counsel was ineffective and that the judgment of conviction

should be set aside.



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



              On December 16, 1996, the petitioner entered pleas of guilt to stalking,

false imprisonment, assault, driving on a revoked license, evading arrest, and

vandalism over $1,000.00. As a part of the plea agreement, the state did not

prosecute indictment counts for aggravated assault and aggravated kidnapping.

While initially classified as a Class E felony, the stalking conviction was amended

four months later to correctly identify the crime as a Class A misdemeanor. The

effective sentence is two years, eleven months and twenty-nine days.



              In his petition for post-conviction relief, the petitioner claimed, among

other things, that his trial counsel had been ineffective for having failed to initially

recognize that the count for stalking was a misdemeanor rather than a felony. He

insists that "he would have pursued his defense differently if the stalking been [a]

misdemeanor...."



              The trial court considered the several counts of the indictment, two of

which were for Class B and Class C felonies, and then determined that, despite the

error in the classification of the stalking charge, trial counsel had performed within

the guidelines demanded in the profession.




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              When a petitioner seeks post-conviction relief on the basis of

ineffective assistance of counsel, he must first establish that the services rendered

or the advice given was below "the range of competence demanded of attorneys in

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

must show that the deficiencies "actually had an adverse effect on the defense."

Strickland v. Washington, 466 U.S. 668, 693 (1984). Should the petitioner fail to

establish either factor, no relief is warranted. As to guilty pleas, the petitioner must

establish a reasonable probability that, but for the errors of his counsel, he would

not have entered the plea and would have insisted on going to trial. Hill v. Lockhart,

474 U.S. 52, 59 (1985).



              Under our statutory law, the petitioner bears the burden of proving his

allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). On

appeal, the findings of fact made by the trial court are conclusive and will not be

disturbed unless the evidence contained in the record preponderates against them.

Brooks v. State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on

the petitioner to show that the evidence preponderated against those findings.

Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).



              In our view, the testimony at the evidentiary hearing does not

preponderate against the trial court's conclusion that the petitioner would have

entered the negotiated plea regardless of whether the indictment count was for

felony stalking or misdemeanor stalking. The effective sentence is essentially the

same. In fact, the ultimate result was marginally better than the bargain the

petitioner and his trial counsel had made. In the context of all the various charges

against the petitioner, it would appear that trial counsel performed effectively in

achieving an acceptable plea agreement. The record suggests that the result would


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have been acceptable to the petitioner whether the stalking conviction was a

misdemeanor or a felony.



             Accordingly, the judgment is affirmed.




                                        _________________________________
                                        Gary R. Wade, Presiding Judge

CONCUR:



_____________________________
John H. Peay, Judge



_____________________________
Jerry L. Smith, Judge




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