# FILED

October 16, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk 

## IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON OCTOBER SESSION, 1998

REIKO NOLEN, ) ) No. 02C01-9711-CC-00441 Appellant ) ) DYER COUNTY vs. ) ) Hon. J. STEVEN STAFFORD, Judge STATE OF TENN ESSEE, ) ) (Post-Conviction) Appellee )

For the Appellant : For the Appellee : William K. Randolph John Knox Walkup 422 N. Church Street Attorney General and Repor ter P. O. Box 611 Dyersburg, TN 38025-0611 Marvin E. Clement s, Jr. Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493
C. Phillip Bivens District Attorney General P. O. Drawer E Dyersburg, TN 38024

OPINION FILED:
AFFIRMED

David G. Hay

es Judge1 The appellant was also charged with attempted f irst degr ee murder. This charge was ultim ately d ism isse d by th e trial c ourt a s the jury fa iled to reac h an u nan imo us ve rdict a s to th is count.

2 The appellant’s conviction stems from an inci dent on September 17, 1994, in whi ch the appellant , acti ng in concert with ot her unident ified persons, pursued the victi m throughout Dyersburg, ultimately shooting the victim in the lower back and taking a beepe r and thirty-five dollars from his perso n. See State v. Nolan , No. 02C01-9601-CC-00008 ( Tenn. Crim. App. at Jack son, Au g. 2, 1996 ), perm. to appeal de nied , (Tenn . Jan. 27, 1 997). “T he victim was flow n to Memphis where he was hospital ized for three weeks. The bul let coul d not be removed. The victim unde rwen t exte nsive physic al the rapy to learn to wa lk ag ain. H e also lost c ontro l of his bladder.” Id

. 

## 2 OPINION

The appellant, Reiko Nolen, appeals the Dyer County Circuit Court’s dismissal of his petition for post-conviction relief. The app ellant collaterally attacks his aggravated robbe ry conviction upon g rounds of ineffective assistance of counsel. Specifically, he contends that his trial counsel w as deficient for failing to dis credit the State’s proof of “serious bodil y injury,” an ess

ential element of the convicti ng offense.

After review of the recor d, we affirm the trial court ’s denial of post-convic tion relief.

Analysis

In July 1995, the appellant was convicted of one count of especia lly aggravated robbery 1 

## and was sentenced to tw enty years in the Dep

artment of Correction. 2 

## His conviction and sentence were affirmed on direct appeal to this
court. See State v. Nolan , No. 02C01-9601-CC-00008 ( Tenn. Crim. App. at Jackson, Aug. 2, 1996), perm. to appeal denied , (Tenn. Jan. 27, 1997). As a result of this conviction, the appel lant is currently c onfined at Northwest Corr ectional Center in Tiptonville.3 Although t he trial court acknowledged that the appellant had previousl

y raise d the issue of ineffec tive assista nce of c ounse l on direct ap peal, see Nolan , No. 02C01-9601-CC-00008 (findi ng the appell ant’s cl aim that counselwas ineffect ive for op ening the door regarding a prior incident with t he victi m without merit) , the court proceeded to addr

ess additi onal all egations of ineffectiveness raised for the first time in the post-conviction petition. However, ineffective assistance of counsel is gen erally a "singl e ground for re lief" under the post-convict ion stat ute. Cone v. State , 927 S.W .2d 579, 5 81-82 (T enn. Cr im. Ap p.1995 ), perm. to appeal de nied , (Tenn .1996), cert. deni ed , --- U. S. ----,117 S.Ct. 309 ( 1996). "[ T]he fact tha

t such violation may be proved by mult iple act s or omissions does not change the fact

that th ere remains only one ground for relief." McC ray v. State , No 01C01-9108-CR-00255 (Tenn. Cr im. App. at Nashvi lle, Sept. 11, 19 92). A ground f or reli ef has been “previously det ermined” when “a court of competent jurisdi ction has r uled on the meri ts after a full and fair hea ring.” Tenn. Code Ann. § 40-30- 206 (f)(1 996 Sup p.). A petitio ner m ay not re-litig ate p revio usly de term ined g roun ds fo r relief sim ply by adding f actual ba sis for an ineffective assistan ce of co unsel cla im. Cone , 927 S.W.2d at 581-82. The appel lant off ers no explanat ion as to why these addit ional al leged acts and omissions were not r aised when the issue of counsel' s effecti veness was li tigate d on direct app eal. T hus , the a ppe llant’s claim s in th is app eal ar e wa ived b eca use they h ave b een prev ious ly determined. Not

withstandi ng, we elect to revi ew the clai m presented sub judice as the trial court resolved the issue on its m erits.



## 3 On March 26, 1997, the appellant filed a petition for post-conv iction relief. This pet ition w

as subse

quently amende

d on May

22, 1997 . As gr

ounds for

relief, the petition asserted various claims of ineffective assistance of trial counsel. 3 

## On June 6, 1997, following an ev identiary hearing, the trial court denied the appel lant relief. In dismissing the petition, the trial cour t found, specifically to the i ssue now before this court, that: The incident giving rise to the prosecution of thi s case involves the shooting of the victim. The v ictim was questioned about his injuries and their effect on him on pages 41-43 of the trial transcript. The victim stated that after he w as shot, he was in bad pain and that he had to be airlifted to Memphis to the hospital. He stated that he was required to stay in the hospital in Memphis for appr oximately three weeks. He also testified that he still had the bulle t in his back and that when he left the hospital he w as not able to walk. He further stated that he was still in therapy and that during his therapy, he had to walk first using parallel b

ars and then crutches. At the time of the trial, the victim testified that he had only been off of crutch es for approximately 11⁄2 months. The victim further te stified that a s a result of the shooting, he was unable to control his bladder and that he was r equired to wear adult diaper

s. He call ed this a per

manent proble m. The petitioner has presented no ev idence as to how Davi s [the appellant’s trial counsel] could rebut any of the victim’s testimony. It is clear that the evidence presented by the victim substantiates a claim for serious bodily inj ury. . . . This Court finds this issue to be wi thout merit.

To succeed in a post-conviction claim of ineffect iveness, the appellant must show, by clear and c

onvicting evidenc

e, Tenn. Code Ann. § 40-30-210(f) (19964 "Serious bodi ly i njury” means bodily i njury whi ch involv es: (A) A substantialrisk of deat h; (B) Protract

ed unconsciousness; (C) Extreme physical pain; (D) Protracted or obvious disfigurement; or (E) Protracted loss or sub stantial impairment of a function of a bod ily mem ber, orga n or m ental facu lty.” 

## 4 Supp.), that the services rendered by trial coun sel were deficient and that,but for the deficient performance, the results of the proceeding would have been different. Strickland v. Washington , 466 U.S. 668, 687 104 S.Ct. 2052, 20 64 (1984). In determining whether the appellant received effective assistance of counsel, this court must remain mindful that it is not our function to second guess trial counsel's tactical and strategic

choices on matters of defense, unless these choices are made without knowledge of the relevant facts or the law applicable to the issue. Hellard v. State , 629 S.W.2d 4, 9 (Tenn.1982); State v. Swanson , 680 S.W.2d 487, 490 (Tenn. Crim. App.1984).

The proo f is overwhe lming tha t the victi m suffe red “serio us bodily i njury” within the purview

of the statute. See Tenn. Code Ann. § 39-11-106(a)(33) (1991). 4 

## Contrary to the appellant ’s argument, even consi dering information possessed by trial counsel that the v

ictim “could tell w

hen [he] needed to go [to the bathroom]” and that he could move his legs but not his toes, we fail to see how this information would have negated the s eriousness of the injuries s ustained by the victi m. Indeed, it is diff icult to co nceive ho w any cross-examination by

trial counsel relatin g to the victim’s injuries

could have changed the facts before the jury or the ulti mate outcome of this trial. Clear ly, the appellant has failed to carry his burden of establishing his claims. Additionally, we cannot conclude that the evidence preponderates against the tr ial court’s findings of fact. See Davis v. State , 912 S.W.2d 689, 697 (Tenn. 1995).

As a result, we find no er ror of law requiri ng reversal. The judg ment of the trial court dismissi ng the appellant’s petitio n for post-conviction r elief is affirmed.

## 5 ____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

____________________________________ JOHN H. PEAY, Judge

____________________________________ L. T. LAFFERTY, Senior Judge