           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE              FILED
                         NOVEMBER 1997 SESSION            January 9, 1998

                                                       Cecil W. Crowson
                                                      Appellate Court Clerk

FREDERICK A. AVERY,              )
                                 )    C.C.A. NO. 01C01-9704-CR-00128
           Appellan t,           )
                                 )    DAVIDSON COUNTY
VS.                              )
                                 )    HON. CHERYL BLACKBURN,
STATE OF TENNESSEE,              )    JUDGE
                                 )
           Appellee.             )    (Post-conviction)




FOR THE APPELLANT:                    FOR THE APPELLEE:


MARK J. FISHBURN                      JOHN KNOX WALKUP
100 Thompson Lane                     Attorney General & Reporter
Nashville, TN 37211
                                      CLINTON J. MORGAN
                                      Counse l for the State
                                      425 Fifth Ave. N.
                                      2nd F loor, Co rdell H ull Bldg .
                                      Nashville, TN 37243-0493

                                      VICTO R S. JOHN SON, III
                                      District Attorney General

                                      ROGER MOORE
                                      Asst. District Attorney General
                                      500 Washington Sq.
                                      222 2nd Ave. N.
                                      Nashville, TN 37201




OPINION FILED:____________________




AFFIRMED


JOHN H. PEAY,
Judge
                                               OPINION



                  The petitioner filed for po st-conviction relief on A pril 20, 1994; an amended

petition was filed on November 15, 1995. In response to charges o f felony murder,

aggravated robbery, robbery, attempt to commit robbery, aggravated burglary, theft of

property and aggravated assault, the petitioner pled guilty on August 13, 1993, to second-

degree murder and to robbery. As part of the plea-bargain, the remaining charges we re

dismissed and he was sentenced to twenty-five years as a Range I standard offender on the

murder charge and to a consecutive term of ten years as a Range II multiple offender on the

robbery charge. The petitioner contends that his guilty pleas were the result of ineffective

assistance of counsel and the refore not voluntarily, knowingly and intelligently made.

After an evidentiary hearing, the court below denied relief. We affirm.




                  In this post-conviction proceeding, the petitioner has the burden of proving

the allegations in his petition by a preponderance of the evidence.1 McB ee v. State, 655

S.W.2d 191, 195 (Tenn. Crim. App. 1983). The trial court's findings of fact are afforded

the weight of a jury verd ict, Summ erlin v. State, 607 S.W.2d 495, 497 (Tenn. Crim. App.

1980), and this C ourt will not set aside the lower court's ruling unless the evidence

contained in the record prepon derates agains t its findin gs. Janow v . State, 470 S.W.2d 19,

21 (Tenn. Crim . App. 1971).




                  In attacking the validity of a guilty plea on the basis of ineffective assistance


         1
          For post-conviction petitions filed after May 10, 1995, the burden of proof on a petitioner is that he or
she prove his or her allegations by “clear and convincing evidence.” See T.C.A. § 40-30-210(f) (1997).

                                                          2
of counsel, a petitioner must demonstrate “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).                  A “reasonab le probability” is “a

probability sufficient to undermine co nfid ence in the outcom e, tha t, but for the co unse l's

unprofessional errors, the results of the proceeding would have been d ifferen t.” Dixon v.

State, 934 S.W.2d 6 9, 72 (Tenn. Crim. App. 199 6) citing Strickland v. Washington, 466

U.S. 668, 694 (1984). Th is Court will not use the benefit of hindsight to second-guess

counsel's strategy or to criticize couns el's tactics . Hellard v. S tate, 629 S.W.2d 4, 9 (Tenn.

1982).




                     The petitioner contends that his fourth trial lawyer2 was ineffective in failing

to investigate the case adequately, failing to pursue a motion to suppress his statement, and

failing to advise him properly as to the sentences. In his brief, he asserts that “Because trial

counsel failed to adequately represent him, . . . he could not make an informed and

intelligent decision w hether to exercise his constitutional right to a trial by jury and,

therefore, the pleas of guilty which he entered were not knowingly and voluntarily done,

but we re the re sult of c onstruc tive coe rcion an d intimid ation.”




                     After hearing the petitioner's testimony as well as that of his lawyer, and after

reviewing the transcript of the guilty plea which was introduced into evidence, the court

below found as follows:

                     The transcript of the guilty plea clearly show s that the [trial]
                     court engaged in a long ser ies of ques tions to the petitioner
                     regarding his understanding of his rights and voluntary

          2
              Three other lawyers had previously been appointed the petitioner and each was allowed to withdraw.

                                                           3
              relinquishment of those rights.

              The petitioner testified that he was not knowledgeable about
              the criminal process and answered the Judge's questions
              according to the instructions of h is atto rney, a nd th at he always
              wanted to go to trial in this case. The guilty plea transcript and
              the petitioner's criminal history contradict petitioner's claim.

              [Petition er's attorney] testified that once the petitioner
              understood the elements of felony murder, he willingly entered
              into the plea discussions and was interested in obtaining the
              <best de al he co uld.'

              Based on the testim ony, the exhib its introduced at the hearing
              and the observations of the witnesses, the petitioner's claims
              are not credible. The pleas were not the result of coercion and
              intimidation.

              The petitioner has not carried his burden regarding this issue.
              The plea was, in fact, entered knowingly, voluntarily and
              intel ligen tly.

The evidence does not preponderate against these findings and conclus ions by the court

below. T his issue is w ithout merit.




              With respect to evaluating the petitioner's lawyer's performance, the cou rt

below found as follows:

              [Petition er's lawyer] testified . . . that he attemp ted to locate a
              witness to the murder[,] <Mr. Livin gston[,]' but w as unable to
              locate him. [Petitioner's lawyer] did not file a motion to
              suppress the [petitioner's] statement because one had
              previously been f iled by on e of the predec essor att orneys, a
              hearing had been held and the statement had been found to be
              admissible. [Petition er's a ttorn ey] obtained a ll the previou sly
              filed discovery information from the court files. [He] stated he
              discussed the petitioner's self[-]defense theory with him at
              length and felt that the facts would not support such a claim.
              According to [petitioner's attorney], once the petitioner
              understood the charge of felony m urder, the petitioner was
              interested in getting the best deal he could obtain from the
              Assistant District Attorney General. [Petitioner's attorn ey]
              discussed the waiver of the R ange II Offen der status in the

                                               4
               robbery charge with the petitioner as well as the consecutive
               sentencing aspects of the plea.

               The Court finds that the petitioner was well represented by [his
               attorney], whose services were within the range of competence
               demanded of attorneys in criminal cases.

Again, the evidence does not preponderate against the lower court's findings. This issue

is also witho ut merit.




               The ju dgme nt below is affirm ed.




                                                    ________________________________
                                                    JOHN H. PEAY , Judge




CONCUR:




_______________________________
JOSEPH M. TIPTON , Judge




_______________________________
DAVID H. WE LLES, Judge




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