### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Decemb er 4, 2001 Session MARCUS A. TERRY v. STAT E OF TENNESSEE Direct Appeal from the Criminal Court for Shelby County No. P-21817 Arthur T. Bennett, Judge

No. W2000-01747-CCA-R3-PC - Filed February 8, 2002

The Appellant, Marcus A. Terry, a ppe als the dismissal of his petition for post-conviction relief. Terry is currently ser

ving a thirty- year se

ntence as a result of

tw o c on vi ct io ns by a Shelby County jury for vehicular homicide. On appeal, Terr y asserts: (1) that he received ineffective assistance of counsel at trial; and (2) that the tr

ial cour t erred by f ailing to instruct t he jury that he c ould poten

tially receive consecutive sentences for his multiple convictions. After review, we affirm the judgment of the post- convicti on court.

Tenn. R. App.P. 3; Judgm ent of the Criminal C ourt is Af

firmed.
D AVID G. H AYES , J., delivered the opinion of the court, in which GARY R. W ADE , P.J., and D AVID H. W ELLES , J., joined. Brett B. Stein, Memphis, Tennessee, for the Appellant, Marcus A. Terry.
Paul G. Summers, Attorney General an d Rep orter; Michael Moore, Solicitor General; Thomas E. Williams, III, Assistant Attorney General; William L. Gibbons, D istrict At torney General ; and Julie Mosley, Assistant District Attorney General, for the Appellee, State of Te nnessee.

OPINION
Factual Ba

ckground
The Appellan

t’s two co nvictions for vehi cular ho micide ste m from his operati on of a ve hicle in Shelby County on April 11, 1995. On this date, the Appellant attempted to elude Germantown police officers who were in the process of stopping the Appellant’s vehicle for improper registration. While fleeing from

the polic e, the Ap

pellant’ s vehicle

collided with another vehicle, resulting in the death of two victims and injuries to a t hird person. At trial, the Appellant testified that when the police attempte d to stop him, he was to ld by his passeng er, Willie

Harris, “to keep going don’t stop.” When he slowed to stop for police, the Appellant stat ed that “ Harris pulled a g un on him and told him to keep going.” The Appellant explained to the jury that he was driving at an excessive speed-2-

“becau se he was forced to” and “didn’t want to get shot.” The jury, which was instruc ted as to the defense of duress, rejected this defense and convicted the Appellant on bothcounts of vehicular homicide. See State v. M arcus Terr

y , No. 02C01 -9708-CR- 00313 (Te nn. Crim. App . at Jackson, Nov. 6, 1998), perm. to appeal denied , (Tenn. Apr. 26, 1999).
ANALYSIS
At a post-conviction hearing, the Appellant bear s the burden of establishing the allegations containedin hi s p et it io n b y c lear and convincing evidence. Tenn. Code Ann. § 40-30- 210(f). Findings of fact and conclusions of law made by a post-conviction

court are given the weig

htof a jury verdict. Davis v. State , 912 S.W.2d 689, 697 (Tenn. 1995). Unless evidence contained in the record preponderates against the judg ment, this court is bound by those findings on a ppeal. Id. This court may not rewe

igh or reevaluate the

evidence or substitute its inferences for those drawn by the trial court. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).
I. Ineffective Assistance of Counsel
To succeed in a challenge f or ineffective assistance of counsel , the Appellan t must demonstr ate that coun sel’s re

present ation fell below the range of competenc e demanded of at to rn eys in criminal cases. Baxter v . Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Under Strickland v. Washi ngton , 466 U.S. 668, 686, 104 S. Ct. 2052, 2064 (1984), the Appellant must esta blish: (1 ) deficient repres entation ; and (2) prejudic e result ing from the deficiency . The issues of deficient performance

by counsel

and possible prejudice to the defense are mixed q

uestions o f law and

fact; thus, our r

eview of this case is de novo

. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999).
In this appeal, the Appellant contends that trial counsel was ineffective in the following respec ts: (1) trial counse l failed to inform th e Appella nt of th e defen se of necessity; (2) trial counsel failed to show the Appellant a picture of the gun found near the crime sc ene until

the day of trial; (3) trial cou

nsel fail ed to ade quately

investigate the Appellant’s injuries from the w

reck; (4) tr ial counsel failed to subpoena witnesses to testify that th e Appellant’s passenger

was allegedly

on escape status when the wreck took plac e; (5) t rial counsel f

ailed to object tothe State ’s refe rences to th e adjudication of the Appellant’s passenger; and1 Notwit hsta nding this de fault, th e reco rd esta blishe s with rega rd to the res pecti ve is sues that : (1) thi s cour t on

direct appea l found the defen se of necessi ty was not warrant ed based upon the proof in t he case; (2) the Appell ant was sh own a photograph of t he weapon pri or to tri al; (3) t he post -convi cti on recor d fai ls to es tabl ish that the Appel lant sustain ed any injury from the w reck ; (4) the Ap pellan t failed to establish at the p ost-co nvic tion h earin g tha t his passen ger (Harri s) was on esca pe st atus at t he ti me of coll isi on; (5) the f act that the pa ssenge r Harri s ha d pr io r convict ions was p art of the de fense strategy to show the coerc ive nature of Ha rris; thus, no prejudice was shown; and (6) the ev iden ce is neither clear nor convincing that an objection to the App ellant’s res ponse t o the pr osecut or’s quest ion regar ding his prior

conviction wo uld have been sustained, as t he Ap pellant clearl y invited the alleged error. Moreover, in add ition to this prio r con viction , fif te en othe r convi cti ons of t he Appell ant wer e int roduced f

or purpos es of imp each me nt. Th us, the issues ra ised b y the Ap pellan t are w ithou t me rit.

2 The record ref

lect s that the trial court properl y instr ucted the j ury, under the l aw in effect at the tim e of tria l, that the Appel lant

faced a sent ence ra nging bet ween 2.7 yea rs a nd 15 years upon convic ti on for the of fense of vehi cular hom icide. Tenn. Code A nn. § 40-35 -201(2)(A )(i) (repealed 1998). -3- (6) trial counsel failed to object to the State’s cross-examination of the Appellant with regard to his prior convictions for car rying a weapon. Despite his assertions of ineffectiveness, the Appellant’s brief containsno author ity o r argu ments in support of his position. Rule 27 of the Tennessee Rules of Appellate Pro cedure provi des in releva nt part tha

t: The brief of the appellant

shall contain . . . An argument, which may be preceded by a summary of arg ument, setting forth the contentions of the appellant with resp ect to the issues presented, and the reasons ther efor, incl uding the reasons why the contentions require appellate relief, with citations to the authorities and appr opriate references to the recor

d (which may be

quoted verbatim) relied on[.]
Tenn. R. App. P. 27 (a)(7) . “I ssues whic h are not supporte d by

argume nt, citati on to authorities, or appropr iaterefer ences to the rec ord will be

treated as waive d in this court.” Tenn. Ct. Crim. App. R. 10(b). Accordingly , the Appellant’s ineffective assistance of counse l claim is waived. 1 II. Jury Ins tructio ns The Appellan

t next asser

ts that th e trial court

erred by failing to inform the jury during sentenc ing that

the Appellant could rece ive consecutive se

ntences for his c onviction s. 2 First, we note that this issue has als o been waived for failure to raise the issue on direct appeal. See Tenn. Code Ann. § 40-30-206(g). Notwithstanding, we e lect review of the issue presented. The Appellant was sentenced, as a Career Offender, to c onsecutive sentences of fifteen yearson eachcount of

vehicula r homicide . In h

is argu ment to the

post-con viction c ourt and i n his brief before this court, the Appellant maintains that the trial court erred by not informing the jury of the potential for imposition of c onsec utive sentences. In essenc e, the Appellant contends that the jury was inad equatel y in formed a bout the po ssible

range of punishm

ent that he was eli gible to receive.-4-

In support of

this arg ument, the Appellant err

oneously ci te s a s a ut ho ri ty State v. Thornton , 10 S.W.3d 229 (Tenn. Crim. App. 1999). The holding in Thornton is not controlling as it does not addressthe issue raised by the Appellant, i.e. , whether the trial court had a duty to inform the jury that consecutive sentences could be imposed.
Ad di ti on al ly, we note that an instru ction on the potential for imposition of consecutive sentences constitutes an extraneous matter whichis not substantive proof of the accused’s guilt or innocence and, as such, has no relevance in the guilt phase of trial. As Justice Henry wrote in Farris v. State , 535 S.W.2d 608, 614 (Tenn. 197 6), “the matter of the future disposition of a convicted defendant is wholly

and utter ly f oreign to his gui lt and is no t a prope r conside ration by a jury in determining the length of his sentence.”
Fi na ll y, we find that the issue presented does not implicate a constitu tional rig ht. Therefore, the Appellan

t’s claim is not cognizable

within the post-conviction process. Tenn. Code Ann. § 40- 30-203. T

his issue iswithout me

rit.
CONCLUSION
Based upon the foregoing, we find the issues ra ised by the

Appellant to be either waived or without merit. The judgment of the post-conviction court is affirmed.

___________________________________ DAVID G. HAYES, JUDGE