FILED

October 16, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

OCTOBER SESSION, 1998

REIKO NOLEN, )

) No. 02C01-9711-CC-00441

Appellant )

) DYER COUNTY

vs. )

) Hon. J. STEVEN STAFFORD, Judge

STATE OF TENNESSEE, )

) (Post-Conviction)

Appellee )

For the Appellant: For the Appellee:

William K. Randolph John Knox Walkup

422 N. Church Street Attorney General and Reporter

P. O. Box 611

Dyersburg, TN 38025-0611 Marvin E. Clements, Jr.

Assistant Attorney General

Criminal Justice Division

425 Fifth Avenue North

2d Floor, Cordell Hull Building

Nashville, TN 37243-0493

C. Phillip Bivens

District Attorney General

P. O. Drawer E

Dyersburg, TN 38024

OPINION FILED: 

AFFIRMED

David G. Hayes

Judge
1

The appellant was also charged with attempted first degree murder. This charge was

ultim ately dism issed by the trial c ourt a s the jury fa iled to reac h an u nanimo us ve rdict a s to th is

count.

2

The appellant’s conviction stems from an incident on September 17, 1994, in which the

appellant, acting in concert with other unidentified persons, pursued the victim 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 denied, (Tenn . Jan. 27, 1 997). “T he victim was flow n to

Memphis where he was hospitalized for three weeks. The bullet could not be removed. The

victim unde rwen t exte nsive physic al therapy to learn to walk ag ain. H e also lost contro 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 appellant collaterally attacks

his aggravated robbery conviction upon grounds of ineffective assistance of counsel. 

Specifically, he contends that his trial counsel was deficient for failing to discredit the

State’s proof of “serious bodily injury,” an essential element of the convicting

offense.

After review of the record, we affirm the trial court’s denial of post-conviction

relief.

Analysis

In July 1995, the appellant was convicted of one count of especially

aggravated robbery1

 and was sentenced to twenty years in the Department 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 appellant is currently confined at Northwest Correctional

Center in Tiptonville.
3Although the trial court acknowledged that the appellant had previously raised the issue

of ineffec tive assista nce of c ounse l on direct ap peal, see Nolan, No. 02C01-9601-CC-00008

(finding the appellant’s claim that counsel was ineffective for opening the door regarding a prior

incident with the victim without merit), the court proceeded to address additional allegations of

ineffectiveness raised for the first time in the post-conviction petition. However, ineffective

assistance of counsel is generally a "single ground for relief" under the post-conviction statute.

Cone v. State, 927 S.W .2d 579, 5 81-82 (T enn. Crim. Ap p.1995 ), perm. to appeal denied,

(Tenn .1996), cert. denied, --- U.S. ----, 117 S.Ct. 309 (1996). "[T]he fact that such violation may

be proved by multiple acts or omissions does not change the fact that there remains only one

ground for relief." McC ray v. State, No 01C01-9108-CR-00255 (Tenn. Crim. App. at Nashville,

Sept. 11, 1992). A ground for relief has been “previously determined” when “a court of competent

jurisdiction has ruled on the merits after a full and fair hearing.” Tenn. Code Ann. § 40-30-

206(f)(1 996 Supp.). A petitio ner m ay not re-litigate previo 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 appellant offers no explanation as to why these additional alleged acts and

omissions were not raised when the issue of counsel's effectiveness was litigated on direct

appeal. T hus , the a ppellant’s claim s in this app eal ar e waived b ecause they have b een prev ious ly

determined. Notwithstanding, we elect to review the claim 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-conviction relief. 

This petition was subsequently amended on May 22, 1997. As grounds for relief,

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

 On

June 6, 1997, following an evidentiary hearing, the trial court denied the appellant

relief. In dismissing the petition, the trial court found, specifically to the issue now

before this court, that:

The incident giving rise to the prosecution of this case involves the

shooting of the victim. The victim was questioned about his injuries

and their effect on him on pages 41-43 of the trial transcript. The

victim stated that after he was 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 approximately three

weeks. He also testified that he still had the bullet in his back and that

when he left the hospital he was 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 bars and then crutches. At the time of the trial, the

victim testified that he had only been off of crutches for approximately

11⁄2 months. The victim further testified that as a result of the shooting,

he was unable to control his bladder and that he was required to wear

adult diapers. He called this a permanent problem.

The petitioner has presented no evidence as to how Davis [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 injury. . . . This Court finds this issue to be without

merit.

To succeed in a post-conviction claim of ineffectiveness, the appellant must

show, by clear and convicting evidence, Tenn. Code Ann. § 40-30-210(f) (1996
4

"Serious bodily injury” means bodily injury which involves: (A) A substantial risk of death;

(B) Protracted 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 counsel 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, 2064 (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 proof is overwhelming that the victim suffered “serious bodily injury”

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

Contrary to the appellant’s argument, even considering information possessed by

trial counsel that the victim “could tell when [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 seriousness of the injuries sustained by the victim. Indeed,

it is difficult to conceive how any cross-examination by trial counsel relating to the

victim’s injuries could have changed the facts before the jury or the ultimate

outcome of this trial. Clearly, the appellant has failed to carry his burden of

establishing his claims. Additionally, we cannot conclude that the evidence

preponderates against the trial court’s findings of fact. See Davis v. State, 912

S.W.2d 689, 697 (Tenn. 1995). 

As a result, we find no error of law requiring reversal. The judgment of the

trial court dismissing the appellant’s petition for post-conviction relief is affirmed.
5

____________________________________

DAVID G. HAYES, Judge

CONCUR:

____________________________________

JOHN H. PEAY, Judge

____________________________________

L. T. LAFFERTY, Senior Judge