         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs February 14, 2006

           BRIAN MICHAEL NEWMAN v. STATE OF TENNESSEE

                   Direct Appeal from the Criminal Court for Knox County
                             No. 78179    Ray L. Jenkins, Judge



                      No. E2005-01967-CCA-R3-PC - Filed May 15, 2006


The petitioner, Brian Michael Newman, appeals the dismissal of his petition for post-conviction
relief in which he asserted various instances of ineffective assistance of counsel. A review of the
record supports the findings of the post-conviction court. We affirm the denial of the petition.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID H. WELLES and
THOMAS T. WOODALL, JJ., joined.

Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant, Brian Michael Newman.

Paul G. Summers, Attorney General and Reporter; Leslie Price, Assistant Attorney General; Randall
E. Nichols, District Attorney General; and Zane M. Scarlett and Patricia Cristil, Assistant District
Attorneys General, for the appellee, State of Tennessee.

                                             OPINION

                                   Facts and Procedural History

        On September 18, 2002, the petitioner entered pleas of guilty to aggravated sexual battery
and especially aggravated sexual exploitation of a child. Pursuant to the plea agreement, the trial
court sentenced the petitioner to an effective sentence of twelve years, as he received twelve years
on each charge with the sentences to run concurrently. On September 19, 2003, the petitioner filed
a pro se petition for post-conviction relief. Thereafter, the post-conviction court appointed counsel,
and an amended petition was filed. In the amended petition, the petitioner claimed that: (1) trial
counsel was ineffective in failing to adequately confer with the petitioner so as to properly inform
and advise him of the status of his case and of possible theories of defense and failing to interview
any of the witnesses on the indictment; and (2) his plea was not voluntarily or knowingly entered.1

        The post-conviction court held an evidentiary hearing on July 1, 2004, and after some
testimony by the petitioner, continued the matter for further hearing to obtain an interpreter for the
petitioner who is a United States citizen but is originally from Hungary. On June 9, 2005, the post-
conviction court held another hearing after it was determined that the petitioner did not require an
interpreter and thereafter denied relief. The petitioner now appeals to this Court contending that the
post-conviction court erred in failing to find ineffective assistance of trial counsel. Following our
review, we affirm the trial court’s denial of post-conviction relief.

        At the post-conviction hearing, trial counsel testified that he and the petitioner discussed the
case extensively. He further stated that he and the petitioner discussed, at length, the issue of the
victim’s age to ensure that he had a “handle on that.” He testified that he interviewed members of
the investigation team and filed a bill of particulars asking the court to order the State to provide him
with all possible information about the victim’s age so that he could determine whether the proof
would permit the State to prove their case. Moreover, trial counsel testified that the petitioner
admitted to intimacy and sexual contact with the victim before the child turned thirteen. He testified
that the petitioner acknowledged to him that he made unsuccessful efforts at intercourse with the
victim before she turned thirteen and that after she turned thirteen, he was successful in his attempts
at intercourse with her.

        On cross-examination, trial counsel testified that he had no trouble communicating with the
petitioner due to a language barrier. He further testified that the petitioner’s grammar and diction
were better than some of his clients born and raised in East Knoxville. He also testified that the
petitioner never told him that the child’s birth date was incorrect. Further, he testified that he did
not focus on the charge of Especially Aggravated Sexual Exploitation of a Minor because the
petitioner basically told him that the allegations were true as provided in the State’s discovery. He
turned his focus to when the acts occurred rather than on whether they occurred.

         The petitioner testified that he met with trial counsel for a total of only two hours. He further
testified that he was never provided any documents in the case and that trial counsel threatened him
with deportation if he did not plead guilty. Finally, he stated that he did not understand the charges
against him. On cross-examination, the petitioner testified that he sought to have the case transferred
to Hungary because he felt it was in his best interest to be tried under Hungarian moral standards
rather than American moral standards.

        At the conclusion of the hearing, the post-conviction court took the matter under advisement
and, by order entered July 29, 2005, dismissed the petition for relief. The court first found that the
petitioner did not carry the required burden of proof to a clear and convincing level. The court also


        1
            On appeal, the petitioner does not challenge the post-conviction court’s finding of a knowing and voluntary
plea.

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found that there was no proof that appointed counsel violated the standard of competence and that
the standards of Strickland v. Washington, 466 U.S. 668 (1984), were not alleged or proven. In
support, the court noted that trial counsel was credible in his testimony and, further, that he was in
a better position than the petitioner to recall the details of his representation.

                                              Analysis

        On appeal, the petitioner claims the following instances of ineffective assistance of counsel:
        (1) Failure to investigate the crucial fact of the correct age of the victim; and
        (2) Improper reliance on the discovery materials supplied by the state.
When a claim of ineffective assistance of counsel is made under the Sixth Amendment, the petitioner
bears the burden of proving (1) that counsel’s performance was deficient and (2) that the deficiency
was prejudicial in terms of rendering a reasonable probability that the result of the trial was
unreliable or the proceedings were fundamentally unfair. Strickland v. Washington, 466 U.S. at 687.
This standard has also been applied to the right to counsel under Article I, Section 9 of the Tennessee
Constitution. State v. Melson, 772 S.W.2d 417 n.2 (Tenn. 1989). When a petitioner claims
ineffective assistance of counsel in relation to a guilty plea, the petitioner must prove that counsel
performed deficiently and that, but for counsel’s errors, the petitioner would not have pled guilty but
would have instead insisted upon going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985).

       In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court required that the
services be rendered within the range of competence demanded of attorneys in criminal cases. In
reviewing counsel’s conduct, a “fair assessment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland,
466 U.S. at 689; see Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002).

        The petitioner bears the burden of proving by clear and convincing evidence the factual
allegations that would entitle the petitioner to relief. T.C.A. § 40-30-110(f) (2004). This court is
bound by the post-conviction court’s findings of fact unless the evidence preponderated against those
findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001).

       In the present case, the petitioner contends that trial counsel was ineffective by failing to
conduct an independent investigation into the actual age of the victim. Specifically, he avers that
he denied that the victim was under the age of thirteen at the time of the offenses. He further
contends that, because his counsel relied solely on the discovery materials provided by the state, he
could not effectively advise him as to the entry of a plea.

        However, the post-conviction court did not find that trial counsel’s actions amounted to
ineffective assistance. Rather, the court found that trial counsel was credible in his testimony that
the petitioner told counsel that the petitioner was sexually intimate with the victim while she was
under the age of thirteen. Further, the court found that trial counsel was in a better position to
remember his representation of the petitioner supported by the notes counsel relied on in testifying


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at the post-conviction hearing. Based on these findings, the post-conviction court held that trial
counsel’s reliance on the petitioner’s representations and the provided discovery materials as to the
actual age of the child in lieu of conducting an independent investigation did not amount to
ineffective assistance of counsel.

        Upon review of the record, we conclude that the evidence presented on appeal does not
preponderate against the findings of the post-conviction court. In sum, the petitioner has failed to
show by clear and convincing evidence that trial counsel’s failure to conduct an independent
investigation as to the age of the victim constituted deficient performance.

                                             Conclusion

          Based on the foregoing and the record as a whole, we affirm the denial of post-conviction
relief.




                                                       ___________________________________
                                                         JOHN EVERETT WILLIAMS, JUDGE




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