        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT JACKSON

                       JULY SESSION, 1997                 FILED
                                                   September 12, 1997
TYRONE HENDERSON,         )   C.C.A. NO. 02C01-9610-CR-00376
                          )                         Cecil Crowson, Jr.
      Appellant,          )                               Appellate C ourt Clerk
                          )
                          )   SHELBY COUNTY
VS.                       )
                          )   HON. JOHN P. COLTON, JR.
STATE OF TENNESSEE,       )   JUDGE
                          )
      Appellee.           )   (Post-Conviction)


               ON APPEAL FROM THE JUDGMENT OF THE
                CRIMINAL COURT OF SHELBY COUNTY


FOR THE APPELLANT:            FOR THE APPELLEE:

W AYNE CHASTAIN               JOHN KNOX W ALKUP
66 Monroe, Suite 804          Attorney General and Reporter
Memphis, TN 38103
                              ELIZABETH T. RYAN
                              Assistant Attorney General
                              425 5th Avenue North
                              Nashville, TN 37243

                              JOHN W. PIEROTTI
                              District Attorney General

                              DAW N DORAN
                              Assistant District Attorney General
                              Criminal Justice Complex, Suite 301
                              201 Poplar Street
                              Memphis, TN 38103




OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                     OPINION

      The Petitioner, Tyrone Henderson, appeals as of right pursuant to Rule 3

of the Tennessee Rules of Appellate Procedure from the trial court’s denial of his

petition for post-conviction relief. On January 7 and 8, 1993, the Petitioner

pleaded guilty to one count of aggravated assault, one count of sale of a

controlled substance (cocaine), and five counts of aggravated robbery.1 As

specified in the negotiated plea agreement, he was sentenced to six years for the

aggravated assault, twelve years for the sale of cocaine, twelve years each for

four counts of aggravated robbery and thirteen years for one count of aggravated

robbery. The thirteen-year sentence was ordered to run consecutively to the

other sentences, all of which were to run concurrently, resulting in an effective

term of imprisonment of twenty-five years with the Department of Correction. The

Petitioner was classified as a Range I standard offender. He filed a pro se

petition for post-conviction relief on September 14, 1995, which was amended

with the assistance of counsel on February 1, 1996. In his petition for post-

conviction relief, the Petitioner argues that he was denied effective assistance of

counsel at his guilty plea proceedings for a number of reasons. The trial court

conducted an evidentiary hearing on April 25, 1996, and after considering the

evidence, issued an order denying the petition on July 10, 1996. We affirm the

judgment of the trial court.



      The transcript of the January 7, 1993, guilty plea proceeding indicates that

the aggravated assault and the aggravated robberies occurred in January of



      1
          Tenn. Code Ann. §§ 39-13-102, 39-17-417, and 39-13-402.

                                               -2-
1992. The offenses stemmed from the robbery of several businesses in Shelby

County by the Petitioner and a codefendant. During one of the robberies, a gun

was discharged, wounding an employee of the business. The police investigation

eventually led authorities to the codefendant, who implicated the Petitioner in the

crimes. Victims of the crimes identified the Petitioner from photo arrays. In

addition, a video tape of one of the robberies showed the Petitioner. Upon

questioning by police, the Petitioner confessed to the crimes. He negotiated a

plea agreement with the district attorney general’s office and, on January 7, 1993,

pleaded guilty to the crimes.



      On the following day, January 8, 1993, the Petitioner pleaded guilty to one

count of sale of a controlled substance, namely, cocaine. The transcript of that

guilty plea proceeding is not included in the record on appeal. As a result, the

circumstances surrounding that offense are unclear. All we can glean from the

record is that the offense allegedly occurred on February 28, 1992, in Shelby

County.



      On September 14, 1995, the Petitioner filed a pro se petition for post-

conviction relief, arguing that defense counsel at the guilty plea proceedings was

ineffective. Counsel was appointed and amended the petition on February 1,

1996. Through the amended petition, the Petitioner argued that his attorney at

the guilty plea proceedings, Tom Pera, rendered ineffective assistance of counsel

in a number of ways:

      (1) That counsel did not fully advise the Petitioner of his
      constitutional rights;
      (2) that counsel did not ensure that the Petitioner fully understood
      the consequences of giving up those rights by pleading guilty;
      (3) that counsel failed to obtain expert witnesses for the defense;

                                        -3-
      (4) that counsel failed to obtain investigative services for the
      defense;
      (5) that counsel failed to file certain motions beneficial to the
      defense;
      (6) that counsel failed to investigate evidence supporting the
      Petitioner’s innocence;
      (7) that counsel failed to meet adequately with the Petitioner to
      discuss the case;
      (8) that counsel failed to explain the concurrent and consecutive
      nature of the sentences; and,
      (9) that counsel failed to explain that the convictions could be used
      against the Petitioner in the future.

Through the amended petition, the Petitioner also argued that his convictions

violated double jeopardy principles in that he also received federal convictions

stemming from the robberies supporting his state convictions. The trial court

found that the double jeopardy issue lacked merit, and the issue was not pursued

on appeal to this Court. Accordingly, we will not address that issue in this

opinion.



      The trial court conducted an evidentiary hearing on the petition for post-

conviction relief on April 25, 1996. At the hearing, the Petitioner testified that he

pleaded guilty because he did not understand the nature of the charges, the level

of proof, and his constitutional rights. In particular, he testified that he did not

understand that he had a constitutional right to a jury trial. He also stated that he

pleaded guilty because he was scared and that defense counsel, Tom Pera, told

him that he could receive the death penalty if he did not accept the plea

agreement. He had heard that the trial judge handling his case was “tough” and

feared that he would be sentenced to death.



      From his recollection, the Petitioner recalled meeting with defense counsel

only once. According to the Petitioner, defense counsel never asked him if he



                                         -4-
had any witnesses to support his innocence. As a result, he did not inform

defense counsel that his m other would have served as an alibi witness for some

of the crimes of which he stood accused. In addition, he stated that he confessed

to the crimes because he was scared and did not understand the charges.

Defense counsel filed a motion to suppress the confession, but it was never

acted upon according to the Petitioner.



       The Petitioner testified further that he did not complete the eighth grade.

Moreover, he was hit by a car when he was five years old and suffered a head

injury. As a result, he testified that his cognitive abilities are impaired and he

sometimes has difficulty understanding what others tell him.



       On cross-examination, the Petitioner admitted that he had pleaded guilty

to numerous charges in the past. He stated that several different attorneys had

represented him on those cases, but none of them had ever explained to him that

he had a constitutional right to a jury trial.



       The only other witness to testify at the post-conviction hearing was the

Petitioner’s attorney from the guilty plea proceedings, Tom Pera. Pera testified

that he had worked as a defense attorney for twenty-two years, handling cases

involving everything from misdem eanors through first-degree murder. During that

time, he handled approximately one hundred thirty to two hundred jury trials and

more than one thousand guilty pleas. After having reviewed his case file, he

testified that he spoke with the Petitioner four times about his charges. The level

of proof against the Petitioner was formidable, including identification by the

victims, a videotape of one of the robberies showing him, his codefendant’s

                                          -5-
implication of him in the crimes, and his own confessions. In Pera’s opinion,

there was the potential for a conviction on each of the charges against the

Petitioner. Pera spoke with the Petitioner’s mother and had no recollection of her

being a potential witness. Pera confirmed that the Petitioner never informed him

that his mother would serve as an alibi witness.



      Given the level of proof against the Petitioner, Pera began to explore plea

options with the district attorney general’s office. The prosecutor initially offered

a sentence of thirty years.     Pera negotiated with the prosecutor and they

eventually agreed to a twenty-five year sentence. Pera requested a consecutive

sentence at Range I rather than concurrent sentences at Range II or III because

the Petitioner would have to serve less actual time before becoming eligible for

parole. Pera did file a motion to suppress some of the evidence against the

Petitioner, but informed him that it was the practice of the district attorney

general’s office to revoke any plea offers if the motion to suppress was heard and

denied. After considering his options, the Petitioner decided to plead guilty

before the motion to suppress was heard.



      Pera testified that it was his usual practice to explain constitutional rights

and the consequences of pleading guilty to his clients. He did not recall any

occasion in which the Petitioner did not seem to understand what they were

discussing. Pera detected no indication of any m ental illness or disability. If

there had been any question about the Petitioner’s mental state and

comprehension ability, Pera stated that he would have requested an evaluation.

Pera denied that he told the Petitioner that he could be sentenced to death for his

crimes if he refused to plead guilty.

                                         -6-
      After considering the evidence presented at the post-conviction hearing,

the trial court entered thorough, detailed findings of fact and conclusions of law.

In short, the trial court did not find the Petitioner’s testimony to be persuasive and

instead accredited Tom Pera’s testimony in all respects. The trial court found

that Pera had fully advised the Petitioner of his constitutional rights and the

consequences of pleading guilty.



      W ith respect to the allegations that defense counsel was ineffective in

failing to obtain expert witnesses and investigative services, presumably for the

purpose of evaluating the Petitioner’s mental functions, the trial court noted that

Pera testified that if there had been any indication of a mental disability, he would

have requested an evaluation. The trial court found that the Petitioner had not

informed Pera of any mental disability and that the Petitioner did not appear to

be suffering from a mental disability during his discussions with defense counsel.

Accordingly, the trial court concluded that Pera’s actions with regard to the

Petitioner’s mental functions were reasonable.



      W ith respect to the allegations that defense counsel failed to develop a

reasonable trial strategy, failed to file certain motions and failed to investigate

evidence to support the Petitioner’s innocence, the trial court noted that the

evidence supporting the Petitioner’s guilt was overwhelming. The trial court

pointed out that Pera did file a motion for discovery and a motion to suppress.

As far as evidence supporting the Petitioner’s innocence, the trial court found that

the only evidence suggested by the Petitioner at the post-conviction hearing was

that his mother could have been an alibi witness. The trial court, however, found

that the Petitioner did not inform Pera of that circumstance at the guilty plea

                                         -7-
proceeding and that Pera’s conversations with the Petitioner’s mother

demonstrated that she was not a potential alibi witness.



       W ith respect to the allegations that defense counsel failed to meet

adequately with the Petitioner, failed to explain the concurrent and consecutive

nature of his sentences and failed to explain that the convictions could be used

against him in the future, the trial court accredited Pera’s testimony. The trial

court found that Pera had met with the Petitioner four times and that their level

of contact was reasonable.       In addition, the trial court found that Pera had

explained to the Petitioner the nature of his concurrent and consecutive

sentences as well as the fact that his convictions could be used against him in

the future.



       As a result, the trial court concluded that Pera’s representation fell within

the range of competence demanded of attorneys in criminal cases. Given that

Pera had provided effective assistance of counsel, the trial court concluded that

the Petitioner had entered his guilty pleas knowingly, intelligently and voluntarily.

The trial court therefore denied the petition for post-conviction relief. It is from the

order of denial that the Petitioner now appeals.



       In determining whether or not counsel provided effective assistance at trial,

the court must decide whether or not counsel’s performance was within the range

of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523

S.W.2d 930 (Tenn. 1975).          To succeed on a claim that his counsel was

ineffective at trial, a petitioner bears the burden of showing that his counsel made

errors so serious that he was not functioning as counsel as guaranteed under the

                                          -8-
Sixth Amendment and that the deficient representation prejudiced the petitioner

resulting in a failure to produce a reliable result. Strickland v. Washington, 466

U.S. 668, 687, reh’g denied, 467 U.S. 1267 (1984); Cooper v. State, 849 S.W .2d

744, 747 (Tenn. 1993); Butler v. State, 789 S.W .2d 898, 899 (Tenn. 1990). To

satisfy this second prong the petitioner must show a reasonable probability that,

but for counsel’s unreasonable error, the fact finder would have had reasonable

doubt regarding petitioner’s guilt. Strickland, 466 U.S. at 695. This reasonable

probability must be “sufficient to undermine confidence in the outcom e.” Harris

v. State, 875 S.W.2d 662, 665 (Tenn. 1994).



      W hen reviewing trial counsel’s actions, this court should not use the benefit

of hindsight to second-guess trial strategy and criticize counsel’s tactics. Hellard

v. State, 629 S.W .2d 4, 9 (Tenn. 1982). Counsel’s alleged errors should be

judged at the time it was made in light of all facts and circumstances. Strickland,

466 U.S. at 690; see Cooper, 849 S.W .2d at 746.



      This two part standard of measuring ineffective assistance of counsel also

applies to claims arising out of the plea process. Hill v. Lockhart, 474 U.S. 52

(1985). The prejudice requirement is modified so that the petitioner “must show

that there is a reasonable probability that, but for counsel’s errors he would not

have pleaded guilty and would have insisted on going to trial.” Id. at 59.



      W e note that in post-conviction relief proceedings, the petitioner bears the

burden of proving the allegations in his or her petition by clear and convincing

evidence. Tenn. Code Ann. § 40-30-210(f) (Supp. 1996). Furthermore, the

factual findings of the trial court in post-conviction hearings are conclusive on

                                        -9-
appeal unless the evidence preponderates against them. See State v. Buford,

666 S.W .2d 473, 475 (Tenn. Crim. App. 1983).



      Applying the Strickland standard to the case sub judice, we believe that the

Petitioner has failed to establish that defense counsel’s representation at the

guilty plea proceedings was constitutionally deficient. The Petitioner testified at

the post-conviction hearing that defense counsel failed to explain his

constitutional rights and the consequences of pleading guilty, failed to investigate

his mental functioning, failed to pursue evidence supporting his innocence, and

failed to explain his sentences. In contrast, defense counsel Pera testified that

he fully explained both the consequences of pleading guilty and constitutional

rights, that he was unaware of any mental disability, that he investigated possible

avenues of defense and found few given that the Petitioner had adm itted guilt,

and that he fully explained the nature of the sentences.



      After hearing all of the evidence and evaluating credibility, the trial court

accredited the testimony of the Petitioner’s defense counsel, Tom Pera. Thus,

the trial court found that the evidence did not support the Petitioner’s allegations

of ineffective assistance of counsel.      With regard to the Petitioner’s mental

disability contention, the trial court noted that the only evidence of a disability was

the Petitioner’s bare allegation of such. The trial court found that this allegation

was rebutted by Pera’s testimony that he noticed no mental deficiency or lack of

understanding on the part of the Petitioner at the guilty plea proceedings. This

Court has previously held that without some indication of a mental disability,

defense counsel is generally not ineffective for failing to request an examination.

See State v. Kerley, 820 S.W.2d 753, 755 (Tenn. Crim. App. 1991). Of course,

                                         -10-
the Petitioner could have presented testimony from other witnesses, particularly

expert witnesses, detailing his mental condition. He chose not to do so.



      The trial court was in a much better position to evaluate the credibility of

the witnesses than this Court. The trial court found Tom Pera’s testimony to be

persuasive and therefore concluded that the Petitioner had not established that

Pera’s representation was constitutionally deficient. From the record before us,

we cannot conclude that the evidence preponderates against the trial court’s

findings. This issue lacks merit.



      W e point out that, on appeal, the Petitioner has raised two additional

issues which were not presented in his petition for post-conviction relief. The

Petitioner argues that the trial court presiding over the guilty plea proceedings

erred by failing to advise the Petitioner of his constitutional right against self-

incrimination and that the trial judge erred by interjecting his intimidating personal

feelings into the guilty plea proceedings.       Because these issues were not

presented in the petition for post-conviction relief, the trial court was unable to

make a ruling with regard to them.



      W e believe that the Petitioner has waived consideration of these issues by

this Court. In general, an appellant cannot change theories from the trial court

to the appellate court. See State v. Matthews, 805 S.W .2d 776, 781 (Tenn. Crim.

App. 1990); State v. Aucoin, 756 S.W .2d 705, 715 (Tenn. Crim. App. 1988).

W aiver aside, we can only conclude that the Petitioner’s additional issues are

without merit.




                                         -11-
        The Petitioner contends that the trial court presiding over his guilty plea

proceedings erred by failing to advise him of his constitutional right against self-

incrimination. The transcript of the January 7, 1993, guilty plea proceeding is

included in the record on appeal.2 That transcript clearly reveals that the trial

court advised the Petitioner of his constitutional right not to testify should he elect

to proceed to trial. The Petitioner responded that he understood that right upon

questioning by the trial court. Accordingly, this issue lacks merit.



        The Petitioner also contends that the trial judge erred by interjecting his

intimidating personal feelings into the guilty plea proceeding. In particular, he

refers to the trial judge’s questioning of him about gaining a considerable sum of

money as a result of the robberies but nevertheless being represented by an

appointed attorney. At one point, the trial judge stated, “I’ll tell you, I’m sick and

tired of paying somebody to represent you. That’s my money. That’s my money

paying to represent you. That’s my money paying your court costs, and I’m sick

and tired of it.” The Petitioner argues that the remarks were indicative of a

judicial bias against him.



        Regardless of the propriety of the trial judge’s remarks, the Petitioner has

not alleged that he was prejudiced in any way. The record indicates that the trial

judge did in fact advise the Petitioner of his constitutional rights and the

consequences of pleading guilty. Moreover, we note that sentencing was not left

to the discretion of the trial judge, but rather was agreed upon in the plea

agreement. The trial court accepted the Petitioner’s guilty pleas and sentenced


        2
          The transcript of the January 8, 1993, guilty plea proceeding involving the sale of cocaine
conviction is not included in the record on appeal. As a result, we are unable to determine what
transpired at that proceeding.

                                                  -12-
him according to the terms of the plea agreement. W e fail to see any prejudice

inuring to the Petitioner as a result of the challenged remarks made by the trial

judge. Thus, we believe that this issue lacks merit.



         For the reasons set forth in the discussion above, we conclude that the

Petitioner has failed to demonstrate that the trial court erred in denying the

petition for post-conviction relief. W e therefore affirm the judgment of the trial

court.




                                 ____________________________________
                                 DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JOE B. JONES, PRESIDING JUDGE



___________________________________
JOE G. RILEY, JUDGE




                                       -13-
