         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON          FILED
                      SEPTEMBER 1999 SESSION
                                                October 6, 1999

                                              Cecil Crowson, Jr.
                                             Appellate Court Clerk
VICTOR V. JORDON,               )
                                )    NO. 02C01-9710-CR-00409
      Appellant,                )
                                )    SHELBY COUNTY
VS.                             )
                                )    HON. JAMES C. BEASLEY JR.,
STATE OF TENNESSEE,             )    JUDGE
                                )
      Appellee.                 )    (Post-Conviction)



FOR THE APPELLANT:                   FOR THE APPELLEE:

PEGGIE SHORT-BOHANNON                PAUL G. SUMMERS
P.O. Box 3194                        Attorney General and Reporter
Memphis, TN 38173
                                     PATRICIA C. KUSSMANN
                                     Assistant Attorney General
                                     Cordell Hull Building, 2nd Floor
                                     425 Fifth Avenue North
                                     Nashville, TN 37243-0493

                                     WILLIAM L. GIBBONS
                                     District Attorney General

                                     PAULA WULFF
                                     Assistant District Attorney General
                                     201 Poplar Avenue, Suite 301
                                     Memphis, Tennessee 38103-1947




OPINION FILED:



AFFIRMED



JOE G. RILEY, JUDGE
                                      OPINION



       Petitioner appeals the denial of his petition for post-conviction relief.

Petitioner pled guilty to second degree murder. Pursuant to a plea agreement, the

trial court ordered petitioner to serve a sentence of fifteen years at 85% as a Range

I standard offender. Petitioner now alleges ineffective assistance of counsel and

argues that the plea was not voluntarily and knowingly entered. Upon a complete

review of the record, we conclude that the evidence does not preponderate against

the post-conviction court's findings that counsel was effective and the plea

voluntary. Thus, we AFFIRM the dismissal of the petition.




                           I. PROCEDURAL HISTORY



       Petitioner was charged with first degree murder. Attorney Brett Stein was

retained on petitioner's behalf at the General Sessions level and appointed by the

Criminal Court.

       On January 13, 1997, petitioner pled guilty to second degree murder

pursuant to a plea agreement. He was sentenced as a Range I standard offender

to fifteen years at 85%.

       On June 11, 1997, petitioner filed a pro se petition for post-conviction relief,

alleging the plea was neither knowing nor voluntary due to ineffective assistance of

counsel. The post-conviction court appointed counsel and subsequently conducted

an evidentiary hearing. It found the allegations to be without merit and entered an

order denying relief. This appeal followed.




                                II. BACKGROUND


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       On April 5, 1996, petitioner had an altercation with the victim at the

Whitehaven Community Center. Petitioner shot the victim three times with a .45

caliber pistol.



                                  A. Guilty Plea

       At the guilty plea hearing, petitioner acknowledged to the trial court that he

was agreeing to a Range I sentence of fifteen years. The court specifically advised

petitioner that he would be required to serve 85% of that sentence. Petitioner

acknowledged that he understood.

       The trial court advised the petitioner of his rights pursuant to Tenn. R. Crim.

P. 11. The petitioner indicated he understood the court's explanation of these

various rights.   Petitioner told the court his plea was voluntary and indicated

satisfaction with attorney Stein's representation.



                           B. Post-Conviction Hearing

                            1. Petitioner’s Testimony

       Petitioner testified at the post-conviction evidentiary hearing that attorney

Stein met with him only two times prior to the guilty plea. He testified that, on the

day trial was scheduled to begin, attorney Stein advised him to plead guilty to

second degree murder in exchange for the fifteen-year sentence. Petitioner claims

attorney Stein told him that, due to potential credits, he would be released in 4½ to

5½ years. He claims he wanted to go to trial, but attorney Stein was not prepared.

Petitioner maintains counsel failed to contact witnesses who could corroborate his

claim of self-defense. Petitioner testified that if attorney Stein had been prepared,

he would have chosen to go to trial. He also testified that if he had known he would

be required to serve 85% of his sentence, he would not have accepted the plea

agreement.



                         2. Attorney Stein's Testimony


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       Attorney Stein, the only other witness at the post-conviction hearing, testified

that he never advised petitioner he would be released within 4½ to 5½ years. He

was prepared to go to trial, and the witnesses petitioner wanted him to contact had

been subpoenaed to testify for the state. Attorney Stein further testified that he

suggested petitioner accept the state's offer of fifteen years for second degree

murder because a jury might reject the theory of self-defense.




                          III. STANDARDS OF REVIEW

                                A. Post-Conviction

       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 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 341 (Tenn. Crim.

App. 1995). 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). The burden of establishing that the evidence preponderates otherwise

is on petitioner. Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997).



                       B. Effective Assistance of Counsel

       This Court reviews a claim of ineffective assistance of counsel under the

standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner

has the burden to prove that (1) the attorney’s performance was deficient, and (2)

the deficient performance resulted in prejudice to the defendant so as to deprive

him of a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Goad v. State, 938

S.W.2d 363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994);

Butler, 789 S.W.2d at 899.

       In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the

Supreme Court applied the two-part Strickland standard to ineffective assistance of


                                          4
counsel claims arising out of a guilty plea. The Court in Hill modified the prejudice

requirement by requiring a defendant to 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. 474 U.S. at 59, 106 S.Ct. at 370; Hicks v. State, 983

S.W.2d 240, 246 (Tenn. Crim. App.1998).

       When a petitioner contends that trial counsel failed to discover, interview, or

present witnesses in support of his defense, these witnesses should be presented

by the petitioner at the evidentiary hearing. Black, 794 S.W.2d at 757; see also

Scott v. State, 936 S.W.2d 271, 273 (Tenn. Crim. App. 1996). As a general rule,

this is the only way the petitioner can establish that (a) a material witness existed

and the witness could have been discovered but for counsel’s neglect in the

investigation of the case; (b) a known witness was not interviewed; (c) the failure to

discover or interview a witness inured to his prejudice; or (d) the failure to have a

known witness present or call the witness to the stand resulted in the denial of

critical evidence which inured to the prejudice of the petitioner. Black, 794 S.W.2d

at 757. Neither the trial court nor this Court can speculate on what a witness’

testimony might have been if introduced by counsel. Id.




                                 IV. CONCLUSION



       The outcome of this post-conviction matter was primarily dependent upon

whether the post-conviction court believed the testimony of petitioner versus that of

his trial counsel. The post-conviction court accredited the testimony of trial counsel.

The post-conviction court’s order indicated that trial counsel had practiced law for

thirty-five years and described him as “one of the most experienced attorneys at the

criminal bar.” It further stated that “[trial counsel] is very conscientious about his

representation of clients in the eyes of potential post- conviction problems.” Finally,

the post-conviction court concluded:



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       [T]here was no proof offered that the witnesses petitioner wanted to
       call would have said anything to assist his defense... [P]etitioner
       freely, voluntarily, knowingly, and without threats or pressure entered
       a negotiated guilty plea, after receiving effective representation of
       counsel.


       Petitioner’s claim that trial counsel should have contacted witnesses to

corroborate his claim of self-defense is without merit. No such witnesses testified

at the post-conviction hearing. We can not speculate on what they would have said.

Black, 794 S.W.2d at 757.

       The evidence does not preponderate against the post-conviction court’s

findings. Thus, we AFFIRM the decision of the post-convicition court dismissing the

petition for post-conviction relief.




                                                        _______________________
                                                        JOE G. RILEY, JUDGE


CONCUR:


___________________________
DAVID G. HAYES, JUDGE




___________________________
THOMAS T. WOODALL, JUDGE




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