          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT NASHVILLE             FILED
                              AUGUST SESSION, 1998       September 23,1998

                                                         Cecil W. Crowson
                                                        Appellate Court Clerk
ARTH UR R . TUR NER ,                )   C.C.A. NO. 01C01-9707-CR-00274
                                     )
            Appe llant,              )
                                     )   DAVIDSON COUNTY
V.                                   )
                                     )
                                     )   HON. THOMAS H. SHRIVER, JUDGE
STATE OF TENNESSEE,                  )
                                     )
            Appellee.                )   (POST-CONVICTION)



FOR THE APPELLANT:                        FOR THE APPELLEE:

DAVID A. COLLINS                          JOHN KNOX WALKUP
211 Printers Alley Building               Attorney General & Reporter
Fourth Floor
Nashville, TN 37203                       TIMO THY F . BEHAN
                                          Assistant Attorney General
                                          2nd Floor, Cordell Hull Building
                                          425 Fifth Avenue North
                                          Nashville, TN 37243

                                          VICTO R S. JO HNS ON, III
                                          District Attorney General

                                          NICHOLAS A. BAILEY
                                          Assistant District Attorney General
                                          Washington Square
                                          222 Second Avenue North, Suite 500
                                          Nashville, TN 37201-1649




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                   OPINION

      The Petitioner, Arthur R. Turner, appeals as of right the trial court’s dismissal

of his petition of post-conviction relief. Petitioner raises the following two iss ues in

this appeal: (1) whether he received the effective assistance of counsel and (2)

whether it was plain error for the trial court to run his aggravated rape sentence

conse cutive to his other se ntence s. W e affirm the judgm ent of the tria l court.



      Defendant was indicted on four counts of aggravated rape, one count of

espe cially aggravated kidnapping, one count of aggravated robbery, and one count

of attempted aggravated rape.        Petitioner pled guilty to especially aggravated

kidnapping, aggravated robbery and two counts of aggravated rape. The sentences

were to run concu rrent, except for the rap e sentence s which were to run conse cutive

to each other for an effective sentence of forty years.



      The trial court, following the post-conviction hearing, summarized the facts as

follows:

             On March 15, 1995, Petitioner Anthony Turner
             approached [victim] at a fitness center near the Hermitage
             area, forced her into her ca r at gun point, took her to a
             nearby location in Davidso n County a nd raped h er.
             Petitioner then p laced [victim] in the trunk of the car, drove
             her to a location near the Rivergate area in Davidson
             Coun ty and raped her again. He subsequently placed
             [victim] back into the trunk and took a nap in her car. He
             awoke som etime the follo wing m orning and drove to
             McD onald ’s where he bought [victim] something to eat and
             permitted her to use the restroo m. Petitioner then put her
             back into the trunk and drove to his girlfrie nd’s h ouse in
             Smyrna. Wh ile he w as slee ping in side, [victim] escaped
             and contacted the police. Shortly thereafter, petitioner
             was arrested.



                                           -2-
         The trial cou rt furthe r found the follo wing in regard to Petitio ner’s tria l coun sel:

                [He] personally met with petitioner on eight or nine
                occasions and sp oke with him on the phone several times.
                He explained that the original offer of (50) years was
                negotiated down to forty (40). [Trial counsel] mentioned
                the possibility of a sentencing hearing to petitioner, but felt
                that such a hearing would not have been helpful. [Trial
                coun sel] added that petitioner did not want a trial, that the
                case was pa rticularly bad in that the activities continued
                over the course of a twelve (12) hour period, and that
                there was really no good solution for petitio ner. [C ouns el]
                did not rem emb er disc ussin g State v. Anthony, 817
                S.W .2d 299 (Te nn. 1991), with pe titioner.



                                   I. Assistance of Counsel


                Petitioner argues that he received ineffective assistance of counsel

because he was allowed to plead guilty to aggravated robbery an d esp ecially

aggravated kidnapping in violation of State v. Anthony, 817 S.W.2d 299 (Tenn.

1991).     He also argues that his trial counsel allowed him to p lead o utside his

sentencing range.



         In post-conviction proceedings, the petitioner bears the burden of proving the

allegations in his petition by a prep ondera nce of the evidenc e. See McBee v. State,

655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). This Court must give the findings of

the trial court the weight of a jury verdict, and the judgment of the trial court will not

be reversed unless the evidence contained in the record preponderates against the

findings of fact made by the trial court. State v. Buford , 666 S.W.2d 473, 475 (Tenn.

Crim. App. 1983). Our supreme court has held:

                If the transcript shows that the petition er was aware of his
                constitutional rights, he is not entitled to relief on the
                grounds that the mandated advice was not given. A lso, if
                all the proo f presen ted at the post-conviction hearing,
                including the transcript of the guilty plea hearing, shows

                                                -3-
              that the petitioner was aware of his constitutional rights, he
              is not entitled to relief.

Johns on v. State , 834 S.W .2d 922, 926 (Tenn. 199 2).



      In determining whether counsel provided effective assistance at trial, the court

must decid e whe ther co unse l’s perfo rman ce wa s within the range of competence

demanded of attorneys in criminal ca ses. Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975 ). To s ucce ed on a claim that his coun sel 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 fa ilure to

produc e a reliable result. Strickland v. Washington, 466 U.S . 668, 693 , 104 S. C t.

2052, 80 L. Ed . 2d 674 , reh’g denied, 467 U.S. 12 67 (1984); Coope r v. State, 849

S.W.2d 744, 74 7 (Ten n. 1993 ); Butler v. Sta te, 789 S.W.2d 898, 899 (Ten n. 1990).

To satisfy the second prong the petitioner must show a reason able pro bability that,

but for cou nsel’s unrea sona ble erro r, the fac t finder w ould h ave ha d reas onab le

doubt regardin g petitione r’s guilt. Strickland, 466 U.S . at 695. This reas onab le

probab ility must be “sufficient to undermine confidence in the outcome.” Harris v.

State, 875 S.W.2d 662, 665 (T enn. 19 94) (citation omitted) . In regard to guilty pleas,

the petitioner m ust estab lish a reas onable probab ility that, but for the errors of

coun sel, he wo uld not have entered into the plea. Adkins v. State, 911 S.W.2d 334,

349 (Ten n. Crim. App . 1994).



       When reviewing trial counsel’s actions, this Court shou ld not u se the bene fit

of hindsigh t to secon d-gues s trial strategy and criticize couns el’s tactics. Hellard v.

State, 629 S.W.2d 4, 9 (Te nn. 19 82). C ouns el’s alleg ed erro rs sho uld be judged at


                                            -4-
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.



       Petitioner claim s that th e robb ery in this case was incidental to the kidnapping.

In State v. Anthony, our supreme court explained the proper analysis for this issue

as “whether the confinement, movement, or detention is essentially incidental to the

accompanying felony and is not, therefore, sufficient to support a separate convictio n

for kidnapping, or whether it is significant enough, in and of itself, to warrant

independent prosecution and is, therefore, sufficient to suppo rt such a c onviction.”

817 S.W .2d at 306. T he Co urt wen t on to s ay that “ one m ethod of reso lving this

question is to ask w hethe r the de fenda nt’s conduct ‘substantially increased [the] risk

of harm over and above that ne cessarily presen t in the crime of robb ery itself.’” Id.

(citation om itted).



        Defendant also argues th at the kidnapp ing and robb ery charges should be

merged into the rap e. The T ennes see Su preme Court re cently held that “Anthony

and its progen y . . . are no t mea nt to pro vide the rapist a free kid napp ing m erely

because he also committed rape [footnote omitted]. The Anthony decisio n sho uld

only prevent the injustice which would occur if a defendant could be convicted of

kidnapping where the only res traint utilized w as that ne cessar y to complete the act

of rape or robbery. Accordingly, any restraint in addition to that which is necessary

to consummate rape or robbery m ay support a sepa rate con viction for kidn apping .”

State v. Dixon, 957 S.W .2d 534 -35 (Te nn. 199 7).



       In the case sub judice, Petitioner took the victim’s car by gunpoint. He then

forced her into the trunk of her own car, drove her aroun d, and raped her rep eated ly

                                            -5-
over a twelve hour period. The risk of harm to the victim beyond the robbery itself

was certainly increased as Defendant chose to lock the victim in the car trunk for

hours at a time, and the res traint ap plied to the victim went w ell beyond that which

was necessary to complete the rape or robbery. Clearly, these are all separate and

distinct crimes and they are not incide ntal to one anothe r in this case . Therefore,

we agree with the trial court’s finding that Petitioner’s trial counsel wa s not ineffective

for failing to make an Anthony challeng e.



       Petitioner also argues that his trial counsel was ineffective for allowing h im to

plead outside his sentencing range. Our review of the record indicates that he pled

within the range but ab ove the presumptive sentence. Petitioner does not challenge

the voluntariness of his plea. Therefore, since his plea was entered knowingly and

voluntarily, the sente nce is valid . Hicks v. S tate, 945 S.W.2d 706 (Tenn. 1997).

Furthermore, the trial judge noted in his order that had Petitioner gone to tria l and

been convicted he c ould have face d a sentenc e of fifty years on jus t partially

enhanced and co nsecu tively-run se ntence s. The trial judge went on to say that the

trial court could have even enhanced all the sentences and run them a ll

consecutively for a total of seven ty-five ye ars in confin eme nt. W ithout P etitione r’s

trial counsel having negotiated with the State, P etitioner would not likely ha ve

received the forty year sentence that he d id. W e find that P etitioner ha s failed to

present any evidence that shows that his attorney represented him in any other

mann er than c ompe tently.



                              II. Consecutive Sentencing




                                            -6-
      Petitioner argues that co nsecutive sentencing was illegal because the crime

spree was one continuing criminal episode. We agree with the trial court’s finding

that these were multiple crimes. In fact, each rape was a separa te crime . See State

v. Phillips, 924 S.W .2d 662 (Tenn . 1996). T hus, ther e is no pla in error.




                                  ____________________________________
                                  THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
JOHN H. PEAY, Judge


___________________________________
L.T. LAFFERTY, Special Judge




                                           -7-
