         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE              FILED
                         APRIL SESSION, 1998            June 9, 1998

                                                    Cecil W. Crowson
                                                   Appellate Court Clerk
WAD E JAM ES O DUM ,           )     C.C.A. NO. 01C01-9707-CC-00282
                               )
           Appe llant,         )
                               )     LINCOLN COUNTY
V.                             )
                               )
                               )     HON. CHARLES LEE, JUDGE
STATE OF TENNESSEE,            )
                               )
           Appellee.           )     (POST -CON VICTIO N)



FOR THE APPELLANT:                   FOR THE APPELLEE:

N. AND Y MY RICK , JR.               JOHN KNOX WALKUP
116 West Market Street               Attorney General & Reporter
Fayetteville, TN 37334
                                     TIMO THY F . BEHAN
                                     Assistant Attorney General
                                     2nd Floor, Cordell Hull Building
                                     425 Fifth Avenue North
                                     Nashville, TN 37243

                                     WILLIAM MICHAEL McCOWN
                                     District Attorney General

                                     WEAKLEY E. BARNARD
                                     Assistant District Attorney General
                                     P.O. Box 904
                                     Fayetteville, TN 37334




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                   OPINION
       The Petitioner, W ade J ame s Odu m, ap peals from th e orde r deny ing his

petition for post-conviction relief.     Petitioner was convicted of theft and was

sentenced as a career offender to serve fifteen (15) years in the Tennessee

Department of Correction.       After the conviction was affirmed on direct appeal,

Petitioner timely filed his petition for post-con viction relief. Following an evide ntiary

hearing, the trial court dismissed the petition. Petitioner argues the trial court erred

in denying him relief based upon the Sixth Amendment right to the effective

assistan ce of cou nsel. W e affirm the judgm ent of the tria l court.



       “In post-conviction relief proceedings the petitioner has the burden of proving

the allegation s in his petition by a prep ondera nce of the evidenc e. McBe e v. State,

655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, the factual findings of

the trial cou rt in hea rings “a re con clusive on appeal unless the evidence

preponderates against the judg ment.” State v. Buford , 666 S.W.2d 473, 475 (Tenn.

Crim. A pp. 198 3).



       In determining whether counsel provided effective assistance at trial, the court

must decide whether counsel’s performance was within the range of competence

demanded of attorney s in crimin al cases . Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975). T o succe ed on a claim tha t his coun sel was in effective at trial, a

petitioner bears the bu rden o f show ing tha t his counsel made errors so serious that

he was not functioning as counsel as guaranteed under the Sixth Amendment and

that the deficient representation prejudiced the petitioner resulting in a failure to

produce a reliable re sult. Strickland v. Washington, 466 U.S . 668, 687 , reh’g denied,

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467 U .S. 1267 (1984); Cooper v. State, 849 S.W .2d 744 , 747 (T enn. 19 93); Butler

v. State, 789 S.W .2d 898, 899 (Tenn. 1990). To satisfy the second prong the

petitioner must show a reasonable probability that, but for cou nsel’s unrea sona ble

error, the fact find er would have ha d reaso nable d oubt reg arding p etitioner’s gu ilt.

Strickland, 466 U .S. at 69 5. This reaso nable proba bility mu st be “s ufficient to

undermine confidence in the outcome .” Harris v. S tate, 875 S.W.2d 662, 665 (Tenn.

1994).



         As Petition er is inc arcera ted in th e Libe rty Cor rectional Institu tion in B ristol,

Florida, he was deposed by telephone on the subject o f his petition fo r post-

conviction relief. During the depo sition, P etitione r stated that all th e grou nds o f his

petition arose out of the ineffe ctiveness of trial couns el. First, Petitioner claimed that

his trial counsel failed to attempt to suppress statements given to three (3) different

police officers. Petitioner had confessed to several burglaries committed in Florida,

but did no t confess to any crim e occu rring in Te nness ee.



         Next, Petitioner stated that trial co unsel failed to prese nt alibi witnes ses. In

the original indic tment, Petitioner was charged w ith theft which occurre d on Janu ary

1, 1993. In addition to the fact that Petitioner was incarcerated on that date, the car

deale rship from w hich th e car w as sto len wa s close d that d ay. At tria l, the indictment

was amended to reflect the date of the offense as February 1, 1993. Petitioner also

had an alibi for February 1, 1993, claiming he spent the night of January 31, 1993,

in a motel on Highway 231, north of Dothan, Alabama. Petitioner arose around 8:00

or 8:30 a.m. on February 1, 1993, returned an alarm clock to the front desk and

checked out of the motel. Petitioner could not recall the name of the motel, nor

could he recall the person’s name who worked at the front de sk of th e mo tel.

                                                -3-
Petitioner claimed that he provid ed this info rmation to trial couns el who faile d to

investigate his alibi.



       Petitioner also alleged that trial counsel failed to properly investigate a

photo graph ic lineup in which he was identified as the perp etrator of the theft.

Petitioner did not know if the lineup was overly suggestive. Then, Petitioner stated

that trial couns el refused to allow him to testify in his own defense because he did

not want the jury to hear the Petitioner’s past criminal record. Petitioner recalled that

he repe atedly req uested to testify, both p rior to and d uring the trial.



       Petitioner further claimed that trial counsel admitted Petitioner’s guilt to the

jury during the trial. During his trial counsel’s cross-examination of Officer Hopson,

trial counsel asked Hopson, “Isn’t it true what the defendant told you was he came

up there and took the car and never brought it back.”          Petitioner stated that trial

couns el never c orrected this statem ent, but left it as it was adm itting his guilt.



       Another area of ineffectiveness Petitioner claim ed wa s trial co unse l’s failure

to provide him with civilian clothing during the trial. Petitioner had requested that trial

counsel obtain civilian clothing prior to trial, and trial counsel informed him that Chief

Cam pbell at the prison w ould sup ply civilian cloth es to we ar during the trial.



       Petitioner alleged that trial counsel failed to pursue a plea bargain on these

offenses. While Petitioner recalled that a plea ag reeme nt was o ffered to him with

the term of ten (10) years of incarceration, he was advised by Tom Bean, an

investigator for the Pu blic Defe nder’s offic e, that, “ma ybe we c an do b etter.”

Therefore, the plea agreement was not accepted, but Petitioner asked trial counsel

                                            -4-
to continue to pursue a plea ag reeme nt. Petitioner recalled that he was assured a

plea ag reeme nt would be reac hed prio r to trial.



       Finally, Petitioner felt that mitigating factors were p resen t in his case that we re

not introduced during sentencing. He stated that no bodily injury was done to

anyone and that he attempted to assist the authorities involving certain offens es in

the State of Tennessee.



       Trial counsel for the Petitioner testified at the hearing on the petition for post-

conviction relief. Trial counsel stated that as part of his duties as an assista nt pub lic

defender, he represented Petitioner through trial and shortly after trial. He did not

represent Petitioner at his sentencing hearing or motion for a new trial. Counsel

recalled that prior to trial, h e inves tigated this case a nd filed various disco very

motions.    Counsel met with Petitioner on twelve (12) to fiftee n (15) se parate

occasions. The total amount of time counsel spent with Petitioner prior to trial was

betwee n twenty-e ight (28) to th irty (30) hou rs.



       With regard to the mo tion to supp ress, c ouns el state d that h e did n ot file this

motion because there wa s a waive r of rights signed by the Petitioner. As Petitioner

has many prior criminal offenses on his record, he admitted that he knew his rights,

that he did no t have to m ake an y statem ents, and that those statements he made

could be used against him. When counsel discussed this matter with Petitioner,

Petitioner admitted that he was only making these admissions to try to get a good

deal and minimize his total exposure to incarceration. Counsel believed there was

no way to mount a successful suppression of those statements in good faith.




                                             -5-
       Trial coun sel disc usse d a po ssible alibi defense with the Petitioner for

February 1, 1993. Counsel noticed the defective date in the indictment which stated

that Petitioner committed the theft on Ja nuary 1, 1 993. Petitioner did have an alibi

for the incorre ct date as he was incarcerated on that date and the car dealership was

closed on New Year’s D ay.          As the error was not in any way caused by the

defense, trial cou nsel d id not believe he had a duty to corre ct pote ntially rev ersible

error. Trial counse l did not attempt the cure the de fective in dictm ent as in his opinion

that would amount to ineffective assistance of counsel.            Upon reading of the

indictment at trial, the Sta te move d to am end the indictme nt to reflect the accura te

date of the theft as February 1, 1993. Counsel noted this as possible assignment

of error for appellate reasons, but he did not want to object at that time by arguing

that the defense was caught by surprise by a substantial change of the indictm ent.

Because counsel could not in good faith make those arguments and there was

poss ible reve rsible error o n app eal, co unse l did not oppose the amendment of the

indictme nt by the S tate.



       Petitioner told counsel that he spent the night at a motel near Dothan,

Alabama on January 31, 1993. Counsel stated that he had been in that area many

times and could not recall a motel located on Highway 231 as Petitioner described,

but he asked his brother who lived in that area to investigate. Counsel’s brother

could not find an y motel n ear the loc ation that P etitioner de scribed. Petitioner was

unab le to provide the name of the motel, the name of the motel clerk who assisted

him, or the name that he us ed to che ck-in to the motel. Counsel described that even

if Petitioner had been at a motel on the evening of January 31, 1993, he co uld have

driven the next morning to the site of the theft and could have been present at the

location of the theft by that afternoon when the theft occurred.

                                            -6-
       When questioned regarding possible plea bargains, counsel stated that the

only indication he receive d from the Dis trict Atto rney’s o ffice wa s that th ere wo uld

not be any deals. The only deal ever offered was that Petitioner could plead as a

career offender or plead to the indictment and receive a sentencing hearing. Prior

to trial, there was some discussion about a possible ten (10) year sentence, but the

main issue was wheth er or no t that se ntenc e wou ld run c oncu rrent w ith his

sentences in Florida and Georgia. No agreem ent was reache d to run the sentences

concurren tly, and Pe titioner refus ed the p ossibility of co nsecu tive senten ces de spite

couns el’s advice conce rning his s entenc ing status as a care er offend er.



       Trial coun sel exp lained that the photo graph ic lineup during which the

Petitioner was identified as the perpetrator of the theft was in no way suggestive.

He and Investigator Bean saw that of the six (6) photog raphs in the lineup , all were

white males who were “ heavy set.” Als o, all of th e six (6) pictured were in the same

age group as that of the Petitioner. While counsel could not recall if Petitioner was

given the opportunity to view the photographs, he did discuss the lineup with the

Petitioner.



       Trial counsel advised Petitioner prior to trial that if he was to testify, then the

State would have th e right to impe ach h im based upon his criminal record. Counsel

also told Petitioner that since there was a videotape which showed Petitioner

operating the stolen vehicle in Florida, then his testimony would not cast doubt upon

that video. While counsel did not advocate Petitioner testifying, he told Petition er it

was his own c hoice. At the end of the State’s proof, trial counsel asked the trial

court to address the Pe titioner in open court concerning his right to testify. Petitioner




                                             -7-
stated that he understood his rights and that it was his free and voluntary choice not

to testify.



       Counsel recalled th at upon cross-e xamina tion of Office r Hops on, he asked

if Petitioner ever told him he came to Faye tteville to steal a car. When Officer

Hopson stated tha t Petitioner d id not outrig ht mak e that state ment, counsel followed

up with this question:

       Isn’t it true that he told you he ca me u p there ; the sa lesm an as ked h im
       if he wanted to try the car; they gave h im the keys; and h e took the keys
       and took the car and never brought it back?

Hopson responded that this statement was correct. By eliciting this information,

counsel hoped to provide the necess ary proof in the record to justify a jury instruction

on the lesse r included offense o f joyriding.        Tenn. Code Ann. § 39-14-106.

Cou nsel’s purpose w as to hopefu lly convince the jury to return a verdict of gu ilt to

a lesser o ffense tha n theft.



       Regarding the Petitioner’s prison uniform, counsel stated that Petitioner wore

a Florida correctional uniform, a light blue cotton shirt and pants. The re were wh ite

tags across the right rear pants pocket and his left shirt pocket which were

somewhat faded. Several days prior to trial, counsel discussed with Petitioner the

need to wear civilian clothing at trial. Petitioner ass ured coun sel that he wou ld have

civilian clothing, which would be provided by his sister. When counsel checke d with

the jail on the evenin g prior to trial, he was assured that Petitioner had civilian

clothing. On the morning of trial, counsel walked into the courtroom and found

Petitioner wearing his prison uniform. When he questioned the Petitioner, Petitioner

responded that the civilian clothes did no t fit him. As thirty-five (35) to forty (40)

potential jurors were alrea dy sea ted in th e cou rtroom , coun sel did not wa nt to ca ll

                                            -8-
attention to the fact that Petitioner was wearing a prison uniform. While the trial

court later noticed the un iform and offere d to remed y the situation by putting tape

over the nu mbe rs, cou nsel b elieved that w ould o nly call m ore atte ntion to Petition er’s

clothing. In fact, Petitioner was wearing eyeglasses and had a large eyeglass case

which, for a ll practical pu rposes , covered the white ta g on his fro nt shirt poc ket.



       Counsel discussed with Petitioner the fact that, as a career offender, no

mitigating factors apply as the mandatory sentence for a career offender is the

maximum sentence within the applicable Range III. Tenn. Code Ann. § 40-35-

108(c).   Basically, the sentencing hearing was only to determine whether the

defendant had a sufficient number of convictions to constitute his status as a career

offender. Petitioner admitted that these prior felony convictions listed on the State’s

enhancement notice were h is during a meeting with trial counsel and did not contest

his status as a career offender.         In any event, trial counsel did not represent

Petitioner at the sentencing hearing.




       At the conclusion of the post-conviction hearing, the trial court found that trial

counsel condu cted a m ore than adequ ate investig ation into th e allegations and

discussed all possible defenses with Petitioner. Furthermore, the trial court found

that any discussions Petitioner had with counsel regarding his confessions to the

police led co unse l to dete rmine that the re was not a va lid basis for a motion to

suppre ss.




                                              -9-
         W hile not spec ifically stated w ithin its findings of fact, it is clear th at the tria l

court accredited the testimony of trial counsel over that of the Petitioner as regarding

his wearing a prison u niform a t trial. The trial co urt found that in all instances that

Petitione r’s recolle ction differed from the recollection of trial counsel, it accredited the

testimony of trial counsel. As the e vidence doe s not prepon derate otherw ise, we

agree and find that the Petitioner’s appearance at trial in a priso n uniform is due to

his own ineffectiveness, and not that of trial counsel. Counsel made several

attemp ts to sec ure civilia n cloth ing for P etitione r, and P etitione r insisted that he

could locate his own clothing.



         Any complaints Petitioner has regarding counsel’s tactical decisions and

strategies emplo yed durin g the trial are without m erit. When review ing trial c ouns el’s

actions, this court should not use the benefit of hindsight to second-guess trial

strategy and criticize counsel’s tactics. Hellard v. S tate, 629 S.W.2d 4, 9 (Tenn.

1982). Coun sel’s allege d errors s hould b e judge d at the tim e they were m ade in

light of all facts and circumstan ces. Strickland, 466 U.S . at 690; see Cooper, 849

S.W.2d at 746 . Wh ile this ta ctic did not ultim ately succeed in Petitioner’s favor, trial

coun sel’s strategy was not so unreasonable under these facts and circumstances.



         The trial court noted, and we agree, that the record is clear that counsel

advised Petitioner not to testify, but that Petitioner made his own decision after

having his rights explained to him by the trial cou rt. Petitio ner ad mitted in his

testimony that he was counseled not to testify, but that he made his own decision.



         Petition er’s complaints regarding the sentencing hearing are also without

merit.     As Petitioner freely admits to comm itting the offenses listed in the

                                                -10-
enhancement notice, an y argum ent aga inst his being sentenced as a career

offender is moot. The trial court found him to be a career offender under the

statutory law , and ther e is no pro of in the rec ord that h e was n ot.


       As the trial court noted within its findings of fact, “[H]e [Petitioner], has been

unab le to dem onstra te to the Cour t how e ven if those things should have been done,

it would have had a different result on the co urt or on the trial of the case .” Petitioner

has also fa iled to m eet his burde n of pro of to this court. Upon re view of the record

and the briefs in this m atter, we a ffirm the jud gmen t of the trial cou rt.



                                   ____________________________________
                                   THOMAS T. W OODALL, Judge


CONCUR:



___________________________________
GARY R. WA DE, Presiding Judge


___________________________________
L. T. LAFFERTY, Special Judge




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