### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVII LLE A ssi gne d on Br ie fs Ja nua ry 27, 200 4

JAM ES ED WAR D D ICKEN v. S TAT E OF TEN NES SEE

Appeal f romthe Cr im inal Cou rt for Sum ner County No. 341-2002 Jane W. Wheatc raft, Judge

No. M2003- 01455-CCA -R3-C D - F iled Jun e 25, 2004

The pe titioner, J ames Edwa rd Dicke n, appea ls the denial of his petition for post-c onviction relief. He c on te nd s th a t he wa s d e nie d th e e ff e c tiv e a ssi sta nc e of

c ou ns e l. T he judg me nt o f the po stconviction court is affirmed.

Tenn. R. App . P . 3; Judgme nt of th e Trial Court Affirm ed

G AR Y R. W ADE , P.J
., delivere d the opi nion of t he court, in which A L AN E. G L EN N and R OB E R T W. W EDEMEYER , J J ., joined.

L ouis W . Oliver, I I I , Hende rsonville, Tenne ssee, f or the a ppellant, J ames Edwa

rd Dicke n.

Paul G. Summers, A ttorney Gene ral & Reporter ; D avid H. Findley , Assistant Attorney Gene ral; and Sallie Wade Br own, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

On May 29, 2001, the petitioner, o ri g inally char g ed with thirteen c ounts of incest, ente red pleas of g uilt to t hree counts of ince st, a Class C fe lony

. See Tenn. Code Ann. § 39-15-302 ( 1997) (" A per son commits incest who eng ag es in sexual penetra tion as define d i n § 3 9 -1 3 -501, with a person, knowing such per son to be, without reg ard to legitimacy . . . [t ]he person' s . . . stepchild[.] ")

. Th e fa c ts, a s su mma

ri zedby the state a t th e su bmi ssi on he ari ng , a re a s f oll ow s:

[T] he victim in this case, the [st ep-]daug hter of the petitioner, . . . . had be en having

sexua l i n te r c o u r s e w ith [t h e p e ti ti o n e r ] f o r s e v e r a l m o n th s u p to N o v e mb e r o f the
y ear 2000. [The petitioner] was in terview ed. He . . . admitted the fa ct he ha d been

e n g a g in g in s e xu a l i n te r c o u r s e w ith [t h e v ic ti m]

. The plea ag ree ment provided for the followin g s en t en ce s, with the manner of service to be determined by

the trial court: five y ear s on co u n t 1 1
, t h ree y ear s on count 12, and thre e y ear s on-2-

c ou nt 1 3. Th e ple a

a g re e me nt p ro vid e d that the thr e e -y e ar se nte nc e s w ou ld b e se rv e d c on c ur re ntl y wi th e a c h o the r bu t c on se c uti ve ly to the fi ve -y e ar se nte nc e , fo r a n e ff e c tiv e se nte nc e of

e ig ht y e ars

. The trial c ourt d en i ed al t ernative sentenc ing, c iting the pe titioner' s ext ensive c riminal history and the n e e d to a v o id d e p r e c iati n g th e s e r io u s n e s s o f th e o f f e n s e

. Se e T e n n

. Co d e A n n

. § 40-35- 10 3( 1) (B ) ( 19 97 ). Th e re wa s n o a pp e a l.

At the evidentiary

hearing on the petition for pos t-conviction re lief, the pe titioner acknow ledg ed that he ha d provided a statement to the police a dmitti ng a sexual relationship with the victim, who was suffe ring from a te rminal illness at the time; he claimed, however
, that the police failed to provide Miranda w arning s. He also contende d that when he asked f or an attorney

during the interview , the investig ating office r re sponded, " It is y our money , if y o u want to waste y our

mo ney for

a n a tto rn e y ." Th e pe tit ion e r a sse rt e d th a t he a sk e d tria l c ou ns e l to fi le a mot ion to suppress the state ment but trial counsel had a dvised, " [I ]t wouldn' t amount to an y t h i n g." T he petitioner ac knowledg ed that he w as aw are of his rig ht to have an attorney prese nt during questioning a nd that one would be a ppointed if he c ould not aff ord one. He also conc eded that the police informe d him on more than one occa sion tha t he was not unde r arr est, that he wa s fre e to g o, and that he ha d not been c harg ed with any crime.

Reg arding his prior criminal history , the petitioner testified tha t although he had informe d trial counsel that he had a numbe r of c on v i ct i o n s i n Kentucky , including a s many as eig hteen fe lon ie s, so me ha d b e e n d ism iss e d a s p art of a " pa c ka g e de a l." He a dmi tte d th a t he didno t te ll h is
tr ial cou ns el that

he ha d a

pr ior Ke ntu c ky

c on vic tio n f

or se xua l a bu se of the vic tim . Wh ile acknow ledg ing that trial counsel informed him that he could re ceive a sente nce of betwee n two and eig ht y ear s, the petitioner cla imed that it was h i s u n d erstanding that he would rec eive a four- y ear pr ob a tio na

ry se nte nc e . H e ins ist e d th a t he didno t un de rs ta ndthat i nca rc e ratio n w a s a

po ssi bil ity under the terms of the ple a ag ree ment, even thoug h the trial co u rt was e mpowere d to make that determination. The petitioner admitted sig ning a wa i v er of his right to appe al the sente nce. T he
p et i t i o n er al s o co m p l ai n ed t h at t ri al co u n s el s h o u l d h av e o b j ec t ed t o t h e a d m i s s i o n o f t h e v i ct i m 's vid e ota pe d s t at e m e n t a t th e se nte nc ing he ari ng , c la imi ng that th e tape d s tate me nt w a s in c on fl ic t w ith the state me nt s he ini tia lly pr ov ide d to po lic e

. Th e pe tit ion e r al so c omp la ine d tha t he wa s u na ble to submit t o a psy chosexual evaluation as order ed bec ause tria l counsel had not informed him that he would be re quired to pay

part of the cost. The victim died prior to the se ntencing hearing.

Offic er Don Hardin of

the Portland Police Depa

rtment, who questioned the vic tim when her mother filed a

complaint, testified at the evidentiary hearing that the victim admitted that she and the
pe tit ion e r h a d b e e n h a vin g se xua l int e rc ou rs e app ro xima te ly thr e e tim e s a we e k fo r s e ve ra l mo nth s. Ac c or din g to Of

fi c e r Ha rd in, wh e n the vic tim inf

or me d th e pe tit ion e r tha t th e po lic e ha d " fo un d o ut" about their re lationship, the petitioner responde d, "What was done, was done." Offic er H ardin stated that he explained t o t h e petiti oner tha t he was not unde r ar rest. Ac cording to the office r, the
pe tit ion e r a g re e d to a n inte rv ie w an d tra ve le d to the po lic e statio n in his own ve hic le . O ff ic e r H ard in
te sti fi e d th a t h e again in fo rm e d th e pe tit ion e r tha t he wa s n ot u nd e r a rr e st a ndthat he wa s f

re e to leave at any

time when h e arrived f

or questioning . During the interview , the petitioner a dmitted ha vin g se x withthe vic tim so me thi rt y tim e s, e xpla ini ng that his wif e wo uldno t ha ve se x withhim

.-3-

He a lso admitted being convicted of a prior se x crime involving the victim when she w as six y ear s

o l d

. O f f i c e r H ar d i n t e s t i f

i e d t h a tt h e p e t i t i o n e r

d i d n o ta s k

f o r a n a t t o r n e y.

Trial counse l, an Assistant Publi c De fende r appointed to re prese n t t h e p eti tioner at the

arr aig nment, testified that the petitioner f ailed to ar riv e f o r th eir fir st scheduled a

ppointment and later stopped by

his office on a day

when he was out. Another Assistant Public Defe nder inter viewed the petitioner and pr ovided her notes to trial counsel. Trial counsel re membere d that the petitioner wa s difficult to contac t be cause the telephone numbers he provided wer e either inacc urate or inopera ble. When he finally

met with the petitioner, t hey discussed t he st atement the petitioner had made to the police, which the petitioner admitted was true and acc urate

. Acc ording to trial counsel, the pe titioner

ac k n o wl ed ged that the investigating office rs told him that he was fr ee to lea ve at a ny time. Trial counsel a lso remember ed that the pe titioner admitted that he had be en previously convicted of a sex crime involving the victim and had r ece ived a f ive-y ear sentenc e.

Trial cou ns e l te sti fi e d th a t th e state or ig ina lly of fe re d th e pe tit ion e r a

te n- y e ar s e nte nc e in exchang e for

his pleading g uilty to thr ee counts of ince st and that when the state ac cepte d his counter offe r of a n eig ht-y ear sentenc e, the petitioner agr eed to plead guilty

. Trial counsel testified that he informed the pe titioner that probation was unlikely "in light of the fac t he had been char g ed with 13 counts of ince st wi t h a phy sically infirm individual." He also told the petitioner that " if he we re order ed to s er v e t hat eig ht-y ear sentenc e, that he w ould probably have to f latten, or e x pire, that
sentenc e bec ause of

its being a

sex offense." Trial counse l testified that he never tol d the petitioner that he would re ceive a four-y ear probationary sentenc e. Ac cording to trial counsel, the pe titioner was " utterly

disinterested in the case , and car ed not w hat happene d." It was trial counse l's opinion that beca use of the pe titioner' s criminal history , he fa ced Ra ng e I I I sentenc es of f

ifteen y ear s on eac h of the thirtee n counts. Trial counsel rec alled that he had informed the petitioner that he would ha ve to pay $100 for t h e psy chosexual evalua tion. I t was counse l's opinion that the re sults of any evaluation would have had no e ffe ct on the outcome of the sentenc e.

Trial coun s el t es t i fi ed that he did not objec t to the admission of the victim's videotape d statement at the se ntencing hearing be cause he believe d it was admissible as re liable hea rsay . See Tenn. Code Ann. § 40- 35-209(b) ( providing t hat re liable hea rsay is admissibl e in a se ntencing he ari ng so lon g a s th e op po sin g pa rt y ha s a fa ir op po rtun ity

to r e bu t th e e vid e nc e ); Sta te v. Mo ss, 13 S.W .3d 374, 385 (Tenn. Crim. App. 1999) (" I t is well settled in Tennessee that a trial c ourt has statutory authority to admit trustworthy

and probative evidenc e, including hear say , for se ntencing
pu rp os e s. " ); se e a lso Sta te v. F ly nn , 675 S.W. 2d 49 4 (T e nn . Crim . App . 1 98 4) ; State v. Cha mbl e ss, 682 S.W .2d 227 (Tenn. Crim. App. 1984)

. As to the petit ioner' s claim that the victim had lied on the tape, tr ial counsel stated tha t "[the victim] could be stretching the t ruth, but that doesn' t g o to the

a dmi ssi bil ity , b ut ra the r to the we ig ht. " Ac c or din g to t ri a l c ou ns e l, h e a dv ise d th e pe tit ion e r a g a ins t taking the stand at the sentenc ing he aring but informed him that he could do so. He stated that he also told the petitioner that he ha d the rig ht to appea l the sentenc e but that, in his opinion, an appea l

wo uldbe fr

uit le ss.

At the c on c lus ion of

the he ari ng , th e po st- c on vic tio n c ou rt ma de the fo llo wi ng fi nd ing s:-4- The plea
, . . . and I

have r ead the submissi on, was a n entirely . . . voluntary plea. This [ c] ourt is very specific and cle ar a

bout what is g oing on. I ask the defe ndants very pointed questions: if they understand; if they are satisfied with the servic es of the public defe nder. We we nt throug h, and he told me e x actly what he was plea ding to, the se ntence he wa s g etting, a nd t h e fact that he w as g uiltyof the crime; so this was not an involuntary plea. Now, over the [s] tate' s strenuous objections, I allowed in, testimony

conce rning the confe ssion a nd the unlawful arr est, only for the purpose of seeing whether or not, if that wer e an issue, that the def ense attorney

had prope rly

addre ssed it; and, I think, in thi s case , from the pr oof in the re cord, it is abundantl y cl ear that [tr ia l c ou ns e l] a sk e d h im the c ir c ums ta nc e s u nd e r w hic h h e g a ve the state me nt. And ev en t o d ay [t he petitioner] said that they said to him, y ou can le ave. Sa id, qu ote , " I f y ou do n' t wa nt t o ta lk t o u s, y ou c a n le a ve ," a t w hic h p oin t he wr ote

ou t th e state me nt. B u t[ t r i a l c o u n s e l ] a s k e d a l l t h e ap p r o p r i a t e q u e s t i o n s : W e r e yo u i n c u s t o d y; did y ou know y ou wer e fr ee to lea ve; wer e y ou co er ce d i n any way , to which [the petitioner] replied, no. So I am convince d that, as i t relate s to ineffe ctive assistanc e of counsel, ther e is no basis to set this ag ree ment aside ba sed on the c onfession or the

arr e st. Now, that b ri n g s me to my last issue, which is ineffe ctive assistanc e of

c ou ns e l. There was no psy chosexual evalua tion. Why ? Be cause [t he petiti oner], even though he was wor

king, c ould not must er the $100 to ge t it done. He didstate that he wa s c on vic te d of a pr ior se x o ff e ns e

. Th a t c e rt a inl y

c a me out at the hea

ring . To what e x tent it affe cted the [c] ourt, I don' t know. I did mention it when I imposed the eig ht-y ear

sentenc e, but with every thing e l s e t he [c]ourt had seen, inc luding the ta

pe, and inc luding the te rrible prior rec ord of [the petitioner], .

. . I 'ms u re i two u l d n o th av e c h an ged an y t h i n g.

*** L oo k, fo lks , [the pe tit ion e r] wa s fa c ing a lon g tim e . H e g ot a

ve ry g oo d d e a l. He wa s not a particula

rly cooper ative client. [Trial counse l] . . . did the absolute ve ry best for h i m that could be done. I see nothing in the rec ord, in eve rything that I ' ve listened to today , to indicate ther e wa s any ineffe ctive assistanc e of c ounsel, and that there is any

basis at all on which to g rant this petition for post-conviction re lief.

I n this appeal, the pe titioner asserts that his trial counse l w as ineffe ctive by failing to conduct an ade quate investig ation of the stateme nt, by failing to f ile a motion to suppress the sta tement, by failing to challeng e the c onstitut ionality of the ince st statute, by

failing to object to the admission of the victim's vide ot ap ed s t atement at the sentenc ing he aring , and by g oing f orwa rd with the

se nte nc ing he ari ng wi tho ut the ps y c ho se xua l e va luatio n. Th e state dis a g re e s.I n 2003, t h e Pos t

- Conv i ct i on P r oce du r e Act was re n u mber ed wi t h i n t h e Code. I t n ow appe ar s a t s ec t i on s 40- 1

3 0 -1 0 1 thr o u g h 4 0 -3 0 -1 2 2

.
-5- Un de r o ur statut ory la w, the pe tit ion e r be ars the bu rd e n of pr ov ing the a lle g a tio ns in h is p os tconviction petition by clea r and convincing evidenc e. See Tenn. Code Ann. § 40-30-210(f) ( 1997). 1 Evidence is clea

r and convincing when there is no serious or substantial doubt about the a ccur acy of the c onclusions drawn f rom the evide nce. H icks v. State, 983 S.W .2d 240, 245 (Tenn. Crim. App. 1998). On a

ppeal, the f

indings of fac t made by the pos t-conviction court are conclusive and will not be disturbed unless the e vidence contained in the r ecor d preponde rate s ag ainst t h em. Brooks v. State, 756 S.W .2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the pe titioner to show that the e vid e nc e pr e po nd e rate d a g a ins t th os e fi nd ing s. Cle nn y v. Sta te , 5 76 S.W. 2d12 , 1 4 ( Te nn . Crim. App. 1978). The cre dibilit y of t he witnesses and the weig ht and value to be af forde d their testimony

are questions to be resolved by the post-conviction court. Ba tes v. State, 973 S.W .2d 615 (Tenn. Crim. App. 1997).

Cla ims of ine ff e c tiv e a ssi sta nc e of

c ou ns e l are re g ard e d as m ixedqu e sti on s o f l a w a ndfa c t. State v. Honey cutt, 54 S.W .3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W .3d 453, 461 (Tenn. 1999). W h en re viewing the applica tion of law to the post-convic tion court' s fac tual finding s, our revie w is de novo, and the post-conviction court' s conclusions of law a re g iven no pre sumption of

corr ectne ss. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001); see also State v. Eng land, 19 S.W .3d 762, 766 (Tenn. 2000)

. A p e tit ion e r s e e kin g po st- c on vic tio n r e lie f o n th e ba sis of ine ff e c tiv e a ssi sta nc e of

c ou ns e l, must first esta b l i s h t h at t he ser vices re ndere d or the a dvice g iven was be low "the rang e of competenc e demanded of attorney s in criminal cases." Ba x ter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Second, he must show that the def iciencie s "a ctually

had an a dverse eff

ect on the de fense ." Strickland v. Washington, 466 U.S. 668, 693 (1984). Should the petit ioner fail to establish either fa c tor , h e is n ot e nti tle d to re lie f. Ou r s up re me c ou rt de sc ri be d th e sta nd ardof re vie w a s f

oll ow s:

Be cause a petitioner must establish both prong s of the test, a fa ilure to prove either de ficienc y

or pre judice provide s a suffic ient basis to deny relief on the ineffe ctive assistanc e cla im. I ndeed, a court ne ed not addr ess the components in any particula r orde r or e ven addr ess both if the petitioner make s an insufficie nt showing of on e c omp on e nt.

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

On claims of inef

fec tive assistance of counsel, the petit ioner is not entitled to the benef it of hindsight, may

not second-g uess a r easona bly based tria l strateg y , and ca nnot criticize a sound, but

unsucce ssful, tactica l decision made during the course of the proc eedings. Adkins v. S tate, 911 S.W. 2d33 4, 34 7 ( Te nn. Crim. Ap p. 19 94 ). Suc h d e fe re nc e to the ta c tic a l de c isi on s o f c ou ns e l, howeve r, applies only

if the choic es ar e made afte r ade q u at e p re p ar at ion for the c ase. Cooper v. State, 847 S.W .2d 521, 528 (Tenn. Crim. App. 1992)

.-6-

The a ccr edited testimony

is that trial counsel had diff iculty contac ting the pe titioner and that

as a r esult, he wa s unable to mee t with the petitioner as many times a s he would have pref err ed. He stated that he did not conduct an investig ation into the incriminating state ment beca use the pe titioner

assure d him that "what he told the police wa s tru e, acc urate , voluntary , and not the re sult of force

or coe rcion." The petitioner acknow ledg ed that befor e he provided a written statement, the police inform ed him that he was not under arr est and that he was fr ee to lea ve, fa cts that would have milit ated against suppre ssion of the statement. See Ca lifornia v. B ehele r, 463 U.S. 1121, 1125 (1983); Or eg on v. Mathiason, 429 U.S. 492 (1977); Miranda v. Arizona, 384 U.S. 436, 444, 478-79 (1966). He also conc eded that he was a war e of his right t o have a n attorney prese nt during the
qu e sti on ing a nd that the tr ia l cou rt wo uld app oin t an at torne y if he c ou ld not a ff or d one . The po stconviction court acc redite d t h e t est imony of trial counse l that he had a sked " all the appr opriate"
qu estion s r e g ard ing the pe tit ion e r' s st a te me nt. I n o ur vie w, the e vid e nc e do e s n ot p re po nd e rate

a g a ins t th e po st- c on vic tio n c ou rt ' s f ind ing that tria l c ou ns e l' s p e rf or ma nc e wa s n ot d e fi c ie nt.

With re g ardto the se nte nc ing he ari ng , tria l c ou ns e l st a ted th at he d id n ot r e qu e st a continuance of the sente ncing hearing so that the petit ioner could obtain a psy chosexual evalua tion beca use the pe titioner had informe d him, onlyday s b ef ore the hearing, that he did not have a nd

wo uldne ve r b e able to r a ise the $1 00 to p a y the e xami ne r. F urthe r, tr ia l c ou ns e l te sti fi e d th a t he did not object to the admission of the victim' s videotape d s t at em ent bec ause he believed it wa s admissible as reliable hear say , an assessment supported by the hol ding in Moss, 13 S.W .3d at 385, and the provisions of Tenne ssee Code A nnotated sec tion 40-35-209(b). T he post-convic tion court conclude d that the re sults of the ps y chosexual evalua tion, even if e ntirely favor able to the pe titioner, would not have chang ed the outcome of the s entenc e. Under these circumstance s, it is our view that the petitioner is not entitled to relief.

Although the petitioner sugg ests that trial counsel wa s ineffe ctive for failing to challeng e the constitutionalit y

of the ince st statute , h e h as not demonstrated that the sta tute is in fact

un c on sti tut ion a l. He has prese nte d n o auth or ity su g g e sti ng that a

c on sti tut ion a l c ha lle ng e wo uld ha ve be e n suc c e ssf

ul. F urthe r, thi s cou rt

ha s sp e c if

ic a lly he ld tha t th e inc e st s ta tut e do e s n ot v iol a te our state c onstitut ion. Smi th v. State, 6 S.W .3d 512, 520 (Tenn. Crim. App. 1999) . I n conseque nce, he is not entitled to relief on this g round.

Acc ording ly , the judg ment of the post-c onviction court is aff irmed.

___________________________________ GARY R. WADE, PRES I DING JUDGE