# FILED
September 19, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

AT NA SHVILLE AUGUST 1997 SESSION
ROSS JONES, ) ) Appellant, ) C.C.A. No. 01C01-96 0 4-CR-0015 5 ) vs. ) Davidson C ounty ) STATE OF TENNESS EE, ) Honorable Ann Lacy Johns, Judge ) Appellee. ) (Post-Conv iction) )

FOR TH E APPEL LANT: FOR THE APPELLEE: JACK E. SEAMA N JOHN KNOX WALK UP Attorney at Law Attorney Gen eral & Repor ter The Tower 611 Commerce St., Ste. 2704 LISA A. NAYLO R Nashvil le, TN 37203 Assistant Att orney Gener al Criminal J ustice Div ision 450 James Roberts on Parkway Nashvil le, TN 37243-0493 VICTOR S. JOH NSON III Distric t Attorney General ROGER D. MOORE Assistant

DistrictAttorney G eneral W ashington Square 222 Second Ave. North, Ste. 500 Nashvil le, TN 37201-1649
OPINION FILE D: ____________________
AF FIRMED -

RULE 20 CURWOOD WITT JUDGE2 OPINION The petitioner, Ross Jones, appea ls t he D avidson Co unty Cri minal Court's dis miss al o f hispeti tion for p ost- conv ict ion rel ief. The petitioner is currently servinga sen tenc e of 15 ye ars in th e Tennessee Departm ent of Correction for a convicti on of aggravated burg lary. In this appeal, he presents tw o issues for our revie w: (1) whether

he was de nied the effect iv e ass ist anceof counsel, a nd (2) whether the sentencing statute und er which he was sentenced is unconstitutional. Followi ng a review

of the record, we affirm the judgment of the lower cour t pursuant to Rule 20 of the r ules of this cour t.

The petitione r was conv icted follow ing a jur y trial in the Dav idson County Criminal Court. His conviction was affirm ed by this court on Februar y 8, 1995, and the supreme court denied rev iew. State v. Ro ss Jones , No. 01C01-940 5- CR-00175 (Tenn. Crim

. App., Nashv ille, Feb. 8, 1995), perm app. denied concur ring in re sults on ly

(Tenn. 1995). The pet itioner filed his post-conv iction petit ion on September

25, 199 5. Coun sel was appointed, the peti tion was a mended and a hearing was held at which the petitioner and his trial counsel testifie d. The low er court denied relief, finding thepetitioner fail ed to carry the burden of proof asto the inef fec tive assistance of counsel claims and that the appell ate courts had previously rejected analogous cha llenges to the constituti onality of the sentencing statute. The petitioner then perfected his appeal to this cour t.
Having filed his post-convict ion petition after M ay 10, 1995, the eff ecti ve date o f the new Post C onviction Procedure Act, the petitioner has the burden of proving his allegatio ns of ineffective assi stance of counsel by clear and convin cing evidence. See Tenn. C ode Ann. § 40-3 0-210(f) (Sup p. 1996) . Th e petitioner

testified on his

own beh alf as to som e of his claims, and he elected to presentno evidence whatsoever on oth er claims. The state presented the testimony of the petition er's trial counsel. The testimony of the petitioner and trial counsel was contradictory on key points. The trial court found pet it ioner's trial1 The trial cour t incorrec

tly rel ied on the "preponder ance of the eviden ce" standard of proof req uired under the previous Post Convi ction Procedur e Act. This misplaced reliance is of n o consequence, however, because the old standard is more favorable to the petitioner than the current "clear and convinci ng" standard. 3 counsel cred ible and r ejec ted t he co ntra ry test imon y g iven by the petitioner. As such, the c ourt

fo und t he pe tit ione r fai led to c arr y th e bur

den of pro of. 1 The evidence does not preponder ate against t he lower court's judg ment in this regard. Butler v. State , 789 S.W.2d 898, 900 (Tenn. 1990).

Next, the pet itione r, who was sentenced as a persistent off ender, argues he i s entitled to a minimum sentence because the Sentencing Reform Act of 1989 violates the separation of powers provisi on of Artic le II, Sectio n 2 of the Tennessee Constitution by setting release eligibility and giving the tria l court the authority t o require service of a definite percenta ge of a sentence prior to parole eligi bilit y. As the l owe r court cor rectly found, the challeng ed portion of the Sentencing Reform Act of 1989 does not violate separation of powers. See, e. g. , William Lee Tollett v . State , No. 01C01-960 5-CR-00180, slip op. at 3-4 (Tenn. Crim

. App., Nashville, Apr. 24, 1997); Frank Bell v. Rick y Bell, Warden , No. 01C01-9602- CR-00058, sli p o p. at 1 (Tenn. Cr im. App., Nashv ille, Jan. 3 0, 1997), perm. app. denied (Tenn. 1997); cf., e .g. , Jackie Lee Childs v . State , No. 01C01-9604-CR00164, slip op. at 3 -4 (Tenn. Cri m. App., Nashv ille, Apr. 2 4, 1997) (Sentenci ng Reform Act of1982); Charles Ma ssengill v. State , No. 01C01-9605-CR-00191, slip op. at 3-5 (Tenn. Crim. App., Nashville, May 16, 1997) (Sente ncing Reform Act of 1982).

The court below commi tt ed no error of l aw requ iring reversal. The judgment is affirme d pursuant to Rule 20, Court of Criminal Appeals Rules.4 _______________________________ CURWOOD W ITT, JUDGE

CONCUR:

_______________________________ JOE G. RILEY

JR., JUD GE

_______________________________ __________ WALKER, SPECIAL JUDGE NOTE: NEED JUDGE WALKER'S FULL NA ME