       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE            FILED
                        MARCH SESSION, 1997           July 11, 1997

                                                  Cecil W. Crowson
                                                 Appellate Court Clerk
TAFT DOUGLAS,              )    C.C.A. NO. 01C01-9605-CR-00182
                           )
     Appellant,            )    DAVIDSON COUNTY
                           )
                           )
V.                         )    HON. THOMAS H. SHRIVER,
                           )    JUDGE
STATE OF TENNESSEE,        )
                           )
     Appellee.             )    (POST-CONVICTION)




FOR THE APPELLANT:              FOR THE APPELLEE:

HENRY R. ALLISON, III           JOHN KNOX WALKUP
Attorney at Law                 Attorney General & Reporter
500 Church Street
Fifth Floor                     KAREN M. YACUZZO
Nashville, TN 37219             Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                VICTOR S. JOHNSON, III
                                District Attorney General

                                WILLIAM RAMSEY REED
                                Assistant District Attorney General
                                W ashington Square
                                222 2nd Avenue N., Suite 500
                                Nashville, TN 37201-1649




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                OPINION

      The Petitioner, Taft Douglas, appeals as of right according to Rule 3 of the

Tennessee Rules of Appellate Procedure. Petitioner pled nolo contendere to one

count of aggravated rape and one count of rape. He received a twenty (20) year

sentence for aggravated rape and a ten (10) year sentence for rape, to be served

concurrently. Petitioner filed for post-conviction relief. The trial court dismissed

the petition, and we affirm the judgment of the trial court.



      In post-conviction relief proceedings, the petitioner has the burden of

proving the allegations in his petition by a preponderance of the evidence.

McBee v. State, 655 S.W .2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, the

factual findings of the trial court in hearings are conclusive for this court unless

the evidence preponderates against the judgment. State v. Buford, 666 S.W .2d

473, 475 (Tenn. Crim. App. 1983).



      Petitioner contends that his trial counsel was ineffective because counsel’s

failure to prepare for trial resulted in the Petitioner being forced to enter a plea.

In reviewing a petitioner’s Sixth Amendment claim of ineffective assistance of

counsel, this Court must determine whether the advice given or services

rendered by counsel are within the range of competence demanded of counsel

in criminal cases, and, if not for counsel’s deficient performance, the result of his

trial would have been different. Strickland v. Washington, 466 U.S. 668, 693

(1984); Baxter v. Rose, 523 S.W .2d 930, 936 (Tenn. 1975). In situations where

there is a guilty plea rather than a trial, this two-part standard is met when the



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petitioner establishes that, but for his counsel’s errors, he would not have pled

guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 53

(1985). W e find that this standard also applies to a nolo contendere hearing.



      Petitioner testified at the post-conviction hearing that trial counsel was

unprepared for trial and forced him to enter a plea. Petitioner’s trial attorney

testified that he met numerous times with the Petitioner in preparation for trial.

The attorney filed between fifteen (15) to twenty-five (25) motions prior to the trial

date, as well as interviewed witnesses, including the Petitioner’s wife. While

Petitioner failed to cooperate with trial counsel by refusing to give him names of

potential alibi witnesses until the day prior to trial, he stated he was prepared to

offer a defense for Petitioner.



      Additionally, Petitioner testified at the plea hearing that he was satisfied

with trial counsel’s services and that he had discussed defenses with him prior

to that time. The advice given and the services rendered by counsel were within

the range of competency demanded by an attorney in a criminal case, and the

representation of Petitioner complied with the requirements set out by the

Supreme Court in Baxter v. Rose, 523 S.W .2d 930.             Having reviewed the

Appellant’s testimony and that of his trial counsel, we are bound to affirm the trial

court’s decision that trial counsel’s testimony was the accurate account of the

events which transpired. The evidence does not preponderate against the trial

court’s findings. See Black v. State, 794 S.W .2d 752, 755 (Tenn. Crim. App.

1990). This issue has no merit.




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      In addition, it appears that Petitioner challenges the voluntariness of his

nolo contendere plea. W hile he failed to raise this issue specifically, we will

address this contention. W hen reviewing the plea, the overriding concern is

whether the plea is knowingly and voluntarily made. W oods v. State, 928 S.W .2d

52, 55 (Tenn. Crim. App. 1996). From the record, it is apparent that there was

no evidence of threats or undue pressure placed upon the Petitioner. The

transcript of the nolo contendere plea proceedings indicates that the standards

of State v. Mackey, 553 S.W.2d 337 (Tenn. 1977), were followed by the trial

judge. In the record, it is acknowledged by Petitioner that he understood the

nature of the charges against him, the plea and sentence, and that he accepted

both knowingly and intelligently. In addition, trial counsel testified that Petitioner

adamantly insisted that he “try to get [Petitioner] a deal.” After hearing that his

wife planned to “burn him at the cross,” Petitioner decided he was going to plead

nolo contendere. This issue is also without merit.



      The judgment of the trial court is affirmed.



                                  ____________________________________
                                  THOMAS T. W OODALL, Judge



CONCUR:


___________________________________
JOSEPH M. TIPTON, Judge


___________________________________
JOE G. RILEY, Judge




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