        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT JACKSON

                       JUNE SESSION, 1997


JASON EMERY DODD,         )
                                                      FILED
                              C.C.A. NO. 02C01-9608-CC-00273
                          )                               July 16, 1997
      Appellant,          )
                          )                           Cecil Crowson, Jr.
                          )   HARDIN COUNTY           Appellate C ourt Clerk
VS.                       )
                          )   HON. C. CREED McGINLEY
STATE OF TENNESSEE,       )   JUDGE
                          )
      Appellee.           )   (Post-Conviction)


               ON APPEAL FROM THE JUDGMENT OF THE
                 CIRCUIT COURT OF HARDIN COUNTY


FOR THE APPELLANT:            FOR THE APPELLEE:

STEPHANIE L. PRENTIS          JOHN KNOX W ALKUP
615 Court Street              Attorney General and Reporter
Savannah, TN 38372
                              CLINTON J. MORGAN
                              Assistant Attorney General
                              450 James Robertson Parkway
                              Nashville, TN 37243

                              ROBERT RADFORD
                              District Attorney General

                              JOHN OVERTON
                              Assistant District Attorney
                              Hardin County Courthouse
                              Savannah, TN 38372



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                OPINION

      The Petitioner appeals as of right from the trial court’s denial of his petition

for post-conviction relief.   The Petitioner pleaded guilty to arson and was

sentenced as a Range I standard offender to three years to be served in

com munity corrections. Subsequently, the Petitioner was found to have violated

the terms of his community corrections sentence and he was resentenced to five

years in the Department of Correction. In the post-conviction proceeding, the

Petitioner sought relief on the grounds that he received ineffective assistance of

counsel and that his guilty plea was thus not knowing and voluntary. The trial

court denied relief. We affirm the judgment of the trial court.



      In determ ining whether counsel provided effective assistance at trial, the

court must decide whether counsel’s performance was within the range of

competence dem anded 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



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probability must be “sufficient to undermine confidence in the outcom e.” 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

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.



      At the post-conviction hearing, the Petitioner testified that his guilty plea

was coerced by his attorney.      He said that his attorney did not obtain any

“statements” and did not explain to him the consequences of his guilty plea. He

said that he did not understand that if he violated the term s of his com munity

corrections sentence he could be resentenced to incarceration.



      The only other witness to testify at the post-conviction hearing was the

attorney who represented the Petitioner at the guilty plea. The testimony of the

attorney contradicted that of the Petitioner on every pertinent point.         Also

presented at the post-conviction hearing were the transcripts from the guilty plea

proceeding and the transcript of the original sentencing hearing.            These

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transcripts reflect that the Petitioner was fully informed of his constitutional rights

and the consequences of his plea agreement.              The post-conviction judge

determined that the Petitioner received the effective assistance of counsel and

that his guilty plea was voluntarily, knowingly, and intelligently entered. The court

found “no credible evidence to indicate that the Petitioner is entitled to any type

of relief.”



       The Tennessee Supreme Court has stated:


       For the plea to be acceptable it must be voluntary. That does not
       mean that the defendant would want to plead guilty if he or she had
       the option available to go free. The option available is to go to trial,
       with its uncertainties, or to plead guilty. The knowledge that is most
       relevant to this decision of the accused pertains to the rights that are
       available to him or her upon a trial that are given up by pleading
       guilty.

State v. Neal, 810 S.W.2d 131, 135 (Tenn. 1991).


       The purpose of an appellate court when reviewing whether a defendant

has made a voluntary, knowing, and intelligent plea is to ensure that the

defendant has willingly waived those rights guaranteed him through the

Constitution, that would be available to him if he went to trial, with no hint of

improper coercion. We believe the record supports the trial judge’s conclusion

that the guilty plea was voluntarily, knowingly and intelligently entered.



       The resolution of the factual issues raised by the Petitioner was determined

by the trial court after a hearing in which both the Petitioner and the Petitioner’s

former counsel testified. A petitioner must prove allegations of fact by clear and

convincing evidence. Tenn. Code Ann. § 40-30-210(f) (Supp. 1996). The trial

judge weighed the testimony of the witnesses and found that the Petitioner had

                                          -4-
failed to carry the burden of proof to support his claims, which the Petitioner must

do to prevail. State v. Kerley, 820 S.W.2d 753, 755 (Tenn. Crim. App. 1991).

This Court is bound by the findings of the trial judge on the factual determinations

unless the evidence preponderates against the findings. Rhoden v. State, 816

S.W.2d 56, 59 (Tenn. Crim. App. 1991). W e conclude that the evidence supports

the findings of the trial judge. W e find no error of law requiring reversal.



      The judgment of the trial court is affirmed.



                                 ___________________________________
                                 DAVID H. WELLES, JUDGE




CONCUR:



___________________________________
PAUL G. SUMMERS, JUDGE


___________________________________
JOE G. RILEY, JUDGE




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