IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 8, 2000

JOSEPH KENNETH TIPLER v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. P-20620 Carolyn Blackett, Judge

No. W2000-00168-CCA-R3-PC - Filed December 6, 2000

The petitioner appeals the trial court’s dismissal of his petition for post-conviction relief. The record

supports the trial court’s determination that the petitioner failed to establish his claims that he

received ineffective assistance of counsel when trial counsel (1) failed to obtain a transcript of the

preliminary hearing and (2) failed to move for a severance of offenses. Accordingly, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed.

JAMES CURWOOD WITT,JR.,J., delivered the opinion of the court, in which JOSEPH M. TIPTON and

DAVID H. WELLES, JJ., joined.

Robert Little, Memphis, Tennessee, for the Appellant, Joseph Kenneth Tipler.

Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General;

William L. Gibbons, District Attorney General; Glen Baity, Assistant District Attorney General, for

the Appellee, State of Tennessee.

OPINION

The petitioner, Joseph Tipler, appeals the Shelby County Criminal Court’s dismissal

of his petition for post-conviction relief. On May 30, 1996, the trial court imposed upon the

petitioner the following convictions and sentences: assault, eleven months and twenty-nine days;

aggravated burglary, six years; two counts of aggravated assault, six years each; and two counts of

aggravated kidnapping, 20 years each. All sentences run concurrently and yield an effective sentence

of 20 years. This court affirmed the petitioner’s conviction and sentence on direct appeal, and the

supreme court denied permission to appeal. SeeState v. Joseph Tipler, No. 02C01-9611-CR-00384

(Tenn. Crim. App., Jackson, Jan. 30, 1998), perm. app. denied (Tenn. 1998). The petitioner filed

his post-conviction petition on November 16, 1998. The post-conviction court appointed counsel

for the petitioner, and after an evidentiary hearing, it dismissed the petition. The petitioner alleges

several instances of ineffective assistance of counsel, but on appeal he raises only two issues:

whether trial counsel was ineffective by (1) not obtaining a transcript of the petitioner’s preliminary
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hearing and (2) not moving to sever the trial on the assault charge from the trial on the other charges.

We have reviewed the record, the briefs and the applicable law. Finding no error, we affirm the

dismissal of the post-conviction petition.

The transcript of the petitioner’s jury trial was not exhibited to the post-conviction

hearing, and few facts about the underlying offenses came to light. However, from this court’s direct

appeal opinion, we learn that the petitioner and his girlfriend were residing with his brother’s exwife, Frances Smith, and her son. Joseph Tipler, slip op. at 2. On October 8, 1995, the petitioner

and Smith argued, and the petitioner “hit [her] in the mouth and busted her lip.” Id., slip op. at 3.

This action eventually became the basis for the assault charge. After the assault, Smith evicted the

petitioner and his girlfriend, reclaimed her house keys from them, and set the petitioner’s personal

property “out on the back porch.” Id. At 3:00 a.m. on October 10, 1995, Smith awoke to “beating

on the back door,” and when she and her son went to the front door to leave, she was detained by

the petitioner’s girlfriend. Smith’s son fled toward a nearby house. Id. The petitioner broke through

the locked back door and came through the house. Upon being informed of the boy’s whereabouts

and armed with a long knife, the petitioner pursued the boy, “grabbed” him, and “pulled” him back

to Smith’s house. The petitioner had Smith and her son sit on the bed. He cursed her and “slapped

[her] upside the head.” Id. The petitioner told Smith that he meant to kill her “just like his brotherin-law had killed his sister.” Id., slip op. at 3-4. Before leaving the residence, the petitioner’s

girlfriend retrieved a cassette tape, and the petitioner asked Smith if she needed a ride to work the

next day. Id., slip op. at 4. The events of the morning of October 10 led to the burglary, assault and

kidnapping charges. 

At the post-conviction hearing, the petitioner testified that, at his preliminary hearing,

Smith testified that the October 8 assault could have been an accident. After indictment, the trial

court appointed trial counsel who was not present at the preliminary hearing. The petitioner informed

counsel about Smith’s preliminary hearing testimony and instructed her to obtain a transcript of that

testimony. The petitioner also complained that trial counsel failed to move to sever the trial of the

assault charge from the trial of the other charges.

The petitioner’s trial counsel, an experienced public defender, testified at the postconviction hearing that before trial she learned from the court clerk that there was no tape of the

defendant’s preliminary hearing. She also spoke with the assistant public defender who handled the

preliminary hearing and learned that he had not personally recorded the testimony. As to the failure

to seek a severance of offenses, trial counsel testified that she decided not to seek a severance for

strategic reasons. She believed that if the jury knew about the parties’ history, including the incident

on October 8, it would be less likely to believe that the petitioner committed burglary, aggravated

assault and aggravated kidnapping. Counsel’s testimony revealed thorough preparation of the

petitioner’s case. She secured an offer from the state for a plea to a six-year sentence which included

a reduction of the kidnapping charge to false imprisonment. The petitioner, who had a sufficient

prior criminal record to qualify him for Range II sentencing, declined the offer and insisted on going

to trial. 
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At the conclusion of the evidentiary hearing, the trial court dismissed the petition. 

The post-conviction petitioner bears the burden of proving his or her allegations by

clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997). On appeal, the appellate

court accords to the trial court’s findings of fact the weight of a jury verdict, and these findings are

conclusive on appeal unless the evidence preponderates against them. Henley v. State, 960 S.W.2d

572, 578-79 (Tenn. 1997), cert. denied, 525 U.S. 830, 119 S. Ct. 82 (1998); Bates v. State, 973

S.W.2d 615, 631 (Tenn. Crim. App. 1997), cert. denied, 524 U.S. 907, 117 S. Ct. 2067 (1998)

The Sixth Amendment to the United States Constitution and Article I, section 9 of

the Tennessee Constitution both guarantee effective assistance of counsel to a defendant in a criminal

case. Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). When a defendant claims constitutionally

ineffective assistance of counsel, the standard applied by the courts of Tennessee is “whether the

advice given or the service rendered by the attorney is within the range of competence demanded by

attorneys in criminal cases.” Summerlin v. State, 607 S.W.2d 495, 496 (Tenn. Crim. App. 1980).

In Strickland v. Washington, the United States Supreme Court outlined the

requirements necessary to demonstrate a violation of the Sixth Amendment right to effective

assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). First, the

petitioner must show that counsel’s performance fell below an objective standard of reasonableness

under prevailing professional norms and must demonstrate that counsel made errors so serious that

he was not functioning as “counsel” guaranteed by the Constitution. Id. at 687, 104 S. Ct. at 2064.

Second, the petitioner must show that counsel’s performance prejudiced him and that errors were

so serious as to deprive the petitioner of a fair trial, calling into question the reliability of the

outcome. Id.; Henley, 960 S.W.2d at 579 (Tenn. 1997).

“When addressing an attorney’s performance it is not our function to ‘second guess’

tactical and strategic choices pertaining to defense matters or to measure a defense attorney’s

representation by ‘20-20 hindsight.’” Henley, 960 S.W.2d at 579 (quoting Hellard v. State, 629

S.W.2d 4, 9 (Tenn. 1982)). Rather, a court reviewing counsel’s performance should “eliminate the

distorting effects of hindsight . . . [and] evaluate the conduct from the perspective at the time.”

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. “The fact that a particular strategy or tactic failed

or hurt the defense, does not, standing alone, establish unreasonable representation.” Goad v. State,

938 S.W.2d 363, 369 (Tenn. 1996). On the other hand, “deference to matters of strategy and tactical

choices applies only if the choices are informed ones based upon adequate preparation.” Id.

To establish prejudice, a party claiming ineffective assistance of counsel must show

a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. A reasonable

probability is “a probability sufficient to undermine confidence in the outcome.” Id.
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In reviewing a claim of ineffective assistance of counsel, an appellate court need not

address both prongs of Strickland if it determines that the petitioner has failed to carry his burden

with respect to either prong. Henley, 960 S.W.2d at 580.

In the present case, the petitioner failed to establish that counsel deficiently

performed. Regarding the failure to secure a transcript of Smith’s preliminary hearing testimony,

the petitioner failed to show by clear and convincing evidence that a transcript existed that counsel

could have obtained. In fact, it is uncontroverted in the record that counsel made a diligent effort

to secure a tape of Smith’s preliminary hearing testimony and that no tape or transcript existed.

Counsel did not deficiently perform on this issue.

Regarding the failure to move to sever the assault charge from the other charges, the

record supports the trial court’s finding that the failure to move for severance was an informed

tactical or strategic decision, consciously made by trial counsel. The record reveals no basis for

concluding that counsel deficiently performed on this issue.

Accordingly, we affirm the trial court’s dismissal of the post-conviction petition.

___________________________________ 

JAMES CURWOOD WITT, JR., JUDGE