                                                      FILED
          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE
                                                      November 6, 1997
                         OCTOBER 1997 SESSION
                                                    Cecil W. Crowson
                                                   Appellate Court Clerk


JAMES D. LANE,               )
                             )    NO. 01C01-9611-CR-00468
      Appellant,             )
                             )    DAVIDSON COUNTY
VS.                          )
                             )    HON. THOMAS H. SHRIVER, JUDGE
                             )
STATE OF TENNESSEE,          )    (Post-Conviction)
                             )
      Appellee.              )




FOR THE APPELLANT:                FOR THE APPELLEE:

J. ROBIN MCKINNEY, JR.            JOHN KNOX WALKUP
214 2nd. Ave. N.                  Attorney General and Reporter
Suite 103
Nashville, TN 37201               ELIZABETH B. MARNEY
                                  Assistant Attorney General
                                  450 James Robertson Parkway
                                  Nashville, TN 37243-0493

                                  VICTOR S. JOHNSON, III
                                  District Attorney General

                                  PAMELA S. ANDERSON
                                  Assistant District Attorney General
                                  Washington Square, Suite 500
                                  222 2nd Ave. N.
                                  Nashville, TN 37201-1649




OPINION FILED:


AFFIRMED


JOE G. RILEY,
JUDGE
                                      OPINION



       The appellant, James D. Lane, appeals the dismissal of his petition for post-

conviction relief by the Davidson County Criminal Court.         At issue is whether

appellant’s prior guilty plea was knowingly and voluntarily entered, and whether

appellant was deprived of effective assistance of counsel. We affirm the judgment

of the trial court.



                             PROCEDURAL HISTORY



       On October 25, 1993, appellant pled guilty to two counts of simple robbery,

each a Class C felony. He was sentenced by agreement to three (3) years on each

count to be served consecutively on community corrections after an initial four (4)

months in the drug and alcohol program in the Corrections Corporation of America

institution. The effective sentence was six (6) years on community corrections. In

exchange, he was the beneficiary of dismissed charges to include one count of abuse

of an elderly person and one count of abuse of a child. After his incarceration for

violations of his community corrections sentence, appellant filed a petition for post-

conviction relief claiming his original attorney had failed to interview witnesses and

had used his mother’s influence to convince him to plead guilty to the original

charges. The trial court dismissed the petition after an evidentiary hearing.



                              STANDARD OF REVIEW



       The trial 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, 899-900 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 354 (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. Dixon v. State, 934 S.W.2d 69, 72 (Tenn.


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Crim. App. 1996). This Court may not reweigh or reevaluate the evidence, nor

substitute its inferences for those drawn by the trial judge. 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 credibility of witnesses and the

weight and value to be given to their testimony are resolved by the trial court, not this

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

evidence preponderates otherwise is on petitioner. Id.



                              POST-CONVICTION HEARING



       The transcript of the the post-conviction hearing reveals that trial counsel filed

a motion to withdraw the guilty plea on November 8, 1993, concurrent with his motion

to withdraw as counsel. The record shows that appellant decided not to seek

withdrawal of the guilty plea. Counsel testified that appellant acknowledged his

abandonment of the motion in open court. Appellant testified he could not recall.

       In the case before us, the trial court found the testimony of the attorney

credible and found the testimony of the appellant to be contradictory to past

proceedings. The trial court found that counsel’s performance met the standards of

Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). The trial court further found the guilty

plea was voluntarily entered. There is nothing in the record to preponderate against

the trial court’s findings.



                     ABSENCE OF GUILTY PLEA TRANSCRIPT



       We note that there was no transcript of the guilty plea proceeding admitted

into evidence at the post-conviction hearing, and there is no supplement to the

record. The trial judge relied on his memory and his standard procedure in taking

guilty pleas. We cannot review the memory of the trial court, and this deficiency

would generally hamper our ability to effectively review the record.          However,

appellant’s claim of undue influence by his mother causing him to plead guilty was



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negated by appellant’s post-conviction testimony when he admitted he pled guilty of

his own free will, that he could have pled “not guilty,” and that there were no threats

or promises made in exchange for his plea. His mother, who was also his victim in

one count of robbery, died prior to the post-conviction hearing.

       The Post-Conviction Procedures Act of 1995, specifically Tenn. Code Ann.

§ 40-30-208(b), does not expressly mandate that the district attorney general obtain

“records or transcripts, or parts of records or transcripts that are material to the

questions raised . . .”; rather it empowers the district attorney general to do so. The

filing of these records is now more permissive in that the district attorney general

“may file them with the responsive pleading or within a reasonable time thereafter.”

Id. (emphasis added). In the previous codification of this section, these were clearly

the mandatory responsibility of the district attorney general. See Tenn. Code Ann.

§ 40-30-114(b) (1990); Allen v. State, 854 S.W.2d 873, 875 (Tenn. 1993).

       Tenn. R. Sup. Ct. R. 28, § 6 specifically addresses the obligation for

procurement of material documentation. Within thirty days of filing of the petition, the

judge to whom the case is assigned must review the petition and all documents to

determine whether the petition states a colorable claim. In the event of a colorable

claim, the judge shall enter a preliminary order which:

       (a)    appoints counsel, if petitioner is indigent;
       (b)    sets a deadline for the filing of an amended complaint;
       (c)    directs disclosure by the state of all that is required to be
              disclosed under Rule 16 of the Tennessee Rules of
              Criminal Procedure, to the extent relevant to the grounds
              alleged in the petition, and any other disclosure required
              by the state or federal constitution;
       (d)    orders the state to respond and, if appropriate, to file with
              the clerk certain transcripts, exhibits, or records from the
              prior trial or hearing; and
       (e)    makes other orders as are necessary to the efficient
              management of the case.

Id. (emphasis added).

       The preliminary order herein failed to follow (d) above, and no transcript was

produced. However, as set out earlier in this opinion, the error was harmless due to

appellant’s post-conviction testimony which indicated that his plea was voluntarily

entered. See Hogan v. State, C.C.A. No. 01C01-9604-CC-0061, Dickson County

(Tenn. Crim. App. filed March 13, 1997, at Nashville).

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                                 CONCLUSION



     The judgment of the trial court is affirmed.




                                                    JOE G. RILEY, JUDGE




CONCUR:




JOE B. JONES, PRESIDING JUDGE




WILLIAM M. BARKER, JUDGE




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