T h e P e tit io n e r’ s p ro se p e tit io n fo r p o st-c o n v ic tio n re lief li sts th e P e tit io n e r’ s n a m e a s “ R ic k e y L e e B e a m o n ,” 1

al t hough t he nam e i s s pel l ed a s “Ri cky Lee Bea m on” i n ot her pa r t s of t he r ec or d, i ncl udi ng c ouns el ’ s a m ende d pe t i t i on. W e u se th e n a m e li ste d in th e p le a d in g in iti a tin g th e se p ro c e e d in g s, th e p ro se p e tit io n fo r p o st-c o n v ic tio n re lief

. 

### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE

AT KNOXVI LLE A ssi gne d on Br ie fs D ec embe r 16, 200 8

RIC KEY LEE BEA MON v. S TAT E OF TEN NES SEE

Appeal from t he Criminal Court for Hamilton Coun ty No. 264257 Rebec ca J. Ster n, Jud ge

No. E2008-01138-CC A-R3- PC - Filed Septem ber 14, 2009

The Petitioner, Rickey Le e Bea mon, appea ls t h e d en i al of post-convic tion relief in the Criminal 1 Court for Ha milton C ounty from his convictions for thef t of property valued between $10,000 a nd $6 0, 00 0, a

Cla ss C fe lon y; t wo c ou nts of bu rg lary , a Cla ss D fe lon y; a gg ra vate d c ri min a l tr e sp a ss,

a Cla ss Amis de me a no r; a ndthr e e c ou nts of the ft of pr op e rt y v a lue d at $5 00 or le ss, a Cla ss A misdemeanor. For the felony thef t, he rec eived a sentenc e of fiftee n year s as a c are er of fende r. For the t wo burglaries, he rece ived concurre nt twelve- year sentenc es as a care er of fende r, to be ser ved

c on s e c u t i v e l y t o t h e f

e l o n y t h e f

t s e n t e n c e

. T h e f

o u r m i s d e m e a n o r s e n t e n c e s o f e l e ve n mo nth s, twenty-nine days, were order ed to run c oncurr ently to the twelve- year burglary sentence s, for a n eff ective se ntence of twenty-se ven yea rs in confine ment. On appeal, he c ontends that the trial court

err ed in denying re lief b ec au s e: (1) counsel provided inef fec tive assistance by failing to sever offe nses in case 238463; (2) counse l provided ineff ect i v e assi stance by failing to include in the appellate rec ord the transcript of the suppression hearing in c ase 245041; a nd (3) c ounsel provided ine ff e c tiv e a ssi sta nc e by wa ivi ng the iss ue of re ta ine d c ou ns e l of

c ho ic e on app e a l by faili ng to support his claim through argume nt, citation to authority, and ref ere nces to the a

ppellate r ecor d. We aff irm the judgment of the trial c ourt.

Tenn. R. App . P. 3 Appeal as of Right; Judgment of the Cr iminal Cou rt A ffirm ed

J OS EP H M. T I P TO N , P.J., delivered the opinion of the court, in which T H O M A S T. W OOD ALL and N OR MA M C G EE O GLE , JJ., joined.

David W. Schmidt, Signal Mountain, Tennessee , for the a ppellant, Rickey Le e Bea mon.
Robert E. Cooper, Jr ., Attorney Ge nera l and Reporter ; R ac h el West Harmon, Assistant Attorney Gene ral; William H. Cox, III
, District Attorney Genera l; and B ates W. Bryan, Jr., Assist ant District Attorney Ge nera l, for the a ppellee, State of

Tenne ssee.-2- OP IN ION

The Petitioner’s c onvictions in case 245041 r elate to t h e t h ef t of a sa fe, its contents, a nd video and audio equi p m ent from one home and in ca se 238463 to the thefts of la wn equipment (mower , hedge c utters, weed eater, a nd a tool kit) from three other homes. The case involving the safe and ente rtainment equipment wa s sever ed fr om the other off enses. Af ter his trials, the Petitioner

wa s c on vic te d in on e c a se of tw o c ou nts of bu rg lary , thr e e c ou nts of the ft of ite ms wi th a va lue le ss tha n $ 50 0, a ndon e c ou nt of a gg ra va te d cr imi na l tre sp a ss andin t he se c on d c a se of

the ft of pr op e rt y valued ove r $10,000. He rec eived a n eff ective twe nty -s ev en -yea

r sentenc e of c onfinement. The evidenc e included te stimony fr om law enf orce ment office rs who stopped the Petitioner the day of or shortly afte r the re spective c rimes and who f ound some of the stolen items in the Petitioner’s ca r. This court af

firmed the convictions. State v. Ricky Lee Beamon, No. E2005-01656- CCA-R3-CD, Hamilton County, sl ip op. (Tenn. Crim. App. Oc t. 5, 2005).

At the post-conviction hea ring, counsel testified that h e h ad worke d as a tria l attorney for fourtee n year s and had a

pproximately fifte en jury trials, which he said had bee n primarily criminal

case s. He said he had w orked on a ppeals in twenty-f

ive state c ases a nd eighteen f eder al ca ses. He

sa id h e un de rs too d how to make a tim e ly obj e c tio n at tri a l a ndsa id the c on se qu e nc e s o f f a ili ng to object in a timely fa shion could result in waiving the issue. He also stated he understood the ne ed to prepa re the appellate rec ord and to include citations to the rec ord and to lega l authority.

Counsel testified that he wa s appointed to repr esent the Petit i o n er approximate ly two and one-ha lf yea

rs bef ore the post-conviction hea ring. He sa id the Petitioner had alre ady had “a f ew” attorneys be fore counsel’s a ppointment. He stated he did not r emember the length of time betwee n his appointme n t an d his init ial meeting with the Petitioner. He sa id he discussed both of the Petitioner’s ca ses with him during the four or f ive times the y met befor e the first case

. He sa id that the fi rs t c a se inv olv e d a n in dic tme nt c ha rg ing a n a gg ra vate d b ur gla ry , o the r b ur gla

ri e s, a ndthe ft s and that the second case , involving the taking of a safe from a house, allege d b o t h aggra vated burglary a nd theft of pr operty va lued at over $10,000. He sa id he did not r emember the amount of time betwee n his appointment and the date of the fir st trial.

Cou ns e l te sti fi e d th a t he dis c us se d th e c a se s w ith the Pe tit ion e r. He sa id that a t so me po int

, the Pe tit ion e r w a nte d to be re pr e se nte d b y an oth e r at torne y. He sa id h e didno t r e me mbe r w he n th is was. He said the Petitioner complained to the trial court. Counsel said he told the tria l co u rt that he wa s familiar with the c ase a nd could proc eed to try it, although he sa id he told the trial court that he did not object to having anothe r attorne y handle the case

. He said that he tol d the P etitioner that he could proce ed pro se and that he thought the trial court also stated this to t he Petitioner. Howe ver, he said t h e P et i t ioner stated that he did not want to proce ed pro se and that he w ould hire anothe r

a tto rn e y be c a us e c ou ns e l wa s no t kn ow le dg e able e no ug h abo ut the c a se to tr y it. Cou ns e l sa id this

occur red r egar ding the first trial. He said that as the trial date appr oache d, howeve r, the Petitioner stated he did not wa nt to hire another attorney. Counsel said that he brought the Petitioner c lothing
to wear for the trial but that the P etitioner re jected the clothes and w ore his prison uniform instea d.

Cou ns e l te sti fi e d th a t he wa s a ble to c ommun ic a te wi th the Pe tit ion e r. He sa id h e sp ok e wi th the Petitioner and obtaine d the Petitioner’s re collection of e vents, although he said the Petitioner ha d-3-

been unde r the influence of drugs at the times of the eve nts in the indictments. He said the Petitioner ha d be e n s t o p p e db y l a w e n f o r c e m e n to n J u l y 2 9

, 2 0 0 1

, a f t e r h a v i n g b e e n s e e n b y t h e n e i g h b o r s, who telephone d the po l i ce

. He said the Petitioner spoke to the ne ighbors befor e driving aw ay. Cou ns e l state d he we nt to the sc e ne of the c ri me s. He sa id h e didno t try to ob ta in the 9- 1- 1 ta pe s.

Counsel testified he filed a sever ance motion. He said that at t he seve ranc e hea ring, the trial

c ou rt pr op e rl y d e te rm ine d th a t th e e ve nts fr om the fi rs t in dic tme nt wo uldbe tr ie d to ge the r b e c a us e the y o c c ur

re d a t th e sa me tim e a ndwe re pa rt of the sa me sc he me . H e sa id the tr ia l c ou rt pr op e rl y found that the sec ond incident was not pa rt of this same sche me and se vere d i t from the other offe nses. Counsel stated that trying the bulk of t h e b urglarie s together wa s one of the c ase’ s problems. He said that the s ever ance motion was his idea and that he discussed it with the Petitioner. He sa id o ne of

the ir c on c e rn s in the mot ion wa s that the Pe tit ion e r w ou ld n ot r e c e ive a fair tr ia l if the ju ry saw a ll the burglaries in one trial. He sa id he and the Petitioner w anted to seve r “eve rything.” He said that they lost on the issue of common scheme or plan but that they won on the issue of seve ring the aggravate d burglary, which occ urre d on another date. He thought that he raised the non-seve ranc e of the burglarie s as an issue on appea l but that it had been some time since he app e a le d th e c a se . H e sa id he didno t c ite a ny la w p e rt a ini ng to s e ve ranc e of of fe ns e s in his appellate brief be cause the state of the law wa s adver se to the claim. He sa id the law wa s clea r that if case s occur

red the same day or we re pa rt of the sa me sche me or plan, the case s were not severa ble.

Counsel’s “Motion for Sev er an ce of Offe nses,” include d in the appellate rec ord on the Pe tit ion e r’ s d ir e c t app e a l a ndin the pr e se nt pr oc e e din gs , lists c a se nu mbe rs 23 84 63 a nd24 50 41 in the ca ption. The brief

motion st ates that the the n-De fenda nt “wo u l d m o v e for sever ance of the char ges that ar e up coming for Dec ember

9, 2 0 0 3

. ” T h e t ranscript from the he aring re flec ts the following dialogue.

Petitioner’s counsel: “Th e fi rst two – well, the first thre e

happene d all the same day and then that’ s – ”

Trial court: “You ar e talking about ca se 238463?”

Petitioner’s counsel: “T hat’s cor rec t, Your Honor.”

Trial court: “Okay.”

P etitioner’s counsel: “And then the next case happene d I believe w hat, a f

ew we eks –”

The S tate: “That was on June 7t h, 245041 occur red and it was July 29th when 238463 occ urre d. We a gree with [Petitioner’s counsel’s] motion that thos e two sets of case s should be separ ated.”

Trial court: “Okay. The two indictment numbers as far as that motion goes will be sustained.”-4-

The trial c ourt’s minutes from De cembe r 9, 2003, state that the De fenda nt’s motion for sever ance was sustained a nd that case 238463 “will be tried f irst.”

Cou ns e l te sti fi e d that he app e a le d th e a dmi ssi on of ph oto gr aph s. He sa id that th e de fe ns e did not know who took the State’s phot ographs and that he objec ted to their admission on hear say grounds. He sa id that he would have included citation to law in his brief ha d any existed to support his po sit ion a ndthat he raise d th e iss ue to pr e se rv e it. He sa id that be c a us e the c a se inv olv e d o nly one set of photogr aphs, the a ppellate c ourt knew to w hat he ref err ed. He said the photographs we re not disposit ive of the c ase. H e said that he did not rec all whether the court did not review the issue due to lack of

citations to the rec ord.

Counsel te stified that the Petitioner told him and the trial court on the day of trial th at the Petitioner had re tained other counsel. He said the Petitioner claimed that retaine d co u n s el had

rec eived pa yment, which was documented by a rece ipt. Counsel said reta ined counsel did not enter
an appe ara nce f

or the Petitioner. Counsel stated that he went to re tained counse l’s office during the second tria l’s lunch re cess. He said he spoke w ith r etained counsel’s partne r. Counsel said that the partne r wa s that office ’s trial attorne y, th at re t ai ned counse l did not try cases, a nd that neither the partne r nor a

secr etary knew of

the Petitioner’s ca se. He said that at t his point, the s econd trial had alre ady begun. He said he did not think or remember that the trial court told the Petit ioner that he could continue pro se or that the Petitioner suggested he would proce ed as hi s o wn at t orney. Counsel said that he wa s still the attorne y of record and had to try the c ase be cause reta ined counse l did not enter a n appea

ranc e on the Petitioner’s be half.

Cou ns e l te sti fi e d th a t he fi le d a su pp re ssi on mot ion fo r the se c on d tr ia l “ e arl y o n. ” He sa id Trooper Hoppe’ s testimony from the suppression hea ring was a s follows. Trooper Hoppe testified at the hea ring that he ha d stopped a c ar on the highway and wa s speaking to a man f rom the ca

r whe n the Petitioner almost hit him with his car

. Trooper Hoppe said he chased the Petitioner and stopped the Petitioner’s ca

r. He said the Petitioner was ne rvous. The troope r had the Petitioner step out of the car t o undergo D UI tests. He said he thought the Petitioner was pote ntially driving under the influence . He sa id the Petitioner told him he nee ded to use the bathroom. He said he allowe d the Petitioner to go to the bushes to relieve himself and told him to shake the bushes. He said that the Petitioner ran a way but that he still had the Petitioner’s driver’s lice nse.

Cou ns e l te sti fi e d th a t he app e a le d th e va lid ity of the sto p is su e . H e sa id the Pe tit ion e r a lmo st hit the trooper with his car

. He stated the basis for the trooper to stop the P etitioner’s c ar w as not that the Petitioner had driv en o v er t h e roa d’s white line but rather that he had almost struck the
tr oo pe r, wh o w a s st a nd ing in the sh ou lde r. Cou ns e l st a te d th a t the re c or d did no t re fl e c t ho w c los e ly the Pe tit ion e r dro ve to the tr oo pe r, a lth ou gh he sta te d the tr oo pe r sa id the Pe tit ion e r h a d a lmo st h it him, thereby giving the trooper rea sonable suspicion to cha se and stop the Petitioner.

The Petitioner testified that he did not reme mber the date when he met counsel, a lthough he
state d that it

ma y h a ve be e n f

ive mon ths be fo re the fi rs t tria l. H e sa id that he me t w ith c ou ns e l a couple times and tha t his recollec tion of their meetings varied “totally” f rom that o f co u n s el . He stated, “The communication bar rier [ s i c] b et we en me a nd [counse l] had totally broke dow n.” He

sa id tha t th e y w ou ld b e c ome up se t w ith e a c h o the r andthat on e of the m w ou ld w a lk o ut o f the ir-5-

meetings. He denied t hat counsel had spoken with the P etitioner about proce eding pro se with the first ca se. He said he told counsel be fore the first trial that he ha d reta ined other c ounsel.

Th e Pe tit ion e r t e sti fi e d h e fe lt h e wo uld no t re c e ive a de qu a te re pr e se ntatio n fr om c ou ns e l. He sa id counsel did not discuss the case with him, keep him informed of the status of the ca se, or file any motions in the case

. He said that the walking out of the discussions prec luded them from discussing the case . He sa id he wante d counsel to file motions for discove ry and f or exc ulpatory evidenc e. He said counsel did not provide him with any filings for e ither the fir st or second c ase.

The Petitioner testified that he obtained an a ffidavit fr om an inmate, Johnny Cross, in which he cla imed that counsel, during his repr esenta tion of C ross, told Cross that the P etitioner had be en caught “ r e d

- h a n d e d ” a t a

c r im e s c e n e a n d th a t th e Pe ti ti o n e r w a s g o in g to jail

. T h e Pe titioner
te sti fi e d th a t he inf

or me d th e tr ia l c ou rt of the se c omm e nts a nd the fa c t th a t c ou ns e l w a s ta lki ng to another client about the Petitioner’ s ca se. We note the two-pa rt aff idavit also states that the trial court tol d Cross, who apparently had fired other attorneys, that he wa s “anothe r Ricky Beamon” and that he would re prese nt himself if he fire d counsel, who w as appointed to his ca se.

The Petitioner testified that h e as k ed t h e trial court to re move counse l from his case s. He denied that the trial court suggeste d he could pr oceed p ro se, and he said he would not have
pr oc e e de d p ro se if giv e n the op tio n. He sa id he hir e d a n a tto rn e y fo r tr ia l. He su bmi tte d d oc ume nts int o th e re c or d in wh ic h h e c la ime d that c ou ns e l wa s tr yin g to thw art his app e a l, that c ou ns e l w ou ld not pr eser ve a transcript, a nd that counsel had no intention of pursuing the appe al. He sa id he aske d the trial court to remove c ounsel from the appea l. He claimed, a s well, that he ne ver r ece ived any
up da te s o n h is a

pp e a l f ro m c ou ns e l a ndthat he le arn e d o n his own abo ut the re su lt o f the app e a l. He sa id that he did not rec eive a fair trial with counsel as his attorne y and that counse l did not
proper ly repre sent him.

On cr oss-exa mination, he testified that if “e vidence [does not] f it, . . . you must ac quit.” He disagree d that the evidenc e showe d he wa s caught a t the scene of t he crime. Whe n asked to identify which evidence did not show his guilt, he stated, “The e vidence period.” He a gree d, howeve r, that he wa s app re he nd e d with $1 5, 00 0, bo nd s, a pa ssp ort, andoth e r i te ms, be lon gin g to a vic tim , in his

car . He a gree d he wa s appre hended on another oc casion with lawn equipment take n from the e arlier burglarie s in his car. He agre ed that he w as seen wande ring around the neighborhood in w hich the equipmen t w a s s to le n a s k in g p e o p le if h e c o u ld mo w th e ir g r a s s

. H e a g r e e d th a t h is car was identified as the one leaving the house from which a lawn mower

was take n.
Regarding e x cu l p at o ry ev i d en ce , t h e P et i t i o n ert es t i fi ed t h at h e t h o u g h t“t he photogra phs that
my atto rn e y me nti on e d s ho uldha ve be e n f ile d. ” He a lso state d the y didno t ha ve the op po rtun ity to obtain evidence rega

rding Danny H ooten. He de nied the State’s c laim that no exculpatory evidenc e existed. H e said he asked his attorne ys to obtain a 9-1-1 ta pe bec ause h e cl ai m ed the statement on the tape varie d from the witness’s trial testimony, a lthough he stated he ha d not hear d either the tape or

the telephone call whe n it was being made

.

The Petitioner said that re tained counse l telephoned the trial court to obt ain a c ontinuance when he was out of town the day of trial and that the trial court ref used to grant one . He sa id the trial-6-

court did not give reta ined counse l the opportunity to repre sent the Petitioner, although he sa id he tol d th e tr ia l c ou rt

that he didno t w a nt c ou ns e l a s h is atto rn e y a ndthat he ha d h ir e d r e ta ine d c ou ns e l.

Te rri L a sh e lle Th ur ma n, the Pe tit ion e r’ s f ia nc e e , te sti fi e d th a t sh e hir e d ret ain ed c ou ns e l. She said she and othe r re latives of the Petitioner we nt to retained c ounsel’s off ice, a lthough she admitted the other f

amily mem b ers we re the re f or their own le gal matters. She sa id that she discussed the Petitioner’s c ase wi t h reta ined counse l and that he sa id he would appe ar at the Petitioner’s next court date provide d she paid a down payment f

or his service s for the Petitioner. She said she obtained a rec eipt for her $800 payment signed by the off ice se cre tary on Janua

ry 19, 2004. She said reta ined c o u nsel promised he w ould be at the Petitioner’s ne xt court appe ara nce. She said she informe d the trial court the day of tria l that she had hire d reta ined counse l f o r the Pe tit ion e r w he n c ou ns e l st oo d u p f or the Pe tit ion e r’ s c a se . Sh e sa id that th e tr ia l c ou rt a sk e d h e r i f
reta ined counse l were prese nt, that she said he wa s not there, a nd that she did not know w hy he wa s

no t in c o u r t. Sh e s a id th e tria l c o u r t r e c e s s e d f o r r e tain e d c o u n s e l to b e c o n ta c te d

. She said she spoke wit h the s ame office employee who initialed the rec eipt. The e mployee told her tha t retaine d counsel wa s out of town and that they thought the ca se had be en “pa ssed.” She sa id the employee call ed t h e t ri al court. Ms. Thurman stated that a fter the rec ess, the trial c ourt said that re tained counsel was not pr esent, that counsel would continue to r epre sent the Petitioner for the trial, and that she should get her

money bac k from re tained counse l. Ms. Thurman said she r ecoupe d her $800. The State off

ere d no proof.

The trial c ourt denied r elief a fter f inding the Petiti o n er ha d not demonstrated c ounsel
pe rf or me d d e fi c ie ntl y. Th e tr ia l c ou rt state d that c ou ns e l ha d r e pr e se nte d th e Pe tit ion e r a de qu a te ly

a ndre a so na

bly a nd that if c ou ns e l ha d in fa c t ma de e rr or s du ri ng the re pr e se ntatio n, the e rr or s d id

no t ha ve a ny pr e

jud ic ia l e ff

e c t on the re su lt of the tria l. Re ga rd ing the Pe tit ion e r’ s a sse rt e d ri gh t to reta ined counse l of choice , the trial court stated that all parties wer e re ad y for trial the day the Petitioner claimed someone had re tained counse l for him. The trial c o u rt s tated that it grante d a

rec ess for the Petitioner to obta in retaine d counsel’s attendance . The trial c ourt stated that re tained counsel was out of town a nd that his office thought the matter had be en “pa ssed.” The trial court stated that if re tained counse l had in fac t been r etained to r epre sent the Petitioner, re tained counse l would h a v e ap p e ar e d in c o u r t a n d s a id h e w a s r e a d y to p r o c e e d w ith th e tria l a n d th a t th e cour t

wo uldha ve re mov e d c ou ns e l f ro m th e c a se . T he tr ia l c ou rt st ate d th at a pa rt y c ou ld n ot c ome to court the day of trial and a nnounce ne w re prese ntation.

I. SEVE RANCE

The Pet i t i o n er claims that he re ceive d the ineff ective a ssistance of c ounsel when c ounsel failed to seve r the c ounts in case 238463. He claims trial counse l’s sever ance motion exemplified de fi c ie nt p e rf

or ma nc e be caus e it d id n ot m ov e fo r the se ve ranc e of the bu rg lary c ou nts in c a se 238463 and bec ause tria l counsel did not argue at the hea ring for the sever ance o f the burglary counts in that case

. The P etitioner cla ims that “had counse l made an a ppropriate and cle ar motion, [the Pe tit ion e r] be lie ve s th e tr ia l cou rt wo uld ha ve gr a nte d the mot ion to s e ve r the c ou nts ” be c a us e the offe nses wer e not part of a common scheme or pl an. Relying on St ate v. Shirley, 6 S.W.3d 243 (Tenn. 1999) , in which the Te nnessee Supreme Court held the tria l co u rt er red in not gra nting a

se ve ra nc e wh e n tw o r ob be ri e s o c c ur re d with in thi rt y minu te s of ea c h othe r, the Pe tit ion e r s ta te s h is-7-

theft off enses wer e not pa

rt of a common scheme or plan a nd should have be en seve red be cause the victims and the items involved were differ ent in eac h count.

The State re plies that the trial court properly de nied post-conviction re lief af ter finding the Petitioner did not prove by clea r and c onvincing evidenc e that he r ece ived the inef fec tive assistance of counse l. The State asse rts that trial counsel did not per form def iciently by failing to succe ed on a motion to sever the c ounts in case 238463. The State also asserts that no proof showing that the motion was either de fec tive or uncle ar was entered int o evidenc e and that the post-conviction re lief he ari ng te sti mon y re fl e c te d tha t tria l cou ns e l sta te d he a ndthe Pe tit ion e r w a nte d to se ve r a ll c ou nts and ca ses.

The burden i n a post -convic tion proce eding i s on the Petitioner to prove his grounds for relief by clea r and convincing evidenc e. T.C.A. § 40-30- 110(f) (2006). On a ppeal, we are bound by the
tr ia l c ou rt ’s fi nd ing s o f f

a c t un le ss w e c on c lud e tha t th e e vid e nc e in the re c or d pr e po nd e rate s a ga ins t those findings. Fields v. S tate, 40 S.W.3d 450, 456-57 ( Tenn. 2001). Because they re late to mixed questions of law a nd fac t, we re view the tria l cou rt ’s co n cl u sions as to whether c ounsel’s
pe rf or ma nc e wa s d e fi c ie nt a ndwh e the r that de fi c ie nc y w a s p re jud i c i a l u n d e r

a de no vo sta nd ardwi th

no presumption of cor

rec tness. Id. at 457. Post-conviction re lief may only be give n if a c onviction
or sentenc e is void or voidable be cause of a violation of a constitutional right. T.C.A. § 40-30-103 (2006).

Under

the Sixth Amendment, when a claim of i neff ective assistance of counsel is m ade, the burden is on the Petitioner to show (1) t h at co u n s el’s per formanc e wa s deficie nt and (2) that the defi ci en cy wa s prejudicial. Strickland v. W ashington, 466 U.S. 668, 687 (1984); see L ockhart v. Fr e tw e ll, 50 6 U .S. 36 4, 36 8- 72 (1 99 3)

. In oth e r wo rd s, a sh ow ing that c ou ns e l’ s p e rf orma nc e fa lls below a r easona

ble standar d is not enough beca use the Petitioner must also show that but for the substandard pe rformance , “the r esult of the procee ding would have be en diffe rent.” Strickland, 466 U.S. at 694. The Strickland standa rd has been applied to the right to c ounsel under article I, sec tion 9 of the Te nnessee Constit ution. St ate v. Me lson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

A petitioner will only preva il on a claim of i neff ective assistance of counsel a fter satisfying both prongs of the Strickland test. He nley v. State, 960 S.W.2d 572, 580 (T enn. 1997). The perf ormanc e prong r equire s a petitioner raising a claim of ineffe ctiveness to show that the counsel’ s repr esentation fell below an obje ctive standa rd of r easonableness or “ outside the wide range of
pr of e ssi on a lly c omp e te nt a ssi sta nc e .” Str ic kland , 466 U. S. at 690 . The pr e jud ic e pr on g r e qu ir e s a petitioner to demonstrate that “there is a rea sonable proba bility t hat, but for c ounsel’s prof essional

e rr or s, the re su lt o f the pr oc e e din g w ou ld h a ve be e n d if fe re nt. ” Id

. a t 69 4. A r e a so na ble pr ob abil ity

means a “proba bility s ufficie nt to undermine conf idence in the outcome.” I d.

In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)

, our supre me court decided that attorneys should be he ld to the gener al standar d of whe ther the se rvice s rende red w ere “within the
range of compe tence demande d of attorne ys in criminal case s.” Further, the court stated that the
range of compe tence was to be me asure d by the duties and c riteria se t forth i n Beasley v. United States, 491 F.2d 687, 696 (6th Ci r. 1974), a nd United States v. DeCoster, 487 F.2d 1197, 1202-04 (D .C. Ci r. 19 73 ). Ba xte r, 52 3 S. W .2 d at 93 6. Al so , in re vie wi ng c ou ns e l’ s c on du c t, a “ fa ir-8-

assessment of attorney per formanc e re quires that eve ry ef fort be ma de to eliminate the distorting

e ff e c ts of h i n d s i g h t , t o r e c o n s tru c tt h e c i r c u m s t a n c e s o f c o u n s e l ’ s c h a l l e n g e d c o n d u c t , a n d to evalu at e t h e co n duct from c ounsel’s per spective at the time.” Strickland, 466 U.S. at 689; see He lla rdv. Sta te , 6 29 S.W .2 d 4 , 9 (T e nn. 19 82 ). Th us, th e fa c t th a t a pa rt ic ula r s tr a te gy or

ta c tic failed or even hurt the defe nse does not, alone, support a claim of ine ffe ctive assistanc e. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). Def ere nce is made to trial strategy or tactica l choice s if they ar e informed ones based upon adequate prepa ration. See DeCoster, 487 F.2d at 1201; Hellar d, 629 S.W.2d at 9.

Separate offe nses may be permissively joined if they ar e part of a c ommon scheme or pla n

or ar e of the same or similar cha rac ter. Te nn. R. Crim. P . 8(b). I f, howe ver, the y are not part of a common scheme or plan or if the evidenc e of one is not admissi b l e at the trial of the othe r, the defe ndant has a

right to a s ev er an ce o f off enses. See Tenn. R. Crim. P. 14(b)(1). A se vera nce of

su c h off e ns e s s h a l l b e g r a n t e d ( 1 ) b e f o r e t r i a l i f

i ti s d e e m e d ap p r o p r i a t e t o p r o m o t e a f a ir de te rm inatio n o f the de fe nd a nt’ s g uil t or la c k th e re of or (2 ) during tr ia l if it is d e e me d n e c e ssa ry to achie ve such a

fair determination. Tenn. R. Crim. P. 14(b)(2) (A), ( B). The issue include s

c on sid e ratio n o f the nu mbe r o f o ff e ns e s, the c omp le xit y o f the ev id e nc e , a ndthe dif fi c ult y w ith which the jury w ould be able to distinguish the eviden ce an d ap p l y the law a s to eac h offe nse. Whe th e r o r n o t to g r a n t a s e v e r a n c e r e s ts w ith in th e s o u n d d is c r e ti o n o f th e tria l c o u r t. St a te v. Wiseman, 643 S.W.2d 354, 362 ( Tenn. Crim. App. 1982).

Our supre me court ha s r e c o g n iz ed thre e categories of common scheme or plan e vidence : “(1) offe nses that re veal a

d i s t i n ct i v e design or a

re so similar as to c onstitut e ‘signatur e’ c rimes; (2) offe nses that ar e part of a lar ger, c ontinuing plan or conspirac y; and (3) of fense s that are all part of the same c riminal trans action.” State v. Moor e, 6 S.W.3d 235, 240 (Te nn. 1999). In the pr esent

case , the Petitioner claims that the crimes wer e neither part of a large r, continuing pla n nor part of the sa me c ri min a l tr a ns a c tio n. Th e Pe tit ion e r s ta te s th a t th e of fe ns e s a re sim ila r t o th e fa c ts in St a te

v. Shi rl e y, 6 S.W .3 d 2 43 (T e nn . 1 99 9) , a c a se inv olv ing a n a na lys is o f p ur po rt e d s ign a tur e c ri me s. Th u s , we consider w hether the offe nses wer e distinctive signature c rimes. Evidenc e of signatur e crimes is admissible u n d er l i m i ted circ umstances. Such e vidence is typically offer ed to prove a defe ndant’s identity. See State v. Moore , 6 S.W.3d at 239. On dire ct appe al of the Petitioner’ s case , the State ar gued two approac hes: (1) the crimes required mandatory joi nder a s they wer e part of the

same c riminal episode, and ( 2) t he crimes wer e prope rly permissively joined bec ause the evidenc e, specific ally the geogr aphic a rea , short time fra me, and the f act that the Petitioner w as appr ehende d shortly after

the offe nses with the stolen items in his car, showe d a common sche me or plan.

For the offe nses to reve al a distinct de sign, the modus operandi e mployed “must be so unique and distinctive as to be like a signature.” State v. Moore, 6 S.W.3d at 240; St ate v. Carter, 714 S.W .2 d 2 41 , 2 45 (T e nn . Cri m. App. 19 86 ). Al tho ug h th e of fe ns e s d o n ot h a ve to b e ide nti c a l in

every respe ct, a c ommon scheme or pla n is not fo u n d mere ly because there was e vidence that the Petitioner committed the multi ple offe nses or be cause the similarities of the offe nses outweigh the differ ence s. Moore, 6. S.W.3d a t 240-41. “Rather , the trial court must find that a distinct de sign or unique method was use d in committing the offenses.” Id. at 241. The me thod of perpe trating the

c ri me s mus t emp lo y “ ‘s uc h u nu su a l pa rt ic ula ri tie s’ ” that a

re a so na ble pe rs on c ou ld b e lie ve it-9-

unlikely that differ ent people w ere using this m et hod. Id. at 240 (quoting Ha rris v. State, 227 S.W.2d 8, 11 (Tenn. 1950) ).

Th e da ng e r i n n ot se ve ri ng of fe ns e s is that the jury wi ll imp ro pe rl y fi ndthe a c c us e d g uil ty of a c rime by in ferrin g h is p ro pe ns ity to c omm it the c ri me fr om the e vid e nc e of the oth e r c ri me s. Id. at 239. Thus, the ques t i o n i s p rimarily one of evidentiary conce rn. Id.; see Tenn. R. Evid. 404(b).

The e vidence from the post-conviction hea ring ref lects that trial counse l acknowle dged that one of the problems in case 238463 was that sever al burglaries and thef ts would be tried together

. He sa id one of his c oncerns in the motion wa s that the Petitioner would not rec eive a fair trial if the jury saw a ll the burglaries in one trial. Counsel te stified that he wanted to se ver “eve rything,” but that th e re le va nt l a w w a s a dv e rs e to the ir po sit ion

. Th e Pe tit ion e r c on c e de s th a t th e of fe ns e s in c a se 238463 occur

red on the same da y “at a pproximately the same time and location,” a lthough he maintains that the offe nses wer e not “pa rt of a c ommon scheme or pla n” bec ause the v i ct ims and
pr op e rt y in vo lve d w e re dif fe re nt i n e a c h c ou nt.

Th e Pe tit ion e r ha s no t sh ow n a re a so na ble pr ob abil ity that th e re su lt o f the pr oc e e din g w ou ld ha ve be e n d if

fe re nt h a d th e c ou nts be e n s e ve re d in c a se 23 84 63 . I n v ie w o f the re c or d, the e ve nts

occur ring on July 29, 2001, from roughly 4:00 p.m until 5:00 p.m. w ere permissively joined. The offe nses wer e part of a c ommon sch em e o r plan showing a signature modus operandi, a nd the evidenc e in one count would have be en admissible in the other c ounts. See Tenn. R. Crim. P. 8(b), Advisory Comm’n Cmt s. A s s u ch, the Petit ioner did not have the right to sever the counts. See Tenn. R. Crim. P. 14(b)(1).

The e vidence prese nted at the tria l showed t h at t h e Petitioner employed the same modus
opera ndi in each of

the crimes. He rode around a neighborhood on July 29, 2001, in a cr eam- colore d Bui c k. Ca lls to 9- 1- 1 re ga rd ing the Pe tit ion e r a nd sto le n ya rd wo rk e qu ipm e nt origi nate d f ro m th is neighborhood a t 4:26 p.m. a nd 5:02 p.m. The Petitioner drove his ca r into someone’s driveway, a nd when c onfronted by the resident, a sked i f h e co u l d mow the lawn, ye t the Petitioner had no equipment in his car. T he re sident saw the Petitioner’s ca r, once with the trunk closed a nd a sec ond time two blocks awa y ten t o fiftee n minutes later, with the t runk open, lawn equipment pr otruding from it, and bac king out of a drivew ay. During approximately one hour, the Petitioner went through the same ne ighborhood, with the crime sc enes of three houses being two blocks a part, a nd enter ed
gara ges to steal lawn e quipment. The evide nce in e ac h o f t h e case s was re levant to show the Petitioner’s common scheme or plan, motive, and lack of mistake or ac cident for the crimes. Our
supreme c ourt has stated that the draf ters of the Tenne ssee Rules of Criminal Proce dure “ intend that a common sche me or plan f or seve ra nce pur

poses is the same a s a common sche me or plan f or evidentiary purposes.” S t at e v. Moore, 6 S.W.3d 235, 240 n.7 ( Tenn. 1999). A dditionally, the evidenc e pre sented in the post-c onviction hearing and as stated in this court’s opinion affirming the convictions shows the Petitioner was appre hended shortly a fter the burglarie s in the cre am-c olored Buick that had bee n seen in the are a where the items had been s tolen and that conta ined the stolen lawn equipment.-10-

The Petitioner cla ims that his case is analogous t o State v. Shirley, 6 S.W.3d 243 (Tenn. 1999), and tha t because ea ch off ense involved diff

ere nt victims and it ems, no common scheme or pla n c a n be sh ow n. Hi s cla ims are fl a we d. Fir st, the fa c ts o f S hirle y a re dis tin gu ish able fr om tho se of the Petitioner’s c ase. I n Shirley, the Tenne ssee Supre me Court held that the evide n ce did not ref lect a distinctive method of c ommitt ing the robberies. The victims’ desc riptions of the robberies didno t r e ve a l a sig na tur e mod us op e ra nd i for c omm itt ing the c ri me s. Th e pe rp e tr a tor in S hirle y d id
not wear the same c lothing for the offe nses, nor did he make the sa me re quest of the c ashiers. The
perpe trator did not leave the crime scene s in the same way but de parte d with or without a getaw ay

car . The pe rpetrator remove d h i s mask for two c rimes, but not at the same time for eac h crime. Additionally, testim ony rega rding the per

petra tor’s gloves varied. Shirley, 6 S.W.3d at 248-50.

In the Pe tit io ner’ s cas e s, the e vid e nc e re fl e c ts a sig natur e mod us op e rand i f or the c ri me s. Ya rd wo rk e qu ipm e nt w a s stol e n f

ro m th re e ho me s. A c re a m- c olo re d Bu ic k w a s se e n at th re e ho me s, inc lud ing on e wh e re a re sid e nt c on fr on te d the Pe tit ion e r a ft e r he dr ov e a c re a m- c olo re d Bu ic k in to the drivew ay. Another

resident a lso identified the Petitioner as the man she spoke with and who was at the door to he r gar age. T he off enses oc curr ed wi t h i n an ar ea of two blocks in a brief pe riod of tim e . T he un iqu e me tho d u se d in c omm itt ing the of fe ns e s wa s drivi ng thr ou gh a n are a in a c re a mcolore d Buick and plac ing stolen yardwor k equipment i n t o t h e ca r’s trunk. One witness saw the Pe tit ion e r g e t ou t of the c ar a nd sp e ak wi th the re sid e nt, a nd thi s sa me re sid e nt la te r s a w the sa me

car backing out of a

driveway share d by two homes. The re sident obtained the lice nse plate numbe r

a ndthi s n umb e r w a s c on ve ye d to the po lic e

. Th e Pe tit ion e r wa s app re he nd e d sh ortly the re a ft e r i n the cr eam- colore d Buick with this l icense plate. All of t his evidenc e–the tim e fr ame, ge ographic al

are a, identification of the Petitioner, an d u s e o f a cr eam- colore d Buick–was re levant to show the P et i t i o n er ’s i dentity as the per petra tor of the c rimes. In view of this evidence , the offe nses share

“ su c h u nu su a l pa

rt ic ula ri tie s” that a re a so na

ble pe rs on wo uld be lie ve it unl ike ly that di ff e re nt p e op le

we re us ing thi s me tho d in the sa me ne igh bo rh oo d at the sa me app ro xim a te tim e . T he Pe tit ion e r i s not entitled to relief.

Second, the Petit ioner does not provide a ny authority for his cla im that differing victims and items involved require sever an c e o f o f f e n s e s w h e nth eoffe nses occ urre d sequentially within one day. Our supre me court has stated that mer e si milarities betwee n multipl e off enses do not esta

blish a

comm o n s c h e me o r

p la n

. St a te v

. Sh irle y , 6 S. W

. 3 d 2 4 3

, 2 4 8 ( T e n n

. 1 9 9 9 )

. I n Sh irle y , the defe ndant used a

black ski m ask, gloves, and a gun to commit several r obberie s. Id. at 249. The court stated t he methods of c ommitt ing the robberies did not revea l a suffic iently disti nctive char acte r to ref

lect a common scheme or plan, suc h that the robbe ries should not have be en tried together. I d. at 248-50 Her e, P etitioner used a unique method to commit the robberies. He use d the

same c rea m-colore d Buick and stole only yardw ork equipment. Petitioner committed the robberies in a spec ific neighborhood during a spec ific time-period. The Petitioner is not entitled to relief.

II. SUPPRESS ION HEARING TRANSCRIPT

The Petitioner conte nds he re ce i v ed the ineff ective a ssistance of c ounsel on appe al when

c ou ns e l f a ile d to inc lud e in the app e llate re c or d th e tr a ns c ri pt f ro m th e su pp re ssi on he ari ng in c a se 245041. He a sserts that t he failure of trial counsel to ensure that the testimony and the trial court’s findings were included in the record constitut ed def icient per formanc e that pre judiced the Petitioner-11-

by “pre venting the court f rom considering the matter on appea l.” He claims that Trooper Hoppe’ s hearing te stimony varied from dire ct exa mination to cross-exa mination regar ding how many times th e Pe ti ti o n e r ’ s c ar c r o s s e d th e s h o u ld e r li n e

. H e r e li e s o n St a te v

. A n n E li z ab e th Martin, No. E1999-01361-CCA-R3-CD, Ha milton C ounty (Tenn. Crim. App. 2 0 0 0 ), to claim that this court would have held the t rial court err ed in not suppressing the stop bec ause no r easona ble suspicion or probable cause that a crime had bee n committe d ex i s t ed

. The State re sponds that the trial court
proper ly denied relief because the P etitioner failed to demonstrate pr ejudice by c lear and convinc ing evidenc e.
The post -c onviction hearing testimony reveale d that counsel filed a suppression motion
rega rding Troope r Hoppe ’s stop of the Petitioner’s c ar. Counsel sum ma riz e d the trooper ’s testimony as follows. The Petitioner w ent onto the shoulder of the roa d and almost hit t he troope r with his car

. The troope r, who had been a ssisti ng others at the time, pur sued the Petitioner. Whe n he stopped the Petitioner’s ca

r, he noted the Petitioner was nervous. Because the troope r suspec ted the Petitioner mig ht h a ve be e n d ri vin g w hil e un de r the inf lue nc e , he wa nte d the Pe tit ion e r t o s ub mit to D UI te sts

. He a llowed the Petitioner to go nea r the woode d are a to re lieve himself. The Petitioner fle d. The trooper still had the Petitioner’s driver’s lice nse. Counsel testified that he a ppeale d the suppression issue. He sa id the basis for the tr ooper to stop the Petitioner’ s car was not that he ha d driven ove r the road’s white l ine i nto the s houlder but rathe r t hat he had almost struck the trooper, ther eby giving the trooper

probable cause to chase and stop the Petitioner.

Th e te sti mon y f

ro m th e su pp re ssi on he ari ng wa s a s f oll ow s. Hi gh way Patr ol T ro op e r K e vin Hoppe testified that on June 7, 2001, he wa s working and stopped to a ssist a dis ab l ed car on the southbound side of I-75. H e said that while spe aking with t h e m i d d l e-a ged couple in front of the disabled ca

r, h e s aw the Petiti oner’ s car trave ling southbound i n the “slow lane ” and c rossing

“ se ve ra l ti me s” on to the sh ou lde r, wh e re he a nd the dis able d c ar we re

. He sa id h e tol d th e ma n to step out of the way beca

use the Petitioner’s car was going to strike them. He said the Petitioner’s

car passed them a nd did not move into the “fa st lane,” e ven though there had bee n no traff ic there at the time. He sa id he did not see a license pla te on the P et i tioner’s c ar. H e expla ined that he always stood fa cing traf

fic to see oncoming traff

ic to a void being hit. He said that the Petitioner’s

car alarmed him. He said his patrol c ar w as par ked with its light s illum inated behind the disa bled vehicle. H e said the Petitioner came “very close” to the back of the patrol car

. He said he c hased the Petitioner approximate ly one mile to stop the car.

On cr oss-exa mination, Trooper H oppe testified that he did not remember either the name of the couple f

rom the disabled c ar or

the problem with the c ar, although he said he re membere d the

car ’s hood had not bee n raised. He said that the wife had been seate d in the car and that he spoke
to the hu sb a nda t the fro nt of the c ar. He de sc ri be d th e ma n a s a wh ite ma le app ro xim a te ly f if ty ye ars old . H e sa id the Pe tit ion e r dro ve ov e r the “ fo g li ne ” a t th e we st e dg e of the ro a dw a y. He sa id that there had not b ee n much traf fic a nd that most people would cha nge into the “f ast lane” when seeing a n office r stopped in the shoulder. He said the Petitioner did not change la nes and c rossed

ov e r i nto the sh ou lde r a

re a . H e sa id the Pe tit ion e r c ro sse d s o f ar int o the sh ou lde r that he wo uld have hit the patrol car . He sa id the Petitioner twice c rossed into the shoulder a nd continued to drive in the middle of the shoulder be fore he returne d to the “slow lane.” He sa id he cha sed the Petitioner-12-

beca use he thought the Petitioner might be a dr unk driver and because he saw no license pla te on the

car , both rea sons that he said he inc luded in his report.

Trooper Hoppe testified that the Petitioner’s car was betwee n 100 and 150 yar ds awa y from him wh e n th e c ar c ro sse d th e lin e int o th e sh ou lde r. He sa id h e c on tin ue d to wa tc h th e c ar u nti l it
pa sse d h im. He sa id h e watc he d th e c ar c ro ss the sh ou lde r lin e app ro xim a te ly fi ve tim e s. He sa id the P etitioner drove in the s houlder the second tim e about thirty to forty fe et behind the pa rked patrol

c ar. He sa id the c ar w a s c los e e no ug h f or him to d ist ing uis h th e drive r’ s r a c e

. He sa id the drive r d id not look at him and the disabled ca r’s drive r and pa ssenger

when he passed them.

Trooper Hoppe testified that afte r he stopped the Petitioner’s ca r, he a pproac hed the c ar on its passenger side . He sa id he saw the Petitioner moving around in the ca r. He said he a sked the Petitioner what wa s going on a nd saw the Petitioner hold his driver’s lice nse in his right hand and then d ro p i t “betwe en the se at jam.” He said that when a sked to produce his identification, the Petitioner said he must have le ft it at home. Troope r Hoppe s ai d h e t h en saw a bee r bottle on the floorboar d. He sa id he aske d the Petitioner, whom he said seeme d very ne rvous, to get out of the

c ar. Tr oo pe r H op pe sa id h e re a c he d in to the Pe tit ion e r’ s c ar a nd re tr ie ve d the Pe tit ion e r’ s li c e ns e from betwe en the seats. He said he was talking to the P etitioner, who then asked if he could relieve himself at t he “wood line.” The trooper said he noti ced a l arge garba ge bag in the front, at which he sa id the Pe tit ion e r l oo ke d n e rv ou sly . T he tr oo pe r s a id that he as ke d the Pe tit ion e r wh a t w a s in the bag a nd that the Petitioner said it was $5000 to $6000 he ha d saved. H e said he allowed the Petitioner to relieve himself at the wood line. He said, howeve r, that as he wa lked to the patrol c ar, he saw the Petitioner run aw ay. He said the Petitioner was not a pprehe nded immediately.

Tr oo pe r H op p e t e s t i f

ie d th a t he wa nte d to inv e sti gate be c a us e the Pe tit ion e r h a d in te nti on a lly hidden his identification from the of fice r. He said that he stopped the car due to the traff ic violation and to the missing license plate but that he was more conce rned that the driver was i ntoxicated. He said he smelled a lcohol on the Pet i t i o n er af ter he stopped the ca

r. On re direc t examination, the trooper te stified that he wa s unable to have the P et i t i o n er p erform the DUI tests because the Petitioner fled.

Th e tr ia l c ou rt

fo un d th a t th e tr oo pe r h a d r e a so na ble su sp ic ion to sto p th e Pe tit ion e r. It sa id the trooper

saw the Petitioner c ross into the shoulder, drive dow n the mid d l e o f t h e shoul der, a nd almost hit t he troope r. It said the P etitioner took a long time to stop and had no visible license plate.

The Petitioner cites A nn Elizabe th Martin to claim t hat briefly crossing t he sol id white line into the shoulder does not constitute a tra ffic violation, ther eby depriving the trooper of a le gal jus tif ic a tio n f or sto pp ing the Pe tit ion e r. Se e id. a t 7. W e int e rp re t th e fa c ts o f the sto p d if fe re ntl y than does the Petitioner. Rathe r than be ing pursued and stoppe d mere ly for cr ossing i n to the shoulder, as he alleges, the transcript testimony also reve als the t rooper pursued the Petitioner’ s car beca use the Petitioner almost hit the trooper, who at the time was standing on the shoulde r assisting a disabled motorist. While trial counsel’s failure to prepar e an a dequate rec ord on appe al pre cluded this court from re viewing the issue and c onstitut ed def icient per formanc e, the Petitioner ha s not demonstrated that but for trial counse l’s failure to include the transcript in the appellate re cord, the re-13-

is a rea sonable proba

bility t hat the information gained from the stop w ould ha ve been suppr essed. He is not entitled to relief

.

III . R ETA IN ED CO UN SEL

T h e P etitioner cla ims counsel provided inef fec tive assistance by waiving the Petitioner’s counsel of c hoice issue by failing to support his claim through argume nt, citation to authority, and ref ere nces to the a

ppellate rec ord. He c laims he was de nied his Sixt h Amendment right to counsel of choic e whe n the trial court d i d not grant a c ontinuance f or him to secure reta ined counse l’s
prese nce at trial. He c ites United States v. Gonza les-Lope z to claim that a “ choice -of- counsel violation occur s whene ver the defe ndant’s choice is wrongfully denied.” 548 U.S. 140, 151 (2006). Ac c or din g to the Pe tit ion e r, ha d a pp e llate c ou ns e l pr op e rl y a pp e a le d th e c ou ns e l of

c ho ic e iss ue , th is
court would have vacated the convictions and order ed new trials beca use the Petitioner was de nied his Si xth Amendment right to counsel of c hoice on the day of trial.

The S tate replies that the trial court properly de nied the petition beca use counse l had not been defic ient by failing to include citations to legal authority on this issue in his brief. The State says

c ou ns e l te sti fi e d th a t he wa s a wa re of the ne e d to pr ov ide c itatio ns to l e ga l auth ority to b ols te r h is

arg ume nt o n a

pp e a l bu t th a t no le ga l auth ority e xis te d to su pp ort th e Pe tit ion e r’ s c la im. Th e Sta te

asserts the h e a

ring testimony also showed that the Petitioner’s allege d reta ined counse l never enter ed
an appe ara nce on the Petitioner’s beha lf and t h at re tained counse l’s office had no re cord of the Petitioner’s ca se.

For another r eason, the Petitioner is not entitled to r elief. Although he cites Gonz alez -Lopez
to s a y he ha s a n abs olu te ri gh t to c ou ns e l of c ho ic e , e ve n to a sse rt thi s r igh t on the fi rs t day o f t ri a l, he ignore s the rest of the case , in which the Supre me Court states that their holding did not lim it “the
tr ia l c ou rt ’s wi de la titud e in b a la nc ing the ri gh t to c ou ns e l of c ho ic e a ga ins t

. . . th e de ma nd s o f i ts

c a le nd ar. ” 54 8 U .S. a t 15 2. Th e Cou rt re fe rs to Mor ri s v. Slap py , 461 U. S. 1, 11- 12 (1 98 3) , to st a te that :

“ [t ]ria l ju dg e s n e c ess ari ly r e qu ir e a gr e a t de a l of

la titud e in scheduling trials. Not the least of t heir problems is that of asse mbling the witnesses, law yers, a nd jurors at the same place at the same time, and this burden c ounsels against continuanc es exc ept for c ompelling

re a so ns . Co ns e qu e ntl y, br oa d disc re tio n must be gr a nte d tria l c ou rt s

on m att ers of

continuance s; only an unrea soning and arbitra ry ‘i ns ist e nc e up on e xp e dit iou sn e ss in th e fa c e of a jus tif ia ble re qu e st for de lay’ violates the right to the assistance of c ounsel.”

Id., 461 U.S. at 11-12 ( quoting Ungar v. Sara fite, 376 U.S. 575, 589 (1964))

.

The Petitioner has not demonstrated a re asonable probability that the result of the pr ocee ding would have be en diffe rent if c ounsel had a rticulated and supported thi s issue on direc t appea l. He is not entitl ed to re lief.-14-

Ba se d o n the fo re go ing a nd the re c or d a s a wh ole , w e a ff

ir m th e jud gme nt o f the tr ia l c ou rt

.

___________________________________ JOSEPH M. TIPTON, PRES IDIN G JUDGE