            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                        JANUARY SESSION, 1998

                                                             FILED
GAYLEN DEWAYNE RHODES, )                                February 10, 1998
                       )         No. 02C01-9703-CC-00121
     Appellant         )                               Cecil Crowson, Jr.
                       )         HARDIN COUNTY          Appellate C ourt Clerk

vs.                    )
                       )         Hon. C. CREED MCGINLEY, Judge
STATE OF TENNESSEE,    )
                       )         (Post-Conviction)
     Appellee          )



For the Appellant:               For the Appellee:

Ron E. Harmon                    John Knox Walkup
Attorney at Law                  Attorney General and Reporter
618 Main Street
Savannah, TN 38372               Elizabeth T. Ryan
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493

                                 G. Robert Radford
                                 District Attorney General

                                 John Overton
                                 Asst. District Attorney
                                 Hardin County Courthouse
                                 Savannah, TN 38372




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                             OPINION



        The appellant, Gaylen Dewayne Rhodes, appeals as of right from the Hardin

County Circuit Court’s dismissal of his petition for post-conviction relief. In 1995, the

appellant pled guilty to one count of first degree murder and one count of theft of

property over one thousand dollars and received an effective sentence of life

imprisonment plus twelve years. In this appeal, the appellant first contends that his

guilty pleas were not voluntary because he was under the influence of medication

during the guilty plea hearing. Second, he contends that his guilty pleas were

coerced and, thus, involuntarily entered as the result of the ineffective assistance of

counsel.1



        After a review of the record, we affirm.




        The appellant’s guilty pleas stem from his participation in the September

1994 murder of Ronald Phillips and theft of his property. After being wounded by

the appellant, the victim was then fatally shot in the head at point-blank range by the

co-defendant. The co-defendant’s case was severed and he was convicted by a

jury of first degree murder and sentenced to life imprisonment without the possibility

of parole. The appellant’s pleas were entered on August 30, 1995.



        On October 10, 1996, a post-conviction hearing was held. The proof at the

hearing consisted of the testimony of the appellant and the appellant’s trial counsel.

The appellant testified on direct examination that, on the date that he entered his

guilty pleas, he was under the influence of a “mind altering drug.” The appellant

related that he had been prescribed the drug “Prozac” during a mental evaluation in

        1
         The appellant’s brief alleges deficient performance in several areas of the pre-trial
investigation. We find, however, that these factual allegations of ineffective assistance are not
supported by the argument and are, therefore, waived. Rule 10(b) Rules of the Court of Criminal
Appeals.

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Nashville and, because of this, he could not think clearly. He further testified that he

was coerced into pleading guilty by his trial counsel because, “. . . I didn’t have no

choice. And if I went to court that I would be found guilty and I would receive the

death penalty.” The appellant conceded that, in effect, he had repeatedly lied in

response to virtually every question posed by the trial court at the guilty plea

hearing. He explained, “I was advised to go along with what the Judge asked me.”

The testimony of the appellant’s trial counsel materially contradicted the appellant’s

claims. Initially, trial counsel noted that the State had not sought nor ever discussed

seeking the death penalty against the appellant. Trial counsel further stated that at

no time did he threaten or coerce the appellant into pleading guilty and that the

appellant was fully aware of the consequences of his guilty pleas. Following the

hearing, the trial court entered its order, finding that, on the date the guilty pleas

were entered, the appellant responded under oath that “he was drug free and fully

understood the nature of the proceedings against him.” Moreover, the court noted

that at the sentencing hearing, it observed nothing which would indicate that the

appellant was under the influence of any type of drug or mind-altering substance. In

conclusion, the court found that:

       [t]here is nothing in the record that would remotely suggest that the
       defendant was not afforded his constitutional right to effective
       assistance of counsel. In addition the record shows nothing that would
       in any way support that the plea was anything less than a voluntary
       plea of guilty that was entered into knowingly and intelligently by the
       petitioner.



       Because the petition was filed on June 24, 1996, it is governed by the

provisions of the 1995 Post-Conviction Procedure Act. Accordingly, the appellant

bears the burden of establishing, at the evidentiary hearing, his allegations by clear

and convincing evidence. Tenn. Code Ann. § 40-30-210(f)(1997). Clear and

convincing evidence means evidence in which there is no serious or substantial

doubt about the correctness of the conclusions drawn from the evidence. Hodges v.

S.C. Toof & Co., 833 S.W.2d 896, 901, n. 3, (Tenn. 1992). On appeal, we are

bound by the trial court’s findings of fact unless we conclude that the evidence and

                                           3
the record preponderates against these findings. Black v. State, 794 S.W.2d 752,

755 (Tenn. 1990).



       When a claim of ineffective assistance of counsel is raised, the appellant

bears the burden of showing that (1) the services rendered by trial counsel were

deficient and (2) the deficient performance was prejudicial. Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). In cases involving a

guilty plea or plea of nolo contendere, the appellant must show “prejudice” by

demonstrating that, but for counsel’s errors, he would not have pled guilty and would

have insisted upon going to trial. See Hill v. Lockart, 474 U.S. 52, 59, 106 S.Ct.

366, 370 (1985); Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991),

perm. to appeal denied, (Tenn. 1991).



       In this case, the trial court found that the representation provided by

appellant’s counsel was not deficient and that the appellant’s pleas were entered

knowingly and voluntarily. The evidence on appeal does not preponderate against

the trial court’s findings.



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

appellant’s petition is affirmed.




                                    ____________________________________
                                    DAVID G. HAYES, Judge


CONCUR:



___________________________
JOE B. JONES, Presiding Judge



___________________________
JOE G. RILEY, Judge

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