### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs J une 19, 2002
RICKY LEE NETHERTON v. STA TE OF TENNESSEE
Direct Appeal from the Criminal Court for Cum berland County No. 5321 Lillie Ann Sells, Judge

No. E2 001-0 2989- CCA-R3 -PC December 4, 2002

The petitioner, Ricky L

ee Netherton, was convicted by a jury in the Criminal Court of Cumberland County of es pe ci al ly a ggr av at ed ro bb er y, a Cl as s A fe lo ny. The trial court sentenced the petitioner
as a violent

offender to twenty -four

years inc arceration in the Tennessee Depa rtment of Correction to be served at onehundred percent (100%). Following an unsuccessful appeal of his conviction, the petitioner fileda petition for post-conviction relief, alleging, among other grounds, ineffective assistance of counsel. The petit ioner now brings t his appeal challenging the post-c onviction court’s denial of his petition. After reviewing the record and the parties’ briefs, we affirm the judgment of the post- convicti on court. Tenn. R. App.P. 3 Appeal as of Right ; Judgme nt of the Cr

iminal Court is Affirm

ed.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and D AVID H. W ELLES , J., joined.
C. Douglas Fields, Crossville, Tennessee, for the appe llant, Ricky L

ee Netherton.

Paul G. Summ

ers, Attorney Gene

ral and Reporter; Renee W. Turner, Assistant Attorney Genera l; William E. Gibs on, District Attorney Gene ral; and Anthony J. Craighe ad, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION I. Fact ual Backgro

und The State’s proof at

trial showed that, on September 28, 1998, the petitioner entered
a bar owned by the victim. The petitioner approached the victim and inquired about sever al guns the victim had previously obtained fr om the petitioner. After the victim claimed that he no longer had the guns, the petitioner pointed a gun at the victim’s head, saying, “ You’re killing my brother. I’ve got to kill y

ou.” The vi ct im at te mp te d t o k no ck th e g un aw ay, but in doing so caused the gun to disch arge sen ding t he bul let t hrough the victim’s hand and into his leg. The petitioner pointed the gun at the vic tim a seco nd time an d again the victim

attempte d to kn oc k t he gu n a wa y. This time the gun discharged sending the bullet into the floor. The petitioner then demanded the money from1 Tennessee Code A nnotated section 40-35-501(i)(1) provides that t here shall be no release eligibility for a per son c omm itting certain viole nt off enses, such as especially aggravated robbery. “Such person shall s erve one hundred percent

(100%) of the s entence imposed by the court less sente nce credi ts earned and ret ained. ” Id.
-2- the cash register

and out of a

back room. The victim’s wife gave the pe titioner the money and the petitioner left the bar. The Cumberland County Sheriff’s Department later arrested the petitioner, finding two hundred ninety dollars in his pocke t. A search

of the petitioner’s vehicle revealed two hundredsixty-two dollars in the console and a .22 caliber revolver under

the driver’s seat. An

agent withthe Te nness ee Burea u of Inves tiga t ion testified at trial that the bullet recovered from the victim’s leg was fired from the revolver f ound in the petitioner’s vehicle.

The jury convicted the pe

titioner of especially a

ggravated robber

y, and the trial cour

t initially sentenced the

petitione r as a sta ndard Ra nge I offende r to twenty-four y

ears incarceration to be served a t thirty percent (30% ). However, the trial court later amende d the petitioner’s judgment form pursuant to Tennessee Code Ann otated sec tion 40-35-501(i)(1) (Supp. 2002) by reclassify ing the petitioner as a violent offender required to serve one hundred percent

(100%) o f his sentence. 1 On direct appeal, the petitioner challeng ed the validity of the indictmen

t and the l ength of his sentence. This court found no error and aff irmed the petitioner’s convictionand sentence. Statev. Ricky L

ee Netherton , No. E2000-01016-CCA-R3-CD, 2000 Tenn. Crim. App. LEXI S 928 (Knoxville, Dec. 6, 2000).

The pet itioner ti mely filed a pro se petition for post-conviction relief, alleging, among other grounds, ineffective assistance of c ounsel. The post-conviction court appointed counsel and
on August 29, 2001, held a hearing at which ne it he r t he pe ti ti on er no r t he St at e p re se nt ed te st im on y. The petitioner argued that the evidence pr esented at trial was insuffic ient to sup port a conviction for especia lly aggravated robbe

ry beca use the evidence failed to show t hat the victim had sustained “serious bodily injury” or that the injury oc curred as a result of the robbery

. The petitioner further asserted that counsel was ineffective for failing to raise these issues at trial and on appeal and that this in effectiveness prejudiced the petitioner bec ause the petitioner’s conviction of especial l y aggravated

r ob be ry i nc re as ed hi s r an ge of pu ni sh me nt an d e li mi na te d h is re le as e e li gi bi li ty. Ad di ti on al ly, the petitioner alleged that counsel was ineffective for failing to object to the testimony of the State’s expert witness regarding the victim’s injury . In response, the S tate argued tha t the petitioner’s claims of

ineffe ctive as sist ance of counsel were actually

claims challenging the sufficiency

of the evidence and, therefore , the claims were inappropriate for post-conviction review.
The post-conviction court denied the petition for post-conviction relief, finding that the petitioner did notprove by cle ar and convincing evidence that his trial counse l was ineffective. Sp ec if ic al ly, the post- convicti on court d etermined that th e petitio ner’s claims challenging the sufficiency

of the evidence were issues properly presented to and de cided by th e jury and did not “raise a cla im of constitution[al] dimension as required by the Post-Conviction Procedure Act.” Moreover, the post-conviction court found that the p etitioner

failed to show how counsel’s failure to raise the

sufficie ncy of the evidence i ssues on a ppeal pr ejudice d the petitioner. F inally , the postconviction court concluded that counsel’s failure to object to the testimony of the State’s ex p ert-3-

witness , w hether trial strategy or an oversight, did not “rise to the level necessar y to prove that [counsel’ s] repres entation fell belo w an obje ctive sta ndard of reasona ble ness, nor ha s [the petitioner] proven any pr

ejudice therefrom.”
II. Analysis On appeal, the peti tioner asserts that the post-conviction court, by finding that the petitioner was challen gi ng the sufficiency of the ev idence, “misinter

preted”the petiti oner’s c laim for post-conviction relief. The petitioner maintains that his claim for post-conviction relief is one of ineffective assistance

of counsel. Specifically , the petitioner argues that counsel was ineffective in failing to challenge, at trial and on a ppeal, both “the sufficiency of proof to support the allegation that serious bodily injury

occurred” and “the sufficiency of proof of a knowing or intentional act of robbery coupled with the use

of a dea dly weapon resulting in serious [b]odily injury to support the indicted charge of Especially Aggravated Robbery .”

In a post-conviction pr oceedi ng, the petitioner bears the burden of proving the grounds raised in the petition by clear and convincing evidence . Tenn. Code Ann. § 40-30-210(f) (1997). “Evidence is clear and convincing when there is no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.” Hicks v. St

ate , 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). On appeal, a claim of ineffective assistance of counsel presents a mixed question of law and fact subject to de novo review. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). As such, the post-conviction court’ s finding s of fac t are en titled to a presumpt

ion of cor rectne ss unless the evidence preponderates ag ainst those findings. Fields v. State , 40 S.W.3d 450, 458 (Tenn. 2001). However, a

post-con viction court’s conclusions of law, such as whether counsel’s performance

was deficient or

whether that deficiency

was prejudicial, are subject to a purely de novo review with no presumption of correctness. Id.

When a petitioner seeks post-conviction relief onthe basis of ineffective assistance of counsel, “the petitioner bears the burden of proving both that counsel’s performance was defic ient and that the deficiency

prejudiced the defense.” Goad v. Sta te , 938 S.W.2d 363, 369 (Tenn. 1996) (citi ng Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)).

Because a petitioner must establish both prongs of the test, a failure to prove either

deficie ncy or preju dice pro vides a sufficien t basis to deny relief

on the ineffective assistance claim. Indeed, a cour

t need notaddress the components in any particular o rder or

even ad dress bothif the [petitioner] makes an insufficient sho wing o f one componen

t. Id. at 370

.
To establish constituti onally

deficie nt perfo rmance , the petitioner mus t demonstr ate that counsel’ s r epres entation fell below an objective standard of reasona bleness. Strickland , 466 U.S. at 687-88, 104 S. Ct. at 2064; Burns , 6 S. W. 3d at 46 2. Sp ec if ic al ly, the petitioner must show that counsel’ s perfor

mance w as not within “th e rang e of comp etence demande d of attor

ney s in criminal cases.” Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). On appeal, this court will not-4-

“second guess” the tactical and strateg ical deci sio ns of defense counsel, nor measure the representationby “ 20-20 hind sig ht.” Co oper v. Sta te , 849 S.W.2d 744, 746 (Tenn. 1993). To establish prejudice, the petitioner must show that “the re is a reasonable probability that, but for counsel’s unprofe ssi onal errors, the result of the proceeding would have been different. A
reasona ble probabil

ity i s a proba

bili ty s uffic ient to undermine confidence in the outcome.” Strickland , 466 U.S. a

t 694, 104 S. Ct. at 2068 ; Dean v. St ate , 59 S.W.3d 663, 667 (Tenn. 2001).

Alth ough t he pet itio ner con tends that c ounse l fail ed to c halle nge the sufficiency of the evidenc e, our re

view of th e recor d revea ls otherwise. While counsel did not move for a judgment of acquittal before the jury returned its verdict of guilty, he did file a motion for judgment of acquittal and/or new trial within thirty day s of sentencing in accordance with Rule 29( c) of the Tennessee R u les of Criminal Proc edure, a rguing “[t]he evid

ence co ntained in the rec ord is insuffic ie nt as a m atter of law to sustain a conviction of especially aggravated robbe

ry.” Furthermore, counsel argued at the hearing on the motion for new trial tha t the proo f did not “

rise to the level of proof

bey ond a rea sonable d

oubt.” Cle arly , counsel did challenge the sufficiency of the evidence prior

to direct appeal. We conclude that the petitioner has failed to demonstrate that counsel’s performance was not within the range of competence demand ed of criminal defense attorne ys.

Even assuming that counsel’s performance wa s deficient, the petitioner has failed to show any prejudic e resulting from the defi ciency . The pet itioner a sserts tha

t, if he had b een convictedof

th e l es se r c ha rg e o f a ggr av at ed ro bb er y, he would have received a lesser sentence and would have been eligible for relea se after serving thirty percent (3 0%) of his sentence. However, the petitioner has not shown a reasonable probability that, but for counsel’s error, the petitioner would have been convicted of agg ravated robbery . The State’s proof showed that thevictim in this
case was shot and his money was ta ken. Moreover, the jury

was instructed as to the State’s burden of proof, the elements of especially aggravated robbe

ry and ag gravated robbery , and the definition of what constitutes “serious bodily injury .” Based on the evidence, t he jury found

the petitioner guilty of especially

aggravated robbe

ry, and the tria

l court accepted the jury ’s verdict, stating at the hearing on the motion for new trial that “the Court does believe and adopts the jury ’s verdict, and . . . the evidence was sufficient to support the verdict.” The petitioner has not shown that the jury would hav e reached a dif ferent conclusi on but for

counsel’ s failure

to challenge the

sufficiency

of the evide nce. Thi s issue is without mer it.

The petitione

r also complains that counsel was ineffective in failing to challenge the sufficiency

of the evidence on app e al. Howe ver, the petitione r prese nted no ev

idence at the postconviction hearing

to show tha

t counsel’ s decision to forego challenging the sufficiency

of the evidence on appeal fell below an objective standard of reasonableness. The pe titioner merely ar

gued that, on appea

l, “[t]esting

of the pr oof and a pplicatio n of the c orrespo nding la w is funda

mental to effectiveassistance [of counsel]. This is ‘the stuff’ the lawy ers are supposed to know that others do not, and is one

reason t hey are needed.” Con

trary to the pet

i t ioner’s argument, “there is no constit utional require

ment that a

n attorne y a rgue e very issue on a

ppeal. . . . Gener

all y, t h e determination of which issues to present on appeal is a matter which addre sses itself t o the-5-

profes sional judgment and sound discretion of appellate counsel.” Cooper , 849 S.W.2d at 747 (citing Jones v. Barnes , 463 U.S. 745, 750-51, 103 S. Ct. 3308, 3312 (1983)). The petitione r asser ts that he “can not (sic) imagine

what stra tegy was in [cou

nsel’s] mind that w ould lead counsel n ot to raise these issues.” As previously noted, this co urt will not “second guess” the tactical and strategicaldecisions of

counsel, particularly w

here there has been no evidence presented, such as the testi mony of tr ial or appel late c ounse l at t he pos t-con victi on hea ring, to show thatsuch a decision amounted to deficient representation. Because the petitioner has fa iled to demonstrate deficient performance

on the part of counsel, we need not address the pre judice prong. This issue is without merit.

III. Conclusion

Based on the foregoing , the judgment of the post-conviction court is affirmed.

___________________________________ NORMA McGEE OGLE, JUDGE