# FILED
December 23, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE NOVEMBER 1997 SESSION

ALLEN GARY LORD ) aka GARY ALLEN LORD, ) ) C.C.A. No. 03C01-9610-CR-00384 Appellant, ) ) Hamilton County V. ) ) Hon. Douglas A. Meye r, Judge STATE OF TENN ESSEE, ) ) Appellee. ) (Post-Convicti on) ) )

FOR THE APPE LLANT: FOR THE APPELLEE: Neal L. Thompson John Knox Walkup 615 Lindsay Street, Suite 150 Attorney General & Repor ter Chattanooga, TN 37403 Michael J. Fahey, II Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 William H. Cox, III District Attorney General Yolanda Mitchell Assistant District A

ttorney General Courts Building, Suit

e 300 Chattanooga, TN 37402

OPINION FILED: _______________________
AFFIRMED
PAUL G. SUMM ERS, Judge

O P I N I O N-2- The appellant, Allen Gary Lor d, alias Gary Allen Lo rd, appeals the denial of his request for post-conviction relief. The appellant was convicted in March 1993 of second degree murder and abuse of a corpse. He was sentenc ed to consecutive sentences of tw enty-two years for murder and six year s, as a career offender, for abuse of a corpse . On direct appeal this Court affirmed his convic tions. In 1996, the post -convi ction c

ourt den ied the r

equest for reli ef.
The appellant presents four issues for our review: ( 1) whether his attorney was ineffective during

the guilt phase of his tri al; (2) whether his attorney was ineffective during his se ntencing hearing; (3) whether the appellant w as improperly classified as a career offender because the sentencing statute is unconstitutionally vague; and (4) whether the reasonable doubt jury instruction is unconstitut ional. We affirm.
In his first issue, the appel lant asserts that his attor ney was ineffective at the guilt phase of his tria l. His argument is th reefold: that his attorney fail ed to research the law regarding the abuse of a corpse cha rge, failed to show the violent past of the victim, and failed to call as a w itness the police officer the victim had kidnapped.
The state argues that the appell ant’s attorney was no t ineffective at the guilt phase of the trial. First, the state asserts that the appellant’s attorney researched the law and di scussed with the coroner his findings. Therefore, the state maintains that the appellant ’s attorney investi gated the issue “to the furthest possible extent.” Second, the state contend s that the appellant’s attorney elicited “most

of the victim’s past behav ior and crimes through the victim’s girlfr

iend,” and also brought out that the victim had spent a s ubstantial amount of time in prison. Finall y, the state asserts that the appellant’s attorney chose not to call the police officer as a witness because he did not believe that-3- the officer would be a favorabl e witness for the appellant and because he believed that the victim’s girlfriend’s v ersion of the facts were more fav orable to the appellant’s case than the officer ’s version would have been.
To be granted relief on the gr ound of ineffective assistance of counsel , an appellant must establish that the advice given or the services rendered were not within the competence demanded of attor neys in criminal cas

es and that, but for counsel’s deficient performance, the result of his or her tri al would have been different. Strickland v. Washington , 466 U.S. 668 (1984). In Tenness ee, the appropriate test is wh ether counsel’s performance w as within the range of competence demanded of attorneys in cr iminal cases. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975).
In post-conviction pro

ceedings, petitioners bear the burden of proving their allegations by

a preponderance of the evidence. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990); McBee v. State , 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, the trial court’s find ings of fact in post-conviction hearings are conclusive on appeal unless the evidence preponderates against those find ings. Butler v. State , 789 S.W.2d 898, 899 (Tenn. 1990); State v. Buford , 666 S.W.2d 473, 47 5 (Tenn. Crim. App. 1983); Clenny v. State , 576 S.W.2d 12, 14 (T enn. Crim. App. 1978).
Based upon the record before us, the appellant’s trial attorne y attempted to accomplish what the appellant now complains about in his brief. It app ears that the appellant’s trial attorney prepared the best de fense strategy for the appellant that he could, giv en the facts of the case. This Court finds that the appellant has failed to carry the burden of establishing that his attorney was ineffective. The evidence does n ot preponderate against the pos t-conviction court’s findings. This i ssue is without merit.-4- In his second issue, the appel lant argues that his tri al attorney was ineffective at the sentencing phase. He asserts that his attorney failed to introduce medical records at sentencing which would have mitigated his sentence. Before his arrest i n the victim’s death, the appellant on September 26, 1992 filed a complaint against po lice officers for shooting hi m. At the time, the appellant was at Erlang er Hospital for treatment of a cut on one of his fingers. He was subsequently

arrested because he was i ntoxicated and because he w as hostile toward police

officers. On September 27, 1992, the appel lant was taken to Moccasin Bend Mental Hea lth Institute because of his ar rest and his behavior. Five days later he left Moccasin Bend and that same day gave a statement to the police about the murder.
The state argues that the appell ant’s trial attorney was not ineffective at the sentencing phase. In it s brief, the state asserts tha t appellant’s trial attor

ney did review the medic

al records from Moccasin Bend; and although he did not interview the appellant’s two doctors, both doctors at Moccasin Bend indicated in their reports “that Lord presented no psychosis.” The appellant’s trial attor ney maintained that the medical recor ds did not show a diminis hed capacity or support a mitigated sentence. However, the appell ant contends that his trial attorney never rev

iewed these medical records “until the day of the PostConviction trial.” Furthermore, the state argues that on direct appeal, this Court noted that consecutive sentenc ing was based on the tr ial court’s finding that the appellant had an extensiv e criminal history and was a dangerous offender. Thus, the state maintains that had thes e medical records been intr oduced, consecutive sentencing would still have been warranted.
The appellant’s trial attor ney testified at the post-con viction hearing that the appellant’s defense was self-defense , not insanity. Furthermore, this Court noted on direct appeal that consecutive sentencing was based on the ap pellant’s criminal record and status as a dangerous offender. The appellant has failed to-5- carry the burden of proving that his trial attorney was deficient. This issue is without merit.
In his third issue, the appel lant argues that Tenn. Code Ann. §§ 40-35- 108 and 117 (1990) are unconstitutional. He contends that Tenn. Code Ann. § 40-35-108(b)(2) (1990) is “so vague that men of common intelligence must necessarily guess as to its meaning and differ as to its application.” Als o, he challenges Tenn. Code Ann. § 40- 35-117(c) (1990) as ambig uous “by inferring that all crimes committed prior to July 1, 1982, shall not be included in determining the classification of a defend ant under the 1989 Sentencing Act.” Therefore, the appellant’s argument is that his pre-1982 conv ictions should not have been used to classify him as a career offender.
The state, however, argues that Tenn. Code Ann. § 40-35-108(b)(2) is clear that “[a]ll pri or felony convictions including those occurr ing prior to November 1, 1989, are incl uded” in calculating w hether a defendant is a career offender. Furthermore, the state in its brief notes that this Cou rt has interpreted the statute based on its clear meaning: “There appears to be no doubt that the legislature intended to per mit consideration of all pri or felony convictions occurring during the defendant’s life.” State v. Wright , 836 S.W.2d 130, 136 (Tenn. Crim. App. 1992). Therefore, the state maintains that the lang uage in the statute is clear and that the appellant was properly classified as a career offender.

We agree with the state that the statutes challenged by the appell ant clearly indicate that

all felony convicti ons during a defendant’s lifetime may be considered when deciding whether to classifiy him as a career offender. This issue is without meri

t.-6- In his final issue, the appell ant argues that the term “mor al certainty” in the trial court’s reasonabl e doubt jury instructi on violates the due process provision of the United States Constituti on. Although the state notes tha t the record does not contain the trial court ’s reasonable doubt jury instruction, it asser

ts that the courts of this state have det ermined that the use of this term does not render the reasonable doubt jury ins truction unconstitutional.

The record before us does not contain the jury instruction s given at the trial. It is the appellant’s responsibility to prepare a record that includes all material necessary for di sposition of his appeal. Tenn. R. App. P. 24(e); see State v. Beech , 744 S.W.2d 585, 58 8 (Tenn. Crim. App. 1987). Failing to do so results in a waiv

er of this issue. Tenn. R. Ct . Crim. App., Rule 10(b).
Therefore, the judgment of the court de nying post-conviction relief is affirmed.-7- ________________________ PAUL G. SUMMERS, Ju dge CONCUR:

______________________________ JOSEPH B. JONES, Presiding Judge

______________________________ J. CURWOOD WITT, JR., Judge