### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs A ugus t 1, 200 6
OCT AV IAN DE MET RIU S R EEV ES v. STA TE OF TEN NES SEE

Appeal f romthe Circ uit Court for Madison Cou nty No. C-05- 79 RogerA. P age, Judge

No. W2005-02244-C CA-R 3-P C - F iled Augu st 22, 2006

The petitioner, Octavia n Demetrius Ree ves, appea ls the Madison CountyCircuit Court’s dismi ssal of his petition for pos t-conviction relief from his conviction for second deg ree murder and resulting sente n c e o f

tw e n ty

- f iv e y e ar s
. O n ap p e a l, th e p e ti ti o n e r c laim s th a t h e r e c e iv e d th e in e f f e c tive assistance of counse l because his attorney failed to c ross-examine witnesses thoroug hly and fa iled to file a motion for a

chang e of ve nue. We af

firm the trial c ourt’s dismissal of the petition. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed
J OS EP H M. T I PTON , J ., delivere d the opinion of t he court, in which D AVI D G. H AYES and R OB E R T W. W EDEMEYER , J J ., joined.
J. Col in M or

ri s, Jac ks on , T e nn e sse e , f or the app e lla nt, Oc ta vian D e me tr ius Re e ve s. Paul G. Summers, Attorney Gene ral a nd Reporter ; J . Ross Dy er, A ssistant Attorney Gene ral; James G. (Jerry ) Woodall, District Attorney Gene ral; and A lfred L y nn Earls, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee
. OP IN ION
I n a ff ir min g the c on vic tio n a ndse nte nc e , th is c ou rt on dir e c t a

pp e a l su mma

ri zedthe fa c ts supporting the petitioner’s c onviction:

Reuben Fairc hild, who was f ifteen y ear s old at the time of the vic tim ’s de a th, te sti fi e d th a t he w a s a pp ro a c he d b y

the de fe nd a nt w ith a re quest to write a note for him. The de fendant complained that the [proprietor] of Roy al Street Groc ery had re fused to sell him cig are ttes beca use the de fenda nt did not have an identific atio n ca rd

. The witness wrote a

note, a s dictated by

the def endant, whic h rea d as fo llo ws :-2- Hey there . L ook--He y , look here

. T h er e’s a new money maker

in town. I ’m--I ’m shoot up y our store cause of y our color. You ain’t black so g et--g et the f-

- k out of my

cit y
. Go somewher e else . I f y ou look at someone blac k--blac k person r un
. I will cuss. Don’t worry --Don’ t wo rr y . You won’t know w ho it is, but y ou h av e t o g ive it up or else pop pop ba ng . I f that d o n ’t wo rkj u s th av e to b l o w up t h e st o re an d t h e h i gh sc h o o l. A n d I w il l h a te to h a v e
- - h a v e k il l all kids cause the like of y ou. P.S. On e da y

y ou sh ou ld kno w I g o to that sc ho ol, so g ive it u p. I f y ou want to tal k on the ph on e he re ’s my number.
The ba ck of the note re ad: I ’m no t scare d to g e t lo c ke d u p. Yo u d on ’t sc are me wi t h that g un y ou g ot. L et me shoot up y our store. Please save us the--w e will do this the 16th or 17th of April. Remember the J CM Hig h School bl o w up. On ly he lp sa ve the kid s. B y e by e sw e e t th ing . B ri ng it o n
. T h e c l o cki s t i ck i n g.
Fa irfield stated that he added certain portions no t i n cluded above by inserting the name of a p er son, “Shawn,” and Shawn’ s te le ph on e nu mbe r b e c a us e F a ir fi e ld tho ug ht S ha wn ha d s tol e n a CD from him. Fa irfield and t h e d efendant later went to Roy al Street Groc ery , and F airfie ld placed the note on the store’ s security g ate. On the day

the def endant a nd Fa irfield deliver ed the note, the defe ndant display ed a g un to F airfie ld and claimed he would shoot up the sto re be c a us e of

be ing re fu se d inhis a ttem pt to b uy c ig are tte s. Th e de fe nd a nt a lso a sk e d F a ir fi e ld t o s e rv e as hi s look ou t on Ap ri l 17th, while the def

endan t ca rried out his pl an. On that date, [F a ir fi e ld] o btaine d a bathr oo m pas s at sc ho ol andle ft the c la ssr oo m, but beca me sca

red and returned to class without leaving school. A teac her c onfirmed issuing the bathroom pa ss and Fairf ie ld ’ s v e r y b rief absenc e.
A b d a l i l a h A w a s t i r a , t h e o w n e r o f R o ya l S tr e e tG r o c e r y, testified by means of an int erpr eter

. He said that on April 17, 2001, the victim, his uncle, was with him behind the counte r at Roy al Street Groc ery . A black ma le enter ed the store , crouc hed dow n , and fired-3- two s h ots. After the first shot, the victim said “please ” in Eng lish, and t he sec ond shot hit t he victim in the head. T he entire episode occur red w ithin ten seconds. No other customers we re i n the store. The witness a lso reca lled finding , on his door , a note, which he turne d o v e r t o t h e p o l i c e o n t h e d a t e o f i t s d i s c o v e r y. Offic er B rock J ones, of the Jackson Police De partment, stated he wa s dispatched to Roy al S tree t Groc ery on April 9, 2001, and wa s g iven the note by

Mr. Awa stira. The note was then turned ove r to the e vid e nc e de pa

rt me nt.
Roderick L ewis, a friend of the defe ndant, saw the defe ndant on the morning of April 17, 2001. The defe ndant t old L ewis that “these folks are try ing to g et me for a murde r char g e.” The de fendant then said he was “just play ing.” L ater that day while watc hing a news acc ount of the shooting, L ewis said t hat the def endant’ s leg s were shaking and that he lo oked sca red. L ewis told of an incide nt when the defendant was ref

used t he purchase of cig are ttes at Roy al Street Groc ery , and the de fendant cursed the store attendant and said he hate d h im.
I n a written statement on April 23rd, the de fendant admitted fi ri n g h is gun onc e in the g roce ry . He c laimed that his motivation wa s th e ir re fu sa l to se ll h im b e e r o n a n e arl ie r o c c asi on . He a lso claimed that a

cler k had pointed a s h o tgun at him at the time of the s h o o t i n g.
The de fenda nt’s fathe r re lated that he he ard the defe ndant make an oral statement at C ity Hall, wher ein he a dmitted shooti ng the victim and expressed re morse.
On April 24th, the defe ndant g ave another written statement confe ssing that h e t o o kan automatic- type g un inside Roy al Street Groc ery on April 17th. He stated the re w ere two people in the store , a ndthe pe rs on by

the c a sh re g ist e r p ull e d a g un . T he de fe nd a nt s a id he ra n from the store , pointing the g un at the men behind the c ounter in an attempt to scar e them. The g un fired during this time.
A f or e ns ic patho log ist , Dr . Cynth ia Ga rd ne r, state d th e c a us e of de a th w a s mu lti ple g un sh ot w ou nd s. Th e re we re tw o h e a d w ou nd s, wi th o ne be ing c on sis te nt w ith pa ssi ng thr ou g h th e vic tim ’s arm fi rs t. The victim’s rig ht arm sustained a pass-throug h bullet wound.-4- The jury returne d a verdict of g uiltyof sec ond deg ree murder. Af te r a he ari ng , th e de fe nd a nt w a s se nte nc e d to tw e nty -f ive y e ars
. State v. Octavia n Demetrius Reeve s, No. W 2002-01313-CCA-R3-CD, Madison County , slip op. at 2-3 (Te nn. Crim. App. J an. 22, 2004), a pp. denied ( Tenn. May

24, 2004).
On Fe bruary

28, 2005, the petitioner filed a p et i t i o n for post-c onviction relief a lleg ing constitutional viol ations and i neff ective a ssistance of c ounsel. The tria l court appointed the petitioner counse l, but counsel did not file an ame nded petition. At the post-conviction hearing, the petitioner’s trial attorney testified that he wa s appointed to repre sent the def

endant on a

first deg ree murder char g e at the circ uit c ourt level. He said he filed a mot ion fo r d isc ov e ry

a ndob ta ine d a c op y of the pr e lim ina ry he ari ng , w hic h w a s a va ila ble to h im to aid in the cross-e x amination of witn es ses. He said that he filed a motion to s uppress the defe ndant’s conf

ession but that the m otion was de nied. He said that in the defe ndant’s conf ession, the def endant sa id that he fire d a shot inside the store but did not mean to kil l any body

. He sa id that he talked to the petitioner about acc epting a plea deal to se cond deg ree murder but that the petitioner said he wa s not interested. He tes t i fi ed that he ta lked to the def endant a bout the lesser inc luded offe nses of fir st deg ree murder.
The attorney

testified that their theory

of the c ase w as that the de fendant went into the store and fire d the g un but that he did not intend to kill any one and that the jury should c onsider the lesse r included off

enses. He said the jury convicted the defe ndant of the lesser inc luded offe nse of se cond deg ree murder. H e said they did not present any witnesses beca use the defe ndant’s fathe r wa s called as a state ’s witness, and they used t he st ate’ s witnesses t o make their case . He sa id that there w as a n outb ur st in co urt whe n the sto re ow ne r wa s tes tif ying

. He sa id the pr os e c uto r a sk e d if the vic tim had said a ny thing a nd that Tony Ali, a member

of the audience , said, “He said please .” He said the trial court told Mr. Ali to “stop that or be quie t.” He said he di d not ask for a mistrial beca use the testimonyof the store owner was “ fairly cl ea r as fa

r as what happene d,” and he did not think t he ou tbu rs t w ou ld h urt hi s c lie nt. He sa id the tr ia l c ou rt g a ve a curativ e ins truc tio n to the jury to disreg ard Mr . Ali’s comment. He said he thoug ht they had a g ood jury

selec ted and did not think they could have rec eived a

better jury

if a mistrial wer e dec lare d.
The attorney

acknow ledg ed ther e wa s some media cove rag e on this case beca use of r acia l iss ue s. He sa id that he ma y ha ve dis c us se d c ha ng e of ve nu e wi th the de fe nd a nt b ut that th is c a se did n o th av e m o re p u b l i ci t y

t h an o t h erh i gh p ro fi l e c as es
. He s ai d h e d i d n o tt h i n k t h e m ed i a c o v er age would preve nt the defe ndant from g etting a fair trial. He said that during sentenc ing, he arg ued that mitigating fac tors ap p l i ed

. He said that he could not think of anything he would have done differ ently

in this case.
On cr oss-examination, the petitioner’s attorne y acknow ledg ed that the store owner testified for the state and had to have an i nterpre ter. He said he did not cross-e x amine the store owner , Mr. Aw a sti ra , becaus e aft e r h e ari ng the sto re ow ne r’ s te sti mon y , h e didno t be lie ve he “ wa s g oin g to-5-

make a n y p o in ts b y k e e p in g h im o n th e s tan d o r c r o s s
- e xa mi n in g h im

. ” H e s a id th a t h e did not be lie ve the sto re ow ne r’ s te sti mon y ha d “ c re a te d a lot of da ma g e ” to the de fe ns e ’s the ory that th is wa s n ot a prem edi tatedkil lin g a ndthat he be lie ve d b y c ro ss- e xami nin g the sto re ow ne r h e wo uld have c aused “ more proble ms than I could re ctify .” He acknow ledg ed he did not objec t to the leading qu e sti on s a sk e d o f Lie ute na nt H olt or Ms. Pruitt, w ho we re wi tne sse s c a lle d to e sta bli sh the c ha in of custody of evidenc e. He said “ther e’s no point in just objec ting to e verything if it’s run- of-themill t hings that are g oing to be proved any way .” He acknow ledg ed the tria l c ourt instructed the jury on fi rs t de g re e mur de r, se c on d d e g re e mur de r, a ndre c kle ss ho mic ide

. He sa id the re wa s n oth ing in this case that would support adequate provoc ation for voluntary manslaug hter a s a lesser

included offe nse. The a ssistant dist rict attorney enter ed portions of the transcript showing the outburst, the testimonyof Lt. Holt, and the testimony of the store owner

as exhibit s to the hearing.
Af te r c on sid e ri ng the e vid e nc e , th e tr ia l cour t is su e d a n o rd e r d e nying the pe tit ion e r p os tconviction re lief and dismissing the pe tition. I n its order, the tria l court stated

2. Fa ilure to interview or

cross-e x amine Abda liah Awastira

. Trial counse l testified that he did not cross e x amine Mr. Aw ast ira be cause the witness’ testimony did not add anything that h ad n o t al re ad y b ee n p re s en t ed

. Be ca u s e t h e wi t n es s t es t i fi ed t h ro u gh an interpre ter, counsel fe lt that conducting a cr oss-examination when there wer e no point s to be made would be futil e. The Court finds t hat trial counsel c onsidered the options a nd made a strateg ic decision not to cross-e x amine the witness. Counsel perf ormed effe ctively , and the pe tit ion e r w a s n ot p re

jud ic e d th e re by . T his iss ue is m e ri tle ss.

. . . . 5. F a ilu re to q ue sti on Lt. M ic ha e l H olt

. Trial counsel testified t hat he declined to cross-examine one of the state’s witnesses, Lt. Mic hael Holt, be cause h i s t estimony perta ined only

to chain of c ustody

issues. A review of the transcript pag e supplied b y

p e titioner supports trial counsel’s de cision. Counsel is n ot o bli g a te d to c on du c t a c ro ss- e xami natio n o f e ve ry wi tne ss. [Th e pe tit ion e r’ s att orne y ] e xer c ise d sou nd pr of e ssi on a l judg me nt i n elec ting not to cr oss-examine Lt. Holt. This claim is denied.

. . . . 7. Fa ilure to move for

a chang e of ven u e base d on pretria l p u b l i c i t y. Trial counse l testified that he had be en involved in other c ases i n w h i c h t h e r e h a d b e e n m o r e p r e tr i a l p u b l i c i t y t h a n i n t h i s c a s e
. In those case s, counsel’s experience was that the tria l court would take-6- the mot ion fo r c ha ng e of

ve nu e un de r a dv ise me nt. Th e jud g e wo uld t h e n tr y t o s e a ta

j u r y t h a th a d n o tb e e n t a i n t e d b y p r e tr i a l p u b l i c i t y.
I n this matter, trial counsel was satisfied t hat t he juryhad not been a ffe cted by

pretria l publicity . Petitioner was not pre judiced by counsel’s strateg ic dec ision. This claim is denied.

. . . . I t is this Cou rt ’s op ini on , b a se d o n th e e nti re re c or d inthi s cause , the cr edibilityof the witnesse s in open court, and all of the evidenc e pre sented, that t h i s P etitioner has not met his burden of proof to show that he is ent i t l ed t o relief by clea r and c onvincing evidenc e. The pe titioner contends that he r ece ived the inef fec tive assistance of counse l because (1) the petitioner’s attorney failed to c ross-examine Mr. Awastira and Lt. H olt, a nd (2) t h e petiti oner’ s a tto rn e y faile d to file a mot ion fo r c ha ng e of ve nu e . T he state re sp on ds that th e tr ia l c ou rt pr op e rl y denied the pe tition for post-conviction relief beca use the de fendant failed to off er any proof that he was prejudice d by his attorney ’s handling of witnesses and failed to introduc e an yevidence conce r n in g th e a mo u n t o f p r e tria l p u b li c it y

in v o lv in g th is c a s e
. T h e s tate c o n te n d s th e p etitioner failed to show that c ounsel was inef fec tive or that he w as pre

judiced.
The burde n in a post-convic tion procee ding is on the pe titioner to prove his g rounds for r elief by clea r and c onvincing evidenc e. T.C.A. § 4 0 -3 0 -1 1 0 (f) . On appe al, we a re bound by

the trial c ou rt ’s fi nd ing s o f f

a c t un le ss w e c on c lud e that th e e vid e nc e in the re c ord prep on dera te s a g a ins t those finding s. Fields v. State, 40 S.W.3d 4 50, 456 (Tenn. 2001) . Be cause they relate to mix ed questions of law and fac t, w e revie w the trial court’s conclusions as t o wh et h er co unsel’s pe rf orma nc e wa s d e fi c ie nt andwh e the r that de f i c i e n c y wa s p re jud ic ia l un de r a

de no vo stand ardwi th no presumption of cor

rec tness. I d. at 457.
Under the S ix th Amendment, when a claim of i neff ective assistance of counsel is made, the burden is on the pe titioner to show (1) that counse l’s perf ormanc e wa s deficie nt and (2) that the defic iency

was pre judicial. Strickland v. Washington, 466 U

. S

. 6 6 8 , 6 8 7, 104 S. Ct . 2052, 2064 (1984); see L ockhart v. Fret we l l , 5 0 6 U. S

. 364, 368-72, 113 S. Ct. 838, 842-44 (1993). I n other words, a show ing that counsel’s pe rformance falls below a re asonable standard is not enoug h; rather , the petitioner must also show that but for the substanda rd per formanc e, “the result of the pr ocee ding would have be en diffe rent.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. The Strickland standa rd ha s be e n app lie d to the ri g ht to c ou ns e l un de r art ic le I , se c tio n 9 of the Te nn e sse e Con sti tut ion . St a te v. Melson, 772 S.W .2d 417, 419 n.2 (Tenn. 1989)

. A petitioner will only

preva il on a claim of inef fec tive assistance of counse l after satisfy ing both prong s o f t he Strickland test. See H enley v. State, 960 S.W .2d 572, 580 (Tenn. 1997) . The-7-

perf ormanc e prong require s a petitioner r aising a claim of ineffe ctiveness to show that the counse l’s repr esentation fell below an obje ctive standa rd of r easona

bleness or “ outside the wi de rang e of profe ssionally

competent a ssistance.” Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. The pre judice prong require s a p et i t i o n er to de monstrate that “the re is a r easona ble proba bilitythat, but for counsel’s unprofessional errors, the result of the proceeding would have been differe nt.” I d. at 694, 104 S. Ct. a t 2 0 6 8

. “ A r e a s o n ab le p r o b ab il it y me a n s a p r o b ab il it y

s u f f ic ie n t t o u n d ermine c on fi de nc e in the ou tc ome .” I d. a t 69 4, 10 4 S. Ct . at 20 68 . F a ilu re to s a tis fy e ith e r p ro ng re su lts in the denial of

relief . I d. at 697, 104 S. Ct. at 2069.
I n Ba x ter v. Rose, 523 S.W.2d 930 , 936 (Tenn. 1975) , our supre me court decided that attorney s should be held to the g ener al standar d o f whether the servic es re ndere d wer e within the ra n ge of co m p et en ce d em an d ed o f at t o rn ey s i n cr i m i n al ca s es
. Fu rt h er , t h e c o u rt s t at ed t h at t h e r an ge of c omp e te nc e wa s to be me a su re d b y the du tie s a ndc ri te ri a

se t f orth i n B e a sle y

v. Un ite d St a te s, 491 F.2d 687, 696 (6th Cir. 1974), and U nited States v. DeCoster, 487 F .2d 1197, 1202-04 (D.C. Cir. 1973). Also, in revie wing counsel’s conduct, a “fair assessment of attorney perf ormanc e re quires that every

eff ort be made to eliminate the distorting e ffe cts of hindsig ht, to reconstruc t the circ umstances of

counsel’s c halleng ed conduc t, and to evaluate the conduct from counse l’s pe rs pe c tiv e a t th e tim e .” Str ic kland , 4 66 U. S. at 68 9, 10 4 S. Ct. at 20 65

. Th us , the fa c t th a t a particula r strate g y or t ac t ic fa iled or eve n hurt the def ense doe s not, alone, support a c laim of in eff ective a ssistance. De fer ence is made to trial strateg y or tac tical choice s if they are informed ones base d upon adequate pre paration. See DeCoster, 487 F .2d at 1201.

I. CR OSS- EX AM IN AT ION OF WI TN ESSES The pe titioner contends that his attorney was inef fec tive beca

use of his trial strate g y . He c on te nd s h is atto rn e y

“ sh ou ld h a ve tho rou gh ly c ro ss e xami ne d a ll o f the wi tne sse s in thi s c a se including Mr . Awastira.” He arg ues that his attorney ’s strateg ic dec ision not t o cross-e x amine witnesses, including Lt. Holt, was “futile to his ca se” and that he could have bee n convicted of an even le sser in cl u d ed o ffe nse. The pe titioner contends he e stablished defic ient repr esentation and p r e j u d i c e r e s u l t i n g f

r o mt h e d e f

i c i e n c y.
The state a sserts that during the post-conviction h ea ri n g, the petitioner failed to offer any proof that would support his cla im that his attorney ’s handl i ng of Mr. Aw astira or Lt. Holt was pr e jud ic ia l or

de fi c ie nt. Th e state c on te nd s th e pe tit ion e r f a ile d to sh ow wh a t, i f any , q ue sti on s c ou ld have been asked of these witnesses and how those questions w ould ha ve aff ecte d the outcome of

the trial. The state asserts the petitioner did not call either w itness at the post-conviction hea ring . The state c on te nd s th a t th e pe tit ion e r “m erel y c on c lud e s th a t th e de c isi on no t to c ro ss- e xami ne the se witnesses wa s ‘futi l e t o h is case and chanc es of be ing c onvicted or e ven [sic] a lesser included offe nse.’” The state contends the petitioner failed to show how counse l was ineff ective in ha ndling these witnesse s, and there fore , failed to mee t his burden.-8-

At the po st- c on vic tio n h e ari ng , th e petitio ne r’ s a tto rn e y te sti fi e d th a t he didno t c ro ssexamine Mr. Awastira beca use “[i] t did not a

ppear to me , afte r listening to the testimony of the store owner , that I was g oing to ma ke any points by keeping him on the stand or cr oss-examining him.” He a lso testified that Lt. Holt’s testimonywas a bout the chain of

custody of evide nce and that “ther e’s no point in just objecting to e verything i f i t’s run-of -the-mill things that a

re g oing to be proved a ny way .” The petitioner fa iled to introduce a ny evidenc e as to how his at t orney ’s trial str a te g y in n ot c ro ss- e xami nin g the se wi tne sse s p re jud ic e d h is d e fe ns e . T he pe tit ion e r f a ile d to c a ll either Mr. Aw as t i ra or Lt. Holt as witnesses. See B lack v. State, 794 S.W.2d 752, 757-58 (Tenn. Crim. App. 1990) (“When a petitioner conte nds that his trial counsel failed to discover, inter view, or pre sent witnesses in support of his de fense , these witnesses should be prese nted by the petitioner at the evide ntiary

hearing.” ). T h e post -convic tion court found that the pe titioner’s attorney perf ormed e ffe ctivel y
. We conclude that the rec ord supports the trial c ourt’s finding and that the petitioner is not entitled to relief on this issue.
II. CHANG E OF VENU E The pe titioner contends his attorney should ha ve made a motion for a chang e of ve nue base d on the pr e tr ia l pu bli c ity

a nd in faili ng to make the mot ion , h is atto rn e y ’s str a te g y pr ov e d a dv e rs e to his case. T he petitio n e r

c o n te nds he established de ficient re prese ntation and pre judice re sulting fr om t h e d e f i c i e n c y.
The state a sserts the petitioner f ai l ed to i ntroduce any

proof during the post-conviction hearing c oncerning the amount o f p re t rial publicity . I t also asserts the only testimonyconce rning publicity g iven by the petitioner’s attorney

was that the pr etrial publicity in this case wa s no g reater t h a n a n y o t h e r

c a s e
. T h e s t a t e c o n t e n d s t h a to t h e r t h a n a s k i n g o n e q u e s t i o n ab o u t p r e tr i a l p u b l i c i t y, the petitioner failed to offer an y proof showing the amount or ty pe of publicity

his case r ece ived befor e trial. The state contends the petit ioner failed t o offe r any proof to either

the post-conviction court or on a

ppeal that would support his cla im.
At the post-conviction hearing, the petitioner failed to introduc e any eviden ce o f pretrial pu bli c ity . T he pe tit ion e r’ s a tto rn e y te sti fi e d th a t
I t was not rea lly

a ca se that had more publicity t h an a l o t of the other hig h profile c ases we ’ve ha d here . I t did have a f air a mount of pu bli c ity , a s I

re c a ll, fo r the re a so ns that y ou ’v e su g g e ste d. B ut I didno t th ink

that wa s g oin g to p re ve nt h im f ro m g e tti ng a

fair tr ia l, based on the makeup of the jury and the way

jurors ar e pre tty

openminded around he re.
Th e po st-conv ict io n c ou rt fo un d th a t th e pe tit ion e r f a ile d to pr ov e he wa s p re jud ic e d b y

his attorney ’s strateg ic dec ision. W e conc lude that the re cord supports the trial court’s finding and that the petitioner is not entitled to relief on this issue.-9- CO NC LU SION
Ba sed upon the for eg oing and the re cord a s a whole, w e af firm the trial c ourt’s dismissal of the petition for post-convic tion relief.

___________________________________ J OSEPH M. TI PTON, J UDGE