### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs D ec em be r 2, 200 3

WIL LI E BAIL EY v. ST ATE OF TEN NES SEE

Direc t Appeal from the Circ uit Court for Tip ton County No. 3179 Joseph H. Walk er, III, Judge

No. W2003-00977-C CA-R 3-P C - F iled Fe bruary 4, 2004

A Tip t o n County

jury convicted the Petitioner, Wi llie Ba iley , of ag g ravated robbe ry and fe lony possession of a ha

ndg un, and the tria l court sentenc ed him to twenty -six y ear s in prison. On direc t appea l, this Court aff

irmed the Petitioner’s sentenc e, and the Tenne ssee Supre me Court denied the Petitioner’s application for per mission t o appea l. T he Petitioner then soug ht post-conviction relief
, a lle g ing t hat he wa s d e nie d e ff e c tiv e a ssi sta

nc e of c ouns e l. F oll ow inga

he ari ngon

the po stconviction petition, the trial court dismissed the petition. On appea l, the Petitioner contends that he

wa s d e nie d e ff

e c tiv e a ssi sta

nc e of c ouns e l f

or the fo llo wi ngre a so ns : ( 1) tr ia l c ouns e l f a ile d to stipulate to the Petiti oner’ s felony status dur ing the trial; and (2) trial counsel f ailed to file the tria l transcr ipt with the appellate court on direc t appea l. Finding no err or, we aff irm the post-conviction court’s dismissal of the pe tition.

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

R OB E R T W. W EDEMEYER , J ., delivere d the opi nion of the cour t, in which J A M ES C UR WO OD W I TT , J R ., and A L AN E. G L EN N , J J ., joined.

J

. B ar n e y W i t h e r i n g t o n , IV , C o v i n g t o n , T e n n e s s e e , f o r t h e a p p e l l an t , W i l l i e B a i l e y.

Paul G. Sum m er s , Attorney Gene ral a

nd Reporter ; Michael Moore , Solicitor Genera l; Kathy D. As lin g e r, As si st ant A tto rn e y Ge ne ra l; E liza

be th T . Ri c e , D ist

ri c t A tto rn e y

Ge ne ra l, a

nd Wal t Fr eela nd, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

. Opin ion I. F acts

The unde rlying f

acts of the Petitioner’s ca se ar e not clear because no trial transc ript was filed either on dire ct appe al or on a ppeal f rom the post-convic tion hearing

. Howeve r, i n its order de ny ing post-conviction re lief, the post-c onviction court summariz ed the f acts of the Petitioner’s trial as fo llo ws :-2- The de fenda

nt was cha

rg ed with beinga convic ted fe lon in possession of a ha nd g un and a g g ra vate d r ob be ry . H e wa s c on vic te d o f b oth c ounts

.
The c lerk wa s called to introduce rec ords of the c riminal convicti o n s of defe ndant. The de fenda

nt had a pr ior conviction of r obbery . The Court allowe d the testimony about the conviction, but g ave the jury an immediate instruction that wa s t o b e c o n s i d e r e d

o n l y f o r c o u n tt w o w i t h r e g a r d t o p o s s e s s i o no f a w e a p o nb y a convicted f

elon, and could not be considere d for any rea son with reg ard to a g g ravated

ro bb e ry , a nd c ou ld n ot b e c on sid e re d a s pr oo f of his dis po sit ion

to c omm it the c ri me of ag g ravated robbe ry

for whic h he is on trial in count one.

Kum So ok

Ki tzmil le r t e sti fi e d that she op e rate d a b e a uty su pp ly bu sin e ss i n Covington, and that on November 6, 1996, she was closing the store a nd had counte d the mon e y

and pu t it in h e r p ur se , a

nd ha d le ft so me in t he re g ist e r. Tw o me n c a me in the store and said they wer e looking for a n ear ring . They

shopped and pur chase d an earring

. The tall man pul led a g un on her. She could describe his appea ranc e and clothes. They forc ed her to ope n the reg ister and took the money from the r eg ister, and took he r purse. The shorter man took the money out of her pur se. She ca lled the police. S he gave police an acc urate descr iption of the robbe rs and the mone y taken. She ide nti fi e d th e de fe nd ant at tr ia l a s th e ta lle r o f t he tw o r ob be rs

.
Toinette S m i th testified that she saw the defe ndant at the a partment of Tammy Willi a ms o n th e da

y of the rob bery

. Th e de fe nd ant w a s w e ari ngthe same clothing de scribe d by

Ms. Kitz miller. At a time afte r the robbe ry , the def endant chang ed clothing at the apar tment. She hear d the defe ndant say that the police we re outside, and the de fenda

nt went to the bac k bedroom. She hear d the def endant sa y he had a g un.
Tammy Wil lia ms te s tif ied that she wa s Anthony

Allen’s g irlfriend a

nd knows the def endant. Allen is shorter than the de fenda nt. Both Allen a

nd the def

endant

wer e at he r apa

rtment ea rlier on the da

y of the robbe ry , and Allen ha d a gun. They left and w ere g one only

a fe w minutes and then c ame ba ck to the apa rtment and chang ed clothes. The police showed up shortly afte rwa rds. The c lothes that Allen and the de fenda

nt took off wer e re cover ed and sa me as identified by

Ms. Kitz miller. Wil liams observed police rec over mone y from her child’s toy

that was n o t there befor e the de fenda

nt and Allen hid in t h e ro o m. Her a partment is ver

y near the business of Ms. Kitzm iller that was r obbed.

L inda Gamblin testified that she wa s prese nt when the de fenda nt was broug ht into the justi ce c enter

on the night of the robber

y

. The defe ndant was with Mr. Allen, and Tony Moss, who was dec ease d at the time of the trial. She hear d Ms. Kitz miller state that Tony

Moss was not one of the men wh o ro bbe[d] her. Ms. Kitzmil ler de sc ribed to h e r t he a mou nt o f m on e y

and the de no min a tio n a

nd numbe r o f b ill s-3-

tak en, whi ch co rres po nd ed w it h t he m on ey reco vere d fr om Ms . W il li ams ’ apa rtme nt. Ms. Ki tzmil le r i de nti fi e d th e c lot hin g that was re c ov e re d f ro m Ms . Wil liams’ apar tment as being the same c lothing wor n by the tall robber

with the g un.

Te lf or d O re n te sti fi e d th a t he we nt t o th e a pa rtme nt o f M s. Willi a ms s ho rt ly afte r the robbe ry

and found the defe ndant [ly ing] on the bed. Mr. Allen wa s hiding in the closet. The de fenda nt stated that he ha d just been aslee p, but he was swe ating and the r oom was not hot. A pistol was rec overe d. Someone told police that two

me n ju st r an in to t

he a pa rtme nt.

Sc ott John so n te sti fi e d the he wa s d isp a tc he d to a ro bb e ry c a ll, a nd that w ith in

a f e w m i nu t e s h a d

t h e d e f e n d an ti nc u s t o dy.

The de fenda

nt elected not to testify . The de fenda nt was questioned by

the C o u rtw h e t h e r

i tw a s h i s d e c i s i o nn o tt o t e s t i f y, an d t h a t i f h e w an t e d

t o t e s t i f y a hear ing w ould be held to deter mine which, if a

n y , co n v ictions could be used f or impeachme nt purposes. [ The de fenda nt] indicated that he did not wish to t estify , and that he un de rs too d that th e c a se wo uld be su bmi tte d to the jur

y wi tho ut h e ari nghis t e s t i m o n y.
A Tipton County

jury convicted the Petitioner of ag g ravated robbe ry and fe lony

possession

o f a h an d g u n , an d

t h e t r i a l c o u rts e n t e n c e d

t h e P e t i t i o n e r a s a p e r s i s t e n t R an g e II I o f f e n d e r t o t w e n t ysix y ear s of incar cer ation for the ag g ravated robbery conviction and five y ear s of inca rce ration for the fe lony possession of a ha ndg un, with the sentenc es to be ser ved conc urre ntly . This Court aff irmed the Petitioner’s se ntence on direc t appea l, and the Te nnessee Supreme Court denie d the Petitioner’s application for permission to appea l. State v. Wil lie Ba iley , No. W1999-01886-CCAR3-CD, 2000 WL 73711, at *1 (Te nn. Crim

. Ap p

. , at J ackson, Jan. 25, 2000), perm. app. de nied (Tenn. D ec. 31, 2001) . There afte r, the Petitioner filed a pro se post-c onviction p et i t i o n, and the post-conviction cour

t appointed J . Ba

rney Wit hering ton, I V, to repr e s e nt t h e Petitioner in this matter. Wit hering ton fi led an amendment to Petitioner’s orig inal petition for post-conviction re lief and

asser ted that the Petitioner should be g rante d post-conviction re lief base d upon ineffe ctive assi s ta n ce of counse l. The post-conviction court conducted a hear ing on the amende d petition on March 24, 20 03 , a nd su bs e qu e ntl y

dis mis se d th e pe tit ion . T he Pe tit ion e r f ile d a tim e ly no tic e of a pp e a l.
The followingevidenc e wa s prese nted at the p o s t- c o nv ic ti o n h e a ring . The Petitioner testified that Cy burn H. Sul liv an, I I I , (“ Couns e l” ) r e pr e se nte d h im at hi s tr ia l. H e state d th a t Co un se l on ly met with him twice befor e the tria l and that the meeting s lasted appr ox imately fiftee n minutes and

oc c ur re d a bo ut a we e k b e fo re the trial. Th e Pe tit ion e r e xpla ine d th a t Co un se l di d n ot i nf or m hi m about any specific trial strateg ies. He reported that he told Counsel about potential witnesses, but Counsel d i d not investigate them or c all them to the stand. The Petitioner stated that Counsel advised him not to take the stand at trial, and he f ollowed Counsel’s advice . He e x plained that he

wa nte d to te sti fy

“ be c a us e Ikn owIdid

n’ t do thi s .

. . .” He state d that he wa nte d to a pp e a l bo th h is convictions and the se ntencingon appea l, but only his sentencingwas ultima t el y appea led. TheW e n ot e t h at t h e 2003 a men dmen t t o t h e Pos t Conv i ct i on Pr oce du r e Act , Publ i c Act s 1995, c h apt er 207, 1

s ec t i on 1, ch an g ed t h e n u mber i n g of t h e g en er al pr ov i s i on s pa r t of t h e ch apt er t o T en n es s ee Code An n ot at ed s ec t i on 40- 3 0 -1 0 1 , et

s eq.

-4- Petitioner expl ained that Counsel did not f ile the trial transcr ipt with the appe llate cour t beca use the tr ia l ju dg e tol d Co un se l no t to se nd the tr ans c ri pt.

On cr oss-examination, the Pet i t i oner te stified that he did not actua lly know any

witnesses who would have helped his ca se at trial. He stated that Counsel should have u s ed s o m e sort of strateg y at his trial. The Petitioner exp l ai n ed that C ounsel should have pr evente d the testimony about his previous convic tion for robbe ry from g etting to the jur

y becaus e t h e jury

may have convicted him of a g g ravated robbe ry based on that testimony

. He state d that Counsel should have asked the State to fing erpr int him and the g un so his f inge rprints could be compar ed to those on the g un.

The Petitioner then c alled Counsel to testify . Counsel testified that he could not reca ll how many times he met with the Petitioner befor e trial or how long the meeting s lasted. He state d that the Petitioner neve r g ave him any names of pote ntial w itnesses to inter view. Counsel expl ained that he v i s i t ed t h e cr i me sce ne but did not take any measure ments. He stated that the only times he questioned the victim wer e at the pr eliminary hear ing a nd at trial. Counsel te stified that he re called the t estimony about t he P etitioner’s prior conviction of robber y

. When asked if he felt that testimony would be pre

judicial to the Petitioner, Counsel replied that he did not have an opinion as to whethe r the testimony

was pre judicial. Counsel admitted that the t es t i m o n y about the Petitioner’s prior

c on vic tio n wa s not he lpf

ul to the Pe tit ion e r’ s ca se

. He e xpla ine d that he did no t off e r t o s tip ulate to the Petitioner’s status as a fe lon beca use the c ase la

w did not require him to do so at that ti me. Counsel admitted that it was his responsibilit y to file the trial transcript with the appellate court a nd that th e a pp e llate c ou

rt mig ht h a ve re du c e d the Pe tit ion e r’ s se nte nc e if it h a d r e vie we d th e tr ans c ri pt.

II. Ana lys is

I n order to obtain post-conviction relief, a petitioner m ust show that his or her conviction or sentenc e is void or voidable beca use of the abridg ment of a constitutional rig ht. Tenn. Code Ann. § 40-30-203 ( 1997). The petiti oner bears the burden of proving fac tual alleg ations in the petition 1 for post-c onvictio n

r e li e f by clea r and c onvincing evidenc e. Te nn. Code Ann. § 40-30- 210(f) (1997). A post-conviction cour

t’s fac tual finding s are subject to a de novo revie w by this Court; howeve r, we must ac cord the se fa ctual finding s a presumption of correc tness, which is overc ome only when a pre pondera

nce of the evidenc e is contra ry to the post-conviction cour t’s fac tual finding s. Fields v. State, 40 S.W .3d 450, 456 (Tenn. 2001). A post-conviction court’s conclusions of law a re subjec t to a p u r e ly d e n o v o r e v ie w b y th is Co u rt, w it h n o p r e s u mp ti o n o f c o r

r e c tn e s s

. I d . at 457. The Tenne ssee S upreme Court has held that the issue of ine ffe ctive assistanc e of c ounsel is a mix ed question of law and fa ct and, a s such, is subject to de novo re view. State v. B urns, 6 S.W.3d 453, 461 (Tenn. 1999)

.-5-

Th e ri g ht o f a

c ri min a lly

a c c us e d to re pr e se ntation i s gua ra nte e d b y bo th t he Sixth Amendment to the United States Constituti on and Ar ticle I , section 9, of the Tenne ssee Constitution. I d.; Ba x ter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). This rig ht to repre s en t at i on includes the rig ht to “rea sonably

eff ective” assistance . Bur

ns, 6 S.W .3d at 461. In revie wing a cla im of ineffe ctive assistance of counse l, this C ourt must determine whe ther the a dvice g iven or ser vices

re nd e re d b y

the a tto rn e y

are wi thi n the ra

ng e of c omp e te nc e de mand e d o f atto rn e y s in c ri min a l c a se s. Bax ter, 523 S.W.2d at 936. To preva il on a claim of inef fec tive assistance of counse l, a petitioner must show that “counse l’s repr esentation f ell below an objective standard o f r easona bleness,” Strickland v. Washington, 466 U. S

. 6 6 8 , 688 (1984), a nd that this performa

nce pr ejudiced the defe nse, re sulting in a fa ilure to produce a re liable re sult. I d. at 687; Cooper v. State, 849 S.W.2d 74 4, 74 7 ( Te nn . 1 99 3) . T o s a tis fy the re qu ir e me nt o f p re

jud ic e , a pe tit ion e r mus t sh ow a re a so na ble pr ob a bil ity tha t, b ut f or c ouns e l’ s unr e a so na

ble e rr or , th e fa c t f

ind e r would h a ve ha d r e a so na ble do ub t r e g ard ingthe pe tit ion e r’ s guil t. Str ic kla nd , 466 U. S. at 695 . T his re a so na ble pr ob a bil ity mus t be “suff icient to unde rmine confide nce in the outcome.” I d. at 694; se e also Har ris v

. S t at e, 875 S.W .2d 662, 665 (Tenn. 1994)

.

W h en ev al u at i n g an i n ef

fe ct i v e a s s i s t an ce o f co u n s el cl ai m , t h e r ev i ew i n g co u rt s h o u l d j u d ge the attorne y ’s per formanc e within the context of the case as a whole, taking into account a ll releva nt

c ir c ums tanc e s. Str ic kla

nd , 4 66 U. S. a t 69 0; S tate v. Mit c he ll, 75 3 S. W.2 d 1 48 , 1 49 (T e nn . Cr im. App. 1988). The revie wing court must e valuate the questionable conduct f ro m t h e attorney ’s perspe ctive at the time. Strickland, 466 U.S. at 690; Cooper, 849 S.W .2d at 746; Hellar d v. State, 629 S.W .2d 4, 9 (Tenn. 1982) . I n doing so, the revie wi n g court must be hig hly defe rential a

nd “should indulge a s t ro ng presumption that counsel’s c onduct fa lls withi n the wide r ang e of

rea sonable prof

essional assistance .” Burns, 6 S.W .3d at 462. Counsel should not be deeme d to have been ine ffe ctive mer ely

beca use a diff ere nt proce dure or

strateg y might have produce d a diffe rent result. Will iams v. State, 599 S.W .2d 276, 279-80 (Te nn. Crim. App. 1980).

On appe al, the Petitioner contends that the pos t-conviction court err ed when it found that he

wa s n ot d e nie d e ff

e c tiv e a ssi sta

nc e of c ouns e l ba se d u

po n tw o g ro un ds : ( 1) Co un sel fa ile d to stipulate to the Petiti oner’ s felony status at tr ial for the purpose of the felony possession of a ha ndg un
c ha rg e ; and (2 ) C ouns e l f

a ile d to fi le the tr ia l tr ans c ri pt w iththe a pp e llate c ourt

on dir e c t a pp e a l.

A. F elony Status S tipul ation The Petitioner conte nds that Counsel’s failure to stipul ate to Petitioner’s fe lony status during his trial c onstitut ed ineffe ctive assistance of counsel. The Petitioner relies upon State v. James, 81 S.W. 3d 75 1 ( Te nn . 2 00 2) , w hic h s tate s th a t:

[W ]hen the sole purpose of introducing evidenc e of a def endant’ s prior convic tions is t o p ro ve the status e le me nt o f t he of fe ns e , a nd when th e de fe nd ant o ff e rs to stipulate his status as a felon, the pr obativ e v al u e o f the evidenc e is, as a matter of-6-

law, outweig hed by

the risk of unfa ir prejudice

.

I d. a t 762. Ho we ve r, the Jame s cou rt did no t hold that a def

e ns e a tto rn e y is re qu ir e d to st ipu late to the def endant’ s felony

status or that a de fense attorney ’s fa ilure t o d o s o rende rs his assistance ineffe ctive. The Tenne ssee Supreme Court r ecog nized that “[t] his jurisdiction has long he ld that the

name or natur e of c ri me s o the r tha

n that for wh ic h the de fe nd ant is o n tr ia l is re le va nt t o e sta bli sh

an esse ntial element of the crime f or which the defe ndant is being tried.” I d. at 760 (citing State v. Wingar d, 891 S.W .2d 628, 633-34 (Tenn. Crim. App. 1994); State v. B lackmon, 701 S.W.2d 228, 232 (Tenn. Crim. App. 1985) ; L ace y v. State, 506 S.W .2d 809, 811 (Tenn. Crim. App. 1974) ).

I n this case, the Petitioner w as charg ed with ag g ravated robbery and fe lony possession of a handg un. A person commits the crime of felony possession of a ha

ndg un when the pe rson possesses a handgun and: “( A) [h] as bee n convicted of a fe lony involving the use or attempted use of for ce, violence or

a dea dly we ap o n ; o r (B ) [h] as bee n convicted of a fe lony drugoffe nse.” Te nn. Code Ann. § 39-17-1307( b)(1) (A), ( B) (1997). The ref ore, in orde r for the State to convict the Petitioner of fe lony possession of a ha

ndg un, it had to prove be y ond a re ason ab l e doubt that the Petitioner possessed a ha

ndg un and had a previous felony conviction involving “ the use or attempted use of forc e, violence or a de adly wea pon” or a previous convic tion of a fe lony drug offe nse. I n the trial

c ourt ’s or de r, it m a de the fo llo wi ngfi nd ing s r e g ard ingthi s te sti mony a t tr ia l:

The c lerk wa s calle d t o introduce r ecor ds of the cr iminal convictions of defe ndant. The de fenda

nt had a pr ior conviction of r obbery . The Court allowe d the testimony about the conviction, but ga ve the jury

an immediate instruction that wa s t o b e c o n s i d e r e d

o n l y f o r c o u n tt w o w i t h r e g ar d

t o p o s s e s s i o no f

a w e a p o nb y a convicted f

elon, and c ould not be considered for any rea son with reg ard to a g g ravated

ro bb e ry , a nd c ou ld n ot b e c on sid e re d a s p ro of of his dis po sit ion to c omm it the c ri me of ag g ravated robbe ry

for whic h he is on trial in count one.

Fr om these finding s, we c annot deter mine the nature of the Petitioner’s pr ior convictions, other tha n his prior conviction for

robber y . Appar ently , Counsel did not object to the State’s introduction of the Petitioner’s prior c onviction for ro b b er y i n o rder to prove that the Petitioner ha d a prior conviction involving the use or attempted use of for ce, violenc e or a deadly wea pon.

After revie wing the limited recor d befor e us and the trial c ourt’s finding s, we c onclude that Couns e l’ s d e c isi on no t to sti pu late to the Pe tit ion e r’ s pri or fe lony c on vic tio n that w ou ld p ro hib it h im from ca rry ing a wea pon falls below an obje ctive standa rd of r easona

bleness in the leg al profe ssion and is not within the rang e of c ompetence demande d of attorney s in criminal ca ses. Strickland, 466 U.S. at 688; Ba x ter, 523 S.W.2d at 936. Under the c ircumstance s of this case, Counsel should have stipulated that, at the t ime of t he allege d offe nse of felony possession of a handg un, the Petitioner had been convicted of a felony that would prohibit him from car rying a wea

pon under T en nessee-7-

Code Annotated se ction 39-17-1307(b ) ( 1 ) ( A )
, ( B )

. B y so stipulating, Counsel would have pr evente d the jur y fr om le arn ing that the Pe tit ion e r’ s p ri or fe lony c on vic tio n w a s f

or ro bb e ry , th e same c ri me for whic h he wa s on trial. We conclude that Counsel’s fail u re t o s t i p u l at e in this case w as inexcusable bec ause the Petitioner was on trial for ag g ravated robbe ry , and the Pe t i t ioner’s pr ior robber y conviction had the pote ntial to prejudice the Petitioner.

Howeve r, eve n though w e conc lude that Counsel’s fa ilure to stipulate in this case fell below an objec tive standard of

rea sonablene ss in the leg al profe ssion , the Petiti oner f ai l ed to prove that his defense was pre

judiced, resulting in a failure to pr oduce a reliable result. Str ic kla

nd , 4 66 U. S. at 687. As the trial c ourt noted in its f i n d i n gs , t h e ev i dence at trial wa s substantial ag ainst the Petitioner, an d t h e t ri al cour t immediately

g ave c urative instruc tions that the Petit ioner’s pr ior robber y conviction should only

be conside red f

or the c ount of the indictment conc erningfelony po sse ssi on

of a ha nd g un . A c c or din g ly , w e con clude that th e Pe tit ion e r i s n ot e nti tle d to po stconviction re lief on this issue.

B. T r ialTr ans c r ipt The Petiti oner ne x t contends that Counsel’s fa ilure to file the tria l transcr ipt with the appellate court on dire ct appe al constituted i n ef fe cti ve assistanc e of c ounsel. The a ppellant in a

cr i m i nal ca se has the r esponsibility to prepa re a transcr ipt of “such pa

rt of the e vidence or pr oc e e din g s as is nec e ssa

ry to co nv e y a fa ir , ac c ur a te a nd c omp le te a c c ount o f what tr ans pir e d w ith

re sp e c t to tho se iss ue that are the ba se s o f a pp e a l.” Te nn . R. Ap p. P. 2 4( b) . T he a pp e lla nt t he n mu st fi le the tr ans c ri pt w ith the c le rk of the tr ia l c ourt wi thi n nin e ty da y s a ft e r fi lin g the no tic e of a pp e a l. I d. Be cause the burden is upon the defe ndant to de monstrate the impropriety of his or her

sentenc e, see State v. Wil kerson, 905 S.W .2d 933, 934 (Tenn. 1995), “fa ilure to include a tra nscript of the tria l makes it impossibl e for [t his Court] to conduct an appropr iate de novo consideration of t he case or to determine w hether

the t rial court erre d relative to its determinations which wer e base d in any part on that evidenc e.” State v. H ay es, 894 S.W.2d 298, 300 (Tenn. Crim. App. 1994).

On direc t appea l, the Petitioner prese nted two issues for revie w: (1) whe ther the tria l court

err ed by sentenc ing the appellant a s a per sistent offende r; and (2) whether the t rial cour t misapplied

cer tain enhanc ement fa ctors. B ailey
, 2000 WL 73711, at *1. In this Court’s opini on on Petitioner’s direc t appea l, we held that, “[n] otwithstanding the absenc e of the transc ript of the trial, the r ecor d establishes that the trial cour t corre ctly

sentenc ed the a

ppellant as a

persistent Rang e I I Ioffe nder.” I d. We f ur the r h e ld t

hat:

Although the State conce d es t hat the trial c ourt improperly applied these two enhanc ement fa ctors, we have no way of dete rmining w hat an a ppropriate sentenc e sh ou ld b e in t

he a bs e nc e of su ch e nh anc e me nt f a c tor s.

. . . In s umm ary , in or de r t o fully assess the issues raised by the appe llant, this court must consider, amongother things, the e vidence rec eived at trial and the nature a nd char acte ristics of the cr ime.-8-

B e c a us e the re cord do e s n ot c on ta in a tr ans c ri pt o f t

he tr ia l, w e are un a

ble to de te rm ine wh a t an a

pp ro pr iate se nte nc e sh ou ld b e . In t he a bs e nc e of a c omp le te

re c or d, we de c lin e to d ist ur b th e se nte nc ingde te rm inatio ns of the tr ia l c ourt

.

I d. Counsel admitted that it was his responsibilit y to file the t rial t ransc ript with the appellate court and that the a

ppellate c ourt might have re duced t h e P et i t i o n er’s sentence if it had revie wed the transcr ipt. W e conc lude that Counsel’s fa ilure to file the tria l t ra n s cript falls below an objec tive standard of

rea sonablene ss in the leg al profe ssion and is not withi n the ra ng e of c ompet ence demande d of attorney s in c riminal case s. Strickland, 466 U.S. at 688; Ba x ter, 523 S.W.2d at 936.

Havingfound that C o u n s el’s fa ilure to file a tr ial transcr ipt in thi s case fell below a n objective standard of r easona bleness in the leg al profe ssion, we now turn to the pre judice prongof the ine ff e c tiv e a ssi sta

nc e of c ouns e l ana ly sis

. Th e Pe tit ion e r c on te nd s th a t “ Couns e l’ s f a ilure wi th reg ard to the tra

nscript is evident by

his own admission a

nd the pre judicial eff

ect is direc tly

appar ent in the ruling of this Court in Def endant’ s orig inal appea l.” We disag ree with the Petitioner’s

a sse rt ion that th e pr e

jud ic ia l e ff

e c t is “ dir e c tly a

pp are nt in the ru lin g of

thi s Co ur t” on dir e c t a pp e a l. On di rec t appea l, we ex plained, “Be cause the record does not contain a tra nscript of the tria l, we ar e unable to de termine what an appr opriate se ntence should be. I n the abse nce of a complete rec ord, we de cline to disturb the sentenc ing de terminations of the trial court.” Ba iley
, 2000 WL 73711, at *1. Nothing in our

holding sug g ests that we would have nece ssarily rea ched a differ ent re sult had the t rial t ransc ript been included. Moreove r, t he P etitioner failed to include either the trial transc ript or the sentenc ing hear ing transcr ipt on appeal f rom the post-convic tion hearing . Wit hout the trial transcr ipt and the sentenc ing he aringtranscr ipt, we ar e unable to determine w hether the Petitioner’s orig inal sentenc e wa s err oneous. The Petitioner f ail ed to provide a

ny evidenc e at the post-c onviction hear ing that showed by

clea r and c onvincing evidenc e that his defe nse wa s prejudice d as a r esult of Counsel’s erro r, re sulting in a fa ilure to produce a re liable re sult. S trickland, 466 U.S. at 687. Acc ording ly , we c onclude that the Petitioner is not entitled to post-conviction re lief on this issue.
III. Conclusi on

I n acc ordanc e with t he foreg oing authorities and reasoning
, we conclude that the Petitioner ha s f a ile d to pr ov e ine ff

e c tiv e a ssi sta

nc e of c ouns e l by

c le ar a nd c on vin c inge vid e nc e , a

nd the po stconviction cour

t did not err by

finding that the P etitioner receive d eff ective a ssistance of c ounsel and dis mis sin g his pe tit ion . T he re fo re , w e AF F I RM the po st- c on vic tio n c ourt ’s jud g me nt.

___________________________________ ROBERT W. WEDEMEYER, J UDGE