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

Briefs J anuary

7, 2003

FRED DELAN EY v. STATE OF T ENNESSEE

Direct Appeal from the Criminal Court for Shelby County No. P-24320 Bernie Weinman, Judge

No. W2002-00496-CCA-R3-PC - F iled May 15, 2003

The petitioner appeals the denial of his petition for post-conviction relief . He cla ims ineffective assistance of counsel and that his sentence is excessive. Because this Court previously determined that the petitioner’s sentence was not excessive on direct appeal, we dismiss this issue. We conclude that the evidence does not preponderate agains t the findings of th e trial c ourt and a

ffirm thepostconviction court’s denial of post-conviction relief.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OHN E VERE TT W IL LI AMS , J., delivered the opinion of the court, in which J OE G. R ILEY and A LAN E. G LENN , JJ., joined.

Te d I. Jo ne s, Me mp hi s, Te nn es se e, fo r t he ap pe ll an t, Fr ed De la ne y.

Paul G. Summers, Attorney Gene ral and Reporter; Braden H. Boucek, Assistant Attorney Genera l; Wi lliam L. Gib

bons, Distr

ict Attorn ey Genera l; and John Ca

mpbell, As sistant Dis trict Attorne y General, for the appellee, State of Te nnessee.

OPINION

Or ig in al ly, the petitioner, Fred Delaney , was convicted by a jury of a

ttempt ed firs t degree murder, a Class A felony, a nd unlawful possession of a weapon, a Class E felony . The trial cour t sentenced the petitioner to forty y

ears for the attempted first degree murder conviction and four ye ars for the unlawful possession of a firearm conviction, to be served consecutively f

or an ef fe ct iv e f or tyfour-ye ar sentence. See State v. Fred Delaney , No. 02C01-9804-CR-00105, 1999 Tenn. Crim. App. LEXI S 555 (Tenn. Crim. App. June 3, 1999, at Jackson ), perm. to appeal denied (Tenn. Nov. 22, 1999). On Novemb er 17, 20 00, the pe titioner f iled a pe tition for post -conviction relief, alleging ineffective assistance of counsel and that his sentenc e was excessive.-2-

The testimony at the post-conviction hea ring consisted of the petitioner’s trial counsel and the petitioner.

The petitioner’s trial counsel testified that she is assigned to the capital defense team for the Public Defender’s Office. She said the petitioner was charged

with attempted first degree murder in connection with the shooting of a police officer

and convicted felon in possession of a handgun. She said she m

et the pe titioner a pproximate

ly th ree or f our times i n jail and appr

oximately six times in court. She said the petitioner told her that he did not commit the crime and that he was on the
scene, but that he was being chased by the police officer. She said that she had not looked throu gh the discovery f

or the evidenceagainst the petitioner and that an investigator independently looked into the facts of

the crime. She said the T .B.I . conduc ted tests. She did not r ecall wh ether pa raffin
tests were conducted, but did recall there be ing fingerprint

testing. She said that the petitioner had prior convictions, and she had been given notice of e nhancement and impeachment by the State. She said she usually f

iles for a pretria l Morgan hearing, but did not

recall i f she had

one in this case. She said the pe titi oner h ad a mi sdeme anor p osses sion of dru gs, carr ying aweapon, driving on revoked license , and two f

elony possessio ns of drug s.

The petitioner’s trial c ounsel testified that she tried the petitioner’s case and that she communicated the State’s offer of forty y ears to the petitioner. She said the petitioner thought the offer was absurd, and he “didn’t have a whole lot to lose if that wa s all they wer e going to offer him.” She said the petitioner was cooperative with her when they first met. She said

the petitioner had no one for her to interview; howev er, she looked through discovery and canvassed the neighborhood. She said the pe titione r gave her the name of a woman, Barbara Allen, who was interviewed and used at trial.

The petitioner’s trial counsel testified that the office r who wasshot was a

rookie officer and that it seemed his partner, a senior officer, did not follow proced u res when the incident occurred. She said it was her aim to show that “things were n’t quite right on that end of it.” She said the petitioner was positively identified at trial by a police officer. She said the petitioner was convicte d of attempted first degree

murd er and sentenced to forty years on tha

t charge, as well as four y ears on the unlawful possession of a wea pon ch arge. S he sai d the p etit ioner was se ntenc ed as a R ange II offender, butshould not have been sentenced to consecutive sentenc es. She said the petitioner was al wa ys very low key

and was never agg

ressive or abusive. She said the petitioner was arrested after running from polic e becau se he wa s int oxicated a nd was wit

h a gro up of peo

ple of que stionable character. She said there is nothing she w ould have done differently on the petitioner’s case.

On cross-examination, the petitioner’s trial counsel testified that she tried to get a dismissal of the petiti oner’s c ase aft

er the Sta te prese nted its pr oof in demonstrating premeditation. She said there was no impe achme nt of the p etitioner , since he never te stified. Sh

e said thiswas not a premeditated

act because the petitioner was running from the police, but an act whic h did not require
any contemplation. She said that she had an invest igator on this ca se and tha

t a witnes s gave

some favora ble evidence to help the petitioner at trial. She said the witness testified that the petitioner and the officer were wrestling when the shots occurred.-3-

The petitione

r testifie d that he w as not hap py with his trial counsel’ s repre sentation because she did not bring in enough evidence about the shooting and the hospital report. He said he thought the hospital report would show that he did not shoot the officer. He said he remembered the State’s offer as b ein g thirty y

ears, but he declined to accept it in exchange for a guilty

plea. He said he decided to file his petition for post-conviction relief because he did not commit the crime. He also said he did not think the State

would use his prior convictions at trial and that it was unfair to have the clerk f

rom the Cr

imi nal Court Clerk’s Office testify against him. He said he did not testify because his trial c ounsel tol d him that the State would bring up his past re cord and use it ag ainst him. He said that on the night the incident occurred, he was “sta nding in the ya

rd, more likelythe nextdoor neighbor’s yard. So they pulled up like thiscorner way s on the dr

iveway like. (ind icated) So I walked t oward the car. Then I ran back toward the house, and they jumped out of the car an d chased me, and I fell, shot in the air twice, a nd I g ot up and r

an.” He said he did not t

hink the bullets would hit any one bec ause the

office r was ch asing him and because he shot the gun in the air before falling on the g

round. He

said he knew t

hat he would be sen

tenced t o some time

on this inc ident, butdid not think it was wor th forty y ears. He said that when this incident occurred, he was on parole, in possession of a gun, and under the influence of whiskey and beer. He said he wanted the post-conviction court to reduce his sentence.

At the conclusion of

the hearing, the post-conviction court ruled that the petitioner ha d failed
to meet his bu

rden of d emonstra ting ineffectiv e assista

nce of c ounsel an d determ ined that his sentencing issue was previous ly decided on direct appeal. I n its June 26, 2001, written order denying relief, the trial court stated that it found “the advice given and services rendere d by the defe ndant’s counsel was within the range of competency demanded by

an attorney in a

criminal case” and

that the petition er’s tr

ial counsel’s representation of the petitioner at his trial “complied with the requirements set out by the Supreme Court in Baxter v. Rose , 523 S.W.2d 930.”

Analysis

The claim of ineffective assistance of counsel is a mixed question of l aw and fact and is subject to de novo review; however, we review the f indings of the trial court with a presumption of

correc tness unless the evidence preponderates otherwise. Fields v. State , 40 S.W.3d 450, 456-57 (Tenn. 2001) . The j udge’s findi ngs of fact on p ost-conviction hearings are conclusive on a ppeal unless the evidence preponderates otherwise. State v. Burns , S.W.3d 453, 461 (Tenn. 1999). The trial court’s findings of fact are afforded the weight of a jury verdict, and this Court is bound by the trial court’s findings unless the evidence in the record preponderates against those findings. Henley

v. State , 960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State , 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). The cre dibility

of witnes ses and th

e weight and value to be afforded their testimony are questions to be resolved by the post-c onviction court and, on appeal, the burden is on the petitioner
to prove that

the evidence preponderates ag ainst the post-conviction court’s findings. Henley , 960 S.W.2d at 579.-4-

A. Ineffective Assistance of Counsel

The petition er contend s he received ineffective assistance of counsel. Specifically , the petitioner contends that his trial counsel inadequately inve stigated his case and raises, in the instant appeal, all of the

issues ra ised previously

at his post- convicti on hearing, as f ollows: (1) tria l counsel failed to obtain the

medical r

eports of the victim ; (2) trial counsel failed to file a motion in limine to restrict the use of his previous convicti ons at tria

l; (3) trial counsel failed to adequately research the rules of evidence ; (4) trial cou

nsel stipul ated dur

ing tr ial as to the petitioner’s identity and pre vious convictions; and (5) trial counsel failed to have the court mitigate the petitioner’s sentence.

To prevail on a claim of ineffective assistance of counse l, the petitioner bears the burden of proving both that tr

ial couns el’s per

formanc e was deficient a nd th at the d eficiency

prejudiced the petitioner. Goad v. State

, 938 S.W.2d 363, 369 (Tenn. 1996). To establish that trial counsel performed

deficiently, the pe

titioner must show that his counsel’s performance was below the ran ge of competence demanded of attorney s in criminal cases. Baxter v. Rose , 523 S .W .2d 930, 936 (Tenn. 1975). The p eti tioner must also show that his trial counsel’s performance prejudiced the defense, resulting

in a failu re to pro duce a r

eliable result. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct . 20 52, 80 L. Ed. 2d 674 ( 1984); Cooper v. State , 849 S.W.2d 744, 747 (Tenn. 1993).

When evaluating an ineffectiveness of counsel claim, the reviewing court should judge the attorney’s performance within the context of the case as a whole , taking into account all relevant circumst ances. Strickland , 466 U.S. at 690; State v. Mitchell , 753 S.W.2d 1 48, 149 (T enn. Crim. App. 1988). The reviewing court must indulge a strong presumption that the conduct of counsel f alls within the range of reasonable

professional assistance. Strickland , 466 U.S. a t 6 90, 104 S. Ct. at 2066. In reviewing

the claims of the petitioner, this Court must be highly def

erential and

“should ind ulge a stro ng pre sumption tha t counsel ’s conduct falls wit hin the wid

e rang e of rea sonable professional assistance.” Burns , 6 S.W.3d at 462.

The pe tit ioner’s testimony consisted mere ly of bare

allegations, without any further elaboration. The post-conviction court accredited the testimony of the petitioner’s trial counsel and refused to accept that of the petitioner. The post-conviction court found “no me

rit to the defendant’s position that hi s trial attorney did not proper ly investigate a

nd prepare his case.” I

mplicit in the findi ngs of the trial court is that the petitioner’s other remainingissues we re found to be mer itless. The post-conviction court found “no merit to any of the complaints of the petitioner.” We conclude that the evidence does not preponderate ag ainst the findings of the trial court.

B. Sentencing

The petitioner contends that his sentence is excessive. The petitioner has previously raised this argument on direct appeal, and this Court concluded tha t his sentence was no t excessive,-5-

affirming the judgment of the trial court. See Fred Delaney , 19 99 T enn . C rim . Ap p. LE XIS 555, at **15-17.

The petitioner, however, claims that his excessive sentence is a reflection of theineffective assistance of his tria

l counsel . The pet

itioner is entitled t

o relief v ia post-c onviction

appeal t o this Courtfor any

convicti on or sent

e nce based on an abridgment of any constitutional right, whether
state or federal. See Tenn. Code Ann. § 40-30-203. We note that if the petitioner’s claims have been waivedor previously deter mined, or if the facts alleged fail to show that he is entitled to relief, the petition must be dismissed. Tenn. Code Ann. § 40-30-206(f). The post-conviction court found that the petitioner ’s s entencing issue “was fully considered on direct appeal and found to be without merit.” Because this Court previous ly

determined that the petitioner’s sentence was not excessive, we dismiss this issue.

Conclusion

Ac co rd in gl y, the post-conviction court ’s denia l of the po st-convi ction re lief petition is affirmed.

______________________________ JOHN EVE

RETT WIL

LI AMS, JUDGE