             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                        AT JACKSON

                             FEBRUARY 1998 SESSION
                                                                 FILED
                                                                  March 19, 1998

                                                                 Cecil Crowson, Jr.
CHARLIE GILMORE, JR.,               )                            Appellate C ourt Clerk
                                    )       No. 02-C-01-9611-CR-00421
             APPELLANT,             )
                                    )       Shelby County
v.                                  )
                                    )       Chris Craft, Judge
STATE OF TENNESSEE,                 )
                                    )       (Post-Conviction Relief)
             APPELLEE.              )




FOR THE APPELLANT:                          FOR THE APPELLEE:

Deborah M. Henderson                        John Knox Walkup
Attorney at Law                             Attorney General & Reporter
50 North Front Street, Suite 1150           425 Fifth Avenue, North
Memphis, TN 38103                           Nashville, TN 37243-0493

                                             Elizabeth T. Ryan
                                             Assistant Attorney General
                                             425 Fifth Avenue, North
                                             Nashville, TN 37243-0493

                                             William L. Gibbons
                                             District Attorney General
                                             201 Poplar Avenue, Suite 3-01
                                             Memphis, TN 38103

                                             Jerry R. Kitchen
                                             Assistant District Attorney General
                                             201 Poplar Avenue, Suite 3-01
                                             Memphis, TN 38103




OPINION FILED: ______________________________


AFFIRMED PURSUANT TO RULE 20


Joe B. Jones, Presiding Judge

                                        OPINION
       The appellant, Charlie Gilmore, Jr. (petitioner),1 appeals as of right from a judgment

of the trial court dismissing his post-conviction action after an evidentiary hearing. In this

court, the petitioner contends the evidence contained in the record establishes he was

denied his constitutional right to the effective assistance of counsel. After a thorough

review of the record, the briefs submitted by counsel, and the law governing the issue

presented for review, it is the opinion of this court that the judgment of the trial court should

be affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals. The evidence

contained in the record does not preponderate against the trial court’s findings of fact.

       The petitioner claims his lawyer failed to interview two witnesses. The attorney who

represented the petitioner testified the petitioner did not provide him with one of the names,

and the second witness, the petitioner’s sister, could not be located. The petitioner did not

know the surname of one witness, but testified he “[could] find out” this person’s name.

Nevertheless, the petitioner did not present the testimony of either alleged witness during

the evidentiary hearing. In short, the petitioner failed to establish he was prejudiced by trial

counsel’s alleged failure to locate and interview the petitioner’s sister. Black v. State, 794

S.W.2d 752, 757-58 (Tenn. Crim. App.), per. app. denied (Tenn. 1990).

       The petitioner alleges trial counsel failed to formulate a defense. The petitioner’s

mother was his chief witness. She died while this case was pending in the trial court. The

testimony of the other defense witness was not helpful. The trial attorney testified the

chances of the petitioner being acquitted were extremely “dim.”             Trial counsel was

successful in having a twenty-year offer reduced to fifteen years, the minimum punishment

for the offense.

       The trial attorney did not cause the petitioner to change his plea from not guilty to

guilty. The attorney explained the circumstances to the petitioner, provided him with the

guilty plea forms, and left the room. When the attorney returned, the petitioner had signed

the forms. The defendant was aware of the guilty plea procedure and the effect of such

a plea because he entered a plea of guilty to sexual battery three years before the guilty

plea in question. The transcript of the submission hearing supports the trial court’s findings


       1
       The petitioner was indicted and convicted as “Charlie Gilmore.” “Charlie Gilmore”
and “Charlie Gilmore, Jr.” are the same person.

                                               2
of fact.




                                  _____________________________________
                                      JOE B. JONES, PRESIDING JUDGE


CONCUR:



_______________________________________
       JOHN H. PEAY, JUDGE



_______________________________________
     THOMAS T. WOODALL, JUDGE




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