            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                        SEPTEMBER SESSION, 1999         FILED
                                                        October 31, 1999

                                                      Cecil Crowson, Jr.
BRIAN ORLANDUS               *                       Appellate Court Clerk
WILLIAMSON,                  *
                             *      No. 02C01-9810-CR-00305
      Appellant,             *
                             *      SHELBY COUNTY
vs.                          *
                             *      Hon. W. Fred Axley, Judge
STATE OF TENNESSEE,          *
                             *      (Post-Conviction)
      Appellee.              *



For the Appellant:                  For the Appellee:

Jeffrey S. Glatstein                Paul G. Summers
200 Jefferson Avenue                Attorney General and Reporter
Suite 202
Memphis, TN 38103                   R. Stephen Jobe
                                    Assistant Attorney General
                                    Criminal Justice Division
                                    425 Fifth Avenue North
                                    2d Floor, Cordell Hull Building
                                    Nashville, TN 37243-0493


                                    William L. Gibbons
                                    District Attorney General

                                    Rosemary S. Andrews
                                    Asst. District Attorney General
                                    201 Poplar Avenue, Third Floor
                                    Memphis, TN 38103




OPINION FILED:

AFFIRMED



David G. Hayes, Judge
                                                 OPINION



        The appellant, Brian Orlandus Williamson, appeals from the denial of his

petition for post-conviction relief by the Shelby County Criminal Court. On January

15, 1997, pursuant to a negotiated plea agreement, the appellant entered guilty

pleas to thirteen offenses1 resulting in an effective sentence of twenty years.                          On

appeal, the appellant collaterally challenges his convictions upon grounds (1) that

his pleas were involuntarily entered and (2) that he received the ineffective

assistance of counsel.



        Following review, we affirm the judgment of the post-conviction court.



                                            BACKGROUND

        On January 16, 1998, the appellant filed a pro se petition for post-conviction

relief.2 After counsel was appointed, an amended petition was filed in March of

1998. In his claim of ineffective assistance, the appellant seeks relief upon grounds

(1) failing to consult with the appellant and “sufficiently” explain “trial procedures, . .

. trial strategy,” and defenses; (2) failing to properly investigate and interview two




witnesses; and (3) failing to file a motion to suppress a video which depicted the



        1
           The record contains judgments for six of the appellant’s crimes: three counts sale of
cocaine, Class B felonies receiving twenty years on each count; possession of cocaine with intent
to sell, a Class B felony receiving twenty years; sale of cocaine, a Class C felony receiving ten
years; and driving while a n habitua l motor v ehicle offe nder, a C lass E fe lony receiving four years .
Although the judgments of the remaining convictions are not contained in the record, the
indictments and the transcript from the guilty plea hearing demonstrate that the appellant also
pled guilty to another count of possession of cocaine with intent to distribute, a Class C felony
receiving 10 years, and various other misdemeanors, involving drug and traffic offenses. The
plea a gree me nt pro vided that th e app ellant wou ld be s ente nce d as a Ran ge II o ffen der w hen in
actuality the ap pellant wa s a Ran ge III offen der. In his pe tition, the appe llant seek s post-
conviction relief related o nly to the seve n felony co nvictions.

        2
         The incarcerated petitioner apparently mailed the petition on January 8, 1998. “A
post-conviction petition filed by a pro se petitioner who is incarcerated is filed when it is received
by approp riate prison authorities f or ma iling.” Sup. C t. Rules, R ule 28 § 2 (G).



                                                    2
appellant and his involvement in the drug transaction. In his second issue, the

appellant argues that he was coerced into pleading guilty and thus his pleas were

involuntary based upon (1) counsel’s failure to explain the nature and consequences

of the guilty pleas; (2) coercion from appellant’s family after viewing the videotape

of the drug transaction;3 and (3) reliance upon counsel’s representation that his

“parole time” would run concurrent with his negotiated twenty year sentence.4

Despite the fact that, on the date of sentencing, the appellant’s prior criminal history

included convictions for five felonies and three misdemeanors, he argues that his

guilty pleas were involuntarily entered in that he was “ever new to the justice system

and not auware [sic] of [his] rights.”



         A hearing on the merits was held on July 23, 1998, at which only the

appellant and trial counsel testified. At the hearing the appellant testified that he

plead guilty because trial counsel advised him that, if he went to trial, he would

receive forty to sixty years. Additionally, the appellant related that his plea was in

part based upon reliance of counsel’s representation that his “parole time” would run

concurrent with his pending charges. Regarding ineffective assistance, the

appellant reiterated his claim that counsel did not properly investigate his case

including two witnesses who would have provided him with an alibi. The appellant,

however, admitted that he never provided to counsel the names of those two

witnesses nor were those witnesses called to testify at the post-conviction hearing.

On cross-examination, the appellant acknowledged that, at the guilty plea hearing,

he advised the court, “[H]e [trial counsel] represented me real well . . . [H]e did all he

could.” At the hearing, counsel refuted the appellant’s allegations that appellant was

advised that his “parole time” would run concurrently with the pending charges or



        3
          Constitutional protections are intended as restraints against the activities of sovereign
authority and may not be invoked by one citizen against another absent governmental
participation. Because no state action is established, this claim abridges no constitutional right
and is not cognizable in a post-conviction proceeding. U.S. Const. Amend. 14 Sect. 1.; Tenn.
Code Ann. § 40-30-203.

        4
            Apparently, at the time of the guilty pleas the appellant was on parole.

                                                    3
that the appellant’s pleas were in any way coerced. Counsel testified that no motion

to suppress the videotapes was filed because there were no grounds for

suppression.    With regard to the ineffective assistance of counsel claim, the post-

conviction court found:

       Petitioner fails to show counsel was not functioning as guaranteed by
       the Sixth and Fourteenth Amendments. [Counsel] met with Petitioner
       on approximately ten occasions to discuss his case. After careful
       review of the evidence, [counsel] in his professional judgment
       determined that Petitioner had little chance of an acquittal if his case
       went to trial. Counsel concluded that Petitioner had no defenses due
       to the incriminating nature of the videotape evidence nor were there
       grounds for the suppression of this evidence.
       ...

With regard to the appellant’s claim that his guilty pleas were involuntarily entered,

the post-conviction court further observed:

       There is no merit to the Petitioner’s contention that his guilty plea was
       not entered voluntarily and intelligently. [The trial court] diligently
       apprised Petitioner of his constitutional rights before accepting his
       guilty plea. . . . Petitioner then told [the trial court] that his plea was not
       the result of any sort of coercion . . . , misunderstanding of the
       implications of his guilty plea, or that the plea was entered as a result
       of anything less than Petitioner’s own free will.
       ...

       Furthermore, Petitioner fails to show he was prejudiced. Before [the
       trial court] accepted the guilty plea, Petitioner recognized that he
       understood the ramifications of entering a guilty plea, and that no one
       had coerced his plea. Petitioner has completely failed his burden of
       proving facts which would support a finding that he would rather have
       gone to trial had he been otherwise advised.


       In order to succeed on a post-conviction claim, the appellant bears the

burden of showing, by clear and convincing evidence, the allegations set forth in his

petition. Tenn. Code Ann. § 40-30-210(f) (1997). When this court undertakes

review of a lower court’s decision on a petition for post-conviction relief, the lower

court’s findings of fact are given the weight of a jury verdict and are conclusive on

appeal absent a finding that the evidence preponderates against the judgment. See

Davis v. State, 912 S.W.2d 689, 697 (Tenn. 1995).



       To prevail on a claim of ineffective assistance of counsel, a criminal

defendant must show two things: (1) the lawyer’s performance fell below an

                                           4
“objective standard of reasonableness,” Strickland v. Washington, 466 U.S. 668,

687-688, 104 S.Ct. 2052, 2064-65 (1984); Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975); and (2) “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Effectiveness of counsel is a mixed

question of law and fact. Id. at 698, 104 S.Ct. at 2070. In Hill v. Lockhart, 474 U.S.

52, 106 S.Ct. 366 (1985), the Court held that Strickland’s analysis applies equally to

cases resolved by a guilty plea. In Hill v. Lockhart, the Court stated that “in order to

satisfy the ‘prejudice’ requirement, the defendant must 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.” Id. 474 U.S. at 59, 106 S.Ct. at

370.



       The established test for determining the validity of the guilty plea is “whether

the plea represents a voluntary and intelligent choice among the alternative courses

of action open to the defendant.” Id. at 56, 106 S.Ct. at 369 (citing North Carolina v.

Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164 (1970) (other citations omitted)). We find

that this test was met in this case.



       We conclude that the record fully supports the findings of the post-conviction

court that the appellant has not proven by clear and convincing evidence that

counsel was ineffective or that his guilty pleas were involuntarily entered.




       Accordingly, the judgment of the post-conviction court in dismissing the

appellant’s petition is affirmed.




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                          ____________________________________
                          DAVID G. HAYES, Judge



CONCUR:




__________________________________________
JOE G. RILEY, Judge



___________________________________________
THOMAS T. W OODALL, Judge




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