           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE

              STATE OF TENNESSEE v. DON ALLEN COLEMAN

                   Direct Appeal from the Criminal Court for Knox County
                             No. 67646    Ray L. Jenkins, Judge



                            No. E1999-02093-CCA-R3-PC - Decided
                                        May 19, 2000

Petitioner, Don Allen Coleman, appeals the denial of his petition for post-conviction relief.
Petitioner pled guilty to two counts of rape of a child. Pursuant to a plea agreement, the trial court
ordered him to serve two concurrent seventeen-year sentences. Petitioner now alleges ineffective
assistance of counsel and claims his plea was not voluntarily and knowingly entered. Upon a
complete review of the record, we conclude that counsel was effective and the plea was voluntary.
Thus, we affirm the dismissal of the petition.

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

RILEY, J., delivered the opinion of the court, in which WOODALL , J. and GLENN, J. joined.

Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant, Don Allen Coleman.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Kevin Allen, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION

                                         BACKGROUND

        Petitioner was indicted on two counts of child rape. The facts submitted at the guilty plea
hearing indicate that between April 1992 and April 1996, the petitioner orally assaulted and anally
raped the first victim. Petitioner assaulted the second victim between December 1996 and February
1997. He transported her to an abandoned trailer, forced her to the ground, and vaginally raped her.
Pursuant to a negotiated plea agreement, he pled guilty to both charges and received concurrent
seventeen-year sentences.

       At the post-conviction hearing, petitioner alleged the trial court failed to adequately advise
him of his constitutional rights. In addition, he argued that he did not vaginally rape his second
victim and did not wish to plead guilty to that charge. He testified that trial counsel only met with
him for three hours prior to his plea and alleged trial counsel failed to interview witnesses which
would exonerate him. He stated he was pressured into accepting the plea offer.

        The post-conviction court found trial counsel effectively represented the petitioner, and
petitioner was properly advised of his constitutional rights at the time of the guilty plea. This appeal
followed.


                                    STANDARD OF REVIEW

       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 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).


                                             ANALYSIS

        Petitioner claims the post-conviction court erred in dismissing his petition. He argues that
due to counsel’s ineffective representation and the trial court’s inadequate explanation of his rights,
he did not knowingly and voluntarily enter a guilty plea.

        First, the petitioner argues the trial court failed to advise him of his right to testify and his
right to proceed to trial. However, during the post-conviction hearing, the petitioner admitted the
trial court had informed him of his right to testify and proceed to trial. Furthermore, the record
reflects the trial court adequately explained these rights. This issue is without merit.

         Second, the petitioner asserts he only met with trial counsel for approximately three hours,
and trial counsel continuously failed to return his calls. He contends he informed counsel he wished
to enter a plea of guilty with regard to the charge involving the first victim, but wished to proceed
to trial on the charge involving the second victim. He claims counsel told him he would “gain no
advantage” in going to trial.

       Trial counsel testified that he briefly met with the petitioner following his arraignment. Trial
counsel also testified that he met with the petitioner in his office several times and spoke with him

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on the phone several times. In addition, he testified that after examining the evidence against the
petitioner with regard to the charge involving the second victim, he believed the petitioner would
be convicted. Trial counsel testified that he explained to the defendant that the state’s offer was for
the disposition of both charges. Therefore, if the petitioner chose to go to trial on the one charge,
the state would no longer be obligated to agree to the seventeen-year sentence on the charge for
which defendant wished to plead guilty. Therefore, petitioner could receive sentences in excess of
seventeen years on both charges. Trial counsel further testified that he advised the petitioner he
could receive consecutive sentences. Thus, he advised the petitioner to accept the state’s offer of
concurrent seventeen-year sentences.

       We conclude that trial counsel appropriately consulted with the petitioner and explained the
potential sentence he would face if he chose to proceed to trial on the second charge. The record
does not reveal any coercion by trial counsel. Rather, the record reflects that upon a considered
evaluation of his options, the petitioner voluntarily chose to enter a guilty plea on both charges.
Counsel was not deficient in any way.

       Finally, the petitioner contends trial counsel was remiss in failing to interview witnesses who
could exonerate him on the second charge. He argues that he gave trial counsel a list of witnesses
and provided their names and addresses, but trial counsel failed to contact them.

        This court has previously held that, “when a petitioner contends that trial counsel failed to
discover, interview, or present witnesses in support of his defense, these witnesses should be
presented by the petitioner at the evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn.
Crim. App. 1990); see also Scott v. State, 936 S.W.2d 271, 273 (Tenn. Crim. App. 1996). As a
general rule, this is the only way the petitioner can establish that a known witness was not
interviewed, and the failure to interview the witness caused him prejudice. Black, 794 S.W.2d at
757. Neither the trial court nor this Court can speculate on what a witness’ testimony might have
been if introduced by counsel. Id. Thus, there is no showing of prejudice since none of these
potential witnesses testified at the post-conviction hearing.

        In addition, counsel testified he tried to contact these witnesses and was unsuccessful.
Nevertheless, counsel stated his advice would have been the same even if these witnesses testified
as petitioner said they would. Under all the circumstances, counsel was not deficient.

                                          CONCLUSION

       We conclude trial counsel rendered effective representation, and the petitioner’s plea was
voluntarily and knowingly entered. The judgment of the trial court is affirmed.




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