        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE

                        JULY SESSION, 1999


TYRONE W. BELL,            )   C.C.A. NO. 03C01-9810-CR-00364
                           )
                                                              FILED
      Appe llant,          )                                August 24, 1999

                           )                               Cecil Crowson, Jr.
                           )   HAMILTON COUNTY             Appellate C ourt
                                                               Clerk
VS.                        )
                           )   HON. STEPHEN M. BEVIL,
STATE OF TENNESSEE,        )   JUDGE
                           )
      Appellee.            )   (Post-conviction)


                ON APPEAL FROM THE JUDGMENT OF THE
                CRIMINAL COURT OF HAMILTON COUNTY


FOR THE APPELLANT:             FOR THE APPELLEE:

MIKE A. LITTLE                 PAUL G. SUMMERS
701 Cherry Street              District Attorney General
Chattanooga, TN 37402
                               TODD R. KELLEY
                               Assistant District Attorney General
                               425 Fifth Avenu e North
                               Nashville, TN 37243

                               BILL COX
                               District Attorney General

                               MARK HOOTON
                               Assistant District Attorney General
                               600 Market Street - Courts Building
                               Chattanooga, TN 37402



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                    OPINION

       The Defe ndan t, Tyron e W . Bell, ap peals from the denial of post-conviction

relief by the Hamilton County Criminal Court. Defendant argues that his gu ilty

plea was not voluntary and intelligent due to the ineffective assistance of counsel

prior to the plea. He pleaded guilty to aggravated sexual battery and aggravated

burglary. Pursua nt to the plea agreement, he received sentences of twelve years

at eighty-five percent for the sexual battery and three years for burglary, to be

served c oncurre ntly.



       In this appeal, Defendant argues (1) that the offenses occurred prior to the

effective date of the statutory change mandating that a defendant convicted of

aggravated sexual battery serve eighty-five percent of his sentence; (2) that his

counsel erroneously negotiated the plea agreement as if Defendant w ould have

been required to serve eighty-five percent of any sentence imposed; (3) that at

that time, Defendant would have been classified as a Range I standard offender

for sentencing purposes, which would have required him to mandatorily serve

only thirty percen t of his sen tence; an d (4) but for counsel’s error, Defendant

would not have pleaded guilty to a sentence to be served at eighty-five percent

and w ould h ave go ne to tria l.



       W e agree with the conclusion of the trial court that Defendant was not

denied the effective assistance of couns el and tha t his guilty plea was bo th

voluntary and intelligent. Therefore, we affirm the trial court’s denial of p ost-

conviction relief.



                                         -2-
      To determ ine whe ther cou nsel prov ided effective assistance at trial, the

court mus t decid e whe ther co unse l’s performance was within the range of

competence dema nded o f attorneys in crimina l cases. Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975). To succeed on a claim that his counsel was

ineffective at trial, a petitioner bears the burden of showing that his counsel made

errors so serious that he was not functioning as counsel as guaranteed under the

Sixth Amendment and that the deficient representation prejudiced the petitioner,

resulting in a failure to produce a reliable res ult. Strickland v. Washington, 466

U.S. 668, 68 7 (1984 ); Coop er v. State , 849 S.W.2d 744, 747 (Tenn. 1993); Butler

v. State, 789 S.W.2d 898, 899 (T enn. 1990). To satisfy the second prong the

petitioner must sh ow a rea sonab le proba bility that, but for counsel’s

unrea sona ble error, the fact finder would have had reasonable doubt regarding

petition er’s guilt. Strickland, 466 U.S. at 695. T his reaso nable p robability must

be “sufficient to undermine confidence in the outcom e.” Harris v. S tate, 875

S.W .2d 662, 665 (Tenn. 199 4).



      This two-part standard of measuring ineffective assistance of counsel also

applies to claims arising out of the plea proces s. Hill v. Lockhart, 474 U.S. 52

(1985). The prejudice requirement is modified so that the petitioner “must show

that there is a reaso nable proba bility that, but for counsel’s errors he wo uld not

have pleade d guilty and wou ld have insisted on going to trial.” Id. at 59.



      When reviewing trial counsel’s actions, this Court should not use the

bene fit of hindsight to second-guess trial strategy and criticize counsel’s tactics.

Hellard v. State, 629 S.W .2d 4, 9 (Ten n. 1982). Co unsel’s alleged e rrors shou ld




                                         -3-
be judged at the time they were made in light of all facts and circumstances.

Strickland, 466 U.S . at 690; see Cooper 849 S.W.2d at 746.



      If afforde d a po st-con viction e videntiary hearing by the trial co urt, a

petitioner must do more than merely present evidence tending to show

incompetent representation and prejudice; he must prove the factual allegations

by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). When an

evidentiary hearing is held, findings of fact made by that court are conclusive and

binding on this Court unless the evidenc e prepo nderate s agains t them. Cooper,

849 S.W.2d at 746 (citing Butler, 789 S.W .2d at 899).



      The “core requirement” of federal constitutional law regarding the validity

of guilty ple as is that “no guilty plea be accepted without an affirmative showing

that it was intelligent and volun tary.” Fontaine v. United States, 526 F.2d 514,

516 (6th Cir. 1975) (citing Boykin v. Alabama, 395 U.S . 238 (19 69)). In its

exhaustive and comprehensive evaluation of the requirements for a voluntary,

intelligent plea of guilt, the Tennessee Supreme Court stated,

      [A] court cha rged with determ ining whe ther . . . pleas were
      “voluntary” and “intelligent” must look to various circumstantial
      factors, such as the re lative intelligence of the defendant; the degree
      of his familiarity with criminal proceedings; whether he was
      represented by competent counsel and had the opportunity to confer
      with counsel about the options available to him; the extent of advice
      from counsel and the court concerning the charges against him; and
      the reason s for his de cision to ple ad guilty, inclu ding a de sire to
      avoid a greate r pena lty that m ight res ult from a jury tria l.

Blank ensh ip v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (citing Caudill v. Jago,

747 F.2 d 1046 , 1052 (6 th Cir. 198 4)).




                                            -4-
       In the case at bar, Defen dant testified he kne w that he was plea ding gu ilty

to a recom mend ed sen tence o f twelve yea rs to be se rved at eig hty-five perc ent,

but he did not know—and his counsel should have informed him—that the

change in law requiring a co nvicted offender to s erve eighty-five percent of the

sentence did not apply to his offense because it was committed prior to the

effective date of the change. Defendant conte nds th at cou nsel e rrone ously

attested before the court that the eighty- five per cent re quirem ent did in fact a pply

to Defendant’s case. The transcript of the guilty plea h earing re flects that when

asked whether the change in the law applied to Defendant’s case, his counsel

replied in the affirmative.



       Howeve r, at the po st-con viction e videntia ry hea ring, D efend ant’s coun sel,

Attorney Hallie McFadden, testified that both she and the prosecuting attorney

knew that the chan ge in the law requirin g eigh ty-five pe rcent s ervice d id not a pply

to Defendant’s case. She stated that eighty-five percent service of sentence was

a part of the plea offer by the State an d that after c onsultatio n with De fendan t,

they chose to accept that offer as being in Defen dant’s be st interest. McFadden

testified she discussed with Defendant that the eighty-five percent service was

not require d by law , but by th e State ’s plea offer. She explained that she had not

paid close attention at the plea hearing when she informed the judge that

Defendant was required to serve eighty-five percent of the sentence “per the

statute” rather than “p er the p lea ag reem ent.” A know ing an d volun tary gu ilty

plea genera lly waives an y irregularity as to release eligibility. Hicks v. State, 945

S.W .2d 706, 709 (Tenn. 199 7).




                                           -5-
       McFadden also testified that the parties originally believed Defendant had

not penetrated the young victim during the offense; but prior to the plea

agreem ent, investigatio ns revea led that the victim had c ontrac ted a s exually

transmitted disease carried by D efend ant— indica ting stro ngly tha t Defe ndan t did

penetra te the victim. Furthermore, the record demonstrates that, in exchange for

Defe ndan t’s guilty plea to aggravated sexual battery and aggravated burglary, the

State dism issed seven coun ts of es pecia lly aggravated burglary, one count of

theft, one c ount of ag gravated burglary, a nd one count of e vading a rrest.



       In light of the evidence pres ented at the po st-conviction eviden tiary

hearing, we conclud e both (1) that D efendant did n ot suffer the ineffective

assistance of counsel, and (2) that his guilty plea was volunta rily and in telligen tly

delivered . We therefore affirm the d enial of po st-convictio n relief.




                                   ____________________________________
                                   DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
GARY R. WADE, PRESIDING JUDGE


___________________________________
JOE G. RILEY, JUDGE




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