### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs, Decemb er 18, 2001
GEORGE THURMA N HAYNIE, JR. v. STATE OF TEN NESSEE
Direct Appeal from the Circuit Court for Williamson County

No. 200-59 Timothy L. Easter, Judge

No. M2001-01522-CCA-R3-PC - Filed March 26, 2001

Petitioner, George Thurman Haynie, Jr., filed a petition for post-conviction relief attacking a f elony conviction for pass ing a wor thless check and

a misdeme anor con

viction fo r passi ng a wort hless check. The Circuit Court of Williamson County dismissed the petition and Petitio ner now a ppeals. After a thorough review of

the record, the pro se brief filed by the Appellant, the brief filed by the State, an d the appl

icable la w, we af firm the j udgment of

the trial court. Tenn. R. App.P. 3 Appeal as of Right ; Judgment

of the Cir

cuit Cour

t Affir med.

T HOMAS T. W OODALL , J., delivered the opinion of the court, in which R OBERT W. W EDEMEYER , J., joined. J OSEPH M. T IPTON , J., concurs in results only. George Thurman Haynie, Jr., Nashville, Tennessee, pro se (on appeal); and J . Todd Faulkner, Nashville, Tennessee (at trial).

Paul G. Summers , Attorne y Gener al and Re

porter; G ill Robert G

eldreich, Assista

nt Att o rney General ; Rona ld L. Davis, District Attorney General; and Derek K. Smith, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION Background Information

P ursuant to a negotiated plea agreement, Petitioner pled guilty as charge d to one count of Class D felony passing of a worthless check, and one count of Class A misdemeanor passing of a worthles s check. The plea agreement with the State was only that Petitioner would be sentenced as
a “persis tent” rather than a “career ” offender on

the felony charge (even though he clea rly qualified to be sentenc ed as a “ caree r”offe nder), a nd that the

sentenc es for these two offenses would be served
concurr ently with each other. The length of each sentence, the manner of service, and whether or notthe effective sentenc e from the se two co unts would be serve d consecutive to, o r concur rent with-2-

other unserved sentences, would be left to the trial court’s determination. Even though Petitioner filed a notice of appeal upon the sentence imposed by the trial court, he late r voluntarily dismissed the appeal, and shortly thereafter filed his petition fo r post-co nviction relief. Regarding other pertinent facts of the underlying prosecution, we adopt, (with some editing), the procedu ral background

set forth by the post

-convic tion trial

court in its memorandum of law and order dismissing t

he petitio n for post

-convic tion relie

f, as fol lows:

On August 14, 1998 , an ag ent for Harpeth Ford signed an Affidavit of Complaint on an arrest warrant alleging that the Petitioner had passed two bad checks at Harpeth Ford on July 27 and July 28, 1998. The Affidavit of Complaint alleged that the amoun

t of the c hecks wa s $2,286.9 9 and $319 .62. The o rig inal s of these checks were attached

to the affidavit and are included in the Court’s file. (The check in the amount

of $2,286.99 is check #0748, drawn on an account at First American National Bank, dat

ed July 28, 1998, and

payable to Harpeth Ford. The check in the amount of $319.62 is check #1275, drawn on an account in the name of George T. Haynie, d/b/a/ HAYN-CO HOME IMPRO VEMENTS. This chec k is to the order of “Harpeth” and lists George T. Haynie as the payor .) Both checks were returned as “account closed.”

On September 23, 1998, with the assistance of the Public Defender’s Office for the Twenty-First Judicial District, the Petitioner waived preliminary hearing and th e case was bound over to the Williamson County Grand Jury. On October 12, 1999, the Petitioner was indicted by the Williamson County Grand Jury for one count of worthless check in an amount over $1,000 (Class D Felony) and a second count of misdemeano r bad check (Class A Misdemeanor). On November 6, 1998, the Petitioner was appointed the Public Defender’s Office for the Twenty-Fir st

Judicial District to represent him in the Circuit Court of Williamson County.

After several review dates were set and the discovery process completed, the Petitioner’s case was set for trial on May 12, 1999.

On May 12, 1999, the Petitioner waived his right to a jury trial and entered pleas of guilty to both counts of the indictment. The negotiated plea agre ement indicated that the Petitioner would plead guilty to passing a w orthless check over $1,000 and be se

ntenced as a Rang e 3 persi stent off ender, a nd the Petitioner wo

uld enter a ple a of guilt

y to the offense of passing a worthless check under $500 (misdemeanor), with both sentences running concurrently one with t he other . All additional sentencing issues wereleft to be determined by the Court at a subsequent hearing.

A full sentencing hearing was held on June 25, 1999, the Honorable Henry Denmark Bell presiding. Aft er t he sentencing hearing, Judge Bell sentenced the Petitioner to nine (9) years with the Tennessee Depar tment of Correct ion as a Range-3-

3 persistent offender in Count 1 and 6 months in Count 2. Pursuant to the negotiated plea a greement, the sentences were orde red to be served concurrently one with the other. Additionally, Judge Bell ordered that the two sentences run consecutive to the Petitioner’s sentence in Davidson County.

The Petitioner was represented throughout the pendency of this matter

in the Circuit Court of Williamson County by John P. Cauley, who at that time wa s an Assistant Public Defender.
Post-Co nviction Hearing

At the post-conviction hearing, the evidence consisted of the testimony of Petitioner; t he testimony of Dan Hyland, an employee of Harpeth Ford; the testimony of John Cauley, Petitioner’s trial counsel; and the stipulated testimony of certain other witnesses.

Petitioner asserted during his testimony that his trial counsel, John Cauley , render ed ineffective assistance of counsel. First, P etition er claim ed that hi s counsel

failed to take ste ps to withdraw Petitioner’s guilty plea due to the fact that the assistant district attorney had ren eged on a neg otiat ed plea agreement. Petitioner asserted that the prose cutor had agreed to recommend pr obat ion and repayment of restitution by Petitioner if he pled guilty to both charges. Petitioner stated that afte

r he pled guilty, his trial counsel informed him that the prosecutor had reneged on the agreement

because the victim did not believe that Petitioner would be able to pay restitution. According to Petitione

r, counse l claimed that “my h ands are

tied” an d th at the time period for with dr awing a guilty ple a had ex pired. H owever , Petitione r acknow ledged du

ring cro ssexamination that he signed the plea agreement and stated in open court during the guilty plea hearing that his actions were vo luntary a nd not the r

esult of force, threats, or promises other than what wa s reflected in open court. Petitioner also complained that his trial counsel did not subpoena character witnesses who Petitioner had requ ested him to subpoena for the senten cing hearing. Specifically, Petitioner asserted that his t rial counsel s hould hav e subpoe naed Wa nda Jone s, Disney

Allen, and Victor M oore to appear and testify at the sentencing hearing.

Petitioner also asserted

that his trial counsel was ineffe ctive be cause he did not inve stigate the case properly to show that the trialcourt lacked subject matter jurisdict ion to impose

judgments of guilt against Petitioner. The crux of this argument by Petitioner is that the case was a civil matter, and not a criminal case. Petitioner supported this argument

by the assertion that when he returned the “engine

core” t o Harpe th Ford, af

ter the checks h ad b een returned by the bank because the
accoun ts were closed, and Harpeth Ford acc epted the engine co r e, that the matter became a relation ship of

“debtor-creditor” rather than a criminal matter. Finally, Petitioner admitted during his testimony that he had been convicted of numerous criminal charge s in the past, including forgery, gr and larcen

y, passing

worthles s checks , theft, a ssault, a nd robbe ry. He a lso admitte d that h i s-4-

probation and parole had previously been revoked on a t least two (2) occasion s becau se he had committed additional criminal offenses while under these forms of rele ase in the community.

The parties stipulated the testimony of Assistant District Attorney General Derek Smith, the prosecutor

who represented the State in both the original prosecution, and during the post-conviction procee dings. The stipulation of testimony was that Genera l Smith did not

recall a greeing to recom men d minimum sentencing; he was positive that he did not recommend probation. The stipulated testimony o f Gener al Smit h also included the fact that he did not renege on any plea agreement with Petitioner, and that if he had done so, he would have r emembered.

Dan Hyland, an employee of Harpeth Ford, testified that he dea lt with Petitioner in the transactions which resulted in two (2) worthless checks being passed by Petitioner. The check which led to the felony charge, included an amount of $500.00 of the total amount of $2,286.99, for a “core charge.” Mr. Hyland explained that the manufacturers of r ebuilt engines require that an engine core which is being replaced be turned in at the time of purchase of a rebuilt engine, or in substitution thereof, $500.00 be paid by the p urchaser of the newly rebuilt engine. If the “ engine core” is not availab le at the time of the initial purchase, but is later brought to Harp et h Ford, the purchas er is entitled to a refund of $500.00. He acknowledged that af ter t he che cks had been returned by the bank, Petitioner

brought a

n engine c ore to Harpeth Ford , which wa s accep ted and ke pt by him. Petitioner was not given a check

for $500.00, because the original checks to pay for the n ewly reb

uilt engine and other

parts ha d not been

paid due t

o the acc ounts being closed. Petitioner had received the newly rebuilt engine and other parts in exchange for him issuing the tw o checks which “bounced.”

Petitioner’s trial counsel, John Cauley, testified that he was appointed to represent Petitioner in the circuit

court level, in his capacity as an Assistant District Pu

blic Def ender. H e did not r

ecall the State eve

r offer ing to rec ommend mini mum sente ncing, or probation, in ex change for Petitioner’s guilty pleas. H e also did not reca ll Petitione

r ever r equestin g that h e be allowed to withdraw the guilty pleas. Counsel acknowledged that although Petitioner provided him with a potential list of character witnesses for the sentencing hearing, hedid not subpoena the witnesses because most of them were reluctant to testify. He explained that some of the witnesses claimed that Petitioner had “harmed” them or the w itnesses k new peop le whom Pe

titioner h ad “har

med.” On e witness told counsel that “I like [Petitioner], but you don’t want me to testify.” Couns el stat ed that he did not think it was wise

to subpoen a the witnesses wh o were r eluctan t to testify , or other

wise expressed an intention to not testify favorably. He also stated tha t he did not

subpoena Petitioner ’s close

family because he had asked them to come and e xpected them to appear at the sentencing hea ring.

Counsel testified that he adequately investigated the Petitioner’s case. Importantly, counsel stated that until a short period of time prior to the scheduled trial, Petitioner had maintained that the checks had been stolen from him and passed by

someone e

lse. Just b efore t

rial, Petitioner admitted that he hadpassed the checks to Harpeth Ford. Counsel further testified that in his opinion, the fact that Petitioner returned the engine core and rec eived $500.00 credit was not relevant to the criminal case. He felt that Petitioner would still be criminally liable for passing the worthless checks.-5- ANALYSIS

In ord er to obta

in post-c onviction

relief, a petitioner must allege tha t his convi ctio n o r sentence is void or v oidable b ecause of an abr idgement of a cons titutional

right. Tenn. Code Ann. § 40-30-203 (1997). If granted an evi dentiary heari ng, Petitio ner has t he burde n of provi ng his allegations by clear and convincing evidence. Id. § 40-30-210(f). Findings of fact and conclusions of law made by the post-conviction court are afforded the weight of a jury verdict. See Tidwell v. State , 922 S.W .2d 497, 50 0 (Tenn. 1996). Thus, this Court is bound by those findings unless the evidence contained in the record pre ponderates otherwise. See State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). This court’s application of the facts, however, is de novo without any presumption of correctness. See id.

Our examination of the post-conviction court's decision is constrained by three fundamental rules of appellate rev

iew. First , this Court

cannot r eweigh o r reeva luate the evidence, nor

may this Court substitute its inferences for those drawn by the trial judge. See Black v. St ate , 794 S. W.2 d 752, 755 (Tenn. Crim. App. 1990). Second, any questions regarding the credibi lity of the witnesse s, the weight and value to be given to their testimony, and the factual issues raised by the e vidence are to be resolved by the trial judge. See id. Third, Petitioner bears the burden of proof, and must show why the evidenc e in the r ecord pr eponder ates aga inst the judgment entered by the post-conviction court. See id.

The above standards are slightly modified when the claim for relief is ineffective assistance of counsel. In Burns , our Supreme Court held that a claim of ineffective assistance of counsel raised on direct appeal raises mixed questions of law and fact, and thus is subject to a de novo review. 6 S.W.3d at 461. The de novo review of a trial court ’s factual findings by an appellate court are entitled to a presumption of correctness, which is overc ome o nly when the preponderance of the eviden ce is contrary to the trial court’s findings of fact. See Fields v. Sta te , 40 S.W.3d 450, 458 (Tenn. 2001). A defendant alleging ineffective assistance of counsel must prove the allegations of fact underlying his claim by clear and convincing evidence. See Tenn. Code Ann. § 40-30-210(f); Fields , 40 S.W .3d at 4 58. This sta ndard of proof is r equired regard less of wh

ether a petitione r is bringing the claim in a direct appeal or a post-conviction petiti on. See Burns , 6 S.W.3d a t 461 n. 5. We will now address each of the nine (9) issues r aised by Petitioner in this appeal.

Issue#1: Wheth er the c ourt err ed by finding t

hat the tr

ial court had su bject m atter jurisdiction to adjudicate the case.

The crux of Petitioner’s arg u ment is that this case became a civil case when Ha rpeth Ford accepted the engine core from Petitioner after the two checks had been returne d from the bank marked“account closed.” Therefore , according to Petitioner, the Williamson County Circuit Court didnot have subject matter jurisdiction to e nte r a judgment against Petitioner in the two criminal counts. We disagree. In support of his argument, Petitioner relies upon Jones v. Sta te , 197 Tenn. 667, 277 S.W.2d 371 (1955). His reliance is misplaced. In Jones , the defendant was convicted of-6-

two counts of passing worthless checks. The proof showed that betwe en the time that the defendant passed the first check and the occasion of passing the second c heck, the first check was r eturned to the victim by the bank because of insufficient funds. Since the victim was put on notice that there
were not sufficient funds for the first check, there was a l ack of proof of fraudulent intent by the d efendant when the victim accepted the second chec k. The supreme court concluded, therefor e , under the standard of review then applicabl e, that the preponderance of the evidenc e was in favor of the defe ndant, and the conv

iction for passing the second

worthles s check had to be reversed. In Petitioner’s case, there was no notice to the victim, Harpeth Ford, that the accounts were closed at the time e ither check was passed by Petitioner

to the vic tim.

Petitioner also reli e s upon the case of Dishmon v. Shelby State Community College , 15 S.W.3d 477 (Tenn. Ct. App. 1999), in support of his argument that the Circuit Court of Williamson County did not hav e subjec t matter ju risdictio n to enter

judgment a

gainst him

in the criminal case. Again, Petitioner’s reliance is misplaced. In Dishmon , the cour t of appe als held a s follows:

The co n cept of s ubject ma tter juri sdiction in

volves a c ourt’s po wer to adjudica te a particular type of controversy. See Meighan v. U.S. Sprint Communications Co. , 924 S.W.2 d 632, 639 (Tenn. 199 6); Tur pin v. Conn er Bros. Excavating Co. ,761 S.W.2d 296, 297 (Tenn. 1988). Courts der ive their subject matter jurisdiction from the Constitution of Ten ness ee or from legislative act, see Kane v. Kane , 547 S.W.2d 559, 560 ( Tenn. 197 7); Brown v. B rown , 198 Tenn. 600, 618-19, 281 S.W.2d 492, 501 (1955), and cannot exercise jurisdictional powers that have notbeen co nferre d direct ly on them expressly or by necessary implication. See Hicks v. Hicks , No. 01A01-9309-CH-00417, 1994 WL 108896, at *2 (Tenn. Ct. App. Mar. 30, 1994) (No Tenn. R. App. P. 11 application filed).

Id. at 480.

Tennessee Code Annotated section 16-10-102 explicitly provides that

the circuit court has exclusive original jurisdiction of all crimes andmisdemeanors, either at common law or by statute. See State v. Booher , 978 S.W.2d 953, 597 (Tenn. Crim. App. 1997).

Petitioner’s entire argument on this issue e ssentiall

y assert s that, in h

is opinion, the State

did nothave sufficient evidence to prove that he committ

ed the cr iminal ac ts of passin g two wort hless checks. Attacks upon the suffi ciency of the evidence are not available to obtain post-conviction relief. See Cole v. Sta

te , 798 S.W.2d 261, 264 (Tenn. Crim. App. 1990). Clearly, the Circu

it Court of W

illiamson Co

unty had subject matter jurisdiction to resolve
a criminal case wherein the grand jury of W illiamson County had charged Petitioner with two c ounts of violation of the bad check law. The fact that Petitioner considered the matters to be civil, rather than criminal, did not rem ove the sub ject matt er jurisd iction of t he Willia mson County

Circuit Cou

rt. Petitioner is not entitled to relief on this issue.-7-

Issue#2: Whether the Circuit Court erred by not finding that the victi m ’s agent, Suzanne Grambling, who filed the affidavit of complaint in support of the arrest warrant on August 14, 1998, filed a false complaint, procuring a malicious prosecution against Petitioner.
First, we note tha t eve n if it coul d be prov en that a n allege d victim of

a crime i ntended t

o initiate a malicious prosecution, that, in itself, would not be grounds for granting p ost- conviction relief. Second, a conviction in an underlyi ng crimina l prosec ution is a complete defense and a bar to a malicious prosecution suit. See Sherrod v. Piedmont Aviation, Inc. , 516 F. Supp. 39, 42 (1978); Sadek v. Nashville Recycling Co. , 751 S.W.2 d 428 (Te nn. Ct. App . 1988). T

hird, Petitioner was indicted by the Wil liamson Cou nty grand jury and a

ny defect in an arres t warrant is cured by the
re tu rn of an indictment. See State v. Ca mpbell , 641 S.W.2d 890, 893 (Tenn. 1982). Finally, Petitioner did not present evide nce in support of this issue a

t the post- convicti on heari ng. Thus, Petitioner failed to carry the burden of proving this allegation of fact by clear and convincing evidence. See Tenn. Code Ann. § 40-30-210(f) (1997). Furthermore, issues not raised in the trial court cannot be

raised f or the fir st time on a

ppeal. See Simpson v. Fr ontier Com

munity Cre dit Union , 810 S.W.2d 147, 153 (Tenn. 1991). Petitioner is not entitled to relief on this issue.

Issue#3: Whether the court erred by not dismissing the conviction and sentenc e in case #I-1098-329, [the convictions being attacked on post- con viction] at the PCR evidentiary hea ring on April 27,

2001, findin g that Petitioner ’s consti tutional r ight prohibi tin g imprisonm ent

for civil debt, has been violated under Article I, Section 18 of the Constitution of Tennessee.

Issue#4: Wheth er [the

presiding j udge at the

post-conv

iction heari ng] violat

ed the Judicial Code of Conduct when he denied Petitioner’s request for relief, after receiving firsthand testimony from Dan Hyland affirming that Harpeth received and accepted a partial payment f

rom Pet itioner a gainst the

worthle ss check,

before c riminal co

mplaint was

filed.

Petitioner did not include any separate argument under “Issue #3" in his brief, but instead argued “Issue #3" with “Issue #4.” Regarding “Issue #3,” ther e is a tota l l ack of evidence in the record to support Petitioner’s assertion that he was impri soned for a civil de bt, in viola

tion of Ar ticle I, Section 18 of the Constitution of Tennessee. Furtherm ore, Petitioner’simplicatio n that he w ould be entitled to post-conviction relief as a result of an

alleged violation of the Code of Judicial Conduct by the trial judge at the post-conviction hearing is without merit. Accordingly, Petitioner is no t entitled to relief on either “Issue #3" or “Issue #4.”

Issue#5: Whether [the post-conviction hearing judge] erred by not responding to Petitioner’s objections or imposing sanc tions agains t

the State because o

f the Stat e’s untim ely response to Petit ioner’s po st-convi ction pet ition pursuant

to Suprem e Court R

ule 28, Section (5), (I).

Petitioner

didnotpresent evidence at the post-conviction hearing conc erning this issue, and thus failed to

prove this allegation of fact by clear and convincing evidenc e. SeeTenn. Code Ann.-8-

40-30-210(f). Furthermore, issues not raised in the trial court can not be raised for the first time on appeal. See Simpson , 810 S.W.2d at 153

. Issue#6: Whether [the post-conviction trial court] violated Petitioner’s rights created under Rule 28 Section 8(B) of the Rules of the Supreme Court

when the post-conviction court failed to conduct the evidentiary hearing within the four-m onth ti me limit of the order scheduling the hearing, and furthe r extending the hearing date, by continuances, more than sixty days beyond the original hearing date of September 22, 2000. Upon our review of the record, and the c ircu m stances under which the continuances were gr anted, we con clude that there was no prejudice whatsoeve r to Petitioner as a result of any continuances. Assuming that the post-convict i on court d id not comp ly with the

time limits se

t forth in Tennessee Rule of the Supreme Court 28, Section 8, this would not entitle Petitioner to be granted post-conviction relief. Generally, statutory provision s requiring that an act be done within a specified period of time are directory, rather than mandatory. See State v. Jones , 729 S.W.2d 683, 685 (Tenn. Crim. App. 1986 ). In the po st-conviction setting, there is no indication at all that the legislature, or

the Tenn essee Sup

reme Cour

t, intende d for a pe

titioner t o be granted post-conviction relief simply bec ause of n on-compl iance of perfor ming an ac t within a c ertain ti me limit

. See Warre n v. State , No. 03C01-9610-CR-00407 (Tenn. Crim. App., Knoxville, Jan. 23, 1998), perm. to app. denied(Tenn. Nov. 2, 1998). Accordingly, Petitioner is not entitled to relief on this issue.

Issue#7: Whether the post-conviction court and the assistant district attorney general represe nting the State in the post-conviction hearing violated Tennessee Supreme Court Rule 28, Section 7, Tennessee Code Annot

ated sec tion 40-30 -209, and

Tennessee Rule of Criminal Procedure 16 when there was a failure to comply with Petitioner’s motion fo r discove ry and productio n of docume

nts.
There was no assertion of this issue at the post-conviction hearing. Thus, the issue was not raisedat the post-conviction hearing. Again, issues not raised in the trial court cannot be raised for the first time on appeal. See Simpson , 810 S.W.2d at 153

. Accordingly, Petitioner is not entitled to relief on this issue.

Issue#8: Whether the assistant district attorney general violated the Petitioner’ s constitutional right to due process and violated the Code of Professional Responsibility by not notifying the court of the State’s receipt of exc ulpatory evidence. Again, this issue was not presented in the trial court and can not be raised

for the f irst time
on appeal. See Simpson , 810 S.W.2d at 153

. Accordingly, Petitioner is not entit

led to re lief on thi s issue.-9-

Issue#9: Whether the trial court erred by not finding that Petitio ner was de nied his constitut ional right

to effective as sistance

of counse

l.

In this issue, Petitioner lists in his brief, fourteen reasons that support his assertion that he receiv ed ineff

ective a ssistance

of counse

l. They a re as fo llows:
(1) Couns el did not inve stigate th e facts and the la

w that we re in existence when th e action was filed. (2) Counse l faile d to interv iew any o f the witn esses wh o the State had subpo enaed to testify against Petitioner. (3) Counsel failed to do any legal research of the fa cts that were available. (4) Counsel failed to conduct an independent investigation. (5) Counsel failed to

confer with Petitioner about any of the facts of the case, prior to the scheduleddate for the jury trial, even thou gh he had been appointed to represent Petitioner approximately five months prior thereto. (6) Counse l faile d to interview Petitioner’s business partner, who happened to be Petitioner’s father, or subpoena him to testify at the penalty phase of the hea ring. (7) Counsel failed to issue subpoenas for the witnesses whose names were given to him by Petitioner , who woul d have pr ovided ev

idence r elevant to the re quest

fo r alternative sentencing. (8) Counsel made a recommendation to Petitioner to enter guilt y pleas w ithout fir st perform ing an investigation of the facts or researching the law in preparation of a valid defense for the Petitioner. (9) Counsel failed to notify the court of Petitioner’s request, pr ior to the sentencing hearing , to withdr

aw the gu ilty pleas

. (10) Counsel did not discuss any potential strategies or tactical decisions with Petitioner. (11) Counsel did not file any pre-trial motions for orders requiring handwriting exemplars and for a line-up, as requested by Petitioner. (12) Counsel failed to notify the trial court of the district attorney’s withdrawal of an offer to recom mend prob ation and

restitutio n in retur

n for guil ty pleas. (13) Counsel failed to

conduct a

ny interviews with P e titi oner’s f amily, pa st employe

rs, church members, friends, or any others in prepa ration for the sentencing hearing. (14) Counsel failed to investigate to uncover mitigating evidence to be pre sented b y Petitioner in support of a request for alternative sentencing.

Petitioner specifically asserts in his argument, that his counsel was ineffective because he did notpresent

proof to s how that th

e trial c ourt did no t have sub ject matt er ju risdicti on. We have determined that the trial court did have subject matter jurisdiction, and theref ore, it cannot

be said that trial counsel rendered ineffective a ssistance of counsel by not addressing this issue.

The post-conviction court filed a detai led findings of fact in its memorandum denying the petition for post-conviction relief. We have ca refully review ed the re cord regarding all of the allegations made by Petitioner that assert ineffective assistance of counsel. The testimony of trial-10-

counsel, along with other parts of the record, including the sent encing hearing and the guilty plea hearing, contradict the testimony of Petitioner at his post-conviction hearing. The trial court accord ingly did not cr

edit the te stimony of P eti tioner on th e issue of ineffective assistance of counsel. Our review of the record compels us to conclude that Petitioner is not entitled to relief on this issue.
CONCLUSION Having reviewe d the rec ord, we c onclude t hat Petitio ner is not

entitled t o relief on any of the issues presented

on appeal, and accordingly, the judgment of the post-conviction court is aff irmed.

___________________________________ THOMAS T. WOODALL, JUDGE