          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                   FILED
                                AT KNOXVILLE                      June 2, 1999

                                                                Cecil Crowson, Jr.
                              APRIL 1999 SESSION                Appellate C ourt
                                                                    Clerk



JEROME D. HILL,                       )
                                      )     NO. 03C01-9807-CR-00254
      Appellant,                      )
                                      )     KNOX COUNTY
VS.                                   )
                                      )     HON. RAY L. JENKINS,
STATE OF TENNESSEE,                   )     JUDGE
                                      )
      Appellee.                       )     (Post-Conviction)



FOR THE APPELLANT:                          FOR THE APPELLEE:

ALBERT J. NEWMAN, JR.                       JOHN KNOX WALKUP
602 South Gay Street                        Attorney General and Reporter
Burwell Building, Suite 500
Knoxville, TN 37902-1623                    R. STEPHEN JOBE
                                            Assistant Attorney General
                                            Cordell Hull Building, 2nd Floor
                                            425 Fifth Avenue North
                                            Nashville, TN 37243-0493

                                            RANDALL E. NICHOLS
                                            District Attorney General

                                            FRED BRIGHT, JR.
                                            Assistant District Attorney General
                                            400 Main
                                            P.O. Box 1468
                                            Knoxville, TN 37901-1468




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                      OPINION



       Petitioner appeals the denial of his petition for post-conviction relief.

Petitioner pled guilty to three counts of aggravated robbery, Class B felonies,

without an agreement as to sentencing. The trial court ordered petitioner to serve

an effective sentence of thirty-six years as a Range II offender. Petitioner now

alleges ineffective assistance of counsel and argues that the plea was not

voluntarily, knowingly, and understandingly entered. Upon a complete review of the

record, we conclude that the evidence does not preponderate against the post-

conviction court’s findings that counsel was effective and the plea voluntary. Thus,

we AFFIRM the dismissal of the petition.



                           I. PROCEDURAL HISTORY

       Petitioner was charged with three counts of aggravated robbery, aggravated

burglary, and theft of property.      Attorney Laurie Andrijeski was retained on

petitioner’s behalf at the General Sessions level and appointed to continue her

representation by the Criminal Court.

       On January 10, 1995, petitioner pled guilty to three counts of aggravated

robbery, Class B felonies, without a sentencing agreement and received eighteen

years as a Range II offender on each count. The trial court ordered the first two

counts to run consecutively, and the third count concurrently, for an effective thirty-

six year sentence. Petitioner perfected a direct appeal, and this Court affirmed the

sentences. See State v. Jerome Dajuan Hill, C.C.A. No. 03C01-9508-CR-00230,

Knox County (Tenn. Crim. App. filed June 7, 1996, at Knoxville), perm. to appeal

denied (Tenn. 1997).

       On November 19, 1997, petitioner filed a petition for post-conviction relief pro

se, alleging the pleas were involuntary due to ineffective assistance of counsel.

The post-conviction court appointed counsel and subsequently conducted an

evidentiary hearing. It found the allegations to be without merit and entered an

order denying post-conviction relief. This appeal followed.


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                                        II. FACTS

       On May 17, 1994, petitioner and two other men forcibly entered the Watson

residence. The perpetrators confronted three people in the house, bound their

hands and feet, and threatened them with physical harm while taking their cash and

other items of property. All three victims identified petitioner as the leader and

gunman of the group.



                                     A. Guilty Plea

       At the guilty plea hearing, the trial court advised petitioner of Range I and

Range II sentencing for Class B felonies.                It summarized its sentencing

considerations and procedures. The court clarified the fact that the sentence

petitioner ultimately received would depend upon (1) whether he was determined

to be a Range I or Range II offender, and (2) whether there was concurrent or

consecutive sentencing. The trial court explained all the petitioner’s rights as a

criminal defendant, the significance of three convictions on his record, and the

possibility of enhanced punishment due to petitioner’s existing criminal record.1

       The petitioner indicated he understood the court’s explanations of sentencing

range, principles, and procedure. Petitioner also indicated satisfaction with attorney

Andrijeski’s representation.



                                     B. Sentencing

       At sentencing, the parties stipulated to petitioner’s status as a Range II

offender. The state requested the application of numerous enhancement factors

and introduced the testimony of two victims. The petitioner did not testify and put

on no proof other than his statement in the pre-sentence report.



                             C. Post-Conviction Hearing



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        The trial court also informed petitioner that he definitely would not be eligible for
any type of probation.

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                             1. Petitioner’s Testimony

       Petitioner testified at the post-conviction evidentiary hearing that trial attorney

Andrijeski met with him approximately twelve times prior to the guilty plea. The first

plea offer conveyed to him by Andrijeski was eight years; as the trial date drew near,

the offer was twenty years. Petitioner contends he rejected the twenty-year offer

on Andrijeski’s advice. He claims she counseled him that a “blind plea” (without

agreement) would be appropriate and that he would not receive more than twenty

years. Were it not for this advice, petitioner claims he would not have pled guilty.

Petitioner avers that no one told him the state would seek Range II sentencing. He

steadfastly maintains counsel told him he would not receive more than twenty years,

and that counsel never advised him of the possibility of a sixty-year sentence.2



                       2. Attorney Andrijeski’s Testimony

       Attorney Andrijeski agreed with petitioner’s estimate regarding the number

of meetings they had, but little else. She testified that the state’s first offer was

twenty-five years, not eight years; the lowest offer received was twenty years. The

petitioner refused both offers because he felt it was too much time.

       Andrijeski reviewed the possibility of a sixty-year sentence with petitioner,

especially considering the state’s proof. She recommended that petitioner take the

twenty-year offer and advised him it was fair considering the factual circumstances

of the offenses.

       After petitioner declined the twenty-year offer, counsel mentioned the option

of pleading without an agreement. Petitioner decided to do that because he

believed he would do better than twenty years.

       With regard to sentencing, Andrijeski prepared a sentencing memorandum.

Petitioner gave her letters of support, allegedly from his football coach and dean of

students at Knoxville University. However, those letters were not presented to the

court because she discovered they were fraudulent.



       2
       Sixty years was the maximum possible sentence had petitioner been sentenced to
the maximum twenty years on each count, with all counts served consecutively.

                                            4
                          III. STANDARDS OF REVIEW

                                A. Post-Conviction

       The judge's findings of fact on post-conviction hearings are conclusive on

appeal unless the evidence preponderates otherwise. Butler v. State, 789 S.W.2d

898, 899 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 341 (Tenn. Crim. App.

1995). The post-conviction court’s findings of fact are afforded the weight of a jury

verdict, and this Court is bound by those findings unless the evidence in the record

preponderates against them. Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997);

Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997); Dixon v. State, 934

S.W.2d 69, 72 (Tenn. Crim. App. 1996). We may not reweigh or reevaluate the

evidence, nor substitute our inferences for those drawn by the trial judge. Henley,

960 S.W.2d at 578-79; Massey v. State, 929 S.W.2d 399, 403 (Tenn. Crim. App.

1996); Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). The burden

of establishing that the evidence preponderates against the post-conviction court’s

findings is on petitioner. Henley, 960 S.W.2d at 579; Black, 794 S.W.2d at 755.



                       B. Effective Assistance of Counsel

       This Court reviews a claim of ineffective assistance of counsel under the

standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner

has the burden to prove that (1) the attorney’s performance was deficient, and (2)

the deficient performance resulted in prejudice to the defendant so as to deprive

him of a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Goad v. State, 938

S.W.2d 363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994);

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

       In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the

Supreme Court applied the two-part Strickland standard to ineffective assistance of

counsel claims arising out of a guilty plea. The Court in Hill modified the prejudice

requirement by requiring a defendant to show that there is a reasonable probability


                                          5
that, but for counsel's errors, he would not have pleaded guilty and would have

insisted on going to trial. 474 U.S. at 59, 106 S.Ct. at 370; Hicks v. State, 983

S.W.2d 240, 246 (Tenn. Crim. App. 1998).



                                IV. CONCLUSION

       The outcome of this post-conviction matter is dependent upon whether the

post-conviction court believed the testimony of petitioner versus that of his trial

counsel. The post-conviction court’s order dismissing the petition states most

succinctly the reasons this appeal must fail:

       The Court accredits the attorney’s testimony. Incarceration does
       strange things to the mind as here. A combination of forgetfulness,
       confabulation and pure mendacity has scrambled petitioner’s memory
       to the point of unreliability. Petitioner has failed to carry his burden.

We interpret this order to mean that the trial court found petitioner to be lacking in

credibility. The evidence does not preponderate against the post-conviction court’s

finding of mendacious testimony. Thus, we AFFIRM the decision of the post-

conviction court dismissing the petition for post-conviction relief.




                                                 ___________________________
                                                 JOE G. RILEY, JUDGE



CONCUR:



___________________________
JERRY L. SMITH, JUDGE



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___________________________
NORMA McGEE OGLE, JUDGE




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