### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE

JIMMY DALE SMITH v. STATE OF TENN ESSEE

Circuit Court for Cheatham County

No. 10-813

No. M1999-00952-CCA-R3-PC - Filed October 4, 2000

ORDER

In 1990, the petitioner, Jimmy Dale Smith, was convicted by a Cheatham County jury of two counts of aggravated kidnapping. On direct appeal, the petitioner

argued, inter alia, that he was denied the effective assistance of counsel at trial. This Court affirmed the conviction on direct appeal. State

v. Jimmy Dale Smith

, No. 01C01-9205-CC-00152, 1995 WL 84021 (Tenn. Crim. App. March 2
, 1995). The petitioner then filed a post-conviction petition alleging that he was denied the effective assistance of app el late counsel. Following a hearing, the post-conviction court denied the defendant’s pe

tition, and the petit

ioner appeals

that ruling here. Based on our review of the briefs and of the record, we conclude that this is an appropriate case for affirman ce under Rule 20, Tennessee Court o

f Criminal Appeals

Rules. On appeal, the petitioner

argues that his a

ppellate counsel was ineffective because, following the petitioner’s tria

l, appellate coun

sel argued in the

motion for new tr

ial that trial counsel was ineffective, but failed

to present any

evidence to prov

e the petitioner’ s claims. The petitioner al so argues that appellate counsel’s argument in the m otion for new tria

l effectively

foreclosed any

postconviction opportu

nity the petit

ioner had to litig

ate his trial counsel’s ineffectiveness, because the issue of his trial c

ounsel’s ineffe

ctiveness had been the subject

of a prior proceeding, i.e., the new trial motion, and thus counsel’s effectiveness had been “previously deter mined” thereby foreclosing relief on this issue. See, Tenn. Code Ann. § 40-30-206(f). The petitioner is c

orrect that his tr

ial counsel’s ef

fectiveness has

been previously

determined. A post-conviction court shall dismiss any petition for post-conviction re li ef that claims relief for issues that

have been

waived or previously determined. Tenn. Code Ann. § 40-30-206 (f). Section 40-30-206 define

s "previously

determined" as

follows:

(h) A ground for

relief is previou

sly determin

ed if a court of competent jurisdiction has ruled on the merits

after a full a

n d fair hearing. A full and fair hearing has occurred where the petitioner is afforded the opportunity to cal l witnesses and otherwise present evidence, regardless of whether the petitioner actually introduced any evidence.-2-

Tenn. Code Ann. § 40-30-206 (h). The petitioner pr esented this claim

in his motion for new

trial. After a hearing at which the petitioner testified, the trial court denied the petition er’s m otion, and this Court affirmed the conviction. Thus, we agree with the trial court that the issue of trial counsel’s effectiveness has been previously determined. The issue of appellate counsel’s effectiveness, however, has not been previously determined, because it was raised for

the first time in the petitioner’s post-conviction petition. Initially , we note that the same principles apply

in determining th

e effectivene

ss of both trial and

appellate counse

l. Campbell v. State , 904 S.W.2d 594, 596-97 (Tenn.1995). When a claim of ineffective assistance of

counse l is made under the Sixth Amendment, the burden is upon the petitioner to show (1) that counsel's performance was deficient and (2) that the deficiency was prejudicial in terms of rendering

a reasonable pro

bability that

the result of the tr

ial was unreliabl

e or the proceedings f

undamentally unfair. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); State v. Melson , 772 S.W.2d 417, 419 n. 2 (Tenn. 1989). Moreover, the ap proach to the issue of the ineffective assistance of counsel does not have to sta

rt with an analysis of a n attorney's conduc t. If prejudice is not shown, we need not seek to determine the validity of the allegations about deficient performance. Strickland , 466 U.S. at 697. At the post-co nviction hearing, the substance of the petitioner’s testimony was that, on appeal, the petitioner wished to proceed pro se. We agree with the trial court that “[i]n view of the quality of Petitioner’s pro se petition for post-conviction relief and his various amendments and motions, appellate counsel would have been ineffective had she presented Petitioner’s appeal as he desiredit to be presented.” Furthermore, n othin g presented in the post-conviction petition or adduced at the hearing indicates that the petitioner was prejudiced in a ny w ay by

his appellate counsel’s performance. IT IS, THEREFORE

, ORDERE

D that the judgment of the trial court is affirmed pursuant
to Rule 20, Tennesse

e Court of Criminal A

ppeals Rule s . Because it app ears that the pet

itioner is indigent, costs of this appeal are taxed to the state.

____________________________________ JERRY SMITH, JUDGE

____________________________________ DAVID H. WELLES, JUDGE

____________________________________ JOHN EVERETT WILLIAMS, JUDGE