                                                   FILED
         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE
                                                   September 19, 1997
                         AUGUST 1997 SESSION
                                                   Cecil W. Crowson
                                                  Appellate Court Clerk
ROSS JONES,                        )
                                   )
            Appellant,             )    C.C.A. No. 01C01-9604-CR-00155
                                   )
vs.                                )    Davidson County
                                   )
STATE OF TENNESSEE,                )    Honorable Ann Lacy Johns, Judge
                                   )
            Appellee.              )    (Post-Conviction)
                                   )



FOR THE APPELLANT:                      FOR THE APPELLEE:

JACK E. SEAMAN                          JOHN KNOX WALKUP
Attorney at Law                         Attorney General & Reporter
The Tower
611 Commerce St., Ste. 2704             LISA A. NAYLOR
Nashville, TN 37203                     Assistant Attorney General
                                        Criminal Justice Division
                                        450 James Robertson Parkway
                                        Nashville, TN 37243-0493

                                         VICTOR S. JOHNSON III
                                         District Attorney General

                                         ROGER D. MOORE
                                         Assistant District Attorney General
                                         Washington Square
                                         222 Second Ave. North, Ste. 500
                                         Nashville, TN 37201-1649


OPINION FILED: ____________________


AFFIRMED - RULE 20

CURWOOD WITT
JUDGE
                                         OPINION

              The petitioner, Ross Jones, appeals the Davidson County Criminal

Court's dismissal of his petition for post-conviction relief. The petitioner is currently

serving a sentence of 15 years in the Tennessee Department of Correction for a

conviction of aggravated burglary. In this appeal, he presents two issues for our

review: (1) whether he was denied the effective assistance of counsel, and (2)

whether the sentencing statute under which he was sentenced is unconstitutional.

Following a review of the record, we affirm the judgment of the lower court pursuant

to Rule 20 of the rules of this court.



              The petitioner was convicted following a jury trial in the Davidson

County Criminal Court. His conviction was affirmed by this court on February 8,

1995, and the supreme court denied review. State v. Ross Jones, No. 01C01-9405-

CR-00175 (Tenn. Crim. App., Nashville, Feb. 8, 1995), perm app. denied concurring

in results only (Tenn. 1995). The petitioner filed his post-conviction petition on

September 25, 1995. Counsel was appointed, the petition was amended and a

hearing was held at which the petitioner and his trial counsel testified. The lower

court denied relief, finding the petitioner failed to carry the burden of proof as to the

ineffective assistance of counsel claims and that the appellate courts had previously

rejected analogous challenges to the constitutionality of the sentencing statute. The

petitioner then perfected his appeal to this court.



              Having filed his post-conviction petition after May 10, 1995, the

effective date of the new Post Conviction Procedure Act, the petitioner has the

burden of proving his allegations of ineffective assistance of counsel by clear and

convincing evidence. See Tenn. Code Ann. § 40-30-210(f) (Supp. 1996). The

petitioner testified on his own behalf as to some of his claims, and he elected to

present no evidence whatsoever on other claims.             The state presented the

testimony of the petitioner's trial counsel. The testimony of the petitioner and trial

counsel was contradictory on key points. The trial court found petitioner's trial



                                            2
counsel credible and rejected the contrary testimony given by the petitioner. As

such, the court found the petitioner failed to carry the burden of proof.1 The

evidence does not preponderate against the lower court's judgment in this regard.

Butler v. State, 789 S.W.2d 898, 900 (Tenn. 1990).



                Next, the petitioner, who was sentenced as a persistent offender,

argues he is entitled to a minimum sentence because the Sentencing Reform Act

of 1989 violates the separation of powers provision of Article II, Section 2 of the

Tennessee Constitution by setting release eligibility and giving the trial court the

authority to require service of a definite percentage of a sentence prior to parole

eligibility.   As the lower court correctly found, the challenged portion of the

Sentencing Reform Act of 1989 does not violate separation of powers. See, e.g.,

William Lee Tollett v. State, No. 01C01-9605-CR-00180, slip op. at 3-4 (Tenn. Crim.

App., Nashville, Apr. 24, 1997); Frank Bell v. Ricky Bell, Warden, No. 01C01-9602-

CR-00058, slip op. at 1 (Tenn. Crim. App., Nashville, Jan. 30, 1997), perm. app.

denied (Tenn. 1997); cf., e.g., Jackie Lee Childs v. State, No. 01C01-9604-CR-

00164, slip op. at 3-4 (Tenn. Crim. App., Nashville, Apr. 24, 1997) (Sentencing

Reform Act of 1982); Charles Massengill v. State, No. 01C01-9605-CR-00191, slip

op. at 3-5 (Tenn. Crim. App., Nashville, May 16, 1997) (Sentencing Reform Act of

1982).



                The court below committed no error of law requiring reversal. The

judgment is affirmed pursuant to Rule 20, Court of Criminal Appeals Rules.




         1
       The trial court incorrectly relied on the "preponderance of the evidence"
standard of proof required under the previous Post Conviction Procedure Act.
This misplaced reliance is of no consequence, however, because the old
standard is more favorable to the petitioner than the current "clear and
convincing" standard.

                                         3
                                  _______________________________
                                  CURWOOD WITT, JUDGE




CONCUR:



_______________________________
JOE G. RILEY JR., JUDGE



_______________________________
__________ WALKER, SPECIAL JUDGE

NOTE: NEED JUDGE WALKER'S FULL NAME




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