          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE        FILED
                             JUNE 1998 SESSION
                                                    September 30, 1998

                                                    Cecil W. Crowson
                                                   Appellate Court Clerk
TERRY L. HALL,                       )
                                     )    NO. 01C01-9710-CC-00448
      Appellant,                     )
                                     )    CHEATHAM COUNTY
VS.                                  )
                                     )    HON. ALLEN W. WALLACE,
STATE OF TENNESSEE,                  )    JUDGE
                                     )
      Appellee.                      )    (Post-Conviction)



FOR THE APPELLANT:                        FOR THE APPELLEE:

CLIFFORD K. MCGOWN, JR.                   JOHN KNOX WALKUP
113 North Court Square                    Attorney General and Reporter
P.O. Box 26
Waverly, TN 37185                         KAREN M. YACUZZO
(Appeal Only)                             Assistant Attorney General
                                          Cordell Hull Building, 2nd Floor
STEVE STACK                               425 Fifth Avenue North
Assistant District Public Defender        Nashville, TN 37243-0493
P.O. Box 160
Charlotte, TN 37036-0160                  DAN MITCHUM ALSOBROOKS
                                          District Attorney General
ALAN R. BEARD
150 2nd Avenue North, Suite 315           JAMES. W. KIRBY
Nashville, TN 37201                       Assistant District Attorney General
                                          105 Sycamore Street
                                          Ashland City, TN 37015-1806




OPINION FILED:



AFFIRMED



LEE MOORE,
SPECIAL JUDGE
                                      OPINION



       Petitioner, Terry L. Hall, was indicted on twenty-seven (27) counts of

aggravated rape. On April 8, 1991, petitioner pleaded guilty to four (4) counts of

rape. He agreed to accept an eight (8) year sentence on each of the four (4) counts

of rape with manner of       service (concurrent, consecutive or probated) to be

determined by the trial court at a sentencing hearing. The sentencing hearing was

conducted on May 28, 1991. Petitioner was ordered to serve four (4), eight (8) year

sentences. The trial court ran each eight (8) year sentence consecutive to the

others. The issue of the sentence was appealed. The Court of Criminal Appeals

affirmed the decision of the trial court by order filed on August 5, 1993.



       Petitioner subsequently filed a post-conviction petition alleging ineffective

assistance of counsel. Petitioner filed a motion for appointment of counsel on July

22, 1994. The motion bears the date of July 15, 1994. The petition for post-

conviction relief was forwarded for filing with the motion, although the petition bears

a separate date filed stamp. On July 1, 1994, an order was filed appointing the

District Public Defender to represent the petitioner. The state filed an answer to the

petition for post-conviction relief on August 11, 1994. A hearing was conducted on

the petition on April 30, 1997. The trial court dismissed the petition by order entered

on May 12, 1997. Notice of appeal was timely filed on May 27, 1997.



       After a review of the post-conviction record on appeal and the applicable law,

the Court affirms the judgment of the trial court for the reasons stated below.



       Petitioner alleges the assistance rendered by trial counsel was ineffective for

the reasons stated below.




                                          2
    INEFFECTIVE ASSISTANCE OF COUNSEL- STANDARD OF REVIEW



    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 v. Washington, 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 v. State, 789 S.W.2d 898, 899 (Tenn. 1990).



       The test in Tennessee in determining whether counsel provided effective

assistance is whether his performance was within the range of competence

demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d at 936. The

petitioner must overcome the presumption that counsel's conduct falls within the

wide range of acceptable professional assistance. Strickland v. Washington, 466

U.S. at 689, 104 S.Ct. at 2065; Alley v. State, 958 S.W.2d 138, 149 (Tenn. Crim.

App. 1997); State v. Williams, 929 S.W.2d 385, 389 (Tenn. Crim. App. 1996).

Therefore, in order to prove a deficiency, a petitioner must show that counsel's acts

or omissions were so serious as to fall below an objective standard of

reasonableness under prevailing professional norms. Strickland v. Washington,

466 U.S. at 688, 104 S.Ct. at 2065; Henley v. State, 960 S.W.2d 572, 579 (Tenn.

1997); Goad v. State, 938 S.W.2d at 369.



       In reviewing counsel's conduct, a "fair assessment. . . 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. The fact that a particular strategy or tactic failed or hurt the defense,




                                           3
does not, standing alone, establish unreasonable representation.           However,

deference to matters of strategy and tactical choices applies only if the choices are

informed ones based upon adequate preparation. Goad v. State, 938 S.W.2d at

369; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); Alley v. State, 958 S.W.2d at

149; Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).



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

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

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.



                                      FACTS



       At the post-conviction hearing, petitioner indicated that his trial counsel met

with him four (4) or five (5) times when he was going through court. According to

petitioner, trial counsel also met with petitioner's parents and family members.

Although he indicated that he did not understand all the time the things that trial

counsel was telling him, he did remember the guilty plea hearing. He remembered

the judge explaining to him his rights. He remembered the judge telling him he had

the right to assistance of counsel and that he had the right to cross-examine the

witnesses that the state would call to testify against him. He also remembered

reading this information but indicated that he did not understand it when he read it.

He later indicated that he could not remember whether the judge had advised him

of his rights. He thought he could remember trial counsel talking to him about

having particular witnesses who would testify if he went to trial. He did not recall

whether or not his trial counsel talked to him concerning whether or not he would

testify. He did remember pleading guilty to four (4) counts of rape. He admitted

having oral sex with his six (6) year old daughter and advised the judge accordingly



                                         4
at his guilty plea hearing. He understood from talking to trial counsel that he was

going to get eight (8) years on each count and that it would be up to Judge Wallace

as to whether or not he would serve all those eight (8) years at one time or whether

they would be stacked on top of each other. He indicated, however, that he thought

he was going to have an effective eight (8) year sentence. His complaint at the

post-conviction hearing was that he got too much time. It appears at the post-

conviction hearing that the amount of time to which he was sentenced was his only

complaint.



       Trial counsel, Allen Beard, indicated that he was an experienced lawyer in

criminal defense work in sex crimes while in the service. This case, however, was

his first major criminal case after being discharged from the service. He was

advised by petitioner's family that petitioner was either retarded or borderline

retarded. He requested an evaluation. The evaluating psychiatrist indicated that

petitioner was borderline but was not incompetent to stand trial. Petitioner was

charged with twenty-seven (27) counts of aggravated rape. He negotiated a plea

for four (4) counts of rape with the judge determining whether or not the sentences

were to run concurrently, consecutively or to be probated. Trial counsel indicated

that he discussed this disposition of the various cases with petitioner and his family.

He indicated that at the same time Mr. Hall's family also tried to explain to him what

was going on.       Trial counsel was pretty satisfied that petitioner had an

understanding of the eight (8) year sentences and his family understood perfectly.

His plan of defense was toward mitigation of sentencing as he was satisfied that

there was "liability." He felt like the effective sentence would probably be eight (8)

to sixteen (16) years although he indicated that he advised petitioner that he could

be looking at thirty-two (32) years as a realistic possibility.



       When questioned as to whether or not he should have pursued a motion to

suppress that he had filed, he indicated that he would probably pursue the motion.

He felt as if it were pretty strong. He indicated that at some point during questioning



                                           5
that Mr. Hall had requested an attorney. He later indicated that at the point when

the request was made there was probably enough on the record that Mr. Hall was

damaged. There was certainly a danger of conviction even if they had stopped the

questioning at that point. His only other option other than the plea bargain would

have been to go to trial where there was a substantial liability or exposure to his

client. He felt like Mr. Hall knew the options as well as he could. He also indicated

that a lot of times Mr. Hall would surprise you with what he knew and other times

you might think he would know nothing.



       After petitioner was sentenced to consecutive eight (8) year sentences, he

filed a Rule 31 motion to reconsider at which time the trial court heard proof from

another psychiatrist. The proof from the other psychiatrist, however, was not in the

post-conviction record. The court thereafter denied the petition indicating that trial

counsel had done a good job in that the situation was mitigated greatly because

petitioner had originally been charged with twenty-seven (27) counts of aggravated

rape and entered a plea to four (4) counts of rape with an agreed eight (8) year

sentence on each count.



                                    CONCLUSION



       Although there were several issues raised in the original petition for post-

conviction relief, the only issue raised on appeal is ineffective assistance of counsel

regarding the plea of guilty of petitioner. Any other issues raised in the original

petition were not briefed or argued on appeal and are, therefore, waived. The

essence of the issue raised on appeal centers around whether or not petitioner

understood his rights at the time of entering his plea of guilty. The proof in the post-

conviction record is clear that trial counsel felt that there was major exposure for

petitioner if he went to trial and was convicted. It is also clear that trial counsel felt

there was a grave danger of conviction. Trial counsel, therefore, negotiated a plea

bargain agreement at a reduced charge. Petitioner was indicted on twenty-seven



                                            6
(27) counts of aggravated rape. The plea bargain agreement was for a plea of

guilty to four (4) counts of rape with an agreed eight (8) year sentence on each

count. The court was to determine whether the sentences were to run concurrently

or consecutively or to be probated. The record is clear that petitioner was advised

of the possibility of an effective thirty-two (32) year sentence. Although there is no

record of the guilty plea hearing, petitioner admits that he was advised by the trial

judge of his constitutional right to trial, counsel and confrontation of witnesses. The

only real issue is whether or not petitioner was capable of understanding his rights.

The only evidence before this Court is that although petitioner was borderline

retarded with an effective I.Q. of 72, he was competent to stand trial.               This

information also was the only evidence before the trial court at the time the court

accepted the guilty plea.



            From a review of the post-conviction record, the petitioner has failed to carry

his burden of proving that his attorney's performance was deficient or that any such

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

of a fair trial. Petitioner has further failed 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. In fact, the evidence before us strongly suggests

that the petitioner had admitted the facts tantamount to aggravated rape and that

he was subject to a possible sentence totaling more than 1,000 years had he gone

to trial.



              Accordingly, the judgment of the trial court is AFFIRMED.




                                                      LEE MOORE, SPECIAL JUDGE




CONCUR:




                                               7
JOE G. RILEY, JUDGE



CURWOOD WITT, JUDGE




                      8
           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE



TERRY L. HALL,                             )
                                           )       C.C.A. No. 01C01-9710-CC-00448
       Appellant,                          )
                                           )       Cheatham County No. 10995
vs.                                        )
                                           )       (Post-Conviction)
STATE OF TENNESSEE,                        )
                                           )       AFFIRMED
       Appellee.                           )



                                    JUDGMENT



       Came the appellant, Terry L. Hall, by counsel, and the state, by the Attorney

General, and this case was heard on the record on appeal from the Circuit Court

of Cheatham County; and upon consideration thereof, this Court is of the opinion

that there is no reversible error in the judgment of the trial court.



       It is, therefore, ordered and adjudged by this Court that the judgment of the

trial court is AFFIRMED, and the case is remanded to the Circuit Court of

Cheatham County for execution of the judgment of that court and for collection of

costs accrued below.



       It appears that appellant is indigent. Costs of appeal will be paid by the State

of Tennessee.



                                                   Per Curiam

                                                   Lee Moore, Special Judge
                                                   Joe G. Riley, Judge
                                                   Curwood Witt, Judge
