1 The facts are dr awn from this

Court’s opini

on on direct appeal.See State v

. Sepulveda , 1997 WL 351107, *102, Sevier County, No. 03C01-9402-CR -00069 (Tenn. Crim. App., filed June 26, 1997, at Knoxville). 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE September 26,

2000 Session

J.Y. SEPULVEDA v. STATE OF TENNESSEE

Post-Conviction Appeal from the Circuit Court for Jefferson County

No. 15,954 Rex Henry Ogle, Judge

No. E1999- 02766-CCA- R3-PC July 27, 2001

This is an appeal fr o m the denial of the appellant, J. Y. Sepulveda’s petition for post-conviction relief on the grounds that he was denied the effective assistance of counsel at the pre-trial s tage of the prosecution. Appellant also alleges that the trial judge erred in not allowing testimony atthe postconviction hearing concerning ineffective assistance of trial counsel during trial. We find that none of these issues constitute error and affirm the trial court’s denial of the petition for post-conviction relief.

Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Circuit Cour

t is Affirmed.

J ERRY L. S MITH , J., delivered the opinion of the court, in which J OSEPH M. T IPT ON , and J AMES C URWOOD W ITT , J R ., JJ, joined.

Tim S. Moore, Newport, Tennessee, for appellant, J. Y. Sepulveda.

Paul G. Summers, Attorney General & Reporter; Patricia C. Kussma nn, Assistant Attorn

ey Genera l; Al Schmutzer, Jr., District Attorney General; and Michael Murphy, Assistant District Attorney , for appellee, State of Tennessee.

OPINION

Factual Backgrou

nd On August

6, 1991 1 , ninety-fi

ve year old

Cora Nicholson was found lying injured on the floor of her home, the victim of a b eating. As the police investigated, they noticed blood on a broken window of the house and inside the house. The appellant, Mrs. Nicholson’s neighbor, had a fresh cut on his hand. The appellant stated that he cut his hand trying unsuccessfully to get into the house to aid the victim. The appellant was advised of his rights at the scene and was asked to come to the police station for questioning. As they were leaving the scene, the officers overheard the appe llant2 On direct app eal, this Court m odified the c onviction fo r especially aggravat ed burglary

to a convi

ction f or aggravated

burglary in light of its decision in State v. Jehiel Fi elds
, Bradley C ounty, No. 03C01-9607-CC-00261, 1997 WL 122756 (Tenn. Crim. App. fil ed March 18, 1997, at Knoxville) , in which we held that a def

endant who is convi

cted of both first degre e murder and espe cially aggravated burglary must have the espec

ially aggravat

ed burglar

y convict

ion reduced to an aggravated burgl ary convicti

on because the “act

of killi ng the vict

im constit

uted the ‘serious bo dily injury’ that was used to enhance the burglary o ffense to espe cially aggravate d burglary. See Sepulveda , at *9.

3 The appellant w as sentenced by this Court to five years for the aggrav ated burgla ry conviction

. See Sepulveda
, at *9.

-2- tell a family member to call his attorney. Afte r arriving at the police station, the appellant was seated in the lobby to await the arrival of his attorney. The appellant waited for two hours. The appellant grew impatient and appr

oached an offic

er and asked to

make a statement. The ap

pellant was aga

in advisedof his rights and s igned a waiver

of those rights and gave a statement to Officer McCarter. In this statement,

the appellant adm

itted breaking i

nto the house with David Johnson, the appellant’s brother-in-law, but insisted that Johnson had inflicted the woun ds on the victim. The appellant claimedthat he acted only to prevent further injury . The appellant was then arrested for the

bur glar y. The appellant

remained in jail and, in the subsequent w eeks, gave two

additional stateme

nts to the police which were essentially the same as the first statement.

Based on those statements, the police arrested Johnson, w ho claimed the app

ellant had inflict

ed the wounds on the v ictim. The police requested that each take a polygraph test. While answer

ing preliminary

questions prior to

the polygrap h test, the defend

ant confessed to b

eating the victi

m. Ms. Nicholson eventually died, twelve weeks after the attack and before the appellant’sfinal incrimin ating st atement. Following a jury trial the appellant was convicted of fe lony murder, especially aggravated

burglary and theft of less

than five hundre

d dollars. 2 The jury sentenced the appellant to life for the murder and the trial court sentenced h im to t en years for the burglary and eleven months twe

nty-nine da

ys for the th

eft. 3 Ineffective Assistance of PreTrial Counsel The appel lant contends that he was denied effective assistance of counsel before the tri a l because the appellant’s pretrial counsel allowed the police to interview the appellant without counsel attending. The standards by

which ineffecti

veness of counse

l is judged in Tenn

essee are set f

orth in Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn.1975), which requires that the advi ce giv en, or the services re ndered by t

he attorney

, be within the ran

ge of competen

ce demanded of a

ttorneys in criminal cases. The rule devised by the United States Supreme Court in Strickland v. Washington
, 466 U.S. 668, 104 S.Ct.

2052, 2064, 80 L.Ed.2d 674 (1984), provides: First
, the defendant mus t show that counsel's performanc e was deficient.

Thi s requires showing that counsel made e rrors so serious that counsel was not functioning as the "counsel" guaranteed the def endant b y the Sixth Amend ment. Second, the de fendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless the defendant makes bothshowings, it cannot be said that the conviction or ... sentence resulted fr om a breakdown in the adversary process that renders the result unreliable.-3-

The findings of fact of the trial judge on pos t-convict ion hearings are conclusive on appeal unless the eviden ce preponderates against the judgment. Vermilye v. State , 754 S.W.2d 82, 84 (Tenn. Crim. App. 1987); Turner v. State , 698 S.W.2d 90, 91 (Tenn. C rim. App. 1985); Janow v. State
, 4 Tenn. Crim. App. 195, 470 S.W.2d 19, 21 (1971). A review of the record in this case does notconvince us that the proof preponderates against the judgment entered by the trial court denying post-conviction relief. The trial court at the initial hearing on whether to suppress the appellant’s statements held, and this Court agreed, that, while the appellant’s counsel’s failure to be present during the appellant’s questioning by police and the subsequen

t polygrap h test was not a des

irable practice, this impropriety

was mitigated by the

actions of the appellant. The appellant repeatedly approache d law enforcement

seeking to provide information about his accomplice. He was informed of his right not to speak and his right to counsel eight times and signed a wa iver of those rig

hts on seven of thos

e occasions. The appellant sought out law enforcement at every turn and repeatedly

professed to his pretrial counsel his innocence and his desire to cooperate with law enforcement. Also, there is no evidence in the record that, given the spontaneous nature of the appellant’s confession, his attorney could have stopped the a

ppell ant from making the incriminating statement. The appellant cannot show that he has be

en prejudiced by

the actions of his a

ttorney pri

or to trial. In State v. Washington , this Court held that the absence of counsel while the def en dant testified at the trial of a co-defendant did not “co nstitute ine ffective assistance per se .” State v. Washington
, Williamson County, No. C.C.A. 86-142-III , 1986 WL 148 12, *1 ( Tenn. Crim. App. filed Dec. 30, 1986, at Nashville). This Court further stated that even if the actions of c

ounsel fell below the prevailing professional standard, prejudice must be shown. Id. at *2. In finding that the de fendant in Washington was not prejudiced, the Court relied on the fact that the defendan t wa s clearly advised of the ramifications tha t might result

from his testimony, the fact that the defendant had made p revious inculpatory statements following ar rest, and the defendant’s acknowledgment that the testimony was given voluntarily. Id. The instant case is

similar to Washington . The appellant had voluntarily admitted to breaking into the victim’s home for the purpose of robbing her during his initial interview with police before requesting counsel. The tria l court a l so found that not only had appellant given his statement voluntarily, he sought out law enforcement on several occa sions to offer cooperation. The trial court failed to find that but f or the ineffective assistance of pretrial counsel there

was a reasonable probability that the outcome would have been di fferent. We conclude that the evidence does not preponde rate against th

e findings of the

trial court. Therefore, the issue is without merit. Ineffective Assistance of Trial Counsel The appellant also contends that the trial court erred b y refusin g to consider testimony concerning the ineffectiveness of trial counsel because it was not raised in the petition for post

conviction relief. Tennessee Code A

nnotated § 40-30-

206(d), provides

as follows: The petition must contain aclear and specific statement of all grounds upon which relief is sought

, including full

disclosure of the factualbasis of those gr ounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be su fficient to warrant any further proceeding s. Failure to state a-4-

factual basis for the gr

ounds alleged sh

all result in immedia

te dismissal of

the petition. If, however, the petition was filed pro s e, the jud ge may enter an order stating that the petitioner must file an amended petition that compli es with this section within fifteen (15) days or the petition will be dismissed.

Tenn.Code Ann. § 40-30-206(d).

The trial court did not err by initially refusing to con sider testi mony concerning the ineffectiveassistance of

trial counsel. The petition does not contain a clear and specific statement of the grounds upon

which relief is so

ught, nor does it c

ontain a full disclo

sure of the fact

ual basis of the grounds asserted. The petition specifically states that the appellant was de nied the effective assistance of counsel by Mr. Miller, his attorney befor e trial. However, no mention is made of the appellant’s trial counsel or possible ineffectiveness on his part. As we hel d in Pewitt v. State , 1 S.W.3d 674, 676 (Tenn. Crim. App. 1999), “the bare allegations tha

t counsel failed to

interview witness

es, failed to

discover evidence not disclosed by the prosecution and failed to make proper objections during the trial carry neither a hint of deficient performance by counsel nor a glint of those actions prejudicing the petitioner at his trial.” Furthermore, the record indicates that the trial court allowed the appellant to make an offer of proof at the hearing on the petition for post-conviction relief. The offer of pr oo f consisted of t esti mony supporting the a

ppellant’s conte

ntion that trial cou

nsel was ineffec

tive in failing to c

all

a pathologist to testify regarding the cause of de ath o f the victim. Due to the testimony of other medical personnel for both the prosecution and defense at trial, the trial court found that the testimonyof a

pathologist would have gone only to the weight of the evidence alrea dy presented and didnot rise to the level of ineffective assistance of counsel. Furthermore, the trial court found no

ev idence of prejudice. The burden is on the appellant to show that the evidence pre ponderate s against the findings of the trial court. Clenny v. State , 576 S.W.2d 12 (Te nn. Crim. App. 1978). This burden has not

been met. The trial court properly denied the appellant’s request for re lief on t he basis of ineffective assistance at tri

al. CONCLUSION In consideration of

the foregoing and the

record as a whole, the judgment of the trial court is AFFIRMED.

___________________________________ JERRY L. SMITH, JUDGE