          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON
                                                            FILED
                            NOVEMBER 1997 SESSION
                                                            December 31, 1997

                                                            Cecil Crowson, Jr.
REGINALD THOMPSON,                  )                       Appellate C ourt Clerk
                                    )   NO. 02C01-9611-CR-00380
       Appellant,                   )
                                    )   SHELBY COUNTY
VS.                                 )
                                    )   HON. JOSEPH B. DAILEY,
STATE OF TENNESSEE,                 )   JUDGE
                                    )
       Appellee.                    )   (Post-Conviction)



FOR THE APPELLANT:

HOWARD BRETT MANIS
200 Jefferson Avenue
Suite 1313
Memphis, Tennessee 38103

FOR THE APPELLEE:

JOHN KNOX WALKUP
Attorney General and Reporter

JANIS L. TURNER
Assistant Attorney General
Cordell Hull Building - 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493

WILLIAM L. GIBBONS
District Attorney General

JAMES MORTON LAMMEY, JR.
Assistant District Attorney General
201 Poplar Avenue
Suite 301
Memphis, Tennessee 38103




OPINION FILED:


AFFIRMED



JOE G. RILEY,
JUDGE
                                       OPINION



       Appellant, Reginald Thompson, seeks review of the trial court's denial of his

petition for post-conviction relief. Appellant pled guilty on September 8, 1994, to

four (4) counts of aggravated robbery and one (1) count of attempted aggravated

robbery in a negotiated plea agreement. He received ten (10) years on each of the

four (4) counts of robbery, concurrent, and five (5) years on the count of attempted

aggravated robbery, consecutive, for a total effective sentence of fifteen (15) years.

The post-conviction petition, filed October 12, 1995,1 alleged ineffective assistance

of counsel and that counsel had misrepresented the total length of the sentence to

be ten (10) years. Appellant also alleged that the plea was not freely, voluntarily,

and intelligently entered, indicating that counsel coerced him to plead guilty to

crimes he did not commit. The post-conviction court dismissed the petition after an

evidentiary hearing. We affirm the judgment of the trial court.



                           APPELLANT’S ALLEGATIONS



       At the evidentiary hearing, the appellant testified that trial counsel had not

explained the rights he was waiving by entering a guilty plea; that trial counsel never

met with him to discuss his case; and that trial counsel had told him that he would

only be receiving a total of ten (10) years incarceration when, in fact, appellant

received fifteen (15) years. A review of the guilty plea transcript reveals that the trial

court took great pains to assure that the appellant understood his sentence to be

fifteen (15) years and that the plea was intelligently and voluntarily made.

Appellant acknowledged at his guilty plea hearing that the plea agreement was in

his best interest even though he felt he was wrongly charged in one of the

indictments.




       1
        Because the petition was filed after May 10, 1995, the Post-Conviction Procedures
Act of 1995 controls.

                                            2
       Appellant testified at the post-conviction hearing that he did not know what

rights he was waiving by pleading guilty. A review of the guilty plea hearing once

again reveals the trial court’s emphasis on the rights appellant was waiving by

pleading guilty.

        Appellant testified at the post-conviction hearing that his confession to the

investigating officers had been involuntary; however, at the guilty plea hearing, he

admitted to driving the getaway car and knowing the other parties had just

committed a robbery while he waited. The trial court then explained the concept of

criminal responsibility, and appellant said he understood.

       The guilty plea hearing further shows that appellant had discussed his case

with his counsel prior to pleading guilty. The appellant testified at his guilty plea

that he had indeed discussed his case with his lawyer and was satisfied with the

extent of their discussions.

       Appellant’s former attorney testified at the post-conviction hearing that he

discussed the case with appellant and appellant’s mother on several occasions. He

thoroughly explained to appellant that the total effective sentence was fifteen (15)

years, and appellant understood. In essence, he refuted all the material claims

made by appellant.

       The trial court found that appellant fully understood the terms of the plea

agreement, freely and voluntarily entered the plea of guilty and received effective

assistance of counsel. Based upon these findings, the trial court dismissed the

petition.



                   POST-CONVICTION STANDARDS FOR REVIEW



       The trial judge's findings of fact at post-conviction hearings are conclusive on

appeal unless the evidence preponderates otherwise. Butler v. State, 789 S.W.2d

898, 899-900 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 354 (Tenn. Crim.

App. 1995). The trial court’s findings of fact are afforded the weight of a jury verdict,

and this Court is bound by the trial court’s findings unless the evidence in the record



                                           3
preponderates against those findings. Dixon v. State, 934 S.W.2d 69, 72 (Tenn.

Crim. App. 1996). This Court may not reweigh or reevaluate the evidence, nor

substitute its inferences for those drawn by the trial judge. Massey v. State, 929

S.W.2d 399, 403 (Tenn. Crim. App. 1996); Black v. State, 794 S.W.2d 752, 755

(Tenn. Crim. App. 1990). Questions concerning the credibility of witnesses and the

weight and value to be given to their testimony are resolved by the trial court, not

this court. Black v. State, 794 S.W.2d at 755. The burden of establishing that the

evidence preponderates otherwise is on petitioner. Id.



                   INEFFECTIVE ASSISTANCE OF COUNSEL



       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 at 899.



         INEFFECTIVE ASSISTANCE OF COUNSEL AT GUILTY PLEA



       In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L. Ed. 2d 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 pled guilty and would have insisted

on going to trial. Id. at 59.




                                         4
                             BURDEN OF PROOF



      The burden on the post-conviction petitioner is to prove the allegations by

clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). The post-

conviction court found that the petition was not well taken and denied relief. The

evidence does not preponderate against the findings of the trial court. Appellant

has not met his burden of proof.



                                   CONCLUSION

      For the foregoing reasons, we affirm the judgment of the trial court.




                                               JOE G. RILEY, JUDGE



CONCUR:




GARY R. WADE, JUDGE




DAVID G. HAYES, JUDGE




                                        5
