IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs December 2, 2003

WILLIE BAILEY v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Tipton County

No. 3179 Joseph H. Walker, III, Judge

No. W2003-00977-CCA-R3-PC - Filed February 4, 2004

A Tipton County jury convicted the Petitioner, Willie Bailey, of aggravated robbery and felony

possession of a handgun, and the trial court sentenced him to twenty-six years in prison. On direct

appeal, this Court affirmed the Petitioner’s sentence, and the Tennessee Supreme Court denied the

Petitioner’s application for permission to appeal. The Petitioner then sought post-conviction relief,

alleging that he was denied effective assistance of counsel. Following a hearing on the postconviction petition, the trial court dismissed the petition. On appeal, the Petitioner contends that he

was denied effective assistance of counsel for the following reasons: (1) trial counsel failed to

stipulate to the Petitioner’s felony status during the trial; and (2) trial counsel failed to file the trial

transcript with the appellate court on direct appeal. Finding no error, we affirm the post-conviction

court’s dismissal of the petition.

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

ROBERT W. WEDEMEYER,J., delivered the opinion of the court, in which JAMES CURWOOD WITT,

JR., and ALAN E. GLENN, JJ., joined.

J. Barney Witherington, IV, Covington, Tennessee, for the appellant, Willie Bailey.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Kathy D.

Aslinger, Assistant Attorney General; Elizabeth T. Rice, District Attorney General, and Walt

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

Opinion

I. Facts

The underlying facts of the Petitioner’s case are not clear because no trial transcript was filed

either on direct appeal or on appeal from the post-conviction hearing. However, in its order denying

post-conviction relief, the post-conviction court summarized the facts of the Petitioner’s trial as

follows:
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The defendant was charged with being a convicted felon in possession of a

handgun and aggravated robbery. He was convicted of both counts.

The clerk was called to introduce records of the criminal convictions of

defendant. The defendant had a prior conviction of robbery. The Court allowed the

testimony about the conviction, but gave the jury an immediate instruction that was

to be considered only for count two with regard to possession of a weapon by a

convicted felon, and could not be considered for anyreason with regard to aggravated

robbery, and could not be considered as proof of his disposition to commit the crime

of aggravated robbery for which he is on trial in count one.

Kum Sook Kitzmiller testified that she operated a beauty supply business in

Covington, and that on November 6, 1996, she was closing the store and had counted

the money and put it in her purse, and had left some in the register. Two men came

in the store and said they were looking for an earring. They shopped and purchased

an earring. The tall man pulled a gun on her. She could describe his appearance and

clothes. They forced her to open the register and took the money from the register,

and took her purse. The shorter man took the money out of her purse. She called the

police. She gave police an accurate description of the robbers and the money taken.

She identified the defendant at trial as the taller of the two robbers.

Toinette Smith testified that she saw the defendant at the apartment of

Tammy Williams on the day of the robbery. The defendant was wearing the same

clothing described by Ms. Kitzmiller. At a time after the robbery, the defendant

changed clothing at the apartment. She heard the defendant say that the police were

outside, and the defendant went to the back bedroom. She heard the defendant say

he had a gun.

Tammy Williams testified that she was Anthony Allen’s girlfriend and knows

the defendant. Allen is shorter than the defendant. Both Allen and the defendant

were at her apartment earlier on the day of the robbery, and Allen had a gun. They

left and were gone only a few minutes and then came back to the apartment and

changed clothes. The police showed up shortly afterwards. The clothes that Allen

and the defendant took off were recovered and same as identified by Ms. Kitzmiller.

Williams observed police recover money from her child’s toy that was not there

before the defendant and Allen hid in the room. Her apartment is very near the

business of Ms. Kitzmiller that was robbed.

Linda Gamblin testified that she was present when the defendant was brought

into the justice center on the night of the robbery. The defendant was with Mr. Allen,

and Tony Moss, who was deceased at the time of the trial. She heard Ms. Kitzmiller

state that Tony Moss was not one of the men who robbe[d] her. Ms. Kitzmiller

described to her the amount of money and the denomination and number of bills
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taken, which corresponded with the money recovered from Ms. Williams’ apartment.

Ms. Kitzmiller identified the clothing that was recovered from Ms. Williams’

apartment as being the same clothing worn by the tall robber with the gun.

Telford Oren testified that he went to the apartment of Ms. Williams shortly

after the robbery and found the defendant [lying] on the bed. Mr. Allen was hiding

in the closet. The defendant stated that he had just been asleep, but he was sweating

and the room was not hot. A pistol was recovered. Someone told police that two

men just ran into the apartment.

Scott Johnson testified the he was dispatched to a robbery call, and that within

a few minutes had the defendant in custody.

The defendant elected not to testify. The defendant was questioned by the

Court whether it was his decision not to testify, and that if he wanted to testify a

hearing would be held to determine which, if any, convictions could be used for

impeachment purposes. [The defendant] indicated that he did not wish to testify, and

that he understood that the case would be submitted to the jury without hearing his

testimony.

A Tipton County jury convicted the Petitioner of aggravated robbery and felony possession

of a handgun, and the trial court sentenced the Petitioner as a persistent Range III offender to twentysix years of incarceration for the aggravated robbery conviction and five years of incarceration for

the felony possession of a handgun, with the sentences to be served concurrently. This Court

affirmed the Petitioner’s sentence on direct appeal, and the Tennessee Supreme Court denied the

Petitioner’s application for permission to appeal. State v. Willie Bailey, No. W1999-01886-CCAR3-CD, 2000 WL 73711, at *1 (Tenn. Crim. App., at Jackson, Jan. 25, 2000), perm. app. denied

(Tenn. Dec. 31, 2001). Thereafter, the Petitioner filed a pro se post-conviction petition, and the

post-conviction court appointed J. Barney Witherington, IV, to represent the Petitioner in this matter.

Witherington filed an amendment to Petitioner’s original petition for post-conviction relief and

asserted that the Petitioner should be granted post-conviction relief based upon ineffective assistance

of counsel. The post-conviction court conducted a hearing on the amended petition on March 24,

2003, and subsequently dismissed the petition. The Petitioner filed a timely notice of appeal.

The following evidence was presented at the post-conviction hearing. The Petitioner testified

that Cyburn H. Sullivan, III, (“Counsel”) represented him at his trial. He stated that Counsel only

met with him twice before the trial and that the meetings lasted approximately fifteen minutes and

occurred about a week before the trial. The Petitioner explained that Counsel did not inform him

about any specific trial strategies. He reported that he told Counsel about potential witnesses, but

Counsel did not investigate them or call them to the stand. The Petitioner stated that Counsel

advised him not to take the stand at trial, and he followed Counsel’s advice. He explained that he

wanted to testify “because I know I didn’t do this . . . .” He stated that he wanted to appeal both his

convictions and the sentencing on appeal, but only his sentencing was ultimately appealed. The
We note that the 2003 amendment to the Post Conviction Procedure Act, Public Acts 1995, chapter 207, 1

section 1, changed the numbering of the general provisions part of the chapter to Tennessee Code Annotated section 40-

30-101, et seq.

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Petitioner explained that Counsel did not file the trial transcript with the appellate court because the

trial judge told Counsel not to send the transcript.

On cross-examination, the Petitioner testified that he did not actually know any witnesses

who would have helped his case at trial. He stated that Counsel should have used some sort of

strategy at his trial. The Petitioner explained that Counsel should have prevented the testimony

about his previous conviction for robbery from getting to the jury because the jury may have

convicted him of aggravated robbery based on that testimony. He stated that Counsel should have

asked the State to fingerprint him and the gun so his fingerprints could be compared to those on the

gun.

The Petitioner then called Counsel to testify. Counsel testified that he could not recall how

many times he met with the Petitioner before trial or how long the meetings lasted. He stated that

the Petitioner never gave him any names of potential witnesses to interview. Counsel explained that

he visited the crime scene but did not take any measurements. He stated that the only times he

questioned the victim were at the preliminary hearing and at trial. Counsel testified that he recalled

the testimony about the Petitioner’s prior conviction of robbery. When asked if he felt that testimony

would be prejudicial to the Petitioner, Counsel replied that he did not have an opinion as to whether

the testimony was prejudicial. Counsel admitted that the testimony about the Petitioner’s prior

conviction was not helpful to the Petitioner’s case. He explained that he did not offer to stipulate

to the Petitioner’s status as a felon because the case law did not require him to do so at that time.

Counsel admitted that it was his responsibility to file the trial transcript with the appellate court and

that the appellate court might have reduced the Petitioner’s sentence if it had reviewed the transcript.

II. Analysis

In order to obtain post-conviction relief, a petitioner must show that his or her conviction or

sentence is void or voidable because of the abridgment of a constitutional right. Tenn. Code Ann.

§ 40-30-203 (1997). The petitioner bears the burden of proving factual allegations in the petition 1

for post-conviction relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997).

A post-conviction court’s factual findings are subject to a de novo review by this Court; however,

we must accord these factual findings a presumption of correctness, which is overcome only when

a preponderance of the evidence is contrary to the post-conviction court’s factual findings. Fields

v. State, 40 S.W.3d 450, 456 (Tenn. 2001). A post-conviction court’s conclusions of law are subject

to a purely de novo review by this Court, with no presumption of correctness. Id. at 457. The

Tennessee Supreme Court has held that the issue of ineffective assistance of counsel is a mixed

question of law and fact and, as such, is subject to de novo review. State v. Burns, 6 S.W.3d 453,

461 (Tenn. 1999). 
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The right of a criminally accused to representation is guaranteed by both the Sixth

Amendment to the United States Constitution and Article I, section 9, of the Tennessee Constitution.

Id.; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). This right to representation includes the

right to “reasonably effective” assistance. Burns, 6 S.W.3d at 461. In reviewing a claim of

ineffective assistance of counsel, this Court must determine whether the advice given or services

rendered by the attorney are within the range of competence demanded of attorneys in criminal cases.

Baxter, 523 S.W.2d at 936. To prevail on a claim of ineffective assistance of counsel, a petitioner

must show that “counsel’s representation fell below an objective standard of reasonableness,”

Strickland v. Washington, 466 U.S. 668, 688 (1984), and that this performance prejudiced the

defense, resulting in a failure to produce a reliable result. Id. at 687; Cooper v. State, 849 S.W.2d

744, 747 (Tenn. 1993). To satisfy the requirement of prejudice, a petitioner must show a reasonable

probability that, but for counsel’s unreasonable error, the fact finder would have had reasonable

doubt regarding the petitioner’s guilt. Strickland, 466 U.S. at 695. This reasonable probability must

be “sufficient to undermine confidence in the outcome.” Id. at 694; see also Harris v. State, 875

S.W.2d 662, 665 (Tenn. 1994).

When evaluating an ineffective assistance of counsel claim, the reviewing court should judge

the attorney’s performance within the context of the case as a whole, taking into account all relevant

circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim.

App. 1988). The reviewing court must evaluate the questionable conduct from the attorney’s

perspective at the time. Strickland, 466 U.S. at 690; Cooper, 849 S.W.2d at 746; Hellard v. State,

629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court must be highly deferential and

“should indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Burns, 6 S.W.3d at 462. Counsel should not be deemed to have

been ineffective merely because a different procedure or strategy might have produced a different

result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980).

On appeal, the Petitioner contends that the post-conviction court erred when it found that he

was not denied effective assistance of counsel based upon two grounds: (1) Counsel failed to

stipulate to the Petitioner’s felony status at trial for the purpose of the felony possession of a handgun

charge; and (2) Counsel failed to file the trial transcript with the appellate court on direct appeal.

A. Felony Status Stipulation

The Petitioner contends that Counsel’s failure to stipulate to Petitioner’s felony status during

his trial constituted ineffective assistance of counsel. The Petitioner relies upon State v. James, 81

S.W.3d 751 (Tenn. 2002), which states that:

[W]hen the sole purpose of introducing evidence of a defendant’s prior convictions

is to prove the status element of the offense, and when the defendant offers to

stipulate his status as a felon, the probative value of the evidence is, as a matter of
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law, outweighed by the risk of unfair prejudice.

Id. at 762. However, the James court did not hold that a defense attorney is required to stipulate to

the defendant’s felony status or that a defense attorney’s failure to do so renders his assistance

ineffective. The Tennessee Supreme Court recognized that “[t]his jurisdiction has long held that the

name or nature of crimes other than that for which the defendant is on trial is relevant to establish

an essential element of the crime for which the defendant is being tried.” Id. at 760 (citing State v.

Wingard, 891 S.W.2d 628, 633-34 (Tenn. Crim. App. 1994); State v. Blackmon, 701 S.W.2d 228,

232 (Tenn. Crim. App. 1985); Lacey v. State, 506 S.W.2d 809, 811 (Tenn. Crim. App. 1974)). 

In this case, the Petitioner was charged with aggravated robbery and felony possession of a

handgun. A person commits the crime of felony possession of a handgun when the person possesses

a handgun and: “(A) [h]as been convicted of a felony involving the use or attempted use of force,

violence or a deadly weapon; or (B) [h]as been convicted of a felony drug offense.” Tenn. Code

Ann. § 39-17-1307(b)(1)(A), (B) (1997). Therefore, in order for the State to convict the Petitioner

of felony possession of a handgun, it had to prove beyond a reasonable doubt that the Petitioner

possessed a handgun and had a previous felony conviction involving “the use or attempted use of

force, violence or a deadly weapon” or a previous conviction of a felony drug offense. In the trial

court’s order, it made the following findings regarding this testimony at trial:

The clerk was called to introduce records of the criminal convictions of

defendant. The defendant had a prior conviction of robbery. The Court allowed the

testimony about the conviction, but gave the jury an immediate instruction that was

to be considered only for count two with regard to possession of a weapon by a

convicted felon, and could not be considered for any reason with regard to aggravated

robbery, and could not be considered as proof of his disposition to commit the crime

of aggravated robbery for which he is on trial in count one.

From these findings, we cannot determine the nature of the Petitioner’s prior convictions, other than

his prior conviction for robbery. Apparently, Counsel did not object to the State’s introduction of

the Petitioner’s prior conviction for robbery in order to prove that the Petitioner had a prior

conviction involving the use or attempted use of force, violence or a deadly weapon. 

After reviewing the limited record before us and the trial court’s findings, we conclude that

Counsel’s decision not to stipulate to the Petitioner’s priorfelony conviction that would prohibit him

from carrying a weapon falls below an objective standard of reasonableness in the legal profession

and is not within the range of competence demanded of attorneys in criminal cases. Strickland, 466

U.S. at 688; Baxter, 523 S.W.2d at 936. Under the circumstances of this case, Counsel should have

stipulated that, at the time of the alleged offense of felony possession of a handgun, the Petitioner

had been convicted of a felony that would prohibit him from carrying a weapon under Tennessee
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Code Annotated section 39-17-1307(b)(1)(A), (B). By so stipulating, Counsel would have prevented

the jury from learning that the Petitioner’s prior felony conviction was for robbery, the same crime

for which he was on trial. We conclude that Counsel’s failure to stipulate in this case was

inexcusable because the Petitioner was on trial for aggravated robbery, and the Petitioner’s prior

robbery conviction had the potential to prejudice the Petitioner.

However, even though we conclude that Counsel’s failure to stipulate in this case fell below

an objective standard of reasonableness in the legal profession , the Petitioner failed to prove that

his defense was prejudiced, resulting in a failure to produce a reliable result. Strickland, 466 U.S.

at 687. As the trial court noted in its findings, the evidence at trial was substantial against the

Petitioner, and the trial court immediately gave curative instructions that the Petitioner’s prior

robbery conviction should only be considered for the count of the indictment concerning felony

possession of a handgun. Accordingly, we conclude that the Petitioner is not entitled to postconviction relief on this issue.

B. Trial Transcript

The Petitioner next contends that Counsel’s failure to file the trial transcript with the

appellate court on direct appeal constituted ineffective assistance of counsel. The appellant in a

criminal case has the responsibility to prepare a transcript of “such part of the evidence or

proceedings as is necessary to convey a fair, accurate and complete account of what transpired with

respect to those issue that are the bases of appeal.” Tenn. R. App. P. 24(b). The appellant then must

file the transcript with the clerk of the trial court within ninety days after filing the notice of appeal.

Id. Because the burden is upon the defendant to demonstrate the impropriety of his or her sentence,

see State v. Wilkerson, 905 S.W.2d 933, 934 (Tenn. 1995), “failure to include a transcript of the trial

makes it impossible for [this Court] to conduct an appropriate de novo consideration of the case or

to determine whether the trial court erred relative to its determinations which were based in any part

on that evidence.” State v. Hayes, 894 S.W.2d 298, 300 (Tenn. Crim. App. 1994). 

On direct appeal, the Petitioner presented two issues for review: (1) whether the trial court

erred by sentencing the appellant as a persistent offender; and (2) whether the trial court misapplied

certain enhancement factors. Bailey, 2000 WL 73711, at *1. In this Court’s opinion on Petitioner’s

direct appeal, we held that, “[n]otwithstanding the absence of the transcript of the trial, the record

establishes that the trial court correctly sentenced the appellant as a persistent Range III offender.”

Id. We further held that:

Although the State concedes that the trial court improperly applied these two

enhancement factors, we have no way of determining what an appropriate sentence

should be in the absence of such enhancement factors. . . . In summary, in order to

fully assess the issues raised by the appellant, this court must consider, among other

things, the evidence received at trial and the nature and characteristics of the crime.
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Because the record does not contain a transcript of the trial, we are unable to

determine what an appropriate sentence should be. In the absence of a complete

record, we decline to disturb the sentencing determinations of the trial court.

Id. Counsel admitted that it was his responsibility to file the trial transcript with the appellate court

and that the appellate court might have reduced the Petitioner’s sentence if it had reviewed the

transcript. We conclude that Counsel’s failure to file the trial transcript falls below an objective

standard of reasonableness in the legal profession and is not within the range of competence

demanded of attorneys in criminal cases. Strickland, 466 U.S. at 688; Baxter, 523 S.W.2d at 936.

Having found that Counsel’s failure to file a trial transcript in this case fell below an

objective standard of reasonableness in the legal profession, we now turn to the prejudice prong of

the ineffective assistance of counsel analysis. The Petitioner contends that “Counsel’s failure with

regard to the transcript is evident by his own admission and the prejudicial effect is directly apparent

in the ruling of this Court in Defendant’s original appeal.” We disagree with the Petitioner’s

assertion that the prejudicial effect is “directly apparent in the ruling of this Court” on direct appeal.

On direct appeal, we explained, “Because the record does not contain a transcript of the trial, we are

unable to determine what an appropriate sentence should be. In the absence of a complete record,

we decline to disturb the sentencing determinations of the trial court.” Bailey, 2000 WL 73711, at

*1. Nothing in our holding suggests that we would have necessarily reached a different result had

the trial transcript been included. Moreover, the Petitioner failed to include either the trial transcript

or the sentencing hearing transcript on appeal from the post-conviction hearing. Without the trial

transcript and the sentencing hearing transcript, we are unable to determine whether the Petitioner’s

original sentence was erroneous. The Petitioner failed to provide any evidence at the post-conviction

hearing that showed by clear and convincing evidence that his defense was prejudiced as a result of

Counsel’s error, resulting in a failure to produce a reliable result. Strickland, 466 U.S. at 687.

Accordingly, we conclude that the Petitioner is not entitled to post-conviction relief on this issue.

III. Conclusion

In accordance with the foregoing authorities and reasoning, we conclude that the Petitioner

has failed to prove ineffective assistance of counsel by clear and convincing evidence, and the postconviction court did not err by finding that the Petitioner received effective assistance of counsel and

dismissing his petition. Therefore, we AFFIRM the post-conviction court’s judgment.

___________________________________ 

ROBERT W. WEDEMEYER, JUDGE