             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT KNOXVILLE                 FILED
                             JANUARY 1998 SESSION
                                                                March 23, 1998

                                                              Cecil Crowson, Jr.
                                                              Appellate C ourt Clerk
WESLEY BARNES,                   )
                                 )
             Appellant,          )    No. 03C01-9702-CR-00068
                                 )
                                 )    Hamilton County
v.                               )
                                 )    Honorable Douglas A. Meyer, Judge
                                 )
STATE OF TENNESSEE,              )     (Post-Conviction)
                                 )
             Appellee.           )


For the Appellant:                    For the Appellee:

Ardena J. Garth                       John Knox Walkup
District Public Defender              Attorney General of Tennessee
   and                                       and
Richard Heinsman and                  Michael J. Fahey, II
Donna Robinson Miller                 Assistant Attorney General of Tennessee
Assistant Public Defenders            450 James Robertson Parkway
701 Cherry Street                     Nashville, TN 37243-0493
Chattanooga, TN 37402
 (AT TRIAL)                           William H. Cox
                                      District Attorney General
Ardena J. Garth                               and
District Public Defender              Leland Davis
   and                                Assistant District Attorney General
Donna Robinson Miller                 600 Market Street
Assistant Public Defender             Courts Building
Suite 300                             Chattanooga, TN 37402
701 Cherry Street
Chattanooga, TN 37402
(ON APPEAL)




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                       OPINION



              The petitioner, Wesley Barnes, appeals as of right from the denial of his

petition for post-conviction relief by the Hamilton County Criminal Court. He seeks relief

from his conviction upon a guilty plea for attempt to commit aggravated arson resulting

in an eight-year sentence. He claims that the trial court incorrectly found that he

received the effective assistance of counsel. Particularly, the petitioner asserts that his

trial attorney failed to investigate the case, intervened into negotiations without retained

counsel’s permission, pressured him into pleading guilty, and misadvised him that he

was facing a life sentence on the original aggravated arson charge. We affirm the trial

court.



              This case presents a rather disjointed, incomplete picture of the

circumstances surrounding the petitioner’s guilty plea to attempt to commit aggravated

arson. The record reflects that the petitioner was charged in separate cases for two

offenses of selling cocaine and one offense of aggravated arson. Attorney Phil Floyd

was originally appointed to represent the petitioner on the cocaine charges, and Arvin

Reingold was originally retained on the aggravated arson charge.



              The record reflects that the petitioner was convicted in a jury trial of the

sale of cocaine in one case, receiving an eight-year sentence. He subsequently pled

guilty in one hearing to the second cocaine sale and to attempted aggravated arson,

receiving an eight-year sentence for each. At some point, he was also serving time on

a federal sentence. The two cocaine cases were to run concurrently to each other, but

the attempted aggravated arson case was to run consecutively, for an effective state

sentence of sixteen years. The state sentences were to run concurrently with the

federal sentence.




                                             2
               The gist of the petitioner’s complaint is that Mr. Floyd, although not

counsel of record, intervened in the aggravated arson case and got the petitioner to

plead guilty even though Mr. Floyd knew nothing about the case, while the petitioner

claimed that he was innocent. However, the post-conviction evidentiary hearing reveals

little in support of the petitioner’s claims.



               Mr. Floyd’s testimony reflects that he had no independent recollection of

the case other than recognizing the petitioner and remembering the petitioner’s name.

He identified the appointment order for him to represent the petitioner in a cocaine

case. He identified his signature on the petition to enter guilty pleas to the sale of

cocaine and to the attempted aggravated arson. He also identified on the judgment of

conviction for the attempted aggravated arson that Mr. Reingold’s name was typed

while his own was written after Mr. Reingold’s. He testified that he would not touch

another attorney’s case, although he mentioned several ways another attorney could

become involved, such as a defendant resolving multiple cases involving several

attorneys.



               Mr. Reingold testified that he represented the petitioner at the aggravated

arson preliminary hearing but that the petitioner could not retain him for the drug cases.

He recalled learning from either the petitioner or Mr. Floyd that appointed counsel was

going to handle the pending cases because something was being worked out on them.

Mr. Reingold did not recall formally withdrawing from representation, but he believed it

to be understood that he had withdrawn. He did not remember whether he discussed

any investigation of the arson case with Mr. Floyd. He recalled, though, that the

petitioner asserted his innocence. Finally, he stated that if he had still been

representing the petitioner at the time, he would have been at the guilty plea hearing.




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              Charles Baker testified that his mother’s house was burned as the result

of the arson and that his brother, German, said at the time that he saw the petitioner do

it. He testified that he was aware that the petitioner had argued with German before the

fire. Mr. Baker stated that he had learned on the streets that the petitioner did not do it

and that he told German of this. However, German “wanted to believe what he saw.”

He provided German Baker’s address to the court. Mr. Baker testified that about a year

before the hearing, he heard a person named Lonnie admit to burning the house.



              The petitioner testified that he retained Mr. Reingold for the arson case

and that Mr. Floyd was appointed to the cocaine cases. He testified that he had been

offered a misdemeanor conviction and a one-year sentence for the arson case, but he

refused it because he was innocent. He indicated that he was unaware that he was

pleading guilty to attempted aggravated arson, thinking that Mr. Reingold was going to

handle it.



              At this point in the hearing, the trial court stopped the testimony because

the guilty plea hearing had not been transcribed. Subsequently, the petitioner failed to

appear at two hearing dates,

and the trial court dismissed the case. However, pursuant to agreement of the parties

on appeal, this court remanded the case for further record development, including

findings of fact and conclusions of law.



              Upon remand, the petitioner added the claim that he was misadvised

about his sentence exposure, noting that the guilty plea petition had a maximum

sentence of life imprisonment, instead of twenty-five years which was applicable to the

Range I, Class A felony of aggravated arson. However, no further testimony from the

petitioner or other witnesses was presented.




                                             4
              The transcript of the guilty plea hearing reflects that the petitioner was

advised of his rights and made aware that he was pleading guilty to attempted

aggravated arson pursuant to a plea agreement. The petitioner said that he understood

what was going on and that he did not want a jury trial. He said that he agreed to the

punishment of sixteen years that would run concurrently with his federal time of fifty-one

months.



              The trial court found that the petitioner’s claim that the state could not

make a case against him was not persuasive. It noted that the petitioner did not

present German Baker as a witness, but called Charles Baker, whose testimony the

trial court found unconvincing.



              As for counsel, the trial court found that the petitioner acquiesced in Mr.

Floyd’s representation in the negotiation and plea in the attempted aggravated arson

case. It stated that Mr. Floyd worked out a good deal for the petitioner and that it was

in the petitioner’s best interest to accept the state’s offer. It concluded that Mr. Floyd

provided the effective assistance of counsel.



              If a petitioner seeks to vacate a conviction based upon his guilty plea on

the ground that the plea resulted from the ineffective assistance of counsel, the

petitioner must show (1) that his attorney rendered deficient representation and (2) “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.” Hill v. Lockhart, 474 U.S. 52,

58-59, 106 S. Ct. 366, 370 (1985). Under the law controlling in this case, the burden

rested on the petitioner to prove his allegations by a preponderance of the evidence.

Long v. State, 510 S.W.2d 83, 86 (Tenn. 1982). On appeal, the findings of fact of the

trial court are conclusive unless the evidence preponderates against them. Butler v.

State, 789 S.W.2d 898, 899 (Tenn. 1990).



                                              5
              The central failure of the petitioner in this case is that he submitted no

credible evidence that he would have withdrawn his guilty plea and proceeded to trial

on the aggravated arson case. Although he intimated that he was unaware that he was

pleading guilty in the arson case, the transcript of the guilty plea hearing conclusively

reflects otherwise. As for his claim that he was misadvised as to his maximum

exposure, the petitioner did not testify that it had any effect upon his decision to plead

guilty. Similarly, although the petitioner professed his innocence on the arson charge,

the record supports the trial court’s determination that the state had an eyewitness who

claimed to have seen him commit the offense.



              Although we note that the record is devoid of any evidence that Mr. Floyd

investigated the arson, there is also no evidence that such affected the petitioner’s

guilty plea. Rather, the guilty plea transcript indicates that the petitioner was interested

in resolving all his cases and proceeding with serving his time.



              We conclude that the record does not preponderate against the trial

court’s findings of fact and determination of the case. The judgment of the trial court is

affirmed.



                                                  ______________________________
                                                  Joseph M. Tipton, Judge

CONCUR:



__________________________
Gary R. Wade, Judge



__________________________
William M. Barker, Judge




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