# FILED May 5, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON FEBRUARY SESS ION, 1998
FREDRICK M. SLEDGE, ) C.C.A. NO. 02C01-9702- CR-00086 ) Appe llant, ) ) SHELBY COUNTY V. ) ) ) HON. J OSEPH B. DAI LEY, JUDGE STATE OF TENNESSEE, ) ) Appellee. ) (POST -CON VICTIO N)

FOR THE APPELLANT : FOR THE APPELLEE : HARR Y E. SAY LE, III JOHN KNOX WALKUP 99 North Third St reet Attorney General& Reporter Memphis, TN 38103 DEB ORAH A. TULL IS Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 JOH N W. P IERO TTI District Attorn ey Ge neral TER REL L L. HAR RIS Assistant Distri ct Attor ney General 201 Poplar Avenue - Third Floor Memphis, TN 38103

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The P etitioner, Fre drick M. S ledge, ap peals from the orde r denying his petiti o n for post-convict ion relief . In this appeal , Petiti oner raises the foll owing issues: 1) The trial court erred in waiving P etitioner’ s groun ds for rel ief pursuant to T ennesse e Code A nnotated se ction 40-30-20 6(g). 2) The trialcourt err ed in inst ructing t he j ury on reasonable doubt as the language of

the instruc tion relieved the State of its burden of proof. 3) The trialcourt err ed in determi ning that the appell ant was not denie d the e ffective a ssista nce o f trial cou nsel. We affirm the ju dgme nt of the trial co urt.

Petiti oner was convi cted of two (2) counts of aggravated robbery and was sentenced to two consec utive sente nces of ten (1 0) yea rs for ea ch co nviction in the Criminal Cour t for Sh elby C ounty . Petition er’s dire ct app eal of th ose c onvictio ns was denied, State v. Fredrick Sl edge , C.C.A. No. 02C01- 9306-CR-00116, S helby C ounty (Tenn. Crim. App . , at Jackson, Au g. 10, 1994), an d he filed a petition for post convicti on relief. After an ev identiar y hearing, his peti tion for relief was denied by t he trial court.

In post-convi ction rel ief proceedi ngs the peti tioner has the burden of provi ng the allegation s in his petition by a prep ondera nce of the evidenc e. McBe e v. State , 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, the factu al findi ngs of the trialcourt in hearings “ar e conclusive on appea l u nless the evidence preponderatesagainst the judg ment.” State v. Buford , 666 S.W.2d 473, 475 (Tenn. Crim. App . 1983).-3- W AIVER OF CLAIMS

In his fi rst iss ue, Petit ioner cla ims that t he applicat ion ofthe waiver stand ard to his grounds for reli ef pursuant t o Tennessee Code Annotated secti on 40-30- 206(g) and Hous e v. State , 911 S. W.2d 705 (Tenn . 1995), cert
. denied , 116 S.C t. 1685 (1996), violates his due process rights. Petiti oner argues that his petiti on was governed by Tenn essee Code Annota ted sectio n 40-30 -101, the Post-Convict ion Ac t repealed in 1995. Petition er asserts that he has a const ituti onal right to rely upon the statute as written a nd in effec t at the time of the beh avior in que stion.

Defendant is corre ct in his assert ion that his peti tion for

post-convi ction rel ief is determined pursu ant to Tennessee Code Annotated section 40- 30-112(b) ashis petiti on for post-conviction re lief wa s filed on A pril 23, 199 5. The c urrent Po stConvicti on Act go verns all petiti ons fil ed after May 10, 199 5. See Compiler’s Notes, Tenn. Code Ann. § 40-30-201. Under the provi sions of the former statute, a gr ound forrelief is waived if the petitioner knowingly andunderstandin gly fai ls to pres ent it fordeterminati on in any procee ding before a court of competent juri sdiction in whi ch the ground could have been presented. Tenn. Code Ann. § 40-3 0-112(b)(1). T here is a “rebuttable presumpti on” that a gr ound for relie f not raised in any such proceeding which w as held w as waive d. Id . at (b) (2). I n House , oursup remecourt determined that the rebuttable presumption of waiver i s n ot ove rcome by an allegati on that the petition er did n ot pers onally and, the refore, “knowingly and unders tanding ly,” waive a groun d for relief. House , 911 S.W.2d at 714. Waiver is determined by an objecti ve standard under which a peti tioner i s bound by the act ion or inaction of his attorn ey. Id
.-4- The trialcourt found that by failingto present n umerous grounds for appeal before a court of competent juri sdicti on, Petiti oner had waived al l grounds for reli ef otherthan P etitione r’s claim for ineffe ctive as sistan ce of c ouns el. Und er this objective standard, Petition er “kno wingly and understandingly” waived t hese claims. Therefore, the po st-con viction c ourt’s findingthat Petitioner’s groun ds for relief were waived is c orrect.

Petiti oner asserts t hat by apply ing this standard of waiver to his clai m, the statutory change in the Post-Convicti on Act is rendere d “nuga tory,” and th is subjec ts Petiti oner to an ex post facto standar d. In determini ng wh etheran ex pos t facto violati on exists, ther

e are five broad classi fications: 1) A law which pr

ovides for

the infl iction of punishment upon a person for an act do ne whic h, when it was com mitted, w as innoc ent. 2) A law wh ich aggrav ates a cri me or makes it greater than when it was committed. 3) A law that changes puni shment or inf licts a greater

punishment than t he law annexed to t he crime when it was committed. 4) A law that c hanges the rul es of evidence and receives less or di fferent testimony

than was required at the ti me of the co mmission of the offense in orde r to convict the offende r. 5) Every law which, in r elation to t he offense or its conseque nces, alters the situ ation of a

person to hi s disadvanta ge. State v. Pearson , 858 S.W .2d 879 , 882 (T enn. 19 93); citing Miller v. State , 584 S.W .2d 758, 761 (Tenn. 197 9). Petition er’s claims o bviously d o not fit into the se class ifi cations. No law has been changed to which P etitioner is su bject to for tr ial or puni shment. Neither is Petit ioner subject to a new law under the Post-Convict ion Act as Petitioner’ s claims are subject to de terminati on pursuant to the former Post-Convicti on Act. There i s no v alid e x post facto argum ent, and this issue is without m erit.-5- J URY INSTRUCT ION

Petiti oner argues that the inst ruction on reasonable doubt as charged to t he jury relieved the State of its burden of proof. Petiti oner’s cl aim was not raised as a ground for rel ief in any prior proceedings. Therefore, this claim is waived p ursuant to Tennessee Code Anno ta ted secti on 40-30-112(b) . Moreover, Petiti oner has fai le d to include t he trialcourt’s charge to the jury aspart of the record, and , ther

efore, we are prec luded fro m con sidering th is issue. T enn. R . App. P. 2 4(b); State v. Bunch , 646 S.W .2d 158, 160 (Tenn. 198 3); State v. R oberts , 755 S.W.2d 833, 836 (Tenn. Crim. A pp. 198 8).

I NEFFECTIVE ASSISTANCE OF COUNSEL

Petiti oner argues that th e denial of post-convi ction rel ief on thebasis of ineffective assistance of trialcounsel was err

or. He contends t hat tri al counsel f ailed to interv iew and callalibiwitnesses on hi s behalf to testif y at trial. Petiti oner states thatif trial cou nsel h ad be en pre pared for trial, then he would have di scovered and subpoenaed his alibi witnesses.

In reviewi ng the Pe titioner’s Sixth Amendment claim of ineffecti ve assistance of counsel, t his court must determine whet her the advi ce given or t he services rendered by the a ttorney are with in the range of compe tence dem anded of a ttorneys in criminal c ases. Baxter v. Rose , 523 S.W

. 2d 93 0, 936 (Ten n. 197 5). To preva il
on a claim o f ineffective co unsel, a p etitioner “m ust show th at coun sel’s representat ion fell belo w an o bjective stand ard of re ason ablen ess” a nd tha t this performance prej udiced the defense. There must be a reasonable probabi lity that-6-

but for counsel ’s error the result

of the p roceed ings wo uld have been d ifferent. Strickl and v. Washington , 466 U.S. 668, 687-88, 692, 694 , 104 S.Ct. 2 052, 2064, 2067-68, 80 L.Ed.2d 674 (19 84); Best v. State , 70 8 S. W.2d 4 21, 422 (Ten n. C ri m. App. 1985 ).

This court should not se cond -gues s trial co unse l’s tactica l and s trategic choices unless those choices we re uninform ed bec ause o f inadequ ate preparati on. Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982). C ounse l should n ot be de emed to have been ineffec tive me rely because a different procedu re or strategy mig ht have produced a different re sult. William s v. State , 599 S.W.2d 276, 280 (Ten n. C ri m. App. 1980 ).
During the post-convicti on hearing, Pet itioner testif ied that

his mo ther, M innie Sledge, hired tr ial counselto represent him. He and tri al counsel met prior to t rial
on four(4) or five (5) o ccasion s, but Pe titioner was not satisfied with the len gth o f these meetings. During these meetings, Petiti oner clai med he told tr ial counselthat he did no t com mit the robberies and had ali bi witnes ses, Tony Sledge and Br ad Johnson, who could veri fy his act ivit ies on the evening of the robbery, December 13, 1991. Petiti oner stated t hat Sledge and Johnson pi cked him up on the eveni ng of December 13 between 7:00 and 7: 30 p.m. They drove to a c lub in Vic toria, Mississi ppi where they stayed for t hree (3) hours, then th ey wen t to ano ther clu b in Olive Branch, Missi ssippi. They retur ne d Petitio ner to h is hom e at ap proxim ately 3:00 a.m. P etitione r stated that he told his tri al counsel that he could contact t hese two witnes ses th rough Minnie Sledge

. On cross-examinat ion, Peti tioner stated that he saw several ot her people that evening who coul d verif y his ali bi, but hedid not give their names as potentialwitnesses to his tri al counsel. He also confi rmed that-7-

he did not tes tify at trial, even thoug h no o ther witn esse s testifie d rega rding h is alibi.

To ny Sledge, Peti tioner’ s brother, testif ied that h e and his cous in Bra d Johnson picked Petiti oner up in th e Cleaborn Homes area between 7:00 and 7: 30 p .m . They drove to Cl ub Elmores in Vic toria, Mississi ppi, where t hey stayed for about thirt

y (30) minutes in the par king lot . They returned to Olive Branch wher e theywent to a club called Sam Scale s and rema ined u ntil app roxim ately 3:00 a.m. Sledg e’s girlf riend dropped him off at hom e and then drove Johnson and Petit ioner to their homes. Sledge stat ed that he never met with Peti tioner’ s trialcounsel pri or to the trialfor aggravated robbery , but that he did calltrialcounsel on one occasi on to tell him that “[ he] could be t here for hi m for that. ” Sledge did not co me to Petition er’s trialfor aggravated robbery b ecaus e he did n ot know what da te it would be held
.

Brad Johnson testi fied that he was the cousin of

the Petit ioner. On December 13, 1991, he and Tony Sledge decided t o go out and went to pick up Peti tioner around 7:00 to 7:30 p.m
. They drove to Olive Branch , Mississippi, where th ey drove around and talked. They went to Club E lmore s in Victori a, Missis sippi, and stayed fortwo (2) hours. Johnson stated t hat he went in t he club, but Sledge and Petit ioner remained outside. Sledge was “hi gh” and throwi ng u p, so Petiti oner came in and asked Johnson to leave the club. They left and drove to Sam Scales , a club in Olive Branch, arrivi ng there at appr oximately

2:00 a.m. They l eft Sam Scales at 3:00 a.m., and Johnson stated th at Petit ioner was driving. Th ey dropp ed To ny Sledg e off first, and then returne d h ome. Johnson could not recall if any females were with them thatnight, but one of his f riends was ri ding with them because he did not have a ride-8-

home. Johns on rec alled th at no o ne co ntacte d him regarding the po ssibility o f his testif ying prior to Petiti oner’s trial. During cross- examination, Johnson recall ed that Tony S ledge’s g irlfriend was in the car o n their wa y home from the clubs.

Trial counsel test ified t hat he was hired by Pet itioner’s mother, Mi nnie Sledge, to represent Pet itioner . Counsel met wi th P etiti one r regardi ng several char ges against him , includi ng murder and aggravated r obbery charges. Counsel stat ed that he investi gated each charge and r eceived dis covery fr

om the State so t hat he was fully aware o f the proof and the witnesses the State intended to use against Petitioner. Counsel met with Pe titioner a t least fo ur (4) to five (5) tim es prio r to trial, prima rily focusing u pon the most serious char ge of murder. Counselreceived an offer from the State to plead gui lty on al l charges i n exchange for a l ife sent ence on the murder charge and two concurrent sentences for t he aggravated r obber y charges. Petiti oner refused to plead guil ty, des pit e counsel’s adv ice that this was a good offer.
During tr ialpre parati on, Pet it ion er told cou nselthat hecommi tted t he aggravated robbery and had no defense or witness es on his behalf . Counsel made written notes to t hat conve rsation . On on e even ing du ring Pe titioner’s aggravated robbery trial , Tony Sledge cal led coun sel and id entified hims elf as P etitione r’s brother. Sledge notif ied counsel t hat he was wit h Petiti oner on December 13, 1991, from 7:30 p.m . until 3:00 a.m . Couns el instructe d Sledg e to come to court t he next day. Counsel was concerned becau se Tony Sledge was confused as to which ni ght he was actuall y with Pet itioner . There was another robbery

wh ich occurred on December 14, 1991, of whic h Petitio ner wa s initially charg ed bu t was s ubse quen tly cleared, and counsel observed that Sledge was incorrect as to which eveni ng he-9-

was with the P etiti oner . Counsel stated that Sl edge did not appear the foll owing morning at tri al. Counsel t hought it was ver y unusual because Petit ioner had notified him earlier

that sa me d ay that h e had no witn esse s on h is beh alf and had committed the robbery. Other than Sledge ’s phone call , no other f amily mem bers offered to
serve as an alibifor Peti tioner, but several o f his family m embe rs did testify for the State ag ainst Pe titioner rega rding his in volveme nt in the rob bery.
Following the post-convi ction heari ng, the trial court set forth i n its f indings of fact and c onclu sions of law th at Petitio ner’s c laim of ineffective assistance of counsel
was dism issed . The tr ial cou rt denie d Petitio ner’s c laim in light of the trial testimony and Pet i tioner’s stateme nts to counse l regarding his pa rticipation in the robbery. The trialcourt noted the inconsi stencies bet ween Petiti oner’s testimonyand his ali bi witnesses. Upon review of the record i n this matter, ther e were obvio us inconsistencies betwee n Petitione r’s testimo ny and th at of his alibi wi tnesses, th erefore, thetr ialcour t ac cre dited t he t est imon y of tr ialcoun sel . Qu estion s concerning the credib ilit y of thewitnesses, and the weight and value to be given their testimony

are to be resolved by the trier of fa ct, not this co urt. State v. Pappas , 754 S.W.2d 620, 623 (T enn. Cri m . App.), perm . to appeal denied , id . (Tenn. 198 7). Furthermore, the notes from P eti tioner’ s fil e made by trialcounsel indi cate that Petiti oner advised counsel that he had committed the offense and ha d no alibi witnesses. In order to prove tr ial counselwas ineffective, Petiti oner’s burden of proof
was to overcome thefindings of t he trial court by a preponderance of the evi dence. Petiti oner has fail ed to meet thi s burden of proof, t herefore t his court is bound by t he trial court’s find ings of fac t. This issu e is withou t merit.

We affirm the ju dgme nt of the trial co urt.-10- ____________________________________ THOMAS T. W OODALL, Judge
CONCUR:

___________________________________ JOSEPH B. JONES, Presiding Judge

___________________________________ JOHN H. PEAY, Judge