# FILED March 9, 2000 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE FEBRUARY

2000 SESSION
WILLIAM LEWIS HOWELL, ) ) NO. E1999-01502-CCA -R3-PC Appellant, ) ) KNOX COUNTY VS. ) ) HON. MARY BETH LEIBOWITZ, STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPELLANT : LESLIE M. JEFFRESS P. O. Box 2664 Knoxville, TN 37901 FOR THE APPEL LEE : PAUL G. SUMMERS Attorney General and Repor ter R. STEPHEN JOBE Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 RANDALL E. NICHOLS District Attorney General CHARME J. KNIGHT Assistant

District Attorney

General 400 Main Street P. O. Box 1468 Knoxville, TN 37901- 1468

OPINION FI LED:

AFFIRMED
JOE G. RILEY, JUDGE1 The sum m ary dismissa ls were ordere

d by Judge Ra

y L. Jenkin

s. Judge Mary

Beth Leibowitz conducted the hearing on the merits.

2 Petitioner was sentenced for joyriding in 1985. At that time

joyr idi ng wa s a f elo ny. Th e Sentencing Act o

f 1989, not releva

nt here, provide

s that the unauthor

iz ed use of a n automobile is a Class A misdemeanor. See Tenn. Code Ann. § 39-14-106. 2 O P I N I O N Petitioner, William Lewis Howell, appeal s as of right t he KnoxCounty Criminal Court’s dismissal of his petition for post-conviction rel ief. The sole issue forreview is w

hether petitioner was depr ived of the effective assistanc e of counsel with regard to his 30-y

ear sentence for his 1986 conv iction for aggravate

d sex ual battery. After careful rev iew, we AFFIRM the dismissal of the petition.

PROCEDURAL HISTORY

Petitioner

was convicted

of aggravated sexual

battery in 1986, was classified as a Range II especially aggravated offender, and received a sentence of 30 years. See Tenn. Code Ann. § 40-35-107 (1982).The conviction and s enten ce were affirmed by this Court on dir ect appeal. State v. William Howell , C.C.A. No. 1113, Knox County (Tenn. Crim. App. fil ed June 30, 1987, at Knoxville) . Petitioner sought post-convictionrelief. A fter two su mmary dis missals b y the trial c ourt and two remands from this Court, this matter was heard on the merits i n Janu ary 1999. 1 Following the heari ng, the trial court di smissed the petition.

FACTUAL BA

CKGROUND

The relevant facts are undisput ed. At the time of commission of the instant aggravatedsexual battery, petitioner was on bail fortheft of an automobile. Prior to his convict ion and se ntence f or aggravat ed sexual battery, petitioner entered into a plea ag reement in 1985 i n the aut omobile theft case whereby he

pled guilty to the lesser-includedfelony offense of joyriding. See Tenn. Code Ann. § 55-5-104. 23 As noted infra , this same language appears in the 1989 Sen tencing Act as an

enhancement factor. See Tenn. Code Ann. § 40-35-114(13)(A)(1997). 3 When petition er wa s sente nced for aggravated sex ual battery in 1986, he w as deemed an especially agg ravated offender based upon the trial court’s finding that the sexual offense was committed w hile the defendant was

on bail for a prior felony and was “ultimately convi cted of such prior felony.” See Tenn. Code Ann. § 40-35- 107(3)(A)(1982) (repealed and reenacted 1989). 3

Trial counsel did not raise any sentencing issues on dir ect appeal. Petitioner now claims his trial couns

el was ineffective for failing to argue that his conv

iction for the lesser-included felony offense of joyridingwas different f rom the original ch arge of automobile theft; therefore, he contends it could not serve as the basis for the especially aggr

avated offender status. We respectfully disag ree.

ANAL YSIS

Thi s Court reviews a claim of ineffective assistance of counsel under the standards of Baxter v. Ros e , 5 23S. W. 2d 930 (Tenn. 1975), and Stricklan d v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner has the burden to prove that (1) the attorney’s performance w as deficient, and (2) the deficient performance resulted in prejudice to the defendant so as to depriv e him of a fair trial. Strickland , 466 U.S. at 687, 104 S.Ct. at 2064; Goad v. State , 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State , 874 S.W.2d 6, 11 (Tenn. 1 994); Butler v. State , 789 S.W.2d 898, 89 9 (Tenn. 1990).

In order to address the issue of ineffective assistance of counsel , w e must interpret Tenn. Co de Ann. § 40-35-107(3)(A)(1982) which defined an “especially aggravated offense” as:

(3) A felony comm itted whi le on any of the following forms of release status if such relea se is from a prior felony c onviction:4 (A) Bail, if the defendant is ultimatel y convicted of

such prior felony ...

It is undisputed that petitioner was on bail for automobile theft when the instantoffense was committed. It is further undispute d that prior t o the inst ant conviction and sentence, he pled guilt y to the lesser-incl uded felony offense of joyridingand not automobile theft. Thus, the iss ue is whether a lesser -included felony offense is encompassed within “such prior felony” as used in the statute. For criminal offenses, a statute should be construed according to the fair import of their terms in order to

promote justice and to effect the objec tives of the criminal code. State v. Lewis , 958 S.W.2d 736, 739 (Tenn. 1997).
Although the 1989 Sentencing Act no l onger recognizes an especially aggravatedoffense, m uc h of the language of the former especia lly aggravate d offense statute , Tenn. C ode Ann. § 40-35-1 07(1982 ), now a ppears u nder the enhancement factors section of the present code. See Tenn. Code Ann. § 40-35- 114 (1997). In fact, Tenn. Code Ann. § 40- 35-114 (13 )(A)(1997) u ses the exact language utilized in former Tenn. Co de Ann. § 40-35-107(3)(A)(1982). This Court has applied this enhancement factor under the 1989 Act where the defendant was on bail for aggravated a ssault and was ul t imately convicted of felony reckless endangerment. See State v. Larry Michael Willia ms , C.C.A. No. 02C01-9201-CC00010, Carroll County (Tenn. Crim. App. filed July 1, 1992, at Jackson).

We are of the opinion that a pers on on bai l for a felony offense, who committ ed another felony , was an especially aggravated offender under Tenn. C ode Ann. § 40-35-107(3)(A)(1982) ; provided that person w as ultimately convicted of that speci fic prior felony or a less er-included felony offense. The emphasi s of the statute is upon the prior felony conviction, not a specific felony.5 CONCLUSION

We conclude that counsel was not ineffective for failin g to r aise this sente ncing issue since petitioner w ould not have prevailed on the issue. Concluding that petitioner has failed to establish prejudice as a result of counsel’s performance, we AFFIRM the judgment of the trial cour t.

______________________________ JOE G. RILEY, JUDGE

CONCUR:

_______________________________ THOMAS T. WOOD

ALL, JUDGE

________________________________ JAMES CURWOOD

WITT, JR., JUDGE