         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT NASHVILLE              FILED
                               APRIL SESSION, 1997           May 30, 1997

                                                        Cecil W. Crowson
RICK F. VAULTON,                  )                   Appellate Court Clerk
                                       C.C.A. NO. 01C01-9606-CR-00276
                                  )
      Appe llant,                 )
                                  )
                                  )    DAVIDSON COUNTY
VS.                               )
                                  )    HON. ANN LACY JOHNS
STATE OF TENNESSEE,               )    JUDGE
                                  )
      Appellee.                   )    (Post-Conviction)


                ON APPEAL FROM THE JUDGMENT OF THE
                CRIMINAL COURT OF DAVIDSON COUNTY


FOR THE APPELLANT:                     FOR THE APPELLEE:

THERESA W . DOYLE                      CHARLES W. BURSON
211 Printer’s Alley Building           Attorney General & Reporter
Suite 400
Nashville, TN 37201                    PETER COUGHLAN
                                       Assistant Attorney General
                                       450 James Robertson Parkway
                                       Nashville, TN 37243-0493

                                       VICTOR S. JOHNSON
                                       District Attorney General

                                       ROGER MOORE
                                       Assistant District Attorney General
                                       Washington Square, Suite 500
                                       222 Se cond A venue, N orth
                                       Nashville, TN 37201-1649



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                 OPINION

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

Rules of Appellate Procedure from the trial cour t’s denial of h is petition for p ost-

conviction relief. The Defendant was originally indicted on eleven counts of

aggravated robbery and three counts of especially aggravated kidnaping. He

subs eque ntly pleaded guilty to four co unts of aggravated robbery and one count

of especially aggravated kidnaping. Pursuant to the plea agreement, he was

sentenced as a Ran ge II multiple offende r to twenty years for each of the

aggravated robbe ry conv ictions and tw enty-five years fo r the es pecia lly

aggravated kidnaping conviction, all to be served concurrently. After conducting

a hearing on the post-conviction petition, the trial judge denie d the D efend ant’s

claim of ineffective assistance of counsel relative to his guilty pleas and

dismiss ed his pe tition. W e affirm the judgm ent of the tria l court.



       In the Defendant’s pro se petition for post-conviction relief, numerous

general allega tions o f ineffec tive ass istanc e of co unse l are alleged.      The

allegations relate p rimarily to improper and inadequate investigation, counseling

and advice concerning the charge s and the conse quenc es of the g uilty plea. At

the hearing on the post-conviction petition, the Defe ndan t testified that his main

concern was with the aggravated kidnaping conviction because it carried five

more years than the robbery convictions.          He testified that concerning the

kidna ping charge, his attorn ey “told me that if I went a head and pleaded gu ilty,

we could come back and he could g et it took off of m e.” Th e Def enda nt’s

attorney testified that he did not “recall any discus sion of that nature.”



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       In determining whether cou nsel provided e ffective assista nce a t trial, the

court mus t decid e whe ther co unse l’s performance was within the range of

competence dema nded o f attorneys in crimina l 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 res ult. Strickland v. Washington, 466

U.S. 668, 68 7, reh’g denied, 467 U.S . 1267 (1 984); Coop er v. State , 849 S.W.2d

744, 74 7 (Ten n. 1993 ); Butler v. Sta te, 789 S.W.2d 898, 899 (Tenn. 1990). To

satisfy the seco nd pron g the pe titioner mu st show a reaso nable p robability tha t,

but for coun sel’s un reaso nable error, th e fact fin der wo uld have h ad rea sona ble

doubt regardin g petitione r’s guilt. Strickland, 466 U .S. at 69 5. This reaso nable

probab ility must be “su fficient to undermine confidence in the outcome .” Harris

v. State, 875 S.W .2d 662, 665 (Tenn. 199 4).



       When reviewing trial cou nsel’s action s, this co urt sho uld no t use th e ben efit

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

v. State, 629 S.W .2d 4, 9 (Ten n. 1982). Co unsel’s alleged e rrors 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 the re is a re ason able probab ility that, but for counsel’s errors he would not

have pleade d guilty and wou ld have insisted on going to trial.” Id. at 59.



       The Defenda nt and his attorne y were the only witnesses at the hearing on

the petition for post-conviction relief. Noting that to some extent the issue was

one of credibility, the trial judge found that based on the evidence presented, the

Defe ndant had no t carried his burden of proving that coun sel was in effective.

The evidence supports the findings of the trial judge. We find no error of law

requir ing rev ersal.



       The judgment of the trial court is affirmed.



                                  ____________________________________
                                  DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
GARY R. WADE, JUDGE


___________________________________
J. CURWOOD WITT, JR., JUDGE




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