         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE             FILED
                           JULY 1999 SESSION
                                                        October 13, 1999

                                                      Cecil Crowson, Jr.
                                                     Appellate Court Clerk
WILLIAM H. HORTON,                *   C.C.A. # 01C01-9704-CR-00132

            Appellant,            *   DAVIDSON COUNTY

VS.                               *   Honorable Seth Norman, Judge

STATE OF TENNESSEE,               *   (Post-Conviction Relief Denied)

            Appellee.             *



FOR THE APPELLANT:                    FOR THE APPELLEE:

MICHAEL J. FLANAGAN                   PAUL G. SUMMERS
95 White Bridge Road, Suite 208       Attorney General & Reporter
Nashville, TN 37205
                                      ELIZABETH T. RYAN
                                      425 Fifth Avenue North
                                      Nashville, TN 37243

                                      VICTOR S. (TORRY) JOHNSON III
                                      District Attorney General

                                      JOHN C. ZIMMERMAN
                                      Assistant District Attorney
                                      Washington Square
                                      222 Second Avenue North
                                      Nashville, TN 37201




OPINION FILED: _______________



AFFIRMED



JOHN EVERETT WILLIAMS,
Judge
                                     OPINION

        The petitioner, William H. Horton, appeals the trial court’s denial of his

petition for post-conviction relief. The petitioner contends that he received

ineffective assistance of counsel at trial and on direct appeal, as well as

prosecutorial misconduct. After careful review, we AFFIRM the judgment of the

trial court.



                                Procedural History

        On November 10, 1992, a Davidson County jury convicted the petitioner

of possession for resale of over 26 grams of cocaine. He was sentenced to the

Department of Correction for 21 years as a Range III persistent offender. His

direct appeal from that conviction and sentence was affirmed. See State v.

William Howard Horton, Davidson County, No. 01C01-9312-CR-00435 (Tenn.

Crim. App., filed October 6, 1994), app. perm. appeal denied January 30, 1995.

On August 4, 1995, the petitioner filed this pro se petition. After appointment of

counsel, an amended uncounseled petition, two judge’s recusals, and two

hearings, the final order from which this appeal is taken was entered September

9, 1998.



                                   BACKGROUND

        Dennis Hughes represented the petitioner on the charges which are the

basis of this appeal. The post-conviction court considered all pleadings filed by

petitioner’s counsel, the trial transcript with the exhibits, the transcript from the

January 24, 1996 post-conviction evidentiary hearing, and the testimony

presented on September 9, 1998, in reaching its judgment. The witnesses

testifying at both hearings were the petitioner; Dennis Hughes, the petitioner’s

attorney; John Zimmerman, prosecuting attorney; and Terry J. Canady,

appointed counsel for petitioner’s direct appeal. In its judgment, the trial court

made several pertinent findings:

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       1. Dennis Hughes was retained counsel for the petitioner at all
          times pertinent to the issue of ineffective assistance of counsel,
          both at trial and on appeal.

       2. The state offered the defendant an offer of an eight (8) year
             sentence if the defendant would plead guilty on the first
             settlement day prior to trial.

       3. That offer could not be accepted by the defendant because he
          had voluntarily left the courthouse.

       4. The petitioner did not wish to accept any offer made by the
          state and wished to force the state to try him.

       5. The petitioner apparently had some belief that the informant
          necessary to the state’s case would not show up for trial.

       6. The petitioner’s trial counsel did everything he could to see that
          the petitioner received the most favorable plea bargain
          arrangement, yet he did not get the cooperation necessary from
          his client.

       7. The petitioner was well aware of the plea bargain offer, possibly
          even prior to leaving the courthouse when it was originally
          made, but regardless of whether the defendant was aware of
          the offer prior to leaving the courthouse, the record is clear that
          the petitioner was well aware of the offer and of subsequent
          offers and rejected all of them.




                                     ANALYSIS

       The trial judge’s findings of fact on post-conviction hearings are

conclusive on appeal unless the evidence preponderates otherwise. See 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 trial court’s findings of fact are afforded the

weight of a jury verdict, and this Court is bound by the trial court’s findings unless

the evidence in the record preponderates against those findings. See 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). This Court may not reweigh or reevaluate the evidence, nor substitute its

inferences for those drawn by the trial judge. See 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). Questions concerning the


                                         -3-
credibility of witnesses and the weight and value to be given to their testimony

are resolved by the trial court, not this Court. See Henley, 960 S.W.2d at 579;

Black, 794 S.W.2d at 755. The burden of establishing that the evidence

preponderates otherwise is on the petitioner. See Henley, 960 S.W.2d at 579;

Black, 794 S.W.2d at 755.



          Having reviewed the record, we conclude that the evidence does not

preponderate against the findings of the trial court. The trial court’s findings are

consistent with the testimony of Dennis Hughes and the prosecuting attorney.

The petitioner has failed to demonstrate otherwise. Therefore, we deny the

petitioner’s claims of ineffective assistance and prosecutorial misconduct.



                                    CONCLUSION

          Accordingly, we AFFIRM the trial court’s order denying post-conviction

relief.




                                           _____________________________
                                           JOHN EVERETT W ILLIAMS, Judge

CONCUR:




______________________________
JOSEPH M. TIPTON, Judge




_______________________________
JAMES CURWOOD WITT, JR., Judge




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