         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs April 25, 2001

                  DANIEL M. BANKS v. STATE OF TENNESSEE

                   Direct Appeal from the Circuit Court for Sullivan County
                            No. C43,740    Phyllis H. Miller, Judge



                                  No. E2000-02620-CCA-R3-CD
                                          July 10, 2001

The petitioner, Daniel M. Banks, appeals the trial court's denial of his petition for post-conviction
relief. Because the petitioner was provided the effective assistance of counsel and knowingly and
voluntarily entered his pleas of guilt to possession of marijuana with intent to sell, possession of over
0.5 grams of cocaine with intent to sell, and possession of drug paraphernalia, the judgment is
affirmed.

                  Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed.

GARY R. WADE, P.J., delivered the opinion of the court, in which JERRY L. SMITH and THOMAS T.
WOODALL , JJ., joined.

William A. Kennedy, Assistant Public Defender, Blountville, Tennessee, for the appellant, Daniel
M. Banks.

Paul G. Summers, Attorney General & Reporter; Peter M. Coughlan, Assistant Attorney General;
and Lewis Combs, Assistant District Attorney General, for the appellee, State of Tennessee.


                                              OPINION

        On March 11, 1999, the petitioner, Daniel M. Banks, entered best-interest pleas of guilt to
possession of marijuana with intent to sell, a Class E felony; possession of more than .5 grams of
cocaine with intent to sell, a Class B felony; and possession of drug paraphernalia, a Class A
misdemeanor. See Tenn. Code Ann. §§ 39-17-417, -425; see also North Carolina v. Alford, 400
U.S. 25 (1970). At the sentencing hearing, the trial court imposed a Range I sentence of two years
for the possession of marijuana charge; 11 years for the possession of cocaine; and 11 months and
29 days for the possession of drug paraphernalia. The trial court ordered the sentences to be served
concurrently. The petitioner was also fined $13,750.00.
         On February 22, 2000, the petitioner filed this petition for post-conviction relief. At the
evidentiary hearing, he testified that his trial counsel had informed him that the state intended to add
gun charges and that he could either plead guilty to the drug charges and receive a nine-year sentence
or go to trial and risk a 33-year sentence. He claimed that he was pressured into his decision when
his trial counsel said, "Hurry, hurry, tell me something. . . . I’ve got the judge on the phone." The
petitioner contended that "it was already decided" that he would receive a nine-year sentence and that
the state would not prosecute him on the gun charges. The petitioner claimed that his father’s death
and his own declining health contributed to his decision to plead guilty. At the time of his guilty
plea, the petitioner had been diagnosed with multiple sclerosis.

           On cross-examination, the petitioner stated that when the state first offered him a nine-year
sentence, he left the decision up to his trial counsel, who subsequently rejected the deal. When asked
by the state if he would have accepted the nine-year offer, the petitioner responded as follows: "No,
. . . . I hadn’t thought about it. I probably would have taken nine (9) at the time, . . . . I don’t know.
. . ." He then conceded that no one had actually communicated to him that he would receive a nine-
year sentence.

        Trial counsel testified that the state first offered the petitioner a 10-year plea agreement,
which was subsequently dropped to nine years. He maintained that he discussed the case with the
petitioner on several occasions and that the petitioner had rejected the nine-year offer because
probation was only possible with an eight-year sentence or less. Trial counsel testified that the
petitioner eventually accepted a "blind plea," hoping that the trial court would impose only eight
years and consider an alternative sentence.

        In this appeal, the petitioner first asserts that his trial counsel was ineffective. Specifically,
he claims that his attorney assured him that he was guaranteed a sentence of no more than nine years.
 In denying the petitioner post-conviction relief, the trial court ruled as follows:

        Petitioner never accepted the State’s offer of nine years . . . because it was not
        probatible. The Court finds that there is no credible evidence that Petitioner believed
        he would get a nine year sentence . . . at the sentencing hearing. In fact, it appears to
        the Court that Petitioner may have actually planned to try to have his sentence set
        aside if he did not receive a sentence he desired. Petitioner was specifically asked by
        the Court at the plea hearing whether anyone had made any promises to him, other
        than the agreement that the State would not charge him on a weapons charge in order
        to get him to plead guilty. He had an opportunity at that time to tell the Court that
        he had been promised nine years. He did not do so. Instead, he restricted his answer
        to, "No one has forced me, no."

                The Court also finds that Petitioner has failed to prove to any extent that [his
        trial counsel] was ineffective for failing to explain [the] sentence. After the Court
        has conducted a sentencing hearing and imposed sentence, Petitioner cannot logically



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       complain that an explanation of his sentence at that point would have affected his
       decision to enter the pleas in the first place.

         In a post-conviction proceeding, the petitioner has the burden of proving factual allegations
by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). The findings of fact made by
the trial court are conclusive on appeal unless the petitioner is able to establish that the evidence
preponderates against those findings. Clenny v. State, 576 S.W.2d 12 (Tenn. Crim. App. 1978);
Graves v. State, 512 S.W.2d 603 (Tenn. Crim. App. 1973).

       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).

        The petitioner is not entitled to the benefit of hindsight, may not second-guess a reasonably
based trial strategy, and cannot criticize a sound, but unsuccessful, tactical decision made during the
course of proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such
deference to the tactical decisions of counsel, however, applies only if the choices are made after
adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

        Our review of this record establishes that the petitioner received the effective assistance of
counsel. The petitioner acknowledged that he had no agreement with the state and that he
understood that he could receive a maximum sentence of 14 years. Even in hindsight, the petitioner
was equivocal when asked whether he would have accepted the nine-year agreement. Nothing in
this record suggests that trial counsel performed at a level below professional guidelines.

       The petitioner next argues that his plea was neither knowingly nor voluntarily made.
Specifically, he claims that he was not fully aware of the consequences of his plea because he
believed that he would receive no more than a nine-year sentence.

       In rejecting the petitioner’s claim, the trial court concluded as follows:

       [A] review of the transcript of the guilty plea hearing and Petitioner’s testimony at
       the Post-Conviction hearing reveals that Petitioner’s pleas were knowing, voluntary
       and intelligently entered.

               At the guilty plea hearing, petitioner submitted a "Request for Acceptance of
       Plea of Guilty, Waiver of Rights" form . . . . He acknowledged, under oath, that he
       had signed the form on the front and back and that he had gone over it fully with his
       attorney. . . . The form stated the offenses to which Petitioner was pleading and the
       minimum and maximum sentences and fines for each offense. The form was blank
       as to any agreed sentences.


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                                                  ***

                The court advised petitioner in detail of the possible sentences and fines he
        could receive, that his effective sentence could range from a minimum of eight years
        to a maximum of fourteen years plus eleven months twenty-nine days. Petitioner
        stated repeatedly that he understood the possible sentences he could receive.

        In Boykin v. Alabama, 395 U.S. 238 (1969), the United States Supreme Court ruled that
defendants should be advised of certain of their constitutional rights before entering pleas of guilt.
Included among those required warnings are the right against self-incrimination, the right to confront
witnesses, and the right to a trial by jury. Id. at 243. The overriding Boykin requirement is that the
guilty plea must be knowingly and voluntarily made. Id. at 242. If the proof establishes that the
petitioner was aware of his constitutional rights, he is entitled to no relief. Johnson v. State, 834
S.W.2d 922, 926 (Tenn. 1992). "[A] plea is not 'voluntary' if it is the product of '[i]gnorance,
incomprehension, coercion, terror, inducements, [or] subtle or blatant threats . . . .'" Blankenship v.
State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Boykin, 395 U.S. at 242-43).

         Here, the trial court accredited the testimony of trial counsel who asserted that the petitioner
entered a "blind plea" in hopes of receiving no more than an eight-year sentence. Furthermore, the
trial court rejected the petitioner's claim that he had been pressured or coerced and found that he had
entered an intelligent, knowing, and voluntary plea. The evidence in the record does not
preponderate against those findings.

        Accordingly, the judgment is affirmed.



                                                        ____________________________________
                                                        GARY R. WADE, PRESIDING JUDGE




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