             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE             FILED
                           JULY 1997 SESSION
                                                     September 30, 1997

                                                     Cecil W. Crowson
                                                    Appellate Court Clerk
STEVEN MASON,                    )    NO. 01C01-9610-CC-00428
                                 )
      Appellant.                 )
                                 )    MAURY COUNTY
V.                               )
                                 )    HON. JIM T. HAMILTON,
STATE OF TENNESSEE,              )    JUDGE
                                 )
Appellee                         )    (Post-Conviction)
                                 )


For the Appellant:                    For the Appellee:

Hershell Koger                        John Knox Walkup
135 North First Street                Attorney General and Reporter
P.O. Box 1148
Pulaski, TN 38478                     Clinton J. Morgan
                                      Assistant Attorney General
                                      450 James Robertson Parkway
                                      Nashville, TN 37243-0493


                                      T. Michael Bottoms
                                      District Attorney General
                                      P.O. Box 459
                                      Lawrenceburg, TN 38464

                                      Robert C. Sanders
                                      Assistant District Attorney
                                      Maury County Courthouse
                                      Columbia, TN 38401



OPINION FILED: ___________________


AFFIRMED


William M. Barker, Judge
                                         OPINION

              The appellant, Steven Mason, appeals as of right the trial court’s

dismissal of his petition seeking post-conviction relief. He contends that the trial court

was in error in concluding that he had received the effective assistance of counsel in

his underlying felony. Following our review of the record on appeal, we affirm the

judgment of the trial court

       On March 13, 1992, as a result of a plea bargain agreement, the appellant pled

guilty to three counts of robbery and two counts of attempted robbery in the Maury

County Circuit Court. Earlier, he had entered a plea of guilty to one count of robbery

in Williamson County, Tennessee, and had received an eight year sentence for that

offense. The plea bargain agreement in the Maury County Circuit Court provided that

in exchange for his pleas of guilty, the appellant would receive sentences of eight

years as a Range I standard offender, with the Maury County sentences being served

concurrently with the earlier Williamson County sentence. Thus, the appellant

received an effective sentence of eight years in the Tennessee Department of

Correction for six felony convictions.

       Later, the appellant was convicted of first degree murder and attempted first

degree murder. For those offenses, he was sentenced to life imprisonment and sixty

years, respectively. Based upon his six previous robbery and attempted robbery

convictions, the appellant was sentenced as a career offender. See Tenn. Code

Ann. § 40-35-108 (1990 Repl.). In an effort to rid himself of his career offender status,

the appellant filed this post-conviction relief petition. In his post-conviction petition, the

appellant alleged that he had received the ineffective assistance of counsel in that his

trial counsel had inadequately investigated the charges against him, had failed to

interview witnesses, was not prepared for trial, and had failed to file proper pretrial

motions. At the evidentiary hearing, however, the appellant’s testimony centered on

his complaint that his trial counsel had failed to advise him that if he pled guilty to the



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three robberies and two attempted robberies, he would thereafter be considered a

career offender and required to serve sixty percent of a new sentence for any

subsequent felony conviction. Significantly, however, the appellant did not testify, nor

allege in his petition, that had he been so advised, he would not have pled guilty and

would have insisted on going to trial. The appellant failed to demonstrate how any

defect in his counsel’s advice caused him prejudice in the proceedings.

       The appellant’s former attorney testified at the evidentiary hearing that he

specifically advised the appellant, prior to his guilty pleas, that if the appellant received

any subsequent criminal convictions, then the guilty pleas would be used against him.

He testified that he told the appellant, “[t]his will be used to enhance any sentence you

may get in the future.” He admitted, however, that he did not specifically advise the

appellant that he would be sentenced for future felony convictions as a career

offender.

       “In post-conviction relief proceedings the petitioner has the burden of proving

the allegations in his petition by a preponderance of the evidence.” McBee v. State,

655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, the factual findings of

the trial court “are conclusive on appeal unless the evidence preponderates against

the judgment.” State v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983).

       In reviewing the appellant’s Sixth Amendment claim of ineffective assistance of

counsel, this Court must determine whether the advice given or services rendered by

the attorney were within the range of competence demanded of attorneys in criminal

cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a claim of

ineffective assistance of counsel, a petitioner “must show that counsel’s

representation fell below an objective standard of reasonableness” and that this

performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-

88, 692, 694, 104 S. Ct. 2052, 2064, 2067-68, 80 L. Ed. 2d 674 (1984); Best v. State,

708 S.W.2d 421, 422 (Tenn. Crim. App. 1985). In this case, to satisfy the requirement

of prejudice, the appellant would have had to demonstrate a reasonable probability

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that, but for counsel’s errors, he would not have pled guilty and would have insisted on

going to trial. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d

203 (1985); Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991).

       The appellant’s petition for post-conviction relief fails for two reasons. First, the

only issue the appellant raises on appeal is his claim that his trial counsel was

ineffective for failing to advise him on his career offender status as a result of his guilty

pleas. However, that claim of ineffectiveness was not raised in the appellant’s petition

seeking post-conviction relief. Post-conviction petitions are heard upon the issues

raised by the pleadings, and no relief can be granted upon grounds not raised therein.

State v. Smith, 814 S.W.2d 45, 49 (Tenn. 1990); Long v. State, 510 S.W.2d 83, 85

(Tenn. Crim. App. 1974); Miller v. State, 508 S.W.2d 804, 806 (Tenn. Crim. App.

1973). Although the petition filed in this case alleged that the appellant’s trial counsel

had been ineffective, the petition did not allege that he was ineffective for failing to

advise the appellant regarding his eligibility for career offender status should he plead

guilty to the robbery offenses. Therefore, that claim of ineffectiveness was not raised

by the pleadings.

       Secondly, even assuming, arguendo, that appellant’s trial counsel was

somehow ineffective for failing to advise the appellant that he would be considered a

career offender for any subsequent felony convictions, the appellant failed to testify

that had he been given that advice, he would not have entered his guilty pleas.

Therefore, the record on appeal in this case does not show that the appellant suffered

any prejudice to warrant post-conviction relief.

       Based upon the foregoing, the judgment of the trial court is affirmed.




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                                   _______________________________
                                   William M. Barker, Judge


Concur:




____________________________
John H. Peay, Judge




____________________________
Jerry L. Smith, Judge




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