# FILED
September 15, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JULY SESSION, 1998

BETSY JANE PENDERGRAST, ) ) No. 01C01-9707-CC-00307 Appellant ) ) RUTHERFORD COUNTY vs. ) ) Hon. James K. Clayton, Jr., Judge STATE OF TENN ESSEE, ) ) (Post-Conviction) Appellee )

For the Appellant : For the Appellee : Jim Wiseman and John Knox Walkup Sally Schneider Attorney General and Repor ter 131 North Church Street Murfreesboro, TN 37130 Elizabeth B. Marney Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493
William C. Whitesell, Jr. District Attorney General 3rd Floor, Judicial Bui lding Murfreesboro, TN 37130

OPINION FILED: AFFIRMED

David G. Hay

es Judge2 OPINION

The appellant, Betsy Jane Pender grast, appeals the dismis sal of her petition for post-conviction rel ief by the Rutherford County Circuit Court. Specifically, the appellant contends that her tri al counsel was ineffectiv e for failing to provide the State notice of expert testimony and for failing to make a complete o ffer of proof on the excluded witnesses.

After a review of the rec ord, we affirm the judgment of the tr ial court denying the appel lant pos

t-conv iction relief.

The appellant’s convictio n resulted from events wh ich occurred on November 11, 1989. Specifically, on that afternoon, the appellant, her husban d, and several acquaintances gathered to s ocialize and consume alcoho l. Throughout the day, the appellant and her husband, the v ictim, engaged in numerous physical and verbal altercations. An acquai ntance finally separated the t wo by pushing the v

ictim in a chair. Shortly ther

eafter, the victim display ed a knife. The appellant responded to this action by obtaining a knife and a mop from the kitchen. While the vic tim was still seated in the chair, the appellant approached him f rom behind and stabbed him in his chest, resulting

in the victim’s death. See State v. Pendergrast , No. 01C01- 9110-CC-00310 (Tenn. Crim. Ap p. at Nashville, Oct. 8, 1992), perm. to appeal denied , (Tenn. Jan. 25, 1993). This ev idence was sufficient for a jur y to convict the appellant of second degree murder.The jury’s verdi ct was affirmed on direct appeal by this court. See Pendergrast , No. 01C01-9110-CC-00310. The appellant is currently incarcerated in the Tennessee Department of Correctio n where she is serving a twenty

-five year sentence for t his conviction.

On February 1, 1996, the appel lant filed the instant petition for postconviction relief. The tr ial court summarily g ranted the State’s motion to dis miss the1 Post-convict ion counsel a lso all eged that t he appellant ’s righ t to confr

ontati on was violat ed and that t rial co unsel was inef fective for fail ing to ra ise the t heory of sel f-defense. Issues involv ing th ese allega tions are n ot pre sen ted in this a ppe al. 3 petition upon grounds that the petition was time-barr ed under the statute of limitations. On appeal, a panel of this court determined that the statute of limitations had not yet run on the appellant ’s right to file a petit ion for post-conviction relief. See Pendergrast v. State , No. 01C01-9607-CC-00289 ( Tenn. Crim. App. at Nashville, May 16, 1997). Accordingly, this cause was remanded to the trial court for a hearing on the merits of the petition. Id

.
An evidentiary heari ng on the merits of the petition was held on July 15, 1997. At the hearing, the appel lant’s appointed counsel arg ued that the appellant was denied effective repres entation by trial counsel because trial counsel failed to provide the State advance notice, pursuant to Rule 12.2, Ten n. R. Crim. P. , of his intent to submit expert w itnesses regarding the “battered woman syndr ome” and because, when such evide nce was excluded by the trial court, defense counse l made no offer of proof for the record. 1 No proof on this issue w as presented at the post-conviction heari ng. Rather, the appellant r elied solely upon the arg ument of post-conviction counsel . The appellant, in essence, ask s this court to find trial counsel deficient for failing t o present before the jury the testimony of three witnesses who would have testified concerning the “battered woman syndrome.” “When a petitioner conten ds that trial counsel failed to . . . present witnesses in support of his defense, these witnesses should be presented by the petitioner at the evidentiary hearing.” Black v. State , 794 S.W.2d 752, 757 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1990). “As a gener al rule, this is the onl

y way the petitioner can establish th at (a) a material witness existed . . . and ( d) the failure to have a known witnes

s present or call the w

itness to the stand resulted in the denial of critical evidence which inured to the prejudice of the petitioner.” Id . The trial court determined that the appella nt’s complaints warr anted no relief and dismissed the petition. Specifically , the trial court found that any testimony regarding

the4

“battered woman syndrome” “would have been hears ay as this Defendant was never examined by thi s expert witness.”

The appellant’s petition for post-conviction relief is not include d in the record before this court; neither is a transcript of the trial proceedings, relied upon b y the appellant before the trial cour t and on appeal. Notwithst anding the instruction i n the appella nt’s brie f as to whe re this cou rt may fin d the pert inent pa rts of th e record, we remind the appellant that it i s her duty, and notthe duty of this court, to pr epare an adequate record on appeal. Tenn. R . App. P. 24(b); State v. Ballard , 855 S.W.2d 557, 560 (Tenn. 1993); State v. Banes , 874 S.W.2d 73, 82 (T enn. Crim. App. 1993), perm. to appeal denied , (Tenn. 1994) (citations omitted). The failure to so prep are the record precludes this court from completing a meaningf ul review, and, thus, determining the issues pr esented. Ballard , 855 S.W.2d at 561; Banes , 874 S.W.2d at 82 (citations omitted).

Again, no proof was present ed at the evidentiary h earing. Rather, the appellant relied solely upon the argument of counsel to supp ort her allegations. It is well established that the argument of counsel is not ev idence. See State v. Roberts , 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). Likew ise, neither are the recitation of facts or argument of counsel contained in the briefs. Id . (citations omitted). When no evidence is preserv ed in the record for revi ew, we are hindered in our review of the i ssue. Roberts , 755 S.W.2d at 836. Conse quently, the absence of any evidence in the rec ord, leads us to conclusiv ely presume that the finding s of fact and conclusions of law made by the trial court are cor

rect. See Roberts , 755 S.W.2d at 836.

In order to prove that coun sel was ineffective, the appellant must show that counsel ’s represe ntation fell belo w the range of comp etence d emande d of atto rneys in criminal cases, Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975), and, that, but5

for these errors, the result of the proceeding would hav e been different. Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 2068 (1984); State v. Melson , 772 S.W.2d 417, 419 n.2 (Tenn.), cert. denied , 493 U.S. 874, 110 S.Ct. 211 (1989 ). In light of (1) the strong presumption of satisfactory r epresentation, Barr v. State , 910 S.W.2d 462, 464 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1995), and (2) the appellant’s failure to present any evidenc e, she cannot prove her all egations contained in her “petition” by clear and convinc

ing evidence. See Tenn. Code Ann. § 40-30-210(f) (1995 Supp.).

Accordingly, the j udgment of the trial court is affirmed.

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

______________________________________ PAUL G. SUMMERS, Ju dge

______________________________________ JERRY L. SMITH, Jud ge