# FILED

March 19, 1999 Cecil Crowson, Jr. Appe llate Court C lerk IN THE COURT OF CR IMINAL APPEALS OF TENNESSEE AT JACKSON DECEMBER 1998 SESSION

ISAAC WILLIAMS, ) ) C.C.A. No. 02C01-9802- CR-00049 Appellant, ) ) Shelby County V. ) ) Honorable Joseph B. Dail ey, Judge ) STATE OF TENNESSEE, ) (Post Conviction--Aggravated Robbery) ) Appellee. )

FOR THE APPELLANT: FOR THE APPELLEE: JOHN F. CANALE III JOHN KNOX WALKUP 100 N. Main Building, Suit e 1933 Attorney General & Reporter Memphis, TN 38103 GEORGIA BLYTHE FELNER Counsel for the State 425 Fifth Avenue North Nashville, TN 37243 WILLIAM L. GIBBONS District Attorney Gener al LEE COFFEE Assistant District A

ttorney General Criminal Justice Center, Third Floor 201 Poplar Avenue Memphis, TN 38103

OPINION FILED: ___________________

AFFIRMED

JOHN EVERETT WILLIAMS, Judge-2- O P I N I O N Isaac Williams appeal s as of right from a judg ment of the Shelby County Criminal Court denyi ng his petition for post-c onviction relief. On M arch 31, 1995, following a bench trial, the appellant was convicted of aggravated robbery and sentenced to twenty years’ confinement as a Range III offen der. This Court affirmed his convicti on on direct appeal. See State v. Isaac Williams , No. 02C01-9507-CR-00205 (Tenn. Crim. App. filed Dec.6, 1996, at Jackson). On March 6, 1997, the appellant fi led a pro se petition for pos t-conviction relief alleging that his trial counsel was ineffective. Counsel was appointed, and the appellant filed an amended petition on April 30, 1997. Following an evidentiary hearing, the trial court denied relief. The sole i ssue for our review is whether the evidence preponderates against the findings of the trial co urt. We conclude that it does not and AFFIRM the j udgment of the trial court.

A petitioner alleging ineff ective assistance of counsel bears the burden of showing (1) that his or her counsel's representati on was "deficient" and (2) tha t "the deficient performance pr ejudiced the defense." Strickland v. Washington , 466 U.S. 668, 687 (1984). To show deficient performance, the ap pellant must show that counsel's perfor mance fell below an objecti ve standard of reasonableness under prevail ing professional norms an d must demonstrate that counsel made errors so serious that he was not functioning as "counsel" guaranteed by the Constitution. See Strickland , 466 U.S. at 687. Counsel's performance is not defici ent when "the advice given, or the services rendered by the attorney, are within the range of competence demande d of attorneys in criminal cases." Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975) . A reviewing court must indulge a strong presumption that counsel's conduct fa lls within the range of reasonabl e professional assistance and must evaluate counsel's performance fr om counsel's perspectiv e at the time of the alleged er ror and in light of the totality of the evidence. See Strickland , 466 U.S. at 695.-3- To establish prejudice, a petitioner must demonstrate a reasonable probability that, but for c ounsel's deficient perfor mance, the result of the proceeding would have been differ ent. See id. at 687-88, 692, 694; Best v. State , 708 S.W.2d 421, 422 (Tenn. Cr im. App. 1985). "A reasonable probability is a probability suffic

ient to undermine confidence i n the outcome." Strickland , 466 U.S. at 694.

In post-conviction proceedi ngs, the petitioner bears the burden of establishing his or her factual allegations by cle ar and convincing evidence. See Tenn. Code Ann. § 40-30-210(f) (1997). Evidence is cl ear and convincing when there is no serious or s ubstantial doubt about the correctness of the conclusions drawn from the evidence. See Hodges v. S.C. Toof & Co. , 833 S.W.2d 896, 901, n.3 (Tenn. 1992). The findi ngs of fact of the trial cour t are conclusive and binding on this Court unles s the evidence preponderates agai nst them. See Cooper v. State , 849 S.W.2d 744, 746 (Tenn. 1993) (citing Butler v. State , 789 S.W.2d 898, 899 (Tenn. 1990)). And, on appeal, the appellant bears the burden of illustrating how the ev idence preponderates against the judgment of the trial
court. See Black v. State , 794 S.W.2d 752, 755 (Tenn. Cr im. App. 1990).

The appellant first contends that his trial attorney, Lila Kathleen Mitche ll, was deficient in her exam ination of one of the state’s w itnesses, Officer James Holder. Holder testified at the appellant’s trial regarding fingerprint evidence against the appellant. The appellant contends th at Mitchell was ineffective in failing to retain an expert or to consult a treatise for the purpose of refuting this testimony. The appellant, however, has not shown or even alleged any benefit that might have been attained though expert testimony. Nor has he shown any deficiency in Mitchell ’s cross-examination of Holder or of her knowl edge regarding fingerprint evidence. To the contrary, although Mitchell did not consult a reference on fingerprint evidence specifically f or the appellant’s trial , she-4- testified at the post-convi ction hearing that she was fa miliar with the iss ues regarding such evidence.

Additionally, during his testimony at the appellant’ s preliminary hearin g, Officer Holder indicat

ed the appellant’s offense occur red on March 14, 1992, rather than on the correct dat e of March 24, 1992. The appell ant’s trial counsel candidly admitted at the post -conviction hearing that s he “missed” this factua l inconsistency and, therefore, did not attempt to impeach the witness on this point. Nevertheless, the appellant has not shown a reasonabl e probability that the outcome of the proceeding wo uld have been different had Holde r been impeached. Even if Holder ’s testimony were com pletely disregarded, the remaining evidence, incl uding a videotape of the appellant i n the act of committing the robbery, was overwhelming. In fa ct, Mitchell stated at th e postconviction hearing that it was the “strongest evidenc e” she had ever seen, and that she had advised the appellant,in context of presenting a pl ea offer, that he did not have a "snowball’s c hance in hell" of acquittal. This issue is without merit.

The appellant next argues that M itchell's performance was deficient in that she did not fully advise hi m regarding a plea offer pr esented by the state. The state had offered a range I, eight -year sentence in return f or the appellant's guilty plea. The appellant contends that Mitchell failed to expl ain to him (1) the location at which he would be required to serve his sentence if he accepted this offer and (2) that the state's offer might be withdraw n if he failed to accept. Thus, the appellant asserts, he was precluded from m aking an informed decision regarding the state’s offer. The appellant, however, di d not raise this allegati on in his petition below, and the trial court, therefor e, did not determine the iss ue. As a result, we have no deci sion to review. This issue is without meri t.1 In th e p etitio n b elo w , the ap pe llan t alle ge d a dd ition al d efic ien cie s in the pe rfo rm an ce of h is tri al counsel i ncluding, amon g others, that she f ail ed to int erview or call an alibi witness and that she failed to sho w h im c ertain incrim

inating pho togra phs prior to the d ay o f trail. In this ap

pea l, how eve r, the appell ant does not chall enge the trai l court ’s f indi ng that t hese allegat ions did not establi sh ine ffec tive as sis tan ce of c ou ns el. B ec au se the ap pe llan t be ars the bu rde n o f de m on stra ting to th is Court how the evidence preponderates against the fi ndings of t he tri al court , and because he has not attempted to do so wit h regard to t hese allegat ions, we presume the tri al court ’s f indi ng to be correct an d w ill no t furth er a dd res s th es e a lleg atio ns
. -5- Finally, 1 the appellant alleges that Mi tchell failed to instruc

t him regarding the jury selection proces s. On the day of the appellant’ s trial, the prosecution announced that the jury panel was present and that they were r eady to proceed. The appellant then surprised Mitchell by announcing that he wished to waive his right to a jury trial

and proceed with a bench tri al instead. The appellant ass erts that he took the prosecution’s statement to mean that his j ury had already been selected and that he did not understand that he would have been able to voir dire potential jurors. He stated that he would have pr oceeded to trial by jury h ad he understood the selection proc ess.

The appellant admitted, howeve r, that, having been convicted of seven prior felonies, he understands the criminal justice system quite well. Moreover, he admitted that the trial j udge had instructed him regar ding the jury selection process during the court’ s voir dire of the appell ant prior to accepting his waiver of a jury trial. Thus,the record fully support s the trial court’s co nclusion that the appellant “fully understood what was taking place, that he fully und erstood his right to a jury trial and all that that entailed, and that he freely and volunt arily waived that right.”

We conclude that the evidence i n the record does not preponderat e against the findings of the trial judge. Accordingly, the judgment of the trial court is affirmed.-6- _ ____________________________ JOHN EVERETT WILLIAMS , Judge

CONCUR:

_____________________________ GARY R. WADE, Judge

_____________________________ THOMAS T. WOODALL, Judge