         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs June 27, 2001

           THOMAS PAUL GAGNE, JR. v. STATE OF TENNESSEE

                       Appeal from the Criminal Court for Knox County
                             No. 67654    Ray L. Jenkins, Judge



                                  No. E2000-03073-CCA-R3-PC
                                          July 25, 2001

Thomas Paul Gagne, Jr. appeals the denial of his petition for post-conviction relief in which he
alleged he received the ineffective assistance of counsel in his conviction proceedings, which
ultimately caused him to plead guilty rather than take his case to trial. Gagne is serving an effective
term of two consecutive life sentences consecutively to a prior twelve-year sentence. His petition
involves his convictions upon guilty pleas for crimes of larceny, theft, aggravated burglary and two
counts of felony murder. Following an evidentiary hearing, the lower court ruled that Gagne failed
to establish his ineffective assistance claim. We hold that he has failed to demonstrate the error of
that ruling, and we therefore affirm the lower court’s dismissal of the petition.

                Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
ROBERT W. WEDEMEYER , JJ., joined.

Albert J. Newman, Jr., for the Appellant, Thomas Paul Gagne, Jr.

Paul G. Summers, Attorney General & Reporter; Patricia C. Kussman, Assistant Attorney General;
Randall E. Nichols, District Attorney General; William H. Crabtree, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                             OPINION

                In the conviction proceedings, Gagne faced the death penalty for the two homicides.
Therefore, two members of the bar were appointed to defend him, Brandt Davis and Kimberly
Parton. In this action, Gagne attacks only the effectiveness of Davis’s representation. He concedes
that he finds no fault with Parton’s services.

              At the post-conviction hearing, Gagne’s complaints were generally that Davis failed
to communicate with him about his investigation and preparation of the case for trial and that he had
no confidence that Davis had prepared the case for trial. Gagne claimed that although he was
innocent, he admitted guilt at the plea submission hearing because he was scared that he would have
to go to trial with unprepared counsel. Had he believed Davis was prepared, he would have insisted
upon going to trial.

                To controvert Gagne’s proof, the state presented the testimony of both of Gagne’s
trial attorneys. Their testimony painted a markedly different picture. According to counsel, over
500 hours of attorney time were devoted to investigation and preparation of the case and consultation
with the petitioner. Contrary to Gagne’s claim of innocence, counsel testified that the state had
inculpatory evidence in the form of multiple statements by the defendant and physical evidence.
Parton testified that she and Davis had divided the responsibilities of the defense, and that while
Davis was primarily responsible for investigation and trial preparation, her primary duties were
communication with Gagne. Parton said that she met extensively with Gagne and kept him informed
of the progress and status of his case. Further, both attorneys testified about several meetings they
both had with Gagne. The state’s evidence demonstrated that Gagne had been actively interested
in pleading guilty for some time, and Parton pursued a plea offer from the state on Gagne’s request.
Both attorneys testified that the petitioner entered into his plea agreement knowingly and voluntarily.
Both attorneys felt that it had been in Gagne’s best interests to plead guilty. Parton testified that she
was aware that Gagne had been dissatisfied with Davis’s representation, but she believed Gagne had
overcome his dissatisfaction by the time he entered his pleas.

                After receiving all the proof, the post-conviction court found the testimony of
Gagne’s trial attorneys credible and rejected the veracity of Gagne’s testimony. The court held that
Gagne failed to sustain his burden of proving his claim of ineffective assistance of counsel and
dismissed the petition.

                This appeal followed.

                When a petitioner challenges the effective assistance of counsel, he has the burden
of establishing (1) deficient representation and (2) prejudice resulting from that deficiency.
Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064 (1984); Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975). Deficient representation occurs when counsel provides assistance
that falls below the range of competence demanded of criminal 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 proceedings would have been different. Overton v.
State, 874 S.W.2d 6, 11 (Tenn. 1994). When it is alleged that the ineffective assistance of counsel
resulted in a guilty plea, the burden is upon the defendant to establish the prejudice prong of
Strickland by proving 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,
59, 106 S. Ct. 366, 370 (1985). On review, there is a strong presumption of satisfactory
representation. Barr v. State, 910 S.W.2d 462, 464 (Tenn. Crim. App. 1995).

                In post-conviction proceedings, the petitioner has the burden of proving the claims
raised by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997). On appeal, the

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lower court’s findings of fact are reviewed de novo with a presumption of correctness that may only
be overcome if the evidence preponderates against those findings. Fields v. State, 40 S.W.3d 450,
458 (Tenn. Crim. App. 2001).

               Gagne claims in this appeal that the lower court was in error in finding that he was
effectively represented in the conviction proceedings. He focuses upon the alleged lack of
communication with Davis which led him to believe that Davis was unprepared for trial. However,
the lower court accredited the state’s evidence that Gagne was well informed about his case and his
attorneys’ preparation for trial, thereby rejecting Gagne’s evidence that he was ignorant of his
attorneys’ efforts and scared Davis was unprepared for trial.

                Upon review, the evidence of record does not preponderate against the lower court’s
determination that Gagne received the effective assistance of counsel and therefore is not entitled
to avoid his plea agreement. There is ample evidence of record to support the court’s ruling. The
judgment of the lower court is therefore affirmed.



                                                     ___________________________________
                                                     JAMES CURWOOD WITT, JR., JUDGE




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