        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE            FILED
                            MARCH SESSION, 1997          June 30, 1997

                                                      Cecil W. Crowson
                                                     Appellate Court Clerk
STATE OF TENNESSEE,            )    C.C.A. NO. 01C01-9606-CC-00261
                               )
      Appellee,                )
                               )    WARREN COUNTY
                               )
V.                             )
                               )    HON. CHARLES HASTON, JUDGE
SHAWN HUFF                     )
                               )
      Appellant.               )    (POST-CONVICTION)




FOR THE APPELLANT:                  FOR THE APPELLEE:

CLEMENT DALE POTTER                 JOHN KNOX WALKUP
District Public Defender            Attorney General & Reporter

MICAELA BURNHAM                     CLINTO N J. M ORGAN
Assistant Public Defender           Assistant Attorney General
314 W est Main Street               450 James Robertson Parkway
McMinnville, TN 37110               Nashville, TN 37243-0493

                                    WILLIAM M. LOCKE
                                    District Attorney General

                                    LARRY G. ROSS
                                    Assistant District Attorney General
                                    Professional Building
                                    P.O. Box 410
                                    McMinnville, TN 37110-0410




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                OPINION

      The Petitioner appeals as of right pursuant to Rule 3 of the Tennessee

Rules of Appellate Procedure from the trial court’s denial of his Petition for Post-

conviction relief.   The Petitioner pled guilty to aggravated robbery and was

sentenced to eleven (11) years and six (6) months. He filed a petition for post-

conviction relief on the grounds that he had ineffective assistance of counsel.

The Petitioner argues in this court that his trial counsel was indeed ineffective

and the Petitioner should be granted post-conviction relief.        We affirm the

judgment of the trial court.



      The Petitioner was indicted for especially aggravated robbery for an

incident which occurred at TranSouth Financial Services in McMinnville,

Tennessee. Two masked men walked into TranSouth Financial Services. During

the robbery, one of the men sprayed an employee with mace. She barely

recognized that a gun was being held in her face, because of the effect of the

mace. Just before the men left, the masked man maced her again. She was in

extreme pain the rest of the day, even after taking a shower. She has had

emotional problems since the incident.



      Two co-defendants were also charged following the incident.              The

Petitioner pled guilty to aggravated robbery on October 26, 1993. The present

petition for post-conviction relief was filed on March 1, 1995. The trial court held

a hearing and denied this petition. The Petitioner’s sole issue on appeal is that

he was afforded the ineffective assistance of counsel at his guilty plea.



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      W hen a conviction results from a jury verdict, in determining whether

counsel provided effective assistance at trial, the court must decide whether

counsel’s performance was within the range of competence demanded of

attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).

To succeed on a claim that his counsel 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 failure to produce

a reliable result. Strickland v. Washington, 466 U.S. 668, 687, reh’g denied, 467

U.S. 1267 (1984); Cooper v. State, 849 S.W .2d 744, 747 (Tenn. 1993); Butler v.

State, 789 S.W .2d 898, 899 (Tenn. 1990). To satisfy the second prong the

petitioner must show a reasonable probability that, but for counsel’s

unreasonable error, the fact finder would have had reasonable doubt regarding

petitioner’s guilt. Strickland, 466 U.S. at 695. This reasonable probability must

be “sufficient to undermine confidence in the outcome.” Harris v. State, 875

S.W .2d 662, 665 (Tenn. 1994).



      W hen reviewing trial counsel’s actions, this court should not use the benefit

of hindsight to second-guess trial strategy and criticize counsel’s tactics. Hellard

v. State, 629 S.W .2d 4, 9 (Tenn. 1982). Counsel’s alleged errors should be

judged at 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.



      This two part standard of measuring ineffective assistance of counsel also

applies to claims arising out of the plea process. Hill v. Lockhart, 474 U.S. 52

(1985). The prejudice requirement is modified so that the petitioner “must show

                                        -3-
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.” Id. at 59.



      The Petitioner argues that his counsel was ineffective for several reasons.

He argues that his counsel did not investigate the case properly, did not contact

witnesses or file pre-trial motions, failed to advise the Petitioner that his co-

defendants might not be allowed to testify against him, and that the most serious

offense that the Petitioner could have been convicted of in any event was

aggravated robbery, and not the especially aggravated robbery charge for which

he was indicted.



      The circumstances surrounding the time period prior to the Petitioner

entering his plea are as follows. The Petitioner admitted that he was involved in

the robbery, but only that he drove the car. The men were in the Petitioner’s

girlfriend’s car before the incident. A gun like that used in the robbery was found

at the Petitioner’s grandfather’s house and his grandmother said that he came to

visit before and after the time of the robbery. The Petitioner stated that the gun

used in the robbery was a toy gun. There were witnesses, in addition to the co-

defendants, who would have testified that the Petitioner bragged about spraying

the worker with mace. At the time of the incident, the Petitioner was on release

status on an appeal bond for an assault charge. That eleven month, twenty-nine

day sentence was dismissed as part of his plea bargain.



      The Petitioner’s trial counsel testified at the hearing on the post-conviction

petition. Counsel testified that he did not interview the State’s witnesses because

he had access to their statements through the district attorney’s office. Some of

                                        -4-
these witnesses also testified at the hearing. There were stipulations as to the

testimony of other witnesses. The clear proof was that the statements received

by counsel contained the information the witnesses would have testified to at a

trial. Counsel also stated that he anticipated filing motions concerning the injuries

involved in the incident at trial. However, counsel thought that the motions would

be unsuccessful due to the fact that the question of seriousness of injuries was

a jury question. He also stated that relying on his twenty-five (25) years of

experience he felt confident that the Petitioner would have been convicted of

especially aggravated robbery in a jury trial in Warren County. The Petitioner’s

trial counsel testified that under the circumstances of the case sub judice, he

believed that the best strategy was to get the Petitioner the smallest sentence

possible. He believed that the Petitioner would have been convicted of a Class

A felony and sentenced to fifteen (15) to twenty-five (25) years if he had gone to

trial.



         The Petitioner has not shown that his attorney was not properly functioning

as counsel as guaranteed under the Sixth Amendment. Judging counsel actions

at the time that they occurred and not using hindsight to judge his actions, we do

not find that the Petitioner’s counsel provided ineffective assistance of counsel.



         Therefore, this issue has no merit. The trial court’s judgment is affirmed.




                                   ____________________________________
                                   THOMAS T. W OODALL, Judge



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CONCUR:



___________________________________
JOSEPH M. TIPTON, Judge


___________________________________
JOE G. RILEY, Judge




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