                       IN THE COURT OF CRIMINAL APPEALS

                                AT NASHVILLE                  FILED
                              AUGUST 1997 SESSION
                                                              September 30, 1997

                                                           Cecil W. Crowson
                                                          Appellate Court Clerk
LORENZO C. WATERS                   )
                                    )     C.C.A. NO. 01C01-9609-CR-00402
       Appellant                    )
                                    )     DAVIDSON COUNTY
VS.                                 )
                                    )     Hon. Ann Lacy Johns
STATE OF TENNESSEE                  )     Judge
                                    )
       Appellee.                    )     (Post Conviction)




FOR THE APPELLANT:                        FOR THE APPELLEE:

W. CASEY REED                             JOHN KNOX WALKUP
211 Printers Alley Building               Attorney General and Reporter
Suite 400
Nashville, Tennessee 37201                DARYL J. BRAND
                                          Assistant Attorney General
                                          450 James Robertson Parkway
                                          Nashville, Tennessee 37243-0493

                                          VICTOR JOHNSON
                                          District Attorney General

                                          ROGER MOORE
                                          Assistant District Attorney General
                                          Washington Square Building-Suite 500
                                          222 Second Avenue, North
                                          Nashville, Tennessee 37201



OPINION FILED:_____________________


AFFIRMED




JOE H. WALKER, III
Sp. JUDGE
                                             OPINION


       The appellant, Lorenzo C. Waters, appeals as of right from a judgment of the trial court

denying his petition for post-conviction relief, following an evidentiary hearing. Appellant

alleges that he received ineffective assistant of counsel when he entered a plea of guilty to

murder in the second degree and received a sentence of forty years as a Range II offender.



                                        Procedural History



       Petitioner was indicted on charges of first degree murder and aggravated rape. An

assistant public defender was appointed to represent the petitioner. On May 27, 1994, the

petitioner entered a plea of guilty to second degree murder, on the negotiated agreement that he

would be sentenced as a Range II offender to forty years, and the State would move to dismiss

the aggravated rape charge.

       Within one year of entry of the plea, petitioner filed for post-conviction relief, alleging

ineffective assistance of counsel. Counsel was appointed to assist petitioner and filed an

amended petition for post-conviction relief.

       The trial court conducted an evidentiary hearing, and announced findings of fact and

conclusions. It determined that petitioner failed to carry the burden of proof with the respect to

allegations of ineffective assistance of counsel. It found from testimony presented at the hearing

that petitioner’s counsel fully investigated the matter, well represented the petitioner prior to the

entry of a plea, investigated the case, interviewed witnesses, and was diligent, effective and able

to negotiate a favorable plea settlement. The trial court further found that petitioner voluntarily

plead guilty to second degree murder and that the plea was intelligently and knowingly entered.



                                       Factual Background

       On October 2, 1993, police were called by the live-in boyfriend of the victim, Ms.

Stewart. The boyfriend had come home and found the nude body of Ms. Stewart. She had been

strangled and had multiple knife wounds. Witnesses placed the petitioner trying to break into the

apartment. The petitioner signed a written waiver of his rights and told officers what he had

done. Petitioner termed the multiple knife wounds and strangulation as overkill, because he
wanted to make certain the victim was dead when he left her. The victim was pregnant.



                                                  I.

       After petitioner was indicted on charges of first degree murder and aggravated rape, a

senior assistant public defender, Mike Engle, was appointed to represent petitioner. Attorney

Engle had been licensed to practice law in Tennessee for approximately twenty years and had

served several years in the Public Defender’s Office. He had handled numerous criminal cases,

including cases involving charges of first degree murders.

       Attorneys from the Public Defender’s Office met and discussed the facts of the case with

petitioner twenty-two times. Engle testified that they met with petitioner more frequently than

some other clients due to the seriousness of the case.

       The attorneys obtained full discovery from the state, including both the audio and video

tapes of petitioner’s statements, as well as the transcripts. Mr. Engle played the tapes for

petitioner, so that petitioner could review the tone and inflections of his statements as well as the

content. He discussed the statements with petitioner several times. At the preliminary hearing,

Attorney Engle was allowed to examine witnesses about the circumstances of the statements, and

after a thorough investigation and discussion, Attorney Engle concluded that there did not exist

sufficient legal or factual grounds for a motion to suppress the statements.

       Petitioner alleges that the attorneys failed to interview two potential witnesses. However,

Attorney Engle testified that the witnesses were interviewed and that the testimony would not

help the defense. One witness would have testified that he drove petitioner to the scene of the

crime at approximately the time the murder occurred. The other witness would have testified

that she spoke with petitioner after the murder, before he spoke to police, and told him that there

was street talk about his involvement in the murder.

       His attorneys explained to petitioner the potential exposure to conviction and the possible

punishments. Attorney Engle testified that petitioner appeared to understand. The attorneys

obtained petitioner’s consent to attempt plea bargain negotiations. They were able to secure a

plea bargain to second degree murder, rather than first degree, with the provision that the

aggravated rape charge would be dismissed. The transcript of the plea proceeding was made an

exhibit to the post-conviction petition hearing and reveals that when entering the plea of guilty,

petitioner assured the court that he fully understood the proceedings, that he was waiving his
right to a trial, waiving his right to appeal, and agreed to the plea arrangements. He further told

the court that he had had no problems communicating with his attorney and had no complaint

about the job that the attorney had done in this case.



                                                 II.

               On appeal, the trial court’s decision on a petition for post-conviction relief is

given the weight of a jury verdict, and the findings of fact are conclusive on appeal absent a

finding the evidence preponderates against the judgment. Clenny v. State, 576 S.W.2d 12, 14

(Tenn.Crim.App. 1978), cert. denied, 441 U.S.947, 99 S.Ct.2170 (1979); Taylor v. State, 875

S.W.2d 684, 686 (Tenn.Crim.App. 1993), perm. to appeal denied (Tenn. 1994).



       When a petition challenges the effective assistance of counsel, the petitioner has the

burden of establishing (1) deficient representation and (2) prejudice resulting from the deficiency.

Strickland v. Washington, 466 U.S. 668, 686 (1984); Fredrick v. State, 906 S.W.2d 927 (Tenn.

Crim. App. 1993).

       Deficient representation occurs when counsel provides assistance that falls below the

range of competence demanded of criminal defense attorneys. Bankston v. State, 815 S.W.2d

213, 215 (Tenn.Crim.App. 1991). Prejudice is the reasonable likelihood that, but for deficient

representation, the outcome of the proceeding would have been different. Overton v. State, 874

S.W.2d 6, 11 (Tenn. 1994).

       In order to prove prejudice in the context of a guilty plea, the 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, 58-59, 106 S.Ct.

366, 370, 88 L. Ed. 2d 203 (1985); see Bailey v. State, 924 S.W.2d 918, 919 (Tenn.Crim.App.

1995); Wade v. State, 914 S.W.2d 97, 101 (Tenn.Crim.App.1995).



                                                III.

       The petitioner has failed to establish that the evidence preponderates against the judgment

of the trial court. He did not establish that his representation was deficient, nor did he show

prejudice resulting from a deficient representation.

       We agree with the trial court that the petitioner’s claim of ineffective assistance of
counsel is without merit. Accordingly, we affirm the trial court’s judgment.



                                                            __________________________
                                                            JOE H. WALKER, III
                                                            Sp. JUDGE

CONCUR:

_______________________
JOE G. RILEY, JUDGE

______________________
J. CURWOOD WHITT, JR., JUDGE
