### IN THE CO URT OF CR IMINAL APPEALS OF T ENN ESSEE AT NASHVILL E Nov em be r 20 , 20 08 Ses si on

JO E TYREE v . STATE O F TENNESSE E

Direc t Appeal from the Circ uit Court for Marshall County

No. 07-CR 177 RobertCrigler , Judge

No. M2008- 01273-CCA -R3-P C - F iled Augu st 21, 2009

The petitioner, J oe Ty

ree , appea ls the denial of his petition for post-conviction relief

. The petitioner submitt ed a g uilty plea to one count of violation of the sex offe nder reg istry

. On appea l, he contends
t h at: defe nse counsel provided ineffe ctive assistance of counsel; his plea was not knowing ly an d voluntarily enter ed; and the post-conviction court failed to comply with the statute that require s the
court to set forth finding s of fa ct and conclusions of law with reg ard to eac h issue. After car eful revie w, we conclude no reve rsible err or ex i s ts and aff irm the judgme nt from the post-conviction
court.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

J O H N E V E R E T T W I L L I A M S , J
., delivere d the opinion of t h e court, in which D A V I D H. W E L L E S and N O R M A M C G E E O G L E , J J ., joined.

Emeterio R. (Te rry

) He rnando, L ewisburg , Tenne ssee, f or the a ppellant, J oe Ty

ree

.

Robert E. Cooper, J r., Attorney Gene ra l and Reporter ; L acy Wil ber, Assistant Attorney Gene ral; Fr ank Crawf

ord, J r., District Attorney Gene ral; and Weakley E. Ba rnar d, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP INION

The petitioner enter ed a g uilty plea to one count of violation of the sex offe nder reg istry

. The petitioner testified during the post-conviction hear ing that he rec eiv ed i n effective assistance of counsel leading to the entry of his g uilty plea. Specifica lly
, he stated that counsel did not investigate his case and that he believed he was being prosec uted under a defe ctive indictment. The petitioner testified that he reque sted the discovery materia ls both orally and in writing from his counsel and that he also provided counsel with a list of potential witnesses to call at trial. The petitioner testified that he told counsel that there wer e important documents in his truck that could be used at trial. He said that he did not rec eive a re s p o n s e t o h i s written inquiries and that, to his knowledg e, no one ever went to che ck on the doc uments in his vehicle.The petiti oner also sent a letter to counsel raising severa l issues concerning t he validit y of

the indictment. An attorney with the public defe nder’ s o ff i ce replied to the petitioner’s letter

conce rning the indictment and sent it along with a copy of the discovery materia ls. The petitioner testified t hat he was late r cha rg ed with ag g ravated robbe ry and wa s also repr esente d by the publ ic defe nder’ s office on that char g e. He believed that, when the ag g ravated robber y arose , counsel put the violation of the sex offende r re g istry char g e “on the back bur

ner.”

The petitioner testified that the witnesses he proposed wer e not investiga ted or broug ht to court on the day of his trial. He contende d that counsel did not file pretria l motions beca use he said the case was “cut and dried.” T h e p eti tioner t estified that counsel did not communicate with him about any possible defe nses and that they did not develop any defe nses toge ther. Counsel told him that he would not file any pretria l motions b ec au se t hey would be frivolous. He said that counsel told him t hat he c ould “post-convict” him about his iss ues with the indictment.

Counsel testified that he worke d with the public defe nder’ s office and was ap p o i nted to repr esent the petitioner. He said that he met with the petitioner at least four or five times reg arding the violation of the sexual offe nder reg istry

. He said that his office sent a reque st to their investigators to look into the petitioner’s inquiries from his letters and his proposed witnesses. He said that they could find no rec ord of the truck being impounded and th ey we re unable to make
contac t with one of th e proposed witnesses. They spoke to the petitioner’s prior landlord, who confirme d ev er y

t h ing that the State’s case alleg ed. The police beca me awa re that the petitioner moved wit hout updating his addre ss when they wer e called t o his new re s i d en ce to investigate an incident of domestic violence. Counsel testified t hat he put toge ther a time line of t he e v en t s and did not see a need to reque st a bill of particulars

. He s ai d t hat the time line ref lected that the petitioner had not re g istered his newaddre ss for more than a month.

Counsel sa id the initial plea offe r was approximately one y ear and six months a s a Rang e I offe nder. The petitioner was actua lly a Rang e I I or I I Ioffe nder w ith severa l prior convictions that

wer e not in the computer sy stem. Counsel w anted to keep those other convictions from the State. The petitioner eventua lly enter ed a g uilty plea to serve one y ear as a Rang e I offe nder. Counsel said he did not rec all advising a client to enter a plea and file a petition for post-conviction relief

. He told the petitioner that he was looking at five to six y ear s at forty -five perc ent if he went to trial and was convicted.

The post-conviction court deter mined that counsel provided eff ective assistance to the petitioner and that the petitioner ente red his g uilty plea knowing ly

and voluntarily

. Analy sis

On appea l, the petitioner contends that the post-conviction court improperly deter mined that counsel provided eff

ective assistance

. Specifica lly
, the post- co nviction court deter mined that: counsel adequa

tely met with and communicated with the pet it io n e r ; c o u n s e l p r o p e r ly deter

mined that there wer e no defe cts in the indictment; counsel p roper ly deter mined that the pretria l motions

-2-reque ste d b y t h e petitioner wer e without merit; counsel was not ineffe ctive for failing to tell the

petitioner he had a rig ht to be sentenc ed by a jury ; and the petitioner failed to show that he was deprive d of a f

air proc eeding

.

When a claim of ineffe ctive assistance of counsel is made under the Six th Amendment, the petitioner bear s the burden of proving that (1) counsel’s perf ormanc e was defic i en t an d (2) the defic iency

was pre judicial in terms of re ndering a reasonable probability

that the re sult of the trial

was unre liable or the proce eding s wer e funda mentally unfair. Strickland v. W

ashington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L

. Ed. 2d 674 (1984). This standard has also bee n applied to the rig ht to counsel under Article I , Section 9 of the Tenne ssee Constit ution. State v. Melson
, 772 S .W.2d 417, 419 n.2 (Tenn. 1989) . When a petitioner claims ineffe ctive assist ance of counsel in relation to a guilty plea, the petitioner m ust prove that counsel pe rf ormed deficiently
, and, but for counsel’s err ors, the petitioner would not have pled g uilty but, i n s t ea d
, would have insisted upon g oing to tria l. Hill v. Lockhart , 474 U.S. 52, 59, 106 S. C t. 366, 370, 88 L . Ed. 2d 203 (1985).

I n Baxter v. Rose , 523 S.W .2d 930, 936 (Tenn. 1975), our supreme court required that the service s be ren d er ed within the rang e of competenc e demanded of attorney s in criminal cases. I n revie wing counsel’s conduct, a “fa ir assessment of attorne y perf ormanc e re quires that eve ry eff ort be made to eliminate the distorting eff ects of hindsight, to rec onstruct the circ umstances of counsel’s challeng ed conduct, and to evaluate the conduct from counsel’s perspe ctive at the time.” Strickland
, 466 U.S. at 689, 104 S. Ct . at 2065; see also Nichols v. State , 90 S.W .3d 576, 587 (Tenn. 2002)

.

The petitioner bear s the burden of proving by clea r and convinci n g ev idence the fac tual alleg ations that would entitle t h e petiti oner to relief

. T.C.A. § 40-30-210( f) (2006). This court is bound by the post-conviction court’s finding s of fac t unless the evidenc e preponde rate s ag ainst those finding s. Fields v. State , 40 S.W .3d 450, 456-57 (Te nn. 2001).

The petitioner raised five are as in which he claimed counsel was defic ient. He contends that counsel improperly advised the petitioner reg arding possible defe nses and that counsel d i d n ot proper ly communicate and advise the petitioner, proper ly investigate the case , file the proper pretria l motions, and advise the petitioner that he had a rig ht to be sentenc ed by

a jury

.
First, the petitioner contends t h at co u n sel failed to proper ly advise him about the case

. Howeve r, the evidenc e ref lects that counsel communicated with the petitioner on sever al occa sions and participated i n p l ea neg otiations with the State during his repr esentation of the petitioner. Counsel testified that he i n fo rm ed the petitioner that he was fac ing five or six y ear s at forty -five
perc ent as a

Rang e I I Ioffe nder if c onvicted. The post-conviction court found that the petitioner’s testimony was “extremely vague” and, in turn, acc redited the testimony of counsel. The petitioner

mere ly asser

ts that counsel did not proper ly advise him. He has not demonstrated that counsel failed to meet with and instruct him adequa tely . This issue is without merit.

Next, the petitioner c o nte n d s th a t c o u n s e l f a il e d to p r o perly investiga

te specific witnesses that he rec ommended for his defe nse. Counsel testified that he tried to find the witness proposed by the

-3-p etitioner. “When a petitioner contends that trial counsel failed to discover, interview, or pre s en t

witnesses in support of his defe nse, these witnesses sh o u ld be prese nted by the petitioner at the evidentiar y hear ing.” Black v. State
, 794 S.W .2d 752, 757 (Tenn. Crim. App. 1990); see also Scott

v. State
, 936 S.W .2d 271, 273 (Tenn. Crim. App. 1996). As a g ener al rule, this is the only way the petitioner can establish that (1) a materia l w itness e x isted who could have been discovere d but f or counsel’s neg lige nt investigation of the case ; (2) a known witness was not interv i ew ed; (3) the failure to discover or interview the witnes s ca u s ed h i m prejudice ; or (4) the failure to prese nt a known witness resulted in the denial of critica l evidenc e which cause d the petitione r p rejudice

. Black, 794 S.W .2d at 757. Neither the t rial court nor t his court can speculate on what a witness’s testimony might have been if introduced by counsel. Id

. The petitioner failed to call any such witnesses at the post-c onviction hear ing; thus, this issue is without merit.

Next, the peti t i o n er contends that counsel was ineffe ctive for incorre ctly advising him
reg arding possible defe nses and failing to challeng e the validity of the i n dictment. The postconviction court deter

mined that the petitioner failed to demonstrate that counsel was ineffe ctive for
not challeng ing the validity of the indictment. Def ense counsel testified that he did not file pretria l motions beca

use they would have been without merit. Counsel did not file any motion with reg ard
to the indictment beca

use he believed that it contained all the pertinent information. He testified that the defe nse compiled a time line to rec onstruct the events alleg ed by the State. His revie w ref lected that the petitioner was in violation of the reg istration r equire ments of the sexual offe nder reg istry

. Counsel testified that the indictment contained enoug h evidenc e that he could prepa re for a defe nse

or that the court could proper ly enter judgme nt ag ainst the petitioner. The Tenne ssee Supreme Court has held th at t h e purpose of an indictment is to provide the defe ndant with notice of the offe nse char g ed, provide the court with an adequate g round up o n wh i ch a judgme nt may be enter ed, and provide the defe ndant with protec tion ag ainst double jeopar dy

. See State v. Byrd
, 820 S.W .2d 739, 741 (Tenn. 1991). Be cause , as found by the pos t-conviction court, the i ndictment in this case did that, this iss ue is without merit.

Next, the petitioner contends that counsel was in ef fe cti ve for failing to file the pretria l motions reque sted by the petitioner. As previously stated, counsel testified that he did not file any pretria l motions, specific ally
, a motion for a bill of particula rs, beca use he felt it h ad n o m erit. Counsel testified that he would have filed a bill of p ar t i cu l ar s if the information contained in the indictment was not adequa te to assist him in prepa

ring a defe nse. He knew the time line reg arding the period alleg ed by the State and did not deem a bill of particula rs to be nece ssary

. The petitioner has not demonstrated on appea l that he was prejudice d by counsel’s decision not to reque st a bill of particula rs nor has he shown that he would have proce eded to trial if the motion had been filed. This issue is without m erit, and the petitioner is entitled to no relief.

Next, the petitioner argues that counsel was ineffe ctive when he did not advise him that he had a rig ht to be sentenc ed by a jury rathe r than the judge

. Specifica lly
, the petitioner argues that the line of case s beg inning with Apprendi v. New Jerse y, 530 U.S. 466, 120 S. C t

. 2 3 4 8 (2 0 0 0 ), including State v. Gomez
, 239 S.W .3d 733 (Tenn. 2007), stands for the proposition that a jury
, rathe r than a judge
, must i m p ose a sentenc e in Tenne ssee. The State argues on appea l that this is a

-4-misreading of Gomez II, and we ag ree

. I n Gomez II
, our supreme court held that a trial court’s use of enhance ment fac tors based on fac ts not found by a ju ry were a violation of a defe ndant’s S ix th Amendment rig ht. Gomez II
, 239 S.W .2d at 740. The Gomez II decision does not state that a jury

m u s t s entenc e a defe ndant; there fore
, counsel can not be ineffe ctive for failing to so advise the petitioner. The pe titioner is not entitl ed to re lief on this issue.

Next, the petitioner argues that his g uilty plea was enter ed involuntarily and unknowing ly

. Ba sically
, the petitioner argues that this issue is intertwined wi t h h i s argument that counsel was ineffe ctive. The State argues that this issue is waived becaus e t h e p etitioner failed to include a transcr ipt of the g uilty plea hear ing. The petitioner bear s the burden of prepa ring a rec ord “that
prese nts a complete and acc urate acc ount of what transpire d in the trial court with respe ct to the issue

on appea l. The failure to do so results in a waiver of such issues and a presumption that the ruling of the trial c ourt was c orre ct.” State v. Thompson
, 958 S.W .2d 156, 172 (Tenn. Crim. App. 1997) (citing Tenn. R. A

pp. P. 24( b), which require s an appellant to f ile a transcr ipt of all proce eding s at is s ue on appea l); see also State v. Oody
, 823 S.W .2d 554, 559 (Tenn. Crim. App. 1991); State v. Draper
, 8 0 0 S

. W

. 2d 489, 493 (Tenn. Crim. App. 1990). Be cause the petitioner has failed to introduce a

transcr ipt of the hea

ring , this iss ue is waive d.

Finally
, the petitioner argues that the post-conviction court failed to comply with the require ments of Tenne ssee Code Annotated section 40-30-111( b), that require s a court to se t f orth finding s of fa ct and c onclusions of law. The rele vant statute re ads:

Upon the final dispositi on of ever y petition, the court shall en ter a final order
, and except wher e proce eding s for delay ed appea l are allowed, shall set forth in the order

or a written memorandum of the case all g rounds prese nted, an d s h al l s tate the finding s of fa ct and c onclusions of law with re g ard to e ach ground.

T.C.A. § 40-30-111( b) (2006)

. Although this require ment is mandatory
, reve rsal is not alway s war rante d when a trial judge fails to include written finding s o f fa ct an d conclusions of law in the order dismiss ing a postconviction petition. State v. Swanson
, 680 S.W .2d 487, 48 9 (Tenn. Crim. App. 1984). The leg islative intent of the statute is to aid the appellate court’s revie w of post-conviction proce eding s. Id .; George v. State
, 533 S.W .2d 322, 326 (Tenn. Crim. App. 1 9 7 5 ). W h er e the court orally
pronounce s its finding s from the bench, failure to state finding s of fac t and conclusions of law in the final order may be harmless err or. State v. Higgins
, 729 S.W .2d 28 8
, 2 9 0 -9 1 (Tenn. Crim. App. 1987).

I n t h e instant case , the post-conviction court’s order incorporates by ref ere nce th e o ra l findings of fac t and conclusions of law that are contained in the rec ord of the post-conviction hear ing. The petitioner has not demonstrated on appea l that he was prejudice d beca use the trial court did not issue detailed finding s o f fa ct i n h i s wr itten order with reg ard to eac h issue raised in his petition. The petitioner is not entitled to relief on this issue.

-5-Conclusion

Ba sed on the fore g oing and the rec ord as a whole, we af fi rm the judgme nt from the postconviction cour

t.

___________________________________ J OHN EV ERETT WI L L I AMS, J UDGE

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