Stanley Powell v. State

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED FEBRUARY 1999 SESSION

May 21, 1999

Cecil W. Crowson

Appellate Court Clerk

STANLEY POWELL, )

) C.C.A. No. 01C01-9804-CC-00169 Appellee, )

) Giles County

V. )

) Honorable W illiam B. Cain, Judge STATE OF TENNESSEE, )

) (Post-Conviction - Aggravated Kidnaping, ) Aggravated Rape)

Appellant. )

FOR THE APPELLANT: FOR THE APPELLEE:

HERSHELL KOGER JOHN KNOX WALKUP 131 N. 1st Street Attorney General and Reporter P. O. Box 1148 Pulaski, TN 38478 ELIZABETH B. MARNEY Assistant Attorney General 425 Fifth Avenue North

2d Floor, Cordell Hull Building Nashville, TN 37243

MIKE BOTTOMS

District Attorney General

RICHARD DUNAVANT

Assistant District Attorney Giles County Courthouse

Pulaski, TN 38478

OPINION FILED: _______________

AFFIRMED

JOHN EVERETT WILLIAMS, Judge

OPINION

The petition er, Sta nley P owell, a ppea ls from the trial c ourt’s dismissal of his claim for post-conviction relief. Powell is presently serving thirteen years a s a ran ge II offe nder in the De partm ent of C orrect ion for h is guilty plea to aggrava ted kidna ping an d aggra vated rap e on Ju ne 27, 1 994. The trial court dismissed his post-conviction petition following a hearing on the merits. After a review of the record, the briefs of the parties and the applic able la w, we a ffirm the trial cou rt’s dism issal.

The petition er claim ed at h is post -conv iction h earing that his appointed counsel was ineffective for failing to interview witnesses and that his plea was e ntered into unk nowingly and involuntarily.

The trial court reviewed the transcript of the hearing in which the defen dant p leade d guilty, a nd he ard the testim ony fro m the Petition er, his court appointed counsel and three other witnesses, before finding as follows:

There is nothing in the post-conviction relief petition that has a ny me rit, and th e cred ibility of the defen dant in his testimony today is nonexistent. He knew at the time that he was facing the possibility--and strong possibility--of being declared a career offender, following his extensive criminal record, and that he could spend many, many years in the penitentiary.

Following this ass essme nt of the petitioner’s credibility, the trial court clearly placed gre at weight upon the testimony o f the petitioner’s court

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appointed counsel and very little, if any, upon the testimony of the petitioner.

The test for de termining wh ether trial counsel pro vided effective assist ance to his or her clie nt rests on wh ether c ouns el’s pe rform ance is within the ra nge of co mpete nce de mand ed of attorn eys in crim inal case s. See Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). The burden is on an appellant to show that representation was deficient in that counsel made errors so serious that she or he was not functioning as “counsel” as guaran teed by th e Sixth Am endm ent. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Where a defendant pleads guilty, he must show that but for counse l’s errors he would n ot have plead ed guilty and wo uld have insisted o n going to trial. See Hill v. Lockhart 474 U .S. 52, 59 (1985); see also State v. Neal, 810 S.W.2d 131, 138-39 (Tenn. 1991) (reiterating the standard in Hill).

The trial court’s findings of fact in a post-conviction proceeding are afforded the weight of a jury verdict and are conclusive on appeal unless the evidence in the record preponderates against them.1 See Caruthers v. State, 814 S.W .2d 64, 67 (Tenn . Crim. A pp. 199 1); Butler v. Sta te, 789 S.W.2d 898, 899-900 (Tenn. 1990). Petitioner bears the burden of establishing that the evidence preponderates against the post-conviction court’s find ings of fac t. See Black v. S tate, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Petitioner did not carry his burden in the trial court and he has not carried his burden here.

1 This pe tition was filed in 1 994 an d is contro lled by the pre -1995 P ost Con viction Act.

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The jud gmen t of the trial cou rt dismiss ing the pe titioner’s pos t-

conviction relief petition is therefore AFFIRMED.

_____________________________

JOHN EVERET T WILLIAMS, Judge

CONCUR:

______________________________

DAVID G. HAYES, Judge

_______________________________

JAMES CURW OOD W ITT, JR., Judge