          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE            FILED
                          OCTOBER SESSION, 1998           March 9, 1999

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk

A. D. BAR KER ,                    )   C.C.A. NO. 03C01-9604-CC-00177
                                   )
            Appe llant,            )
                                   )   SEVIER COUNTY
V.                                 )
                                   )
                                   )   HON. WILLIAM R. HOLT, JR., JUDGE
STATE OF TENNESSEE,                )
                                   )
            Appellee.              )   (POST-C ONVIC TION)



FOR THE APPELLANT:                      FOR THE APPELLEE:

ALAN R. FELTES                          JOHN KNOX WALKUP
159 West Main Street, Suite 1           Attorney General & Reporter
Sevierville, TN 37862
                                        ELIZABETH B. MARNEY
                                        Assistant Attorney General
                                        2nd Floor, Cordell Hull Building
                                        425 Fifth Avenue North
                                        Nashville, TN 37243

                                        AL C. SCHMUTZER, JR.
                                        District Attorney General

                                        G. SCOTT GREEN
                                        Assistant District Attorney General
                                        125 Court Avenue, Room 301-E
                                        Sevierville, TN 37862




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                     OPINION

       The Petition er, A. D . Barke r, appe als the order o f the Se vier Co unty C ircuit

Court dismissing his petition fo r post-co nviction relief. We affirm the judgment of the

trial court.



       In his orig inal pro se petition, Petitioner complained that his sentence for

aggravated robbery in Sevier C ounty had b een errone ously ordered to run

consecutively with other sentences from convictions in Knox, Hawkins, and Ham blen

counties, contrary to the specific provisions of his negotiated plea agreement. At the

post-conviction hearing, the State agreed that an appropriate order should be

entered to properly reflect the negotiated plea agreement that the se ntenc e sho uld

be served c oncurre ntly with the p rior convictio ns. How ever, on th e date o f the post-

conviction hearing, Petitioner, through appointed counsel, filed an amended petition

raising the issue of ineffective assistance of trial counsel. The only testimony at the

post-conviction hearing was by Petitioner. Following the h earing, the trial court

dismissed the petition for post-conviction relief insofar as it alleged ine ffective

assist ance of trial co unse l.



       In this ap peal, P etitione r raises the follo wing issues : (1) was it error for the

State not to produce a transcript of the guilty-plea hearing; (2) was it error for the

State to fail to call Petitioner’s trial counsel to testify at the post-conviction hearing;

(3) was it error for the trial court not to state findings of fact and conclusions of law

in its order; and (4) wa s it error fo r the trial c ourt to fin d Petitio ner’s tria l counsel




                                              -2-
effective. Petition er claim s that th e alleged errors require either a rem and for a

further evid entiary he aring or a n order a llowing him to withdraw his plea.



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

appeal unless the evidence preponderates oth erwise. Butler v. Sta te, 789 S.W.2d

898, 899-900 (T enn. 1990 ); Adkins v. State, 911 S.W.2d 334, 354 (Tenn. Crim. App.

1995). The trial co urt's findings of fact are a fforded th e weigh t of a jury verd ict, and

this Court is bound by the trial court's findings unless the evidence in the re cord

preponderates against th ose findin gs. Dixon v. State, 934 S.W.2d 69, 72 (Tenn.

Crim. App. 1996). This Court may n ot reweigh or reevaluate the evidence, nor

subs titute its inferenc es for thos e drawn by the trial judg e. Masse y v. State, 929

S.W.2d 399, 40 3 (Ten n. Crim. A pp. 199 6); Black v. S tate, 794 S.W .2d 752, 755

(Tenn. Crim. A pp. 199 0). Que stions co ncernin g the cre dibility of witnesses and the

weight and va lue to b e given to their te stimo ny are resolve d by the trial cou rt, not this

court. Black v. S tate, 794 S.W.2d at 755. The burden of establishing that the

evidenc e prepo nderate s otherw ise is on pe titioner. Id.



                                              I.



       In his first issue, Petitioner claims that it was error for the trial court to dismiss

his petition because the Sta te failed to include the transcript from the guilty-plea

hearing as part of th e record .



       The Post-Conviction Procedure Act of 1995, specifically T enn. C ode An n. §

40-30-208 (b), does not exp ressly mand ate that the district attorne y gene ral obta in

“records or transcripts, or parts of records or transcripts that are material to the

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questions raised”; rath er it empow ers the district attorney general to do so. See

Tenn. Code Ann. § 40-30-208(b). The filing of these record s is now mo re permissive

in that the district attorney gene ral “may file them with the responsive pleading or

within a reasona ble time therea fter.” Tenn . Code A nn. § 4 0-30- 208(b ) (emp hasis

added). In the previous codification of this section, these were c learly the mand atory

respon sibility of the district atto rney gen eral. See Tenn. Code Ann. § 40-30-114(b)

(1990); Allen v. Sta te, 854 S.W .2d 873, 875 (Tenn. 199 3).



       Tenn. Sup. Ct. R. 2 8, § 6, s pecific ally address the obligation for procurement

of material documentation. Within thirty (30) days of filing a petition or an amended

petition, the judge to whom the cas e is ass igned mus t review that pe tition an d all

docum ents to determine whether the petition states a colorable claim. In the event

of a colorable claim, the judge shall e nter a preliminary order which, among other

things, “ord ers the sta te to respo nd and , if appropria te, to file with th e clerk certain

transcripts, exhibits, or records from the prior trial or hearing.” Tenn. Sup. Ct. R. 28,

§ 6(B)(3)(d).



       Before Petitioner testified, the post-conviction court, which saw the amended

petition for the first time when the hearing began, requested a copy of the guilty plea

hearing from the State. In response to this request, General Green explained:

                This was a case that was transcribed by Barbara Brooks
                before she left the employment of the State. I have had my
                investigators attempt to locate that tape, but to date it has
                not been found. I spoke with Ms. Noe and I also spoke
                with Ms. Ke lly and both agree to type it could we sim ply
                find the tape, and we just haven’t been able to find the
                tape. So we don’t have the transcript of the plea hearing.


Counsel for Petitioner responded:


                                             -4-
             Your Hono r, I don’t -- don’t re ally belie ve Mr. Barker
             [Petitioner] is saying that there was any mistake made by
             the Court as far as his advisement of his rights. Wh at he’s
             saying is that he was -- it was a n involuntary plea tha t -- it
             was made be cause of the reas ons he will testify to, and
             that he didn’t want to make the plea, but he did because
             of the situation he was in, so . . . And because of the
             ineffective assistance o f Mr. Miller [Petitioner’s trial
             couns el].


      First, while a guilty ple a trans cript is g enera lly nece ssary, w e con clude that in

this case, failure to provide th e transcript was a t most harm less. As discus sed mo re

fully in Issue IV, any error was harmless due to Petitioner’s post-conviction testimony

which indicated that his plea was volun tarily entered . See Lane v. S tate, 968

S.W.2d 912 (T enn. C rim App. 19 97); Hoga n v. State, C.C.A. No. 01C01-9604-CC-

0061, D ickson C ounty (T enn. C rim. App ., Nashville, M ar. 13, 19 97).



      Second ly, the State explained why it did not have the tape and Petitioner then

conceded that the transcript of the plea hearing w as unnec essary to the resolution

of his amended petition. Therefore, Petitioner has waived the issue and/or invited

the deficienc y that he n ow claim s as erro r. Tenn . R. App . P. 36(a). Accordingly,

Petitioner should not no w be heard to claim that the transcript was “material and

crucial to the issues ra ised by the petitioner.” T his issue is without m erit.




                                             II.




                                            -5-
       In his next issue, Petitioner claims that it was reversible error for the cou rt to

dismiss his petition when his trial counsel did not testify at the post-conviction

hearing. In Garrett v. S tate, 530 S.W.2d 98 (Tenn. Crim. App. 19 75), this Court

pointed out that when counsel is challenged as ineffec tive, then the Sta te sho uld ca ll

the attacked counsel as a witness at the post-conviction hearing. However, the

record b efore us is sufficient to e nable u s to resolve Petitioner’s issues.



       Furthermore, again it was not until the morning of the post-conviction hearing

that appointed counsel filed the amended petition that alleged ineffective assistance

of trial cou nsel. T he Sta te did n ot have the op portun ity to call Petitioner’s trial

counsel to testify on such short notice. When the post-conviction court pointed out

to Petitioner that the amended petition had not been included in the file and had not

been reviewed, post-conviction counsel chose to go forward with the hearing

anyway. Again, Petitioner’s own actions led to the very deficiency that he now

alleges is error. Ten n. R. App. P. 3 6(a).



                                         III. and IV.



       In his last two issues, Petitioner argues that the trial court erred in not making

findings of fact an d con clusio ns of la w on th e reco rd and that the trial cou rt erred in

denying his claim that his trial counsel was ineffective.



       This Cour t review s a claim of ineffe ctive as sistan ce of c ouns el under th e

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

Washington, 466 U .S. 668, 1 04 S. C t. 2052, 80 L. Ed. 2d 674 (1984). The petitioner

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

                                             -6-
the deficie nt perfo rman ce res ulted in prejudice to the de fenda nt so a s to de prive h im

of a fair trial. Strickland v. Washington, 466 U.S . at 687, 10 4 S. Ct. at 2 064; Goad

v. State, 938 S.W .2d 363 , 369 (T enn. 19 96); Overton v. State , 874 S.W.2d 6, 11

(Tenn. 1994); Butler v. Sta te, 789 S.W.2d 898, 899 (Tenn. 1990). In Hill v. Lockhart,

474 U.S. 52 , 106 S. C t. 366, 88 L. Ed. 2d 203 (1985), the Supreme Court applied the

two-part Strickland standard to ineffective assistance of 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 ha ve plea ded g uilty and would have insisted on going to trial. 474 U.S.

at 59, 106 S. Ct. at 37 0.



       Petitioner testified that his trial counsel had not adequately prepared hims elf

to represent Petitioner, talking to Petitioner only two (2) times on the telephone and

for an add itional five (5) minutes in the courtroom before the negotiated plea was

entered by Petitioner. Petitioner asserted that his trial counsel erroneously advised

Petitioner that he was fa cing a poss ible sixty (60) year sentence. Petitioner further

testified that his trial coun sel failed to investigate Petitioner’s medical condition at the

time of the alleged offense as requeste d by Petitioner. Petitioner also testified that

his trial counsel was aware of Petitioner’s continuing severe medical problems, that

Petitioner was n ot rece iving pro per m edica l treatm ent at th e cou nty jail prior to entry

of the guilty plea, and that Petitioner h ad pled guilty only so that he co uld be se nt to

the penitentia ry for prope r medic al treatm ent. Also, Petitioner asserted that his trial

counsel did not inve stigate pro blems that the Sta te had in its case regarding the

identification of Petitione r by witnes ses. Petition er was extens ively and th oroug hly

cross-examined by the prosecutor at the post-conviction hearing.




                                              -7-
       In ruling that the petition should be dismissed, the court determined that

Petitioner had no t carried his burden of show ing that his guilty plea was coerced or

otherwise involuntary by noting the following:

              He says he understood what I told him [in the plea
              hearing ], and I’m very informal. A lot of times I talk too
              much; I ask too many questions. And he says he
              understood that. And these other things are -- well it’s not
              -- burden of proof’s not been carried. Petition in that
              respect is dismissed or denied.


       Although the post-conviction court did not make extensive findings of fact

pursuant to Tenn. Code Ann. § 40-30-211, the record is s ufficient for this Court to

find that the po st-con viction c ourt co rrectly dismiss ed the p etition. See David Stova ll

v. State, C.C.A. N o. 01C 01-940 1-CC -00022 , Maury C ounty (T enn. C rim. App .,

Nashville, Jan. 5 , 1995 ). A failur e to sta te findin gs of fa ct and conc lusion s of law

does not always require a reversal or a reman d for furthe r findings.              State v.

Swanson, 680 S.W .2d 487, 489 (Tenn. Crim . App. 1984 ).



       Boyk in v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969),

requires that the record affirmatively show that the defendant voluntarily and

know ingly entere d his g uilty plea . Petition er testified to the follow ing at the p ost-

conviction hearing:

              Q: (General Green) Just to make sure I understand you
              correctly, Mr. Barker, you admit and tell the Court now that
              His Honor went through all of your rights with you when
              you pled guilty?

              A: (Petitioner) Yes, he did.

              Q: And you understood what he was saying to you; is that
              correct:

              A: Yes, I did.




                                             -8-
              Q: You understand the fact that you had the right, that
              nobody could make you waive that right to a trial by jury;
              correct?

              A: Yes.


Following this exc hang e, Petitio ner fur ther re spon ded a ffirmativ ely to specific

questions reg arding spec ific rights that the court had explained and that Petitioner

had waived, such as the right to testify before a jury. Petitioner also confirmed that

he had pleaded guilty in cases in Ham blen, Hawk ins and Kn ox counties, be fore

pleading guilty to aggravated robbery. Petitioner conceded that he had 21 prior

felony convictions before the robbery plea on Decem ber 1, 19 93. As stated above,

he also testified that he pled guilty to get medical attention and that after he got out

of the hos pital he kn ew he h ad “ma de a ba d mistak e.”



       Again, question s conce rning the credibility of witn esses and the weight and

value to be given their testim ony are resolve d by the trial cou rt, not this court. See

Black v. State, 794 S.W .2d at 755 . Petitioner w as the so le witness at the pos t-

conviction hearing, and by dismissing his petition, the trial court did not find

Petition er’s testimon y to be cre dible. The record does not preponderate against the

trial court’s find ings. Th is issue is w ithout me rit.



       Accordingly, we affirm the trial court’s dismissal of the petition.




                                    ____________________________________
                                    THOMAS T. W OODALL, Judge



CONCUR:

                                              -9-
___________________________________
GARY R. WA DE, Presiding Judge


___________________________________
DAVID H. WELLES , Judge




                               -10-
