             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                            FEBRUARY 1998 SESSION
                                                            FILED
                                                                 March 26, 1998

                                                            Cecil Crowson, Jr.
ANTHONY CICCHETTO,              )                           Appellate C ourt Clerk
                                )     No. 02-C-01-9706-CR-00210
            APPELLANT,          )
                                )     Shelby County
v.                              )
                                )     Honorable W . Fred Axley, Judge
STATE OF TENNESSEE,             )
                                )     (Post-Conviction Relief)
            APPELLEE.           )




FOR THE APPELLANT:                    FOR THE APPELLEE:

William W. Nowlin                     John Knox Walkup
Attorney at Law                       Attorney General & Reporter
100 North Main Building               425 Fifth Avenue, North
Suite 3201                            Nashville, TN 37243-0493
Memphis, TN 38103
                                      Georgia B. Felner
                                      Counsel for the State
                                      425 Fifth Avenue, North
                                      Nashville, TN 37243-0493

                                      William L. Gibbons
                                      District Attorney General
                                      201 Poplar Avenue, Suite 3-01
                                      Memphis, TN 38103

                                      Rhea Clift
                                      Assistant District Attorney General
                                      201 Poplar Avenue, Suite 3-01
                                      Memphis, TN 38103




OPINION FILED: ______________________________


AFFIRMED PURSUANT TO RULE 20


Joe B. Jones, Presiding Judge
                                      OPINION

       The appellant, Anthony Cicchetto (petitioner), appeals as of right from a judgment

of the trial court dismissing his post-conviction action after an evidentiary hearing.1 The

trial court found the petitioner was afforded his constitutional right to the effective

assistance of counsel; and the petitioner’s guilty pleas passed constitutional muster. In this

court, the petitioner contends the evidence contained in the record preponderates against

the trial court’s findings of fact. After a thorough review of the record, the briefs submitted

by the parties, and the law governing the issue presented for review, it is the opinion of this

court the judgment of the trial court should be affirmed pursuant to Rule 20, Tennessee

Court of Criminal Appeals.

       The petitioner was required to establish the grounds litigated by “clear and

convincing” evidence. Tenn. Code Ann. § 40-30-210(f). Thus, the petitioner was required

to prove by clear and convincing evidence (a) the services rendered or advice given by

counsel fell below “the range of competence demanded of attorneys in criminal cases,”

Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975) and (b) the unprofessional conduct of

counsel enured to the prejudice of the petitioner. Williams v. State, 599 S.W.2d 276, 279

(Tenn. Crim. App.), per. app. denied (Tenn. 1980). The United States Supreme Court

adopted this two-prong standard in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d

203 (1985), the Supreme Court extended these same standards to cases where the

petitioner entered a plea of guilty. In Hill, the prejudice prong was modified to require the

petitioner to prove “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.” Hill, 474 U.S. at 59, 106

S.Ct. at 370.

       In this case, the petitioner failed to establish the grounds asserted by clear and

convincing evidence. Moreover, assuming arguendo, the petitioner proved counsel’s

representation was deficient, he certainly did not establish how he was prejudiced. Finally,

the evidence contained in the record does not preponderate against the trial court’s


       1
        Pursuant to a plea bargain agreement, the petitioner entered pleas of guilty to rape
and was sentenced to serve eight (8) years, sexual battery and was sentenced to serve
two (2) years, and forgery and was sentenced to serve two (2) years. The sentences are
to be served concurrently.
findings of fact. Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990).




                                        ________________________________________
                                            JOE B. JONES, PRESIDING JUDGE


CONCUR:



___________________________________
      JOHN H. PEAY, JUDGE



___________________________________
   THOMAS T. WOODALL, JUDGE
