### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs S eptember

18, 2001
STATE O F TENN

ESSEE v. JOHN L. GOODWIN , III
Post-Conviction Appeal from the Criminal Court for Sumner County

No. 5718 Tom E. Gray, Judge

No. M2001-00044-CCA-R3-PC - Filed August 2, 2002

The petitioner, John L. G oodwin, II I, was convicted of a

ttempted rape and aggr

avated bu rg la ry. State v. John L. Good win , III , No. 01-C01-9108-CR-00242, 1992 Tenn. Crim. App. LEXIS 859, at *1 (Tenn. Crim. App. at Nashville, Nov. 12, 1992). The petitioner decided to waive his right to a direct appeal of his verdict and f iled a post-conviction petition for review. I d. His petition was deni ed, and o n appea l this Courtfound that the petitioner waived his right to a direct appeal based on erroneous advice of counsel and thus granted him an opportunity to file a motion for new trial and bring a delay ed direct appeal. Id. at **3-4. The petitioner filed a motion for new trial, which the

trial cou rt denie d, and the

petitione r broug ht a dela ye d direct appeal b efore t

his Court. State v. G oodwin , 909 S.W.2d 35, 37 (Tenn. Crim. Ap p. 1995). This Court affirmed the petitioner’s convicti on, but re manded th

e petition er’s case for re-s entencing. Id. at 45-46. The petitioner was re-sent enced, and he appealed his new sentence to this Court, as well as the tria l court’s denial of his writ of habeas cor pus. State v. Jo hn L. Goo dwi n, III , No. 01C01 -9601-CR00013, 1997 Tenn. Crim. App. LEXI S 679, at *1 (Tenn. Crim. App. at Nashv ille, July 23, 1997). We reviewed his sentence and ultimately found that the trial court properly imposed the petitioner’s new sentence. Id. While this Cou rt was re viewing the petiti oner’s a

ppeal of his new sentence, he filed an “application for coram no bis and/or in the alternative to re-open post-conviction petition.” Joh n L. G oodwin, I

II v. State , No. M2000-0757-CCA-R28-CO, at *2 (Tenn. Crim. Ap p. a t Nashville, Sept. 19, 1997) (no electronic database citation available)

. The tria l court dis missed this plead ing, and we affirmed that ruling. John L. Goodwin, II I v. State , No. 01C01-9608-CR-00337 (Tenn. Crim. App. at Na shville, Sept. 19, 1997) (no electronic database citation available). The petitioner then file d a motion to

re-ope n his post- convicti on petition , which was ultimately dismissed withouta hearing. Id. Thus, we remanded his case for a hea ring to determine the merits of what
was , essentially, his post-conviction petition. The petitioner now bring s the instant appeal of the denial of his petition for post-conviction relief, challenging: the f airness of his post-co nviction hearin g; his sente

nce; his n otice of

the char ges ag ainst him; th

e constitu tionality of Tenne ssee Rule of Criminal Procedure 44(a); the alleged c onspiracy be tween various court officers against him; the effec tiveness of his cou

nsel; and the jury instructions. After reviewing the petitioner’s claims, we find that t hey are eith er waived, previo

usly determined, or without meri t.-2-

Tenn. R. App.P. 3 Appeal as of Right ; Judgment

of the Cr

iminal Cour

t Affir med.

J ERRY L. S MITH , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J. and D AVID G. H AYES , J., joined.
John L. Goodwin, III, Pikeville, Tennessee, pro se
. Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor Gene ral; David H. Findley, Assistant Attorney General; Lawr ence Ray Whitley, District Attorney General; and Dee David Gay, Assistant District Attorney General, for appellee , State of Tennessee.

OPINION

Factua l Background

In the petiti oner’s delay ed direct appeal, this Court summarized the facts of his case as follows: On Augu st

3, 1989, the victim returned from work to her home, in Hendersonville, Tennessee, between 3:30 and 4:00 in the afternoon. She went back to her bedroom to lie down. While she was ly ing down , she hea

rd a door slam. Thin

king it was her daughter or husband, whom she was expecting , the vict imgot up to s ee who it w as. Upon opening the d oor t o her bedroom, she saw the Defendant standing in her ha ll wa y. She told him to get out of her hou se, but he grabbed her by the arms and pushed her into th

e adjac ent g uest bed room. The victim stated at trial that the Defendant

repeat ed, “You know you want it, ” sever al times. T

he victim att empted to fight the Defendant off. He pushed her onto the bed, ripped her blouse, tore her bra and pulled off her panty

hose.

As the victim and Defend ant w ere fighting, they heard her husband's truck in the dr iv ew ay. The Defendant got up and attempted to leave the h ouse , but the vi ctim 's hus band grabbed him as he was try ing to walk out the door. The victim called the police, and the victim'shusband g ot the Def endant' s name and license plate number to “buy some time” until the police could g et there. Whe n the v ictim's husband thought the police should almost be at the house, he let the Defendant go. An officer arrived, radioed

the licen se plate

number to

a back-up officer and the bac k-up officer picked up the Defendant.

The Defendant

was arrested and arraigned on August 3, 1989. On August 16, 1989, the Defendant filed a motion for self-representation. He wasindicted by the Gra nd Juryof Sumner County on September 14, 1989. The trial court appointed counsel John Pellegrin on September 22, 1989. The trial court held a hearing on Defend ant's motion for self-repre sentat ion on October 27, 1989. The trial court granted the-3-

motion; howeve r, becau se of certain statements made by the Defendant, the trial court decided to let appointed c ounsel and Defendant decide if appointed counsel would represent the Defendant or act in an ad vi so ry c ap ac it y on ly. On November 9, 1989, the Defendant filed a motion for the trial court to enter a n order granting the Defendant the right

to represent himself. On November 20, 1989, the court entered
an order granting the

Defendant's motion to represent himself. The orde r also stated that Pellegrin would be Defendant's advisory counsel only. On Novembe r 20, 1989, the case was continued until December 12, beca use certain of theDefe ndant 's subpoenas had not been served.

On Decemb er 6, 198 9 Pelleg rin filed a motion to withdraw as advisory counsel due to a confli ct of inte

rest. The trial court granted this motion on December 7. The trial court appointe d Loui s Oliver a s advisor y c ounsel a

fter a he aring on December 11. The Defe nda nt was convicted in a jury trial in which he represented himself on December

12, 1989. The Defendant filed a motion for the appointment of counsel on December

19. An order granting

the motion was also filed December 19 appointing Keith Bell torepres ent th e Defen dant a t his sente ncing h earing. The Defendant was sentenced to eight ye ars on each count to be served consecutively . Bell withdrew as counsel before the appeals process beg an, and the court ordered the Defe ndant to be represented by

the Public Defender's Office.

David Doyle was the a

tto rney of reco rd for the Defe

ndant' s Motion fo

r New Tr ial. This motion was denied. Following the advice of Doy le, the Defendant waived

his right to appeal on May

10, 1990. He filed a pro se Petition for Post-conviction relief the same day . Defen dant sig ned a wa iv er a nd was allowed to proceed pro se. He made a motion for the appointment of advisory counsel on Sep temb er 17, 1990. David Doyle was a

ppointed. Although it is not cl ear whe n, Doy le subseq uently withdrew as advisory

counsel.

The Defendant later decided to be repr esented by a

n attorney, and

Matt Bastian was appointed to represent the Defenda nt at the pos t-conviction hearing, which took place April19, 1991. The trial court denied the post-conviction petition and the Defendant appealed to this court. State v. John L. Goodwin, III , 1992 Ten n. C rim . Ap p. LE XIS 859, No. 01- C01-91 08-CR-00242 (Tenn. Crim. App., Nashville, filed Nov. 12, 1992). This court

ordered that the Defendant proceed by a delayed direct appeal and ordered the trial court to allow the Defend ant to file

another motion for

a new tri al. Id. The motion for new trial was denied. Goodwin , 909 S.W.2d at 38-39. Through Mr. Bastian, the petitioner brought a de layed direct appeal of his denied motion for new trial, and this Court affirmed the petitioner’s convictions, but vacated his sentences an d remande d his case for a new sentencing he aring b ecause the trial court fa iled to compare the petitioner’s potential sentences under the 1982 and1989 sente

ncing a cts and because the trial cou

rt did not a

dequate ly a rticulat e either a basis for enhancing the

petitioner’s sentences or for sentenc ing him a s a

Range II offender. Id. at 45-46. The trial court re-sentenced the petitioner,-4-

and he was represented by attorney John R. Phillips at the re-sentencing he aring. Phillips represented

the petitioner

on appeal of his new sentence, and the petitioner appealed the trial court’s denial of his petition for writ of habeas corpus, which he had filed pro se
. This Courtreviewed both the petitioner’s sentence and the trial court’s denial of his writ and accordingly affirmed the lower court’s determinations. Jo hn L. Goo dwi n, III , 1997 Tenn. Crim. App. LEXI S 679, at *1.

Prior to the issuance of that opinion, the petitioner filed a pro se “application for coram no bis and/or in the alte rnative to re-openoriginal post-conviction petition.” John L. Goodwin, I II v. State , No. M2000-07 57-CCA-R2 8-CO, at * 2 (Tenn. Crim. App. at Nashvi lle, Sept. 19, 1997) (no electro nic databas e citatio n availa ble). The trial cou rt dismisse d the plea

din g wi thout conducting
a hearing. Id. This Court reviewed the lower co urt’s dism issa l of the petitioner’s pleading and affirmed it, finding that the application for writ of coram nobi s was time-barred and that the petitioner had not set forth sufficient grounds for re-opening the petition for post-conviction relief. John L. Go odwin, I

II v. State , No. 01C01-9608-CR-00337 (Tenn. Crim. App. at Nashville, Sept. 19, 1997) (no electronic database citation available ).

The petitione

r subsequ ently

filed a motion to reopen his petition for post-conviction relief. Judge Jane Wheatcraft deemed this motion to be a petition for post-conviction relief and ruled that the petitioner

had presented a colorable claim for relief. Id. The petition was dismissed by another trial judge without a hearing, and thus this Court remanded the pe titioner’s case for

a post-conviction hearin g. Id. The post- convicti on court h eld a hea ring and found tha

t the petit ioner’s claims did

not merit relief.

The petitioner now brings the instant appeal of his denied petition for post-conviction relief , alleging (1) th at he d id no t recei ve a ful l and f air po st-co nvict ion h earing; (2) that he was inco rrectly sentenced; (3) that the state withheld exculpatory information; (4) that he received inadequate notice of the char ges ag ainst him; ( 5) that Te nnessee Rule of Criminal Procedure 44(a) is unconstit utional; (6) that the a ssistant di strict at torney and defe nse coun sel consp ired ag ainst him; ( 7) that t he tria l judge acted a s a state a

gent; ( 8) that the

jury instr uction s were erroneous; and (9) that he received ineffective assistance of counsel. After reviewing the petitioner’s claims, we find that none of them merit relief.

Post-Conviction Standard of Review

As mentioned supra , the petitioner is currently before this court alleging that his petition for post-conviction relief w as wrongly denied. When analyzing allegations that

a petitioner is entitled to post-conviction relief, we first note that a petitioner bringing a post-c onviction petition for relief bears the burden of proving the allegations asserted in that petition by clear and convincing evidence. See Tenn. Code Ann. § 40- 30-210(f ); Hicks v. State , 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). “Evidence is clear and convincing when ther e is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence.” Hicks , 983 S.W.2d at 245 (citing Hodges v. S.C. Toof & Co. , 833 S.W.2d 8 96, 901 n.3 (Tenn. 1 992)). F urth ermore, the a

ppellate court is bound by the trial court's findings of fact, unless the record preponderates aga inst those findings. Id.1 Furthermore, despite the peti tioner’s assertion t hat he was denied access to his t rial record, i ncluding the jury instructio ns, the p etitioner quo tes po rtions o f those ins truction s in his pe tition. -5- Post-C onviction H earing

The petitioner co mplains that he did not receive a fair post-conviction hearing because he was deniedaccessto relev ant rec ords and b ecause the state failed to issue sev eral ne cessar

y su bpoenas

. We will address both of these allegations below.

(a) Petitioner’s Access to Transcripts of Evidence and the Technical Record

The petitioner complains that he was erroneously de nied access to the transcripts of evidence and the technical record for his case, despite h is numerous reque sts for the m. The petit

ioner cl aims that these records were necessary in order for him to properly frame and

support his allegations of
error. He first asserts that the state failed to file the recor d for review by t

he post-c onviction

court, despite its statuto

ry obligat ion to do so. However, the petitioner relied on a repealed law to support this proposition. Per Tennessee Code Annotated section 40-30-208(b), a section of the 199 5 PostCo nviction Act that was the law in 1999 when the petitioner filed for post-conviction relief, the districtattorney g ener a l is empowered to file records or portions thereof for post-conviction or appella te review if the petitioner

fails to include records when filing his petition. Tenn. Code Ann. § 40-3 0-208 (b). However, the languag e of the statute is permissive and does not mandate action. See Marise E . Smith v. Sta te , No. 01C01-9708-CR-00342, 1999 Tenn. Crim. App. LEXI S 906, at **9-10 (Tenn. Cr

im. App. at Na shville, Se

pt. 12, 199 9). Thus, the state has no obligation to file such record s. “[ T]he petitioner has the obligation of ensuring that releva nt portions of the record from the original case are included in the record on appeal.” Woodruff v. State , No. M1998-00695-CCAR3-CD, 2000 Tenn . Crim. App . LEX IS 57, at *6 n.1 (Tenn. Crim. App. at Nashville, Jan. 25, 2000) (citing Tenn. R. A

pp. P. 24; Morgan

v. State , No. 03-C01-9611-CR-00404, 1999 Tenn. Crim. App. LEXI S 51, at *6 (Tenn. Crim. App. at Knoxville, Jan. 15, 1999)). 1
Moreover, despite the petitioner’s contention, these transcripts were made availab le to him when the post-conviction court ordered the state to file them

with the clerk’s office per Tennessee Rule of Supreme Court 28, section 6. See Tenn. R. Su p. Ct. 28, § 6 . As sta

ted b y the postconviction court,
[The State] complied with section (6) of Rule 28 of the Tennessee Supreme Court as far as sectio n (d) tha

t orders the State

to respond in an app

ropriate – to file with the clerk certain transcripts, exhibits, or records from t he pri or tri al or h earing, and they have filed those records with the clerk. That is wher e they ar e to be filed.2 We assume thi s beca use nei ther the t echnic al r ecord nor the t ransc ript s fr om the peti ti oner’s tri al a re par t of th e r ec or d f

il ed f or re vi ew. -6- There is a transcript of Evidence, Volume 1 of 1, f rom the trial in this case. That may be something you say

that you want to take a

look at. That has been filed. So they complied with that.

Ac co rd in gl y, it appea

rs that the

state co mplied with

the cour t’s orde rs to file certain transcr ipts of evidence and technical rec ords that the court deemed

crucial to the case and therefore these records were made ava ilable to the petitioner. 2
However, the petitioner complains that he w as erroneously

denied access to certain other record s, and that access to these records would ena b le him to es tablish his claims that the jury instructi ons were

errone ous, that the public defender’s office and the pr osecutor conspired

agains t him, and that his counsel was ineffective. However , the issues regarding the alleged conspiracy

and alleged erroneous jury

instructions are issues that have been either

waived or previously

determined. See Tenn. Code Ann. 40-30-206(g), (h); Tenn. R. Sup. Ct. 28, § 2(D) , (E). Therefor e, the pos tconviction court was not obligated to allow the petitioner to access records in order to deve lop issues that were not within the scope of its review. Regarding the petitioner’s complaint that he was denied access to rec ords that would allow him to develop his allegation that his various attorney s ineffectively represented him, thepetitioner didnot state his theory of how his attorne ys were ineffe ctive wit

h sufficient specificity

to warrant granting his request. Because the petitioner did not alleg e how his attorneys we re ineffe ctive, w e must assume that he demanded “any and all” appellate records so that he could examine them and develop a basis for alleging that he rec eived ineffective assistance of counsel. How ever, this Court has held that an appellant is not entitled to receive a complete trial transcript at state expense when the petiti oner hasnot sufficiently articula ted what h

e hopes to

prove by reviewing the tr

anscrip t. A petitione

r is not en

titled to a complete trial tra nscript a t state expense t o go on a fishing expedition to see what he can find. McCrack en v. Sta t e , 529 S.W.2d 724 (Tenn. Crim. App. 1975). The petitioner must demonstrate to the satisfaction of the trial court , after fili ng his po st[- ]conviction petition, that the record will be of
reasona ble assistance to him in establishing his right to the relief soug

ht. Dotson v. State , 477 S.W.2d 763 (Tenn. Crim. App. 1971). Givens v. State , 702 S.W.2d 57 8, 580 (Te nn. Crim. A

pp. 1985) . Beca

use the petiti oner’s r

ationale for requesting a copy

of the entire appellate record wa s not specific, we find that the trial court did not err b y f

ailing to order the state to

comply with his request. (b) Petitioner’s Complaint Regarding the State’s Failure to Issue A Subpoena

The petitione

r furthe r compla ins that the

state er roneousl y f ailed to is sue a su

bpoena fo r Susan P. Clayton, who would te stify that she rec eived an affidavit from the victim detailing the crime, and that t

his affid avit cont

radic ted t he victim’s sworn trial testimony and wa s therefore-7-

e xculpatory

evidence. The state counters that the petitioner fa iled to set forth how this aff idavi t contrad icts the victim’s sworn tes timony and that e

ven if the petitione r’s claim does hav e merit, he waivedthe issue

by f ailing to bring th is error to the post- convicti on court’ s attentio n in order to allow the court to remedy the situation. We agree

that the p etitioner

does not de scribe h ow this af fidavit woul d have been inconsistentwith the victim’s sworn statement and therefore has not

met his bur

den of pr oving his allegations with the requisite specificity. See Tenn. Cod e Ann. § 40 -30-210(f) (1997 ); Hicks , 983 S.W.2d at 245. Mor

eover, a lthough t he petitio ner did br

ing this omission to the court’s attention during trial, during his latter conversations with the trial co urt about procuring the testimony of several witnesses, he stressed the impo rtance of procuring his former counsel and, on several occasio ns, indicate d that his counsel w as the only remaining witne ss that he intended to call. Ac co rd in gl y, because the petitioner did not inform thetrial court of the importanceof procu ring thi s witness, we will not allow him to now claim that he was prejudiced by this omission. Sentencing Challenge

The petitioner challenges his current sentenc e, which was determine d at his re-sentencing hearin g. Becau se this Cour t determine d that the trial court erred when it originally sentenced the petitioner, we remanded his case for re- sentencing. At the re-sentencing hearing, the trial court sentenced the petitioner as a Range I I offender to serve an 18-y ear sentence, which is comprised of two consecutive 9-y ear sentences. The petitioner compla ins that the trial court erroneously classified him as a Range I

I offender a

nd orde red him to s erve hissentenc es conse cutively . Howeve r, this Courthas previously deter mined that

the trial court correc tly both class ified the pe titi oner as a Range II offender and

ordered him to serve his sentences consecutively. See John L. Goodwin , 1997 Tenn. Crim. App. LEXI S 679, at **8-13. Accordingly , we find that the petit ioner ’s sen tenci ng chal lenge lacks me rit. Brady Violation

The petitione

r alleg es that the

state with

held seve ral piec es of exculpatory informat i on , namely severa l affida vits supporting his arre st warra nts. These

affida vits were made by the victim , and the petitioner states that he was entitled to re ceive them as exculpatory evidence because the victim’s affidavits contradicted her sworn trial testimony

. At the outset of our analy sis, we note that the petitioner waived this issue b y f

ailing to raise it on direct appeal. See Tenn. Code Ann. § 40-30-206(g). Rega rdless of whether the issue has been waived, this issue lacks merit. According to Brady

v. Maryland , 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963)

, in order to establish a Brady violation, fou r ele ments must be shown by the defenda nt:3 The petitioner also refers to another inconsistency between the victim’s trial testi mon y and her sw orn

sta tement in her arre st af fidavit , namely that

in her aff

idavit the vict im stat es that

the “[s ]ubject ] was leavi ng when affiant’s husband dr ove up,” while at t ria l the vic ti m test ifi ed tha t the petition er on ly began t o lea ve when her hus band drove u p. Agai n, t he pet it ioner admitt ed attri al t

hat he was inde ed atthe vi cti m’s home. Ther efore , al though the petit ioner now clai ms that if he had i mpeached the vict im with t

his incons ist

ency, he would have bee n abl e to dem ons trate that the vi cti m had fabri cate d the e nti re i ncident , we do not beli eve t hat t

he impeachment

value of t he affida vits is so sig nifica nt tha t it wou ld ha ve af fected the o utco me of the trial.

4 The petit

ioner al so rais es thi s is sue as a depri vati on of hi s cons ti tut ional right to ef fective c ross -examinat

ion, clai ming that beca use he was den ied ac cess to these a ffidav its, he w as also den ied an opp ortu nity to effectively cro ssexamine the wi tnes s. Because we find t hat t he impeachment

value of these affidavi ts i s si gnifica ntly di minished in l ight of the petitioner’s ad mitted p resence a t the crime scene, w e find that he was n ot denied his right to effective c rossexa min ation beca use h e cou ld no t imp each the v ictim with her a ffidav its.
-8- 1) th at the defendant requested the information (unless the e vidence is obvious l y ex cu lp at or y, in which case the S tate is b ound to release the information whether request ed or not) ; 2) that the

State supp

ressed t he infor mation; 3) that the information was favorable to the accuse d; and 4) that the

informat ion was ma

terial.

See Johnson v. State , 38 S .W.3 d 52, 5 6 (Ten n. 200 1) (ci ting State v. Edgin , 902 S.W.2d 387, 390 (Tenn. 1 995); State v. Walker , 910 S.W.2d 381, 389 (Tenn. 1995)).
However, the petiti oner hasnot met th e thi rd and forth criteria above, namely that the evidence is favorable to the accused and that it is material. “Evidenc e is deemed to be material when ‘there is a reasonable probability that, had the evidence been disclosed to the defense , the result of the proceeding would have been diff erent.’” Johnson , 38 S.W.2d at 58 ( quot ing Edgin , 902 S.W.2d at 390); see also Walker , 910 S.W.2d a t 389; State v. Copeland , 983 S.W.2d 703, 706 (Tenn. Cr im. App. 1998)

. The petitioner claims tha

t if he ha d been a ble to impeach the vict

im with her

affida vit, the jury would have

learne d that the

victim’s a

ffidavit states that she first saw the petitioner in her room, while she testified at trial that she first saw him in her hal lway. Presumab ly, the petitioner would have used this inconsistency to impeach the victim and establish that her recollection of his wherea bouts in her hou se was inc onsistent b ecause she fabricated the story

. However, at trial, the petitioner testifie d that, on t

he day of the alleged c

rime, he followed the victim

and ente red her house because he believed

that she was in need of aid. I n light of his admitted presence at the crime scene,
we cannot sa

y th at t h e impeachment value of the victim’s affidavits would have cha nged the outcome o f his tria

l. 3 Accordingly , we find that this issue does not merit relief. 4

Whether Petit ioner Was G

iven Pr oper Not ice of the Charges A gainst Him

The petitioner contends that the trial court did not inform him of the charges aga

inst him and that if he had been properly

informed of the charges and their severity , he would not have requested to repres ent himself at his tr ial. We fir st note tha

t the petit ioner wa ived this is sue by

failing to raise5 The represent ation t hat the pet

iti oner had worked as a paralegalwas late r determined t o be false

.

-9- it on direct appeal. See Tenn. Code Ann. § 40-30-206(g). Rega rdless, the petitioner’s allega tion is contrad icted by his own re

marks dur

ing his op ening st

atement.

I know a lot

of y ou may

be wonde

ring wh y is this man up t here is representing himself, why doesn’t he have thisman right over he re repr esent him or why didn’t the Judge appoint him another one. I chose that

my own self. I

feel like this is a very ser

ious charge. I

don’t take this charge very

lightly. On the

street I’m what – I’v e worke d in the ar

ea of pa raleg al. 5 I’m n ot an atto

rney , but I

do know my rights. I know that I

have the right to get uphere and confront witnesses. I have the right to speak t o each one of you. And I have the right to put on my own set of wi tn es se s t o p ro ve th at I’m no t g ui lt y. You ma y fi nd th at to un de rs ta nd wh y a man would not want a

n attorne y to repres ent him. Because, as I said, somebody say s that I raped them. I want to look them dead square in the ey e. I want to be able to ask the questions my own self.

Based on the above statements, the petitioner appears to have fully understood

the seve rity of the charges aga

inst him at the time of his trial and to have made a careful dec ision to represent himself. Moreover, at the petitioner’s motion for new trial hearing , his counsel acknowledged that the petitioner was aware of the charg es against him when hemade the decision to represent himself. Accord ingly , we find

that the p etitioner ’s claim l acks mer it. Constitutionality of Tennessee Rule of Criminal Procedure 44(a)

The pe ti tioner challenges the constitutionality of Tennessee Rule of Criminal Procedure 44(a), arguing that it i s unconstitutional because it does not require that a trial court ad vise a pr o se defendant of the ch argesagain st himor her before accepting that defendant’s request to represent him- or herself. Once more, the petitioner has waived

this contention by failing to ra ise it on direct appeal. See Tenn. Code. Ann. § 40-30-206(g). Impartiality of Petitioner’s Trial Judge

Th e petitioner contends that the trial judge who presided over his trial bec ame prejudiced agains thim and acted as a state agent during his trial. According to t

he petit ioner , the t rial j udge becam e impartial once she learned that the petitioner had sent a juror a letter that the juror foun d threat ening. However, this issue has been waived by the petitioner because he did not raise this issue in his direct appeal. See Tenn. Code Ann. § 40-30-206(g ); Tenn. R. Sup. Ct. 28, § 2(D). Furthermore, the petitioner al leges that th e trial judge’s impartiality is demonstrated by her

erroneous application of an unsupportable enhancement factor dur ing sentencing. However, this Court has previous ly

address e d this allegation and found the application of the enhance ment factor to have been the result of a

proper exercise of discretion. See Goodwin , 1997 Ten n. Crim. App. LEXI S 679,-10-

at **12-15; see also

Tenn. Code Ann. § 40-30-206(h); Tenn. R. Sup. Ct. 28, § 2(E). Ac co rd in gl y, we find that this issue does not merit post-conviction relief.

Effectiveness of Assistance of Counsel

When a petitioner seeks post-convict ion r elief on the basis of ineffective assistance of counsel, the petitione r bears the burden of showing that (a) the services rendered by

trial counsel
were deficient and (b) that the deficient performance was pre judicial. Powers v. State , 942 S.W.2d 551, 558 (Tenn. Crim. App. 199 6). In o rder to demonstrate deficient performanc e, the petitioner must show that the services rendered or the advic e given was below “the rang e of competenc e demanded

of attorneys in cr

iminal cases.” Baxter

v. Rose , 523 S. W. 2d 9 30, 936 (Te nn. 197 5). In order to demonst

rate prejudice, the petitione

r must show

that ther e is a re asonable

probabil ity t hat, but fo r counsel’s deficient performance , the result of the proceeding would have been diffe rent. “Beca use a peti ti oner must establish both prongs of the test to prevail on a claim of ineffective assistance of counsel, failure to prove either deficient performance or resulting prejudice provides
a sufficient basis to deny

relief on the claim.” Henley v. State , 960 S.W.2d 572, 580 (Tenn. 1997). “Moreover, on appeal, the findings of fact made by the trial court are conclus ive and will not be disturbed unless the

evidenc e contained in the record prepond erates agains tthem.” Adkins v. St ate , 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). “The burden is on the petitioner to show that the evidence preponderated ag ainst those findings.” Id.

On claims of ineffective assistance of counsel, the petitioner is not entitled to the benefit of hindsight. Adkins , 911 S.W.2d at 347. This Court may not second-g uess a reasonably

based trial st ra te gy, and we cannot

grant relief based on a sound, but unsucce ssful, tactical decision made during the course of

the proceedings. Id. However, such deference to the tactical decisions of couns e l applies only if counsel makes those decisions after adequate prepara tion for the ca se. Cooper v. State , 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). (1) Alleged Conspiracy

Between the Assistant District Attorney and Petitioner’s Counsel

The petitioner claims that his cou nsel ineffec tively repres ented him

at trial b y c onspiring

with the assistant district attorney to ensure his conviction

. The petitioner contends that his attorney ’s bias is demonstrated by his corr espondence with the assistant district attorney and his volunteering to tes tify at hi s pos t-con victi on hea ring.

The petitioner’s complaints ar e r egarding the Febr uary 27, 1992, letter

from his former counsel for new trial and

po st -c on vi ct io n a dv is or y co un se l t o t he as si st an t d is tr ic t a tt or ne y. Counsel wrote this letter

after he had been discharged as the petitioner’s c ounsel on January 7, 1991. The letter references the petitioner’s complaints about the calculation of his sentence and was appa rently written in anticipation of the post-conviction hearing in which counsel w as to be c alled as a witness because the petitioner

alleged that counsel had rendered ineffective assistance. Thus, counsel was corresponding with the as sist ant di stri ct att orney regard ing hi s test imon y and stra tegy for defending against the petitioner’s allegation that counsel ha d rendered ineffective assistance

.-11-

A s counsel was not representing the petitioner at the time that he wrote to t he assistan t districtattorne

y, h e was ab le to revea

l recen t stateme nts made to

him by the petiti oner bec ause thos e statemen ts were not made in the context of the attorney /client relationship. Se e C ode Prof. Resp. R. 8 DR-4-101(A) (ex plaining th at “secrets” are cer

tain information that an attorney gains during the course o f the atto

rney -cli ent rela

tionship); cf. Code Prof. Resp. R. 8 EC 4-6 (stating that an attorney should preserve the confidences and sec rets of client s gained d uring the attorney /client relationship after the termination of that relationship). Ad di ti on al ly, counsel did not act unet hically by revea ling confidences or secrets g ained during the attor

ney /client r elationsh ip if those confidences were nece ssary to formula

te his def ense agains tthe petitioner’s accusation that counsel provided ineffective representation. See Code Prof. Resp. R. 8 DR-4-101(C)(4) (allowing attorney s to reveal “[c]onfidences or secrets nece ssary to . .

. defend the lawyer

. . . against an accusation of wrongful conduct”). After r eviewing the content of the letter at issue, we find that the letter discussed only matters r elevant to the petitioner’s claim that he received ineffective assistance of counsel at

the sentencing phase of his trial. Accordingly, we find that the post-conviction court correctly determined that c ounsel did not violate his ethical ob li ga ti on s w he n h e c or re sp on de d w it h t he as si st an t d is tr ic t a tt or ne y.

(2) Effectiveness of Counsel Representing Petitioner at Re-Sentencing and the Post-Conviction Hearing

The petitioner makes similar compl aints regar ding the effec tiveness of his original postconviction counsel and counsel on direct appeal, as well as his counselat the re-sentencing hear ing and on appeal of the new sentence. He c laims that both attorneys failed to: (a) inves tigate the peti tioner’s alibi and

challen ge the s ufficie

ncy of the ev

idence b ased on h

is alibi defense; (

b ) investig ate the factual and le gal cla ims i n the a ffida vits suppo rting h is arr est wa rrant s and c halle nge t he sufficie

ncy of the evidence s upporting his convictions on the

basis of th

e contradiction s containedwithin thos e affid avits; (c ) investigate the pre-sentence r eport; (d) contest the state’s notice of enhan ced punis hment; an d (e) ra ise the iss ue of er

roneous j ury

instructi ons.
The petitione

r’s firs t claim tha

t both attor

ney s e rroneous ly failed to investiga te his alibi defen se and challen ge the s ufficie ncy of the evidence s upporting his conviction on tha

t ground is meritles s because

the petiti oner hims elf

failed to present an alibi defense at trial. I n fact, he admitted to bein g pr

esen t at the crime sc ene a

t the t ime of the crime . Acc ordingly , he c anno t now c ritic ize his attor neys for fa ilin g to in vesti gate a po tenti al ali bi and chall enge the sufficiency of the evidence on the basis of an alibi defense theory that the petitioner refuted at trial. Regarding the petiti oner’s c laim that h is attorne ys e r roneously failed to investig ate the inconsistencies in the af

fidavits supportin g his ar

rest warran ts, appea ling his c onviction

on the bas is tho se inconsistencies would not have warranted relief because, as discussed supra , those inconsistencies would

not have changed the outcome of the tria l. See Strickland v. Washington , 466 U.S. 668, 694, 104 S. Ct. 2052, 206 8, 80 L. E d. 2d 674 ( 1984). Th

us, we ca nnot say that his attorneys’ f

ailure to raise this issue on appeal constituted deficient performanc e.-12-

Moreover, the crux of the petitioner’s complaint regarding his attorney s’ failure to proper ly investig ate the pre-senten ce repo rt is similar t o his compl aint that h

is attorne ys d id not prop erly investig ate inconsistencies among various statements made by the vi ctim : He co mplai ns th at page two of his pres entence

report c ontains a

descrip tion of the

crime tha

t was cop ied from o ne of th e affida vits that we have discussed supra

. For the same reasons outlined above, the petitioner has not demonstrateddeficient performance based upon his at

torney s’ failur

e to investigate this discrepancy or raise it as a ba sis for a s ufficie ncy appeal. The petitione

r also co mplains tha

t his attor ney s d ef iciently repres ented him

by f ailing to in vestiga te potential discrepancies in the petitioner’s employ ment, military, and educa

tional re cords

. The petitione

r questio ned both

of his atto rney s, counsel who represented him on post-conviction and counsel who repr

esented him at re- sentenc ing, ab out the inc onsistenc ies between th e vi ctim’s statemen ts in the pre-sent ence report and her testimony at trial and their failure to challenge the sufficie ncy of the evidence o n that bas is. Both attorney s responded that they ha d notappealed the sufficiency

of the evidence on this basis because they felt that it would not have been a meritorious issue. The petitioner then went onto ask only one attor ney , his counsel w

ho repre sented him on his original post-con

viction pe tition and o n his dela

ye d direct appeal, if he had investigated several other statemen ts in th e prese ntenc e repor t, nam ely facts r egardin g h is educational le vel, his military record, and his employment issue. Counsel responded that he ha d discussed the pr e-sente

nce rep ort with the petitioner and that the petitioner had testified re garding several of the se subject areas. The petitioner has failed to prove how his counsel deficiently represented him by

failing to further verify the facts set forth in the presentence repor t. He does not allege what would have been discovered had counsel done further investigation nor how the petitioner wa s prejudiced by this omission. Becau se the petiti oner hasfailed to prove hisallegation by

clear and convincing evidence, we find that this is sue lack s merit.

The petitioner further complains that both of his attorney s wer e defic ient for fail ing to chall enge the state’s notice of enhancement, claiming tha t the notice was “nothing more t han an empty notice.” While the petitioner’s complaint is quite vague, after reviewing the record and the written notice of

enhancement, we believe that he is complaining tha tthe notic e is deficient bec ause it fails to in

form the pe titioner t

hat the sta

te will see

k to have h

im classif ied as an especia lly aggravated off

ender if convicted. The petitioner was originally convicted in 1989, the ye ar of the passa ge of the 1989 Sentencing Reform Ac t. See Tenn. Code Ann. §§ 40-35-101 to 504 (1997). Ac co rd in gl y, the trial court tha t sentenced the petitioner was required to determine his sente nce under boththe 1982 Sentencing Act and the 1989 Sentencing A ct and then sentence the defendant under the act th at would requi re him to serve the least amount of time. See State v. Pearson , 858 S.W.2d 879, 884 (Tenn. 1993).

The structure of the 1982 Act categorizes defenda nts into two sentencing ranges, Rang e I and Range II

. See Tenn. Cod

e Ann. §§ 4 0-35-101 to 109 (Supp. 1986). Range I c onsisted of “standard offenders,” Tenn. Cod

e Ann. § 40 -35-105 ( Supp. 1986) , and Rang e II consist ed of “persistent offende rs” and “especially

aggravated off

enders,” Tenn. Code Ann. §§ 40-35-106, -107 (Supp. 1986). The 1989 A

ct is compr

ised of f our sente ncing r anges , Range I, “ standard offenders,” Tenn. Code Ann. § 40-35-105 (1997), Range I I, “m ultip le offenders,” Tenn. Code Ann. § 40-35-106-13-

(19 97), Range II

I, “persistent offende

rs,” Tenn. Code Ann. § 40-35-107 (1997), and R ang e IV , “career offende rs,” Ten n. Code An

n. § 40-35 -108 (199 7). Additi onally , the 1989 Act does not use the term “especially

aggravated off

ender.”

When the state

filed its n otice of

intent to seek enhanced punishment in November of 1989, it used a form that

reflec ted the 19 82 Act’s t erminolog

y, but altered it

to reflect its notice of intent to see k t o cl ass ify t he p eti ti one r as a Ra nge II multiple of

fender under the new 1989 A

ct. The trial court sentenc ed the pe

titioner without dete

rmining the petiti o ner’s potential sentence unde r both ac ts, and thus this courtremanded the instant case for re-sentencing. See Goodwin , 909 S.W.2d at 45-46. On remand, the trial court sentenced the petitioner under the 1982 Act as a Range I I offender a

fter finding him

to be an especially

aggravated off

ender. See Goodwin , 1997 Tenn. Cri m. App . LEX IS 679, at *16. When reviewing the new sentence, this Court determined that the trial court had failed to properl y c onsider t

he petitio ner’s po tential se ntence u nder both acts and that the p etitioner should have been sentenced

under the 1989 Act because he was subje ct to a les ser sent encing range for his second-degree

burglary conviction under the 1989 Act: Under the 1 982 Act he fa ced 9-15 ye ars, while his range was 6-10 year s under the 1989 Act. Id. However, because the petitioner’s 9-y ear sentence for this conviction was within the 1989 Act’s range, and beca use the petitioner’s sentence would have been

enhanced by

several applicable enhancement fa ctors under the 1989 Act

that were notfigured into his sentence under the 1982 Act, this Court determined that

the err or was ult imately harmless. Id.

Ac co rd in gl y, although the petitioner was not properly notified of the state’s intent to classify him as an especially

aggravated

offende r under t he 1982 Act, we do not believe that proper notice would have affected the senten ce rec eived. Whi le the pe titioner w as sente

nced as a n especi ally aggravated

offender under the 1982 Act, he should have been sentenced as a multiple offender under the 1989 Act. The notice of intent to seek enha

ncement indicate d that the

prosecu tor was pr operly seeking to classif

y the petitioner as a m

ult iple of fender. Furthermore, as mentioned supra , the petitioner would hav e rece

ived a simi lar sente

nce if se ntenced under the 1989 Act. Because proper
n otice essentia

lly w ould not ha

ve affected the

sentenc ing hea

ring, w e find tha

t the petitioner’ s counsel did not render ineffective assistance. See Strickland , 466 U.S. at 694.

Fi na ll y, the petiti oner com plains tha t one atto rney , the atto

rney who repr esented him on his original post-conviction petition and on his delayed direct appeal, erroneously failed to challenge the jury instructions. However, those instructions havenot been filed as part of our record for review. The petitioner requested

the instru ctions, but allegedly never received them. As discussed supra , the trial court was not

require d to comply

with this re

quest bec ause his r

equest f ailed to st ate what he hoped to prove by

reviewing the instructions. See Givens , 702 S.W.2d at 580. We cannot determine the merits of this claim without reviewing the instructions. Therefore, we find th at this issue does not merit relief.

Conclusion-14-

For the foregoing reasons, we find th at none of the petitioner’s allegations merit relief. Accordingly , the judgment of the post-conviction court is AFFI RMED.

___________________________________ JERRY L. SMITH, JUDGE