            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT KNOXVILLE                        FILED
                              JANUARY 2000 SESSION                 February 22, 2000

                                                                   Cecil Crowson, Jr.
                                                                  Appellate Court Clerk


ROBERT W. BREEDEN,               *    C.C.A. # E1999-00363-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, Jr.
                                      Assistant District Attorney General
                                      City-County Building
                                      Knoxville, TN 37902


OPINION FILED:__________________________



AFFIRMED



GARY R. WADE, PRESIDING JUDGE
                                            OPINION

               The petitioner, Robert W. Breeden, appeals the trial court's dismissal

of his petition for post-conviction relief. In this appeal of right, the single issue
presented for review is whether the petitioner was denied the effective assistance of

counsel at trial.



               The judgment of the trial court is affirmed.



               In November of 1995, the petitioner was convicted of attempt to
commit murder in the first degree. The trial court imposed a Range I sentence of 23

years. The conviction was a result of an altercation between the petitioner and the

victim, Calvin C. Stinnett. After an argument, the petitioner, armed with a .22 caliber
semi-automatic rifle, confronted the victim and fired several times at him. One of the

projectiles struck the victim's head. The victim suffered permanent injuries which

include paralysis to his right side, lost sensation in his legs, and a loss of memory.

This court affirmed the conviction and sentence on direct appeal. State v. Robert

William Breeden, No. 03C01-9606-CR-00217 (Tenn. Crim. App., at Knoxville, Sept.
30, 1997). Permission to appeal to the supreme court was denied on November 2,

1998.



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

relief, alleging, among other things, that his trial counsel was ineffective by failing to

raise issues related to the indictment, by failing to challenge a witness at trial, and
by failing to present questions regarding the sentence. The trial court appointed

counsel who amended the petition, alleging that trial counsel had failed to

adequately investigate, had failed to regularly confer with the petitioner and to

communicate an offer of a plea agreement, had failed to consider possible theories
of defense, and had neglected to adequately advise the petitioner of his right to

either testify or remain silent at trial.



               At the evidentiary hearing, the petitioner testified that he had only met


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with his trial counsel on one occasion for a period of about twenty minutes. He

asserted that his trial counsel never discussed possible theories of defense and that

defense witnesses were available at trial but never called by his trial counsel. The
petitioner insisted that he learned only after the trial that the state had made a

twelve-year plea offer, an offer which he said he would have accepted had he been

aware of it. The petitioner asserted that he did not hear from his trial counsel from
the time of the jury verdict until the sentencing hearing and that his trial counsel

offered no evidence in the latter proceeding.



              Trial counsel testified that he had met with the petitioner on several

occasions and presented supporting documents as corroboration. He specifically

recalled advising the petitioner of his right to either testify or to remain silent.
He acknowledged that the state had, in fact, made an offer of a twelve-year

sentence for attempted second degree murder, and he presented a document

signed by the petitioner just before the trial began wherein the petitioner specifically

rejected the proposal made by the state. Although denying that he ever signed such

a document, the petitioner acknowledged that the signature indicating a rejection of
the offer appeared to be in his own handwriting.



              At the conclusion of the evidentiary hearing, the trial court ruled in
favor of the state, specifically accrediting the testimony of trial counsel and rejecting

that of the petitioner, which was described as "confabulation or outright mendacity."

The trial court ruled that there was no deficiency on the part of trial counsel
regarding the indictment, the alleged "illegal" witness, the degree of his preparation,

or the claim pertaining to the sentence. Most importantly, the trial court specifically

rejected the petitioner's claim that trial counsel had not communicated the offer of

plea agreement extended by the state.


              There is a constitutional right to the effective assistance of counsel at

all critical stages of criminal prosecution. Tenn. Const., art. I, § 9; Powell v.

Alabama, 287 U.S. 45 (1932). In order for the petitioner to be granted relief on


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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 (1984);

Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975).



              The petitioner must prove his factual allegations by clear and

convincing evidence. Tenn. Code Ann. § 40-30-210(f). It is the duty of the trial

court to determine the credibility of the witnesses. Byrge v. State, 575 S.W.2d 292,
295 (Tenn. Crim. App. 1978). On appeal, the burden is on the petitioner to show

that 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 by
the trial court are conclusive. Graves v. State, 512 S.W.2d 603 (Tenn. Crim. App.

1973).



              In this appeal, the petitioner complains primarily of the lack of

communication with his trial counsel and the failure of his trial counsel to inform him
of the state's offer of a twelve-year sentence in exchange for a plea of guilty to

attempted second degree murder. Not only did the trial court accept as true the

testimony of trial counsel, but exhibits presented at trial also corroborated trial
counsel's claims that he had met regularly with the petitioner, was prepared for trial,

and that the petitioner had specifically rejected the offer made. In our view, the

evidence does not preponderate against the findings made by the trial court.


              Accordingly, the judgment is affirmed.



                                           ________________________________
                                           Gary R. Wade, Presiding Judge

CONCUR:


_____________________________
Joseph M. Tipton, Judge


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_____________________________
James Curwood Witt, Jr., Judge




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