               IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                       AT NASHVILLE                     FILED
                                                                           June 6, 1997
JOHN W. SMITH,                                   )
                                                 )   C.C.A. NO. 01C01-9607-CR-00302
                                                                    Cecil W. Crowson
       Appellant,                                )
                                                                   Appellate Court Clerk
                                                 )   DAVIDSON COUNTY
VS.                                              )   (91-D-2135 Below)
                                                 )
STATE OF TENNESSEE,                              )   The Hon. Ann Lacy Johns
                                                 )
       Appellee.                                 )   (Denial of Post-Conviction Relief)


                                           ORDER



               This case came to be heard on the motion of the state for an affirmance of

the judgment of the trial court under Rule 20, Tennessee Court of Criminal Appeals Rules.

Based on our review of the state’s motion, the appellant’s brief, and the record in this

cause, we conclude that this is an appropriate case for affirmance under Rule 20.



               The issue raised in this appeal is whether the trial court erred in denying post-

conviction relief based on his claim of ineffective assistance of counsel. Specifically, the

appellant claims that his guilty plea to three counts of aggravated robbery was not

voluntary and knowing because his attorney erroneously advised him that he would be

sentenced as a Range II offender if he did not accept the plea. The appellant contends

that his three prior armed robberies occurred within a 24-hour period and that counsel

erroneously advised him that the convictions would be considered as separate offenses

for purposes of sentence enhancement. At the post-conviction hearing, trial counsel

testified that to the best of his recollection, he advised the appellant that if he went to trial,

he could possibly be sentenced as a Range II offender.



               Under T.C.A. § 40-35-106(a)(1), a defendant can be sentenced as a “multiple

offender” if he or she has a “minimum of two (2) but not more than four (4) prior felony

convictions within the conviction class, a higher class, or within the next two (2) lower

felony classes.”
                From the record, it appears that the appellant had at least three prior

convictions for armed robbery in 1987. Because the armed robberies occurred within a 24-

hour period and because none of the victims in the armed robberies were harmed or

suffered any bodily injury, the appellant contends that counsel should have advised him

that such activity would only be considered as one conviction for purposes of sentence

enhancement. The appellant cites to T.C.A. § 40-35-106(b)(4), which states:



       Convictions for multiple felonies committed as part of a single course of
       conduct within twenty-four (24) hours, constitute one (1) conviction for the
       purpose of determining prior convictions; however acts resulting in bodily
       injury or threatened bodily injury to the victim or victims shall not be
       construed to be a single course of conduct.



(Emphasis added).



                In finding that the appellant received effective assistance of counsel, the trial

court stated:



       [Counsel’s] advice was quite correct, given the nature of these charges,
       aggravated robberies, which involve the use or display of a deadly weapon
       or something used so that the victim reasonably believed it to be a deadly
       weapon and/or serious bodily injury to the victims. Range two sentencing,
       regardless of the -- whether or not the prior armed robberies occurred on the
       same day or within the same twenty-four hour period, range two sentencing
       would have been the result.



                When a petitioner seeks post-conviction relief on the basis of ineffective

assistance of counsel, he must first establish that the services rendered or the advice given

was below "the range of competence demanded of attorneys in criminal cases." Baxter

v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Second, he must show that the deficiencies

"actually had an adverse effect on the defense." Strickland v. Washington, 466 U.S. 668,

693, 104 S.Ct. 2052, 5067, 80 L.Ed.2d 674 (1984). Moreover, on appeal, the findings of

fact made by the post-conviction court are conclusive and will not be disturbed unless the

evidence contained in the record preponderates against them. Rhoden v. State, 816

S.W.2d 56, 60 (Tenn. Crim. App. 1991); Brooks v. State, 756 S.W.2d 288, 289 (Tenn.



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Crim. App. 1988). The burden is on the petitioner to show that the evidence preponderates

against those findings. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978), cert.

denied, 441 U.S. 947, 99 S.Ct. 2170, 60 L.Ed.2d 1050 (1979).



              From the record before this Court, it is clear that the trial court properly found

that the appellant failed to establish a claim of ineffective assistance of counsel, and this

issue is without merit.



              IT IS, THEREFORE, ORDERED that the state’s motion to affirm the

judgment of the trial court under Rule 20, Tennessee Court of Criminal Appeals Rules, is

granted, and the judgment of the trial court is affirmed. Because the appellant is indigent,

costs of this appeal are taxed to the state.



              Enter this the ____ day of June, 1997.



                                    ________________________________
                                    JERRY L. SMITH, JUDGE


CONCUR:


________________________________
JOHN H. PEAY, JUDGE


________________________________
THOMAS T. WOODALL, JUDGE




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