               IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT KNOXVILLE

                               MARCH 1999 SESSION


        DARRELL W. LUNSFORD               ) C.C.A. 03C01-9811-CC-00390
                                          ) GRAINGER COUNTY CIRCUIT
                                          )
Appellant,                        )   Hon. Rex Henry Ogle, Judge
                                  )
                                           )
        vs.                                ) (POST-CONVICTION)
                                  )   NO. 6533
                                  )
        STATE OF TENNESSEE                )
                                          )
                   Appellee.              )



        FOR THE APPELLANT:                       FOR THE APPELLEE:


        DOUGLAS A. TRANT, ESQUIRE                PAUL G. SUMMERS
        900 South Gay Street                     Attorney General & Reporter
        Suite 1502
        Knoxville, TN 37902                      R. STEPHEN JOBE   FILED
                                        Assistant Attorney General 19, 1999
                                                                  July
                                        425 Fifth Avenue North
                                                                Cecil Crowson, Jr.
                                        2nd Floor, Cordell Hull Appellate C ourt
                                                                Bldg.
                                        Nashville, TN 37243           Clerk

                                        AL. C. SCHMUTZER, JR.
                                        District Attorney General

                                                 WILLIAM B. MARSH
                                                 Assistant District Attorney
                                                 339 East Main Street
                                                 Newport, TN 37821



        OPINION FILED:_______________


        AFFIRMED


        CORNELIA A. CLARK
        Special Judge
                                     OPINION

       Appellant appeals as of right the trial court’s dismissal after a hearing

of his post-conviction petition. He raises one issue on appeal: whether he was

denied due process of law and effective assistance of counsel as the result of

erroneous advice given by the trial court and counsel as to when he becomes

eligible for parole when serving a life sentence. After a thorough review of the

record, we affirm the judgment of the trial court.

                                      FACTS

       Appellant was indicted on charges of first degree premeditated murder,

felony murder, especially aggravated burglary, and theft under $500.00 A

notice of intent to seek capital punishment was filed by the state, so the

appellant was at risk for the imposition of the death penalty. After all proof was

presented at trial and while the jury was deliberating its verdict, the state

extended to appellant an offer of settlement involving a sentence of life

imprisonment for the murder and twelve years for the aggravated burglary.

Those sentences were to be served consecutively. Appellant also received a

sentence of eleven months, twenty-nine days for theft, but that sentence was

to be served concurrently. Appellant accepted the offer and entered a guilty

plea on March 18, 1993. During the plea colloquy, the trial judge made the

following statement about the possible penalties for the offenses charged or

embraced in the indictments:

              THE COURT: So you are very much aware -- on first degree
       murder it’s life or death, and that depends on aggravating
       circumstances outweighing beyond a reasonable doubt all mitigating
       circumstances. You know that penalty attaches both to the
       premeditated first degree murder, and it attaches also to felony first
       degree murder.
              You know that the range of penalties, I believe I told the jury,
       was eight to 12 on the especially aggravated burglary. You could be
       fined as much as $25,000 on that. You could be fined as much as
       $50,000 on a second degree murder conviction. The range on that is
       15 to 25, I believe I told the jury.
              On the misdemeanor theft you could fined as much as $2,500
       could be fined, and you could be sentenced to as much as 11 months
       and 29 days.
              How sentences run is important, sir. If you suffer more than
       one conviction the jury would not decide how they run, that’s for the
       court -- for the Judge. There are reasons to run sentences
       consecutively; there
                                             2
          are reasons to run them concurrently. More often they run concurrently,
          which means all sentences run at the same time. So the greatest
          sentence you get is the only sentence you have, in effect. If you serve
          the greater one, anything smaller just falls by the wayside.
                 In appropriate cases, sir, for good cause, sentences can be run
          consecutive under Gray v. State. There are reasons for that. If they run
          consecutively, sir, then you have the aggregate, whatever it adds up to
          be. And so that would enhance and increase the punishment.
                 You are a standard, range one offender, I understand. You are a
          30% offender, so you would ? the law says that you serve 30% of the
          sentence. The law also says that because we have prison crowding
          that 40% of that is lopped off at the top, at the front end, so you won’t
          serve 30%. 40% of that 30% is gone at the front by statute.
                 Actually, how long you would serve, sir, I cannot tell you. Mr.
          Hagood can’t tell you, General Schmutzer can’t tell you, no one can tell
          you; we do not know. But the sentence that is imposed would be
          subject to the Department of Corrections. It would be entirely out of my
          hands, out of our hands. Did you understand that, sir?

                DEFENDANT LUNSFORD: Yes, sir.

  At a later point in the proceedings, and in the presence of the jury, the

  following colloquy occurred:

                 GENERAL SCHMUTZER: The recommendation of the State, is,
          Your Honor, that he receive life imprisonment on the first degree
          murder, and that he receives the maximum of 12 years on the
          aggravated burglary, and they are to run consecutively. As I understand
          the law, of course, he’s pled guilty to felony murder, but those merge
          as a matter of law -- they merge into one. There can only be one
          conviction.

                THE COURT: It does merge, yes, sir.

                 GENERAL SCHMUTZER: So that would be life plus 12 years,
          which is the maximum he can get under the law, other than death.

                THE COURT: And 11-29 on the theft; is that what you said?

                GENERAL SCHMUTZER: Right, Your Honor, concurrent.

                 THE COURT: Stand up, please, Mr. Lunsford. Mr. Lunsford, is
          that the recommendation you expected would be made to me, sir?

                DEFENDANT LUNSFORD: Yes, sir.

                THE COURT: That’s what you understood?

                DEFENDANT LUNSFORD: Yes, sir.

              On March 13, 1996, appellant filed a Petition for Post-Conviction

Relief,

  asserting four grounds: (1) the trial judge improperly advised appellant about

  his parole eligibility, thereby depriving appellant of due process; (2) trial

                                           3
counsel was ineffective for failing to object to or correct the advice given by the

court; (3) the trial judge violated Rule 11, Tenn. R. Crim. P., by providing

erroneous advice about appellant’s right against self-incrimination; and

(4) trial counsel was ineffective for failing to object to this error. On October

28, 1998, the Court conducted an evidentiary hearing. Three witnesses

testified.

       The appellant’s father1 testified that he attended the

March 1993 trial of his son.                  He and other family members

were present when trial counsel discussed the plea offer

extended by the state during jury deliberations.                          Mr.

Lunsford recalled the conversation as follows:

            A. He told me and all the group that was
       gathered there that if Darrell would plead guilty to
       the charges that he would get a life sentence which
       would then be reduced by forty percent or thirty;
       there was two numbers, one was forty percent and then
       another thirty percent. One was for, because he was
       a first time offender, he’d never been in trouble
       before and he got caught up in this and he was first
       time and he would get a reduction of that life
       sentence. And then he would get another forty
       percent off that due to prison over-crowding and
       situations in the State pen facilities that would
       dictate another reduction in that. And with good
       time in prison, not getting in any trouble or
       anything that he would possibly be ready for parole
       in about twelve years from the time of sentencing if
       he would take that plea. That’s what he said that he
       and . . .
            THE COURT: Now what was the last thing you say
       he said?

            A: If he would plead guilty to the charges that
       that would be the sentence, life with the forty, I
       can’t remember. There was two figures; one was forty
       percent off and one was thirty percent off.

            THE COURT: So he said that he could possibly
       get out in twelve years?

            A: Twelve years from that date that he would be
       eligible for parole.

              Q:    For parole?

              A:    Yeah.


  1
   The appellant’s father is also named Darrell Lunsford. He will be referred to as
“Mr. Lunsford.”

                                          4
            THE COURT:     Possibly?

            A:   Yeah.

            THE COURT: Okay.

          A. But that would, you know, depending on if he
     was good in prison and that kind of thing, yeah.

Mr. Lunsford continued to be confused about the thirty and

forty percent numbers.      He also thought that the sentence

for aggravated burglary was to run concurrently with the

life sentence, but later testified that he did not recall

that part of the conversation.

     The appellant next testified that when his counsel

first explained the plea offer:

          A. He told me that I would have a life sentence
     and I said well, how much time is a life sentence and
     he said a life sentence is calculated at sixty years.
     And he said that they were going to knock forty
     percent off the front end of it and I’d do thirty
     percent of that. And I asked him how much that would
     be and he said about twelve and a half years.

He later learned that he would not be eligible for parole

until he had served thirty-six calendar years.      He stated

that he would not have pled guilty if he had understood

that fact earlier.       He stated further that he understood

the judge’s discussion about parole eligibility to apply

to the sentence for murder as well as to that for

aggravated burglary.      He also testified that he believed

the twelve year sentence ran concurrent with the life

sentence.

     On cross-examination appellant stated that he pled

guilty in part because his parents wanted him to do so.

He acknowledged that the trial judge advised him that his

total sentence was life plus twelve years.      He further

acknowledged that trial counsel did not say he would be

released in twelve years, only that he might be eligible

for parole at that time.

     Trial counsel testified last.      He stated that no plea

offer was extended by the state at any time prior to
trial, even though he had solicited such an offer.    During

jury deliberations the state extended a settlement offer

identical to that previously accepted by the co-defendant.

Counsel visited the appellant in a holding cell and

discussed the offer.   No one else was present.   Counsel

later discussed the offer with members of appellant’s

family.   Counsel testified that

                             5
the appellant’s main concern throughout the case was the

possible imposition of    the death penalty.   Counsel

acknowledged providing advice about Range I release

eligibility dates and safety provisions:

          A.   I’m sure that I told him that he was a,
     what the offer was and
     that he was a Range I offender and what that meant,
     that basically at the time that that was, that meant
     that he would serve thirty percent of his sentence
     before he would be eligible for any sort of review
     and I think at that time the safety valve, and I’m
     not sure what the percentages were, I think if I
     recall from looking at the Transcript it was forty
     percent. I thought that it was thirty-five, forty
     percent was in effect and that may or may not have a
     play in when he may be eligible. I knew that he was
     a young man, that I thought this gave him an
     opportunity to possibly be released. Now I didn’t
     tell him when because I didn’t know and he knew that
     that wasn’t within my control and I communicated that
     to him. I can’t tell this Court with certainty any
     exact number or if I gave him an exact number but we
     talked for some period of time and he was very
     relieved that an offer had been extended to him. And
     frankly so was I and so was his family.

Counsel had tried to obtain a settlement offer prior to

trial, but was unsuccessful.    According to him, appellant

was “scared to death” about the prospect of having the

death penalty imposed.    Counsel believed the evidence

against his client was strong, including admissions made

by the appellant and     his shirt containing the victim’s

blood.   Counsel emphasized that he never told appellant

precisely when he might be released.

     After hearing all the proof the post-conviction court

denied appellant’s petition.    A written order including

findings of fact and conclusions of law was filed November

13, 1998.   The court concluded that although appellant had

received erroneous information about the length of the

sentence he would have to serve, that error was not the

basis for his decision to plead guilty.    The court found

that the appellant accepted the first plea offer extended

to him by the state, in order to avoid the possible

imposition of the death penalty.    The post-conviction
court also found that appellant had acknowledged that he

knew neither the trial court, trial counsel, nor the

district attorney general could predict his parole

eligibility date.   The court found that appellant    was

sentenced accurately.   Therefore, the court found that

appellant had not

                               6



carried his burden of proof on the issues raised in the

post-conviction petition.

                            ANALYSIS

     In post-conviction proceedings, the petitioner has

the burden of proving the grounds raised in the petition

by clear and convincing evidence.      Tenn. Code Ann. ?40-30-

210(f).   When reviewing the dismissal of a post-conviction

petition, this court must affirm the judgment of the trial

court unless the evidence in the record preponderates

against the court’s findings.      Cooper v. State, 849 S.W.

2d 744, 746 (Tenn. 1993).

     In Tennessee, the accused has a constitutional right

to the effective assistance of counsel at all critical

stages of a criminal prosecution.      Tenn. Const. Art. I, §

9; Powell v. Alabama, 287 U.S. 45, 77 L.Ed. 158, 53 S. Ct.

55 (1932); McKeldin v. State, 516 S.W. 2d 82, 86 (Tenn.

1974).    In order to establish ineffectiveness under the

standard established by the United States Supreme Court in

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed. 2d 674 (1984), a criminal defendant must show both

that (1) counsel’s performance was deficient and that (2)

the deficiency was sufficient to undermine the confidence

in the outcome of the proceeding.      466 U.S. at 694, 104

S.Ct. at 2064.   In Tennessee, the appropriate test for

determining whether counsel provided effective assistance

is whether his advice and services were within the range
of competence demanded of trial attorneys in criminal

cases.    Baxter v. Rose, 523 S.W. 2d 930, 936 (Tenn. 1975).

     The standard is adjusted, however, in the context of

a guilty plea.   To

set aside a guilty plea because of ineffective assistance

of counsel, the attorney’s performance must be deficient

as defined in Strickland.    To satisfy the second prong or

“prejudice” requirement of the Strickland test, the

petitioner must show 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, 59, 106 S.Ct. 366,

370, 88 L.Ed. 2d 203 (1985); Dixon v. State, 934 S.W. 2d

69, 72 (Tenn. Crim. App. 1996).

                              7
     The rules of appellate review are well-established.

First, this court cannot reweigh or reevaluate the

evidence; nor can it substitute its inferences for those

drawn by the trial court.    State v. Harris, 839 S.W. 2d

54, 75 (Tenn. 1992).   Second, questions concerning the

credibility of witnesses, the weight and value to be given

their testimony, and the factual issues raised by the

evidence are matters resolved by the trial court.     State

v. Williams, 657 S.W. 2d 405, 410 (Tenn. 1983).     Third,

the petitioner has the burden of establishing that the

evidence in the record preponderates against the findings

of the trial court.    Butler v. State, 789 S.W. 2d 898, 900

(Tenn. 1990).

     It is not disputed that certain Range I release

eligibility criteria do not apply to a conviction for

first degree murder.   For example, Tenn. Code Ann. §40-35-

501(h)(l) provides that a defendant serving a sentence of

life for first degree murder is not eligible for release

until he has served sixty percent (60%) of sixty (60)

years less sentence credits earned and retained, but in no

event less than twenty-five (25) calendar years.    This

subsection also excludes such defendants from the

governor’s authority to release under Title 41, Chapter 1,

Part 5, Tenn. Code Ann.     To the extent that counsel and

the court provided different information at the time

appellant’s plea was entered, a mistake occurred.

     However, this does not end our analysis for several

reasons. First, the plea colloquy between appellant and

the trial judge is susceptible of two interpretations, one

of which is that the judge’s reference to release

eligibility matters was only intended to apply to the

especially aggravated burglary conviction and not to the

murder conviction.    The court in its early reference to
first degree murder explains that the available penalties

for that offense are life in prison or death.      Only after

mentioning the other offenses does the court make

reference to appellant’s status as a Range I offender.         It

is possible to read the record without determining that

the trial court erred in explaining release eligibility.

                               8

     Second, even if the trial court erred in its

explanation, relief is available in post-conviction

proceedings only where the error is of constitutional

dimension. Tenn. Code Ann. ?40-30-105.       A guilty plea must

pass constitutional muster in order to be valid.        E.g.

Blackenship v. State, 858 S.W. 2d 897 (Tenn. 1993).

However, a guilty plea is not rendered constitutionally

infirm because a criminal defendant is not informed about

the details of his parole eligibility, including the

possibility   of being ineligible for parole.      King v.

Dutton, 17 F.3d 151, 154 (6th Cir. 1994).      Thus, that the

trial court did not inform the petitioner accurately about

the parole eligibility for a conviction of murder does not

afford the petitioner a claim for relief cognizable in

this proceeding.   See Wilson v. State, 899 S.W. 2d 648,

652 (Tenn. Crim. App. 1994).       In Wilson we held that, in

the context of a post-conviction attack on a sex

offender’s guilty plea, the trial court was not required

to advise the offender about the requirements he must meet

in order to be released on parole.      This issue is

therefore without merit as it relates to the actions of

the trial judge.

     As for trial counsel, proof that he gave erroneous

parole advice that induced appellant to forego his right

to a jury trial can be used to establish a claim for

ineffective assistance of counsel. Walton v. State, 966

S.W. 2d 54 (Tenn. Crim. App. 1997).       However, the burden
still remains on appellant to show that but for counsel’s

erroneous advice he would not have pled guilty.   The post-

conviction court found unequivocally that the second prong

of the Strickland test was not satisfied. Any error in

informing appellant about his parole release eligibility

was not a factor in his decision to plead guilty.   The

post-conviction court specifically made a finding against

appellant’s credibility in this regard.

     At the time he entered his plea, appellant had

already heard all the proof presented at trial.   He was

advised during the plea colloquy that the sentence of

twelve years was “the maximum he can get under law, other

than death.”   The court found that he accepted the plea

extended to him during jury

                              9
deliberations in order to avoid possible imposition of the

death penalty.   He fully understood that no one could

predict specifically when he might be granted parole.     He

was advised that his felony sentences were to run

consecutively.   Based on these findings, the post-

conviction court found that appellant had not carried his

burden of proof on any issue raised in the petition.

     Questions concerning the credibility of witnesses,

the weight and value to be given their testimony, and the

factual issues raised by the evidence are matters resolved

by the trial court, State v. Williams, 657 S.W. 2d 405,

410 (Tenn. 1983), and the post-conviction judge accredited

the testimony given by the trial attorney. In our view,

the record does not preponderate against the post-

conviction court’s conclusion that appellant’s plea was

knowing and voluntary and that his trial counsel rendered

effective assistance to him.   Therefore, we affirm the

judgment of the trial court.


                        ___________________________
                               CORNELIA A. CLARK
                               SPECIAL JUDGE


_______________________________
GARY R. WADE
PRESIDING JUDGE



_______________________________
JOSEPH M. TIPTON
JUDGE
                                             10
                       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                         AT KNOXVILLE

                                      MARCH 1999 SESSION


              DARRELL W. LUNSFORD            )    C.C.A. 03C01-9811-CC-00390
                                                    ) GRAINGER COUNTY CIRCUIT
                                                    )
                    Appellant,                               ) Hon. Rex Henry
Ogle, Judge
                                                                )
                                                    )
              vs.                                   ) (POST-CONVICTION)
                                         )       NO. 6533
                                         )
              STATE OF TENNESSEE                    )
                                                    )
                          Appellee.                 )




                                             JUDGMENT

                   Came the appellant, Darrell W. Lunsford, represented
              by counsel and also came the attorney general on behalf of
              the State, and this case was heard on the record on appeal
              from the Circuit Court of Grainger County; and upon
              consideration thereof, this court is of the opinion that
              there is no reversible error in the judgment of the trial
              court.

                   Our opinion is hereby incorporated in this judgment
              as if set out verbatim.

                   It is, therefore, ordered and adjudged by this court
              that the judgment of the trial court is Affirmed, and the
              case is remanded to the Circuit Court of Grainger County
              for any necessary further proceedings consistent with the
              opinion in this cause.

                   It appearing that the petitioner, Darrell W.
              Lunsford, is indigent, costs of the appeal are taxed to
              the State of Tennessee.

                                                    PER CURIAM

                                                    Gary R. Wade, Presiding
              Judge
                                                    Joseph M. Tipton, Judge
                                                    Cornelia A. Clark, Special
              Judge
