IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

June 2000 Session

WILLIAM LAVERN DAVIS v. STATE OF TENNESSEE

 Direct Appeal from the Circuit Court for Marshall County

No. 14027 William Charles Lee, Trial Judge

No. M2000-00341-CCA-R3-PC - Filed July 28, 2000 

The petitioner argues that in finding that his trial counsel was not ineffective and denying his postconviction petition, the petitioner appeals from the trial court’s denial of his post-conviction petition.

He argues that the trial court erred by finding that his trial counsel was not ineffective. The trial

court’s order is affirmed.

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

WILLIAMS, J., delivered the opinion of the court, in which WELLES and SMITH, JJ., joined.

William M. Haywood, Lewisburg, Tennessee, for the appellant, William Lavern Davis.

Paul G. Summers, Attorney General & Reporter, Jennifer L. Bledsoe, Assistant Attorney General,

William Michael McCown, District Attorney General, and Weakley E. (Eddie) Barnard, Assistant

District Attorney, for the appellee, State of Tennessee.

OPINION

Introduction

The petitioner, William L. Davis, appeals from the Marshall County Circuit Court’s order,

entered after a hearing, denying his petition for post-conviction relief. Found guilty in 1997 of one

count of theft over $1000, he was sentenced, as a Career Offender, to serve twelve years in the

Department of Correction. He now argues that trial counsel was deficient in certain respects and that

he is therefore entitled to a new trial. Particularly, he argues:

(1) Trial counsel’s failure to raise the issue of the value of checks stolen constituted

ineffective assistance of counsel; and

(2) Trial counsel’s failure to investigate, understand and properly notify the

defendant of the effect of the notice of enhancement constituted ineffective

assistance of counsel.

After careful review, we disagree and affirm the order denying the petition.
-2-

Facts

As general background, in 1996, the petitioner with his wife and another co-defendant came

to Marshall County, Tennessee for the purpose of stealing. In the parking lot of the Family Dollar

Store, the three noticed that the store manager had dropped a bag as she was leaving the store. The

petitioner subsequently stole the bag which contained $700 in cash and $700 in checks. Later

apprehended and charged, the petitioner went to trial maintaining, all the time, his innocence. He

was convicted of one count of theft over $1000 and sentenced as a career offender to twelve years.

The facts most relevant to this appeal were established at the post-conviction hearing. At this

hearing, both the petitioner, trial counsel, and a prosecuting attorney testified. Trial counsel first

described his meetings and communication with the petitioner. He stated that throughout their

discussions the petitioner was adamant that he would accept no plea agreement involving

incarceration and maintained from the very beginning his innocence. At various points during the

representation, counsel explained to the petitioner that his “innocence claim” was not founded in

the law; however, petitioner stayed firm. Next, he addressed the issue of the value of the checks.

He explained that he had researched the matter and notified his client that the issue, if raised, would

not be resolved in their favor. As for the enhancement issue, he stated that he, before trial and up

to the sentencing hearing, was of the mistaken belief that the petitioner would be sentenced at Range

II and not as a Career Offender. He said that this belief stemmed from petitioner’s insistence that

he had only four prior felony convictions. Further, he said that during plea negotiation the state had

explained to the petitioner that he was a Career Offender and not a Range II but both he and

petitioner remained unconvinced. During this negotiation, he said that the state offered somewhere

between three and four years as a Range I offender. But again, he said, the defendant, not wanting

to serve any time, rejected the offer.

The petitioner first described the incident leading to the conviction. Next, he described his

discussions with defense counsel. He stated that no discussion about the valuation of the stolen

checks occurred. Further, he stated that he was never told by either his attorney or the prosecuting

attorney that he might receive twelve years. In fact, the petitioner stated that if he had known that

he was facing twelve years then he would have taken the state’s best offer.

Finally, a prosecuting attorney testified. He related the details of a meeting with the

petitioner and his counsel. He stated that he remembered telling the petitioner that he faced a good

possibility of twelve years. 

After hearing this testimony, the trial court found:

But, they really won’t have to because factually the Court finds the State’s position

to be factually such that the defendant should be denied his relief.

. . .
-3-

The Court finds that to be the case and the defendant elected to proceed to trial under

the theory that he would convince the jury that he was not guilty of anything.

. . .

With regard to counsel’s alleged failure to pursue some theory about value, that was

inconsistent with his defense. That was a tactical decision. The proper tactical

decision.

. . . 

Be that as it may, the Court finds that counsel’s conduct far exceeded the

expectations of that under Baxter v. Rose.

. . .

The defendant’s petition is respectfully denied for the reasons previously stated.

From these findings and the trial court’s denial, the petitioner now appeals. 

Analysis

The petitioner agues that the trial court abused its discretion by finding that his trial counsel

was not ineffective. He identifies two regards in which counsel was allegedly deficient:

(1) Trial counsel failed to raise the issue of the value of the checks stolen; and

(2) Trial counsel failed to investigate, understand, and properly notify the defendant

of the effect of the notice of enhancement.

After reviewing this argument, we disagree.

This Court reviews a claim of ineffective assistance of counsel under the standards of Baxter

v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v. Washington,104 S.Ct. 2052, 80 L.Ed.2d

674 (1984). The petitioner has the burden to prove that (1) the attorney’s performance was deficient,

and (2) the deficient performance resulted in prejudice to the defendant so as to deprive him of a fair

trial. See Strickland v. Washington, 104 S.Ct. at 2064; Goad v. State, 938 S.W.2d 363, 369 (Tenn.

1996); Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State, 789 S.W.2d 898, 899 (Tenn.

1990). To demonstrate prejudice a defendant or petitioner must show that there is a reasonable

probability that but for counsel’s error the result of the proceeding would have been different. 

The test in Tennessee in determining whether counsel provided effective assistance is

whether his performance was within the range of competence demanded of attorneys in criminal

cases. SeeBaxter, 523 S.W.2d at 936. The petitioner must overcome the presumption that counsel’s

conduct falls within the wide range of acceptable professional assistance. See Strickland, 104 S.Ct.

at 2065; Alley v. State, 958 S.W.2d 138, 149 (Tenn. Crim. App. 1997); Hicks v. State, 983 S.W.2d

240, 246 (Tenn. Crim. App. 1998). Therefore, in order to prove a deficiency, a petitioner must show
-4-

that counsel’s acts or omissions were so serious as to fall below an objective standard of

reasonableness under prevailing professional norms. See Strickland,104 S.Ct. at 2065; Henley v.

State, 960 S.W.2d 522, 579 (Tenn. 1997); Goad, 938 S.W.2d at 369.

In reviewing counsel’s conduct, a “fair assessment . . . requires that every effort be made to

eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s perspective at the time.” See Strickland, 104

S.Ct. at 2065. The fact that a particular strategy or tactic failed or hurt the defense, does not,

standing alone, establishunreasonable representation. However, deference to matters of strategy and

tactical choices applies only if the choices are informed ones based upon adequate preparation. See

Goad, 938 S.W.2d at 369; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); Alley, 958 S.W.2d at 149;

Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

Further, the petitioner’s burden of proof in all post-conviction cases filed after May 12, 1995,

is one of clear and convincing evidence,see Tenn. Code Ann. § 40-30-210(f), and reviewing courts

must indulge a strong presumption that counsel’s conduct falls within the range of reasonableness.

Finally, the trial judge’s findings of fact on post-conviction hearings are conclusive on appeal unless

the evidence preponderates otherwise. See Butler, 789 S.W.2d 898, 899; Adkins v. State, 911

S.W.2d 334, 341 (Tenn. Crim. App. 1995). The trial court’s findings of fact are afforded the weight

of a jury verdict, and this Court is bound by the findings unless the evidence in the record

preponderates against them. See Henley, 960 S.W.2d at 578. That burden lies with the petitioner.

See Id. at 579.

Value of Stolen Checks

We first address counsel’s alleged failure to raise the issue of the value of the checks stolen.

The petitioner argues that his counsel was ineffective for failing to argue that the checks stolen were

improperly valued at $700, their face amount. Trial counsel addressing this issue at the postconviction hearing testified that his decision not to challenge the value was made after a review of

the relevant case law. See State v. Evans, 669 S.W.2d 708 (Tenn. Crim. App. 1984). Or in other

words, his decision was an informed, strategic, legal decision. See id.; see also Hellard, 629 S.W.2d

at 9.We will not now second-guess that decision.

Further, the petitioner has made no showing that if challenged, the valuation of the checks

and in turn the jury verdict would have probably been different. See Henley, 960 S.W.2d at 579 

For these reasons, we find no merit in this issue.

Notice of Enhancement

Next, we address petitioner’s argument that counsel’s failure to inform him of the effect of

the notice of enhancement constituted ineffective assistance of counsel. The trial court credited the

testimony of the prosecuting attorney who stated that the petitioner was informed that he had a good

possibility of receiving a twelve-year sentence. The petitioner has not demonstrated that the
-5-

evidence preponderates otherwise. Therefore, this Court is left with the trial court’s finding that the

petitioner knew he faced twelve years but decided, consistent with his insistence of innocence, that

he would go to trial. This conclusion further corresponds with trial counsel’s testimony that the

petitioner would not accept any deal involving incarceration. Therefore, this Court finds no

prejudice. This is a case where petitioner essentially asks for a second bite of the apple, and we must

now deny his petition.

Conclusion

For these reasons, we affirm the order of the trial court denying the petition for postconviction relief.

___________________________________

JUDGE JOHN EVERETT WILLIAMS