         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE        FILED
                           MARCH 1999 SESSION
                                                      April 8, 1999

                                                  Cecil W. Crowson
                                                 Appellate Court Clerk
HAROLD DAVID JONES,                )
                                   )    NO. 01C01-9805-CC-00222
      Appellant,                   )
                                   )    ROBERTSON COUNTY
VS.                                )
                                   )    HON. JOHN H. GASAWAY III
STATE OF TENNESSEE,                )    JUDGE
                                   )
      Appellee.                    )    (Post-Conviction)



FOR THE APPELLANT:                      FOR THE APPELLEE:

MICHAEL R. JONES                        JOHN KNOX WALKUP
District Public Defender                Attorney General and Reporter
109 South Second Street
Clarksville, TN 37040                   MARVIN E. CLEMENTS, JR.
                                        Assistant Attorney General
                                        Cordell Hull Building, 2nd Floor
                                        425 Fifth Avenue North
                                        Nashville, TN 37243-0493

                                        JOHN WESLEY CARNEY, JR.
                                        District Attorney General

                                        DENT MORRISS
                                        Assistant District Attorney General
                                        500 South Main Street
                                        Springfield, TN 37172




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                   OPINION


       Petitioner, Harold David Jones, appeals from the dismissal of his petition for

post-conviction relief by the Circuit Court of Robertson County. Previously, he

entered a nolo contendere plea to second degree murder and received a Range II

sentence of 35 years. The following issues are presented for our review:

       1.     whether the petition was filed within the applicable statute of
              limitations; and

       2.     whether the nolo contendere plea was the result of ineffective
              assistance of counsel.

We find no reversible error and AFFIRM the judgment of the trial court.



                             STATUTE OF LIMITATIONS



       Petitioner entered a nolo contendere plea to second degree murder on March

8, 1993, and was sentenced on May 14, 1993, to a term of 35 years as a Range II

offender. This Court affirmed the conviction and sentence. State v. Harold David

Jones, Jr., C.C.A. No. 01C01-9401-CC-00008, Robertson County (Tenn. Crim. App.

filed February 8, 1995, at Nashville). Application for permission to appeal was

denied by the Tennessee Supreme Court on May 30, 1995.

       Petitioner had one year from May 30, 1995, to file a petition for post-

conviction relief. Tenn. Code Ann. § 40-30-202(a). Inexplicably, the petition bears

two separate filing dates; namely, May 21, 1996, and August 6, 1996. The state

correctly contends that a filing on August 6, 1996, would be untimely. However, we

conclude the August 1996 filing date was a clerical error. The Uniform Affidavit of

Indigency filed with the petition was stamped “filed May 21, 1996”. Therefore, we

conclude that the May 21, 1996, filing date on the petition was the correct date. The

petition was timely filed.




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                    INEFFECTIVE ASSISTANCE OF COUNSEL



         Petitioner contends trial counsel failed to properly investigate the facts and

erroneously advised petitioner that he would receive a 25-year sentence, which led

to an invalid nolo contendere plea.



                               A. Standard of Review



         The trial judge's findings of fact on post-conviction hearings are conclusive

on appeal unless the evidence preponderates otherwise. Butler v. State, 789

S.W.2d 898, 899 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 341 (Tenn. Crim.

App. 1995). The trial court’s findings of fact are afforded the weight of a jury verdict,

and this Court is bound by the trial court’s findings unless the evidence in the record

preponderates against those findings. Henley v. State, 960 S.W.2d 572, 578 (Tenn.

1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997); Dixon v. State,

934 S.W.2d 69, 72 (Tenn. Crim. App. 1996). This Court may not reweigh or

reevaluate the evidence, nor substitute its inferences for those drawn by the trial

judge. Henley, 960 S.W.2d at 578-79; Massey v. State, 929 S.W.2d 399, 403

(Tenn. Crim. App. 1996); Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App.

1990).

         This Court reviews a claim of ineffective assistance of counsel under the

standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner

has the burden to prove that (1) the attorney’s performance was deficient, and (2)

the deficient performance resulted in prejudice to the defendant so as to deprive

him of a fair trial. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064;

Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d

6, 11 (Tenn. 1994); Butler v. State, 789 S.W.2d at 899.

         In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the

Supreme Court applied the two-part Strickland standard to ineffective assistance of


                                           3
counsel claims arising out of a guilty plea. The Court in Hill modified the prejudice

requirement by requiring a defendant to 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. 474 U.S. at 59, 106 S.Ct. at 370; Hicks v. State, 983

S.W.2d at 240, 246 (Tenn. Crim. App. 1998). The same rationale applies to a nolo

contendere plea.



                             B. Post-Conviction Testimony



        At the post-conviction hearing the petitioner testified he only met with trial

counsel, Lionel Barrett, on one occasion prior to the plea. He told trial counsel the

names of the eyewitnesses to the homicide; yet, counsel did not interview all the

eyewitnesses. Petitioner testified that on the morning of trial, his counsel entered

into plea negotiations with the state. According to petitioner, counsel advised

petitioner he would receive a 25-year sentence if he pled to second degree murder.

Petitioner’s brother also testified he heard Barrett state that petitioner should “take

the second degree at the 25.”

        Barrett’s testimony contradicted the testimony of petitioner in all material

respects. Barrett testified he met with petitioner on numerous occasions, performed

an appropriate investigation, and suggested that petitioner enter an open plea of

guilty to second degree murder. Barrett steadfastly denied that he told petitioner he

would receive a 25-year sentence. Although Barrett talked with petitioner on several

occasions after sentencing, petitioner never contended in those conversations that

he expected an agreed 25-year sentence.

        The record reveals that upon entering the plea of nolo contendere, petitioner

was specifically advised by the trial judge that the range of punishment was from 25

years to 40 years.1        Petitioner stated he understood.            Subsequently, at the


        1
         Although the nolo contendere plea transcript was admitted into evidence as an exhibit
in the post-conviction hearing, it is not a part of the record in this Court. Ordinarily, this might
preclude effective appellate review. However, the transcript of the post-conviction hearing
contains numerous quotes from the plea transcript. Accordingly, we are able to effectively
review this matter.

                                                4
sentencing hearing the trial court sentenced petitioner to a term of 35 years. This

Court affirmed the sentence.



                      C. Findings of Post-Conviction Court



        The post-conviction court found that Barrett conducted an appropriate pre-

trial investigation. The post-conviction court’s recitation from the transcript of the

nolo contendere plea reveals petitioner was specifically advised, and stated he

understood, that the range of punishment was from 25 years to 40 years. The post-

conviction court further found Barrett did not advise petitioner that he would receive

a sentence of 25 years.        Finally, the court concluded trial counsel was not

ineffective, and petitioner understood the consequences of his nolo contendere

plea.



                                   D. Conclusion



        Essentially, this issue revolved around the credibility of the witnesses at the

post-conviction hearing. The post-conviction court discredited the testimony of

petitioner and accredited the testimony of trial counsel. Questions of credibility are

resolved by the post-conviction court, not this Court. Henley v. State, 960 S.W.2d

at 579. The evidence does not preponderate against the post-conviction court’s

finding that petitioner failed to establish ineffective assistance of counsel. As to

petitioner’s contention that trial counsel was deficient in failing to interview other

witnesses, petitioner has also failed to establish prejudice. None of these witnesses

testified at the post-conviction hearing. See Black v. State, 794 S.W.2d at 757.

        This issue is without merit.




                                           5
                                  CONCLUSION



         Based upon our review of the record, we AFFIRM the judgment of the trial

court.



                                                ___________________________
                                                JOE G. RILEY, JUDGE



CONCUR:



______________________________
DAVID H. WELLES, JUDGE



______________________________
JOHN EVERETT WILLIAMS, JUDGE




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