# FILED September 30, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JULY SESSION, 1998
LARRY T.CARTER, ) C.C.A. NO. 01C01-9710- CR-00488 ) Appe llant, ) ) ) DAVIDSON COUNTY VS. ) ) HON. ANN LACY JOHNS STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Co nviction Re lief)

FOR THE APPELLANT : FOR THE APPELLEE : LARRY T. CARTER JOHN KNOX WALKUP Pro Se Attorney Generaland Reporter TDOC #83297 Middle Tennessee Correct ional LISA A. NAY LOR Complex Assistant Attorney General 7177 CockrillBend-Industrial Road 425 Fifth Avenu e North Nashvill e, TN 37209-1005 Nashvill e, TN 37243-0493 VICTOR S . JOHN SON Distri ct Attorney General ROGER MOORE Assistant Distri ct Attorney Washington Square - Ste. 5 00 222-2 nd Ave nue N. Nashvill e, TN 37201-1649
OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE- 2
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## OPINION Appellant

Larry T. Carter appeals t he trialcourt's denial of his pet ition for post-convi ction relief. He pre sents the followi ng issues for our consider

ation on this appe al: (1) wheth er the trial co urt denie d Appe llant a full and fair evidentiary hearing by fail ing to ti mely fil e its order dismissinghis peti tion for post-convi ction relief; (2) whether there is a constitutiona l and statutory right to the effec tive assis tance of counsel i n post-convi ction proceedings; and (3) whether t he t ria l court erre d in dism issing Ap pellant's p etition for po st-convictio n relief. After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

I. FACTUAL

BACKGROUND Appellant

was c onvicte d by a ju ry in the Davidson County C riminal Court
on March 13, 199 1 of the follow ing offens es: four co unts of aggravated rape, one count of aggravated sexual battery, fo ur counts of rape, and one countof sexual battery. As a Range II multiple offender, Ap pellant received an effective sentence of one hund red ninety-e ight yea rs incarce ration wi th the Tennessee Department of Correcti on. This Court affirmed his conv icti on and sentence. State v. Larry

T. Carter , C.C.A. N o. 01C 01-911 0-CR -00308 , Davidso n Cou nty ( Tenn. Crim. App., Nashv ille, October 29, 1992) . The Tennessee Supreme Cou r t denied permission to appe al on Jan uary 25, 1 993. perm. to appeal denied , (Tenn. 19 93). On July 2 0, 1995, Appellant fi led his pro se petiti on for post-convicti on relief in the D avidso n Cou nty crim inal Co urt, alleg in g, inter alia , that hi s trial counsel ineff ect ively

rep res ent ed hi m. The trialcourt conducted a hearing on t he petiti on on April 17, 1996 . On May 12, 1997, the trial c ourt dis miss ed Ap pellan t's- 3
- petiti on for post-co nviction relief. On June 16, 19 97, Ap pellan t filed an untim ely notice of app eal. Specifically, Appellant al leges the following defici encies in hi s trial counsel's r

epresentati on: (1) fai lure to pr

esent an ali bi defense; (2) failure to call Reba C arter, Appella nt's wife and the mother of the two victims , to testify a s antic ipated in cou nsel's opening statement; and (3) failure to call Appellant to tes tify. As stated previously, Appellant also complains about hi s post-convi ction heari ng. It is these cla ims we will addres s first. II.POST-CONVICTI ON RELIEF In post-c onvic tion proceedi ngs, the Appell ant bears the burden of proving the allegations raise d in the petition by clear a nd con vincing evidence. Tenn. Code Ann. § 40-30 -210(f). See als o Scott v. S tate , 936 S.W.2d 271, 272 (Tenn. Crim. App. 1996). Moreo ver, the trial court's findings of fact are conclusive on appeal unless the evide nce pre ponde rates ag ainst the ju dgme nt. Tidw ell v . State , 9 22 S.W .2d 497 , 500 (T enn. 19 96); Cam pbell v. State , 904 S.W.2d 594, 595-96 (Tenn. 199 5); Coop er v. State , 849 S.W.2d 744, 746 (Tenn. 1993).

A. F ULL AND FA IR HEA RING Appe llant's first

contenti on is that

he was denied a ful l and fai r hearing on his post-convi ction pet ition be cause the tr ial court failedto issuean ord er within the time constr

aints set forth in Tenn. Code Ann. § 40- 30-211(d). We disagree. Tenn. Code Ann. § 40-30-211(d) provides: (d) The cou rt shall r ule withi n sixty (60) days of concl usion of the proof. Su ch dea dline sha ll not be exte nd ed by agreem ent, and s uch d eadlin e m ay be extended only by order1 The only th ing remotely resembling some sanctionfor a fai lure to co mply with Section 40-30- 211(d) is an annual report to the gener

al assembly by

the administ rative

office of

the courts as to the com plianc e by th e trial c ourts with th e pre scrib ed tim e lim its. Pr esu ma bly this is so th e gen eral a sse mb ly mig ht en act e ither e xpre ss s anc tions for th e trial c ourts or a re me dy for post -con viction litigant s sh ould widespread or routine failure to comply with Sec. 40-30-211(d) app ear. - 4
- of the court base d upon a findin g that unfore se eable circumstances render a con tinuance a m anifest necess ity. Such extension shall not exceed thi rty (30) days. Tenn. C ode Ann . § 40-30-211 (d). Appe llant's eviden tiary he aring w as he ld on A pril 17, 199 6. On May 12, 1997,
more than one year l ater, t he trialcourt enter ed an order dismissing Appe llant's petition for p ost-con viction relief. Nothing in the post-convict ion procedure act prescribes either a r

emedy or
a sanction for a trial c ourt’s failur e to comply wi th the ti me limits set out in Secti on 40-30-211 (d). 1 Althoug h we do not cond one a fa ilure to comply with the law as stated in Section40-30-112(d), we reject the notion t hat such an err or in this case deprived Appel lant of a full andfair hearing of his post-convi ction claims. A full and fair hearing of post-c on viction c laims is a hea ring wh erein th e petitio ner is given every opport unity to present ev i denc e and argum ent with respe ct to his claims. See, House v. State , 911 S.W.2d 705, 711 (Tenn. 1995). Appellant was afford ed such an opportuni ty in t his case. The fact that the final order was entered in an u ntime ly fashion does not detract f rom the fullpresentati on of Appe llant’s claim s to the co urts. The refore, this iss ue is witho ut merit.

B. CONSTITUTI ONAL RIGHT TO EFFECTI VE ASSISTA NCE OF COUNSEL

DURING P OST-CON VICTI ON PROCEEDI NGS Appellant

next ur ges th is Court to concl ude that theconstitution al right to effective assistance o f counsel sho uld be broad ened to ap ply in the co ntext of- 5
- post-convi ction proceedings. To bo lster this assertion , he allege s that the P ostConvicti on Proced ure Act o f 1995, T enn. Code Ann. § 4 0-30-20 1, et seq. , created a statutory right to the effec tive assi stance of

counsel in post-convi ction proceedings. We disagree. Both the Te nnes see S uprem e Cou rt and th is Cou rt have held th at there is
no constituti onal right to t he effective ass istan ce of p ost-co nviction coun sel. House v. State , 911 S.W .2d 705 , 712 (T enn. 19 95); State v. Philli ps , 904 S.W.2d 123, 124 (T enn. C rim. App . 1995). See als o Penn sylvania v. F inley , 481 U .S. 551, 554-55, 107 S.Ct. 1990, 19 93, 95 L.Ed .2d 539 (198 7) (holding that there exists no federal constitut ional right to t he effective assi stance of post-co nvicti on counsel). Furthe rmore , Tenn . Code Ann. § 4 0-30-20 1, et seq. , contai ns no statutory right

to the e ffective a ssista nce o f coun sel in the post-convicti on setti ng. This issu e is withou t merit.

III . EFFECTI VE ASSISTA NCE OF COUNSEL Appe llant's final claim on thi s appeal is t hat the trial court erred in denying his petition for post -con victi on relief based upon Appellant 's all egation that he receive d ineffe ctive as sistan ce of tria l and a ppella te cou nsel.

A. EFFECT IVE ASSI STANCE OF TRIA L COUNSEL The Sixth Ame ndmen t provides in part, "In all cri minal prosecuti ons, the accused shall enjoy the right. . . to have the assist ance of co unse l for his defen se." U.S. Const. amend. 6. Similarly, t he Tennessee Constitut ion guarantees an accused "the right to behear d by h imself an d his cou nsel. . . " Tenn. Const. a rt. I § 9. In Strickl and v. Washington , t he Un ited State s Sup reme Court articul ated a two-pr ong test for courts to employ in evaluati ng claims of- 6
- ineffective assistance of couns el. 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.2d 674 (1984). The Te nnessee Supreme Court adopted Strickl and 's two-p art test in Butler v. State , 789 S.W.2d 898, 899 (Tenn. 1990). The Strickl and Court began its analys is by no ting tha t "The benc hma rk for jud ging a ny claim o f ineffective ness must be whether counsel 's conduct so u ndermined the proper functioni ng of the adversarial proce ss that t he trialcannot be relied on as having produced a just resu lt." Strickl and , 104 S.Ct. at 2064. When a conv icted defendant challeng es the effective ass istance of counsel in a po st-convi ction proceeding, the Appellan t bear s the burden of establi shing (1) deficient represen tati on of counsel an d (2) prejudice res ulting from that deficien cy. Strickl and , 104 S.Ct. at 2064; Powe rs v. State , 942 S. W.2d 5 51, 558 (Ten n. C ri m. A pp. 19 96). Appell ant must prove t hat counsel' s representat ion fellbelow an objective standa rd of reas onable ness. Strickl and , 104 S .Ct. at 2 064. T his Court is n ot require d to cons ider the two prongs of Strickl and in any part icular or de r . Harris v. State , 947 S.W.2 d 156 , 16 3 (Te nn. Cri m. App. 1996). " Moreover, i f the Appel lantfails

to establ ish one prong, a reviewi ng court need not consider

th e other." Id. With reg ard to couns el's deficient perform ance, the proper m easure is that of r

easonableness under pr evaili ng pr ofession al norm s. Id. (citi ng Strickl and , 104 S .Ct. at 2 065). P ut differe ntly, cou nsel's perfor man ce is required to be "withi n the range o f comp etence dema nded o f attorneys in crimina l cases." Baxter v. Rose , 523 S.W .2d 930 , 936 (T enn. 19 75); Harris , 947 S.W.2d at 163. Respecting the prejud ice prong of Strickl and , t he Ap pel lan t mu st establi sh that "there is a reaso nable p robability that, but for counsel 's unprofes sional er rors, t he result of the procee ding wo uld have been d ifferent. A reaso nable proba bility is
a probability suff icient to undermineconfiden ce in the o utcom e." Strickl and , 104 S.Ct. at 2068.- 7
- The Strickl and Court emph a sized that "Ju dicial sc rutiny o f coun sel's performance must b e highly de ferential." Id. at 2065 . "A `fair asse ssme nt . . . requiresthat every e ffort be m ade to e liminate the distorting effects of h indsight, to recons truct the circ umsta nces o f counse l's challeng ed con duct, and to evaluate the co nduc t from c ouns el's pe rspec tive at the time.'" Goad v. State , 938 S.W.2d 363, 369 (Tenn. 1996)(quoting Strickl and , 104 S.Ct. at 2065). The m ere failure of a particular tactic or strategy d o es no t per se estab lish un reaso nable representat ion. Id. at 369. H owev er, this Court wil l defer to counsel's tacticaland strategi c choices onl y where those choi ces are informed ones predicated upon adequ ate prepara tion. Goad , 938 S.W.2d at 369; Hellard v. S tate , 629 S.W.2d 4, 9 (Tenn. 1 982). Regarding Appellant' s first alleged de fic iency, he s pecifi cally co mplains thattrial cou nsel p erform ed de ficiently a t trial by fail ing to p resent an al ibi def ense. At the heari ng on Appellant 's post-convicti on petiti on, tri al couns e l testified that he and Appellant had discussed th e trialstrategy of discrediting the two victims as well as oth er chara cter witnes ses. Th e attorne y testifi ed tha t Appellant

understood this strategy. In its ord er dism issing Appe llant's petiti on for post-convi ction relief , the trial court concluded that

because the vi ctims resi ded with Appellant and because the "criminal conduct was an ongoing part of [the victims] daily existence. . ., t he acts simply could not be t ied to cal endardates by the victims . There fore, a de fense o f alibi was no t available in th is case. We conclud e it was reaso nable not to p resen t a defe nse o f alibi, espe cially given that

the vict ims could not i dentify spec ific dates on which the
o ffens es occurred. The t rial cour t properl y concluded t hat the att orney had directedhis efforts in a more appropriate directi on by focusi ng on discredi ting the- 8
- testimony

of the vi ctims rath er than pursui ng a rather usele ss alibi d efens e. This allege d defic iency d oes n ot ma ke ou t a claim of ineffe ctivene ss of co unse l. We find no meri t in Appell ant's second al legation that his trialattorney rendered defici ent representation by failing to call Appellant’s wife, Re ba Carter,
as a witness al though he had mentionedher nam e during his open ing statem ent. Counsel con cede d th at h e hadment ion ed Re ba Ca rt er' s na me in his opening statem ent. However, af ter the fi rst day of the tria l, Reba Carte r purpo rtedly threatened one of her daughters (the all eged vict ims) during a tel ephone conversati on. As a result of some of thecomments made by Mrs. Carter to her daughter

during the t

elephone conversation, t rial counsel advi sed Appellant that it would be pro blem atic to u se Mr s. Car ter's testimony. Counsel furt her testified thatAppellant

wanted counsel to make the finaldecision as t o whether or not

to call Reba Carter. Fi nally, although counselgave no explanat ion to the jury as to the reason for not call ing Mrs. Carter as a wi tness, t he decision not to callReba Carter as a witness was a reasonable tacticalchoice under the circumstances. Moreover, during the jury sel ection process, the tri al court instructed t he jury t hat lawyers commonly added ordeleted peopl e from their list of potentialwitnesses
as the tri al evolved and that such alterati ons were not si gnificant. In l ight of t he foregoing, we c annot conc lude that the outco me of Ap pellant's trial would have been different ha d Reba C arter been ca lled to testify. Finally, Appellant erroneously ass erts that trialcounsel was in effective in faili ng to present Appel lant's testimony. At the post-c onvicti on hearing, t rial counsel expla in ed that he though t that it would b e detrim ental to A ppellant to testify becau se this wo uld "ope n the do or" to cross -exam inati on co ncerning Appe llant's prior conv ictionfor chil d sexual abuse. See, Tenn. R. Evid. 609. Trial
counse l su ccessfully prevented the jury f rom becoming aware of t his prior- 9
- convicti on, and given the n ature of the charg es we conclude thi s was a prudent strategic d ecision. T his issue is without m erit.

B. EFFECTI VE ASSISTA NCE OF APPELLATE COUNSEL Appellant

next urges t his Court to conclude that the tri al court e rrone ously determined that he received ef fectiv e assistance of

counsel on appeal. How ever, Appellant

does not specifically enumerate the defici encies of which he c omplains. The same two-prong sta ndard that i s used in c onside ring clai ms of ineffective assistance of trialcounsel is also employ ed to evaluate allegat ions of ineffective a ssis tance o f appellate couns el. See, e.g ., Porterfield v. S tate , 897 S.W.2d 672, 67 7-78 (T enn. 19 95). Typicall y, the deci sion aboutwhich iss ues to raise on appeal is one that is left to the profess ion al j udgme nt and sound discreti on of appellate couns el. Porte rfield , 897 S.W.2d at 678; Coop er v. State , 849 S.W.2d at 747. Appr oxima tely one month after Appel lant's trial , tri al counsel fi led a motion t o wi thdraw. However , accordi ng to counsel’ s testi mony at the post- convicti on hearing, he withdrew t he motion because Appell ant wanted counsel to cont inue to represent hi m on appeal . Coun sel’ s time sheet r eflects that he spent

over 51.3 out-of- court hours pr eparing Appell ant 's cas e for appeal. Trial couns el raised ten issues on appea l to this Cou rt. Carter , C.C.A . No. 01C01- 9110- CR00308, slip op. at 1-2. The t rial at torney testifi ed that after this Court issued its decision in Appella nt's case, counsel again filed amotion to wi thdraw. Giv en the state of this

record we can di scern no ins uffici ency in counsel’s performance during the di rect appeal of this case.- 10- Accordingly , the judg ment of the t rial cour t is af firmed.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ PAUL G. SUMMERS, JUDGE

___________________________________ DAVID G. HAY ES, J UDGE