            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT KNOXVILLE                        FILED
                              JANUARY 2000 SESSION                 February 22, 2000

                                                                   Cecil Crowson, Jr.
                                                                  Appellate Court Clerk


THOMAS ALLEN CLARK,              *    C.C.A. # E1999-00362-CCA-R3-CD
             Appellant,          *    KNOX COUNTY
VS.                              *    Hon. Ray L. Jenkins, Judge

STATE OF TENNESSEE,              *    (Post-Conviction)
             Appellee.           *




For Appellant:                        For Appellee:

Albert J. Newman, Jr.                 Paul G. Summers
Attorney                              Attorney General and Reporter
Suite 500, Burwell Building
602 South Gay Street                  R. Stephen Jobe
Knoxville, TN 37902                   Assistant Attorney General
                                      Criminal Justice Division
                                      425 Fifth Avenue North
                                      Nashville, TN 37243-0493

                                      Randall E. Nichols
                                      District Attorney General

                                      Robert L. Jolley
                                      Assistant District Attorney General
                                      City-County Building
                                      Knoxville, TN 37902



OPINION FILED:__________________________



AFFIRMED



GARY R. WADE, PRESIDING JUDGE
                                        OPINION

              The petitioner, Thomas Allen Clark, appeals the trial court's denial of
post-conviction relief. The single issue presented for review is whether the
petitioner was denied the effective assistance of counsel.



              We affirm the judgment of the trial court.


              On October 5, 1998, the petitioner, who had been charged with five
counts of especially aggravated kidnaping, one count of custodial interference, and
two counts of aggravated assault, entered pleas of guilt to three counts of

aggravated assault. The other charges were dismissed. In accordance with the
terms of a plea agreement, the trial court imposed a Range I sentence of six years

on each count. Because two of the counts were ordered to be served

consecutively, the effective sentence was 12 years.


              On February 1, 1999, the petitioner filed this petition for post-

conviction relief, alleging that the pleas were neither knowingly nor voluntarily made,
that his counsel was ineffective, and that his sentence was excessive. Later, the
petitioner was appointed counsel and the petition was amended. The petition and

the amendment included assertions that trial counsel failed to conduct an adequate

investigation, failed to adequately inform the petitioner about the possible length of
the sentence, and, among other things, failed to develop any possible theory of

defense.



              At the conclusion of the evidentiary hearing, during which the petitioner

and his trial counsel both testified, the trial court concluded that the petitioner had
not been denied his right to the effective assistance of counsel. In particular, the

trial court determined that trial counsel had interviewed all witnesses, sought
discovery material from the state, and ascertained petitioner's versions of the
offenses. The trial court also concluded that the petitioner's trial counsel had

disclosed all possible penalties before arriving at a negotiated plea agreement which


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included a 12-year sentence, "a considerable concession to the previously offered

bargain." The trial court also determined that the petitioner had been advised of all
of his constitutional rights before entering his pleas of guilt. It also observed that the
petitioner had not addressed or otherwise complained about the application of

enhancement factors or any other issue relating to the excessiveness of the
sentence.


              In order for the petitioner to be granted relief on grounds of ineffective
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 result of his trial would have been
different. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984); Baxter v.

Rose, 523 S.W.2d 930 (Tenn. 1975). 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 pled guilty and would have insisted on trial. Hill v. Lockhart, 474

U.S. 52, 106 S. Ct. 366 (1985).



              Under the terms of the Post-Conviction Procedure Act, a petitioner
bears the burden of proving the allegations by clear and convincing evidence.

Tenn. Code Ann. § 40-30-210(f). The credibility of the witnesses and the weight

and value afforded to their testimony are appropriately addressed in the trial court.
Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997). On appeal, the

burden is on the petitioner to establish that the evidence preponderated against the

findings of the trial judge. Clenny v. State, 576 S.W.2d 12 (Tenn. Crim. App. 1978).
Otherwise, the findings of fact by the trial court are conclusive. Graves v. State, 512

S.W.2d 603 (Tenn. Crim. App. 1973).


              Essentially, the petitioner here complained that the only reason he
entered into the negotiated plea agreement was because his trial counsel had
advised that he had no other choice. The petitioner maintained that he had a valid

defense and that he gave up his right to a jury trial only because his counsel


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directed him to do so.



              The convictions were based upon an incident involving the petitioner's
former girlfriend, Ora Mae Rivers, her two children, who were six and thirteen years

old at the time of the offense, and her mother, Stella Bishop. All four were at the
apartment of Ms. Bishop when the petitioner, already under a court order of
protection, armed himself with a pistol and assaulted and attempted to abduct Ms.

Rivers. When Ms. Rivers, once outside the apartment, struggled and was able to
free herself, the petitioner returned to the apartment where he detained Ms. Bishop
and Ms. Rivers' two daughters. The petitioner held the three hostage for about 30

minutes while he threatened to kill himself. The three aggravated assault pleas
pertain to Ms. Rivers, Ms. Bishop, and the thirteen-year-old daughter.



              The petitioner's primary complaint is that his trial counsel did not seem
to be interested in anything other than a plea agreement. While the petitioner

insisted that he had a valid defense, the record of the evidentiary hearing does not

suggest what that might have been. Trial counsel informed the petitioner that he
would likely receive a twenty-five-year sentence if he chose to have a trial. Trial
counsel testified that the petitioner, faced with little other in the way of alternatives,

wanted to enter a guilty plea from the outset. The trial judge, who saw and heard

the witnesses firsthand, accredited the testimony of trial counsel. In our view, the
trial court appropriately determined that the petitioner had failed to establish by clear

and convincing evidence that the performance of his trial counsel was deficient and

that, but for the deficiency, the petitioner would have insisted on a trial.


              Accordingly, the judgment is affirmed.


                                            ________________________________
                                            Gary R. Wade, Presiding Judge

CONCUR:


_____________________________

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Joseph M. Tipton, Judge



_____________________________
James Curwood Witt, Jr., Judge




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