         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs November 16, 2004

             DANNY WORTHINGTON v. STATE OF TENNESSEE

                       Appeal from the Criminal Court for Scott County
                                       No. 7694-PCR
                       James B. Scott, Jr., Judge, Sitting by Designation



                    No. E2003-01929-CCA-R3-PC - Filed March 28, 2005



The Appellant, Danny Worthington, appeals the judgment of the Scott County Criminal Court
denying post-conviction relief. On appeal, Worthington argues that trial counsel was ineffective for
providing erroneous advice and, as a result, his guilty plea was not knowingly and voluntarily
entered. After review, the judgment of the post-conviction court is affirmed.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which DAVID H. WELLES and NORMA
MCGEE OGLE, JJ., joined.

Kenneth F. Irvine, Jr. and John H. Rion, Attorneys for the Appellant, Danny Worthington.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
John W. Galloway, Jr., Assistant District Attorney General, for the Appellee, State of Tennessee.

                                            OPINION

                                      Factual Background

        On April 26, 1998, Rodney Walden, a clerk at Fill’n’Foods in Helenwood, was severely
beaten with a hammer during a robbery of the convenience store in which $1,032.75 was taken from
the cash register. The police apprehended two of the perpetrators who identified the Appellant as
their accomplice. At the time of the robbery, the Appellant was sixteen years old. Following his
transfer from juvenile court, the Appellant was indicted for especially aggravated robbery. Under
the terms of a plea agreement, the Appellant pled guilty to aggravated robbery and received an
agreed sentence of fifteen years as a Range II multiple offender.
        In November 1999, the Appellant filed the instant petition for post-conviction relief alleging
ineffective assistance of counsel and an involuntary guilty plea. An evidentiary hearing was held on
September 7, 2001, and the post-conviction court denied relief by written order on July 3, 2003.
This appeal followed.

                                                Analysis

        In order to succeed on a post-conviction claim, the Appellant bears the burden of showing,
by clear and convincing evidence, the allegations set forth in the petition. Tenn. Code Ann. § 40-30-
110(f) (2003). To succeed on a challenge of ineffective assistance of counsel, the Appellant must
establish that counsel’s performance fell below the range of competence of attorneys demanded in
criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under Strickland v. Washington,
the Appellant must establish (1) deficient representation and (2) prejudice resulting from the
deficiency. 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). With a guilty plea, to satisfy the
“prejudice” prong, the Appellant “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.” Hill
v. Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 369 (1985).

       The issues of deficient performance by counsel and possible prejudice to the defense are
mixed questions of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). “A trial court’s
findings of fact underlying a claim of ineffective assistance of counsel are reviewed on appeal under
a de novo standard, accompanied with a presumption that those findings are correct unless the
preponderance of evidence is otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing
Tenn. R. App. P. 13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). However, conclusions
of law are reviewed under a purely de novo standard, with no presumption of correctness. Fields,
40 S.W.3d at 458.

         On appeal, the Appellant argues that trial counsel misinformed him regarding the maximum
sentence he could receive if he went to trial and further misinformed him regarding his parole
eligibility date. At the post-conviction hearing, the Appellant testified that trial counsel told him that
if he chose to go to trial upon the indicted crime of especially aggravated robbery, he would be found
guilty and would be required to serve sixty years. Additionally, the Appellant testified he was told
that if he accepted the plea offer of fifteen years as a Range II offender, he would “get out in maybe
about three-and-a-half, four, but . . . do no more than five” years. This testimony was materially
contradicted by the Appellant’s trial counsel. Trial counsel testified that the State’s case against the
Appellant was compelling. The victim in the case was badly beaten with a hammer and, as a result,
suffered serious bodily injury. Two of the Appellant’s accomplices were ready to testify against the
Appellant and name the Appellant as the person who struck the victim. Another witness was
prepared to testify that several days after the robbery, the Appellant had come into possession of a
large amount of cash. Finally, one witness was willing to testify that the Appellant admitted to her
that he was the person who beat the victim with a hammer.




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        Trial counsel stated that days before the scheduled trial date, he discussed the State’s plea
offer of fifteen years as a Range II offender with the Appellant. Counsel testified that he explained
to the Appellant that, if he were found guilty of especially aggravated robbery, he would be required
to serve 100% of a sentence between fifteen and twenty-five years.1 Counsel denied ever advising
the Appellant that he could or would be required to serve sixty years in confinement. Additionally,
trial counsel testified that he explained to the Appellant that he would be “eligible for parole after
pulling 35 percent of the 15-year sentence” and that “he could maybe be out in five to six years.”

         At the conclusion of the hearing, the post-conviction court entered the following findings:

                 [Appellant’s] testimony at the post conviction hearing, essentially contrast
         with the testimony given at the plea hearing. At the post conviction hearing,
         [Appellant] states that he was pressured by defense counsel to plead guilty . . . that
         he was informed that he could receive 60 years and was told by [trial counsel] just
         to glance at his plea papers and sign them and answer the Judge’s questions with a
         “yes sir” to get the plea over with.

                 The plea hearing proof was in contrast to the testimony presented at the post
         conviction hearing and this Court finds that the [Appellant’s] proof fails to support
         the allegations of ineffective assistance of counsel.

         ...

                 The [Appellant] has not established defense counsel’s performance was
         deficient and that the deficiency prejudiced any defense available to this [Appellant.]

         ...

        Implicit within the finding that the Appellant’s proof fails to support the allegation of
deficient performance is the post-conviction court’s accreditation of the advice rendered by trial
counsel regarding the Appellant’s sentence exposure at trial and parole eligibility. The record does
not preponderate against these findings or the conclusion that trial counsel was not ineffective in his
representation of the Appellant. Moreover, review of the entire record, including the plea
submission hearing, affirmatively demonstrates that the Appellant’s guilty plea was made with an
awareness of the consequences of the plea, and, as such, the guilty plea was voluntarily and
knowingly entered. See State v. Mackey, 553 S.W.2d 337, 340 (Tenn. 1977).

                                                 CONCLUSION




         1
         Especially aggravated robbery is classified as a violent offense, whereas aggravated robbery is not. Tenn. Code
Ann. § 40-35-501(i)(2) (2003).

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        Based upon the foregoing, we conclude that the post-conviction court did not err in ruling
that trial counsel’s representation was not deficient. Accordingly, the judgment of the post-
conviction court denying relief to the Appellant is affirmed.



                                                     ___________________________________
                                                     DAVID G. HAYES, JUDGE




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