         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs November 8, 2000

         STATE OF TENNESSEE v. DEMARIO QUENTIZ JACKSON

                      Appeal from the Circuit Court for Madison County
                           No. C-98-213     Joe C. Morris, Judge



                                  No. W2000-01421-CCA-R3-PC
                                     Filed December 27, 2000


The Defendant pleaded guilty to two counts of rape of a child. Pursuant to a plea agreement, he was
sentenced to two concurrent prison terms of fifteen years, to be served at one hundred percent. The
Defendant complains in this post-conviction proceeding that he received ineffective assistance of
counsel in conjunction with his plea, resulting in a plea that was not knowingly, intelligently or
voluntarily entered. The trial court denied relief. We affirm the judgment of the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JAMES
CURWOOD WITT, JR., JJ., joined.

Pamela J. Drewery, Jackson, Tennessee, for the appellant, Demario Quentez Jackson.

Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General;
Jerry Woodall, District Attorney General; and Al Earls, Assistant District Attorney General, for the
appellee, State of Tennessee.

                                              OPINION

         The Defendant, Demario Quentez Jackson, was indicted for two counts of rape of a child.
He pleaded guilty to both counts as charged and was sentenced pursuant to a plea agreement to
fifteen years on each count, to be served concurrently. The Defendant was sentenced as a Range I,
standard offender but is serving the sentences at one hundred percent pursuant to statute. See Tenn.
Code Ann. §§ 39-13-523(c), 40-35-501(i). The Defendant filed for post-conviction relief alleging
that he received ineffective assistance of counsel and, as a result, did not knowingly, intelligently or
voluntarily enter his guilty plea. After a hearing the trial court denied relief, finding that the
Defendant had not met his burden of proving that his counsel had been ineffective or that his guilty
plea was invalid. The Defendant now appeals, arguing that his trial counsel was ineffective “in
allowing [him] to plead guilty to the sentence” and that his guilty plea was not entered knowingly,
voluntarily or intelligently as a result of his lawyer’s ineffectiveness. Upon our review of the record
and relevant legal authority, we affirm the judgment of the trial court.

       In post-conviction proceedings the Defendant has the burden of proving his or her allegations
“by clear and convincing evidence.” Tenn. Code Ann. § 40-30-210(f). Here, the gist of the
Defendant’s complaint about his attorney is that she did not inform him that he would have to serve
his sentences at one hundred percent; that is, that he would not be eligible for early release.
However, the post-conviction trial court found that

                [t]he proof clearly demonstrates that the defendant was advised of all
                rights both in the motion to accept his guilty plea and that he was
                advised of the sentence and that he would have to serve 100% of that
                sentence. It is further clear from the transcript that the defendant was
                advised by the [sentencing] Court during the plea hearing that he
                would [be] sentenced as a 100% offender.

These findings of fact are conclusive on appeal unless the evidence preponderates to the contrary.
See Netters v. State, 957 S.W.2d 844, 847 (Tenn. Crim. App. 1997). It is the Defendant’s burden
to illustrate to this Court how the evidence preponderates against the post-conviction court’s
judgment. See Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).

         The Defendant has failed to demonstrate that the evidence in this case preponderates against
the trial court’s findings. At the guilty plea hearing, a transcript of which is included in the record,
the trial court twice informed the Defendant that he was being sentenced as a one hundred percent
offender on both cases. The Defendant testified at the plea hearing that he understood his plea
bargain; that he had no questions about his plea; and that he was satisfied with his attorney. The
Defendant signed his plea of guilty, on which was set forth “15 years to serve in Tennessee
Department of Correction, 100% offender on each case.” At no point during the plea hearing did
the Defendant raise any questions about his eligibility for early release or how much time he would
actually have to serve.

         The Defendant testified at his post-conviction hearing that he had been “misled on both
cases;” that he had not understood how much time he would have to serve; and that he had been
“unaware of what 100 percent really meant.” He explained “15 years at 100 percent, for a young
man, is hard to do. . . . [A]ll I’m asking is if it is possible, that I could get an easier percentage.” He
testified that he did not want a new trial, stating that if he did “take the trial, [he’s] still stuck.” He
further testified that he had pled guilty “[o]nly because it was stated to [him] that [he] was already,
you know -- there was no way [he] could beat the case anyway.”

        When a Defendant complains that he received ineffective assistance of counsel in
conjunction with entering a guilty plea, he bears the burden of showing that his counsel made errors
so serious that he or she was not functioning as counsel as guaranteed under the Sixth Amendment
to the United States Constitution. Strickland v. Washington, 466 U.S. 668, 687 (1984); Cooper v.


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State, 849 S.W.2d 744, 747 (Tenn. 1993). He must further 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.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).

        The Defendant in this case failed to prove by clear and convincing evidence either of the
prongs necessary to demonstrate ineffective assistance of counsel. Moreover, even if trial counsel
failed to correctly inform the Defendant about how much time he was going to have to serve, his
testimony indicates that he pled guilty not based on the amount of time he thought he was going to
spend in prison, but because he thought he would be unable to prevail at trial.1 The Defendant has
likewise failed to prove that he did not enter his guilty plea voluntarily, intelligently and knowingly.
The judgment of the trial court is therefore affirmed.




                                                                   ___________________________________
                                                                   DAVID H. WELLES, JUDGE




         1
          Had the Defend ant been fou nd guilty after a jury trial, he wo uld have been subject to a sentence range of fifteen
to twenty-five years. See Tenn. Code Ann. §§ 39-13 -522(b), 40-35-112(a)(1).

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