### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON November 7, 2000 Session
GEORGE MILTON BROOKS v. STATE OF TEN NESSEE
Direct Appeal from the Circuit Court for Dyer County

No. C97-169 Lee Moore, Judge

No. W2000-00214-CCA-R3-PC - Filed March 22, 2001

The petitioner, George Milt on Brooks, appeals as of right from the Dyer County Circuit Court’s denial of his petition for p ost -convictio n relief. Petitioner contends that he received ineffective assistance of counsel du ring his pre-tr ial proceeding

s when counsel: (1 ) failed to investi gate all apparent substantial defenses on Petitioner’s behalf; (2) failed to assert certain Fourth Amendment violations during the hear ing on Petitioner’ s motion to suppress; and (3) incorrectly advised Petitioner whether he could properly reserve two questions of l aw for appellate review. After a review of the re

cord, we affir

m the judgment of t

he post-convictio

n court.

Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Circuit Cour

t Affirmed.

T HOMAS T. W OODALL , J., delivered the op inion of the court,

in which D AVID H. W ELLES and J AMES C URWOOD W ITT , J R ., JJ., joined. Anthony L

. Winchester, Dy

ersburg, Tenn

essee, for the a

ppellant, Georg

e Milton Brooks.

Paul G. Summers, Attorney General and Reporter; Lucian D. Ge

ise, Assistant Attor

ney Gener

al; C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee

.

OPINION-2- I. Background

The facts leading to the underlying conviction are taken from a review of this Court’s opinion in the direct appeal. See S tate v. G eorge Milton Brooks , No. 02C01 -9804-CC- 00116, 199 8 WL 775649, Dyer Count

y (Tenn. C rim. App., Jackson, Nov. 6, 1998), perm. to appeal denied (Tenn. 1999). On June 11, 199

7, Dyersbur

g police were n

otified that a chil

d who had been admitted to a local hospital had reported a sexual assault. The twelve-year-old victim told the investigating police office r that she had been raped by her stepfather, the petitioner, e arlier that day. Police officer s proceeded

to Petitioner’s re

sidence and immed

iately advi

sed Petitioner of h

is Miranda

rights. Petitioner attempted to talk to the officers but they advised him to wait. Petitioner w as then transportedto the county jail. During an interview late

r that afternoon

, Petitioner was ag

ainadvised of his Miranda

rights, after w

hich he gave an

incriminating sta

tement to the police

officers.

On August 11, 1997, Petitioner was indicted by the Dyer County Grand Jury for rape of a
c hild, Tenn. Code Ann. § 39-13-522, a Class A felony. The charge r esulted from the allegations made by Petitioner’s stepdaughter that he sexually assa ul ted her and the incriminating statements made by Petitioner to police officers during the

subsequent investigation. Petitioner filed a motion to suppress his incri

minating sta

tements an d a motion to introduce the prior sexual activity of the victim into evidence under Tenn. R. Evid. 412. After the trial court denied both motions, Petitioner pled guil ty, attempting to reserve the issues contained in his denied motions as certified questions of law for appeal under Ten n. R. Crim. P. 37(b)(2)(iii). On December 9, 1997 the trial court impos ed a sentence of fifteen years, the minimum in the range, pur suant to Petitioner’s plea agreement.
Petitioner’s sole issues on direct appeal were the two certified questions of law Petiti oner attempted to reserve under Tenn. R. Crim. P. 37(b)(2)(iii) in hi s plea agreement, i.e., that the trial court erred when it

denied his motions ( 1) to suppress incriminating statements made by Petitioner to police and (2) to introduce evidence concerning prior sexual activi tyof the victim pursua

nt to Tenn. R. Evid. 412. After reviewing the record, this Court determined that Rule 37(b)(2)(iii) was not the proper vehicle under which an appeal may lie for the types

of errors claimed by Petitioner. Brooks , 1998 WL 775649 at *3. Provision (iii) applies in cases where the record clearly reflects an invalidating error, such as the denial of the right to counsel or conv

iction under an inv

alid statute, a nd the error is apparent upon the face of the existing record. However, since the re c ord o n Petitioner’s appeal reflected unanimous agreement by the District Attorney, the Petitioner, and the trial court that Petitioner

pled guilty conditioned upon his right to appeal the certified qu

estions in issue, this Court agreed to examine Petitioner’s claims to determine whether they could be addressed on the merits under Rule 37(b)(2)(i).

On November 6, 1998,

our Court dismissed Pe titioner’s appea

l for lack of juris

dicti o n because the questions of law werenot properly reserved under Rule 37(b)(2)(i) and the manda tory requirements

set forth in Preston

. See Tenn. R. Crim. P. 37(b)(2)(i); State v. Preston , 759 S.W.2d 647, 650 (Tenn. 1988). Under Rule 37(b)(2)(i), the final order of judgment must contain a statement of the dispositive certified question of law reserved by the defendant,

wherein the ques

tion is clearly-3-

stated so as to identify the scope and the limits of the legal issues reserved. See Preston , 759 S.W.2d at 650; see also State v. Penderg rass , 937 S.W.2d 834 (Tenn. 1996). The order must als

o state that the certified questi

on was expressly

reserved as a p

art of the plea a

greement, that

the State and the trial judge consented to the reservation, and that the State and the trial judge are of the opinion that the question isdispositive of the case. Preston , 759 S.W.2d at 650. Pet itioner failed to c

omply with thes e re quirements. We concluded that even if this Court ignored the technical omissions, the
ce r tified questions in Petitioner’s appeal were nevertheless not dispositive of the case as required under Rule 37(b)(2)(i) . However, we f urther conclude

d in footnotes that th

e trial cou rt properly deniedPetitioner’s motions. See Brooks , 1998 WL 775 649 at *4 nn .3-4. Rega rding Petitioner’s motion to suppress, we stated that there was no dispute that Petitioner voluntarily agreed to provide
a statement to the police and that, in fact, he anxiously a

ttempted to explain hi

s side of the story

to the officers when

they first arrived. As for Petitioner’s Rule 412 issue, we found that Rule 412 was applic able

to cases involving rape of a child but Petitioner failed to comply with the proc edura l requirements for admission of evidence under said rule.

Thereafter

Petitioner filed a petition for post-conviction relief wherein he alleged ineffective assistance of counsel on three grounds: (1) counse l failed to adequately investigate the facts and defenses in Petitioner’s case; (2) counsel failed to raise numerous Fourth Amendment violations in support of

his motion to suppress; and (3) counsel erroneously advised Petitioner that he cou l d properly reserve two que

stions of law for a

ppeal which would

grant him relief, with the appeal being the re ason for Pet itioner’s guilty plea. At the conc

lusion of an eviden

tiary hearing, the postconviction court denied Petitioner any relief.

II. Post-convic

tion Hearing

The post-conviction hearing occurred on December 6, 1999. Petitioner’s proof consisted solely of his testimony. The State’s proof consisted of testimony from the two attorneys who were appointed to assist Petitioner. Petitioner’s first attorney, Steve Da vi s, was replaced upon Petitioner’s request just prior to

the hearing on

his motion to suppress. Petitioner’s second attorney, Tod Taylor, represented

him throughout the preliminary hearings and plea neg otiations. Petitioner alleged that both attorney

s rendered inef

fective assistan

ce of counsel. At the post-conviction hearing, Petitioner testified that he was watching television the day that the police officers came to his home an d arrested him.

Petitioner testified that the police officers knockedon his door and whe n Petitioner answe

red, they e

ntered, handcuf

fed him, and place

d him in the back of

a police car. The police

did not show Petitioner an arrest warrant when they entered his home. The police o fficers transpo rted Petitioner to t

he Dyer Cou

nty Jail where

he was held in maximum security for an hour and a half. Petitioner claimed that during this time, he was not allowedto contact clergy, family , or friends. Next, the police officers interrogated Petitioner at which time Petitioner gave an incriminating

statement which th

ey used late

r in their affidavit for an arrest warrant. Petitioner claimed that the above facts deman ded s uppression of Petitioner’s incriminatin

g sta tement under the Fourth Amendment because the police arrested him without probable cause

, a warrant, or t

he presence of

exigent circumsta

nces.-4-

Petitioner testified that both attorneys, Davis and Taylor, rendered ineffective assistance by failing to adequately investigate the facts and defenses relevant to Petitioner’s case and, further, that Taylor was ineffective

for failing to ra

ise certain issue

s in his motion to suppress. Petitionertestified that when he initially

met with Davis, the f

irst attorney

appointed to assist

him, Davis explained the charge to him and they discussed the fact that Petitione r had gi ven the police an incriminating statement. Davis also

told Pet itioner that he ha d planned to conta

ct Petitioner’s wif

e. At their secondmeeting, Davis advised Petitioner that Petitioner’s wife would neither spea k w ith him nor allow Davis to speak with her daughter, the victim. Davis also informed Petitioner that the District Attorney would not agree to a plea agreement wherein Petitioner was allowed to serve less than fifteen years and

that, if Petitioner

went to trial, he c

ould receive a sentence as long as twenty-f ive years. During Petitioner’s third meeting, Davis informed Petitioner that he planned to file a motion to suppress Petitioner’s statement to police . At some point during Petitioner’s representation by Davis, Petitioner asked D avis to obtain

a copy of the victim’s statement and to locate witnesses that would testify in his behalf, but Davis never complied with these requests. Petitioner claimed that Davis looked nervous and perspired a lotduring their meetings and, further, that Davis became loud, angr y, and defensive with Pet iti one r wh en P eti tio ner a ske d hi m qu est ion s re gard ing t ria l st rat egy.
Petitioner testified that when the date for the hearing on t he motion to suppress arrived, Petitioner requested that the court appoint new coun sel t o assist him. Petitioner was dissatisfied because Davis had not dete

rmined a defense

strategy , had not discussed

with Pe titioner w hat witnesses he planned to call, and had not revealed what issues were involved in Petitioner’s motion to suppress. Petitioner claimed that Davis seem ed concerned only with the facts that the District Attorney w ould not co nsider a sentence less than fifteen years and that, if the victim testified, Petitioner’s sente

nce upon convicti

on would likely

be twenty to

twenty-fiv

e years.
The court granted Petitioner’s request, appointing Tod Tay lor to as sist Petitioner. Taylor rescheduled

the motion to suppre

ss hearing at wh

ic h he later argued t

hat Petitioner’s st

atement to police violated Pe

t itioner’s Fifth and Sixth Amendmentrights. Petitione r testified that, in

his opinion, Taylor should have argued that his detention, interrogation, and a rrest were illeg al. Petitioner testified that

Taylor also requested a hearing to present a Rule 412 motion, but the court deniedthis request. Afterward, Petitioner and Taylor discussed his remaining two c hoices: (1) negotiate a ple

a agreement o

r (2) go to trial. With no plausible defense, Taylor advised Petitioner to plead guilty and, afterward, app eal the tria

l court’s denial of his suppression and Rule 412 moti ons. Because Petitioner believed that the Court of Criminal Appeals would grant him relief, Petitioner pled guilty . Petitioner testif ied that, at this time, he was unaware that the victim’s medical examination showed no evidence of pen etration. Petitioner testified that if he had known this, he would have opted to

go to trial. During cross-examination, Petitioner admitted that he was given a “full blown” hearing on his motion to suppress, a t which Petitioner a

nd the police offi

cers testifie

d as to the facts and circumstances surrounding his arrest. Petitioner further testified that he and Davis had discussed the following: the elements of the charges against him, Petitioner’s confession,the range of punishment, the fact that Petitioner’s wife would not cooperate with his defense, the offer madeby the State, the-5-

possibility

of undergoing

a mental evaluat

ion to evaluate a

possible defense

, and whether the

y could have his confession suppre ssed. Petitioner felt that Davis should have sought witnesses to testify in his behalf. Petitioner wanted his friends and employers to testify re garding his credibility, since
none of them could have

testified as to

the facts. He also wanted wi tnesses to testify

concerning his wife’s and the victim’s lack of cre dibility. Petit ioner admitted tha

t he did not supply

either of his att orn eys with any nam

es of potential wit

n esses who could ha

ve testified reg

arding these ma

tters. Petitioner further conceded that Taylor did what he could to obtain a hear ing on the Rule 412 motion, butPetitioner had misunderstood what was to take pl ace. Petitioner also acknowledged that he misunderstood Taylor’s advice regarding a possible appeal. When Taylor explained to him that he could plead guilty reserving the suppression andRule 412 issues as c ertified question

s for appeal, Petitioner believedthat pleading guilty was the only w ay that he would be able to obt

ain appellate relief.

Steve Davis testified that he was the first a

ttorney app

ointed to represe

nt Petitioner. Davi

s testified that he discussed w ith Petitioner th

e e lements of the charge against him and the fact that Petitioner had confessed. D

avis also talked with Petitioner about possible defenses, but the two of themwere unable to come up with anything. Davis believed that the evid ence–Petitioner’s confession in conjunction with t he testimony

of the victim–would

likely resu

lt in his conviction and
a sentence of at l

east twe nty years. Davis tried to contact Petitioner’s wife and her daug hter, the victim, but they were both adamant about fully prose cuting Petitioner and refused to speak to Davis. Davis filed a motion to supp ress Petitioner’s

confession in cas

e they went

to trial. In Davis’ opinion, however, Petitioner’s confession was legal, constitutional, and adm issi ble. Given the fa

cts in Petitioner’s case, Davis

found no basis

to raise a Fourth

Amendment issue in t

he motion to suppres s or to put on witnesses to testify regarding Petitioner’s credibility . Davis considered Petitioner’s credibility

irrelevant. Dav

is also testified tha

t he did not recall

P e titioner bringing up the issue of illegal arrest or any other Fourth Amendment conce rns during their conversations. During cross-examination, Davis denied having substanc

e abuse problems i

n 1997. Davis admitted to a conviction for driving under the influence, but did not recall the date of the offense. Davis testified that he received a private reprimand from the Board of P rof ess ion al R esp ons ibi lit y. As pa rt of the terms of the reprimand, Davis was required to attend “AA” meetings and rece i v e treatment,but he did not comply . Consequently , his license to pract

ice law was suspe

nded for thirty days.

Tod Taylor, Petitioner’s second attorney, testified tha t he re called discussing Petitioner’s defense with him. Specifically, they talked abo ut the arrest warrant, whether Petitioner had an argument under the Sixth Amend

ment right to coun

sel, whether Pe

titioner waived hi

s Miranda rights, Petitione r’s sta

tement to the police

, and the gener

al circumstance

s surrounding his

arrest. After these discussions,

Taylor lea

rned noth ing fromPetitioner that raised a Fourth Amendment issue. Taylor testified

that during the hearing on Petitioner’s motion to suppress, Petitioner and the officer s testified regarding how they came to be a t his home and the circumstances under whi c h Petitioner was transported

to th e jail. The trial court also heard testimony regarding the time the-6-

war rant was actually issued and served. (Further elabora tion concerning the substanc e of th e testimony given at the suppression hearing was not reflected in the a ppellate record.) Taylor further testified that he filed a motion requesting the victim’s medical records if the Statewas intending to use them as evidence at trial. The medical records containe d the results of
a physical examination p er formed on the victim after the rape. Specifically, the examination revealed a white mucoid subs

tance present in

the victim’s vag

ina, which cor roborated part of Petitioner’s state

ment, i.e., Petitioner us

ed Vaseline to dig

itally pene

trate the victim.

The medical record s also showed ejaculatory semen present outside but near the vag inal area. When Taylor discovered

the prosecutor was not

planning to introduce the medical records at trial, Taylor dropped his request in an eff

ort to “let sleepin

g dogs lie” bec

ause, clearly

, this evidence cou ld damage Petitioner’s case. Tay

lor and Petitioner

also discussed whe

ther they sh

ould file a Rule 412 motion to introduce evidence of the victim’s prior sexual activity. However, the court denied Petitioner a hearing on the motion because rape of a child was not included in the “preamble” of Rule 412.

After the court denied Petitioner’s Rule 412 and suppression motions, Taylor and Petitioner discussed which, i

f any, def ense strategies remained. Taylor testified that his first inclination was to lock in the fifteen-year sentence with a plea agreement and appeal the trial court’s denial of the afore mentioned motions. Taylor admitted that he knew the motion issues were not dispositive o f Petitioner’s case

at the time they discussed the appeal. Tay lor had already in

formed Petitioner

that, if he went to trial, his chances of success were slim. The testimony of the young victim would be highly pre judicial, and the nature of the crime would be distasteful to the jury. He believed that Petitioner would likely be convicted and receive a sentence

longer than fifteen years. Regar ding the issue of Petitioner’s credibility, Taylor testified that the matter wa s a double-edge

d sword because building Petitione

r’s credibility

would have give

n his confession mor

e weight.

T aylor fu rther testified that, after the Court of Criminal Appeals dismissed Petitioner’s appeal, Taylor contacted an “appellate specialist” for advic e on how to proceed. Tay lor wanted to filea motion to withdraw Petitioner’s guilty plea. Taylor had discovered case law in which the Court of Criminal Appeals a

llo wed adefendant to withdraw his guilty plea under circumstances ver y similarto Petitioner’s. The consulting lawyer agreed with Tay lor’s strategy. T aylor approached Petitioner with this plan and explained that, if they were successful, Petitioner would be granted the right to proceed to trial. Petitioner told Taylor he wanted to think ab out i t. After a few da ys, Petitioner called Taylor and directed him to go ahead with an appe al to t he Tennessee Supreme Court. Petitioner to

ld Taylor tha

t he did not want to wi

thdraw his plea a

nd go to trial. During cross-examinati

on, Taylor testified that the medical records ma y have had exculpatory information, but he chose not to request them as a tact ical mat ter. The records also contained incriminating information. Addit ionally, Tay

lor admitted that he

did not c onsider using any witnesses, that he did not argue Fourth Amendme nt violations in his motion to suppress, and that he did inform Petitioner that it was pos sible to reserve two certified questions of law for appeal which, if th ey ob tained a favorable ruling, would “level the playing f ield” for subsequent-7-

negotiations and at

the trial stage. On redirect, Taylor testified that he never told Petitioner that the issues sought to be reserved were dispositive of his case.

At the conclusion of the evidentiary hearing, the post conviction court made the following fi ndings and conclusions: (1) i ssues concernin

g the police off

icers’ seizure of

Petitioner and his subsequent

interrogation, as well as other related Fourth Amendment issues, were addressed at the suppression hearing and were, at worse, a question of tactics or strategy on the part of counsel such that not raising the issues during a motion to suppress did not constitute ineffective assistance of counsel; (2) regarding counsel’s failure to investigate, no witnesses existed othe r than t hose who would testify

as to credibility

which a decision t

o omit is tactical and a ma tte r of defe nse str ate gy; (3) the lack of witnes ses to testify as to credibility

on the part of the v

ictim and/or Petition

er would have had little, if any, effect on the outco me of trial and, therefore , no showing of pr

ejudice to Petitio ner was made; (4) the medical records did not constitute exculpatory evidence; (5) e ven i f failing to requ es t medical record s did comprise inef

fective assistan

ce, there was no

prejudice to Petitioner since the recor

ds could have been

just as harmful as helpful and, therefore, constituted a tactical decision on the part of counsel; (6) th

e Rule 412 motion was denied because the issues were inapplicable

o r not rele vant and counsel was not ineffective in handling this matter; (7) counsel’s mistake in informing Petitioner that it was possible to reserve nondispositive questions for appeal didnot constitute ineffective assistance where the Co urt of Criminal Appeals, in dicta, found that the trial court’s den

ial of the motions wa

s not im proper and also T aylor atte mpted to correct

his mistake but was prevente d from doing so

by Petitioner; and (8) in the event that counsel’s mistake regarding Petitioner’s appe

al was ineffect

ive assistance, Pe

titioner had neve

rtheless failed t

o show prejudice as a r

esult of it. Petitioner now appeals as of right the dismissal of his post-conviction petition by

the Dyer County Circuit Court, rene

wing his claims of

ineffective as sista

nce wherein defense counsel (1) failedto adequately investigate Petitioner’s case; (2) failed to argue Fourth Amendment violations in his motion to suppress; and (3) erroneously advised Petitioner that Petitioner could reserve two questions of law fo

r appeal which c

ould grant him relief, with the appeal being the foundation for Petitioner’s guilty plea. After a thorough review of the record, we affirm the judgment of the trial court. III. Analysis

In order to obtain post-conviction relief a petitioner must allege that his conviction or sentence is void or voidable b ecause of an ab

ridgement of a c

onstitutional righ

t. Tenn. Code Ann. § 40-30-203 (1997). If granted an evidentia ry hearing, the petitioner has the burden of proving the allegations by clear and convincing evidence. Id. § 40-30-210(f). The trial judge’s findings of fact in a post-conviction

proceeding ar

e afforded the w

eight of a jury

verdict. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. Ap p. 1990). Conseque

ntly, this Court is bound bythe trial j udge’s findi ngs o f fact unl ess we co ncl ude tha t th e evi den ce pr epo nde rat es ag ain st t he j udgm ent ent ered by t h e post-conviction court. Caruthers v. State , 814 S.W.2d 64, 67 (Tenn. Crim. App. 1991).-8-

Our examination of the post-conviction Court’s decision is constrained by three fundamental rules of appellate review. First, this Court ca nnot reweigh or

reevaluate the

evidence. Nor ma

y this Courtsubstitute its inferences for those drawn by the trial judge. Blac k, 794 S.W.2d at 755. Second, any questions regarding the credibility of the witnesses, the we igh t and value to be g

iven to their tes tim ony, and the factual issues raised by the evidence are to be resolved b y the trial judge. Id. Third, Petition er bear s the burden of proof, and must show why the evidence in the record preponderates against the judgment entered by the post-conviction court. Id.

The above standards

are modified whe

n the claim for re

lief is i neffec tive assistance of counsel. In State v. Burns our supreme court held that a claim of ineffective assistance of counsel raisedon direct appea

l is a mixed question of

law and fact, an

d thus is subject to a de novo review. State v. Burns , 6 S.W.3d 453, 461 (Te nn.1999); see Jhiel Fields v. State , ______ S.W.3d ______, No. E1999-00915-SC-R11-PC, 2001 WL 166380, (Tenn. Feb. 20, 2001). The de no vo review of
a trial court’s fa

ctual findings by

an appellate cou

rt are entitled to

a presumption of c

orrectness, which is overcome only when the preponder ance of the evidence is contrary to the trial court’s findings of fact. Fields , ___ S.W.3d at ___; see also Henley v. Sta te , 960 S.W.2d 572, 578 (Tenn. 1997). Furthermore, in reviewing the trial co urt’s app lication of law to it s factual finding

s “to determine whether counsel’s performance was deficient or whether the defenda nt was prejudiced by that defi cie ncy, app ell ate cou rts sho uld con duc t a p urel y de novo rev iew, according to the trial court’s conclusions of law no deference or presumption of correctness.” Id. at ___. Las tly, a defendant alleging ineffective assistance of counsel must prove the allegations of fact underlying

his claim by clear and convincing evidence. See Tenn. Code Ann. § 40 -30-210(f) (199

7); Fields , ___ S.W.3d at ___. This standa rd of proof is req

uired regard

less of whether a petitioner is bringing the claim in a direct appeal or a post-conviction petition. See Burns , 6 S.W.3d at 461 n.5.

In determini ng whether counsel provided effect ive assistance, this Court must decide whether counsel’s performance was within the range of competence demanded of

attorneys i

n criminal cases. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a claim that his counsel was ineffective, a petitioner bears the burden of proving two elements. First, he must prove his counsel made errors so se rious that he was not fu nctioning a s co unsel as guara nteed by the

Sixth Amendment. St rickland v. Washington , 466 U.S. 668, 687 (1 984); Cooper v. State , 849 S.W.2d 744, 747 (Tenn. 1993). This element is proved by showing that counsel's representation fell below
an objective standard of reasonableness. Strickland , 466 U.S. at 688. Second, the pe

titioner must prove that he was prejudiced by his counsel’s unprofessional errors, such that there is

a reasonable probability

that, but for counsel’s errors, the result of t he pro ceeding would h

ave been diffe

rent. Strickland , 466 U.S. at 694; Butler v. State , 789 S.W.2d 898, 900 (Tenn. 1990).

When reviewing a de

fense att orney’s actions, this Court m ay not use " 20-20" hindsigh t to second-guess

counsel's decisions regarding trial strategy and tactics. Hellardv. State , 629 S.W.2d 4, 9 (Tenn. 1982). Counsel's alleged errors should be judged at the time they were made in light of all the facts and circumstances. Strickland , 466 U.S. at 690; Cooper , 849 S.W.2d at 746.-9-

A. Failure to Investigate

Petitioner first allege s that counsel failed to adequately investigate Petitioner’s case. Spe cif ica lly, Pe tition er contends that b oth Davis and Tay

lor were ineffe

ctive for (1) fa

iling to procure witnesses for the purpose of prepa

ring a defense

, (2) failing to obtain medical records per taini ng to the victim’s medic al examination, and

(3) failing to se

cure the victim’s

statement to the police. Concerning the procurement of witnesses, both Davis and Taylor t estified that character witnes ses wo uld not have been useful to Petitioner’s case. As a tactical decision, Taylor had de termined that credibility witnesses could be just as harmful as helpful. Therefore, he chose no t to pursue this avenue of

defense. The record

indicates that no w

itnesses other tha

n those who would testify as to Petiti oner’s character existed–no one had knowledge of the actual incident save Petitioner and the victim. Finally, the record reveals that Petitioner made no effort to present witnesses at the post-conviction hearing to demonstrate the import ance of their testimony to the court. Hence, Petitioner has not shown how he was prejudiced by the alleged deficiency

. See Black v. State , 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).

The post-conviction court found that c ounsel’s decision to forgo witnesses was a tactical matter pert ain ing t o de fens e st rat egy an d, f urt her, tha t th e la ck o f wi tne sse s wo uld hav e li ttl e, i f any, effect on the outcome of trial. We agree. Even if Petitioner was a

ble to establish

that his counsel
was deficient in investigation of facts or known witnesses (which he did not) , he is notentitled to relief on this

ground unless he can produce a material witness who (a) could have been found by a reasonable inve

stigation and (b)

would have testified

favorably in support of the defense if called. Id. at 758. Petitioner did not present the post-conviction court with the above and, therefore, failed to e sta bli sh t he p rej udi ce re qui rem ent man dat ed b y Strickland v. Washington

. The second prong of Petitioner’s claim that counsel failedto adequately

investigate his c

ase alleges that counsel was ineffective for failing to obtain medical records pertaining to the victim’s medical examination. Petitioner claimed that the medical report contained exculpatory evidence or, more specifically, that the report contained no evidence of penetration. The record shows that the medical report revealed

a wh ite mucoid substance which corroborated a portion of Petitioner’s confession. According to Taylor’s testimony, it wa s for this reason that he

decided to

“let sleeping dogs lie” and purposefully dropped his pursuit of this evide

nce. In ligh

t of the contents of

the report, counsel’s hesitation to introduce such potentially damaging evidence a t trial is understandable.

The post-conviction court concluded that themedical records did not constitute exculpatory evidence and, also, that the decision n ot to follow throug

h with a request

of the records constituted
a tactical decision on the part of counsel. We agree. Moreover, when reviewing a defense attorney’s actions, this Court may not use "20-20" hindsight to second-guess counsel's de cisions regarding trial strate gy and tactics. Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982). The post-conviction court further found that, even if this decision did comprise ineffective assistance, there was no prejudice-10-

to Petitioner since th

e records could

easily have

been just as detri

mental as help

ful to Petitioner’s case. We find no fault in this judgment.

Petitioner’s last contention, that trial counsel was

ineffective be

cause he did

not obtain the victim’s statement to police, also fails to afford Petitioner any relief. In general, Tennessee’s rules of c riminal p rocedure do not p rovide for pretr

ial discovery

of the opposing pa

rty’s witne

sses’ statements. Exceptions exist; however, they do not assist Petitioner. Tennessee Rule of Criminal Procedure 26.2 is controlling in this matter andrequires disclosure of a witness’ statement only after the witness has testified on direct examination during trial or pretrial hearings. See Tenn. R. Crim. P. 26.2(a), (f). Neither of these circumstances applies to Petitioner’s case. B. Motion to Suppress

Petitioner also argues that counsel was inef fective fo r failing to allege violations of Petitioner’s Fourth Amendment rights in his

motion to suppress Petitioner’s incriminating statement to police. At

the post-convicti

on hearing, att

orney Davi

s testified that, in

his opinion, Petitioner’s confession was legal,

constitutional and admissible. Attorney Taylor similarly testified that nothing he learned from Petitioner during their discussions caused him to believe that a Fourth Amendment issue existed. After hearing the testimony of witnesses at the evidentiary hearing and considering the prior testimony at

the suppression he

aring, the tria

l court stated in a w

ritten order den

ying postconviction relief that there were no Fourth Amendment violations to be raised in Petitioner’s case. The trial court furth

er found that the o

mission of a Fourth

Amendment argument was, at worse, a question of ta ctics or strategy on the part of counsel and that Petitioner failed to prove inef fective assistance.

After a review of the r

ecord, we find th

at the post-convic

ti on court obviously credited the testimonyof P eti tio ner’ s tw o at tor neys that the facts and circumstanc

es in Petitioner’s c

ase simply didnot raise a Four

th Amendment issue.

Because we do n

ot revisit the issue

of credibility

on appeal,
we defer to the trial court’s ruling in that regard. Black , 794 S.W.2d at 755. I n sum, Petitioner has failed to show ineffective assistance of counsel. C. Certified Questions for Appeal

Petitioner’s last issue alleges that counsel was ineffective for erroneously advising Petitioner that he could properly reserve two questions of law for appeal which

could grant Petitioner relief, when the appeal was the reason for Petitioner’s guilty plea. Petitioner alleg es that, but

for counsel’s
erro r, h e wo uld not hav e pl ed gu ilt y.
Under the Sixth Amendment, when a claim of ineffective assistance of counsel is made in the context of a guilty

plea, the burden

is upon the petitioner to show (1) that counsel’s performance
was deficie nt and (2) that the deficiency was prejudicial in terms of there being a reasonab l e probability

that, but for counsel’s

errors, the peti

tioner would not ha

ve pled guilty

and would have insisted o n going to trial. Hill v. Lockhart , 464 U.S. 52, 59, 106 S .Ct. 366, 370 (1985) . This-11-

standardhas also been applied to cases involving Article I, Section 9 of the Tennessee Constitution. See Shazel v. State , 966 S.W.2d 414, 416 (Tenn. 1998).

Rule 37(b) of the Tennessee Rules of Criminal Procedure controls when an appeal lies and provides, in perti

nent part, as foll

ows: (b) An appeal l ies from any order or judgment in a criminal proceeding wh ere the law provides for such appeal, and from any judgment of conv

iction: (2) Upon a plea of

guilty or no

lo contendere if

: (i) Defendant entered into a plea agreement un der Rule 11(e) but expli citly reserved with the

consent of the sta

te and of the cour

t t h e right to appeal a cert

ified question of la

w th at i s dispositive of the
case . . . .
In State v. Preston , 759 S.W.2d 647 (Tenn. 1988), the Tennessee Supre me Court explained the requirements of Rule 37(b):

Regardless

of what has appeared in prior petitions, orders, colloquy in open court or

other wise, the final order or judgment from which t he t ime begins to run to pursue a T.R.A.P. 3 appeal must contain a statement of the dispositive certified question of law reserved by defendant for appellate review and the question of law must be stated
so as to clearly identify the scope and the limits of the legal issue reserved . . . . Also, the order must state that the certified qu esti on was expressly reserved as part of the plea agre ement . . . [and] that

the Stateand the judge are of the opinion that the question is dispositive of the case. O f course, the bur den is on defenda

nt to see that these prerequisites are in

the final order and that the record brought to the appellate courts contains all of the proceedings below that bear upon whether the certified question of law is dispositive and the merits of the question certified. N o issue b eyond the scope of the certified question will be considered.

Id. at 650 (emphasis a

dded); see also State v. Penderg rass , 937 S.W.2d 834 (Tenn. 1996). Contrary to the exp licit and unambiguous requirements of Rule 37(b)(2)(i) and Preston , Taylor gave Petitioner

erroneous infor

mation when he adv

ised Petitioner tha t he could proper ly
reservefor appeal the issues in his motions. Taylor admitted in his testimony dur

ing the postconviction hearing that he was aware prior to advising Petitioner that the questions of law he sought to appeal were not dispositive of the case.-12-

After the evidentiary hearing, the post-conviction court found that Taylor’s error regarding Petitioner’s appeal did not constitute ineffective assistance. In support of this dec isi on, the postconviction court relied upon dicta from this

Court’s decision di

smissing Petitioner

’s appeal where

in
we stated in a f

o otnote that the trial court’s denial of Petitioner’s motion to suppress was not improper. The post-conviction court also relied on Taylor’s testimony that he attempted to cor rect his mistake but was prevented from doing so by Petitioner. Taylor testified that he had approached Petitioner with plans to withdraw Petitioner’s guilty plea based on State v. Wilkes , 684 S.W.2d 663 (Tenn. Crim. App. 1984), but Petitioner declined to pursue this option. As a result, Taylor continued withtheir previous plans to appeal to the Tennessee Supreme Court. The application for permission to appeal was denied.

Statev. Wilkes , upon which Taylor based his plan to withdraw Petitioner’s plea, concerned
a defendant w ho pled guil ty while attem pting to res erve his righ t to appeal judgments of the trial court denying hi

s motions to

suppress certain evidence. Although neither the District Attorney, the defendant’s attorney, nor the trial judge considered the defendant’s questions dispositive, all three had informed the defendant that he could appeal the validity of the search warrant and obtain a trial excluding the evidence obt ained if the appe

lla te courtsustained his contentions. Id. at 667. On appeal, this Court agreed with the defendant that it would be unfair u nder the c ircumstances to dismiss the appeal and affirm the judgments entered on the guilty pleas. Id. Accordingly, we remanded the ca

se to the trial cour

t for trial.

Wilkes arguably stands

for the proposition that

withdrawal of a p

lea is possible unde

r certain limited circumstances when the question of law is not dispositive. As such, it supported Taylor’s plan for correcti ng the resul t of his erro neous advi ce to Petit ioner. Even though we do not comment
on the validity o

f such an asserti

on, we concede t

hat the holding in Wilkes at least justified Taylor’s approaching Petition er with the idea. What is most sig nificant here is P

etitioner’s rea

ction to Taylor’splan. Petitioner declinedto pursue a withdr awal of his

plea, choosing instead to go forward withan appeal to our s

upreme court. I

n light of Petitione

r’s refusal to

reassert his right to go to trial when faced with a pla

n to do so, Petitioner

’s argument tha

t, but for counsel’ s error in assurin g him the opportunity to appeal he would not have pled guilty, is suspec t.

In Hill v. Lockhart , 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) the United States Supreme Court applied the tw

o-part Strickland standardto ineffective assistance of co unsel claims aris ing out of the guilty plea process. The Court in Hill modified the prejudice requirement by requiring a defendant to sh ow that there was

a reasonable pr

obability that, but for counsel’s

errors, he would not have pled guilty and would have insisted on going to trial. Id. at 59. The Court noted that in many guilty plea cases the prejudice analysis would closely rese mble the prejudice analy

sis applicable

to jury convictions. Id. The Court explained that whether a certain error prejudiced the defendant by causing him to plead guilty instead of going to trial would in many cases depend on the likelihood that a correction of counsel's ineffective assistance would have changed

the outcome of
a trial. Id. As an illu stration, the Court used a case in whi

ch the alleged

error of counse

l was a failure to discover potentially exculpatory evidence. The Court explained that whether a defendant
was prejudiced by this failure would depend on the likelihood that discovery of the

evidence would-13-

have led counsel to change his recommendation as to the plea. Id. This inquiry w ould depend in large part on a prediction of whether the evidence would have changed the outcome of the trial. Id. The Court further note

d that predictions

a s to the possible outcome of a trial should be made objectively. Id. at 59-60.
Here, although Taylor made an error, he never theless attempted to rectify the situat ion b y placing Petitioner in the position he would have occupied if not for Taylor’s mistake. To hold Taylor responsible

for Petitioner’s plight

when Petitioner de

nied Taylor

the opportunity

to effect a plau

sible remedy by securing him

a trial would be inappropriate. Although deficient performance on the part of counsel may have been proven, Petitioner has still failed to show a reasonab le pr obability tha

t, butfor counsel’s er

rors, the petitione

r would not have ple

d guilty and would have insisted on going to trial. Moreover

, if Petitioner had

proceeded to tri

al, his confession

would have been

admissible. As previously discussed, this Court already determined in dicta that both Petitioner’s suppression and Rule 412 motions wer e properly denied. Consequently, failure to properly r eserve the certified questions of law resulted in no prejudice to Petitioner and, t hus, he is n ot entitled to relie f on this issue.
IV. Conclusion

In consideration of

the foregoing

and the record a

s a whole, the judg

ment of the postconviction court is AFFIRMED.

____________________________________ THOMAS T. WOODALL, JUDGE