### IN THE CO URT OF CR IMINAL APPEALS OF T ENN ESSEE AT JACKSON Ass ig ne d o n B rie fs Aug us t 5 , 20 08

DARRELL J ENNING S v . STATE OF TENNES SEE

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty

No. P -26688 Lee V . Coff ee, Judge

No. W2007-01087-C CA-R 3-P C - F iled October 21, 2009

The petitioner, Dar

rell J enning s, was found g uilty by a Shelby County jury of second deg ree murder and felony murder. The trial court merg ed the convictions, and the petitioner rec eived a life
sentenc e. There afte r, the petitioner filed a petition f or post-conviction relief

, alleg ing that his tria l counsel was ineffe ctive. The post-convi ct i o n co u rt denied the petition, and the petitioner now appea ls. Upon our revie w of the rec ord and the parties’ briefs, we aff irm the judgme nt of the postconviction cour

t.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt is Affi rm ed.

N O R M A M C G E E O G L E , J
., delivere d the opinion of the court, in which T H O M A S T. W O O D A L L and D. K E L L Y T H O M A S , J R ., J J ., joined.

J ames E

. T h o ma s (on appea l) and Autumn Chastain (at trial), Memphis, Tenne ssee, for the appellant, Dar rell Jennings.

Robert E. Cooper, Jr., Attorney Gene ral a

nd Reporter ; Sophia S. L ee, Assistant A ttorney Gene ral; Wil liam L

. Gibbons, District Attorney Gene ral; and Amy Weirich and Kirby May
, Assistant District Attorney s Gene ral, for

the appe llee, State of Te nnessee

.

OP INION

I. F actual Background

On direc t appea l, this court summarized the proof adduc ed at tria l as follows:

I n Aug ust 1998, six teen- y ear -o l d Delmar Mason resided in Memphis with his seventy -one- y ear -old g randf ather , J oe H. Ma son. The proof established that J oe Mason conducte d an unlicence d pawnshop business from his residenc e and routinely acc epted for pawn or p u rc h ase car s, jewelr

y , and clothing, along with other items o f
proper ty

. I n addition, he made cash loans and would cash chec ks. At approximately 12:30 a.m. on Aug ust 24th
, Delmar
, his g randf ather
, his uncle, and his g randf

ather ’s friend had retire d to bed when J ames “Guc ci” Patter son and Ke lvin Hooks arr ived at the r esidenc e with a third-par ty chec k they wanted cashe d. J oe Mason informed Patterson and Hooks that “ the che ck wa sn’t no g ood.” The two men left.

Approxim ately thirty minutes later, Patterson an d Hooks
returne d to the residenc e acc ompanied by the [petit i oner]. The [petit ioner] was car

ry ing “some Tommy Hilfig er clothes and [Hooks]

came with

. . . a leather jacke t.

. . .” Patterson, without say ing a word, “sat on the couch, the oppos ite from [ J o e Mason.]” Delmar Mason asked the [petit ioner] “how much he wanted for the clothes.” At this point, “ Kelvin Hooks pulled his g un out on [Delmar] a nd told [him] to la y down.” Delmar sat on the couch next to his g randf ather

. The [petit ioner] an d H ooks demande d money and the [petit ioner] drew his

wea pon. J oe Mason stood up but was war ned by the [ p et i t i oner], “Don’ t move old man.” Disreg arding the admonition
, J o e Mason responde d that he did not have a ny money and advanc ed toward the [petit ioner], g rabbing the gun away from him

. Gunshots wer e fired and De lmar ra

n to his bedroom. J ames P atterson testified that afte r “Mr. J oe shot the g un,” “that’s when K-mac k [Hooks] done what he done. He pulled his pistol

. . . an d went to shooting Mr. J oe.” The
perpe trators fle d the re sidence

.

When Delmar returne d, he saw his g randf ather stag g ering by the coff ee table. Eventually
, J oe Mason fell to the floor. Mason died

as a result of four g unshot wounds to his chest. Delmar Mason g ave

acc urate descr iptions of the [petit ioner], Hooks, and Patterson. He also ident i fi ed the [petit ioner] as one of the perpe trators from a photogr aphic line- up a fe w hours af ter his g randf

ather ’s murder

.

State v. Dar

rell J enning s, No. W1999-01036-CCA-R3-CD, 2000 WL 1 8 6 3 5 1 5, at **1-2 (Tenn. Crim. App. at J ackson, D ec. 1, 2000) (footnote omitted).

At the conclusion of trial, t h e j ury found the petitioner g uilty of felony murder in the
perpe tration of or attempt to perpe trate a robber y , as char g ed in count two of the indictment, an d second deg ree murder, a lesser- included offe nse of first deg ree preme ditated murder as char g ed in

co u n t o n e o f the indictment. I d. at *1. The trial court merg ed the convictions into a single conviction for felony murder and sentenc ed the appellant to life imprisonment. I d. The petitioner
appea led his felony

murder c onviction, and this court af firmed that c onviction. I d.

-2-Subsequently
, the petitioner filed a petition for post-c onviction r elief and sever al amende d

petitions, alleg ing, among other g rounds, that his trial counsel was ineffe ctive. Specifica lly
, the petitioner complained that counsel met with him only one time prior to trial and did not adequately
prepa re for trial. Additionally
, t h e p et i tioner arg ued that counsel should have pursued a jury instruction reg arding the natura l and probable conseque nces rule as set forth in State v. Howar d, 30 S.W .3d 271 (Tenn. 2000). The petitioner acknow ledg ed that his case was tried befor e the Howar d opinion wa s fi led; howeve r, he arg ued that Howar d “wa s a reaff irmation” of State v. Carson, 950 S.W .2d 951 (Tenn. 1997)

.

At the post-conviction hear ing, trial counsel testified that he repr esente d the petitioner at trial and on appea l. Trial counsel said that since the petitioner’s trial, he had moved his of fice to a new location. After the move, trial counsel could not locate the petitioner’s case file and was unable to

rec all many specific details reg arding the petitioner’s trial. Neve rtheless, trial counsel stated that he
met with the petitioner a sufficie nt number of times to prepa re for trial. He maintained that he would have r equeste d a continuanc e if he had bee n unprepa red f or trial.

Trial counsel stated that he rec eived discovery from the State and that he share d the discovery materia ls with the petitioner. Trial counsel stated that he believed he had interviewe d all individuals rela ted to the case or had at least revie wed the statements of the witnesses who wer e identified in the discovery materia ls. The petitioner’s defe nse at trial was that he was p re s ent at the scene of the offe nse but tha t he did not have a g un and did not know that a robber y would occur

. Trial counsel acknow ledg ed that the State’s proof at trial showed that the petitioner had a g un at the scene and actively participa ted in the robbe ry

.

T r ia l c o u n s e l o p ined that the State’s case was based on the petitioner’s criminal responsibility for the actions of Hooks, the s hooter. Trial counsel stated t h at the defense theory at t rial was that the petitioner was not the shooter, did not know what Hooks was g oing to do, and was not criminally responsible. He rec alled that the trial court instructed the jur y ac cording to the pattern jury instructions that wer e in place at the time of trial. Counsel said that, to the best of his r ecollec tion, during delibera tions the jury asked the trial court if the petitioner could be found g uilty of felony murder if all the eleme nts of robber y had not bee n completed. 1

Counsel said that in 2000, while t he petiti oner’ s direc t appea l was pending , the Tenne ssee Supreme Court rele ased its opinion in Howar d, holding that wh en a defe ndant’s g uilt is based on criminal responsibility for the actions of another
, the trial court must instruct the jury on the natura l

O n d i r e c t a p p e a l
, t h i s c o u r t o b s e r v e d t h a t t h e j u r y a s k e d t h e t r i a l c o u r t 1

“ D o e s c o u n t t w o , h o m i c i d e f i r s t d e g r e e m u r d e r , k i l l i n g i n t h e p e r p e t r a t i o n o f o t h e r

c r i m e s i n c l u d e a t t e m p t e d r o b b e r y t o t h e e x t e n t t h a t e s s e n t i a l e l e m e n t s o f r o b b e r y , s p e c i f i c a l l y n u m b e r f

o u r a n d f i v e , n o t n e c e s s a r i l y b e s a t i s f i e d
, i

. e

. t o o k i n d i c a t e s t h e

r o b b e r y w a s s u c c e s s f

u l r a t h e r t h a n j u s t a t t e m p t e d

. ”

J e n n i n g s , N o

. W 1 9 9 9

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- C D
, 2 0 0 0 W L 1 8 6 3 5 1 5
, a t * 5

.
-3-and proba

ble conse quence s rule. He a cknowledg ed that C arson, which discussed t he natural and 2 probable conseque nces rule, had been rele ased prior to the petitioner’s trial. Howeve r, trial counsel opined that “Howa

rd

. . . used the definitive lang uag e, basica lly
, in my opinion, to do awa y with the fe l o ny murder rule, y ou know, when somebody had a theory of criminal responsibility .” T ri al counsel said he did n o t raise the issue reg arding an instruction on the natura l and probable
conseque nces rule in his appellate brief, but he raised the issue in his application for permission to appea l to the supreme court. When asked if the outcome of the trial would have been differ ent if the trial court had g iven an instruction like that proposed in Howar d, counsel said, “I can’ t use the word probable
, but

. . . let me put it this way , I just kind of think that may be it would have been differ ent.”

The petitioner testified that he had sever al prior convict i o n s fo r fra udulent use of a cre dit

car d, second de g ree burg lary , and attempted a g g rava ted burg lary . Additionally , he ac knowledg ed that he “w as convic ted of a B- felony drug case that was reduce d to criminal attempt fe lony .” The petitioner admitted that he ha d occa sionally used aliase s.

The petitioner testified that trial counsel provided him with discovery materia ls. Howeve r, he asser ted that trial counsel visited him only once while he was in jail and then talked with him on

a court date. The petitioner said that he asked trial counsel to i n t er v iew J aqueline J ackson. He maintained that J ackson would have testified that the petitioner did not own a pistol. The petitioner also wanted trial counsel to call his sister, Marg are t Moore, to testify that the petitioner was working at the time of the of

fense

. The petiti oner maintained that he was at t he scene of the crime to sel l s o me s tolen clothes that he had purcha s ed at t h e p ar k; he was not there to rob the victim. The petitioner said the testimonies of the victim’s g randson and the co-de fenda nt that the petitioner had the g un wer e not true. The petitioner conce ded that trial coun s el “d i d b asica lly what [t he petitioner] and he talked about doing.” The petitioner alleg ed that trial counsel could have done a better job repr esenting the petitioner.

At the conclusion of the post-convicti o n hear ing, the post-conviction court found that the petitioner had failed to establish that his trial counsel was ineffe ctive. The court specific ally found that the petit ioner was not cre dible and that trial co u n s el was credible. The post-conviction court stated that trial coun s el h ad ad eq u ately prepa red for trial. The court noted that at the time of the petitioner’s trial, the trial court was obliga ted to fully and proper ly instruct the jury on the materia l issues reg ardle ss of whether counsel reque sted the instruction. The post-conviction court found that

T h e n a t u r a l a n d p r o b a b l e c o n s e q u e n c e s r u l e 2

e x t e n d s t h e s c o p e o f c r i m i n a l l i a b i l i t y t o t h e t a r g e t c r i m e i n t e n d e d b y a d e f e n d a n t

a s w e l l a s t o o t h e r c r i m e s c o m m i t t e d b y a c o n f e d e r a t e t h a t w e r e t h e n a t u r a l a n d
p r o b a b l e c o n s e q u e n c e s o f t h e c o m m i s s i o n o f t h e o r i g i n a l c r i m e

.

H o w a r d
, 3 0 S

. W

. 3 d a t 2 7 6

.

-4-the trial court had err ed in not g iving an instruction on the natura l and probable conseque nces rule.

Neve rtheless, the post-conviction court deter mined that the err or was harmless. The post-conviction court stated that the defendant in Howar d “did not have a gun, was not prese nt when the shooting took place
, denied that he ever had a gun, denied that he wa s ever involved in the s hooting.” The post-conviction court noted that Howar d conce rned a defe ndant who was convicted of preme ditated first deg ree murder unde r a the ory of cr iminal responsibilit y

. The post-conviction court found the instant case distinguishable from Howar d in that the petitioner was convicted of first deg ree felony murder in the perpe tration of a robber y

. The court stated that in the instant case “the fac ts that wer e

acc redited at trial by the jury wer e that this [petit ioner] enter ed into this victim’s house, that he was actively involved in the robber y

. . . that the

. . . g randson of the victim

. . . saw this [petit ioner] with

a g un, hear d the [petit ioner] make threa ts to the victim.” The court found the instant case analog ous to State v. Richmond, 90 S.W .3d 648, 657 (Tenn. 2002), wher ein our supreme court found harmless

err or in a trial c ourt’s fa ilure to g ive a na tural and pr obable c onsequenc es instruction.

The court observe d that the jury obviously acc redited testimony that the petitioner was an active participa

nt in the murder, to the point of brandishing a g un during the offe nse. There fore
, the court determined that there was not a reasonable probability that the re sult of the trial would have been differ ent had the trial court instructed the jury on the natura l and probable conseque nces rule. On appeal, t he petiti oner arg ues t hat t he post -convic tion court erre d in failing to fi n d that counsel

was ineffe ctive by failing to reque st a jury instruction on the natura l and probable conseque nces rule and by failing to raise on dire ct appe al the trial c ourt’s fa ilure to g ive such a n instruction.

II. Analysi s

To be succe ssful in his claim for post-conviction relief
, the petitioner must prove all fac tual alleg ations contained in his post-conviction petition by clea r and convincing evidenc e. See T enn. Code Ann. § 40-30-110( f) (2006). “‘Clea r and convincing evidenc e means evidenc e in which there is no serious or substantial doubt about the corr ectne ss of the conclusi o n s draw n from the evidenc e.’” State v. Holder, 15 S.W .3d 905, 911 (Tenn. Crim. App. 1999) (quoting Hodg es v. S.C. Toof & Co., 833 S.W .2d 896, 901 n.3 (Tenn. 1992)). I ssues reg arding the cre dibilit y of witnesses, the weig ht and value to be acc orded their testimony
, and the fac tual questions raised by the evidenc e adduc ed at t ri al are to be resolved by the post-conviction court as the trier of fac t. See Henley v. State, 960 S.W .2d 572, 579 (Tenn. 1997). There fore
, we aff ord the post-conviction court’s finding s of fac t the weig ht of a jury verdic t, with such finding s being conclusive on appea l absent a showing that the evidenc e in the re cord pr eponder ates a g ainst those finding s. I d. at 578.

A claim of ineffe ctive assistance of counse l is a mix ed question of law and fa ct. See State

v. Bur ns, 6 S.W .3d 453, 461 (Tenn. 1999). We will revie w the post-conviction court’s finding s of fac t de novo with a presumption that those finding s are corr ect. See Fields v. State, 40 S.W .3d 450, 458 (Tenn. 2001). Howeve r, we will revie w the post-conviction court’s conclusions of law purely de novo. I d.

Whe n a petitioner seeks post-conviction relief on the basis of ineffe ctive assistance of

-5-counsel, “the petitioner bear s the burden of proving both that counsel’s perf ormanc e was defic ient and that the defic iency prejudice d the defe nse.” Goad v. State, 938 S.W .2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984))

. To establish defic ient perf ormanc e, the petitioner must show that counsel’s perf ormanc e was below “the rang e of competenc e demande d of attorney s in criminal cases.” Ba x ter v. Rose, 523 S.W .2d 930, 936 (Tenn. 1975)

. To establish preju d i ce , t h e petitioner must show that “ther e is a rea sonable probability that, but for counsel’s unprofe ssional err ors, the result of the proce eding would have been differ ent. A rea sonable probability is a probability sufficie nt to undermine confide nce in the outcome.” Strickland, 466 U.S. at 694. Moreove r,

[b] eca use a petitioner must establish both prongs of the test,

a failure to prove either defic iency or prejudice provides a sufficie nt basis to deny relief on the ineffe ctive assista n ce claim. I ndeed, a court need not addre ss the components in any particula r order or even addre ss both if the [petit ioner] makes an insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).

I nitially
, we note that the rec ord befor e us ref lects that the petitioner questioned trial counsel using a copy of the jury instructions and that the post-conviction court revie wed the jury instructions; howeve r, th e petitioner failed to include the jury instructions in the rec ord for our revie w. The 3 petitioner car

ries the burden of ensuring that the rec ord on appea l convey s a fair, acc urate , and complete acc ount of what has transpire d with respe ct to those issues that are the bases o f appea l. Tenn. R. App. P. 24(b); see also Thompson v. State

, 958 S.W .2d 156, 172 (Tenn. Crim. App. 1997). Gene rally
, “[i] n the absenc e of an adequate rec ord on appea l, this court must presume that the trial court’s ruling s wer e supported by sufficie nt evidenc e.” State v. Oody
, 823 S.W .2d 554, 559 (Tenn. Crim. App. 1991). Neve rtheless, we will address the pe titioner’s conc erns.

At the time of the petitioner’s trial, our criminal code provided that “[ a] person was

cr i m i nally responsible as a party to an offe nse if the offe nse is committed by the per s o n ’s o wn conduct, by the conduct of another for which the person is criminally responsible, or by both.” Tenn. C o d e Ann. § 39-11-401( a) (1997). Tenne ssee Code Annotated section 39-11-402( 2) (199 7 ) provided that a person is criminally responsible for the actions of another when, “[a]cting with intent
to promote or assist the commission of the offe nse, or to ben ef i t i n t h e p roce eds or results of the offe nse, the person solicits, dire cts, aids, or attempts to a id another person to commit the offe nse.” Specifica lly
, wh en a person is awa re of the intentions of his co-de fenda nt and proce eds to aid or attempt to aid in the endea vor, that person is responsible for all natura l and probable conseque nces of his co-de fenda

nt’s actions during the commission of the crime. See State v. Carson, 950 S.W .2d 951, 956 (Tenn. 1997)

.

A p o r t i o n o f t h e j u r y i n s t r u c t i o n w a s i n c l u d e d i n t h e r e c o r d ; h o w e v e r , t h e p o r t i o n c o n c e r n e d t h e q u e s t i o n 3

t h a t t h e j u r y a s k e d t h e t r i a l c o u r t

.
-6-I n State v. Richmond, 90 S.W .3d 648 (Tenn. 2002), our supreme court revie wed the history

of the na tural and pr obable consequenc es rule which we will briefly summarize as it relates to the instant case. N otably
,

[t ]he natura l and probable conseque nces rule arose as a common law component of criminal responsibility and extends criminal liability to the crime intended by a defend an t , and collateral crimes committed by a co- defe ndant, t hat were the natura l and probable conse quence s of the targ et crime. S ee S t ate v. Carson, 950 S.W .2d 951 (Tenn. 1997). We have noted on sever al occa sions that “cr iminal responsibility is not a separ ate, distinct crime. I t is solely a theory by which the State may prove the defe ndant’s g uilt of the alleg ed offe nse

. . . based upon the conduct o f an o ther person.” State v. L emac ks, 996 S.W .2d 166, 170 (Tenn. 1999)

.
Richmond, 90 S.W .3d at 654. I n the Criminal Sentencing Reform Ac t of 1989, the leg islature codified the common law doctrine of criminal responsibility
, and “the leg islature clearly intended that the natura l and probable conseque nces doctrine survive codifica tion.” I d. at 656 (citing Carson, 950 S.W .2d at 955).

State v. Howar d, 30 S.W .3d 271 (Tenn. 2000), which was rele ased well-a fter the petitioner’s trial, reiter ated “that the purpose of the natura l and probable conseque nces rule is to hold aider s and abettors ‘re sponsible f

or the criminal harms they have natura lly
, probably and fore seea bly put into motion. ’” R ichmond, 90 S.W .3d at 656 (quoting Howar d, 30 S.W .3d at 276). The court in Richmond ex plained that Howa rd cle arly “stands for

the proposition that the natura l and proba ble
conseque nces rule is ‘an essential element that the State must pro v e b ey ond a rea sonable doubt’ when se eking a convic tion based on [a] t heory of criminal responsibility .” R ichmond, 90 S.W .3d
at 657. The court further observe d, “More importantly
, we put forth the test that courts are to apply wh en liability is based upon the natural and probable consequence s rule.” Richmond, 90 S

. W

. 3 d at 656. The c ourt explained that

the State must prove bey o n d a reasonable doubt and the jury must find: (1) “the elements of t he crime or cri m es t h at acc ompanied the targ et crime; (2) the defe ndant was criminally responsible pursuant to Tenne ssee Code Annotated section 39-11-402; and, (3) that the other crimes that wer e committed wer e t h e natura l and probable
conseque nces of

the targ et cr ime.”

I d. (quoting Howar d, 30 S.W .3d at 276).

After Howar d, this court examined whether a trial court was require d to instruct the jury on the natura l and probable conseque nces rule in case s of felony murder. See State v. W i n t er s , 1 37 S.W .3d 641 (Tenn. Cr i m. App. 2003). I n Wint ers, this court explained that “the felony murder

-7-statute

. . . does not r equire that a homicide committed during the cour se of one of the enumer ated

felonies be fore seea

ble.” 137 S.W .3d at 659. I n other words, “‘[w]h en o n e en t er s into a scheme with another to commit one o f the felonies enumer ated in the felony murder statutes, and death
ensues, both defe ndants are responsible for the deat h re g ardle ss of who actua lly committed the murder and whether

the killing wa s specific ally contemplated by

the other.’ ” I d. (quoting State v. Hinton, 42 S.W .3d 113, 119 (Tenn. Crim. App. 2000)). Ba sed upon Wint ers, the petitioner clea rly

was not entitled to an i n s t ru ction on the natura l and probable conseque nces rule in rela tion to the felony mu rd er char g e. I d. Howeve r, the natura l and probable conseque nces rule is applicable in

case s wher e the State seeks a conviction for first-deg ree preme ditated murder based upon a theory of criminal responsibility

. See Howard, 30 S.W .3d at 273. We ag ain not e that the petit ioner was

n o t c o nvicted of first-deg ree preme ditated murder; reg ardle ss, the natura l a n d p r o b a b le c o n s e q

u e n c e s

ru l e i s al so applicable in second deg ree murder case s. See State v. Michelle Tipton, No. E2004- 01278-CCA-R3-CD, 2005 WL 2008178, at *4 (Te nn. Crim. App. at Knoxvi lle, Aug . 22, 2005).

The post-conviction court acc urate ly noted that reg ardle ss of a reque st by counsel, the trial
court was obliga ted to instruct the jury reg arding the law applicable to the fac ts of the case

. See State v. Har

bison, 704 S.W .2d 314, 319 (Tenn. 1986). The post-conviction court found that the trial
court instructed the jury acc ording to the Tenne ssee Pattern J ury I nstructions in place at that time but that the instructions did not include the natura l and probable conseque nces rule. The post-conviction court found tha t the failure to give such instruction was ha rmless err or.

Given the timing of the Howar d opinion in rela tion to the petitioner’s trial and direc t appea l,

we cannot conclude that counsel defic ient for failing to reque st a natura l and probable conseque nces jury instruction reg arding the char g ed offe nse of first deg ree murder. Ob v i o u s l y , as the Howar d opinion was rele ased during the pendenc y of the petitioner’s first tier appellate revie w, counsel could have submitt ed the Howar d opinion to this court as supplemental authority

. Counsel admittedly did
not do so. Howeve r, counsel raised the issue of a natura l and probable conseque nces instruction in his Rule 11 application for permission to appea l. We conclude that, un d er the fac ts of this case , counsel did not act “‘outside the wide rang e of profe ssionally competent assistance .’” Torre y L y onel Fr azier v. State, No. E2007-02518-CCA-R3-PC, 2009 WL 774482, at *5 (Tenn. Crim. App. at Knoxvi lle, Mar. 25, 2009) (quoting S trickland, 466 U.S. at 690), perm. to appea l g rante d, (Tenn., Aug . 17, 2009).

Reg ardle ss, we ag ree with the post-conviction court that t h e fa ilure “did not, bey ond a

rea sonable doubt, aff

ect the outcome of the trial” and that the petitioner was there fore not prejudice d by trial counsel’ s failure to raise the issue of a natura l and proba ble ca use instruction at trial or on direc t appea l. Richmond, 90 S.W .3d at 658; see also Deri ck Ba iley v. State, No. M2004-02434- CCA-R3-PC, 2005 WL 2205901, at *5 (Tenn. Crim. App. at Nashville, Sept. 7, 2005). There fore
, the petitioner fa iled to prove that his trial counse l was ineff ective.

-8-III. Conclusi on

The judg ment of the post-c onviction court is aff irmed.

___________________________________ NORMA McGEE OGL E, J UDGE

-9-