### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE Ma y 11, 200 5 S es sio n

KEN DR ICK F . L OVE v. S TAT E OF TEN NES SEE

Direc t Appeal fromthe Circ uit Court for Giles County

No. 11297 Stella Hargrove , Judge

No. M2004- 01591-CCA -R3-P C - F iled Jul y 20, 2005

A G ile s Co un ty

Jury c on vic te d th e Pe tit ion e r, Ke nd ri c k F

. L ov e , of mul tip le fe lon y

c oc a ine of

fe ns e s, and the tria l court i mposed an e ffe ctive sente nce of twenty -eig ht y ear s. On direc t appea l, this C ourt

a ff ir me d th e Pe tit ion e r’ s c on vict io ns and se nte nc e s. Th e Pe tit ion e r f ile d a pe tit ion fo r p os tco n v i ct i o n re l i ef
, co n t en d i n g t h at h e w as d en i ed ef fe ct i v e a s s i s t ance of c ounsel. Fo l l o wi n g a h ea ri n g, the post-conviction court dismi ssed the petition. After thoroug hly revie wing the re cord a nd the

app lic able la w, we a ff

ir m th e jud g me nt o f the po st- c on vic tio n c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

R OB E R T W. W EDEMEYER , J
., delivere d the opinion of the court, in which N OR MA M C G EE O G LE , J
., and A L AN E. G L EN N , J ., joined.

Stanley K. Pierchoski, L awr ence burg , Tenne ssee, f or the a ppellant, Kendrick F. L ove.

Pa ul G. Sum me rs , At torne y Ge ne ra l a nd Re po rt e r; John H. B le ds oe , As sis ta nt At torne yGen e ra l; Mik e B ott oms , D ist

ri c t A tto rn e y

Ge ne ra l; a nd Pa tr ic k S. B utl e r, As sis ta nt D ist ri c t A tto rn e y

Ge ne ra l, for the a ppellee, State of

Tenne ssee.

OP IN ION

I. F acts

I n 2000, a Giles County

Gra nd J ury

indicted the Petitioner on fo u r co u n t s of delivery of

coca ine and f

our counts of sa le of c ocaine
, all Class B felonies. A j ury convicted the Petitioner of one count of

fac ilitation of the sale of c ocaine , one count of fac ilitation of the delivery of coc aine, three counts of the sa le of cocaine, and three counts of delivery of cocaine. The trial court merg ed the four dr

ug -re lated delivery

offe nses into the four drug -re lated sale offe nses, and it se ntence d the Petitioner to te n y ear s for the fac ilitation of the sale of cocaine and to e ighte en y ear s for e ach c ount of the sa le of

c oc a ine . T he tr ia l c ou rt

or de re d th e thr e e e ig hte e n- y e ar s e nte nc e s to ru n c on c ur re ntl y with eac h other, but conse cutively to the sentenc e for

the fa cilitation of the sale of coca ine-2-

conviction, for a n eff

ective se ntence of twenty -eig ht y ear s. On direc t appea l, this C ourt aff irmed the Petitioner’s convictions and se ntence

. State v. Kendrick F. L ove, No. M2002-00126- CCA-R3-CD, 2003 WL 358258, at *1 (Tenn. Crim. App., at Nashville, Feb. 18, 2003), perm. app. de nied (Tenn. 2003). The Petitioner f

iled a pro se petition for post-conviction re lief on the g rounds that he wa s denied e ffe ctive assistanc e of c ounsel. The trial court appointed counsel for the Petitioner, and the appointed counse l f

iled an amende d petition. In the amende d petition, the Petiti oner a sserted tha t he wa s denied e ffe ctive assistanc e of c ounsel bec ause Counsel fai l ed t o : (1) ade quately prepa re a proper rec ord for his a

ppeal by not including the se vera nce he aring transcript; (2) revie w with the Petitioner four audio tape re cording s that were admitted as evide nce at trial; (3) investig ate the Petit i o n er ’s al i b i defe nse; and (4) notify the Petitioner that the State filed notice for e nhance d punishment.

Th is C ou rt

su mma ri zedthe fa c ts o n d ir e c t app e a l a s f oll ow s:

Th re e of the tr a ns a c tio ns [that are the ba sis fo r the se c on vic tio ns] oc c ur re d in September of

1999, and the fourth occur red in A pril of 2000. The rec ord re flec ts that on September 9, 1999, police officer Irvin Murr, an underc over narcotics ag ent for the Giles County

Sheriff’ s Depa

rtment, arr ang ed a m ee t i ng with Scottie Holt and I mma nu e l H arn e y

to p ur c ha se a n o un c e of

“ c ra c k” c oc a in e. Offic e r M ur r d ro ve to Mr. Harney ’s house, wher e he picked up Mr. Harney and Mr. Holt. M r. Harney
contac ted [the Petit ioner], a nd Offic er Murr drove to a location whe re the y picked up [t he Petitioner]. [ The Petitioner] told O ff i ce r Murr to drive to Pulaski, Tennessee
, wher e he dr opped [t he Petitioner] off to g et the coc aine. [The Petitioner] inst ructe d Offic er Mur

r to circ le the block a nd pick him up ag ain at that same location.

Offic er Mur

r wa s circ ling the block for a second time whe n he saw [t he Petitioner] in another vehicle driving in the oppos ite direc tion. He turned a round and f

ollowed [the Pe tit ion e r] i nto a

pa rking lot . [T he Pe tit ion e r] a pp ro a c he d O ff

ic e r M ur r’ s v e h i c le and hande d Scottie Holt, who was sitting in the p as s eng er se at, a plastic ba g cont a in in g a s o li d b lo c k o f c o c a in e

. M r

. H o lt h a n d e d th e c o c a in e to O f f ic e r Murr. Offic er Mur

r g ave [the Petitioner] $1,200. [ The Petitioner] walked back over t o the other ve hicle and briefly spoke to the driver . He then g ot back into Off icer Murr’s vehicle, and Offic er Mur

r d ro v e him to S keete r’s Place , a bar in Elkton, where he dropped him of

f. Offic er Murr testified that he arg ued over the price of the c ocaine with [ the Petitioner], and [t he P etitioner] told him t hat if he c ontinued to buy cocaine from him and showe d him that he was a reg ular customer, he would lower the price

.

On Se pte mbe r 1 7, 19 99 , O ff ic e r M ur r a g a in m e t wi th M r. Ha

rn e y to p ur c ha se ha lf

an ounce o f “ c r a c k ” c o c a in e

. O f f ic e r M u rr d r o v e to M r

. H ar n e y ' s r e s id e n c e and picked him up. They

wer e driving to Prospect, Tenne ssee, whe n they met [t he Petitioner] drivi ng in the opposite direc tion. They stopped at a ga s station, and [t he Petitioner] got into Offic er Murr’s car and took out a plasti c bag containing sever al rocks o f c o c a in e

. [T h e Pe ti ti o n e r ] o f f e r e d to s e ll th irty r o c k s to O f f ic e r M urr f

or-3-

$300. Offic er Mur

r purc hased the cocaine.

On September

23, 1999, Offic er Mur

r attempted to c ontact [the Petiti oner] by phone, but he was unsuc cessf

ul. He later me t [ the Petitioner] at a marke t in Elkton, Tenne ssee. Of

fice r Murr told [the Petiti oner] that he wanted t o purcha se an ounce of

c oc a ine . O ff

ic e r M ur r dro ve [the Pe tit ion e r] to Pu la sk i, T e nn e sse e a nddr op pe d h im off at the same location where he had dropped him off on September 9, 1999. O ffice r Murr late r picke d up [t he P etitioner], and [ the P etitioner] handed him a plastic bag containing both powder a nd solid forms of cocaine, for which Offic er Murr paid [the Petitioner] $1,200.

On April 26, 2000, Offic er Murr contac ted Tammy Holt and told he r that he wa nted to purcha se an “eig htball” of cocaine. Officer Murr drove to Ms. Holt’s home. When he ar rived, he observe d [t he Petitioner] sit ting in a ve hicle in front of Ms. Holt’s house, smoking marijuana with Ralph Richardson, from whom he ex pecte d to buy the coc aine. [The Petitioner] told Off icer Murr that he was the one with the cocaine and hande d Offic er Mur

r the “ cra ck” c ocaine wra

pped in a piece of pa

per, f or which Offic er Mur

r g ave [the Petitioner] $150.

I d. at *1-2

The followinge v id e n c e w a s p r e s e n te d at the post-convic tion hearing . The Petitioner testified that hi s tria l c ou ns e l, Wi lli a m Mi ke Ha rris (“ Cou ns e l” ), wa s app oin te d to re pr e se nt him a t hi s tria l. Th e Pe tit ion e r t e sti fi e d tha t he wa s sen te nc e d as a Ran g e I I mul tip le of fe nd e r, a ndthat prior

to t ri a l, he did not know the differ ence betwee n a Rang e I and Rang e I I classification. He testified that the d i ff er en ce wa s n o tex p l ai n ed t o h i m , b u th e t h o u gh tt h at h e w as go i n g t o b e s en t en ce d as a R an ge I offe nder, w hich was the rea son that he dec ided to proce ed to t ri al instead of e ntering a plea . He said that he lea

rned on the day

of his trial that he wa s to be sentenc ed as a R ang e I I offe nder. The Petitioner stated that, prior to trial, he was una war e that the State f iled a notice of

enhanc ement for his pu nis hme nt. He e xpla ine d tha t he did no t re c e ive a c op y of su c h noti c e , an d he didno t kn ow if Counsel rec eived notice. The P etitioner t estified that he le arne d of the State’s notice on the day of trial, and Counsel did not explain the eff ect of the notice to him. The Petitioner testified that, prior to trial, the State offe red to re quest a twe nty -y ear sentenc e in exchang e for him pleading g uilty , but he did no t ac c e pt the Sta te ’s of fe r. Th e Pe tit ion e r s ta te d th a t th e fa c t th a t th e Sta te wa s se e kin g to enhanc e his punishment would have “ probably ” af fec ted his decisi o n t o go t o trial bec ause he assumed that, if he we nt to trial, he would not rec eive twe nty y ear s, and, there fore , he would have
take n th e ple a

a g re e me nt.

The Petitione r t est ified that, at trial, the only phy sical evide nce that the State introduced
ag ainst him were a

udio tape re cording s. He said that he did not hear the tapes prior to his trial, and, at trial, he did not hea

r the tapes in the ir entirety . The Petitioner stated tha t Counsel told hi m that the ywo uld lis t e n t o t h e t ap e s b e f o r e tr i a l
, b u t t h e y d i d n o t d o s o u n t i l tr i a l

. H e s a i d t h a t , p r i o r t o trial, he met with Counsel “two or three tim es” at the Gil es County J ail, wher e he w as inca

rce rate d.-4-

He sa id that the tapes c ontained tra nsactions t hat “supposedly ” occ urre d betwee n the Petitioner and Offic er I rvin Murr. The Petitioner testified t hat, prior to trial, he knew that the ta pes existed and that the State was g oing to introduc e them, but he did not hear any portion of the tape s until t he day of the trial. He said that Counsel did not discuss wi t h h i m t he conte nts of the tapes. The Petitioner further testified that Counsel “wa s having a diffic ult tim e” g etting c opies of t he tapes, and he did not know if Counsel eve r listened to the tapes. He said that he “ continued to re quest to hear the tap[e]s,” but Counsel said tha t Counsel was g oing to listen to the tapes. He stated that, had he listene d to the tapes prior

to trial, he would have known that he was a Rang e I I offe nder, a nd he “w ould have more than likely

took a plea.” The Petitioner said that, dur i n g t ri al
, he did not raise the issue of his not hearing the tapes. He ag ree d that the tapes w ere damag ing to his def ense.

Th e Pe tit ion e r t e sti fi e d th a t, p ri or to t ri a l, h e dis c us sed hi s de fe ns e wi th C ou ns e l. H e tol d Counsel that he wante d to maintain his innocenc e and “re spond throug hout the trial,” but Counsel

o n l y d i s cu s sed with him the possibil ity of solicitation, instead of sale , of coc aine. The Petitioner testified that he told Counsel that he had an alibi defe nse that he wa n t ed to raise, a nd he g ave Counsel the two names of his a libi witnesses, L ee Ann Clark and Resa Emmons. He state d that he
g a ve Cou ns e l th e wi tne sse s’ na me s a nda dd re sse s, a ndhe a sk e d Co un se l to inv e sti g a te the se witnesses. He said that he did not know if Counsel inve stigated the witnesses, a nd he did not hear
anything e lse about this issue. He said that the two a libi witnesses were not called a s witnesses at trial, and he stated that one of the witnesses, Clark, wa s prese nt at the post-conviction hea ring . The Petitioner stated that Counsel said that he would “ chec k into” an a l i b i defe nse, but when Counsel dis c us se d h is c a se Cou ns e l on ly me nti on e d “ a

ple a or so lic itatio n. ” He state d th a t, a ft e r h e tol d Cou ns e l th a t he wa nte d to tak e th e pl e a a g re e me nt, Cou ns e l to ld h im that th e y wo uld“ g o w ith solicitation.”

On cr oss-examination, t

h e Pe titioner testified that Counsel did not thi nk that he should testify
at t rial, and he did not testify

. The P etitioner agr eed that Counsel told hi m that it was the Petitioner’s decision whe ther or not to testify

. The Petitioner stated that the judge told him that he had a rig ht
to te stify
, and he waived that rig ht. He testified that one alibi witness, Emmons, is a friend he met in 1995 who lives in Fay etteville, but he did not know her addre ss or telephone number. He stated that sh e mig ht h a ve te sti fi e d th a t sh e wa s with the Pe tit ion e r o n s ome of the date s o f the se of

fe ns e s, bu t he d id n ot r e me mbe r the sp e c if ic date s. Th e Pe tit ion e r t e sti fi e d th a t hi s o the r a lib i w itn e ss, Clark, is a friend that he met at M artin Methodis t College
, and he called her from jail two or three times p e r y e ar

. H e s a id th a t, o n s o me o f th e d a te s in q u e s ti o n , h e w a s w ith Cl ark
, b u t h e d id not

reme mb er t h e specific dates. He stated that Clark mig ht have testified that she was with the Petitioner on “some day s,” but she proba bly would not remembe r specific dates beca use two or three
y e ars ha d p a sse d. Th e Pe tit ion e r s ta te d th a t he tol d Co un se l tha t he wa s with the se wo me n o n s ome of the sp e c if

ic da te s f ro m th e ind ic tme nt, a ndCou ns e l di d n ot c a ll the m to te sti fy a t hi s tria l.

The Petitioner stated that the first time that he le arne d the diffe renc e betwe en Rang e I and Ra ng e I I c la ssi fi c a tio ns wa s w he n he re se arc he d the dif fe re nc e a ft e r h is s e nte nc ing he ari ng a ndwh ile he wa s incarc erated. The Petitioner conce ded that he had previously said that, had known the plea
ag ree ment including be ing se ntence d as a Rang e I I offe nder, he would have taken the plea of fer . He-5-

didno t thi nk that thi s po sit ion wa s in c on sis te nt w ith him ma int a ini ng his inn oc e nc e thr ou g h tria l. Th e Pe tit ion e r t e sti fi e d it

wa s n ot i nc on sis te nt f

or him to c on sid e r a

ple a be c a us e Cou ns e l’ s d e fe ns e

wa s th a t th e Pe tit ion e r’ s v oic e wa s r e c or de d o n th e tape s b ut that he wa s o nly inv olv e d in solicitation.

Th e Pe tit ion e r t e sti fi e d th a t he wa s u na wa re that th e Sta te file d n oti c e to e nh a nc e his punishment, and he stated that Counsel sa id that the paper work wa s not filed proper ly . He a g ree d that the State “sa id something a bout enhanc ement,” but Counsel told him tha t h e wa s a R ange I offe nder, not a R ang e I I offe nder. The P etitioner acknowledg ed that, at t rial, t he judge e x plained that
t h e S t a t e h a d f

i l e d t h e p r o p e r

p ap e r w o rk
, a n d t h e P e t i t i o n e r w o u l d b e c l a s s i f

i e d a s a R a n g e II offe nder. The Petitioner testified that, afte r he le arne d his rang e cla ssification, he did not attempt to take the plea

offe r. On re direc t-examination, the Petit ioner testified tha t he knew the d at es on which the of

fense s that he wa s tried for oc curr ed, but he did not rec all those dates now. He sa id that the a lib i de fe ns e wa s f

or a t le a st t wo or mor e of the of fe ns e s, a nd his c la im of inn oc e nc e wa s fo r a ll of the c harg es. He testified that, prior to trial, he would not have c onsid er ed t h e plea ag ree ment beca use he w as innoce nt.

Counsel testified that he was appointed to repr esent the Petitioner, and he sa id that, during this repre sentation, he visited the Petitioner in ja il f our times. He rec alled that he also had phone

c on ve rs a tio ns wi th the Pe tit ion e r, a ndme t w ith the Pe tit ion e r the da y be fo re or the da y of his tr ia l. Cou ns e l te sti fi e d tha t the ph y sic a l evi de nc e a g a ins t th e Pe tit ion e r i nc lud e d th e a c tua l dr ug s, a ud io tape r ecor dings, w itness testimony , and, possibly , laboratory reports of the drug s. He said that he knew a bout the tape rec o rd i n gs b eca use they wer e provide d to him through discove ry , and he listened to the tape r ecor dings in their e ntirety . Counsel stated that t h e tape rec ording s that were
ente r e d a t tria l w e r e n o t th e s a me ta p e r e c o r d in g s th a t h e h a d o b tain e d th r o u g h d is c overy . He

e xpla ine d th a t the tape re c or din g s tha t we re pr ov ide d to him we re fo ur sta nd ard size c a sse tte tape s, one f o r e a c h o f th e a ll e g e d s a le s

. Co u n s e l t e s ti f ie d th a t, th r o u g h th e p o li c e d e p ar tm e n t d u b b ing
pr oc e ss, the po lic e re c or de d th e c a sse tte tape s a t do ub le sp e e d, and
, th eref or e , h e ha d to us e machinery

to slow down the speed so that h e co u l d u n derstand the tapes, a nd he lost some of the audio quality during this process. He said that, at trial, a micr o-re corde r wa s used to play the tapes fo r the jury , a ndthe tape s w e re no t good qu a lit y . H e be lie ve d th a t th e jury ha d a dif fi c ult tim e understanding the tapes. H e ag ree d that he wa s able to listen to the tapes, but the qua lityof the tape s he listened to wa s differ ent from the qualit y of t he tapes that wer e play ed at tria l. Counsel testified that he did not rec all listening to the tapes with the Petitioner, but he disclosed to the Petitioner that the tapes e x isted. He rec alled that he and the Petitioner discussed that, if the tapes we re introduc ed
at trial, they

would only

supplement the under cover office r’s testimony . He sa id that he believe d that he play ed “a portion of some of the tapes” for the Petitioner, but he was not ce rtain, and he did not

rec all bring ing a

tape r ecor der w ith him t o the jail when he visited the Petiti oner. Counsel testified that he did not r eca ll whe ther the Petitioner a sked to listen to the tapes. He stated that, bec ause the tapes we re in poor qua lity , he discussed w ith the Petiti oner that the State’s ca se could not be based entirely on the tapes beca

use, in his opinion, the tapes wer e not enoug h to convict the Petitioner. He stated that he obje cted to the a dmission of the tapes bec ause the re was an indication that he was not supplied the “full tape s.”-6-

Cou ns e l st a te d th a t he did no t re c a ll wh e the r the Sta te fi le d a sp e c if ic no tic e of

e nh a nc e me nt, but he said that the State filed a notice, on Jul y 16, 2001, under Te nnessee Rules of Evidence 404 and 609 to impeach the Petitioner with prior convictions. He sa id that he filed a motion in l imine
to e xclu de the Pe tit ion e r’ s p ri or c on vic tio ns , a ndhe te sti fi e d tha t he spe c if ic a lly arg ue d tha t th e Sta te was g oing to use the Petitioner’s prior c onvictions without the P etitioner t aking the stand. Counsel testified that the trial c ourt determined that the State’s notice pr ovided construc tive notice of enhanc ement because the S tate had identified t hat t he P etitioner was a R ang e I I multipl e off ender and had listed a ll of the Petitioner’s prior f elony convictions. He said that, theref ore, he was a war e of the po ssi bil ity

that th e Pe tit ion e r w ou ld b e c la ssi fi e d a s a multi ple of fe nd e r, a nd he dis c us se d th is with the Petitioner. He rec alled that he told the Petitioner that this mig ht be gro u n d s fo r a ppeal be c a us e he wo uldarg ue that the no tic e to en ha nc e wa s n ot p ro pe r. Cou ns e l st a te d th a t, t o th e be st of his knowledg e, he an d t h e P etitioner discussed that the Petitioner’ s prior convic tions could be used to enha nce his sente nce if he wa s convicted. Counsel testified that he handled the Petitioner’s
appea l, and he a ddresse d the trial court’s denial of sever ance of t he offenses. He a dmitted that he did n o t p ro v i d e the Court of Crimi nal Appea ls with an adequate re cord to re view the issue of

sever ance of the off

enses.

On cross-e x amination, Counsel te stified that he spent a total of 40.9 hours on this case, whic h included his meeting s with the P etitioner, t he sentencing hearing, and t he motion for new trial. He

sa id tha t he sp e nt a dd iti on a l ti me that w a s n ot i nc lud e d o n h is f e e c la im f orm be c a us e the re is a

lim it on the amount that he c an cha rg e the State. Counsel stated that he re ceive d a notice of the State’s intent to use Tennesse e Rules of Evidenc e 404 and 609, and he discussed this with the Petiti oner. He sa id tha t he dis c us se d w ith the Pe tit ion e r t hat th e Pe tit ion e r h a d a pri or re c or d, a ndthat, i f convicted, the Petitioner could be sentenced in a higher rang e. Counsel testified that the State made

a n o f f e r to s e tt le
, w h ic h w a s f

o u r te e n y e ar s o n a ll o f th e n e w c h ar g e s , to ru n c o n s e c u ti v e to th e s ixy ear prior conviction for which the P etitioner was on probation. He sa id that, to his recollection, the offe r wa s as a Rang e I

standard offe nder. He testified that he convey ed that offe r to the Petitioner, and the Petitioner turne d the offe r down.

Counsel testified that he has ne ver he ard the names L ee A nn Clark or Resa Emmons, a nd he did not reca ll the Petiti oner r equesting that he investigate an alibi de fense

. He sa id that he discussed the dates of

the alleg ed tra nsactions with the Petitioner
, and the Petitioner did not indicate that he ha d a n a lib i of

a ny kind

. Co un se l te sti fi e d th a t, h a d th e Pe tit ion e r i nf orme d Co un se l of

a n a lib i, Cou ns e l w ou ld h a ve inv e sti g a te d a ny a lib i, an d he wo uldha ve su bp oe na e d th os e a lib i w itn e sse s to te sti fy a t th e Pe tit ion e r’ s tria l. C ou ns e l st a te d th a t he pr e pa re d th e Pe tit ion e r’ s ca se to the be st o f h is

ab i l i t y.

On re direc t-examination, Couns el clarified that he arg ued that the notice the State f iled was

no t a no tic e of e nh a nc e me nt b e c a us e it did no t cle arl y so state

. He sa id that, in his re se arc h p ri or to trial, he de termined that the State’ s notice provided c onstructive notice of en h an ce m ent. On recr o s s -e x am i n at i o n , C o u n s el t es t i fi ed t h at h e r ec al l ed a d i s cu s s i o n wi t h t h e P et i t i o n erab o u th i s ra n ge classification and the potential that he would be “ra ng ed.”-7-

B a se d u po n th is e vid e nc e , th e po st- c on vic tio n c ou rt iss ue d a n o rd e r o f d ism iss a l, s ta tin g :

[U] pon the pro se Petition for Post-Conviction Relief, Amende d Petition, t he State’s Response, te s ti mo n y

o f w it n e s s e s , s tate me n ts a n d ar g u me n ts o f c o u n s e l, a n d the

rec ord, fr om all of which the Court finds that Petitioner has failed to car ry his burden of pr oo f a ndis e nti tle d to no re lie f u nd e r h is Pe tit ion a nd Am e nd e d Pe tit ion fo r P os tConviction Relief.

I t is fr om this or de r o f the tr ia l c ou rt that th e Pe tit ion e r n ow app e a ls.

II. Ana lys is

On app e a l, the Pe tit ion e r c on te nd s th a t he sh ou ld b e g rante d pos t- c on vic tio n r e lie f b e c a us e he re ceive d ineffe cti v e a s s istance of counsel at trial because Counsel failed to: (1) adequately prepa re a prope r re cord for his a

ppeal by not inc luding the sever ance hearing tr anscript; (2) revie w with the Petitioner four audio tape re cording s that were admitted as evide nce at trial; (3) investig ate the Petitioner’s alibi defe nse; and (4) notify the P et i t i o n er t hat the State filed notice for e nhance d punishment.

I n order to obtain post-conviction relief
, a petitioner must show that his or her c onviction or
sentenc e is void or voidable be cause of t he abridg ment of a c onstitut ional rig ht. Tenn. Code Ann. § 40-30-103 ( 2003). The pe titioner bear s the burden of proving fac tual alleg ations in the pet i t i on for post-c onviction relief by clea r and c onvincing evidenc e. Te nn. Code A n n

. § 4 0

- 30-110(f ) (2003)

. Upon re view, this court will not re-w eig h or re -eva lu ate th eevidenc e below; a ll questions concerning the cr edibility of witnesses, the weig ht and value to be g iven their testimony , and the f actua l issues raised by the evidence are to be resolved by the t rial j udg e, not the appellate courts. Momon v. S tate, 18 S.W. 3d15 2, 15 6 (T e nn . 199 9) ; He nle y v. Sta te , 9 60 S.W. 2d57 2, 57 8- 79 (T e nn . 1 99 7) . A po stc on vic tio n c ou rt ’s fa c tua l f ind ing s are su bje c t to a

de no vo re vie w b y

thi s Co urt; h ow e ve r, we mus t

acc ord these f

actua l findings a

presumption of cor

rec t n es s , whi ch is overc ome only when a preponde ranc e of the evidenc e is contra ry to the pos t-conviction court’s fac tual finding s. Fields v. State, 40 S.W .3d 450, 456 (Tenn. 2001). A pos t-conviction court’s conclusions of law are subject
t o a p u re l y d e n ovo revie w by this Court, wit h no presumption of cor rec tness. I d. at 457. The Tenne ssee Supre me Court h as held that the issue of ineffe ctive assistanc e of c ounsel is a mix ed question of law a nd fac t and, as such, is subjec t to de novo revie w. State v. B urns, 6 S.W.3d 453, 461 (Tenn. 1999)

.

Th e ri g ht o f a

c ri min a lly

a c c us e d to re pr e se ntatio n is g ua rante e d by

bo th the Sixth Amendment to the United States Constit ution and Article I , section 9, of the T ennesse e Constituti on. I d.; Ba x ter v. Rose, 523 S.W

. 2 d 9 3 0, 936 (Tenn. 1975) . This rig ht to repre sentation includes the rig ht to “rea sonably

eff ective” assistance . Burns, 6 S.W .3d at 461. I n revie wing a cla im of ineffe ctive assistanc e of c ounsel, this Court mus t determine w hether t h e advice g iven or ser vices

re nd e re d b y

the a tto rn e y

are wi thi n th e rang e of

c omp e te nc e de ma nd e d of at torne y s in c ri min a l c a se s.-8-

Ba x ter, 523 S .W.2d at 936. To prevail on a c laim of ineff ective a ssistance of c ounsel, a pe titioner must show that “cou n s el’s re prese ntation fell below a n objective standa rd of r easona

bleness,” Strickland v. Washington, 466 U.S. 668, 688 (1984), and that t h i s p erf ormanc e pre

judiced the defe nse, re sulting in a failure to produce a re liable re sult. I d. at 687; Cooper v. State, 849 S.W.2d 74 4, 74 7 ( Te nn . 1 99 3) . T o s a tis fy the re qu ir e me nt of pr e jud ic e , a pe tit ion e r m us t sh ow a

re a so na ble
pr ob abil ity

that, b ut f

or c ou ns e l’ s u nr e a so nable e rr or , th e fa c t f ind e r w ou ld h a ve ha d r e a so na ble do ub t r e g ard ing the pe tit ion e r’ s g uil t. Str ic kland , 466 U. S. at 69 5. Th is r e a so na ble pr ob abil ity

mus t be “suf ficient to undermine confide nce in the outc ome.” I d. at 6 9 4 ; s ee also Har ris v. State, 875 S.W .2d 662, 665 (Tenn. 1994)

.

W h en ev al u at i n g an i n ef

fe ct i v e a s s i s t an ce o f c o u n s el cl ai m , t h e r ev i ew i n g cou rt s h o u l d j u d ge the attorne y ’s per formanc e within the context of the case as a w hole, taking into account a ll releva nt

c ir c ums ta nc e s. Stric kla nd
, 46 6 U .S. a t 69 0; S ta te v. Mit c he ll, 75 3 S. W.2 d 1 48 , 1 49 (T e nn . Crim. Ap p

. 1 9 8 8 ). The review ing c ourt must evaluate the questionable c onduct from the attorney ’s
perspe ctive at the time. Strickland, 466 U.S. at 690; Cooper, 849 S.W .2d at 746; Hellar d v. State, 629 S.W .2d 4, 9 (Tenn. 1982). I n doing so, the revie wing court must be hig hly defe rential a nd “should indulge a strong p re s u m p t i on that counsel’s c onduct fa lls withi n the wide r ang e of

rea sonable prof

essional assistance .” B urns, 6 S.W.3d at 462. Counsel should not be deeme d to have been ine ffe ctive mer ely

beca use a diff ere nt proce dure or

strateg y might have produce d a diffe rent result. Will iams v. State, 599 S.W .2d 276, 279-80 (Te nn. Crim. App. 1980). Th e fa c t th a t a pa rt ic ula r s tr a te g y or ta c tic fa ile d or hu rt the de fe ns e do e s n ot, sta nd ing a lon e , e sta bli sh un re a so na

ble
repr esentation. House v. State, 44 S

. W .3d 508, 515 (Tenn. 2001) (citation omitted); Thomas B ra nd on B oo ke r v . St a te , N o. W20 03 -0 09 61 -C CA -R 3- PC, 2 00 4 WL 58 76 44 , at *4 (T e nn . Crim. App., at Jackson, Mar. 24, 2004)
, perm. app. de nied (Tenn. 2004)

.

First, the Petitioner contends that Counsel was ineff ective by failing to include the seve ranc e hearing tr anscript in the appellate rec ord on direc t appea l. The State re sponds that, even if Counsel

wa s ine ff e c tiv e , the Pe tit ion e r is no t e nti tle d to po st- c on vic tio n re lie f be c a us e the e rr or wa s h arm le ss, and, ther efor e, Counsel’s ac tions did not prejudice the Petitioner.

The a ppellant in a criminal case ha s the responsibility to prepare a tra nscript of “ such part of the e vidence or proc eeding s as is nece ssary to convey

a fa ir
, ac cu rate and complete acc ount of what tra nspired, with re spect to those issues that ar e the ba ses of a ppeal.” Tenn. R. App. P. 24(b). I n the Petitioner’s direc t appea l, this C ourt noted that the tra nscript of the Petition er’s sever ance he ari ng wa s n ot i nc lud e d in the app e llat e rec or d. L ov e , 2 00 3 WL 35 82 58 , a t *6 . T his Cou rt , the re fo re , sta te d tha t it c ou ld not “ a de qu a te ly re vie w the tr ia l cou rt ’s de nia l of se ve ranc e fo r an a

bu se of discre tion,” and it conclude d that the i ssue was waived. I d. The post-c onviction court stated that

“ [Cou ns e l] di d a ll tha t hec ou ld d o to pr e se nt his po sit ion on be ha lf of [the ] Pe tit ion e r, a ndhe did all that he could to pre serve the i ssue of sever ance for appeal.” We disag ree

. Counsel admitted that he did not p ro v i d e t h is Court with an adequa te re cord to re view the issue of sever ance of the offe nses. Counsel provided no explanation or st rate g y for his failure to include the transcript of the-9-

sever ance hearing in the a ppellate rec ord. We c onclude that Counsel’s failure to pr ovide this Court with the transcript of the sever ance heari n g o n d irec t appea l falls below an obje ctive standa rd of

rea sonablene ss in the leg al profe ssion and is not withi n the ra ng e of c ompetence demande d of attorney s in criminal case s. Strickland, 466 U.S. at 688; Ba x ter, 523 S.W.2d at 936.

Ha vin g fo un d th a t Co un se l’ s f a ilu re to f ile the se ve ranc e he ari ng tr a ns c ri pt i n th is c a se fe ll below an objective standard of rea sonablene ss in the leg al profe ssion, we now turn to the pre judice
prong of the inef

fec tive assistance of counse l analy sis. The Petitioner contends that Couns el’s perf ormanc e wa s prejudicial a nd that “[i] t is highly probable that a prope r re c ord would have resulted in the appellate court making a finding that the trial court abus ed its discretion and r ever sed the decision.” We disag ree . I n the Petitioner’s direc t appea l, this C ourt opined that “[a]lt houg h we a re not able to conc lude from the r ecor d that the trial court abused its discre tion in refusing to sever the offe nses, we do c onclude that if the denial of se vera nce w as er ror, i t d o es n o t ap pear

to have af fi rm at i v ely

aff ecte d the outcome of

the trial.” L ove, 2003 WL 358258, at *8. This Court conclude d that “[t] he streng th of the State’s c ase a g ainst [ t h e P et i t i o n er] in eac h of the off enses char g ed wa s o v er wh el m i n g; this render s any err or by the trial court harmless.” I d. Be cause we determined the seve ranc e issue on its merits, an d co n cl u d ed that any err or wa s harmless, the Pe tit ion e r c a nn ot, a nddidno t, p ro ve pr e jud ic e

. Th e re su lt on dir e c t app e a l wo uld ha ve be e n e xac tly the same ha d the re cord pe rtaining to the sever ance issue been provided, as we stated in that opinion. The Petitioner fa iled to provide any additional evidenc e at the post-conviction hea ring that showed oth e rw ise . A c c or din g ly , w e c on c lud e that th is i ssu e is w ith ou t me ri t.

Ne xt, th e Pe titio ner conte nd s th a t Co un se l w a s in e ff e c tiv e fo r h is f

a ilu re , p ri or

to t ri a l, t o

re vie w w ith the Pe tit ion e r f ou r a ud iot ape s th a t w e re a dmi tte d a s e vid e nc e at th e P eti tione r’ s tria l. The Petitioner asse rts that, if he ha d hear d the audiotapes prior to trial, he would have acc epted the
p l eaagr ee m en to ff

er ed t o h i mb y

t h e S t at e. T h e p o s t -c o n v i ct i o n co u rt co n cl u d ed t h e f o l l o wi n g:

Petitioner testified that h e k n ew that the State was g oing to use four audiotapes at trial. He te stified that he never heard any of t hem prior to trial, and that he aring them might have had an i m p ac t o n acc eptanc e of a plea ba rg ain. [Couns el] testified that he re ceive d t h e tapes in discovery and re -dubbed the m to attempt to im prove the quality . [C ounsel] st ated that to the best of hi s rec ollection, portions of t he tapes were play ed for Petitioner. [C ounsel] testi fied that the ta pes we re of

very poor quality , and that only a wor d or t wo could be heard from time to ti me. [Couns el] testified that he

was more conce rned w ith th e damag ing te stimonyof the unde rcove r off icer , who was

arme d with very

detailed, s p ecif

ic re ports. There is no indication to the Court that the tape s w e re da ma g ing to th e P etition e r at tria l. T he Cou rt ha s so me dif

fi c ult y when Petitioner say s that hearing the tapes would have af fec ted his decision as to a plea ba rg ain. Petitioner testified at the pos t-conviction hearing that he did not want

a ple a ba rg a in; he we nt to tr ia l to pr ov e his inn oc e nc e

. He state d: “ Pr ior to the tr ia l, I wouldn’t have take a

plea.” This gr ound has no merit.-10-

Th e Pe tit ion e r a dmi tte d tha t he wo uld no t hav e c on sid e re d the ple a a g re e me nt of fe re d by the Sta te beca use he w as innoce nt. Furthe r, the tape s were no t t h e o n l yevidenc e that the State pr oduced
ag ainst t h e P et i t i oner. A t trial, Offic er Mur r testified a

bout the drug transac tions invol ving the Pe tit ion e r. Ac c or din g ly
, the po st- c on vic tio n c ou rt a c c re dit e d the te sti mon y of Cou ns e l a t th e po stconviction hea

ring and foun d t h at the Petitioner was a war e of the audiotapes a nd other e vidence

a g a ins t hi m. B a se d o n th is i nf or ma tio n, the Pe tit io ner mad e a n in fo rm e d d e c isi on , b a se d o n h is

c la im o f inn oc e nc e , to pr oc e e d to tr ia l. We c on c lud e that th e e vid e nc e do e s n ot p re po nd e rate a g a ins t the post-conviction court’ s fi n d i n gs , and we conclude that the Petitioner has fa iled to prove that Counsel’s perf

ormanc e with re g ard to the four audiotapes f ell below the leve l of rea sonably eff ective

a ssi sta nc e . T his iss ue is w ith ou t me ri t.

Th e Pe tit ion e r n e xt as se rt s th a t Co un se l w a s in e ff e c tiv e be c a us e Cou ns e l f

a ile d to inv e sti g a te an alibi def

ense. Spec ifically , the Pet i t i o n er contends that he informed Counsel of two a libi witnesses, a n d Co u n s e l d idn o t i n v e s ti g a te e ith e r o f th e s e w it n e s s e s

. T h e p o s t- c o n v ic ti o n c o u rt

s t at ed t h e f

o l l o wi n g:

The Court does not find the testimony of t he P etitioner credible when he say s that he
g ave the names of L e[e] Ann Cl ark a nd R[ esa] Emmon s t o h i s at torney as alibi witnesses pri o r t o trial. He c omplains that [ Counsel] failed to c ontact or que stion either w itness, a nd failed to inve stigate his alibi defense . [C ounsel] testi fied that he had never hear d of either of these potential witnesses and had no rec o l l ec t i o n of Petitioner ever

even r aising an alibi de fense

. The Court be lieves [C ounsel] whe n he
say s that he would have fully investigated any alibi witness sugg ested by Petitioner. Petitioner testified that while he c ould n o t re m em b er the specific dates unde r the ind ic tme nt, he fe lt tha t on e of the fe ma le s, bo th o f whom were his frie nd s, wo uld have, or could have , been w ith him

. He conceded that ne ither fe male conta cted [Cou ns e l] prior

to t ri a l. T his g ro un d h a s n o me ri t.

I n order for a petitioner to establish prejudice from his at t o rn ey ’s failure to locate a witness, the petitioner m ust have this witness testify at the post-convic tion hearing . Roy L . Sherrod v. State, No. 02C01-9806-CR-00164, 1999 WL 450237, at *7 (Te nn. Crim. App., at J ackson, June 30, 1999), no perm. app. filed ; se e a lso B la c k v. Stat e , 794 S.W. 2d 75 2, 75 7- 58 (T e nn . Crim . App . 1 99 0) . “ I t is elementa ry that neither a trial judg e nor a n appellate court c an spec ulate or g uess on the question of whether further investigation would have revea led a witness or what that witness’ testimony might have be en if int ro d u ce d b y d efe nse counse l.” B lack, 794 S.W.2d at 757. At the post-conviction he ari ng , th e tw o p os sib le wi tne sse s tha t the Pe tit ion e r cl a ims wo uld ha ve pr ov ide d him w ith a n a lib i, for one or more of the dates in question, did not testify . The Petitioner did not know the addr ess or te l e p h o n e n u m b e r

o f o n e o f t h e w i t n e s s e s , E m m o n s

. C l ar k
, w h o m a y

h a v e b e e n a tt h e p os tconviction hea

ring , did not testify , and she w as n o t s u b p o en ae d to testify . The Petitioner did not
prese nt the testimony of t hese witnesses during the pos t-conviction hearing
, and, therefor e, we are-11-

unable to assume their testimony would have supported an alibi de fense

. See id. The Petitioner ha s failed to establish that Counsel’s perf ormanc e fell below the level of re asonably eff ective a ssistance. Th is i ssu e is w ith ou t me ri t.

Finally , the Petitioner contends that Counsel was ineff ective be cause he fa iled to notify the Petitioner that the State filed adequate notice to enhanc e punishment. The State c ontends that the Petitioner has fa iled to show that Counsel w as defic ient in his perf ormanc e or that, if Counsel had
proce eded dif

fer ently , there would have been a differ ent re sult. The post-conviction court concluded
t h e f o l l o wi n g:

The Court believes that Petitioner is questioning the notice of r ang e of punishment rathe r than a

notice of enhanc ed punishment. Petitioner testified that he lea rned f rom his [ C] ounsel on the day

of trial t h at t he State wa s seeking to establish that he was
rang e two. He testified t hat hi s attorney assure d him that the State’s notice wa s not proper ly filed and tha t he was, inde ed, ra ng e one. Petitioner testified that he turne d down a p l ea b arga in of twenty y ear s, and we nt to trial to prove his innocenc e. He stated that the maximum he beli ev ed he could be sente nced to wa s twelve y ear s

c on se c uti ve to a

pr ior se ntenc e of si x y e ars , f

or a tot a l se nte nc e of

e ig hte e n y e ars

. The Court notes that Petitioner wa s indicted on eig ht counts of sale/de livery of

coca ine, all Class B. At sentenc ing, Petiti oner was facing two counts of fa cilitation of the sale/delivery

of coc aine, Class C; and six counts of sale/delivery of coc aine, Class B, all as a

rang e two, multiple offende r. [Counsel] testified that he thoug ht the notice of rang ing was improperly filed, even thoug h rang e two wa s clea rly chec ked

o n th e St a te ’ s f

o rm a n d e v e n th o u g h th e p r io r c o n v ic ti o n s o f Pe ti tione r we re specific ally

set out. [C ouns el ] t estified that he disc ussed ra ng es with Petitioner, advised him that he could be sentenc ed to a hig her r ang e and ta lked about ra ng ing a s

a g r o u n d f

o r ap p e a l. [C o u n s e l] c a n d id ly a d mi tt e d to th e Co u r t th a t h e h a d to later

co n ce d e t h at t h e n o t i ce o f t h e S t at e w as at a m i n i m u m , co n s tru ct i v e no t i ce as t o ra n ge two. [C ounsel] testi fied that Petitioner did not want a plea barg ain. The Court finds that [C ounsel] dis cussed the possibility of ra ng ing w ith Petitioner prior to t rial, and
t h a t P e t i t i o n e r t u r n e d d o w n a p l e a b ar g a i n a n d p r o c e e d e d t o tr i a l t o p r o v e his inn oc e nc e . T his g ro un d h a s n o me ri t.

W e c o n cl u d e t h at t h e e v i d en ce d o es n o tp re p o n d er at e a gai n s tt h e p o s t -c o n v i ct i o n co u rt ’s fi n d i n g. The Petitioner testified that he wa s innocent, and he reje cted the ple a ag ree ment beca use he w as not involved in these off

enses. Counsel discussed w ith the Petiti oner, prior to trial, the possibilit y of the Petitioner “being rang ed” be cause of the Petitioner’s prio r co n victions. W e conc lude that the Pe tit ion e r h a s f

a iled to p ro ve that Co un se l’ s p e rf orma nc e fe ll b e low the sta nd ardof re a so na bly eff ective a ssistance. This issue is without merit.-12- III. Conclusi on

I n acc ordance with the for eg oing a uthorities and re asoning , we a ffirm the judg ment of the
po st- c on vic tio n c ou rt

.

___________________________________ ROBERT W. WEDEMEYER, J UDGE