IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JIMMY DALE SMITH v. STATE OF TENNESSEE

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 appellate counsel. Following a hearing, the post-conviction court denied the

defendant’s petition, and the petitioner appeals that ruling here. Based on our review of the briefs

and of the record, we conclude that this is an appropriate case for affirmance under Rule 20,

Tennessee Court of Criminal Appeals Rules.

On appeal, the petitioner argues that his appellate counsel was ineffective because, following

the petitioner’s trial, appellate counsel argued in the motion for new trial that trial counsel was

ineffective, but failed to present any evidence to prove the petitioner’s claims. The petitioner also

argues that appellate counsel’s argument in the motion for new trial effectively foreclosed any postconviction opportunity the petitioner had to litigate his trial counsel’s ineffectiveness, because the

issue of his trial counsel’s ineffectiveness had been the subject of a prior proceeding, i.e., the new

trial motion, and thus counsel’s effectiveness had been “previously determined” thereby foreclosing

relief on this issue. See, Tenn. Code Ann. § 40-30-206(f).

The petitioner is correct that his trial counsel’s effectiveness has been previously determined.

A post-conviction court shall dismiss any petition for post-conviction relief that claims relief for

issues that have been waived or previously determined. Tenn. Code Ann. § 40-30-206 (f). Section

40-30-206 defines "previously determined" as follows:

(h) A ground for relief is previously determined if a court of competent jurisdiction

has ruled on the merits after a full and fair hearing. A full and fair hearing has

occurred where the petitioner is afforded the opportunity to call witnesses and

otherwise present evidence, regardless of whether the petitioner actually introduced

any evidence.
-2-

Tenn. Code Ann. § 40-30-206 (h). The petitioner presented this claim in his motion for new trial.

After a hearing at which the petitioner testified, the trial court denied the petitioner’s motion, 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 the effectiveness of both trial and appellate counsel.

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

counsel 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 probability that the result of the trial was unreliable or the proceedings fundamentally

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 approach to the

issue of the ineffective assistance of counsel does not have to start with an analysis of an attorney's

conduct. 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-conviction 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

desired it to be presented.” Furthermore, nothing presented in the post-conviction petition or

adduced at the hearing indicates that the petitioner was prejudiced in any way by his appellate

counsel’s performance.

IT IS, THEREFORE, ORDERED that the judgment of the trial court is affirmed pursuant

to Rule 20, Tennessee Court of Criminal Appeals Rules. Because it appears that the petitioner is

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

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JERRY SMITH, JUDGE

____________________________________

DAVID H. WELLES, JUDGE

____________________________________

JOHN EVERETT WILLIAMS, JUDGE