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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE NOVEMBER 1997 SESSION

FILED
December 23, 1997 Cecil W. Crowson Appellate Court Clerk

WILLIE JOSEPH LAGANO, Appellant,

v.

STATE OF TENNESSEE, Appellee.

) ) ) ) ) ) ) ) ) ) )

No. 01C01-9701-CC-00009 Lincoln County Honorable Charles Lee, Judge (Post-Conviction)

For the Appellant: N. Andy Myrick, Jr. 116 West Market Street Fayetteville, TN 37334

For the Appellee: John Knox Walkup Attorney General of Tennessee and Elizabeth B. Marney Assistant Attorney General of Tennessee 450 James Robertson Parkway Nashville, TN 37243-0493 W. Michael McCown District Attorney General and Weakley E. Barnard Assistant District Attorney General 215 E. College Street P.O. Box 904 Fayetteville, TN 37334

OPINION FILED:____________________

AFFIRMED Joseph M. Tipton Judge

OPINION

The petitioner, Willie Joseph Lagano, appeals as of right from the judgment of the Lincoln County Circuit Court denying him post-conviction relief. He was convicted in September 1995 upon his guilty pleas for the offenses of aggravated burglary, a Class C felony, and theft of property worth over one thousand dollars, a Class D felony. He was sentenced to six and three years, respectively, to be served concurrently to each other but consecutively to a revoked suspended sentence of four years. He contends that his pleas resulted from the ineffective assistance of counsel and were not knowingly and voluntarily entered. We disagree.

At the evidentiary hearing, the petitioner complained about the fact that his former attorney on the case joined the district attorney general's office during the prosecution and that his trial attorney did nothing about it. He testified that he only met with his trial attorney two or three times and told him that there were alibi witnesses. However, the attorney never talked to the witnesses and kept urging him to plead guilty. He said that the attorney did not investigate the case. The petitioner denied telling his attorney that his witnesses would testify to anything that the petitioner wanted them to say.

The petitioner testified that on the day of the pleas, he kept telling the attorney that he did not want to plead guilty, but the attorney wanted him to plead. The petitioner also said that before the pleas, the assistant prosecutor talked to him about his pleas without his attorney present. He said that he was pressured to plead guilty. The petitioner denied reading the petition to plead guilty or the guilty plea document, although he signed them. When asked if he committed perjury in his answers to the trial court's questions about those documents at the guilty plea hearing, the petitioner said that his attorney had told him to say yes to everything he asked.

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The trial attorney testified that he met with the petitioner four times and that the petitioner mentioned alibi witnesses, but it was to the effect that they would say anything for him. The attorney did not interview the witnesses because he thought it involved perjury. However, he talked to the arresting officer who found a stolen shirt on the petitioner. He had a discovery conference with the prosecutor and went over the preliminary hearing tape. He stated that he went to the two pawn shops in Alabama where stolen items had been found. At one shop, the person specifically described the petitioner. At the other, the pawn ticket had the petitioner's social security number on it. The attorney said that the petitioner also told him that there were other items not yet found by the police.

The attorney testified that the petitioner did not tell him about his former attorney presenting a conflict of interest. Also, he recalled the assistant prosecutor talking to the petitioner on the day of the pleas, but it was mainly casual conversation taking about two minutes. He denied walking away during the conversation.

The attorney acknowledged that the petitioner had a difficult time deciding what to do. However, he denied putting any pressure on him to plead. He stated that he went over the petition to plead guilty in detail with the petitioner and explained to the petitioner his rights. He believed that the petitioner understood everything. Also, he denied telling the petitioner to answer yes to all of the trial court's questions at the hearing.

The petitioner's attorney at the preliminary hearing testified that the former attorney who joined the district attorney general's office took no part in the hearing. The district attorney general testified that the petitioner's former attorney was shielded from the rest of the staff with strict orders not to communicate about the case. He said that he knew of no improper communication.

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Stacey Atchley testified that she had known the petitioner for three years. She said that the nights the burglaries1 were supposed to have happened, the petitioner was with her. She stated that he did not bring anything into her house and there was nothing in her car, which the petitioner used. She said that she would not lie for the petitioner and that she had been available to testify on his behalf. She described their relationship as more than just friends, but she denied any romantic involvement.

In a post-conviction case, the burden is on the petitioner to prove his grounds for relief by clear and convincing evidence. T.C.A.

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