         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs August 20, 2002

                   ANTONIO YOUNG v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Hamilton County
                           No. 226025    Douglas A. Meyer, Judge



                                  No. E2001-00761-CCA-R3-PC
                                        October 30, 2002

Antonio Young appeals the Hamilton County Criminal Court’s denial of his petition for post-
conviction relief. The lower court found his allegations of ineffective assistance of counsel
unsupported by the evidence and denied relief. Because we are unpersuaded of error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which GARY R. WADE, P.J. and
ROBERT W. WEDEMEYER , J., joined.

Keith A. Black, Chattanooga, Tennessee, for the Appellant, Antonio Young.

Paul G. Summers, Attorney General & Reporter; Christine M. Lapps, Assistant Attorney General;
William H. Cox, III, District Attorney General; and Rodney C. Strong, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                              OPINION

                 Following the petitioner’s indictment for charges of first-degree murder and
aggravated robbery, the attorney whose performance is questioned in this action was appointed to
represent the petitioner. Through negotiation with the state, counsel was able to obtain a plea offer
for the petitioner to plead guilty to second-degree murder and receive a Range II sentence of 40
years, to be served at no less than 85 percent before parole eligibility. The petitioner was a Range
I offender; however, this deal was advantageous to him because it avoided a possible life sentence,
disposed of the aggravated robbery charge, and disposed of several other unrelated felony charges
that the petitioner had garnered while on bond. The petitioner accepted the offer and was sentenced
in accord with the agreement.

                 Thereafter, the petitioner became disenchanted and filed a petition for post-conviction
relief alleging numerous infirmities in his conviction. After counsel was appointed and an amended
petition filed, the petitioner narrowed his request for relief to the sole issue of ineffective assistance
of counsel.

                At the hearing on the petition, the petitioner testified that his attorney had not met
with him often enough, and when he did so, they discussed basketball, rather than the petitioner’s
case. He claimed that he did not understand the plea agreement and had been erroneously advised
by counsel that notwithstanding the 85 percent service requirement of the 40-year sentence, the
petitioner would be entitled to appear before the parole board every five years. He claimed that but
for this understanding, he would not have entered a guilty plea.

                The petitioner’s attorney testified that he met with the petitioner several times
throughout the course of his representation. Counsel admitted that he and the petitioner discussed
basketball in order to establish rapport, but their communication also entailed discussion of the
petitioner’s case and the state’s evidence against him. Counsel attempted to stay in regular
communication with the petitioner while the petitioner was released on bond, but the petitioner
missed appointments and did not provide counsel with information regarding his whereabouts. After
negotiating a plea offer with the state, counsel communicated it to his client and met with the client
two additional times before the plea was entered. Counsel categorically denied having advised the
petitioner that he would be eligible for parole consideration before completion of 85 percent of his
40-year sentence.

                The petitioner presented his mother’s testimony as rebuttal evidence. She claimed
that counsel told her that due to prison overcrowding, the petitioner might be released after serving
ten years of his 40-year sentence. She could not remember whether counsel told her that the
petitioner would be considered for parole at five or ten-year increments, although he might have said
so.

               The court accredited the testimony of counsel. In so doing, the court found that the
petitioner and his mother probably genuinely believed that they accurately recalled the events
surrounding the plea, but their recollections of what had actually happened were faulty. Moreover,
the court found that the plea agreement and sentence structure had been clearly and correctly
explained to the petitioner by the court at the time of the submission hearing. Thus, the post-
conviction court found that the petitioner had failed to sustain his burden of proof and denied relief.

                The sole issue before us, then, is the propriety of the lower court’s ruling. When a
petitioner challenges the effective assistance of counsel, he has the burden of establishing (1)
deficient representation and (2) prejudice resulting from that deficiency. Strickland v. Washington,
466 U.S. 668, 686, 104 S. Ct. 2052, 2064 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).
Deficient representation occurs when counsel provides assistance that falls below the range of
competence demanded of attorneys in criminal cases. Bankston v. State, 815 S.W.2d 213, 215
(Tenn. Crim. App. 1991). Prejudice is the reasonable likelihood that, but for deficient
representation, the outcome of the proceedings would have been different. Overton v. State, 874
S.W.2d 6, 11 (Tenn. 1994). In the context of a guilty plea, prejudice is shown where, but for


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counsel’s deficient performance, the outcome of the plea process would have been different. Hill
v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985); House v. State, 44 S.W.3d 508, 516 (Tenn.
2001). Proof of prejudice is established when the petitioner demonstrates “that there is a reasonable
probability that, but for counsel’s error, 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. On review, there is a strong presumption
of satisfactory representation. Barr v. State, 910 S.W.2d 462, 464 (Tenn. Crim. App. 1995).

               In post-conviction proceedings, the petitioner has the burden of proving the claims
raised by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997). The post-
conviction court’s factual findings are reviewed de novo with a presumption of correctness unless
the evidence preponderates otherwise; however, that court’s conclusions of law receive purely de
novo review with no presumption of correctness. Fields v. State, 40 S.W.3d 450, (Tenn. 2001).

                In the case at bar, the testimony given by the petitioner and his mother conflicted with
that of his attorney. The lower court accredited the testimony of counsel and found that the
petitioner understood the terms of the plea agreement and entered a knowing and voluntary guilty
plea. Thus, it rejected the petitioner’s claim of ineffective assistance of counsel. Upon review of
the record, we cannot say that the evidence preponderates to the contrary of the lower court’s factual
determinations. Moreover, we are unpersuaded that the lower court erred in its determination that
counsel effectively represented the petitioner.

                Thus, the judgment of the lower court is affirmed.



                                                        ___________________________________
                                                        JAMES CURWOOD WITT, JR., JUDGE




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