FILED

September 19, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

AUGUST 1997 SESSION

ROSS JONES, )

)

Appellant, ) C.C.A.No. 01C01-9604-CR-00155

)

vs. ) Davidson County

)

STATE OF TENNESSEE, ) Honorable Ann Lacy Johns, Judge

)

Appellee. ) (Post-Conviction)

)

FOR THE APPELLANT: FOR THE APPELLEE:

JACK E. SEAMAN JOHN KNOX WALKUP

Attorney at Law Attorney General & Reporter

The Tower

611 Commerce St., Ste. 2704 LISA A. NAYLOR

Nashville, TN 37203 Assistant Attorney General

Criminal Justice Division

450 James Robertson Parkway

Nashville, TN 37243-0493

VICTOR S. JOHNSON III

District Attorney General

ROGER D. MOORE

Assistant District Attorney General

Washington Square

222 Second Ave. North, Ste. 500

Nashville, TN 37201-1649

OPINION FILED: ____________________

AFFIRMED - RULE 20

CURWOOD WITT 

JUDGE
2

OPINION

The petitioner, Ross Jones, appeals the Davidson County Criminal

Court's dismissal of his petition for post-conviction relief. The petitioner is currently

serving a sentence of 15 years in the Tennessee Department of Correction for a

conviction of aggravated burglary. In this appeal, he presents two issues for our

review: (1) whether he was denied the effective assistance of counsel, and (2)

whether the sentencing statute under which he was sentenced is unconstitutional.

Following a review of the record, we affirm the judgment of the lower court pursuant

to Rule 20 of the rules of this court.

The petitioner was convicted following a jury trial in the Davidson

County Criminal Court. His conviction was affirmed by this court on February 8,

1995, and the supreme court denied review. State v. Ross Jones, No. 01C01-9405-

CR-00175 (Tenn. Crim. App., Nashville, Feb. 8, 1995), perm app. denied concurring

in results only (Tenn. 1995). The petitioner filed his post-conviction petition on

September 25, 1995. Counsel was appointed, the petition was amended and a

hearing was held at which the petitioner and his trial counsel testified. The lower

court denied relief, finding the petitioner failed to carry the burden of proof as to the

ineffective assistance of counsel claims and that the appellate courts had previously

rejected analogous challenges to the constitutionality of the sentencing statute. The

petitioner then perfected his appeal to this court.

Having filed his post-conviction petition after May 10, 1995, the

effective date of the new Post Conviction Procedure Act, the petitioner has the

burden of proving his allegations of ineffective assistance of counsel by clear and

convincing evidence. See Tenn. Code Ann. § 40-30-210(f) (Supp. 1996). The

petitioner testified on his own behalf as to some of his claims, and he elected to

present no evidence whatsoever on other claims. The state presented the

testimony of the petitioner's trial counsel. The testimony of the petitioner and trial

counsel was contradictory on key points. The trial court found petitioner's trial
1The trial court incorrectly relied on the "preponderance of the evidence"

standard of proof required under the previous Post Conviction Procedure Act. 

This misplaced reliance is of no consequence, however, because the old

standard is more favorable to the petitioner than the current "clear and

convincing" standard.

3

counsel credible and rejected the contrary testimony given by the petitioner. As

such, the court found the petitioner failed to carry the burden of proof.1 The

evidence does not preponderate against the lower court's judgment in this regard.

Butler v. State, 789 S.W.2d 898, 900 (Tenn. 1990). 

Next, the petitioner, who was sentenced as a persistent offender,

argues he is entitled to a minimum sentence because the Sentencing Reform Act

of 1989 violates the separation of powers provision of Article II, Section 2 of the

Tennessee Constitution by setting release eligibility and giving the trial court the

authority to require service of a definite percentage of a sentence prior to parole

eligibility. As the lower court correctly found, the challenged portion of the

Sentencing Reform Act of 1989 does not violate separation of powers. See, e.g.,

William Lee Tollett v. State, No. 01C01-9605-CR-00180, slip op. at 3-4 (Tenn. Crim.

App., Nashville, Apr. 24, 1997); Frank Bell v. Ricky Bell, Warden, No. 01C01-9602-

CR-00058, slip op. at 1 (Tenn. Crim. App., Nashville, Jan. 30, 1997), perm. app.

denied (Tenn. 1997); cf., e.g., Jackie Lee Childs v. State, No. 01C01-9604-CR00164, slip op. at 3-4 (Tenn. Crim. App., Nashville, Apr. 24, 1997) (Sentencing

Reform Act of 1982); Charles Massengill v. State, No. 01C01-9605-CR-00191, slip

op. at 3-5 (Tenn. Crim. App., Nashville, May 16, 1997) (Sentencing Reform Act of

1982).

The court below committed no error of law requiring reversal. The

judgment is affirmed pursuant to Rule 20, Court of Criminal Appeals Rules.
4

_______________________________

CURWOOD WITT, JUDGE

CONCUR:

_______________________________

JOE G. RILEY JR., JUDGE

_______________________________

__________ WALKER, SPECIAL JUDGE

NOTE: NEED JUDGE WALKER'S FULL NAME