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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE NOVEMBER 1998 SESSION

FILED
December 10, 1998

JAMES ROBERT MAJORS, SR., Appellant, VS. STATE OF TENNESSEE, Appellee.

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Cecil W. Crowson Appellate Court Clerk C.C.A. # 01C01-9804-CR-00172 SUMNER COUNTY Hon. Jane W. Wheatcraft, Judge (Post-Conviction)

For Appellant: David A. Simpson, Attorney 113 West Main Street Gallatin, TN 37066

For Appellee: John Knox Walkup Attorney General and Reporter 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.

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