           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE            FILED
                        SEPTEMBER 1999 SESSION
                                                    September 27, 1999

                                                    Cecil Crowson, Jr.
                                                   Appellate Court Clerk
WILLIE LEE BENFORD,              )
                                 )    C.C.A. NO. 01C01-9905-CR-00157
           Appellant,            )
                                 )    DAVIDSON COUNTY
VS.                              )
                                 )    HON. CHERYL BLACKBURN,
STATE OF TENNESSEE,              )    JUDGE
                                 )
           Appellee.             )    (Post-Conviction)



FOR THE APPELLANT:                   FOR THE APPELLEE:


RICHARD HEDGEPATH, JR.               PAUL G. SUMMERS
4800 Charlotte Pike                  Attorney General & Reporter
Nashville, TN 37209
                                     TODD R. KELLEY
                                     Asst. Attorney General
                                     Cordell Hull Bldg., 2nd Fl.
                                     425 Fifth Ave., North
                                     Nashville, TN 37243-0493

                                     VICTOR S. JOHNSON, III
                                     District Attorney General

                                     ROGER MOORE
                                     Asst. District Attorney General
                                     Washington Square, Suite 500
                                     222 Second Ave., North
                                     Nashville, TN 37201-1649




OPINION FILED:



AFFIRMED


JOHN H. PEAY,
Judge
                                     OPINION



              On January 23, 1997, the petitioner pled guilty to one count of rape of a

child and entered a best interest plea to a second count of rape of a child. Pursuant to

a plea agreement, the petitioner was sentenced to a term of fifteen years on each count.

These sentences were to run concurrently. The petitioner’s subsequent post-conviction

petition was denied by the lower court after an evidentiary hearing. The petitioner now

appeals and contends that his guilty plea was not voluntarily, knowingly, or

understandingly entered and that he was denied the effective assistance of counsel.

After a review of the record and applicable law, we find no merit to the defendant’s

contentions and thus affirm the judgment of the lower court.



              Initially, we note that under the Post-Conviction Procedure Act of 1995, the

petitioner has the burden of proving the factual allegations in his or her petition by clear

and convincing evidence. T.C.A. § 40-30-210(f). Furthermore, the factual findings of the

trial court in hearings “are conclusive on appeal unless the evidence preponderates

against the judgement.” State v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983).



              The petitioner first contends that his guilty plea was involuntarily and

unknowingly entered because the trial court failed to inform him that due to the nature of

his conviction, his sentence would be served without the possibility of parole or sentence

reduction credits. See T.C.A. § 39-13-523.



              After hearing the petitioner’s testimony as well as that of his attorney, and

after reviewing the transcript of the guilty plea which was introduced into evidence, the

court below found as follows:

                     The petitioner alleges as grounds for his claim of an
              involuntary plea of guilty that the Court failed to inform him
              that he would have to serve his fifteen (15) year sentence

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              without the possibility of parole and without sentence reduction
              credits. However, the transcript of the submission hearing,
              which was entered as exhibit number two to the post-conviction
              hearing, shows otherwise. On page two of the transcript, the
              Court informs the petitioner that he will have to serve his entire
              sentence undiminished by any sentence reduction credits. The
              Court then asked the petitioner if that was his understanding of
              the agreement. The petitioner responded in the affirmative.
                     Based upon the transcript of the submission hearing in this
              matter, the Court finds that this claim is without merit.


The evidence does not preponderate against the lower court’s factual findings and

conclusions. This issue is without merit.



              The petitioner next claims that he was denied the effective assistance of

counsel. In reviewing the petitioner’s Sixth Amendment claim of ineffective assistance

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

the attorney are within the range of competence demanded of attorneys in criminal

cases. Baxter v. Rose, 523 S.W .2d 930, 936 (Tenn. 1975). To prevail on a claim of

ineffective counsel, a petitioner “must show that counsel’s representation fell below an

objective standard of reasonableness” and that this performance prejudiced the defense.

There must be a reasonable probability that but for counsel’s error the result of

proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88,

692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985). To satisfy

the requirement of prejudice, the petitioner must demonstrate a reasonable probability

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

going to trial. See Hill v. Lockart, 474 U.S. 52, 59 (1985); Bankston v. State, 815 S.W.2d

213, 215 (Tenn. Crim. App. 1991).



              The petitioner argues that his attorney, Michie Gibson, was ineffective

because he did not inform the petitioner that his sentence would be served without the

possibility of parole or sentence reduction credits. Instead, according to the petitioner,

his attorney told him his sentence would be served at thirty percent. The defendant

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contends that in the absence of these errors, he would not have pled guilty and would

have insisted on going to trial. With respect to these allegations, the court below found

as follows:



                      Mr. Gibson testified that at no time did he tell the petitioner
              that he would serve his sentence at thirty percent (30%). In fact,
              testimony was that Mr. Gibson specifically told the petitioner that
              based on the charges, the petitioner would have to serve the
              sentence at one-hundred percent(100%). This testimony corre-
              sponds with the answers that the petitioner gave the Court at the
              submission hearing. The petitioner was told by the Court that the
              sentence would be served at one-hundred percent (100%) and the
              petitioner agreed that this was the agreement. Also, the petitioner
              had no questions for the Court concerning this issue when given
              the opportunity to inquire as to anything he was unsure about.
                      Based on the testimony and the exhibits introduced at the
              hearing, and the observation of the witnesses, the Court finds that
              petitioner’s claims are not credible. The plea was not the result of
              erroneous advise [sic] nor were they entered involuntary [sic],
              unknowingly or not understandingly.
                      The petitioner has not carried his burden regarding these
              issues. Mr. Gibson offered effective assistance of counsel and the
              plea was entered knowingly, voluntarily and understandingly.


              Again, the evidence does not preponderate against the lower court’s

findings. This issue is also without merit.



              Accordingly, we affirm the lower court’s denial of post-conviction relief.




                                                  ______________________________
                                                  JOHN H. PEAY, Judge



CONCUR:



______________________________
DAVID H. WELLES, Judge



______________________________
JOHN EVERETT W ILLIAMS, Judge



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