# FILED

September 17, 1997 Cecil Crowson, Jr

. App ellate C ou rt Clerk IN THE COUR T OF CRIMIN AL APPEALS OF TENN ESSEE AT JACKSON APRIL 1997 SESSION

ROBERT E. PARKER, ) NO. 02C01-9605- CR-00143 ) Appellant ) SHELBY COUN TY ) V. ) HON. JOSEPH B. DAILEY, JUDGE ) STATE OF TENNESSEE, ) (Post-Conv iction) ) Appellee ) FOR THE Appell ant FOR THE APPELLEE Thomas C. Fila John Knox Walkup One Memphis Place Attorney Gen eral and Repor ter 200 Jefferson Avenue, Suite 1025 450 James Roberts on Parkway Memphis, Tennessee 38103 Nashvil le, Tennessee 37243- 0493 Clinton J. M organ Assistant Att orney Gener al 450 James Roberts on Parkway Nashvil le, Tennessee 37243- 0493 John W. Pierotti Distric t Attorney General 201 Poplar Av enue Memphis, Tennessee 38103-1947 David Henry Assistant D istrict A

ttorney Gener

al 201 Poplar Av enue Memphis, Tennessee 38103-1947

OPINION FILE D:______

AFFIRMED

W illiam M. B arker, Ju dge2 Opinion The appellant, Rober

t E. Parker, appeals as of ri ght the judg ment of the Shelby County Cr iminal Court

dismissing his petitio n for post-conv iction rel ief. He argu es on appeal that the tr ial court er red in finding that he receiv ed the effective ass istance of counsel. He c ontends that the tr ial court w as in error

because his tr ial counsel failed to conduct an adequate investigation, f ailed to adequately and eff ectively confer with him prior to tr ial, and failed t o secure the att endance at trial of two wi tnesses the appel lant beli eved favo rabl e to h is de fen se. Fo llowin g our re view of the re cord on ap pea l, we find no rever

sible erro r and affirm the tri al court’s dismissal of the post-convi ction petition. On July 9, 1991, a robbery occurred at Butler’s Sundry in Memphis, Tennessee. Duri ng the cours e of the robbery , Gloria But ler was shot and injured and approximatel y seven hundred dollar s ($700.00) was stolen by two assai lants. After the robbery , Ms. Butler identified the appel lant through a photographic lineup as one of the two robber

s, and he was

arrested soon thereafter. Fol lowing his arres t, the appellant gav

e a statement to the police admitti ng that he had par ticipated, al ong wit h a co-defendant, in th e robbery. Before trial, the appellant’s attorney moved to suppress the appe llant’s confess ion, but the motion was ov erruled follow ing an evidentiar

y hearing

. At trial, G loria Butler

positiv ely identi fied the appellant as one of the robbers. Additionally , the State intr oduced the appellant ’s confession. The jury ther eafter convicted the appellant of especially aggravated robbery. He was sentenced to a term of thirty years imprisonment as a Range II off ender. He appealed his conviction to this court and w e affirmed. State v. Ro bert Parker , C.C.A. No . 02C01-9307-C R-00138 (Tenn. Crim. Ap p., Jackson, J uly 13, 1994) . No applic ation for permiss ion to appeal was filed i n our supreme cou rt. How ever, on Sept ember 7, 1994, the appel lant filed a pro se post-conv iction rel ief petition all eging that he receiv ed ineffective ass istance of3

counsel. The post- convicti on court appointe d counsel to represent the appel lant, an amended petition was filed, and an ev identiary hearing was conducted. The only two witness es to testify at the evid entiary hea ring w ere the appellant and his former coun sel. The appella nt testified that he was housed in the Shelby County Jail from the time of his arrest awaiting trial and that counsel’s visits to him were infrequent and not productive. He said that no rapport developed between him and his counsel and that she would not file pre trial motions which he suggested. Howeve r, he failed to s pecify the natur e of any motions herequested or that he was prejudiced ther

eby. Additi onally, he testified that he fur nished his cou nsel the names of two wi tnesses he thoug ht favorable to his defense, but nei ther of them was called to testify on his behalf at trial. Althou gh he offered no specifics, he generally felt that his trial couns el had inadequat ely investigated hi s case. The State called t he appellant’s trial couns el as a wi tness. She test ified that she is employ ed by the Shel by County Public Defender ’s office and that office had represented the appellant init ially i n the general sessions co urt, then the tr ial court, and finally on his appeal to t his court. She was ass igned to repr esent the appellan t following his indict ment in the cri minal court, a nd she met wi th him on numerous occasions. S he testified that i nvestig ators from the publ ic defender’s office ha d intervi ewed all o f the witness es for the State and t hat she had been g iven acces s to the entire file of the prosecutor for review . She further tes tified that she i nquired of the appellant on two occasions c oncerning any witness es that he desir ed on his behalf at trial, and on both occasions he indicated that he had none. On one s uch occasion, he placed his i nitials in his counsel’ s file indicat ing that he des ired that no w itnesses be subpoenaed. Appellant’s counsel also testif ied that she filed a mo tion to suppress his confession and th at the trial court had overruled the motion following an evidentiary hearing. It was her view that with the eyewitness identification and the appellant’s confession, there was a str ong likel ihood that the appel lant would be convic ted and4

sentenced as a R ange II offender if he went to trial. According ly, she neg otiated a proposed plea bargain agreement with t he State whi ch would hav e allowed the appellant to receive a twenty year sentence as a Range I standard of fender upon his plea of guilty . The appellant rejected the plea bargain offer and i nsisted upon tr ial. Followi ng the evi dentiary he aring, the trial cour t entered an order

finding that the appellant’s counsel ha d provided him with “excellent representation,” both bef ore and during hi s trial. Accordingl y, the tri al court dis missed the petit ion for postconvicti on relief. In review ing an appell ant’s Six th Amendment claim of in effective assis tance of counsel, this

Court must dete rmine whethe r the advi ce giv en or serv ices rendere d by the attorney are withi n the range of compet ency demanded of attor neys in cr iminal

cases. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a claim of ineffective assistance o f counsel, a petitione r “must show that counsel’s representation fell be low an objective standard of reasonab leness” and that this performance prejudi ced the defense. There mus t be a reasonableprobability that but for counsel’s e rror, the r esult of the procee ding wou ld have been di fferent. Strickland v. Washington , 466 U.S. 668, 687 -88, 692, 694, 104 S . Ct. 2052, 2064, 2067-68, 80 L. Ed. 2d 674 (1984); Best v. Stat e , 708 S.W.2d 421, 422 (Tenn. Crim. App . 1985). The evidence introduced at the post -conviction hearing clearly supports the trial court’s finding that appel lant’s tri al counsel i nvestig ated his case s ufficiently. An investi gator from the public defender ’s office interv iewed the St ate’s potential witness es. The appellant’s c ounsel obtained th e State’s entir e file in disc overy and reviewed it. She also, on at leas t two occa sions, asked t he appellant if he c ould think of any witness es to call in h is defense, but he responded in the neg ative. The appel lant’s tri al counsel filed and presented a motion to suppre ss his confessi on. At the post-conviction hearing, the appe llant claimed that two witnesses, whose testimony w

ould have ex

onerated him, shoul d have been cal led to testify at trial. Howeve r, the testimony of those witn esses was not presented at the post-conv iction5

hearing, and we may not speculate on the substance of their testimony. See Blac k v. State , 794 S.W.2d 752, 757 (Tenn. Crim. App . 1990). The findings of fact by

a trial co urt followi ng an evi dentiary he aring on a pe tition for post-conv iction rel ief are afforded the w eight of a jur y ver dict, and this

Court w ill not set aside the trial court’s judgment unless th e evidence contained in the record preponderates ag ainst those findi ngs. See State v . Adams , 859 S.W.2d 359, 361 (Tenn. Crim. Ap p. 1992); State v. Ki llebrew , 760 S.W.2d 228, 233 (Tenn. Crim. App

. 1988). The trial court determi ned that the defendant w as not denied his constitutiona l right to t he effective assi stance of counsel, and the evidenc e in the recor d on appeal does not preponderate against t hose findings. According ly, the tr ial court i s affirmed.

WILLIAM M. BARKER, JUDG E

CONCUR:

JOSEPH M. TIPTON , JUDGE

DAVID G. HA

YES, JUDG E