IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 13, 2021

WESLEY H. LUTHRINGER v. STATE OF TENNESSEE

Appeal from the Circuit Court for Bedford County

No. 18086 PC Forest A. Durard, Jr., Judge

No. M2020-00503-CCA-R3-PC

The petitioner, Wesley H. Luthringer, appeals the denial of his petition for post-conviction 

relief, which petition challenged his convictions of aggravated vehicular homicide, alleging 

that the trial court erred by denying his motion for new counsel and that he was deprived 

of the effective assistance of trial counsel. Discerning no error, we affirm the denial of 

post-conviction relief.

Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

JAMES CURWOOD WITT,JR., J., delivered the opinion of the court, in which JOHN EVERETT 

WILLIAMS, P.J., and CAMILLE R. MCMULLEN, J., joined.

Jonathan Brown, Fayetteville, Tennessee, for the appellant, Wesley H. Luthringer.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Assistant 

Attorney General; Robert J. Carter, District Attorney General; and Mike Randles, Assistant 

District Attorney General, for the appellee, State of Tennessee.

OPINION

The Bedford County Grand Jury charged the petitioner with two counts of 

vehicular homicide and four alternative counts of aggravated vehicular homicide for the 

deaths of Ronald Neely, Jr. and Donald Lazas III. State v. Wesley Howard Luthringer, No. 

M2016-00780-CCA-R3-CD, slip op. at 1-2 (Tenn. Crim. App., Nashville, Feb. 6, 2017).

The evidence presented at trial showed that on February 24, 2014, the 

petitioner was driving a Kia Sedona minivan in which Mr. Neely and Mr. Lazas were 

passengers along Highway 82 East in Bedford County, when the vehicle made a “‘sudden 

jerk to the right,’” crossed the center line[,] and “began sliding and created tire marks.” 

Id., slip op. at 3-4. The vehicle created a “gouge area” in the ground, “became airborne[,]

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and traveled approximately [22] feet before hitting three trees and coming to a stop.” Id., 

slip op. at 4. While airborne, the vehicle rotated causing the hood and roof of the vehicle 

to hit the side of a tree approximately eight feet from the ground. Id. The petitioner was 

found pinned in the driver’s seat, wearing a seatbelt and “wedged between the steering 

wheel and the dash.” Id., slip op. at 2. One deceased victim was found “on the roof of the 

vehicle,” and the other deceased victim was found “‘partially ejected [lying] prone . . . in 

the dirt with the vehicle crushed on top of him.’” Id. (first alteration in original). A strong 

smell of alcohol emanated from the petitioner’s person. Id., slip op. at 2-3. First responders 

found beer cans around the outside of the vehicle, and, when the van was rolled to its 

upright position, “beer cans rolled out of the vehicle.” Id. The petitioner’s blood test—

performed after he had been administered saline, which “‘could [have] potentially dilute[d] 

the blood alcohol [content]’”—revealed a blood alcohol content of 0.21. Id., slip op. at 6 

(alterations in original).

The jury convicted the petitioner as charged, and the trial court merged the 

appropriate offenses. After a sentencing hearing, the trial court sentenced the petitioner to 

an effective 48-year sentence. On appeal, this court affirmed the petitioner’s convictions 

and sentence. Id., slip op. at 1-11.

In April 2017, the petitioner filed a timely pro se petition for post-conviction 

relief. After the appointment of counsel, the petitioner filed an amended petition.1

The petitioner was represented by two attorneys at trial.2 Both attorneys were 

subpoenaed to appear for an evidentiary hearing, but co-counsel was unable to appear due 

to health issues. The post-conviction court continued the hearing and permitted the 

petitioner to take co-counsel’s testimony by deposition. The petitioner attempted to do so, 

but co-counsel’s health had deteriorated to a point that he was unable to participate in a 

deposition. At the time of the October 2019 evidentiary hearing, the petitioner had been 

unable to depose co-counsel, and the evidentiary hearing proceeded without his testimony.

At the evidentiary hearing, the petitioner testified that trial counsel and cocounsel represented him at trial and that “they were always together” when he spoke with 

them. He was incarcerated in Henning prior to his trial, and his attorneys came to see him 

only once, “[n]ot long before trial,” staying only “[f]ive minutes maybe.” During that fiveminute meeting, counsel told him that the case was going to trial and that “‘it pretty much 

 

1 Present counsel is the third attorney appointed to the petitioner’s post-conviction proceedings. 

Through counsel, the petitioner filed three amended post-conviction petitions, the final of which 

incorporated by reference the entirety of the original pro se petition. Consequently, the post-conviction 

court considered only the claims raised in the pro-se petition and the final amended petition.

2 Because only one trial attorney testified at the evidentiary hearing, we will refer to the testifying 

attorney as “trial counsel” and the non-testifying attorney as “co-counsel.”
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looks like they’ve got you.’” The petitioner said that he came to court several times leading 

up to his trial and that he met with counsel on those dates but that those meetings were 

“[n]ot long.” He acknowledged that counsel had told him that the State had offered a plea 

agreement with a 40-year sentence with a “high percentage” to serve before release 

eligibility but said that he “quickly refused that” and that they did not discuss making a 

counteroffer. The petitioner denied that counsel discussed trial witnesses, trial preparation, 

or a defense strategy with him, stating that “[t]here was no strategy.” He said that counsel 

never discussed with him whether he was driving the vehicle at the time of the wreck but 

that they just “said it looks like I was.” He explained that he sustained “a bad brain injury” 

in the accident and that he did not “remember anything.”

The petitioner testified that counsel sent him only part of the discovery 

materials, consisting of autopsy and medical reports and that neither attorney reviewed the 

materials with him. As to “[p]retty much” all trial exhibits, including “[s]ome diagrams 

and some pictures and reports,” the petitioner said that he “[n]ever saw them until trial.” 

He testified that, at a pretrial hearing on June 15, 2015, he “was trying to fire my attorneys” 

because “they hadn’t worked. They hadn’t tried to do anything for me.” He told the trial 

court that he was aware that counsel had received “over 400 pages” of documents in 

discovery materials but that they had sent him only 20 pages. The petitioner said that 

before trial, he did not think that he had been driving the vehicle at the time of the crash 

and said that if counsel had reviewed the discovery materials with him and had shown him

the photographs indicating that he was driving, he would have given a plea offer greater 

consideration. Instead, he “thought I was innocent when I went to trial.”

The petitioner averred that counsel failed to object to the State’s asking 

leading questions during direct examination of witnesses at trial. The petitioner believed 

that the State “was coaching the witnesses to get the answers he wanted out of them.” He 

said that counsel also failed to object to the State’s indicating by its questions certain facts 

that were not in evidence. He testified that co-counsel relied on the eighth edition of the 

Tennessee Pattern Jury Instructions whereas the trial court relied on the 19th edition and 

that co-counsel’s failure to stay up to date on the law concerned him.

During cross-examination, the petitioner acknowledged that counsel mailed 

him some discovery materials but denied that those materials included the diagrams or 

reports from the Critical Incident Response Team’s investigation. He conceded that he 

received copies of the victims’ autopsy reports and the medical records from his treatment 

after the accident but said that counsel did not point out to him the portion of the medical 

report that indicated that he was removed from the driver’s seat of the vehicle. He 

reiterated that “nobody ever went over anything with me.” The petitioner acknowledged 

that he wrote a letter to co-counsel on July 5, 2015, in which he stated that he wanted 

counsel “to find out who made these medical statements I found, and have them supena’d 
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[sic] to court.” The petitioner said that, because of his brain injury, his “short term memory 

is gone” and that he could not remember to what medical statements he was referring in 

the letter. He denied that counsel pointed out to him the statements in the medical reports 

that indicated that he had been driving. He said that he did not know until trial that the 

State had two witnesses to testify that he was removed from the driver’s seat at the scene 

of the crash. The petitioner said that he “didn’t think I was driving until I went to trial” 

and heard the evidence.

The petitioner acknowledged that his blood alcohol level was .21 at the time 

of the crash but denied that counsel explained to him that his high blood alcohol content 

and his prior DUI convictions allowed the State to charge him with aggravated vehicular 

homicide rather than merely vehicular homicide. He testified that counsel explained to 

him the elements of vehicular homicide but that they did not discuss the additional elements 

of aggravated vehicular homicide. He also denied that they discussed the possible effect 

of his prior DUI convictions on his sentences, stating, “I didn’t hear about that until 

sentencing.” The petitioner acknowledged that it was possible that his not remembering 

counsels’ explaining certain things to him was the result of his memory loss and not 

because they failed to do so.

The petitioner acknowledged that in his July 2015 letter to co-counsel, he 

asked co-counsel to work on a plea agreement in which he would plead guilty to vehicular 

homicide if the State would agree to “drop the aggravated.” He also acknowledged that in 

a June 2015 hearing, he told the trial court that he could not plead guilty because he could 

not remember what happened the night of the crash. He reiterated that counsel did not 

discuss any trial strategy with him but acknowledged that he could not provide counsel 

with any helpful information about the night of the crash because of his memory loss. He 

acknowledged that the State’s evidence would be hard for him to defend against but 

suggested that there were other arguments that counsel could have made.

The petitioner said that counsel had not explained to him that each aggravated 

vehicular homicide charge carried a potential sentence of 15 to 25 years. The petitioner 

said that, had he known his sentencing exposure, he would have “[m]aybe” accepted a plea 

offer but then said, “I thought I was innocent. I wouldn’t have took one year right then.” 

He said that even knowing all of the evidence that the State presented at trial, he “probably 

still wouldn’t have took” a plea offer and “would have still took it to trial probably.”

When pressed, the petitioner admitted that he looked at sentencing 

information available in the facility where he was incarcerated pretrial and knew that 

aggravated vehicular homicide was a Class A felony that carried a 15- to 25-year sentence 

for a Range I offender. He reiterated, however, that counsel never discussed the matter 

with him. He explained that he mentioned a best interest plea in his July 2015 letter to 
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counsel because other inmates told him “these things to write and ask for.” He denied that 

counsel discussed such a plea with him. He acknowledged that co-counsel had written him 

a letter on July 23, 2015, in which co-counsel said that the State was considering his plea 

offer but had not yet made a decision.

The petitioner took issue with counsels’ relying on an out-of-date edition of 

the Tennessee Pattern Jury Instructions but acknowledged that they were not surprised by 

the language of the jury instructions given by the court.

Trial counsel testified that he and co-counsel worked as a team on the 

petitioner’s case. He could not recall a time that either attorney met with the petitioner 

alone, saying, “I think we were both together about every time.” Trial counsel stated that 

they met with the petitioner “numerous times” between his arraignment and trial. He

explained that he and co-counsel did not have delegated roles on the case but “just worked 

on it as a team,” sharing equal responsibility. 

Trial counsel testified that he and co-counsel sent the petitioner all of the 

discovery materials, noting that initially, they had only the autopsy reports and “the general 

discovery”; they did not receive the petitioner’s medical reports until sometime later. He 

said that the petitioner’s medical records were given to the petitioner on June 17, 2015. He 

emphasized that he and co-counsel discussed with the petitioner “everything involving the 

case on numerous occasions.” Trial counsel said that they reviewed the petitioner’s

medical records and his medical condition and that the petitioner “told us numerous times 

that he couldn’t remember anything about the brain damage . . . . And we went over with 

him that he had a .21 BAC . . . .” Trial counsel also said that they discussed with the 

petitioner that his medical records indicated that he was driving the vehicle but that the 

petitioner indicated that he did not remember driving and “kind of waffled a little bit.”

Trial counsel testified that the petitioner raised the possibility of “a best 

interest plea but he didn’t want to take 40 years. And so he said he didn’t feel like he could 

plead guilty since the State wouldn’t come down any lower.” Counsel discussed a plea 

offer with him pursuant to which the State offered 40 years at 30 percent release eligibility. 

Trial counsel said that they investigated the petitioner’s suggestion that certain family 

members could testify that he was not driving at the time of the crash but that two of those 

witnesses did not have knowledge of the matter and a third witness saw Mr. Neeley drive 

away in the vehicle prior to the crash but did not witness the crash. Counsel said that the 

evidence indicated that the defendant was driving at the time of the crash.

Trial counsel testified that either he or co-counsel “grabbed what Pattern 

Instructions we saw at the office” before going to trial unaware that they had taken an 

outdated edition. He denied that their bringing the outdated edition to court had any impact 
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on the trial because the trial court had an updated version on which the parties based their 

discussion of the jury instructions.

Trial counsel said that they did not consider hiring expert witnesses because 

“an expert is not going to be able to say if there was any sort of intervening cause. And 

that was pretty much the only viable defense since he was driving the car.” He also said 

that they argued at trial that an intervening event, such as a deer running in front of the 

vehicle, could have been the cause of the accident, but he reiterated that an expert would 

not have strengthened that argument.

Trial counsel explained that they did not object to the State’s using a 

supervising doctor to admit the autopsy reports rather than the doctor who performed the 

autopsies because “there’s case law that says that’s fine.” He also said that the cause of 

death of the victims was not in question. Trial counsel said that the State did not ask leading 

questions of witnesses on direct examination.

Trial counsel acknowledged that, in a June 2015 hearing, the petitioner raised 

his dissatisfaction with the extent of counsels’ communication with him but said that they 

“were talking to him about everything.” After that hearing, trial counsel and co-counsel 

“made sure that we had sent everything to him and then . . . we s[aw] him at the jail while 

he was here and went to see him in Henning and then saw him before trial.” Trial counsel 

explained that it was not his practice to send all discovery materials to every client “because 

some of them don’t want it.” Instead, it was his practice to fully discuss all of the materials 

with the client but to send copies only if requested. Trial counsel said in this case, they 

sent the petitioner the initial discovery materials and sent the remaining materials when the 

petitioner asked for them.

During cross-examination, trial counsel testified that it could take a long time 

to get certain discovery materials, “especially from hospitals because hospitals are 

notoriously slow for giving information to either the State or Defense attorneys.” When 

he and co-counsel met with the petitioner, they reviewed any discovery materials that they 

had received since their last visit. Trial counsel said that it was his usual practice to meet 

with a client after arraignment to “go over what the charge is, what level of punishment it 

carries; talk about the elements; talk about the facts of the case.” He stated that he 

explained to the petitioner his potential sentencing exposure. He recalled that the State 

made a plea offer with an effective 40-year sentence but that the State was unwilling “to 

budge very much at all” in this case.

Trial counsel said that the petitioner remembered “very little” about the night 

of the accident because of his head injury. He reiterated that the potential witnesses 

identified by the petitioner could not provide helpful information, noting that “there was 
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no way to get around the fact that” the petitioner was “pulled . . . out from beneath . . . the 

driver’s dashboard.” Trial counsel explained that calling an expert witness to testify about 

the possible speed the petitioner was driving at the time of the crash would not have 

benefited the defense because the evidence showed that the vehicle’s “brakes were not 

locked up” and that “the vehicle went flying 20 feet in the air,” which indicated that it was 

traveling “at a high rate of speed.” Trial counsel said that this was a case with a “lot of bad 

evidence” against the petitioner and very little evidence supporting a defense.

Trial counsel also said that, because the petitioner could not remember 

anything of the night of the crash, he could not enter an open plea because the trial court 

would not accept a guilty plea if the petitioner could not admit guilt. Trial counsel testified

that they discussed the possibility of a best interest plea and that the petitioner was willing 

to enter a best interest plea for a 15-year sentence, but the State did not agree.

Trial counsel said that the parties discussed the jury instructions with the trial 

court. The court supplied the parties with copies of the intended jury instructions and asked 

for the parties’ input. Trial counsel said that the court’s instructions were “up to date” and 

followed the “most recent” edition of the pattern jury instructions. He did not find any 

error in the court’s jury instructions.

Upon questioning by the court, trial counsel clarified that there was a 

discussion about the correct language to use in the jury charge regarding circumstantial 

evidence and that co-counsel favored out-of-date language, but the trial court used the 

current language in the charge it gave to the jury.

At the close of the hearing, the post-conviction court took the matter under 

advisement. In its written order denying relief, the post-conviction court found that the 

petitioner had failed to establish that he was entitled to new counsel before trial or that his 

defense at trial was prejudiced by the trial court’s denial of his motion for new counsel. 

The post-conviction court concluded that counsel did not perform deficiently, finding that 

the direct examination questions to which the petitioner asserts that counsel should have 

objected were either not leading questions or, to the extent that they may have been leading, 

were not suggestive of an answer and did not prejudice the petitioner’s trial. Further, the 

post-conviction court concluded that the State properly admitted the victims’ autopsy 

reports into evidence via a doctor who did not perform the autopsies. As to the petitioner’s 

remaining claims, the post-conviction court concluded that the petitioner had failed to 

establish prejudice.

In this timely appeal, the petitioner reasserts his claims that he was denied 

his constitutional right to counsel at trial because the trial court denied his motion to appoint 

new counsel and because he was deprived of the effective assistance of counsel at trial.
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We view the petitioner’s claim with a few well-settled principles in mind. 

Post-conviction relief is available only “when the conviction or sentence is void or voidable 

because of the abridgment of any right guaranteed by the Constitution of Tennessee or the 

Constitution of the United States.” T.C.A. § 40-30-103. A post-conviction petitioner bears 

the burden of proving his or her factual allegations by clear and convincing evidence. Id.

§ 40-30-110(f). On appeal, the appellate court accords to the post-conviction 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); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997). By contrast, 

the post-conviction court’s conclusions of law receive no deference or presumption of 

correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).

Before a petitioner will be granted post-conviction relief based upon a claim 

of ineffective assistance of counsel, the record must affirmatively establish, via facts 

clearly and convincingly established by the petitioner, that “the advice given, or the 

services rendered by the attorney, are [not] within the range of competence demanded of 

attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and 

that counsel’s deficient performance “actually had an adverse effect on the defense,” 

Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, the petitioner “must 

show that there is a reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different. A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Id. at 694. Should the 

petitioner fail to establish either deficient performance or prejudice, he is not entitled to 

relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f it is 

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, 

. . . that course should be followed.” Strickland, 466 U.S. at 697.

When considering a claim of ineffective assistance of counsel, a reviewing 

court “begins with the strong presumption that counsel provided adequate assistance and 

used reasonable professional judgment to make all significant decisions,” Kendrick v. 

State, 454 S.W.3d 450, 458 (Tenn. 2015) (citation omitted), and “[t]he petitioner bears the 

burden of overcoming this presumption,” id. (citations omitted). We will not grant the 

petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or 

provide relief on the basis of a sound, but unsuccessful, tactical decision made during the 

course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). 

Such deference to the tactical decisions of counsel, however, applies only if the choices are 

made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. 

Crim. App. 1992).
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Initially, we note that the petitioner’s claim that the trial court erred by 

denying his pretrial motion for substitution of counsel qualifies as waived because the 

petitioner did not present the issue as a ground for relief on direct appeal. See T.C.A. § 40-

30-106(g) (“A ground for relief is waived if the petitioner personally or through an attorney 

failed to present it for determination in any proceeding before a court of competent 

jurisdiction in which the ground could have been presented . . . .”); Brown v. State, 489 

S.W.2d 268, 270 (Tenn. Crim. App. 1972) (“All trial questions are first determined in the 

trial court. If the losing party chooses to accept that determination without appeal, it is as 

final and binding as if affirmed by the highest appellate court.”).

To the extent that the petitioner argues that counsel was ineffective for failing

to raise the issue in the motion for new trial and on appeal, the petitioner has failed to show 

that he was prejudiced by that omission. At a hearing in June 2015, the petitioner asked 

the trial court to appoint new counsel because he alleged that trial counsel and co-counsel 

had not spoken with him in a year and had not provided him with all discovery materials. 

The trial court continued the trial to a later date because a superseding indictment was 

issued and ordered the petitioner, who was incarcerated at the time, to be held locally for a 

few days to allow his counsel time to meet with him and to review discovery materials. 

Thus, the trial court addressed the petitioner’s concerns, albeit via an avenue other than 

appointment of new counsel. Furthermore, as we will discuss more thoroughly below, the 

petitioner’s attorneys were not ineffective, and, consequently, the petitioner cannot

establish that the trial court’s denial of his motion for new counsel prejudiced him at trial.

Here, the petitioner has failed to establish deficient performance by counsel 

or that he was prejudiced by counsels’ representation. During the evidentiary hearing, the 

petitioner testified that he did not understand his sentencing exposure or know that the 

State’s evidence would show that he was driving the vehicle; however, the petitioner also 

said that he learned of his sentencing exposure through means other than counsel and that, 

even if he had known all of the relevant information during plea negotiations, he likely 

would not have accepted a plea offer. Also, the petitioner asserts that his attorneys were 

generally unprepared for trial as indicated by their use of an old edition of the Tennessee 

Pattern Jury Instructions and co-counsel’s allegedly unprofessional conduct, but the 

petitioner has failed to show what counsel could have done differently that would have 

benefited his defense. Counsel investigated the meager leads that the petitioner was able 

to provide, the trial court relied on a current edition of the Tennessee Pattern Instructions 

in preparing the jury charge, and the petitioner has pointed to no specific evidence or trial 

strategy that counsel could have discussed with him that would have achieved a different 

outcome. That the petitioner may have been more confident in counsels’ representation 

had they communicated with him more frequently and brought the current version of jury 

instructions to court is irrelevant to the outcome of the trial.
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Furthermore, we agree with the post-conviction court that, to the extent that 

the State asked leading questions on direct examination, the questions did not suggest

particular answers and did not rely on facts not yet in evidence. For example, the petitioner 

alleges that Trooper Barry Qualls had not yet identified the petitioner as an occupant of the 

vehicle when the State asked: “And you’ve indicated that this third person was the 

[petitioner]?” The record reveals, however, that Trooper Qualls had already testified: 

“When Mr. Story was in the vehicle checking for the pulse of Mr. Lazas, that’s when he 

heard the [petitioner] moaning. That’s how we knew that there was a third person inside 

the vehicle.” The State’s question did not go beyond confirming what Trooper Qualls had 

already said. The only question that directly provided an answer for the witness was when 

the State asked Trooper Qualls if one of the victims was from Sparta, Tennessee. Even if 

counsel had objected to the use of this leading question, the name of victim’s hometown 

had no bearing on the outcome of the trial.

As to counsel’s failure to object to the State’s offering the victims’ autopsy

reports into evidence via a supervising doctor, trial counsel testified that there was no legal 

basis on which he could object. Our supreme court has held that an autopsy report may be 

properly admitted through an appropriate expert witness other than the doctor who 

performed the autopsy. See State v. Hutchison, 482 S.W.3d 893, 914-15 (Tenn. 2016). 

Additionally, trial counsel indicated that he did not object to the admission of the autopsy 

reports because the victims’ cause of death was not at issue. This is precisely the sort of 

strategic decision left to the discretion of counsel.

Similarly, trial counsel testified that he did not call an expert witness because 

he did not believe it to be beneficial to the defense. Again, this is a decision left to the 

professional judgment of counsel, and we will not now second guess that strategy. 

Moreover, because the petitioner failed to present at the evidentiary hearing the testimony 

of the proposed expert witness, the petitioner has failed to establish that he was prejudiced 

by counsels’ decision to forgo the use of an expert witness. See Black v. State, 794 S.W.2d 

752, 757 (Tenn. Crim. App. 1990) (“When a petitioner contends that trial counsel failed to 

discover, interview, or present witnesses in support of his defense, these witnesses should 

be presented by the petitioner at the evidentiary hearing.”). Consequently, the petitioner 

has failed to establish any instance of deficient performance by counsel.

Accordingly, the judgment of the post-conviction court is affirmed.

_________________________________ 

JAMES CURWOOD WITT, JR., JUDGE