### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs D ec em be r 5, 200 6

RON ALD IAN QU IMBY v. S TAT E OF TEN NES SEE

Direc t Appeal from the Circ uit Court for Giles County No. 12255 Stella Hargrove , Judge

No. M2006- 00918-CCA -R3-P C - F iled May 31, 2007

Th e pe tit ion e r, Ron a ld I an Qu imb y , wa s fo un d g uil ty of inc e st ( Cla ss C fe lony ) b y a Gi le s Co un ty jury on November

12, 2003. On November 12, 2004, he ag ree d to a five- y ear sentenc e in the De pa rtme nt o f C or

re c tio n a s a

Rang e I , s tand ard

of fe nd e r. On that day , the pe tit ion e r a lso ple d g uil ty to f ive a dd iti ona l c ha

rg e s o f i nc e st, e a c h c arr

y inga fi ve -y e ar s e nte nc e , to be se rv e d c on se c uti ve ly for a total effe ctive sente nce of thirty y ear s. On appe al, the petitioner contends that trial c ounsel was ine ff e c tiv e a nd argue s tha t: ( 1) he did no t kn ow ing ly , v olu

nta ri ly , o r i nte lli g e ntl y

wa ive his ri g ht t o

a pp e al hi s con vi c tio n; ( 2) c ouns e l w a s n ot a de qu a te ly pr e pa re d f or tr ia l; a nd (3 ) c ouns e l f

a ile d to advise him reg ardingsentenc ing. A fter c are ful revie w, we conclude that counsel re ndere d eff ective

a ssi sta nc e , a nd we a ff ir m th e jud g me nt o f t

he po st- c on vic tio n c ourt

.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

J OHN E VE R E TT W I L L I AMS , J ., delivere d the opinion of the cour t, in whic h D AVI D G. H AYES and J.C. M C L IN , J J ., joined.

H e r s h e l l D

. K o g e r , P u l a s k i
, T e n n e s s e e , f o r t h e a p p e l l an t , R o n a l d

Ia nQ u i m b y.

Rob e rt E. Coo pe r, Jr., Attor ne y Ge ne ra l and Re po rt e r; Pr e sto n Shi pp , A ssi sta nt A tto rn e y

Ge ne ra l; T. Michel Bottoms, District Attorney Gene ral; and Christi Thompson, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

Th e pe tit ioner was char g e d b y the Gi le s Co un ty

Gr and Jury wi th t we lve c ounts of

inc e st i n v o l v i n g his daug hter. F ollowing a ppointment of counsel, the twe lve counts we re se vere d to be
tr ie d s e pa rate ly . F oll ow inga

jur y tr ial on the fi rs t c ount o f i nc e st, the pe tit ion e r w a s f ound g uil ty of the indicted of

fense . I n lieu of the trial court conductinga sente ncing hear ing, the petitioner later
ag ree d to a fiv e-y ear

sentenc e as a

Rang e I , standard of

fende r. He enter ed this ag ree ment on November

12, 2004, and simult aneously pled g uilty to f ive other c harg es of ince st in ex chang e for five a dditional sentence s of five y ear s, to run consec u t i v el y , resulting in a total eff ective se ntence-2-

of thirty y ear s. As a condition of the ple a, th e re m ai n i ng six char g es we re dismissed. Another condition of the petitioner’ s plea re sulted in a waive r of his rig ht to appeal the f irst conviction.

The pe titioner filed a pe tition for post-conviction relief on November

16, 2005. The initial petition was amended o n J an u ar y 30, 2006, and ag ain on Fe bruar y 21, 2006. A post-conviction he ari ngwa s h e ld o n Apr il 7 , 2 00 6. Duri ngthe he ari ng , f our wi tn ess e s te sti fi e d r e g ard ingthe ir involvement in the underlying tr ial of the pe titioner.

The pe titioner testified during the post-conviction he a r in g a n d s a id th a t c o u n s e l n e v e r advised him of his ri g ht t o fi le a mot ion

fo r n e w t ri a l or to a pp e a l hi s c on vic tio n. He sa id t hat c ouns e l to ld him to “conce ntrate” on the additional cha rg es and to “ forg et” about the first trial. He testified that he had venue and alibi issues that counsel did not fully develop at trial and conte nded that the issues should have be en more develope d. The petitioner specific ally stated that his ex-wife should have been c alled as a

witness beca

use she c ould have ve rified that he was not in Tenne ssee at the time of the fi rs t a lle g e d in c ide nt. He c on te nd e d th a t th e State of Te nn e sse e did

no t ha ve jur isd ic tio n b e c a

us e he wa s in Virg inia Be ach w ith his family at the time of the f

irst incident.

The pe titioner further testified that, prior to tr ial, counsel met with him only two times at the ja il f or a pp ro xima te ly

fi ft e e n mi nu te s o n e a c h o c c a sio n. He sa id t hat c ouns e l f

ile d the mot ion

to

sever the counts of the indictment prior to meeting with him the first tim e. He acknow ledg ed that he would have ag ree d with the s ever ance but felt he should have been allowed t o make that choice.

The petiti oner testified that he did not know the potential sentenc e he w as fa cing and did not understand the ag ree d-upon sentenc e. He said that he ex pecte d a shorter sentenc e. He contende d that he and c ounsel did not discuss relea se elig ibilit y or how a

judge might make a sentencing deter mination. T h e p et itioner testified that, whe n he aske d counsel a bout sentencing , counsel threatened to withdra

w so the petitioner did not br oach the subject ag ain. Instead, for fea r of losing his attorney , he ag ree d to the thirty -y ear sentenc e. He alleg ed that he took the ple a off er be cause he
was not aw are that he could a ppeal the f

irst co n v i ct i o n

. T h e petitioner sa id counsel told him that the tr ia l c ourt

wo uld de te rm ine the le ng th a

nd mann e r o f a

se nte nc e if

he pr oc e e de d to tr ia l.

The pe titioner said that afte r he r ece ived a copy of the State’s w itness list from counse l, he provided c ounsel with a prof i l e o f ea ch wi tness but he said they did not specifica lly

discuss the witnesses. He claimed that the officia ls at the jail inter cepte d and re viewed ma il between him and

c ouns e l. S pe c if

ic a lly
, he c la ime d that he ke pt the bir th c e rt if ic ate s fo r the vic timand

the ir c hil d in his wallet. He te stified that he told no one else about this; y et, they wer e introduce d by

the State at
tr ia l. H e sa id t

hat he tol d c ouns e l a

bo ut t he se iss ue s, bu t he did

no t r e sp on d to his c la ims

.

Th e pe tit ion e r w as a

tr uc k d ri ve r a nd pla nn e d to us e his dr ivi nglog s to e sta bli shhis wher eabouts for

eac h of the a lleg ed incidents. He said that counsel told him not to wor ry about the logs until a late r time. The pe titioner claimed that c ounsel also i g nored telephone recor ds and alibi witnesses. He maintain ed that a f riend, Mar

k Dea rth, took all of his proper ty from his truck,-3-

inc lud inghis dr ivi ng log s. Th e pe tit ion e r sa id that, if he ha d k no wn a bo ut h is r ig ht t o a

pp e a l th e fi rs t

c o n v i c t i o n , h e w o u l d

n o th a v e s a i d

h e w a s g u i l t y.

On c ro ss- e xami natio n, he a c kn ow le dg e d th a t he tol d the tr ia l c ourt he wa s h a

pp y wi th

c o u n s e l ’ s r e p r e s e n t a t i o nb e c a u s e h e d i d n o tw a n tt o m a k e t h e c o u rtm a d

o r t o l o s e an o t h e r

a t t o r n e y. He sa id h e de c ide d to ple a d guil ty be c a us e L ieu tena

nt M ill e r t old

him he wo uld

g e t f if ty or sixty
y ear s after

a trial. He said the officer told him this while every one else was at lunch a nd while he was outsi de the prese nce of his counsel. He testified that he wa s not guilty of ince st and claimed he pled g ui lty

to something he had not done f or the be nefit of the vic tim and so the matter would be resolved.

The pe titioner acknow ledg ed that counse l qu es t i o n ed the victim at trial reg ardingher wher eabouts at the time of the incident unde rlying the first conviction. She admitted that she wa s in Virg inia Be ach a

round that time. He sa id that the victim testified that t he first incide nt, during which he impre g nated he r, occ urre d in a bedroom at the family home in Giles County . He f urther contende d that counsel should have called his e x -wife to testify

.

Th e ne xt w itn e ss wa s L ie ute na nt M ill e r M e a do ws of

the Gi le s Co un ty

She ri ff ’s De pa rtme nt. He te sti fi e d th a t th e de pa

rtme nt p oli c y is to ope n co rr e sp on de nc e fr om a n a tto rn e y to t he ir c lie nt i n the pre sence of the inmate. H e said they g ive t he inm ate the mail and then destroy the enve lope. He
t e s t i f i e d t h a t n o o n e a f

f i l i a t e d w i t h t h e S h e r i f

f ’ s D e p art m e n t r e a d s m a i l t h a ti s s u b j e c tt o a t t o r

n e yclient privileg e.

Next, Detective Micha el Chapman with the Giles County Sheriff’ s Depa rtment testified that he wa s th e le a d inve sti g a tor in th e in cest c a se a g a ins t th e pe tit ion e r. He sa id t hat ja il o ff

ic ia ls discovere d the two birth ce rtificate s in the petitioner’s wallet when they inventoried it s contents. He

sa id t hat he tur ne d th e m ov e r to the dis tr ic t atto rn e y ’s of fi c e be c a us e the pe tit ion e r w a s b e inghe ld on incest cha

rg es and he felt they

might be r eleva

nt to the case

.

The fina l witness to testify during t h e p o s t -c onviction hear ing w as the pe titioner’s trial counsel. He said that, at the time of the sentenc ing hear ing, he had alre ady draf ted a motion for new trial and for

an appe al. The pe titioner told him that he wa nted to ple ad g uilty

so that he could move on and “stop hurting ” the victim. Part of the of fer was that the c onviction in C ount one of the indictment remain int act. The ag ree ment also waive d a motion for new trial and a

n appea l. Counsel said that he inf

o rm ed t h e petiti oner of

these a spects of the ag ree ment and that the pe titioner was

awa re of tho se c on dit ion s.

H e s a id th a t h e me t w it

h th e p e ti ti o n e r a f

te r h e r e c e iv e d th e d is c o v e r y mate r ia ls f

rom the State and that they discussed t he mot ion to sever all counts of the indictment. He testified that he explained his strateg y for sever ing the char g es. Counsel be lieved that the petitioner would likely be convicted of

Count one, based on the vi ctim’s testimony and the incriminating letters written to her by the petitioner. He said that, by sever ing the char g es, the S tate would be for ced to ne g otiate a plea
ag ree ment beca

use they would not want to undertake twelve separ ate trials. Counsel met with t he-4-

petitioner four

or five times at the jail a

nd on sever al additional occa sions at the courthouse. Counsel acknow ledg ed that the petitioner had several alibi witnesses for the ot her counts of the indictment but that he had none for the incident in Count one. Counsel conve y ed to the State that ther e we re alibi witnesses on five to six of the other counts

. He s ai d t h at all the witnesses sug g ested by the
pe tit ion e r w e re re le va

nt t o Co un ts two thr ou g h tw e lve bu t w e re no t r e le va nt t o Co un t one . He sa id that the other c harg es we re not re ady for tria l so he had not investig ated the w itnesses any further

.

As f o r t h e v e n u e i s s u e , h e s a i d t h e v i c t i m w a s i mp r e g n a t e d o n o r a b o u t A p ri l 18 , 2 00 0, in Virg inia Be ach. Counsel discussed with the petitioner his strateg y for br ingingout the evidenc e that he wa s not in Tennessee at th e time of the incident. He defe nded his strateg y of not ca lling the petitioner’s e x -wife for two r easons: 1) The victim a dmitted on c ross-examination that they wer e in Virg inia at the time she wa s impreg nated by the def endant; and 2) Counsel knew the e x -wife was extremely hostile toward his client, and the petiti o n er h ad t o l d him she was not cr edible. F or

s t r a t e g i c r e a s o n s , h e d i d

n o tc a l l h e r

a s a w i t n e s s b e c a

u s e h e d i d

n o tkn o w w h a ts h e w o u l d s a y.

Counsel te s ti f

ie d th a t, a f

te r th e tr ia l, h e r e c e iv e d a le tt e r f r o m th e p e ti ti o n e r in w h ic h he expressed dissatisfac tion reg ardingcounsel’s f ailure t o ca l l the petitioner’s wife as a w itness. He

a dvis ed th e pe tit ion e r t

hat if he wa s unh a

pp y wi th h owhe ha d h and le d th e tr ia l, h e wo uld se e k to withdraw; howe ver, the petitioner dec lined.

Counsel said th at h is only defe nse to Count one was to attac k the witness’ c redibility and, particula rly , that the family

was not in Tenne ssee on the a lleg ed date. He testified that the State had DN A e vid e nc e to s ho w that th e pe tit ion e r w a s th e bio log ic a l f a the r o f t he vic tim ’s c hil d. Withthi s knowledg e, he unsuc cessf ully filed a moti on to suppress the DNAevidenc e on F ourth Amendment
g ro un ds . H e anti c ipate d a convic tio n in Coun t one bu t fe lt mor e c on fi de nt ab ou t the oth e r c ha rg e s.

Counsel testified t hat he discussed sentencing with the petitioner. He informed the pe titioner that he could be sentenc ed as a Rang e I I offe nder and that, beca use i ncest was a Class C felony , he

c ou ld f a c e six to te n y e ars on

e a c h c ount, wi th a

re le a se e lig ibi lity

of thi rt y -f ive pe rc e nt.

Cou n s e l d e f

e n d e d h i s o m i s s i o n o f t h e l o g b o o k s b e c a u s e h e s a i d t h e y w e r e n o t r e l e v a nt t o the first trial. He further

said that, bec ause the incidents alleg edly occur red on Fr iday

and Saturda

y nig hts , he did no t thin k th e log s w ou ld b e he lpf ul b e c a us e the pe tit ion e r w a s a lw ay s h ome on tho se nights. Counsel testified that he cea sed preparing for the rema ining counts of t he indictment when the pe tit ion e r s a id he wa

nte d to ple a d g uil ty

. Couns e l e xpla ine d the te rm s of the ple a a g re e me nt t o the pe tit ion e r a

nd ma de him

awa re of the c on se qu e nc e s. He sa id i t w a s p os sib le tha t th e ja il o ff

ic ia ls might have taken the bir

th cer tificates f rom the petitioner’s w allet but believed it had nothingto do with his defense an d d i d n o t p u rsue it. Finally , he testified that the pe titioner knew what he was doing w hen he ple d g uilty , particula rly beca use the pe titioner initi ated the guilty plea.-5- An a ly sis

The petitioner conte nds that counsel re ndere d ineffe ctive assistanc e and spe cifica lly argues that hi s r e pr e se ntatio n w a s d e fi c ie nt i n thre e are a s: 1) He fa ile d to a dv ise the pe tit ion e r o f h is r ig hts

re g ard ing dir e c t app e a l and fa ile d to file a mot ion fo r ne w tri a l and no tic e of a pp e a l; 2) He fa ile d to discuss with the petitioner the ava ilability of bot h an alibi defe nse and a def ense r eg ardingthe venue ; and 3) Co u n s el failed to a dequate ly explain the sentencing proce ss and options available to the petitioner. The State a

rg ues that counsel was effe ctive and that the petit ioner’s issues are w ithout merit bec ause he failed to show that counsel’s repr esentation was defic ient or that he w as pre judiced b y c o u n s e l ’ s r e p r e s e n t a t i o n

. W e w i l l a d dr e s s e a c h i s s u e s e p ar a t e l y.

This court re views a claim of ineffe ctive assistance of counsel under the standards of Ba x ter v. Rose, 523 S.W .2d 930 (Tenn. 1975) , and Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1 98 4) . T he pe tit ion e r h a s th e burd e n to pro ve that: (1 ) the a tto rn e y ’s pe rf or manc e wa s d e fi c ie nt,

and (2 ) t he de fi c ie nt p e rf

or manc e re su lte d in

pr e jud ic e to t he de fe nd ant s o a s to de pr ive him of a fa ir trial. Strickland, 466 U.S

. at 687, 104 S. Ct. at 2064; Goad v. State, 938 S.W .2d 363, 369 (Tenn. 1996); Butler

v. State, 789 S.W .2d 898, 899 (Tenn. 1990). The f ailure to prove either de ficienc y or prej u d i ce justifies denial of re lief; there fore , the cour t need not addr ess the compone nts in any
pa rt ic ula r o rd e r o r even a dd

re ss b oth if on e is i ns uf

fi c ie nt. Go a d, 93 8 S. W.2 d at 37 0. I n o rd e r t o establish prejudice , the petitioner mu s t es t ab lish a “re asonable probability that, but for counse l’s

un pr of e ssi on a l e rr or s, the re su lt o f t he pr oc e e din g wo uld

have be e n d if

fe re nt. A r e a so na

ble
pr ob a bil ity is a pr ob a bil ity su ff ic ie nt t o und e rm ine c on fi de nc e in the ou tc ome .” Str ic kla nd , 4 66 U. S. at 694, 104 S. Ct. at 2068.

The test in Tenne ssee to dete rmine whe ther counsel provided effe ctive assist ance is whether his or he r p e rf or manc e wa s w ith in t

he ra ng e of c omp e te nc e de mand e d o f atto rn e y s in c ri min a l c a se s. Bax ter, 523 S.W.2d at 936. The petitioner must overc ome the pre sumption t hat counse l’s conduct falls within the wide ra

ng e of a cce ptable prof

essional assistance . Strickland, 466 U.S. at 689, 104 S. Ct . at 2065; State v. Honeycutt, 54 S.W .3d 762, 767 (Tenn. 2001) . There fore , in order to pr ove a def iciency , a petitioner must show “that counsel’s a cts or omissions were so se rious as to fall below an objec tive standard of

rea sonablene ss under pre vailing pr ofessional norms.” Goad, 938 S.W.2d at 369 (c iting Strickland, 466 U.S. at 688, 104 S. Ct. at 2065).

I n r e vie wi ngc ouns e l’ s c on du c t, a “ fa ir a sse ssm e nt

. . . re qu ir e s that e ve ry e ff or t be ma de to eliminate the distorting e ffe cts of hindsig ht, to reco nstruct the cir cumstance s of counse l’s challeng ed conduct, and to e valuate the conduct from counsel’s perspe ctive at the time.” Nichols v. State, 90 S.W .3d 576, 587 (Tenn. 2002) (citing Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). The fa ct that

a pa rt ic ula r s tr a te g y or ta c tic fa ile d o r h

ur t th e de fe ns e do e s n ot, sta nd inga lon e , e sta

bli sh

unrea sonable re prese ntation. Howeve r, def ere nce to matter s of strate g y and tac tical choice s applies only if the choic es ar e informe d ones, base d upon adequate prepa ration. Henley

v. State, 960 S.W .2d 572, 579 (Tenn. 1997) ; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).-6-

First, the petitioner argues t hat counse l should have informe d him of his right to appe al the first conviction and c ontends that he would not have enter ed g uilty p l ea s o n the additional five counts if he ha d known he co u l d h ave a ppeale d. Counsel testified that he had pr epar ed and w as

rea dy to file a notice of appe al an d m o t i o n for new trial. The post-c onviction court found the
tr ans c ri pt o f t

he g uil ty ple a a c c e pta

nc e he ari ng re fl e c te d tha t the de fe nd ant sa id h e wa s awa re that, once his plea

was e ntere d, he wa ived the rig ht to any further trials, hear ings, a nd appellate revie w. The post-conviction court also found that counsel convey ed to the petitioner that the plea a g ree ment provided no a

ppeal a nd that counsel told the petitioner, “We won’t do any thing more on Count One.” Th e po st- c on vic tio n c ourt did no t f ind the pe tit ion e r’ s tes tim on y , tha t he ac c e pte d the of fe r b e c a us e he did not know he ha d a rig ht to appeal, to be c redible a nd was satisfied that t h e petitioner knew appellate revie w was una vailable t o h i m i n reg ards to his conviction. The r ecor d supports the conclusion that the pe titioner knew his plea w ould end the appe al of his co n v i cti on. At the plea he ari ng , th e pe tit ion e r i nd ic a te d th a t he un de rs too d th e re wo uld be no a pp e llate revi ew of his conviction, and c ounsel testified that part of the plea offe r was that there would be no motion for a

ne w tri a l or

an a pp e a l. T he re c or d r e fl e c ts that th e pe tit ion e r w a s awa re of the c on se qu e nc e s of his ple a a g r e e me n t an d
, f

u rth e r , th a t h e h a s f

a il e d to d e mo n s tr a te th a t c o u n s e l’ s p e r f o r ma n c e wa s de fi c ie nt. Th e re fo re , h e ha s n ot m e t hi s b ur de n o f s ho wi ngine ff e c tiv e a ssi sta

nc e of c ouns e l a s to thi s c la im.

Ne xt, th e pe tit ion e r co nte nd s tha t couns e l did not a de qu a te ly dis c us s p ote nti a l stra

te g ie s w ith him. Specifically , he submits that counsel d i d n o t meet with him to dis cuss a se vera nce of the char g es prior to filing the seve ranc e motion, and he argues that counsel wa s ineffe ctive in pursuing the possible alibi defe nse and ve nue issues re lated to the trial. The State argues that these issues a re

w i t h o u tm e r i t

. W e w i l l a d dr e s s t h e s e i s s u e s s e p ar a t e l y.

The seve ranc e issue is without merit. The petitioner a dmitted d u ring the post-conviction hear ing that he wante d eac h count seve red a nd tried sepa

rate ly . Counsel testified, contra ry to the testimony of the pet i t i o n er , t h at he did meet with the pe titioner prior to filing the motion. He
exp la in e d h is s tr a te g y

f o r f il in g th e mo ti o nto s e v e r to th e p e ti ti o n e r

an d
, a f te r th e ir d is c u s s io n, counsel filed the motion. I n order to ga in relief unde r an a lle gat i o n o f i n effective a ssistance of counsel, a petitioner m ust show that he or she was pre judiced by

counsel’s a ctions or tactics. H ere , be c a us e the pe tit ion e r a c kn ow le dg e d that he wo uld have wa nte d th e c ounts se pa

ra te d, he is n ot a

ble
to s ho w that he wa s p re

jud ic e d b y

c ouns e l’ s r e pr e se ntatio n. Th is i ssu e is w ith ou t me ri t.

Th e pe tit ion e r a lso argue s that c ouns e l wa s in e ff e c tiv e fo r f

a ili ngto s uf

fi c ie ntl y pr e se nt h is alibi defe nse and ve nue issues duringtrial. Spe ci fica lly , he conte nds that counsel should have
qu e sti on e d th e vic timmor e re g ard ingthe loc a tio n o f t heir se xua l e nc ounte r t o s ho w t hat it wa s in Virg inia Be ach, Virg inia, as opposed to Tennesse e. He also argues that counse l should have ca lled the petitioner’s ex-wife to te stify that they wer e all in V irg inia at the time, to support his de fense that

venue w as not proper

in Tennesse e.

The post-c onviction cou

r t f o u n d th at counse l did elicit testim ony from the victim that she wa s in Virg inia on the date of the alleg ed incident. Counsel testified that he did not ca ll the petitioner’s-7-

ex-wife for

two rea sons: 1) She was a hostile witness to the petitioner; and 2) Counsel did not know what she w ould say

. During the post-conviction hea ring , he testified that the pe titioner had previously

said that his ex-wife was a liar and c ounsel dec ided as a matter of strate g y

not to call her. Counsel had alre ady

elicited fr om the victim the testimony that counsel felt he needed with re spect to her a dmission t hat the sexual encounte r took place in another state . The fa ct th at a particular
str a tegy or ta c tic fa ile d o r h

ur t th e de fe ns e do e s n ot, sta nd inga lon e , e sta

bli shun re a so na

ble
repr esentation. However
, defe renc e to matters of strateg y and tac tical choice s applies only if the choice s are informed one s based upon a dequate prepa ration. He nley , 960 S.W .2d at 579; Hellar d, 629 S.W .2d at 9. Our review of the t ransc ripts from both t he trial a nd the post-conviction hea ring

re fl ec tt h at co u n s el wa s ad eq u at el y p re p ar ed
, an d

we co n cl u d e t h at h i s em p l o y m en to f t h i s s t ra t egy was sound and did not amount to unre asonable repr esentation. The rec ord refl ec ts that counsel’s investigation of the petitioner’s alibis resulted in six of t he remaining eleve n counts being dismiss ed
as par t of the plea

ag ree ment. The re cord suppor ts the post-conviction court’s holding that counsel’s
repr esentation, in reg ards to the a libi and venue issues pre sented, wa s not ineffe ctive.

Fur th er , when a

petitioner conte nds that counsel fa iled to discover, inter view, or pr esent witnesses in support of his de fense
, these witnesses should be pre sented by the petitioner duringthe
po st- c on vic tio n h e ari ng . B la c k v . St a te , 7 94 S.W. 2d 75 2, 75 7 ( Te nn . Crim. App . 1 99 0) ; se e a lso Scott v. St ate, 936 S.W.2d 271, 273 (Tenn. Crim. App. 1996). The petitioner di d not call his ex-wife to testify during his post-conviction hear ing nor did he show what counsel should h ave asked the victim or what evide nce w ould have c ome to light had he persisted in questioni ng the vi ctim. Fa ilure to call this witness or to demonstrate a dditional e vidence that would have surfa ced have c aused the petitioner to fail to c arr

y his bur den of establishing defic ient perf ormanc e or to establish that he wa s pr e jud ic e d b y

c ouns e l.

Ne xt, th e pe tit ion e r a

rgue s th a t he wa s n ot a de qu a te ly inf or med by c ouns e l w ithre g a rd

to sentenc ing. H e testified that he believed he would only have to serve one five -y ear sentenc e eve n tho ug h h e a g re e d to a thi rt y -y e ar, Rang e I se nte nc e . He c la ims that c ouns e l di d n ot d isc us s r e le a se elig ibilit y dates or his options with reg ard to sentenc ing. T he post-convic tion court found that the
g uilty plea hear ing transcr ipt r efle cted that the petitioner understood the circ umstances of his plea

a g re e me nt. Couns e l te sti fi e d th at he and the pe tit ion e r d isc us se d th a t he c ou ld b e se nte nc e d a s a Rang e I I , s tand ard of

fe nd e r and that he wo uld be su bje c t to a po te nti a l se nte nc e of six to te n y e a rs , at thirty -five perc ent, for e ach c onviction. The transc ript of the plea acc eptanc e hea

ring ref lects that the trial cour

t specifica lly

informed the pe titioner that the ag ree ment called f or six consec utive fivey ear sentenc es and r epea

ted that he wa s rec eiving an e f f e c tive thirty -y ear

sentenc e for

six convictions of ince st. The transc ript ref lects that the pe titioner indicated that he understood, that he ha d no questions of the court, and that he said he wanted the court to a cce pt the plea ag ree ment. Fur ther, he sa id t hat he ha d p le nty

of tim e to dis c us s the a g re e me nt w ithc ouns e l, t hat he ha d n o c omp la int s wi th c ouns e l, and that he c a lle d him “ a ve ry g oo d lawy e r. ” We c on c lud e that th e pe tit ion e r w a s w e ll informed a

bout his sentences. The petitioner has not met his burden of showingthat counsel wa s ineffe ctive in instructing him about his sentencing issues.-8-

At the conc lusion of his brie f, the petitioner ha s included a list of additional statements that counsel wa s ineffe ctive. These reasons wer e all mentioned during the post-conviction hea ring and inc lud e the fo llo wi ng : c ouns e l di d n ot g ive inp ut r e g ard ingthe pe tit ion e r’ s is su e s w ithhis ma il w hil e he wa s in jail; t he State wa s bia s ed i n h an dling thef ts alleg ed by

the petitioner; and the petitioner

rec eived no e x planation for the confiscation of his personal prope rt y at the jail and its subsequent

us e a t tr ia l. He a lle g e s tha t the se iss ue s fa ll within the c a te g or y of “ c ouns e l’ s f

a ilure to a de qu a te ly

and pr omp tly dis c us s str a te g ie s and ta c tic s wi th [the p]e tit ion e r. ” Ho we ve r, he do e s no t de mon str a te ho w tri a l c ouns e l w a s in e ff e c tiv e . Co un sel tes ti fi ed at th e po st- c on vic tio n h e ari ngthat th e ite ms

a lle g e dly sto le n f ro m th e pe tit ion e r we re his dr ivi ng log s and that the se ite ms we re no t mate ri a l to the petitioner’s c ase f

or Count o n e. P o l ice of ficials testified that they did not handle the i n v es t i gati on into the theft bec ause of the ong oing c riminal investigation and that they turned the
matter ove r to the Tenne ssee B urea u of I nvestig ation. Police also testified t hat no mater ials subject
to t he a ttorney -cl ient

pr ivi le g e we re vie we d b y ja il o ff ic ia ls. Pol ic e te sti fi e d th a t th e ma te ri a ls

co n fi s ca t ed by

the police a

nd used as e vidence at trial, the birth ce rtificate s of the victim and the child of the victim and pe titioner, were discovere d in the petitioner’s wa llet when it was inventorie d afte r his arr est. These items we re turne d over to the district attorney ’s offic e bec ause it is standard
pr oc e dure to t

ur n e vid e nc e ov e r wh e n it

mig ht b e us e d in

the inv e sti g a tio n. Th e se iss ue s la c k me ri t beca use they fail to show that counse l was ineff ective.

Conclusion

Ba sed on the for eg oing a

nd the record as a whole, w e conc lude that the post-convic tion court
proper ly found that the pe titioner rec eived e ffe ctive assistanc e of c ounsel.

___________________________________ J OHN EV ERETT WI L L I AMS, J UDGE