# FILED
September 2, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE JULY 1999 S ESSION

LUCIEN SHERROD ) ) Appellant, ) No. 01C01-9808-CR-00328

) ) Davidson County v. ) ) Honorable Seth Norman, Judge ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. )
For the Appellant : For the Appellee : Gregory D. Smith Paul G. Summers One Public Square, Suite 321 Attorney General of Tennessee Clarksville, Tn 37040 and Lucian D. Geise Assistant Attorney Gener al of Tennessee 425 Fifth Avenue North Nashville, TN 37243 Victor S. Johnson, III District Attorney General and Jon Seaborg Assistant District A

ttorney General Washington Square, Suite 500 222 2nd Avenue North Nashville, TN 37201-1649

OPINION FILED:____________________

AFFIRMED Joseph M. Tipton Judge1 The petitio ner’s brief in dica tes, w ithou t exp ress ly statin g, a c onc ern a bou t the p etition er’s trial attorney

’s approach at

the guilt stage, but it gives no part iculars other than a comment that the decision not

to pursue a sel f-defense str ategy was a t rial t

actic. As the tri al attorney test ified at the evidenti ary heari ng, under the evidence i n the case, “a self defense ar

gument . . . was al most frivol ous, just alm ost totally non-p revalent.” 2 O P I N I O N
The petitioner, Lucien Sherrod, appeals as of right from the Dav idson County Criminal Cour

t’s order denying hi m post-conviction rel ief from his 1994 conviction for first deg ree murder and the resulting sentence of life in prison w ithout the possibility of parole. The trial court granted the petitioner a delayed appeal of this court’s affirmance of his convi ction. See State v. Lucien Samuel Sherr od , 01C01-9505- CR-00157, Davidson County (Tenn. Crim. App. Jan. 3 0, 1997). The petitioner contend s (1) that he receive d the ine ffecti ve assista nce of co unsel an d (2) that we should vacate and reinstate this court’s judgment i n the direct appeal in order that he may seek review by the Tennessee Supreme Court. We affirm the trial court.

The petitioner was conv icted for murdering his es tranged wife, who had filed for divorce. She w as found in her place of business w ith at least twenty-

five stab and cut wounds. S he had six stab woun ds to the back of the body. One went t hrough her spine into a lung w hile two went throug h her ribs into her lungs. Another wound penetrated her esophagus. The pathol ogist testified that the v ictim received most of the wounds while she w

as lying on the floor, an d the wounds would hav e required considerable force.

The petitioner primarily contends that his trial attorney inadequately prepared for a nd presented e vidence at the se ntencing hearin g. 1 At the evidentiary hearing, the petitioner c omplained about the lack of preparati on for the sentencing hearing. He said the attor ney did not talk to relatives, employers, or neighborhood3

friends. He said he thought he had psychological problems, but his attorney only arranged a short vis it for an evaluation.

The trial attorney testified that his primary aim w as to try to negate any premeditation and deliberation evidence so as to reduce th e offense to second degree murder. As for sentencing, the attorney stated that he w as not aware of the petitioner having clos e family m embers. He said he recalled that the petition er was on hi s own during that period of time. Also, he stated that he did not believe the case called for a mitigation expert, par

tly because he believe

d there was very

little mitigation to p ursue. The attorney admitted that he inadvertently missed the dead line for appealing this court’s decision in the d irect appeal to the Tennessee Supr eme Court.

The tria l court fo und that the def endant’ s trial att orney was no t ineff ective at the sentencing phase. The trial court also found tha t the trial attorney inadvertently failed to seek appellate rev iew by our supreme co urt and ordered that the petiti oner be granted a delayed T.R.A.P. 11 appeal. See Tenn. Code Ann. § 40-30-213. The petitioner did not file a T.R.A. P. 11 appeal but rather appealed the trial court’s postconviction determination to this court and requeste d that we affirm the trial cour t’s grant of a delayed appeal.

Under the Sixth Amendment, w hen a claim of ineffective assist ance of counsel is made, the burden is upon the petitioner to sho w (1) that counsel’s performance was deficient and (2) that the deficiency w as prejudicial in terms

of rendering a reasonable pr obability that the resul

t of the trial was unrel iable or the proceedings fundamentally unfair

. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); see Lockhart v. Fretwell , 506 U.S. 364, 368-72, 113 S. Ct. 838, 842-44 (1993). The Strickland standard has been applied to the r ight to counsel under4

Article I, Section 9 of the Tenness ee Constitution. State v. Melson , 772 S.W.2d 417, 419 n. 2 (Tenn. 1989).

In Baxter v. Rose , 523 S.W.2d 930, 93 6 (Tenn. 1975), our supreme court decided that attorneys shoul d be held to the general standar d of whether the servic es rendered were withi n the range of competence demanded of attorney s in criminal cases. Further, the court stated that the range of competence w as to be measured by the duties and criteria se t forth in Beasley v. United St ates , 491 F.2d 687, 696 (6th Cir. 1974) and United States v. DeCost er , 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also, in reviewing c

ounsel’s conduct, a “fair as sessment of attorney performance r equires that every effort be made to eliminate the distorting eff ects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to ev aluate the conduct from counsel’s perspective at the time.” Strickland , 466 U.S. at 689, 104 S. Ct. at 2 065; see Hellard v. State , 629 S.W.2d 4, 9 (Ten n. 1982).

We also note that the ap proach to the issue of the ineffective assistance of counsel does not have to start with an analysis of an attorney’s conduct. If preju dice is not shown, we need no t seek to determine the vali dity of the allegations ab out deficient performance. Strickland , 466 U.S. at 697, 104 S. Ct. at 2 069.

In a post-conviction case, the burden is on the petitioner to prove his grounds for relief by cl ear and convincing ev idence. Tenn. Code Ann. § 40-30-210( f). On appeal, we are bound by the trial court’s findings unless we conclude that the evidence preponderates aga inst those findings. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). The petitioner has the burd en of illustrating how the evidence preponderates against the ju dgment entered. Id

.5 First, we conclude that the petitioner has not shown that the evidence preponderates against the trial court’s finding that he received the eff ective assistance of counsel. Although the petiti oner claims that his attorn ey was ineffective for fail ing to present mitigation evi dence at the sentencing heari ng, the petitioner did not pr esent such evidence at the evi dentiary hearing. “ When a petitioner contends that trial counsel failed to discover, inter view, or present w

itnesses . . . these wi

tnesses should be presented by the petitioner at the evidentiary hearing.” Black , 794 S.W.2d at 757. Having failed to do so, the petitioner has not establi shed prejudice. Id. at 758.

Next, the petitioner ask s us to vacate and reinst ate this court’s judgment in the direct appeal in order to give him time to apply to the Tennessee Suprem e Court for permission to appeal. The state acknowledges that the trial cou rt appropriately granted the petitioner a delayed appeal, but it asserts that the issue is not pro perly before us. The state contends that the pet itioner should have filed h is application for permission to appeal within sixty days of the trial court’s order granting a delayed appeal. Pursuant to Rule 28, § 9(D), Tenn. S. Ct., the petit ioner had sixty day s from the trial court’s determination within which to seek supreme court review pursuant to Rule 11, T.R.A.P. That time has passed. H owever, we beli eve that we retain the jurisdiction through this post-conv

iction appeal to grant the delayed appeal pursuant to Ru le 28, § 9(D), as well, under

the trial court’s findings of fact. Therefore, in the interest o f justice, we grant the petitioner

a delayed appeal in State v. Lucien Samuel Sherr od , No. 01C01-9505-CR-00157, Davidson County (Tenn. Crim. App. JAN. 30, 1997).

In consideration of the foregoing and the record as a whole , we affirm the trial court’s denial o

f post-conviction reli ef and the grant of a delayed appeal to the Tennessee Supreme Court.6 __________________________ Joseph M. Tipto n, Judge CONCUR:

___________________________ James Curwood W itt, Jr., Judge

___________________________ John Everett W illiams, Judge