         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs January 6, 2004

              JAMES HOWARD DAVIS v. STATE OF TENNESSEE

                   Direct Appeal from the Circuit Court for Benton County
                        No. CR998-PC-1     C. Creed McGinley, Judge



                    No. W2003-01403-CCA-R3-PC - Filed March 18, 2004


The Appellant, James Howard Davis, appeals the Benton County Circuit Court’s dismissal of his
petition for post-conviction relief. Davis pled guilty to driving under the influence (“DUI”) eighth
offense and violation of the Motor Vehicle Habitual Offenders Act. On appeal, he asserts that he
was denied the effective assistance of counsel. Finding no error, the judgment of the post-conviction
court is affirmed.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH and THOMAS T.
WOODALL, JJ., joined.

Guy T. Wilkinson, District Public Defender; Vicki S. Snyder, Assistant District Public Defender,
Camden, Tennessee, for the Appellant, James Howard Davis.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Kathy D.
Aslinger, Assistant Attorney General; G. Robert Radford, District Attorney General; and Beth
Boswell and Eleanor Cahill, Assistant District Attorneys General, for the Appellee, State of
Tennessee.


                                             OPINION

                                       Factual Background

       On May 4, 2002, Benton County Deputy Jeffrey Lynn Arnold was traveling on Eva Road in
Benton County, when he observed a 1983 Cadillac traveling in the opposite direction “off the
shoulder of the road.” After turning around, Deputy Arnold observed the Cadillac, driven by the
Appellant, cross the yellow line and again “run off the shoulder three times” before the vehicle could
be stopped. Upon approaching the Cadillac, the Deputy asked the Appellant if he had been drinking.
The Appellant responded, “yes” he was drinking, and he further explained, “[a]s a matter of fact, I’ve
been drunk for three days.” When asked how many drinks he had consumed, the Appellant replied,
“[o]bviously, too many.” As the Appellant was holding onto his car, he was asked if he could
perform any sobriety tests. The Appellant replied he could not because “he probably couldn’t stand
up to do none.” At this point, the Appellant was arrested for DUI and placed into custody.

       Following a records check, the Appellant was charged with DUI tenth offense, driving on a
revoked license sixth offense, and violation of the Motor Vehicle Habitual Offenders Act (MVHO).
Subsequent to his indictment, the Appellant pled guilty to the felony offense of DUI eighth offense
and violation of the MVHO Act and was sentenced to three years for each offense to be served
concurrently.

                                                     Analysis

        On appeal, the Appellant first asserts that trial counsel was ineffective for failing to
“investigate his case, fail[ing] to spend sufficient time advising the defendant, fail[ing] to effectively
communicate in writing and orally with the defendant and fail[ing] to properly prepare paperwork
in this cause.” In this regard, we are provided no suggestion as to how any further investigation,
communication, or preparation of paperwork would have produced the probable result that the
Appellant would not have pled guilty but would have insisted on going to trial. Hill v. Lockhart, 474
U.S. 52, 59, 106 S. Ct. 366, 370 (1985) (applying the two-part standard of Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984) to guilty pleas).1 The evidence of guilt in this case
could aptly be characterized as overwhelming. The constitutional guarantee to effective assistance
of counsel does not require the performance of a miracle. The Appellant has failed to establish by
clear and convincing evidence that trial counsel was deficient. Accordingly, this claim must fail.
See Tenn. Code Ann. § 40-30-110(f) (2003).

         In a second area of claimed deficient representation, the Appellant argues that trial counsel
failed to “properly inform him that he would not be guaranteed a placement in a special needs facility
in the Tennessee Department of Correction.” He contends that he was told by trial counsel that he
would be placed in a special needs facility and, if he had known this would not take place, he would
not have pled guilty. The Appellant’s position was contradicted by trial counsel and the prosecutor
at the post-conviction hearing. The post-conviction court in ruling on this factual dispute concluded,
“Although special needs facility was discussed, it was never a guarantee or a part of the Plea
Agreement . . . [T]hat it would merely be a recommendation that would be placed upon the judgment
that all parties clearly understood would not be binding on the Department of Correction.” The
record supports this finding. Accordingly, this issue is without merit.




         1
         The two-part standard of measuring ineffective assistance of counsel under Strickland v. Washington requires
a showing of (1) deficient performance and (2) prejudice resulting from the deficiency.

                                                        -2-
                                          Conclusion

       Based upon the foregoing, we conclude that the Appellant’s claim of ineffective assistance
of counsel is without merit. The judgment of the Benton County Circuit Court denying relief is
affirmed.




                                                     ___________________________________
                                                     DAVID G. HAYES, JUDGE




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