IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JANUARY SESSION, 2000 THOMAS FREEMAN, ) NO. M1999-0 0177-CCA-R3-PC

) Appe llant, ) ) ) MARSHALL COUNTY VS. ) ) HON. CHARLES LEE STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Po st Co nvict ion - Clas s C F elon y)

FOR THE APPELLANT : FOR THE APPELLEE : N. ANDY MY RICK, JR. PAUL G. SUM MERS 116 West Market Street Attorney General& Reporter Fayettevi lle, TN 37334 TODD R. KELLEY Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243-0493 MIKE MCCOWEN Distri ct Attor ney General WEAKLEY E. BARNARD Assistant Distri ct Attor ney 407 M C Courthouse Lewisburg, TN 37091-3373

OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE 

# FILED
February 25, 2000 Cecil Crowson, Jr. Appellate Cou rt Clerk-2- 

## OPINION

On December 3, 1997, pursuant to a plea agr

eement, Thomas Freeman, the defendantand ap pellant, ple d guilty in the MarshallCounty Circui t Court to five ( 5) Class C felonies i nvolvi ng the sale, deliver y and possession of schedule I I drugs for which he rece ived an e ffective twelve (12) year s entenc e. H e filed a petiti on for post-convi ction relief

in November of 1998, and the tri al court di smissed the petit ion. On appeal, t he defendant argues thatthe tri al court erred in hold ing that t he defen dant re ceived the effe ctive as sistan ce of c ouns el.

After a revie w of the re cord, we affirm the ju dgme nt of the po st-convictio n court.



## FACTUA L BACKGROUND
On May 6, 19 97, the de fendant was stopped by police office rs for not displayi ng a tax sti ckero n his car. After pol ice dogs aler ted offi cers that t he defendantwas carryi ng drugs, the officer s observed the defendant thr ow a medicine bottle, later f

ound to contai n crack cocaine, on the ground. Ove r two month s later,
on three separate dates, Jul y 25, 1997, July 27, 1997, and July 31, 1997, confidenti al informants purchased crack cocaine from the defendant. Finally , when police officers went to the defendant’s home to arrest the defendant on August 27, 1997 for the abov

e activi ty, t hey found a pil l bottl e containi ng crack cocaine. The defendantwas then indi cted for five sepa rate offen ses. Michael Randles, then of the Public Defender’s Off ice, was appointed to represe nt the defend ant. Soon therea fte r, Mr . Randles entered into plea negoti ations with the Dist rict Attorn ey’s Office. Mr. Randles i nform ed the District Attorney’s of fice that he intended to move to suppres s the c ocaine obtai ned a s a res ult of an autom obile stop. The Assistant

District Attorney as signed to t he case informed Mr. Randles that he would b e willing to negotiate a plea-bargai n on all of the cases only

if Mr. Randles-3-

refrai ned from moving to suppress the evide nce. After i nvestigat ing all of the charges against t he defendant and consi dering his chances ofsucceed ing on the suppression motion , Mr. Ran dles inform ed the d efenda nt that, in his o pinion, a plea barga in would be desir able. The defendant agreed, and, followi ng brief negot iations between the District Attorney’s Off ice and Mr. Randl es, the defend ant pled g uilty to the cha rges in ex chang e for an e ffective twelve (12) year p rison sen tence. In November of 1998, the defendant challenged the convict ions, claiming t hat he had entered i nto the pl ea agreement invol untaril y because he had been denied the effective as sistance of couns el. More s pecifically, the defend ant claim ed that Mr

. Randles failed to move to suppres s the evidence obtained as a result of the search of the de fenda nt’s car; that Mr. Ran dles failed to mo ve to sup press the de fenda nt’s confession; that Mr . Ran dles fa iled to m ove to s uppre ss the audio tapes made b y a confidenti al infor mant ; and, fi nally, that Mr. Randles erroneousl y advised t he defendantto stay i n jail , rathe r than to mak e bon d, so th at the d efend ant co uld receive medical tr

eatment. The tr ial cour t fou nd that the defend ant had failed to carry hi s burden of prov ing that Mr . Randles had been i neffective. 

## INEFFECTIVE ASSISTANCE OF COUN SEL
When a petitio ner seeks post-conviction relief on th e basis of ineffective assistance of counsel, the petit ioner bears t he burden of showing t hat (a) t he servicesrendered by t rial coun sel were defi cient and ( b) the defici ent performance
was prejudicia l. Powe rs v. State , 94 2 S. W.2d 5 51, 558 (Ten n. C ri m. App.19 96). In orderto d emo n strate def icient performance, t he petiti oner must show that the servicesrendered o r the advice give n was b elow "the range of competence demanded of attorney s in crimin al cases ." Baxte r v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). In or

der to demonstrate prejudice, the petiti oner must showthat there is a reas onab le prob ability tha t, but for c ouns el's de ficient p erform ance , the res ult of the proceeding wo uld ha ve been different. Strickl and v. Washington , 466 U. S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674 (1984). "Because a peti tioner1 Although the trial court did not specifically find the defendant’s testimony incredible on the record, Mr. Randles’ testimony di rectly contradict

ed the defendant’s on thi s point, and the trial court h eld that the defend ant did no t carry his bu rden. -4- must establi sh both prongs of the test to prevai l on a clai m of ineffecti ve assistance of c ounsel, failure to prove eit her defici ent performance or result ing prejudi c e providesa suffic ient ba sis to deny re lief on the cla im." Henley v. State , 960 S.W.2d 572, 580 (Ten n.1997) "Indeed , a court ne ed not a ddress th e com ponen ts in any particul ar order or eve n address both i f the defendan t makes an insuffi cient showi ng of one co mpon ent." Id. "More over, o n app eal, the finding s of fact made by the tri al court are conclusive and willnot be dist urbed unless the evidence contained i n the record prepon derates against th em." Adkins v. State , 911 S.W.2d 334, 347 (Tenn. Cri m. App. 1994) . "The bur den is on t he peti tioner to show t hat the evidence prepon derated against th ose findin gs." Id. In this case, testimon y at the post-convict ion hearing revealed t hat the defendanthad not made a statement to po lice; thus, the re was n o confe ssion to suppress. Furthe rmor e, altho ugh M r. Ran dles o riginally c onsid ered t rying to suppress the cocaine f ound as a result of the automobi le stop, he decided against it for tact ical reas on s relati ng to the pl ea negotiati ons. The defendant h as not demonstrated that any further investi gation wouldhave yiel ded any evidence hel pful to the de fenda nt. Fina lly, the trial c ourt im pli citly fo und th at the d efend ant’s testimony, that he was coer ced into confessing because Mr. Randles told the defendant that

he would recei ve medical care in pris on, was incredible. 1 In short, the petit ioner has not establi shed that hi s attorney provided defici ent performance at tri al or on appeal . Moreover, he has not demonstrated a reasonable probabi lity that, due t

o his attorney's al leged defi ciencies, the result of the pro ceed ing wo uld ha ve bee n differe nt. Acc ording ly, the tria l court p roper ly denied the petition for post-co nviction relief. The trial cour

t's judg ment i s AFFI RMED.

___________________________________ JERRY L . SMI TH, J UDGE-5-

CONCUR:

___________________________________ THOMAS T. WOODALL, J UDGE

___________________________________ L. T. LAFFER TY, S ENIOR J UDGE