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

Briefs A ugust 14, 2002 JOHNNY McCLAIN

v. STATE OF TEN NESSEE Appeal from the Criminal Court for Davidson County No. 95-B-851 J. Randall Wyatt, Jr., Judge

No. M2001-02713-CCA-R3-PC -Filed September 5, 2002

The Ap pe ll an t, Jo hn ny McC lain, app eals as o f right from the j udgmen

t of the Da

vidson Coun

ty Criminal Court denying his petition for post-c onviction relief. On appeal, the Appellant argues that he received ineffective assistance of counsel. After review of the rec ord, we find that the Appellant’s brief fails to pr ovide an y arg

ument in support of the issue as presented. Due to the Appellant’s procedural default, the appeal is dismissed. Tenn. R. App.P. 3; Ap peal Dism issed.
D AV ID G. H AYES , J., delivered the opinion of the court, in which J OE G. R ILEY and N ORMA M C G EE O GLE , JJ., joined. Daniel L. McMurtry , Nashville, Tennessee, for the Appellant, Johnny McClain. Paul G. Summers , Attorne y General a nd Report

e r; M ich ael Moo re, So li cit or G ene ral ; J enn ife r L. Bledsoe, Assistant Attorney Ge ne ra l; Vi ct or S. (T or ry) Johnson III , District Attorney Gene ral; and Dan Hamm, Assistant District Attorney G eneral, for the Appellee, State of Tenne ssee.

OPINION Factua l Background

On October 19, 1995, the Appellan t was con victed by a Davids on County

jury of espec ially aggravated

robbery, a

ggravated r

ob be ry, facilitation of attempted first -degr ee murde r, and tw o counts of aggravated assa

ult. The trial court imposed an effec tive seven ty-five-y ear sentence. The Appellant’s convictions and sentences were affirmed on direct appeal. See State v. Johnny E. McClain, Jr. , No. 01C01-9607-CR-00301 (Tenn. Crim. App. at Nashville, Dec. 1, 1997), perm. to appeal denied , (Tenn. 1998).-2-

On November 17, 1999, the Appellant filed a petition for post-conviction relief, alleging that he received ineffective

assistanc e of coun sel. An evidentiary he aring was held on October 10, 2001. On October 16, 2001, the post-conviction court denied the Appellant post-co nvi ction relief. Thi s timely appeal followed. ANALYSIS
To succee d in a cha

llenge for inef fective ass istanc e of coun sel, the A ppellant must demonstr ate that counsel's representation fell below the range of co mp et en ce de ma nd ed of at to rn eys in criminal cases. Baxter v . Rose , 523 S.W .2d 930, 936 ( Tenn. 1975). Under Strickland v. Wash i ngton , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984), the Appellant must establish: (1) deficient representation, and (2) prejudice result ing from the deficiency . The issues of deficient performance

by counsel and possible pre judice to the defense are mixed questionsof law and fact; thus, our revi ew of thiscase is de novo

. Fields v. Sta te , 4 0 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13 (d)); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); see also Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997).
In this appeal, the Appellant contends that trial counsel wa s in effective in the following respec ts: (1) tria l counsel failed to properl y r eview the petitione r’s rec ord; (2) tria l counsel failed to prepar e the pet itioner f or sente ncing hearing ; (3) tria l counsel failed to request a preliminary

hearing ; (4) tria l counsel failed to prepar e for tri al with the

petitione r; (5) trial counsel failed to call alibi witnesses; and (6) trial counsel failed to allow the petitioner a decision making process in his own trial. Despite his assertions of ineffectiveness, the Appellant's brief contains no authority or arg ument in support of these factual allegations. The Appe llant's entire argument , as set forth in h is brief, is recited as follow s: The standard of review for ineffective assistance of counse l is that coun sel so prejudiced

the defendant that there

is a reasonable probability that the jury’s ver

dict would have been

different, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2063 (1984).
In this case, the State had a stronger position due to the failures of trial counsel listed so above. Taking the fact that the failures of the trial counsel put the sta

te is a stronger position and does lead one to conclu de that the jury’s ver dict would have been different under the Stricklandtest.-3- The Trial Cour

t erred in denying

defendant’s petition for post conviction, as the as the fa

ilures of trial cou nsel put the sta

te in a st

ronge r position, thus a reasona ble proba bility that the ju

ry ’s verdi ct would h ave bee n differ ent exists. Rule 27 of

the Tennessee Rules of App ellate Pr ocedure providesin relev ant part

that: The brief of the appellant shall contain . . . [a]n ar gument, which may be preceded by a summary of

argument, setting forth the contentions of the appellant with respect to the issues pr esen ted, and the reasons therefor, including the reasons why the contentions require

appella te relief, with

citations to the authorities and appropr iate references to the recor

d (which may be

quoted verbatim) relied on.
Tenn. R. App. P. 27(a)(7); see also H arvey v . State , 749 S.W.2d 478, 479 (Tenn. Crim. App. 1987), p erm. to appea l denied , (Tenn. 1988). " Issue s which a re not sup

ported by argume nt, citati on to authoriti es, or appropriate referenc es to the record will betreated as waive d in this court." Te nn. Ct. Crim. App. R. 10(b). In the present case, the Appellant does not provide this court with any explanatio n a s to how his alleged claims of ineffective assistance of counsel (1) were in fact deficie nt; and (2) how, but for these deficiencies, there was a reasonable probability

that the ju ry's verdict would hav e been d

iffere nt. In sum, the Ap

pellant h as faile d to comply with Rule 27(a)(7), Tennessee Rules of Appellate Procedure, which requiresthat he "[set] forth the contentions . . . with respect to the issues presented, and the reasons therefor . . . " as to why appellate r elief is required. Ac co rd in gl y, we are

unable to

review o n the mer

its and find the Appellant's claim of ineffective assistance of counsel is procedurally defaulted. The appeal is dismissed.

CONCLUSION Based upon the foregoing, we find that the ineffective assistance of counsel issue ra ised by the Appellant is procedu rally de faulted in accordance with Rule 27(a)(7), Tennessee Rules of Appellat e Procedur e, and Rule 10(b ), Tenne ssee Rule s of the Cou rt of Criminal Appe als. Accordingly , the appeal is dismissed.

___________________________________ DAVID G. HAYES, JUDGE