### IN THE COURT OF CRIMINAL AP PEALS OF TENNESSEE AT NASHVILLE June 2000 Session WILLIAM LAVERN DAVIS v. STA TE 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 denyinghis postconviction petition, the petitioner appeals from the trial cou rt’ s denial of his post-conviction petition. He argues that the trial court erred by finding that his trial counse l was not ineffective. The tria l court’s order is affirmed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
W ILLIAM S , J., delivered the opinion of the court, in which W ELLES and S MITH , JJ., joined. William M. Haywood

, Lewisburg, Tenn

essee, for the a

ppellant, William L

avern Davis. Paul G. Summers, Attorney General & Reporter, Jennifer L. Bleds oe, Assistant Attor

ney General, William Michael McCown, District A ttorney Genera

l, and Weakley E. (Eddie) Barnard, Assistant District Attorney, for the appellee, State of Tennessee.

OPINION Introduction The petitioner, William L . Davis, appeals f

rom the Marshall Co

unty 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 sentence

d, as a Career O

ffender, to ser

ve twelve y

ears i n th e Department

of Correction. He now argues that trial counsel was deficient in certain respects and that he is therefore

entitled to a new tr

ial. 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 counse

l’s failure to investigate, understand and properly notify the defendant of the effect of the notice of enhancement constituted ineff ect ive assistance of co

unsel. After careful review, we disagree and affirm the orde r denying the petition.-2- Facts As general back

ground, in 1996, t

he petitioner with

his wife and

another co-def

endant came to Marshall County, Tennessee for the purpose of stealing. I n 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 whi

ch conta ined $ 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 offe nder to twelve y

ears. The facts most

relevant to this appeal were established at the post-conviction hearing. At this hearing, both the p etitioner, trial c ounsel, and a pros

ecuting attorne

y testified.

Trial counsel fir

st described his meetings and c

ommunication with th

e petitioner. He s

tated that throu ghout their discussions the petitioner wa s adamant that he would ac cept no plea agreement involving incarceration

and maintained from the very beginning his innocence. At various points during the representation, counsel explained t o the petitioner tha

t his “innocence c

laim” was not found

ed in the law; howev er, petitione r stayed fi rm. Next, he addre

ssed the issue of th

e value of the ch

ecks. He explained that he ha

d researched th

e matter and notif

ied his client that t

he issue, if raise

d, would notbe resolved in their favor. As for the enhancement issue, he stated that he, before trial and up to the sentenc ing hearing, was of the mi staken beli ef that the p etitioner would be sen tenced at Ra nge II and not as a Caree

r Offender. He

said that this

belief stemmed from petitioner’s insistence that he had only four prior felony convictions. F urther, he said that during plea negotiation the state had explained to the petitione r that he was a Career Offender and not a Range I I 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 d

escribed the inc

ident leading to t

he conviction. Ne

xt, he described his discussions with defense counsel. He s tated 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 y ears. In fact, the petitioner stated that if he had known that he was facing twelve years then he would ha ve taken the state’s best offer. Finall y, a prosecuting a

ttorney tes

tified. He relat

ed the details of a

meeting with

th e 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 bec ause factually the

Courtfinds 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 con vince the j ury that he was n ot guilty of anythi ng.

. . . With regard to counsel’s alleged failure to pursue some theory about value, that was inconsistent with his defense. That was a tactic

al decision. T he proper tactical decision.

. . . Be that as it may, the Court finds t hat couns el’s conduct far exceeded the expectations of that under Baxter v. Rose

.

. . . The defendant’s petition is respectfully denied for the reasons pre viously 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 ineffec

tive. He identifie

s two regards in

which counsel wa

s allegedly

deficient: (1) Trial counsel failed to raise the issue of the value of the checks stolen; and (2) Trial counsel fa

iled to investigate, understand, and properly notify the de fendant of the effect of

the notice of enha

ncement. 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 th at (1) the attorne

y’s perfor mance was defic

ient, and (2) the deficient perf

ormance resulte

d in prejudice to the d

efendant so as to d

eprive him of a fa

ir 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 i s a reasonab le probability that but for counsel’s error the result of the proceeding would have been different. The test in Tennessee in determining whether couns el prov ided effective assistance is whether his performance

was within the ran

ge of competen

ce demanded of a

tt orn eys in criminal cases. See Baxter , 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 reasonablenes s under prevailing professional norms. See Strickland ,104 S.Ct. at 2065; Henley v. State , 960 S.W.2d 522, 579 (T enn. 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 effec t s 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 particula

r str ategy or

tactic failed or

hurt the defense

, does not, standing alone, establish unr easonable representation. However, deference to matters of strateg y and tactical choices applies only if the choices are informed ones based upon adequate pr eparation. See Goad , 938 S.W.2d at 369; Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 198 2); 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), an

d reviewing cou

rts must indulge a strong presump tion that counsel’ s conduct falls wit hin the range of r

easonableness. Fin all y, the trial j udge’s findi ngs 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 weig ht 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 arg

ues that his counse

l was ineffectiv

e for failing to

argue that the

checks stolen were improperly

valu ed a t $700, their face amount. Trial coun

sel addressing t

his issue at the postconviction hearing testified that his decision not to challen ge 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 pe

titioner has made n

o showing that if

challenged, the valuation of the checks and in turn the jury verdi c t 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 enhanc

ement constituted i

neffective ass

istance of counse

l. The trial court credited the testimonyof the prosecuting attorney who stated that the petitioner was informed that he had a good possibility

of receiving a twelve-year sentenc e. The pet itioner has not demonstrated that the-5-

evidence preponderates

otherwise. Ther

efore, this Court i

s 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 fu

rther correspo

nds w ith trial coun sel’s testimony that the petitioner would not accept any deal involving incarceration. Ther e fore, 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, w

e affirm the orde

r of the trial cour

t denying th

e p etition for postconviction relief.

___________________________________ JUDGE JOHN EVERET T WILLIAMS