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### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE Assigned on Briefs J

anuary 18, 2001

WILLIAM RONALD JORDAN v. STAT E OF TENNESSEE

Direct Appeal from the Circuit Court for Giles County

No. 7706 Jim T. Hamilton, Judge

No. M1999-01360-CCA-R3-PC - Filed May 2, 2001

The petitioner, Will

iam Ronald Jordan, wa

s convicted by

a jury in the

Giles County

Circuit Court of driving under th

e influence of a

n into x icant (“DUI”) and attempted robbery. The trial court sentenced Petitioner as a multiple Range II offender to six y ears for the attempted robbery conviction and to eleven months andtwenty-nine days for the DUI conviction, with the sentences to be served

con curr ent ly. This court affirmed Petition er’s convictions on direct appeal, and Petitioner subsequently

filed a pro se petition, with two am endments, for post

-convicti o n relief alleging ineffective assistance of counsel. The po st-conviction cou

rt denied Petitione

r relief. In

this appeal, Petitioner asserts that

he received

ineffective assistance of counsel on the following grounds: (1) counsel failed to

submit adequate evidence at the hearing on his motion to dismiss based upon denial of his right to a speedy trial; (2) counsel’s advice to Petitioner not to testify at trial deprived him of

a jury instruction

on renunciation as a defense; and (3) counsel failed to object when the State filed an untimely motion for enhanced punishment under T

enn. R. Crim. P. 12.3. After a review of the record and appl

icable law, we a

ffirm the post-co

nviction court’s ju

dgment.

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

nt of the Trial Court A

ffirmed.

T HOMAS T. W OODALL , J., delivered the opinion of the court, in which D AVID H. W ELLES and R OBERT W. W EDEMEYER , JJ., joined.

Hershell D. Koger, Pulaski, Tennessee (on appeal); and William Bright, District Public Defender, Pulaski, Tennessee, (at trial) for the appellant, William Ronald Jordan.

Paul G. Summers, Attorney General and Repo r ter; R. Stephen Jobe,

Assistant Attorney

General; Mike Bottoms , Distri ct Attorney General; and Richard Dunavant, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION2 I. Background

The facts leading to the underlying conviction are taken from the post-conviction hearing record and a review of

this Court’s opinion in the directappeal. See State v. William Ronald Jordan
, No. 01C01-9703-CC-00100, 1 998 WL 270297, Giles County (Tenn. Crim. App., Nashville, May 28, 1998), no perm. to app. filed . On May 23, 1994, Petitioner entered the Bank of Franke wing to inquire about a loan. Petitioner met with Billy Kennedy, a loan of ficer, who assisted him in filling outa loan application. Petitioner smelled of alcohol. When the meeting concluded, Petitioner went to a teller window and gave the teller, Sue Cogg

ins, a folded-up n

ote. The note

stated that Petitioner wanted money and would kill her if she did not cooperate. When Coggins told Petitioner that she didnot “have any,” Petitioner took the note and walked out of the bank. Coggins also smelled alcohol on Petitioner. When Kennedy learned from Coggins that Petitioner had give n her a “holdup note,” he wrote down the

license plate

number and the make of Petitioner’s car and then telephoned the police. Deputy Kyle Helton of the Giles County Sheriff’s Department apprehended Petitioner approximately

forty-five minutes later. Helton noticed a stro ng odor of alco hol on Petitioner’s breath and observed that Petitioner was unsteady on his feet. Petitioner was arrested. Shortly thereafter, he registered

0.22 on an intoximeter

test.
Special Agent Robert Chil ds of the FBI

and Investig

ator Mi chael Chapma

n of the Giles County Sheriff’s Department interviewed Petitioner the next day, on May 24, 1994. Petitioner tol d themthat he had spent the previous day drinking whiskey at a rock quarry with the quarry ’s owner, Steve Houston, and could not recall the events of that day clearly since he was “wild on booze” at the time. Although Petitioner recalled applying for a loan sometime during the afternoon, he c laimed to have no recollection of the attempted robbery or of writing the r obbery note.

Petitioner gave Agent Ch

ilds a second statement

on June 2, 1994. I

n marked contras

t to his previous statement, Petitioner then claimed to rec al l the events of May 23, 1994. Petitioner

told Childs that he and Houston had been drinking

together that da

y. At some poi

nt, Petitioner told Houston that he had previously spent time in jail

for robbing a ba

nk in Nashville, but

Houston did notbelieve him. Petitio

ner then wrote a

note similar to th

e one he had used to rob the bank and showed it to him. Afterwar d, Pe t itioner placed the note in his pocket. Later that day, a man and

woman who were also at the quarry went with Petitioner to the bank. Petitioner did not recall their
names, but testified that the man d rove Petitioner’s car and the woman followed them in another vehicle because they had

somewhere else to go afterward. When they ar rived at the bank,

the couple left Petitioner with his car. Petitioner went inside. When he concluded his loan business, Petitioner approached

one of the teller

s to obtain a roll of q

uarters, but he mi

stakenly g

ave the te

ll er the “holdup” note instead of the ten-dollar bill wh

ich was located in the same pocket. Defendant claimedthat when he realized what he had done, he snatched the note away from the teller and left the bank.

Indictments

against Petitioner

for driving under the influence of an intoxicant and attempted robbery were filed on

August 1, 1994. Petitioner filed a pro se motion for speedy trial on October 10, 1994, and a pro se motion to dismiss based upon the deprivation of his right to

a speedy trial on3

March13, 1995. Petitioner was appointed counsel shortly before his arr aignment in J une 1995. Following a hearing on July 24, 1995, his motion to dismiss was denied.

Petitioner’s trial was held on August 8, 1995, during which Agent Childs testified that he had been unable to locate “Steve Houston.” However, Childs located the owner of the rock quarry, a
man named Houston Lewis Smith. Smith testified at trial that he did not have any discussi on with Petitioner regarding a robbery in Nashville and that Petitioner ne ver showed Smith a robbery note. Smithdid see Petitioner on May 23, the day of the robbery

, as well as the two

previous day

s. Smith also confirmed that, on the day of the robbery , Petitioner was drinking at the quarry. Petitioner left for approximately

twenty to thir

ty minutes that after

noon. After he re

turned, Smith

heard that a bank had been robbed by a man driving a car similar to Petitioner’s. Smith then called the police.

Petitioner did nottestify duri

ng his trial. At the conclusion of proof, the trial court denied Petitioner’s request to inst ruct the ju

ry on the defense of renunciation as to the attempted robbery

c h arge because it consid ered renuncia

tion “inapplicabl

e.” Thereafte

r, the jury r

eturned guilty verd ict s aga ins t Pe tit ion er fo r bo th D UI an d at tem pte d ro bbe ry.

On appeal, Petitioner claimed that he was de nied a speedy trial and that the trial court erroneously

failed to i nstruct the jury on the affirmative defense of renunciation. See State v. William Ronald

Jordan , 1998 WL 270297 at *1. Concerning the latter issue, this Court held that the proof presented by Petitioner

“fairly raised” the affirmative defense of renunciation and that the trial court erred when it refused to instruct the jury on same. However, this Court also found that “no rational jury could conclude by a pre ponderance of the evidence that [Petitioner] renounce d his crim e.” Furthe rmore, because the trial court’s failure to instruct on renunciation did not affirmatively

appear to affect the re

sult of the trial, th

e failure was de

emed “harmless

error beyond a reasonable doubt.” Id. at *4.

As for Petitioner’s issue concerning a speedy trial, this Court noted that a delay of one year marks the point at which a delay is “presumptively prejudicial,” i.e., unreasonable enough to trigg er further inquiry. Id. at *5 (citations omitted). Consequently, the balancing test set forth in Barker v. Wingo
, 407 U.S. 524 (1972) (adopted by the Tennessee Supreme Cou rt in State v. Bishop , 493 S.W.2d 81 (Tenn. 1973)), was applied to determine the merits of Petitioner’s speedy trial issue. Our Courtassigned the most significant we ight to the factor which required a showing of prejudice, finding that Petit

ione r suffered no prejudice based on the following facts: (1) Petitioner was incarc erated for a nother conviction prior to his trial: (2) his allegations of administrative deprivations

were unpr ov en; (3) Petitioner presented no proof as to what the alleged exculpatory witness who died during the delay would have testi fied to; and (4) e

ven if the case w

as not delay

ed, in all likelihood the witness would have died prior to trial. Thereafter, Petitioner filed a pro se petition for post-conviction relief wherein he alleged, among other

things, ineffective assistance of counsel for myriad rea

sons.

II. Post-convic tion Hearing4

The post-conviction hearing occurred on June 29, 1999. Petitioner’s proof consisted solely of his testimony. The State’s proof consisted only of the testimony of the attorney who represented Petitioner during trial.

At the post-conviction hearing, Petitioner testified that a man named Jack Farrar drove him to the Bank of

Frankewing on May 23, 1994, the day of the attempted robbery. Farrar was present at the rock quarry earlier that day while Petitioner was drinking and shooting poo l wit h Houston Smith, the quarry’s owner. Petitioner reiterated that he and Smith had a conver sat ion concernin

g Petitioner’s recent whereabouts, after which Petitioner replied that he had “been doing time f or a bank r obbery in Nashville” and then “wrote out a note showing him exactly how [he] robbed that bank.” As stated above, Smith denied in his testimony at trial that Petitioner told him about any robbery or ever showed him a robbery note.

Petitioner further testifie

d that afte

r May 23, 1994, he was incarcerated at South Central Correctional Facility

on charges unrelated to the bank incident and in June 1995, he was appointed counsel. Prior to the July 24, 1995 hearing on Petitioner’s motion to dismiss, Petitioner informed Counsel that one of his witnesses was rendered unavailable because he had died in December 1994. Petitioner was referring to Jack Far r ar, the man who allegedly drove him to and from the bank on the day of th

e incident. Petition

er claimed that if

Farrar had be

en alive to testify

at trial, he would have corroborated Petitioner’s story that he went to the bank to obtain a loan and never mentioned

a plan to rob the bank. Fa

rrar also would h

ave testified tha

t Petitioner told him o

f the incident with the teller as they

left the bank and F

arrar’s testim

ony co uld have been used to undermine the credibility

of Smith, whose testi

mony was dam

aging at trial

. During the post-conviction hearing, Petitioner adm itted that he and hi s counsel met a sufficient number of times so that Petitioner felt they “

were ready

to proceed” with his trial. They basedtheir trial strategy on renunciation as a de fenseuntil “the day

of trial,” when “

Judge Cain denied[Petitioner] the rig ht to use renuncia

tion . . . .” Petitione

r alsoclaimed that he would have testif ied if a renunciation defense had been available. Counsel told Petitioner that the decisio n whether or not t o test ify at trial was his, but Counsel wanted Petitioner to testify that he was too intoxicated to recall what happene d at the ba nk. Because this was not true, Petitioner refused. Counsel then suggested that he not testify at all and Petitioner followed his advice.

Petitioner also claimed that h

is two statements to A

gent C hild s were not “inconsistent” as argued by the State. Instead, his first statement, wherein he claimed not to recall the incident, was merely his way of “stopping” the interview. The second statement was simply a continuation of the first, given at a later time in order to “finish telling them everything that happened.”

Counsel for Petitioner testifiedat the post-conviction hearing that he first met Petitioner at one of Petitioner’s court appearances. When they discussed the upcoming hearing on Petitioner’s motion to di smiss, Petitioner wa nted counsel to ar

gue deprivatio

n of his right to a s

peedy tria

l, drawing attention to the fact that a witness had died duringthe del ay. But, from what Counsel had been able to glean fr

om Petitioner’s des

cripti on of the dead witness’ testimony, he would have5

testified only

that Petitioner was drunk, had previously robbed a bank, and had written the “holdup note.” Because Counsel was “uncomfortable with the proof on that issue,” he subsequently

searched for alternative legal arguments to present and at the pre-trial hearing on Petit ioner’s motion to dismiss, he argue

d that Petitioner wa

s denied prison pri

vileges.

Counsel admitte d that h e did not present the matter of the dead witness at the hearing on Petitioner’s motion to dismiss. Counsel stated that his decision to keep public discussion of Petitioner’s previous bank robbery conviction to a minimum was a matter of strate gy, and thi

s included arguments at pr

e-trial hearing

s. Counsel advised Pe

titioner that a def

ense which relied on his previous bank robbery conviction was, in

his opinion, unwise.

Since Petitioner a

greed with him, Counsel did not argue that the dead witness would have testified about Petitioner’s bank robbery note or previous conviction.

Counsel testified that he s pent a total of app

roximately thi

rty to forty pre-trial hours working

on Petitioner’s c a se. Cou nse l in for med Pet iti one r of his lega l ri ght t o te sti fy and tha t, u lti mat ely, whether or not he testified was his decision. Counsel re mi nded Petitioner tha t his basic defens

e strategy relied upon renunciation and Petitioner’s state of intoxication. SincePetitioner could add

no facts to those already

presented, Petitioner’s testimony was unnecessary . Moreover, if Petitioner testified, evidence of his prior convictions other than that for bank robbery might be

admissible, i.e., his prior conviction for tax evasion and possib ly others. Petitioner’s demeanor during his testimony presented another

potential pitfall–

it was impossible to pr

edict whether a

jury would c

onsider him

a credible witness

or not. In sum, Co

unsel cautioned Pe

titioner that his tes

timony would p

robably include a rehashing of the bank robbery conviction and impeac hment by other convictions, a ll of which could

seriously damage Petitioner’s case. After disc

ussing the matter

at length with Coun

sel, Pet iti one r dec ide d no t to tes tif y.

Counsel testified that he n ever insisted on a

defense which ran contra

ry to Petitioner’s wishes and that he did not file a

motion to suppress Pe

titioner’s stateme

nts t o police because he “had an ethical duty as an a

ttorney to th

e Court not to file

a motion . . . [where] a good basis or a good reason to file it [did not exist].” D uring cross-exa

mination, Counsel te

stif ied th at Petitioner’s testimony containedno new facts to support Petitioner’s renunciation defense and that, in his opinio n, any possible advantage gained by Petitioner’s testimony was substantially outweighed

by the danger of impeachment.

Petitioner presently a

ppeals the dismissa

l of his post-convic

tion petition by

the Giles County Circuit Court, asserting clai

ms of ineffective

assistance of co

unsel regardin

g the following

issues: (1) counsel failed to submit adequate evidence at the hearing on his motionto dismiss based upon denial of his right to a speedy trial; (2) counsel’s advice to Petitioner not to testify at trial deprived him of a jury instruction on ren

unciation as a def

ense; and (3) co

unsel failed to obj ect when the State filed an untimely motion for enhanced punishment under Tenn. R. Crim. P. 12.3. For the reasons following, we affirm the post-conviction court’s denial of relief.

III. Analysis6

In State v. Burns our supreme cour t held that a claim of ineffective assistance of counsel raisedon direct appeal is a mixed question of law and fact and, thus, is subject to a de novo review. Statev. B urns , 6 S.W.3d 453, 461 (Tenn.1999); see Jehiel Fields v. Stat e , ___ S.W.3d ___ , No. E1999-00915-SC-R1 1-PC, 2000 WL 166381 (Tenn. February 20, 2001). The de novo review of a trial court’s factual findings by an appellate court are entitled to a presumption of correctness, which is overcome only when the preponderance of the e vidence is contrary

to the trial court’s findings of fact. Fields , ___ S.W.3d at ___; see also Henley v. State , 960 S.W.2d 572, 5 78 (Tenn. 1997). By contrast, when reviewing the trial court’ s application of law to its factual findings “to determine whether counsel’s performance was deficient or whether the defe ndant was prejudiced by that defi cie ncy, app ell ate cou rts con duc t a p urel y de novo re vie w, according to the trial court’s conclusions of law no deference or presumption of correctness.” Fields , ___ S.W.3d at ___.

A defendant alleg

ing ineffectiv

e assista nce of cou nsel must prove the allegations of fact underlying

his claim by clear and convincing evidence. See Tenn. Code Ann. § 40-30-210(f) (1997); Fields , ___ S.W.3d at ___. This standard of p roof is required

regardless

of whether a pet

itioner is bringing the claim in a

direct appeal or a post-conviction petition. See Burns , 6 S.W.3d at 461 n.5.

To determine whether counsel provided effective assistance, this Court must decide whether counsel’s performance

was within the range of competence demanded of attorney s in criminal cases. Ba xter v. Rose , 52 3 S.W.2d 930, 936 (Tenn. 1975). To prevail on a claim that his counsel was ineffective, a petitioner bears the burden of proving two elements. First, he must prove his counsel made errors so serious that he was not functioning as counsel as guaranteed by t he Sixth Amendment. Strickland v. Washington , 466 U.S. 668, 687 (1 984); Coop er v. State , 849 S.W.2d 744, 747 (Tenn. 1993). This element is proved by showing that counsel’s representation fell below an objective standard of reasonableness. Strickland , 466 U.S. at 688. Second, the petitio ner must prove that he was prejudiced by his counsel’s unprofessional errors, such that there is a reasonable probab ility that, but for couns el’s errors, the

result of the proc

eeding would ha

ve been differe

nt. Strickland
, 466 U.S. at 694; Butler v. State , 789 S.W.2d 898, 900 (Tenn. 1990). Petitioner’s failure to prove either element, deficient performance or prejudice, requires dismissal of his petition. See Strickland , 466 U.S. at 697.

When reviewing a de

fense attorn ey’s actio

ns, this Court may

not use "20-20"

hindsight to second-guess

counsel's decisions regarding trial strategy and tactics. Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982). Coun

sel's alleged

errors should be j udged at the time they were made in light of all the facts and circumstances. Strickland , 466 U.S. at 690; Cooper , 849 S.W.2d at 746.

In this appeal, Petitioner asserted that his trial attorney rendered ineffe ctive assistanc e o f counsel in three specific areas. First, Petitioner a rgues that his tr

ial attorney

was ineffective

because he failed to submit “adequate evidence” at the hearing on his motion to dismiss due to the denial of his right to a speedy

trial. Specifica

lly, Petitione

r alleges that h

is trial at torney failed to present evidence that the deceased witne ss would have testif

ied that he (1) ro

de with Petitioner t

o the bank, (2) had knowledge that Petitioner’s purpose in going to the bank was to obtain a loa n , (3) drove Petitioner back to the rock quarry after Petitioner left the bank and (4) was told Petitioner’s version7

of the events

that transpired at the bank. Petitioner further asserts that his trial attorney should have presented a newspaper

notice of the witness’s death which he had in his possession at the hearing

on his motion to dismiss. Even if we were to assume that Petitioner’s attorney was deficient for failing to present crucial evide nce at the motion to dismiss, Petitioner has failed to prove by clear and convincing evidence that he was prejudiced by any deficiency. SeeTenn. Code Ann. § 40-30- 210(f) (1997). The record reveals that Defendant was indicted on August 1, 1994. The witness died four months later, in December 1994, and Petition er submitt ed no proof at the post-conviction hearing that the trial could or would have been held prior to the witness’s death.

Sec ond ly, Petitioner argues that his trial attorney rendered ineffective assistance of counsel when he advised Petitioner not to testify at trial; Petitioner asserts tha t his test imony would have resultedin a“reasonable pr obability” th

at the trial court

would have gra

nted Petitioner’s r

equest to give the jury an instruction on renunciation as a defense. I n t he direct appea l from Petitioner’s conviction, our

Court h eld that the trial court erred by not charging r enunciation based upon the proof actually presented at trial. However, our Court further held that the error was harmless. Even if we assume, arguendo , th at the trial attorney rendered ineff

ective assistanc

e of counsel in this matter, Petitioner has again failed to prove prejudice. Petitioner’s testimony at the post-conviction hearing con cern ing t he s ubs tan ce of his pro pos ed t est imo ny e ss entially mirrored his second statement to the police. Since

this statement was i

ntroduced during the State’s case-in-chief, the evi den ce i n is sue was effe cti vel y pres ent ed t o th e ju ry.

Last ly, Pet iti one r as ser ts t hat his tri al a tto rney r endered in effective assistance of counsel because he did not object to the State’s late-filed notice of intent to s

eek enhanced p

unishment within Range II. It is undisputed that the notice was filed one day late. However, under Tenn. R. Crim. P. 12.3, the remedy for

untimely filin

g, where an obj ection is properl y made, is ty

pically a continuance. Yet again, Petitioner has failed to show prejudice resulting fro m an y alleged deficiency in the representation by his trial attorney.

In sum, because Petitioner has failed to prove by clear and convincing evi dence t hat he suffered prejudice from any of the alleged deficiencies in his trial attorney’s performance, he is not entitled to relief on the issues presented in this appeal.

IV. Conclusion

The judgment of the tr ial court dismis si ng the petition fo r post-conviction

relief is AFFIRMED.

____________________________________ THOMAS T. WOODALL, JUDGE