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Drummer v. State8/29/2001
ineffective performance affected the outcome of the plea process. Id. at 370. In this case, we find no causal connection between the Appellant's reasons for pleading guilty and his allegations of counsel's deficient performance. In sum, we find nothing in this record which remotely suggests that counsel's alleged deficiencies affected the outcome of the plea process. Nonetheless, we proceed to examine the Appellant's claims of ineffectiveness.
To succeed in a challenge for ineffective assistance of counsel, the Appellant must demonstrate that counsel's representation fell below the range of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d at 936. Under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984), the Appellant must establish (1) deficient representation and (2) prejudice resulting from the deficiency. In the context of a guilty plea, to satisfy the second prong of Strickland, the Appellant must show, "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. at 59, 106 S. Ct. at 370; Walton v. State, 966 S.W.2d 54, 55 (Tenn. Crim. App. 1997). The Appellant has the burden of proving the allegations in his or her petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997). The issues of deficient performance by counsel and possible prejudice to the defense are mixed questions of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). "A trial court's findings of fact underlying a claim of ineffective assistance of counsel are reviewed on appeal under a de novo standard, accompanied with a presumption that those findings are correct unless the preponderance of the evidence is otherwise." Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). However, conclusions of law are reviewed under a purely de novo standard, with no presumption of correctness. Fields, 40 S.W.3d at 458. Applying the foregoing principles, this court must determine whether the evidence preponderates against the post-conviction court's finding that the Appellant received the effective assistance of counsel. Henley, 960 S.W.2d at 580.
Our review of the record reveals that the Appellant has failed in his burden of overcoming the findings of the post-conviction court. Although the Appellant identified several names of witnesses at the hearing which he contends would have supported an alibi defense, these witnesses were not produced at the hearing. This court is not required to speculate as to what the alleged alibi witnesses could have testified to if produced at the hearing. State v. Black, 794 S.W.2d 755, 757 (Tenn. Crim. App. 1990). Moreover, we agree with the post-conviction court's findings that the proof does not establish trial counsel failed to thoroughly conduct pre-trial investigation, failed to develop appropriate trial strategy, or improperly advised the Appellant regarding parole eligibility.
CONCLUSION
Based upon the foregoing, we find that the post-conviction court did not err in ruling that the Appellant received effective assistance of counsel. Accordingly, the judgment of the post-conviction is affirmed.
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