            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                        OCTOBER SESSION, 1998


                                                             FILED
ANTHONY COLE,               )                            October 19, 1998
                            )    No. 02C01-9711-CC-00445
      Appellant             )                           Cecil Crowson, Jr.
                            )    DYER COUNTY            Appellate C ourt Clerk
vs.                         )
                            )    Hon. LEE MOORE, Judge
STATE OF TENNESSEE,         )
                            )    (Post-Conviction)
      Appellee              )



For the Appellant:               For the Appellee:

William K. Randolph              John Knox Walkup
P. O. Box 611                    Attorney General and Reporter
Dyersburg, TN 38025-0611
                                 Peter M. Coughlan
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 425 Fifth Avenue North
                                 2d Floor, Cordell Hull Building
                                 Nashville, TN 37243-0493


                                 C. Phillip Bivens
                                 District Attorney General
                                 P. O. Box 507
                                 Dyersburg, TN 38024




OPINION FILED:


AFFIRMED



David G. Hayes
Judge
                                                 OPINION



          The appellant, Anthony Cole, appeals the order of the Circuit Court of Dyer

County denying his petition for post-conviction relief. On January 16, 1997, the

appellant pled guilty, as a range I offender, to one count of attempted aggravated

sexual battery. 1 Pursuant to the plea agreement, the appellant received a sentence

of six years in the Department of Correction. The appellant collaterally attacks his

conviction for aggravated sexual battery upon grounds that his trial counsel was

ineffective and that his guilty plea is invalid.



          After review of the record, we affirm the trial court’s denial of post-conviction

relief.




                                               Background



          The appellant filed the instant petition for post-conviction relief on May 1,

1997. An amended petition was filed on July 8, 1997. The petition alleges, in parts

challenged herein, that the guilty plea was invalid because the trial court failed to

sign the guilty plea form and that retained counsel was ineffective for (1) failing to

advise the appellant of the minimum and maximum punishments for the charged

offense; (2) failing to file pre-trial motions; (3) misinforming the appellant as to the

range of punishment sought by the State; and (4) failing to advise the appellant

regarding the statutory requirement that sex offenders complete a sexual abuse

treatment program as a prerequisite for parole.


          1
           The facts underlying the charge of attempted aggravated sexual battery reveal that, on
March 28, 1996, the appellant went to the home of Vincent Robertson, where he and Robertson
proceeded to smoke crack cocaine all night long. The next morning, Robertson and the appellant
left. Soon thereafter, knowing that Robertson and his wife were not at home, the appellant
returned and forcibly entered the house. Robertson’s eleven year old stepdaughter and five year
old st eps on w ere in the h ous e wa tchin g tele vision . The appe llant’s conv iction stem s fro m h is
conduct of sitting in the girl’s lap and placing his hand underneath her shirt for purposes of sexual
contac t.

                                                    2
       A hearing on the merits was subsequently held, after which the trial court

denied the appellant post-conviction relief, specifically finding that:

       . . . It appears that the presiding Judge did not sign the form in
       question although the Petitioner, his attorney and the District Attorney
       General signed the form. The presiding Judge did, however, properly
       execute the “Judgment”. There was also a transcript of evidence
       dealing with the acceptance of the guilty plea. The Court finds this
       issue to be without merit.

       All other issues involved in the Petitioner’s Petition . . . deal with
       whether or not there was ineffective assistance of counsel. . . .

       . . . Just prior to Petitioner’s guilty plea [trial counsel] had successfully
       tried an Aggravated Burglary case involving the Petitioner where the
       jury reduced the charge to a lesser included offense. . . . . . .He also
       indicated that he and his client had received a notice of enhanced
       punishment. He felt that Mr. Cole had serious exposure in part
       because of a past conviction, also, during his Aggravated Burglary
       case, Petitioner evidently had done very poorly under cross-
       examination regarding prior convictions. . . . He indicated that if Mr.
       Cole were convicted that he would be looking at a sentence of
       approximately twelve years. The District Attorney General had sent a
       notice of a Range III Punishment and evidently had made an offer in a
       plea bargain to settle together the Aggravated Burglary and the
       Aggravated Sexual Battery cases if both cases were settled. When
       the defendant did not agree to settle the Aggravated Burglary case,
       the plea offer on the Aggravated Sexual Battery was withdrawn.
       According to the testimony of trial counsel, he advised his client that
       he was looking at a possible Range III Punishment and he realistically
       felt that Mr. Cole had exposure of twelve to twenty years. . . . He
       indicated that no motions had been filed because there was no reason
       to file any motions. . . .Trial counsel indicated that at one point there
       was an offer for a plea agreement on both the Aggravated Burglary
       and the Aggravated Sexual Battery cases. He indicated that Petitioner
       knew that the plea offer had been withdrawn after the Petitioner had
       gone to trial on the Aggravated Burglary case. Trial counsel indicated
       that he felt that the Petitioner still wanted to go to trial until he talked
       with his mother on the day of the trial. After there was a discussion
       about the plea offer of Attempted Aggravated Sexual Battery, the
       Petitioner decided he wanted to enter a plea of guilty. Trial counsel
       indicates that he did not try to influence the decision of the Petitioner.
       . . .Trial counsel indicated that he had received the plea offer for six
       years long before the trial and advised petitioner about the offer some
       two or three times prior to January 15, 1997.

       Petitioner indicated . . . that trial counsel advised him that the District
       Attorney General would not go back to his offer of a plea agreement
       prior to the trial of the Aggravated Sexual Battery case. . . . He
       indicated that he still wanted to go to trial but felt like he had no help
       from his trial counsel. He also stated that trial counsel told him that if
       he accepted the plea offer of the six year sentence, he would probably
       be out of jail in eighteen months to two years. He now indicates that
       he will have to serve his full six year sentence because it involves a
       sex offense. He indicated that he did not want to go to trial with his
       trial counsel because of fear that he might get fifteen to twenty years
       although he states he would have gone to trial if he had a good lawyer.

                                           3
       Trial counsel was employed by the defendant. Petitioner seemed
       concerned that he had a previous plea offer for two years at thirty-five
       percent, and that he did not know about the plea offer of six years until
       the day before the trial. . . . On cross-examination, Petitioner
       indicated that he had seen the enhancement notice at the Burglary
       trial. He had entered some six guilty pleas prior to the one in question
       and knew the procedure.

       ...

       Petitioner first indicates that trial counsel was ineffective in failing to file
       pre-trial motions. The evidence is clear that trial counsel had available
       the entire file material of the District Attorney General, and that it was
       not necessary that any pre-trial motions be filed. There is no evidence
       in the record that Petitioner was prejudiced in anyway by failure of trial
       counsel to file any pre-trial motions.

       ...

       Petitioner next alleges that during discussion regarding plea
       negotiations that trial counsel advised him that he was looking at
       Range III punishment when it should have been Range II. The
       transcript of evidence . . . clearly shows . . . that the presiding Judge
       advised the Petitioner of the minimum sentence for the offense and
       the maximum sentence. The presiding judge also advised him that the
       State had given notice upon a conviction a Aggravated Sexual Battery
       that the State would be seeking punishment in Range II, and the
       presiding Judge advised the Petitioner that the minimum sentence in
       Range II would have been twelve years. The petitioner indicated in
       response to questioning by the presiding Judge that he understood the
       range of punishments. It is clear also that he was aware of his right to
       a trial by jury. . . .This issue is, therefore, without merit.

       ...

       The Court concludes that the performance of trial counsel was within
       the range of competence demanded in criminal cases. . . .
       Furthermore, Petitioner has failed to demonstrate any prejudice
       caused by the actions of counsel, or that there is a reasonable
       probability that the result of the proceedings would have been different
       if counsel had acted otherwise . . . .




                                          Analysis



       Post-conviction relief shall be granted when the conviction or sentence is void

or voidable because of an abridgement of a constitutional right. Tenn. Code Ann. §

40-30-203 (1997). Failure by the trial judge to sign the guilty plea form, even if it

had occurred, neither invalidates the guilty plea nor impinges upon a constitutional


                                            4
right. See Tenn. R. Crim. P. 11. Thus, this claim is not cognizable in a post-

conviction hearing and is without merit.



       Additionally, in order to succeed on a post-conviction claim alleging

ineffective assistance of counsel, the appellant bears the burden of showing, by

clear and convincing evidence, Tenn. Code Ann. § 40-30-210(f) (1997), that the

services rendered by trial counsel were deficient and that, but for the deficient

performance, the results of the proceeding would have been different. Strickland v.

Washington, 466 U.S. 668, 687 104 S.Ct. 2052, 2064 (1984). The post-conviction

court found that counsel was not deficient and that counsel’s actions did not

prejudice the appellant. When this court undertakes review of a lower court's

decision on a petition for post-conviction relief, the lower court's findings of fact are

given the weight of a jury verdict and are conclusive on appeal absent a finding that

the evidence preponderates against the judgment. See Davis v. State, 912 S.W.2d

689, 697 (Tenn. 1995). After reviewing the record, we conclude that the evidence

does not preponderate against the excellent findings entered by the post-conviction

court. Although otherwise fully addressing the allegations raised by the petition, the

post-conviction court failed to expressly address the appellant’s contention that trial

counsel failed to inform him of the mandatory sexual offender treatment program

which must be completed prior to parole eligibility. However, the transcript of the

guilty plea hearing reveals that the trial court so informed the appellant as to this

requirement. Thus, the appellant has not met his burden as to this allegation.



       As a result, we find no error of law requiring reversal. The judgment of the

trial court dismissing the appellant’s petition for post-conviction relief is affirmed.




                                           5
                          ____________________________________
                          DAVID G. HAYES, Judge




CONCUR:




_________________________________________
JOHN H. PEAY, Judge



_________________________________________
L. T. LAFFERTY, Special Judge




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