The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
NOVEMBER 1998 SESSION
December 10, 1998
Cecil W. Crowson
JAMES ROBERT MAJORS, SR., * Appellate Court Clerk
C.C.A. # 01C01-9804-CR-00172
Appellant, * SUMNER COUNTY
VS. * Hon. Jane W. Wheatcraft, Judge
STATE OF TENNESSEE, * (Post-Conviction)
Appellee. *
For Appellant: For Appellee:
David A. Simpson, Attorney John Knox Walkup
113 West Main Street Attorney General and Reporter
Gallatin, TN 37066
Timothy Behan
Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
Nashville, TN 37243-0493
Sallie Wade Brown
Assistant District Attorney General
113 East Main Street
Gallatin, TN 37066
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
The petitioner, James Robert Majors, Sr., appeals the trial court's
denial of his petition for post-conviction relief. In this appeal of right, the petitioner
claims that his trial counsel was ineffective and that the judgment of conviction
should be set aside.
We find no error and affirm the judgment of the trial court.
On December 16, 1996, the petitioner entered pleas of guilt to stalking,
false imprisonment, assault, driving on a revoked license, evading arrest, and
vandalism over $1,000.00. As a part of the plea agreement, the state did not
prosecute indictment counts for aggravated assault and aggravated kidnapping.
While initially classified as a Class E felony, the stalking conviction was amended
four months later to correctly identify the crime as a Class A misdemeanor. The
effective sentence is two years, eleven months and twenty-nine days.
In his petition for post-conviction relief, the petitioner claimed, among
other things, that his trial counsel had been ineffective for having failed to initially
recognize that the count for stalking was a misdemeanor rather than a felony. He
insists that "he would have pursued his defense differently if the stalking been [a]
misdemeanor...."
The trial court considered the several counts of the indictment, two of
which were for Class B and Class C felonies, and then determined that, despite the
error in the classification of the stalking charge, trial counsel had performed within
the guidelines demanded in the profession.
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When a petitioner seeks post-conviction relief on the basis of
ineffective assistance of counsel, he must first establish that the services rendered
or the advice given was below "the range of competence demanded of attorneys in
criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Second, he
must show that the deficiencies "actually had an adverse effect on the defense."
Strickland v. Washington, 466 U.S. 668, 693 (1984). Should the petitioner fail to
establish either factor, no relief is warranted. As to guilty pleas, the petitioner must
establish a reasonable probability that, but for the errors of his counsel, he would
not have entered the plea and would have insisted on going to trial. Hill v. Lockhart,
474 U.S. 52, 59 (1985).
Under our statutory law, the petitioner bears the burden of proving his
allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). On
appeal, the findings of fact made by the trial court are conclusive and will not be
disturbed unless the evidence contained in the record preponderates against them.
Brooks v. State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on
the petitioner to show that the evidence preponderated against those findings.
Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).
In our view, the testimony at the evidentiary hearing does not
preponderate against the trial court's conclusion that the petitioner would have
entered the negotiated plea regardless of whether the indictment count was for
felony stalking or misdemeanor stalking. The effective sentence is essentially the
same. In fact, the ultimate result was marginally better than the bargain the
petitioner and his trial counsel had made. In the context of all the various charges
against the petitioner, it would appear that trial counsel performed effectively in
achieving an acceptable plea agreement. The record suggests that the result would
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have been acceptable to the petitioner whether the stalking conviction was a
misdemeanor or a felony.
Accordingly, the judgment is affirmed.
_________________________________
Gary R. Wade, Presiding Judge
CONCUR:
_____________________________
John H. Peay, Judge
_____________________________
Jerry L. Smith, Judge
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