             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE                 FILED
                           JUNE 1997 SESSION
                                                             July 29, 1997

                                                          Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk
FRANK E. TEASLEY,            )
                             )
             Appellant,      )    No. 03C01-9611-CR-00441
                             )
                             )     Knox County
v.                           )
                             )     Honorable Ray L. Jenkins, Judge
                             )
STATE OF TENNESSEE,          )     (Post-Conviction)
                             )
             Appellee.       )


For the Appellant:                For the Appellee:

Albert J. Newman, Jr.             Charles W. Burson
Burwell Bldg., Suite 500          Attorney General of Tennessee
602 South Gay Street                     and
Knoxville, TN 37902               Marvin E. Clements, Jr.
                                  Assistant Attorney General of Tennessee
                                  450 James Robertson Parkway
                                  Nashville, TN 37243-0493

                                  Randall E. Nichols
                                  District Attorney General
                                          and
                                  Zane Scarlett
                                  Assistant District Attorney General
                                  City-County Building
                                  Knoxville, TN 37902




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                       OPINION



              The petitioner, Frank E. Teasley, appeals as of right from the denial of his

petition for post-conviction relief by the Criminal Court for Knox County. He is presently

serving an effective sentence of forty-eight years in the custody of the Department of

Correction for his 1992 convictions based upon guilty pleas for two counts of rape,

aggravated kidnapping and robbery. His sole issue on appeal is whether the trial court

erred in finding that he received the effective assistance of counsel. We conclude that

the trial court was correct.



              The petitioner was originally indicted in March 1992 for two counts of

aggravated rape, especially aggravated kidnapping, and aggravated robbery. He was

appointed various counsel during the course of the case, but was represented by two

assistant public defenders at the time of his guilty pleas. On the morning of trial, the

parties agreed for the petitioner to plead guilty to offenses that were one lower class

than those charged in the indictment and for the trial court to set the sentences. A third

assistant public defender represented the petitioner at the sentencing hearing. The

petitioner appealed the sentences imposed, but this court affirmed the sentences.

State v. Frank E. Teasley, No.03C01-9303-CR-00099, Knox County (Tenn. Crim. App.

Nov. 23, 1993).



              At the post-conviction evidentiary hearing, the petitioner testified that he

only met with his trial attorney, Steven Garrett, on the morning that he ultimately pled

guilty. He said that Mr. Garrett told him that if he did not enter a plea, he would get forty

to fifty years, but that if he pled, he would get a sixteen to eighteen-year sentence with

everything running concurrently. He also testified that he notified his attorney before

the sentencing hearing that he wanted to withdraw his plea, but was told that he could

not do so.



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              The petitioner acknowledged that Mr. Garrett obtained a mental

evaluation for him, but he claimed that he was not properly evaluated. Also, he said

that Mr. Garrett never talked to him about any possible strategy and did not do any “on-

the-street” investigation. The petitioner testified that at the time of the offenses, he was

under the influence of drugs and alcohol to the point that he did not know what he did,

but Mr. Garrett did not pursue the claim. He acknowledged that he did not tell the

attorney of any witnesses, but he thought the attorney would investigate the case

himself.



              Relative to his sentencing hearing, the petitioner testified that his

successor attorney, Scott Carpenter, again told him that he would receive sixteen to

eighteen years. He also said that Mr. Carpenter did not tell him that the victim would

appear at the sentencing hearing and did not advise him that he would be asked to

testify, as well. The petitioner also said that he had a lengthy prior record, but he did

not have a prior history of violence. Ultimately, he stated that he pled guilty because

the attorneys said he would get sixteen to eighteen years and he was afraid of more

time.



              Mr. Garrett testified that the petitioner was originally represented by local

attorneys from the Tennessee Valley Authority who had been appointed at a time when

the public defender’s office was not taking cases. He said that they conducted an

extensive investigation with detailed memos of interviews with police and civilian

witnesses. He said that when he was appointed, he received a copy of their notes and

also had a transcript of the preliminary hearing in the case. He testified that he met

with the petitioner on several occasions and determined that there might be a defense

based on the defendant’s mental status. He said that he obtained a mental evaluation

that concluded that the petitioner was sane and competent to be tried and that the

petitioner never indicated that the evaluation was improper.



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              As for trial strategy, Mr. Garrett testified that he wanted to attack the

identification of the petitioner, but he was aware that the state had a matching palm

print and the witness who intervened and stopped the assault before the petitioner left

the scene. In any event, Mr. Garrett thought that the jury might convict the petitioner of

lesser included offenses. As for the petitioner’s claim of intoxication, he stated that he

did not believe intoxication would negate the mental culpability needed for rape.



              Mr. Garrett testified that he had been ready for trial. He said that the state

made no offer before the morning of trial, but then the state offered to reduce the

offenses by one class. He said that he was sure that he and the petitioner discussed

the ranges of punishment and that he never promised anybody a particular sentence.

The transcript of the guilty plea hearing reflects that the trial court fully advised the

petitioner of his rights and the consequences of his waiving those rights and pleading

guilty, including sentencing.



              The trial court’s findings of fact reflect that it accredited Mr. Garrett’s

testimony. It concluded that the petitioner was provided with the effective assistance of

counsel and that the petitioner had failed to prove otherwise “whether by a

preponderance of the evidence or by clear and convincing proof.”



              Under the Sixth Amendment, when a claim of ineffective assistance of

counsel is made, the burden is upon the petitioner to show (1) that counsel's

performance was deficient and (2) that the deficiency was prejudicial in terms of

rendering a reasonable probability that the result of the trial was unreliable or the

proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S.

Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 369-72, 113 S. Ct. 838,

842-44 (1993). The Strickland standard has been applied, as well, to the right to



                                              4
counsel under Article I, Section 9 of the Tennessee Constitution. State v. Melson, 772

S.W.2d 417, 419 n.2 (Tenn. 1989).



              In Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366 (1985), the Supreme

Court applied the Strickland two-part test to a claim of ineffective assistance of counsel

relative to a guilty plea. It concluded that to satisfy the prejudice part of the test, “the

defendant must 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.



              In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court

decided that attorneys should be held to the general standard of whether the services

rendered were within the range of competence demanded of attorneys in criminal

cases. Further, the court stated that the range of competence was to be measured by

the duties and criteria set forth in Beasley v. United States, 491 F.2d 687, 696 (6th Cir.

1974) and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also,

in reviewing counsel's conduct, a "fair assessment of attorney performance requires

that every effort be made to eliminate the distorting effects of hindsight, to reconstruct

the circumstances of counsel's challenged conduct, and to evaluate the conduct from

counsel's perspective at the time." Strickland v. Washington, 466 U.S. at 689, 104 S.

Ct. at 2065; see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982) (counsel's conduct will

not be measured by "20-20 hindsight"). Thus, the fact that a particular strategy or tactic

failed or even hurt the defense does not, alone, support a claim of ineffective

assistance. Deference is made to tactical choices if they are informed ones based

upon adequate preparation. See Hellard v. State, 629 S.W.2d at 9; United States v.

DeCoster, 487 F.2d at 1201.




                                               5
               Also, we note that the approach to the issue of the ineffective assistance

of counsel does not have to start with an analysis of an attorney's conduct. If prejudice

is not shown, we need not seek to determine the validity of the allegations about

deficient performance. Strickland v. Washington, 466 U.S. at 697, 104 S. Ct. at 2069.



               The original case related to an approximately sixty-year-old woman being

abducted at her car, being forcibly robbed, and being forcibly, digitally penetrated by the

petitioner while in the car. Then, the petitioner forced the victim into the trunk, which he

could not close because it landed on her head. A bystander saw the commotion and

rescued the victim. The petitioner left the scene. The petitioner has an extensive

criminal history and was sentenced as a Range II, multiple offender.



               The record supports the trial court’s conclusion that the petitioner received

the effective assistance of counsel in terms of the trial attorney’s conduct. Also,

although Mr. Garrett acknowledged that he relied upon other attorneys’ work product in

trial preparation, the petitioner has in no way proven that anything of consequence was

left undone or omitted. Similarly, the record supports the trial court’s conclusion that

the petitioner’s guilty pleas were entered with knowledge and understanding of his

sentencing exposure. Likewise, the petitioner has failed to show what was improper or

omitted relative to the sentencing hearing that would indicate that his sentences

probably would have been other than those he received.



               Under these circumstances, the petitioner has failed to show in any

manner how the trial court erred in its findings and conclusions. The judgment of the

trial court is affirmed.



                                                  _______________________________
                                                  Joseph M. Tipton, Judge




                                             6
CONCUR:



___________________________
John H. Peay, Judge



____________________________
Curwood Witt , Judge




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