IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

October 18, 2011 Session

JOSEPH S. LUCAS, JR. v. STATE OF TENNESSEE

Appeal from the Circuit Court for Williamson County

No. CR-024729 Timothy L. Easter, Judge

No. M2011-00316-CCA-R3-PC - Filed May 9, 2012

The Petitioner, Joseph S. Lucas, Jr., appeals the Williamson County Circuit Court’s denial

of post-conviction relief from his guilty plea to rape of a child and resulting twenty-five year

sentence. On appeal, he contends that (1) his guilty plea was not voluntarily and knowingly

entered, (2) trial counsel rendered ineffective assistance by failing to preserve a suppression

issue for appeal, failing to address waiver of the Petitioner’s ex post facto rights during

sentencing, and failing to prepare witnesses for the sentencing hearing, and (3) appellate

counsel rendered ineffective assistance by failing to include transcripts of the suppression

hearing and the guilty plea hearing in the record on direct appeal, failing to request a

rehearing, and failing to argue that the Petitioner’s sentence constituted cruel and unusual

punishment in violation of the Eighth Amendment. We affirm the judgment of the trial

court.

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

JOSEPH M. TIPTON, P.J., delivered the opinion of the Court, in which JOHN EVERETT

WILLIAMS and JEFFREY S. BIVINS, JJ., joined.

Ernest W. Williams, Franklin, Tennessee, for the appellant, Joseph S. Lucas, Jr.

Robert E. Cooper,Jr., Attorney General and Reporter;Jeffrey D. Zentner, Assistant Attorney

General; Kim Helper, District Attorney General; and Mary K. White, Assistant District

Attorney General, for the appellee, State of Tennessee.
OPINION

The facts of this case were recited by this court in the direct appeal:

A Williamson County grand jury returned a three-count

indictment charging the defendant with two counts of rape of a

child and one count of aggravated sexual battery. The

indictment alleged that each of the offenses had occurred

between May 2005 and September 2005 against the defendant’s

granddaughter (“the victim”), a child less than thirteen years of

age. The State later filed a Bill of Particulars, which stated that

the offenses had occurred during “the summer of 2005.”

Following his indictment and arrest, the defendant made a

detailed statement to police detectives. The defendant admitted

that, while he and the victim were “playing doctor,” he had

touched the victim’s vaginal area, that he had forced her to

perform fellatio on him, and that he had ejaculated in his hand.

When asked when the incident had occurred, the defendant

replied “[t]he last part of the summer” of 2005. During the same

interview, the defendant also admitted sexually molesting

another minor granddaughter, as well as his three daughters.

State v. Joseph S. Lucas, Jr., No. M2007-01411-CCA-R3-CD, Williamson County, slip op.

at 2 (Tenn. Crim. App. Sept. 26, 2008), perm. app. denied (Tenn. Mar. 16, 2009).

At the guilty plea hearing, the Petitioner affirmed that he understood he had the right

to a trial at which the State would carry the burden of proof, to be represented by an attorney

at all stages of the proceedings, to confront his accusers, to choose whether to testify at a

trial, and to an appeal in the event he were convicted. He said he understood that he gave up

those rights by pleading guilty and that the conviction could be used to enhance the sentence

of any future conviction. He said that he went over his rights with trial counsel and that he

did not have any questions about his rights.

The Petitioner testified that he understood that he was pleading guilty to rape of a

child, an offense for which probation could not be granted. He said he understood that the

plea agreement contained no provision regarding the sentence, that the range of punishment

would be from fifteen to twenty-five years, and that he would be required to serve 100% of

his sentence. Trial counsel told the trial court, “the mitigating sentence starts at 13.5 years.”

The trial court again asked the Petitioner if he understood the range of punishment, and he

-2-
said he did. He said he understood that he could be sentenced to twenty-five years at 100%

and that he would be able to appeal the sentence imposed.

The Petitioner testified that he understood the elements of rape of a child. He said he

went over documents titled “Waiver of Trial by Jury” and “Request for Acceptance of Plea

of Guilty” with trial counsel and signed the documents. He said that he knew what he was

doing and that he was not under the influence of anything that could impair his judgment.

When asked if the trial court should have any concern that the Petitioner would later allege

that he did not know what he was doing when he entered his guilty plea, the Petitioner

responded, “No, Sir.” When asked if the court should have any concern that the Petitioner

would later allege that he “had a weak or a lousy or bad attorney in this matter,” the

Petitioner responded, “No, Sir, I think she’s done a pretty good job.” He stated that he

wanted to plead guilty, that he was not forced to enter into the plea agreement or promised

anything in exchange for his plea, and that he entered into his plea knowingly and

voluntarily. He agreed he was pleading guilty to rape of a child because he was guilty of the

offense.

At the post-conviction hearing, the Petitioner testified that he was seventy years old

when he entered his guilty plea and that he had no previous experience with the criminal

justice system. He agreed that in exchange for his plea, the State dismissed one count of rape

of a child and one count of aggravated sexual battery. He said that he met with trial counsel

five or six times and that they met for thirty to forty-five minutes each time. He said they

discussed the possibility of a mitigated sentence at the first meeting. He said she informed

him that the standard range for the sentence was fifteen to twenty-five years but that he could

possibly be sentenced to as little as thirteen and one-half years as a mitigated offender. He

said that based on his discussions with counsel, his understanding was that “it looked like I

would have no trouble getting 13 and [one-]half years.” He said counsel never discussed the

possibility of waiving his ex post facto rights during sentencing. He said that on the day he

entered his plea, he discussed his plea agreement with counsel for fifteen to thirty minutes.

He agreed the plea agreement made no mention of his being sentenced as a mitigated

offender.

The Petitioner identified two emails sent to him by trial counsel and they were

introduced into evidence. In the first email, dated February 13, 2007, counsel wrote:

. . . By having a sentencing hearing, the judge could possibly

consider you as a mitigated offender and the beginning sentence

could be 13.5 years. You also could appeal any sentence the

judge renders. Having said that, I doubt seriously that Judge

Easter would sentence you to only 13.5 years. In fact, at a

-3-
sentencing hearing, he more likely would sentence you to more

than 20 years . . .

In the second email, dated February 19, 2007, counsel wrote:

As your lawyer, I have to forewarn you of the danger of going

to trial. We are unable to present any type of defense since your

confession will be admissible. You will be convicted of all

three counts. Additionally, the State could indict you for more

charges against your other granddaughter . . . . The sentencing

range is 13 years (mitigated) to 25 years. You could possibly

get less than 20 years. And you would be able to appeal the

sentence should it be more than that . . . .

The Petitioner testified that he understood mitigation to mean that he “would be

considered somebody worthy of having some amount of time taken off because of the good

that I had done for society.” He agreed that before sentencing, he gave statements to the

police in which he admitted committing offenses against his daughters and his other

granddaughter but said he still believed he would receive a mitigated sentence because he

“felt that a person’s life is his whole life, not just the bad parts.” He did not remember the

term “mitigation” being mentioned during his sentencing hearing. He agreed he received the

maximum possible sentence.

On cross-examination, the Petitioner agreed that he pled guilty because he thought he

would be sentenced to thirteen and one-half years at most. He agreed that he met with trial

counsel numerous times and that she told him he would likely be convicted of all charges at

a trial. He acknowledged counsel told him that the State could also seek additional charges

based on incidents with his other granddaughter. He agreed that two charges were dismissed

pursuant to the plea agreement and that the signed plea agreement stated, “I fully understand

the nature of my actions here today, and that my actions are voluntary and not the result of

force, threats or promises of any nature.”

The Petitioner acknowledged that trial counsel mailed him a copy of the plea

agreement a week before the guilty plea hearing and that he had plenty of time to review the

agreement and ask counsel questions about it. The agreement stated that all sentencing

issues would be determined by the trial court, but it did not state that the Petitioner would be

sentenced to thirteen and one-half years. He acknowledged that although counsel told him

he could “possibly” be sentenced as a mitigated offender, she also said that she seriously

doubted he would be sentenced to thirteen and one-half years and that he would most likely

be sentenced to twenty years or more. He agreed the judge told him at the guilty plea hearing

that all sentencing issues would be determined by the court and that the range of punishment

-4-
would be from fifteen to twenty-five years. He was not told that thirteen and one-half years

would be the maximum sentence. He said he did not tell the court that he believed he would

receive a mitigated sentence because he was “beside” himself at the hearing. He agreed he

told the court that he understood the rights he waived pursuant to the plea agreement and that

he entered the plea voluntarily. He acknowledged that counsel met with his wife and

arranged for witnesses to testify at his sentencing hearing.

The Petitioner testified that he graduated from high school, briefly attended Tulane

University before joining the military, and attended the Capitol Radio Engineering Institute

after leaving the military. He said that he worked on anti-ballistic missiles and anti-aircraft

missiles at the White Sands Missile Range and that he “did design work for the radar

system.” He agreed that he also worked for BellSouth for many years and that after he

retired, he taught senior citizens about computers.

The Petitioner acknowledged that he confessed to offenses with his granddaughters

and daughters when he spoke with the police after his arrest. He agreed that trial counsel told

him it was unlikely he would prevail on a motion to suppress the statement and that counsel

unsuccessfully attempted to suppress the statement.

On redirect examination, the Petitioner testified that he had not heard the term

“mitigation” before trial counsel mentioned it. He agreed counsel informed the trial court

at the guilty plea hearing that a mitigated sentence would begin at thirteen and one-half years.

Trial counsel testified that she discussed mitigation with the Petitioner before his

guilty plea hearing. She said that she was aware of the Petitioner’s history of molesting

children before they discussed a mitigated sentence and that, “While I did not give [the

Petitioner] any hope that he would get 13.5 years, I at least wanted to preserve that issue . .

. .” She said that although she told the Petitioner she did not think he would receive a

mitigated sentence, “that doesn’t mean that you don’t try.” She said she introduced exhibits

at the sentencing hearing to demonstrate the Petitioner’s community involvement but did not

remember if she argued that his sentence should be mitigated.

Trial counsel testified that she did not recall discussing with the Petitioner the

possibility of going to trial in order to preserve the issue of suppressing his statement to the

police. She said the Petitioner did not want a trial because he did not want his granddaughter

to have to testify. She said that because the evidence of the offense date was vague, she

considered waiving ex post facto rights, but decided against waiver as a matter of trial

strategy. She said she did not think she discussed waiver of ex post facto rights with the

Petitioner because it was a legal issue and because the Petitioner told the police that he

thought his offense took place in the last part of the summer in 2005, which would be after

the June 7, 2005 effective date of the amendments to the Sentencing Act that rendered

-5-
enhancement and mitigation factors advisory. She agreed that the Petitioner did not waive

his ex post facto rights during sentencing and that the trial court treated the sentencing factors

as advisory.

Trial counsel testified that she spoke with Dr. William Bell before the sentencing

hearing but agreed that at the sentencing hearing, Dr. Bell said the Petitioner told him about

incidents involving the Petitioner’s granddaughters but not about incidents with the

Petitioner’s daughters. She did not remember if she told Dr. Bell of the Petitioner’s history

with his daughters and granddaughters. She agreed that at the sentencing hearing, Al

Clemens testified that the Petitioner did not tell him of the Petitioner’s legal problems.

Counsel did not remember if she spoke with Mr. Clemens before the hearing, but said her

practice was always to speak with witnesses before they testified. She agreed Francis

Mazzaferro testified that she was unaware that the Petitioner admitted molesting his

daughters and his other granddaughter. Counsel agreed that it appeared Ms. Mazzaferro was

not informed of the Petitioner’s criminal history. She agreed Leon Hart testified that he was

unaware that the Petitioner admitted molesting his daughters. Counsel said that she did not

remember what she said to each of these witnesses before they testified but that she spoke

with each of them before they testified. She agreed she knew the Petitioner had no previous

criminal convictions but did not know if he had any previous involvement with the criminal

justice system.

On cross-examination, trial counsel testified that she was licensed to practice law in

Tennessee in 1997, that she had been in private practice for four years when she represented

the Petitioner, and that she worked as an assistant district attorney for six years before

beginning her private practice. She agreed she met with the Petitioner numerous times and

discussed his charges and the punishment he faced if convicted at a trial. She agreed she told

the Petitioner that she did not think he would be sentenced to the minimum and that she

thought he would most likely be sentenced to twenty years or more. She agreed the

Petitioner did not express a desire for a trial. She acknowledged that the Petitioner’s plea

agreement was not the first offer presented by the State and that previous offers would have

required him to plead guilty to more than one offense. She agreed the Petitioner could have

received consecutive sentences if he pled guilty to more than one offense. She agreed she

introduced evidence at the sentencing hearing in an attempt to mitigate the Petitioner’s

sentence.

Trial counsel acknowledged that in the Petitioner’s confession to the police, he said

he thought his offenses occurred during the late summer of 2005. She agreed that the

indictment stated the Petitioner’s offenses occurred between May and September 2005 and

that she sought and obtained a bill of particulars in which the State clarified that the offenses

occurred during the summer of 2005 when the victim visited the Petitioner during her

summer break from school.

-6-
Trial counsel testified that she worked with the Petitioner and his wife to have

witnesses appear on his behalf at the sentencing hearing but that she did not have much to

introduce at the hearing other than evidence of his societal contributions and of his lack of

criminal convictions. She said she told the Petitioner’s wife that witnesses would be crossexamined by the State about the nature of the offense to which the Petitioner pled guilty and

that the witnesses should know the Petitioner was convicted of rape of a child and the facts

surrounding the case.

Trial counsel testified that although she filed a motion to suppress the Petitioner’s

confession, she did not think the motion would succeed. She said the State had an “ironclad

confession” because the Petitioner signed a Miranda waiver and did not appear to be under

duress when he confessed. She said that in her opinion, it was not worth going to trial to

preserve the suppression issue for appeal. She said that she considered preserving the issue

as a certified question of law but that the State did not normally agree to certification of such

an issue. On redirect examination, trial counsel agreed that it was not the Petitioner’s wife’s

responsibility to prepare witnesses for the sentencing hearing.

Appellate counsel acknowledged that transcripts of the suppression hearing and the

guilty plea hearing were not included in the direct appeal record. He said he did not consider

raising the issue that the Petitioner’s sentence constituted cruel and unusual punishment in

light of the Petitioner’s age.

On cross-examination, appellate counsel testified that he did not include transcripts

of the suppression hearing and the guilty plea hearing in the direct appeal record because

they “did not bear upon the very discrete issues” that were presented on appeal. He said he

consulted with trial counsel and determined that the transcripts were not necessary to resolve

the sentencing issues raised on appeal.

In denying the petition for post-conviction relief, the trial court found that the

Petitioner pled guilty after meeting with trial counsel numerous times and fully discussing

the possible outcomes of the case. The court found that before pleading guilty, the Petitioner

knew the range of punishment he faced at sentencing and knew of counsel’s belief that he

would be sentenced to more than twenty years. The court found that at the guilty plea

hearing, the Petitioner indicated that his plea was voluntary and that he understood hisrights.

The court found that trial counsel’s testimony was more credible than the Petitioner’s

testimony and that counsel followed the Petitioner’s instructions by negotiating for the best

possible outcome and avoiding a trial at which the Petitioner’s granddaughter would have

been required to testify. The court also found that there was no evidence that the Petitioner

ever insisted on a trial.

-7-
With regard to trial counsel’s failure to address waiver of the Petitioner’s ex post facto

rights before sentencing, the trial court found that trial counsel made the tactical decision not

to waive the rights and that counsel was not ineffective because the evidence supported an

offense date after June 7, 2005. With regard to counsel’s failure to preserve for appeal the

motion to suppress the Petitioner’s confession to the police, the court found that the

Petitioner’s allegations “at best, merely ‘second guess’ the tactical and strategic choices

made by trial counsel” and that the Petitioner failed to present clear and convincing evidence

that counsel was ineffective. With regard to counsel’s failure to prepare witnesses for the

sentencing hearing, the court found that the Petitioner failed to establish prejudice because

the sentencing court was aware that the Petitioner molested more than one child and because

it was “inconsequential” that the witnesses were not aware of the other offenses.

With regard to appellate counsel’s failure to include transcripts of the suppression

hearing and the guilty plea hearing in the record on direct appeal, the trial court found that

the Petitioner failed to establish prejudice because other evidence in the record indicated the

date of the Petitioner’s offense and because the transcript of the sentencing hearing allowed

the Court of Criminal Appeals to know “exactly the basis for the ruling of the trial court”

when the court reviewed the Petitioner’s sentence on appeal. With regard to counsel’sfailure

to argue that the Petitioner’s sentence constituted cruel and unusual punishment, the court

found that the Petitioner failed to present any authority to support his argument. This appeal

followed.

The burden in a post-conviction proceeding is on the petitioner to prove his

allegations of fact by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006);

Dellinger v. State, 279 S.W.3d 282, 294 (Tenn. 2009). On appeal, we are bound by the trial

court’s findings of fact unless we conclude that the evidence in the record preponderates

against those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). Post-conviction

relief may only be given if a conviction or sentence is void or voidable because of a violation

of a constitutional right. T.C.A. § 40-30-103 (2006).

I

The Petitioner contends that his guilty plea was not voluntarily and knowingly

entered because he believed he would receive a sentence of thirteen and one-half years. He

argues that trial counsel should not have informed him that he could be sentenced as a

mitigated offender to thirteen and one-half years because there was “no reason” that the trial

court would consider the mitigated sentence in light of evidence showing that the Petitioner

committed offenses against his daughters and granddaughters. The State contends that trial

counsel properly advised the Petitioner on the range of the possible sentence and that the

Petitioner failed to establish that his plea was not knowingly and voluntarily made. We

-8-
conclude that the Petitioner failed to establish that his plea was not knowingly and

voluntarily made.

When evaluating the knowing and voluntary nature of a guilty plea, the United States

Supreme Court has held that “[t]he standard was and remains whether the plea represents a

voluntary and intelligent choice among the alternative courses of action open to the

defendant.” North Carolina v. Alford, 400 U.S. 25, 31 (1970). The court reviewing the

voluntariness of a guilty plea must look to the totality of the circumstances. See State v.

Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995). The circumstances include

the relative intelligence of the defendant; the degree of his

familiarity with criminal proceedings; whether he was

represented by competent counsel and had the opportunity to

confer with counsel about the options available to him; the

extent of advice from counsel and the court concerning the

charges against him; and the reasons for his decision to plead

guilty, including a desire to avoid a greater penalty that might

result from a jury trial.

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (citing Caudill v. Jago, 747 F.2d

1046, 1052 (6th Cir. 1984)). A plea resulting from ignorance, misunderstanding, coercion,

inducement, or threats is not “voluntary.” Blankenship, 858 S.W.2d at 904.

The record reflects that before the guilty plea hearing, trial counsel provided the

Petitioner with complete information regarding the possible outcomes at the sentencing

hearing. See T.C.A. §§ 40-35-109, -112 (2010). Counsel met with the Petitioner five or six

times and told the Petitioner that although the standard range for the sentence was fifteen to

twenty-five years, he could potentially be sentenced to as little as thirteen and one-half years

as a mitigated offender. Although counsel also told the Petitioner that she doubted he would

be sentenced as a mitigated offender and that she thought he would be sentenced to more

than twenty years, we note that under the facts of this case, it was unrealistic for counsel to

tell the Petitioner that he could potentially be sentenced as a mitigated offender. Such advice

presented the risk of creating false expectations regarding sentencing. Despite this risk, the

Petitioner has failed to establish that his plea was not knowingly and voluntarily entered.

At the guilty plea hearing, the Petitioner affirmed that he understood the rights he

waived pursuant to his guilty plea. He said he understood that the plea agreement contained

no provision regarding the sentence, that the range of punishment would be from fifteen to

twenty-five years, and that he would be required to serve 100% of his sentence. The

Petitioner said that he wanted to plead guilty, that he was not forced to enter into the plea

-9-
agreement or promised anything in exchange for the plea, and that he entered into the plea

knowingly and voluntarily.

Although the Petitioner argues that he thought he would be sentenced to thirteen and

one-half years, he agreed at the post-conviction hearing that the trial court told him at the

guilty plea hearing that all sentencing issues would be determined by the court and that the

range of punishment would be from fifteen to twenty-five years. He also agreed that he was

never told by the trial court that thirteen and one-half years would be the maximum sentence.

Furthermore, he agreed trial counsel told him that she seriously doubted he would be

sentenced to thirteen and one-half years and that he would most likely be sentenced to twenty

years or more. The evidence does not preponderate against the trial court’s findings that the

Petitioner pled guilty after meeting with trial counsel numerous times and that the Petitioner

knew the range of punishment he faced before he entered his guilty plea. The Petitioner is

not entitled to relief.

II

The Petitioner contends that trial counsel rendered ineffective assistance by failing to

preserve a suppression issue for appeal, failing to address waiver of his ex post facto rights

before sentencing, and failing to prepare witnesses for the sentencing hearing. The State

contends that the Petitioner has not established that trial counsel was ineffective or that he

was prejudiced by any claimed deficiencies. We conclude that the Petitioner has not

established that he was prejudiced by counsel’s actions.

As noted above, the burden in a post-conviction proceeding is on the petitioner to

prove the allegations of fact by clear and convincing evidence. T.C.A. § 40-30-110(f);

Dellinger, 279 S.W.3d at 294. Once a petitioner establishes the fact of counsel’s errors, the

trial court must determine whether those errors resulted in the ineffective assistance of

counsel. Dellinger, 279 S.W.3d at 293; see Strickland v. Washington, 466 U.S. 668, 687-88,

694 (1984). Because they relate to mixed questions of law and fact, we review the trial

court’s conclusions as to whether counsel’s performance was deficient and whether that

deficiency was prejudicial under a de novo standard with no presumption of correctness.

Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001).

Under the Sixth Amendment to the United States Constitution, when a claim of

ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that

counsel’s performance was deficient and (2) that the deficiency was prejudicial. Strickland,

466 U.S. at 687; see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). A petitioner will

only prevail on a claim of ineffective assistance of counsel after satisfying both prongs of the

Strickland test. See Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). The performance

-10-
prong requires a petitioner raising a claim of ineffectiveness to show that counsel’s

representation fell below an objective standard of reasonableness or “outside the wide range

of professionally competent assistance.” Strickland, 466 U.S. at 690. The prejudice prong

requires a petitioner to demonstrate that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.

at 694. In the context of a guilty plea, the prejudice prong requires a petitioner to

demonstrate that “there is a reasonable probability that, but for counsel’s errors, he would not

have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S.

52, 59 (1985).

In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that

attorneys should be held to the general standard of whether the services rendered were within

the range of competence demanded of attorneys in criminal cases. Further, the court stated

that the range of competence was to be measured by the duties and criteria set forth in

Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974), and United States v. DeCoster,

487 F.2d 1197, 1202-04 (D.C. Cir. 1973). See Baxter, 523 S.W.2d at 936. Also, in

reviewing counsel’s conduct, a “fair assessment of attorney performance requires that every

effort be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.” Strickland, 466 U.S. at 689. “Thus, the fact that a particular

strategy or tactic failed or even hurt the defense does not, alone, support a claim of

ineffective assistance.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

Deference is made to trial strategy or tactical choices if they are informed ones based upon

adequate preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); see DeCoster, 487

F.2d at 1201.

With regard to trial counsel’s failure to preserve the issue of suppressing the

Petitioner’s confession to the police, the Petitioner argues that trial counsel should have

reserved the issue as a certified question of law or had a trial to preserve the issue because

the motion to suppress “had merit and deserved to be reviewed” on appeal. We disagree.

The record reflects that although trial counsel filed a motion to suppress the Petitioner’s

confession, she did not think the motion would succeed. She said the State had an “ironclad

confession” because the Petitioner signed a Miranda waiver and did not appear to be under

duress when he confessed. Counsel thought the risk of a trial outweighed preserving the

suppression issue for appeal. She said that she considered preserving the issue as a certified

question of law but that the State did not normally agree to certification of such an issue. She

said the Petitioner did not want a trial because he did not want his granddaughter to be

required to testify.

-11-
We note that a certified appeal regarding the admissibility of the confession was not

a proper procedure in this case because it would not have been dispositive of the case. See

Tenn. R. Crim. P. 37(b)(2); State v. Wilkes, 684 S.W.2d 663, 667 (Tenn. Crim. App. 1984)

(“An issue is dispositive when this court must either affirm the judgment or reverse and

dismiss.”). In any event, the Petitioner offers no authority to support his belief that his

confession was subject to suppression or that counsel was ineffective for failing to preserve

the issue for appeal, nor does he allege that he would have gone to trial but for trial counsel’s

failure to preserve the issue. The Petitioner has not established that counsel was deficient for

failing to preserve the suppression issue or that he was prejudiced as a result.

With regard to trial counsel’s failure to address waiver of the Petitioner’s ex post facto

rights before sentencing, the Petitioner contends that counsel was ineffective and that he was

prejudiced because he was sentenced under the current sentencing law, which rendered the

enhancement and mitigating factors advisory and allowed the trial court to sentence him

anywhere in the applicable range. We disagree. On June 7, 2005, the Tennessee General

Assembly amended the Tennessee Criminal Sentencing Reform Act of 1989. See T.C.A. §§

40-35-102(6), -114, -210, -401 (2003 & Supp. 2005); 2005 Tenn. Pub. Acts ch. 353, §§ 1,

5, 6, 8. The amended act provides that the court shall set a sentence within the range, that

the court consider that the minimum sentence should be imposed, and that the length should

be adjusted as appropriate for any enhancement and mitigating factors. T.C.A. §

40-35-210(c). The court “shall consider, but is not bound by” certain “advisory sentencing

guidelines,” which include that the sentence be adjusted, as appropriate, for any enhancement

or mitigating factors shown. T.C.A. § 40-35-210(c)(2).

This act shall apply to sentencing for criminal offenses

committed on or after [June 7, 2005]. Offenses committed prior

thereto shall be governed by prior law, which shall apply in all

respects. However, for defendants who are sentenced after the

effective date of this act for offenses committed on or after July

1, 1982, the defendant may elect to be sentenced under the

provisions of this act by executing a waiver of such defendant’s

ex post facto protections.

T.C.A. § 40-35-210, Compiler’s Notes.

As noted by this court on direct appeal, “the defendant himself, in his interview with

police detectives, stated that the crime occurred during ‘[t]he last part of the summer.’”

Joseph S. Lucas, Jr., slip op. at 5. The court concluded that this was sufficient proof to find

that the crime occurred after the June 7, 2005 effective date of the amendments. Id. The

evidence does not preponderate against the trial court’s finding that the evidence supported

an offense date after June 7, 2005. Because the evidence supported an offense date after June

-12-
7, 2005, the amended sentencing act applied, and the waiver of ex post facto rights was not

an option. See T.C.A. § 40-35-210, Compiler’s Notes.

Furthermore, had the offense occurred before June 7, 2005, the waiver of ex post facto

rights would have resulted in the Petitioner being sentenced under the amended sentencing

act, not the previous act as the Petitioner argues. See id. Therefore, a waiver of the

Petitioner’s ex post facto rights would have resulted in the trial court applying the same

sentencing law that was applied at the sentencing hearing. The Petitioner has not established

that counsel was deficient for failing to address waiver of the Petitioner’s ex post facto rights

or that he was prejudiced as a result.

With regard to trial counsel’s failure to inform the witnesses at the sentencing hearing

of the complete charges brought against the Petitioner and of his admission that he

committed offenses against his daughters and granddaughters, counsel testified that she

sought to present evidence at the sentencing hearing of the Petitioner’s societal contributions

and of his lack of criminal convictions. Her normal practice was always to speak with

witnesses before they testified, but the record reflects that defense witnesses did not know

that in addition to the offense against his granddaughter for which the Petitioner pled guilty,

the Petitioner also admitted to offenses against his daughters and his other granddaughter.

The Petitioner contends that he was prejudiced because the witnesses’ testimony on

behalf of the Petitioner was rendered “totally ineffective” when they were “caught by

surprise” with information that the Petitioner molested his daughters in addition to his

granddaughters. The record reflects that the trial court was already aware of the Petitioner’s

criminal history and that although the defense witnesses did not have a complete

understanding of the Petitioner’s criminal offenses, they were prepared to testify about the

Petitioner’s societal contributions, his positive employment history, and his efforts to change

his behavior through therapy and group meetings. The Petitioner has not indicated why the

witnesses’ testimony would lose all of its impact due to their lack of knowledge regarding

the Petitioner’s criminal history. The Petitioner has likewise not stated how the outcome of

the sentencing hearing would have been different had the witnesses known of his history.

The Petitioner has not established that a reasonable probability exists that, but for counsel’s

failure to inform the witnesses of the complete charges brought against the Petitioner and of

his admission that he committed offenses against his daughters and granddaughters, the result

of the proceeding would have been different. The Petitioner is not entitled to relief.

III

The Petitioner contends that appellate counsel rendered ineffective assistance by

failing to include transcripts of the suppression hearing and the guilty plea hearing in the

-13-
record on direct appeal, failing to request a rehearing, and failing to argue that the

Petitioner’s sentence constituted cruel and unusual punishment in violation of the Eighth

Amendment to the United States Constitution. The State contends that the Petitioner failed

to establish that counsel was ineffective or that he was prejudiced by any claimed deficiency.

We conclude that the Petitioner failed to establish that he was prejudiced by counsel’s

actions.

With regard to appellate counsel’s failure to include transcripts of the suppression

hearing and the guilty plea hearing in the record on direct appeal, a defendant is required to

prepare an appellate record that conveys a fair, accurate, and complete account of what

transpired with respect to those issues that are the bases of the appeal. T.R.A.P. 24(b); State

v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). On direct appeal, this court noted that the

Petitioner “failed to include transcripts of the suppression and guilty plea hearings, which the

court specifically stated it would rely on in imposing sentence. It is the defendant’s burden

to ensure that an adequate record is before this court.” Joseph S. Lucas, Jr., slip op. at 5.

Because appellate counsel did not include these transcripts in the appellate record, he failed

to prepare an adequate record.

The Petitioner argues that he was prejudiced by this deficiency because neither the

trial court nor this court could have concluded that the offense occurred after June 7, 2005,

if they had been able to review these transcripts. The Petitioner points to three instances of

testimony during the suppression hearing that he alleges would have rendered this court

unable to conclude that the offense occurred after June 7, 2005. In the first, Detective David

Beard was asked if he asked the Petitioner if the offenses took place on one day. Detective

Beard responded, “It was all in one day, plus I remember asking him, Mr. Lucas, how many

times he had kept . . . [the victim] over a period of time.” In the second, Detective Tameka

Sanders testified that during her interview with the Petitioner, he said the offenses occurred

“in the summer of 2005, summer break, and he said the last part of the summer he thought.”

In the third instance, Detective Sanders testified that the victim “talked about several

occasions . . . she said it was during summer break from her second grade going into third

grade.”

The trial court and this court could have concluded that the offense occurred after

June 7, 2005, despite being able to review these transcripts. None of the statements cited by

the Petitioner indicated that the offense occurred before June 7, 2005. Additionally, the

second statement bolsters the time frame mentioned by the Petitioner during his interview

with the police, when he said that the offense occurred over the victim’s summer break,

during the “last part of the summer I think . . . I’ve never been good with dates.” On direct

appeal, this court concluded that the time frame mentioned by the Petitioner during his

interview was sufficient proof to allow the trial court to find that the crime occurred after the

-14-
June 7, 2005 effective date of the sentencing act amendments. Joseph S. Lucas, Jr., slip op.

at 5. The Petitioner has not established that a reasonable probability exists that, but for

counsel’s failure to include transcripts of the suppression hearing and the guilty plea hearing

in the record on direct appeal, the result of the appeal would have been different.

With regard to appellate counsel’s failing to request a rehearing, the Petitioner argues

that in determining if the trial court erred by applying the amended sentencing act, this court

relied on the Petitioner’s statement that the offense occurred during the last part of the

summer, but did not acknowledge that the Petitioner followed the statement with “I think .

. . I’ve never been good with dates.” He argues that counsel was ineffective because he

failed to request a rehearing to present the statement in its entirety to this court. We disagree.

The record on direct appeal contained a transcript of the Petitioner’s interview with the

police. The Petitioner’s complete statement regarding the time of his offense was already

before this court, and a motion for a rehearing in which the statement could be repeated

would have added nothing to the court’s ability to resolve his appeal. The Petitioner has not

established that counsel was ineffective for failing to request a rehearing or that there is a

reasonable probability that the result of the appeal would have been different had counsel

requested the rehearing.

With regard to appellate counsel’s failing to argue that the Petitioner’s sentence

constituted cruel and unusual punishment in violation of the Eighth Amendment, the

Petitioner concedes that no authority supports his argument that sentencing a seventy-yearold person to twenty-five years incarceration constitutes cruel and unusual punishment. We

agree with the trial court that counsel cannot be considered to have rendered ineffective

assistance by failing to argue an issue that lacked legal authority to support the argument.

The Petitioner has not established that counsel was ineffective for failing to argue that the

Petitioner’s sentence constituted cruel and unusual punishment or that a reasonable

probability exists that the result of the appeal would have been different had counsel

presented the issue on appeal.

In consideration of the foregoing and the record as a whole, we affirm the judgment

of the trial court.

____________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

-15-