     IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT KNOXVILLE

                      MARCH 1997 SESSION              FILED
                                                        April 17, 1997

                                                     Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk
DONNIE RAY SEALS,               )
                                ) C.C.A. No. 03C01-9605-CC-00188
      Appellant,                )
                                ) Hamblen County
V.                              )
                                ) Honorable Ben K. Wexler, Judge
                                )
STATE OF TENNESSEE,             ) (Post-Conviction)
                                )
      Appellee.                 )



FOR THE APPELLANT:                FOR THE APPELLEE:

William A. Zierer                 John Knox Walkup
Attorney at Law                   Attorney General & Reporter
124 W. Main Street
P.O. Box 1276                     Robin L. Harris
Morristown, TN 37816-1276         Assistant Attorney General
                                  450 James Robertson Parkway
                                  Nashville, TN 37243-0493

                                  C. Berkeley Bell, Jr.
                                  District Attorney General

                                  Victor J. Vaughn
                                  Assistant District Attorney General
                                  109 S. Main Street, Suite 501
                                  Greeneville, TN 37743




OPINION FILED: ___________________


AFFIRMED


PAUL G. SUMMERS,
Judge




                               OPINION
       The appellant, Donnie Ray Seals, pled guilty to one count of second

degree murder and three counts of aggravated assault. He was sentenced to

fifteen years for second degree murder and three years for each aggravated

assault conviction at 30% as a standard offender. The sentences were ordered

to run concurrently. The appellant filed a pro se petition for post-conviction relief

alleging ineffective assistance of counsel, and counsel was appointed for the

appellant’s post-conviction hearing. The hearing court denied relief. The

appellant appeals this denial. We affirm.



       The appellant was involved in a head-on collision with another vehicle.

The appellant, who at the time of the incident had a blood alcohol level of .28,

was traveling in the wrong direction and struck an oncoming vehicle. One

person was killed, and three others were injured.



       The appellant alleges that he was denied effective counsel because (1)

his counsel disregarded a potential defense to his second degree murder

charge; (2) his counsel based his plea recommendation on the assumption that,

if the appellant stood trial, any convictions to the charges would run

consecutively; and (3) his counsel allowed him to rely on receiving a relatively

early release if he would enter a guilty plea.



       To be granted relief on the ground of ineffective assistance of counsel, an

appellant must establish that the advice given or the services rendered were not

within the competence demanded of attorneys in criminal cases and that, but for

counsel’s deficient performance, the result of his or her trial would have been

different. Strickland v. Washington, 466 U.S. 668 (1984). This two-part


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standard, as it applies to guilty pleas, is met when the appellant establishes that,

but for counsel’s error, he or she would not have pled guilty and would have

insisted on trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985). In Tennessee, the

appropriate test is whether counsel’s performance was within the range of

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

S.W.2d 930, 936 (Tenn. 1975).



       In post-conviction proceedings, petitioners bear the burden of proving

their allegations by a preponderance of the evidence. Black v. State, 794

S.W.2d 752, 755 (Tenn. Crim. App. 1990); McBee v. State, 655 S.W.2d 191,

195 (Tenn. Crim. App. 1983). Furthermore, the trial court’s findings of fact in

post-conviction hearings are conclusive on appeal unless the evidence

preponderates against those findings. Butler v. State, 789 S.W.2d 898, 899

(Tenn. 1990); State v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983);

Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).



       First, the appellant alleges that his counsel disregarded a potential

defense to his second degree murder charge. The appellant contends that he

was in a “blacked-out” mental state when he drove his vehicle head-on into the

car in which four persons were riding. The appellant, an admitted alcoholic,

suggests through his expert witness on addiction medicine that his intoxication

was not voluntary. In his brief, the appellant alleges that while he “voluntarily

consumed that first beer, he was not voluntarily intoxicated,” and thus did not

“knowingly” kill the victim. However, the appellant, who already had three prior

convictions for driving under the influence and had had his driver’s license

revoked, knowingly and voluntarily took that first drink and proceeded to drive.

The appellant asks this Court to disregard well-settled law that voluntary

intoxication is not a defense to second degree murder. State v. Butler, 900

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S.W.2d 305, 310-11 (Tenn. Crim. App. 1994); State v. McKinney, 603 S.W.2d

755, 760 (Tenn. Crim. App. 1980). This Court is not prepared to do so. From

the record, counsel was not ineffective for failing to use voluntary intoxication as

a defense for the appellant’s second degree murder charge. This claim is

baseless.



       Second, although the appellant could not recall a discussion with his

attorney regarding consecutive sentencing, he alleges that his counsel advised

him that if he stood trial, any convictions to the charges could run consecutively.

Counsel admitted that he did so advise the appellant. Although the hearing court

noted that it would have advised that the sentences run concurrently, the

prosecutor stated that the appellant could have received consecutive sentences

as “an offender whose record of criminal activity is extensive.” Tenn. Code Ann.

§ 40-35-115(b)(2) (1990).



       The appellant has a lengthy record of traffic and driving under the

influence charges. Furthermore, the prosecutor noted that had the appellant

gone to trial, his record and the facts of the case would have resulted in six

enhancement factors for sentencing purposes with no mitigating factors. Thus,

according to the prosecutor, the appellant could have received as much as

eighteen years on the lesser offenses of vehicular homicide and vehicular

assault had he gone to trial; and had he been convicted of the charges as

indicted, he could have received as much as forty-three years. Consequently,

counsel’s advice regarding consecutive sentencing was not only correct but also

prudent. This issue is without merit.



       Third, the appellant was sentenced to fifteen years at 30% as a Range I

standard offender. His release eligibility date is four and one-half years. The

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appellant contends that his trial counsel mistakenly represented that his fifteen-

year sentence could be served in only two years. He claims that his reliance on

early release led him to plead guilty. Trial counsel admitted that he told the

appellant that he would be eligible for release in 4.7 years, and perhaps earlier

because of the overcrowding conditions in prison. Trial counsel, however,

denied that he told the appellant that he would be eligible for release in only two

years. In his brief, the appellant admits that counsel “made no promises of early

release before what he said would be 4.7 (sic) years (15 years times 30%).”



       The record reveals that at the time he entered his plea, the appellant

admitted that he understood that his sentence was fifteen years at 30% release

eligibility. The appellant also admitted that he had completed the eleventh grade,

and although he stated at the post-conviction hearing that he could not multiply

30% times 15 at the time he entered his plea, he admitted that he could now do

this multiplication. The record does not indicate that counsel’s apparent

mathematical error inured to appellant’s detriment; the miscalculation was on the

conservative side. This issue is without merit.



       This Court finds that the appellant has failed to establish that he received

ineffective assistance. Because the evidence does not preponderate against the

hearing court’s findings, we affirm that court’s judgment.




                                              ______________________________
                                              PAUL G. SUMMERS, Judge


CONCUR:

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______________________________
JOHN H. PEAY, Judge




______________________________
CORNELIA A. CLARK, Special Judge




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