### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs N

ovember 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 fo

r a severance

of offenses. Ac

cordingly , we affirm. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt Affirmed.
J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in whichJ OSEPH M. T IPTON and D AVID H. W ELLES , JJ., joined. Robert Little, Memphis, Tennessee, for the Appellant, Joseph Kenneth Tipler.
Paul G. Summers, Attorne y General & Reporter; Kim R.

Helper, Assistan

t Att orney

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 s entenc es: assault, elev en months and twent

y-nine day

s; aggravated

bur glar y, six years; two counts of aggravated assault, six years each; and two counts of ag gravated

kidnapping, 20 years each. All sentences run concur rently and yield an effe

ctive senten c e of 20 years. This court affirmed the petitioner’s conviction and sentence on direct appeal, and the supreme court denied permission to appeal. See State v. Joseph Tipler , No. 02C01-9611-CR-00384 (Tenn. Crim. App., Jackson, Jan. 30, 1998), perm
. app
. denied(Tenn. 1998). The petitioner fi led 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 ineff ective assis tance of counse l, but on appeal he

raises only

two issues: whether trial counsel was ineffective by (1) not obtaining a transcript of the petitioner’s preliminary-2-

hearing and (2) not moving to sever the trial on the assault charge from the trial on the other char

ges. We have reviewed t

he record, the b

riefs and the app

licable law. Fin

ding 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, w

e learn th at the pet itioner a nd his gir lfriend w ere resi ding with his brothe

r’s exwife, Frances Smith, and her son. Joseph Tipler , slip op. at2. 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 towarda nearby house. Id. The petiti oner broke t hrough the locked back door

and came throug

h the house. Upon be

ing informed of t

he boy’s whe

reabouts and armed with a long knife, the petitioner pursued the boy, “g

rabbed” 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 tol d Smith that he meant t

o kill her “just like

his brotherin-law had killed his si ster.” 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 t estified that, at his prelimina ry hearing, Smith testified that the O ctober 8 ass ault could have been an accident. After indictment, the trial co ur tappointed trial counsel who was not present at the preliminary hearing. The petitioner informed counsel about Smith’s preliminary hearing testimony and instructed he r to obtain a transcript of

that tes tim ony. The petitioner also complained that trial counsel failed to move to sever the trial of the assault charge

from the trial of th

e other charg

es. The petitioner’s trial counsel, an experienced public defender, testified atthe postco n viction hearing that before trial she learned from the court clerk that there wa s no tape of the defendant’s prelimina ry hearing. She also spoke with t he assistant public

defender who handled the preliminary

hearing and learned that he had not personally re corded the testimony. As to the failure to seek a severance of offenses, trial counsel testifi ed 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, aggr avated assault and aggrava

ted kidnapping. C

ounsel’s te sti mon y r evealed thorough preparation of the petitioner’s case. She secur ed an offer fro

m the state for a pl

ea to a six-year sentence which included a reduction of the kidnapping charge to false imprisonment. The petitioner, who had a sufficient prior criminal r ecord to qua lify him for Ra nge II sentencing, declined the offer and insisted on going to trial.-3- 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 e

vidence. Tenn. Co

de Ann. § 40-30-21 0(f) (1997). On a ppeal, the appellate court accords to

the trial co urt’s find ings of fact t he weight of a jury verdict, a nd these fi ndings are conclusive on appeal unless the evidence pr

eponderates ag

ainst them. Henley v. Sta te , 960 S.W.2d 572, 57 8-79 (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 guarante e 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 cons titutiona lly ineffective assistance of counsel, the standard applied by the c o urts of Tennessee is “whether the advice given or the service rendered by the attorn ey is within t he 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 Sta tes Supre me Court outlined the requirements

nece ssa ry t o demonstra te 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

reasonablenes s under prevailing professional norms and must demonstrate that counselmade errors so serious that he was not functioning as “counsel” guaranteed by the Constitution. Id . at 687, 104 S. Ct. at 2064. Se cond, the petitioner must show that counsel’s performance prejudiced him and that errors wer e so serious as to depr

ive the petitioner

of a fair trial, c

alling into

que stion the reliability of the outcome. Id .; Henley , 960 S.W.2d at 579 (Tenn. 1997).

“When addressing an a

ttorney’s p

erformance it is

notour function to ‘se

cond guess’ tactical and st

rategic choices pertaining to defense matters or to measure a defense attorney ’s repre sentation by ‘20-20 hindsight.’” Henley , 960 S.W. 2d at 579 (q uoting Hellard v. St ate , 62 9 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 perspect i ve at the time.” Strickland , 466 U.S. at 689, 104 S. Ct. at 2065. “The fact that a parti cular strat egyor 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 ade quate 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 di f

ferent.” Strickland , 466 U.S. at 694, 104 S. Ct. at 2068. A rea sonable probability is “a probability sufficient to undermine confide nce in the outcome.” Id.-4- In reviewing a claim of ineffective assistance of counsel, an appellate court need not addressboth 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 p resent case, the petitioner faile

d to establish that c

ounsel deficient

ly performed. Rega rdi ng th e fai lur e to secu re a t rans cri pt o f Sm ith ’s p rel imi nary h eari ng te sti mon y, the petitioner failed to show by clear and convincing evidence that a transcript existed that counsel c ould have obtained. In fact, it is uncontroverted in the record that counsel made a dilig ent effor t to secu r e 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 s ever the ass ault charge from the other charges, the record supports the tr

ial court ’s finding that the failure to move for severance was an informed tactical or strategic de

cision, consciousl

y made by

trial co unsel. 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