           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                            Assigned on Briefs September 28, 2010

             JERRY WAYNE LANKFORD v. STATE OF TENNESSEE

                      Appeal from the Circuit Court for McMinn County
                              No. 09-129   Carroll Ross, Judge


                     No. E2010-00510-CCA-R3-PC - Filed March 28, 2011


The petitioner, Jerry Wayne Lankford, appeals the denial of his petition for post-conviction
relief. He was convicted by a McMinn County jury of aggravated burglary, a Class C felony,
and theft of property over $1,000, a Class D felony.1 State v. Lankford, 298 S.W.3d 176, 178
(Tenn. Crim. App. 2008). The petitioner was sentenced as a Range III, persistent offender
to twelve years for aggravated burglary and ten years for theft of property, to be served
consecutively, for an effective sentence of twenty-two years in the Tennessee Department
of Correction. Id. On appeal, the petitioner claims he received ineffective assistance of
counsel. Upon review, we affirm the judgment of the post-conviction court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and N ORMA M CG EE O GLE, JJ., joined.

Charles W. Pope, Jr., Athens, Tennessee, for the Defendant-Appellant, Jerry Wayne
Lankford.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant
Attorney General; Robert Steve Bebb, District Attorney General; and Andre Freiberg,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                               OPINION

        The facts of the underlying convictions, as outlined by this court in the petitioner’s
direct appeal, are described below:



       1
           The record does not include a copy of the judgment forms.
       At trial, Sandy Rawlins testified that she lived at 363 County Road 189,
Decatur, Tennessee. Her home was burglarized while she was on vacation in
March of 2005. She returned home to find “[m]ud tracked through the house,
a window broken, [and] the bedspread taken off [her] bed.” She stated her
jewelry box and five to six guns were missing from her home. The jury was
shown photographs of Rawlins’ home which were taken shortly after the
burglary occurred. Rawlins spoke with Detective Gary Miller of the McMinn
County Sheriff’s Department and later made an inventory of all the items that
were missing from her home. She was shown jewelry items at trial which she
confirmed were taken from her home on the day of the burglary. Significantly,
she identified two “old high school I.D. bracelets” with her name inscribed on
them. Finally, although most of the stolen property was covered by her
insurance, Rawlins estimated its value to be between five and six thousand
dollars.

        Frank Fairweather, Lankford’s previous employer and acquaintance of
thirty years, also testified. Fairweather stated that Lankford came to his home
between 11:30 a.m. and 12:30 p.m. on March 29, 2005, because “[Lankford]
had a bunch of guns and jewelry [Lankford] wanted to sell.” Fairweather
initially refused to deal with Lankford. Within a week of this meeting,
Fairweather called and spoke with Det. Miller to see if anything Lankford had
shown him had been reported stolen. At that time, Det. Miller had no such
reports of stolen property. Consequently, the next day, Fairweather contacted
Lankford and bought a jewelry box and four guns for $125.

       Fairweather identified a photograph of the jewelry box and jewelry he
purchased from Lankford at trial. It was the same jewelry and jewelry box
previously identified by Rawlins as having been stolen from her home in the
burglary. Regarding the jewelry inside the box, Fairweather stated:

       Well, I tell you the truth, I never really went through it. I started
       going through it one day, and I saw a little girl’s name on some
       [sic], a bracelet and a ring and that, and I told my wife, I said,
       “Put that up. That belongs to some little kid and some day we’ll
       find out who’s got it, or who’s missed it.”

Fairweather recalled the name on the bracelet was “Sandy.”

      Some six or seven months after purchasing the jewelry and guns from
Lankford, Fairweather was at the Sheriff’s Department for reasons unrelated

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to the instant case. Detective Miller asked if Fairweather knew about any
jewelry. Fairweather reminded Det. Miller about their previous conversation
and explained that the jewelry was still in the same place at his home. In
response, Det. Miller went to Fairweather’s home, photographed the jewelry,
and took the entire jewelry box into custody.

       On cross-examination, Fairweather was questioned about a statement
he had given to Det. Miller:

       Defense Counsel: Okay. And you said that [Lankford] told you
       when you asked him straight up, “Are these items stolen?” and
       he told you, “No, they’re not stolen.”

       Fairweather: Right.

       Defense Counsel: “I either got them out of Monroe County or I
       got them from somebody from Monroe County.” Is that what
       [Lankford] said to you?

       Fairweather: That’s what he told me.

       Nikki Markwell, Lankford’s niece, also testified. Markwell went to
school with the victim’s daughter and was her best friend. Markwell stated
that she and Lankford were living at her mother’s home, about a mile away
from the victim’s home, when the burglary occurred. Markwell testified that
“[Lankford] told [her] that he broke into [the victim’s] house and there was
nothing [Markwell] could do about it; if [Markwell] said anything, that
[Lankford] would put it off on [her].” Lankford also told Markwell that he
took the stolen property to Fairweather. Although Markwell gave her
statement regarding the burglary eight months after the offense, she contacted
the Sheriff’s Department the day after Lankford admitted the crime to her.

        Kristy Baucom, Markwell’s sister and Lankford’s other niece, also
testified. She did not live with her sister and Lankford at the time of the
offense. However, she recalled an argument between Lankford and Markwell
in which Markwell threatened to turn Lankford in for the “robbery.” In
response, Baucom testified that Lankford said, “[I]f [Markwell] turned him in,
that [Markwell] was gonna go down for it too, said because that [sic]
[Markwell] had helped plan it, and that [Markwell] had got [sic] half the
money out of it.” Although Lankford had never been to the victim’s home, he

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       told Baucom the victim lived “down a long gravel road, [in] a trailer up on top
       of the hill.” Lankford also told Baucom that Markwell told him how to break
       into the house. Baucom did not tell authorities about this conversation until
       eight months after the offense occurred.

                Detective Gary Miller, a thirteen-year veteran with the McMinn County
       Sheriff’s Department, investigated the burglary and theft of the victim’s home.
       He stated he was called to the victim’s home on March 29, 2005, by the
       homeowner’s house sitter. A window was broken out on the front part of the
       victim’s home. Detective Miller was able to reach the homeowner/victim by
       cellular phone and took an initial report which was officially filed eight to ten
       days later. While inside the home, Det. Miller observed a lot of glass pieces
       lying on the bed and in the floor. In checking for fingerprints, Det. Miller
       noted there were little dots in all of the prints, which indicated the perpetrator
       wore gloves. He also noted a shoe print on the bed but could not identify the
       size or type of shoe because the tread had been altered. There were also skid
       marks and dirt throughout the rest of the home. Because there was only one
       set of tracks going in and throughout the home, Det. Miller concluded that only
       one person entered the home.

               On cross-examination, Det. Miller admitted the investigation was
       “cold” for more than a year after the offense. He testified the first “break” in
       the case was when the victim called and stated Markwell told her that
       Lankford burglarized her home. Detective Miller then took the statements of
       Markwell, Baucom, and Fairweather. He also confirmed that: (1) Fairweather
       called him before any report had been filed about the stolen jewelry and guns;
       (2) the jewelry was located and recovered from Fairweather’s home; and (3)
       the victim identified the jewelry and confirmed it was hers. Finally, Det.
       Miller stated that the burglary and theft of the victim’s home occurred in
       McMinn County.

              Lankford did not present any proof at trial.

Lankford, 298 S.W.3d at 178-80.

       The jury convicted the petitioner of aggravated burglary and theft of property over
$1,000. Id. at 178. He was sentenced to consecutive terms of twelve years for aggravated
burglary and ten years for theft of property. Id. On appeal, the petitioner challenged the
sufficiency of the evidence and the admissibility of a prior felony conviction. Id. This court



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determined that neither claim had merit. Id. at 184. It affirmed the judgments of the trial
court. Id.

       The petitioner subsequently filed a pro se petition for post-conviction relief. He was
appointed counsel, and an amended petition was filed. The amended petition alleged that the
petitioner received ineffective assistance of counsel at trial and at sentencing. Its primary
claim was that defense counsel failed to contact potential character witnesses. The amended
petition also argued that the petitioner’s mental health should have been raised as a defense.
Lastly, it claimed defense counsel should have argued at sentencing that the offenses did not
cause or threaten serious bodily injury.

        Post-Conviction Hearing. The petitioner testified that defense counsel visited him
in jail before trial. He told defense counsel about “a guy” who could testify on his behalf.
The petitioner said he did not know how to contact this potential witness. At the hearing, the
petitioner did not state the potential witness’s name, and he failed to set forth the substance
of his testimony. He claimed he gave defense counsel the names of two other witnesses:
“Tammy Buckner and her friend over there on County Road 188.” The petitioner said he told
defense counsel where these witnesses were, but defense counsel never obtained a subpoena.

        The petitioner said he chose not to testify at trial upon the advice of defense counsel.
He was told that the prosecution could use his prior convictions for impeachment purposes.
The petitioner claimed defense counsel failed to adequately investigate his case. He again
asserted that defense counsel should have contacted several witnesses, including Buckner.
The petitioner stated, “I’d worked for [Buckner] and I’d been all through her house and I
ain’t never touched nothing in her house, the whole time I was out there.” He acknowledged
that Buckner did not know anything about the offenses. The petitioner said he provided a
witness list to defense counsel; however, none of these witnesses were contacted. He
believed his mental state should have been an issue at trial. The petitioner claimed his sister,
Betty Patterson, could have testified about his mental health. He testified that he met with
defense counsel twice before trial, once at the jail and once at the courthouse. The petitioner
had difficulty contacting defense counsel while in jail. He wished that defense counsel had
impeached his two nieces, Nikki Markwell and Kristy Baucom, who testified for the
prosecution. The petitioner said both witnesses presented false testimony.

        On cross-examination, the State questioned the petitioner about his prior convictions.
The petitioner again discussed defense counsel’s failure to contact potential witnesses. He
testified that defense counsel should have contacted a man in Bradley County. The petitioner
could not recall the man’s name; however, he claimed to have worked for the man. The
petitioner stated, “I had been working for him when this burglary was supposed to have took
place[.]” The man in Bradley County would have also testified that the petitioner was a

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trustworthy employee. The petitioner acknowledged that the man knew nothing about the
offenses. The petitioner said he was told by defense counsel that if the character witnesses
testified, the prosecution could introduce evidence of his prior convictions. The petitioner
denied that he met with defense counsel five times before trial. The petitioner said he wanted
a jury trial because he was innocent. The petitioner was shown a letter that he wrote to
defense counsel after sentencing. The letter thanked defense counsel for his work on the
case. The petitioner conceded in the letter that he was guilty of theft. He maintained that he
was innocent of aggravated burglary.

       Patterson testified that she was the petitioner’s sister. She was present during part of
the trial. Patterson said she told defense counsel that she was concerned about the
petitioner’s mental state. She believed that he had “a mental problem” and needed help.
Patterson acknowledged that she was not a medical professional. She believed that the
petitioner had mental health problems based on his persistent criminal conduct. Patterson
said defense counsel asked her if she wanted to testify at trial; however, she declined. She
could not recall why she decided not to testify. Patterson did testify at the sentencing
hearing.

       Defense counsel testified that he represented the petitioner at trial, at sentencing, and
on direct appeal before the Court of Criminal Appeals. He denied that the petitioner
mentioned anything about potential witnesses. Defense counsel stated:

               The only witnesses that I discussed with [the petitioner] were the
       witnesses that were identified in the State’s discovery. [The petitioner] never
       informed me of an individual in Bradley County, or the other person that he
       mentioned. He did not–I’ve checked my file. There are no notes of anything
       like that.

Defense counsel testified that he spoke with Patterson on the morning of the trial. She
suggested that the petitioner might have mental health problems. Defense counsel said he
alerted the trial court that Patterson had questioned the petitioner’s mental state; however,
he chose not to ask for a mental evaluation. He stated that the petitioner gave no indication
that he was incompetent or insane. Defense counsel testified that he met with the petitioner
at least five times before trial. He reviewed his notes and described the substance of these
meetings. Defense counsel stated that he asked Patterson if she wanted to testify at trial;
however, she declined. He recalled the petitioner stating that his two nieces, Markwell and
Baucom, presented false testimony. Defense counsel asked the petitioner to explain how
their testimony was false, but he was unable to provide a coherent explanation.




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       Defense counsel could not recall whether he raised the absence of physical injury as
a mitigating factor at sentencing. He acknowledged that this factor should have been raised.
Defense counsel said the petitioner rejected two plea offers. Defense counsel filed a motion
in limine for the petitioner’s prior convictions. The trial court found that evidence of several
aggravated burglaries was admissible. Defense counsel said the petitioner claimed he was
innocent and wanted to go to trial. The petitioner initially wanted to testify; however, he
changed his mind during trial.

       The post-conviction court denied the petitioner relief by written order. It first
addressed the claim that defense counsel should have called several witnesses to testify. The
court noted that these character witnesses were not identified, other than Tammy Buckner,
and had no knowledge of the facts of the case. It credited defense counsel’s testimony that
he did not receive a witness list from the petitioner. The court also stated:

               Petitioner . . . testified that trial counsel had advised against using such
       character witnesses for fear that such testimony would open the door to the
       state for many of his prior convictions that had been ruled inadmissible by the
       court for impeachment purposes should the defendant have taken the stand.

Next, the court found no support for the petitioner’s claim that his mental health should have
been raised as a defense. It reasoned that the petitioner’s claim was based entirely on the
statement made by Patterson and not any medical evidence. The court pointed out that
Patterson declined the opportunity to testify at trial. Lastly, the court determined that defense
counsel was not obligated to raise any mitigating factors at sentencing. It addressed the
failure to argue that the offenses did not cause or threaten serious bodily injury. The court
stated:

               There was no proof at trial by the petitioner that he knew at the time of
       the burglary that the occupants of the house were not at home. Any breaking
       and entering into the residence of another person poses the inherent threat of
       injury should the intruder be discovered either by someone already in the home
       or by someone returning home during the commission of the crime. This
       court, absent strong law to the contrary, is not inclined to find that lack of
       committing personal injury during the commission of a home invasion is a
       ‘mitigating factor’ at a sentencing hearing.

The court referred to the presentence report, which concluded that no mitigating factors were
present. Regarding prejudice, the court found that the proof against the petitioner was
“overwhelming.”



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       The petitioner appealed the decision of the post-conviction court by filing a timely
notice of appeal.

                                        ANALYSIS

       The petitioner claims the post-conviction court erred in denying his petition because
he received ineffective assistance of counsel. He argues that defense counsel failed to
adequately prepare his defense. Specifically, the petitioner contends defense counsel should
have contacted several possible witnesses and inquired about his mental state. He generally
asserts that defense counsel “failed to adequately prepare for trial by insufficiently
interviewing and consulting with the client regarding issues pertinent to his case.” The
petitioner also alleges, without additional argument, that defense counsel should have
contested the applicability of sentencing factors. In response, the State argues that the post-
conviction court properly denied the petitioner relief. The State claims the petitioner did not
prove deficient performance or prejudice. Upon review, we agree with the State.

       Standard of Review. Post-conviction relief is only warranted when a petitioner
establishes that his or her conviction is void or voidable because of an abridgement of a
constitutional right. T.C.A. § 40-30-103. The Tennessee Supreme Court has held:

       A post-conviction court’s findings of fact are conclusive on appeal unless the
       evidence preponderates otherwise. When reviewing factual issues, the
       appellate court will not re-weigh or re-evaluate the evidence; moreover, factual
       questions involving the credibility of witnesses or the weight of their testimony
       are matters for the trial court to resolve. The appellate court’s review of a
       legal issue, or of a mixed question of law or fact such as a claim of ineffective
       assistance of counsel, is de novo with no presumption of correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal quotation marks and citations
omitted). “The petitioner bears the burden of proving factual allegations in the petition for
post-conviction relief by clear and convincing evidence.” Id. (citing T.C.A. § 40-30-110(f);
Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006)). Evidence is considered clear and
convincing when there is no serious or substantial doubt about the accuracy of the
conclusions drawn from it. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)
(citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).

       In order to prevail on an ineffective assistance of counsel claim, the petitioner must
establish that (1) his lawyer’s performance was deficient and (2) the deficient performance
prejudiced the defense. Vaughn, 202 S.W.3d at 116 (citing Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.

                                              -8-
1975)). “[A] failure to prove either deficiency or prejudice provides a sufficient basis to
deny relief on the ineffective assistance claim. Indeed, a court need not address the
components in any particular order or even address both if the [petitioner] makes an
insufficient showing of one component.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996)
(citing Strickland, 466 U.S. at 697, 104 S. Ct. at 2069).

       A petitioner successfully demonstrates deficient performance when the clear and
convincing evidence proves that his attorney’s conduct fell below “an objective standard of
reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S.
at 688, 104 S. Ct. at 2065; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is
demonstrated once the petitioner establishes “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 370.
“‘A reasonable probability is a probability sufficient to undermine confidence in the
outcome.’” Id. (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068).

        In viewing the record, the petitioner has not shown that defense counsel’s
performance was deficient. The bulk of the post-conviction hearing addressed defense
counsel’s failure to contact three witnesses: Tammy Buckner, “her friend over there on
Country Road 188,” and a man from Bradley County. The post-conviction court credited
defense counsel’s testimony that he did not receive information about these witnesses before
trial. As stated above, this court is not permitted to second-guess the post-conviction court’s
findings regarding witness credibility. See Vaughn, 202 S.W.3d at 115. Without information
about these potential witnesses, defense counsel could not be expected to contact them.
None of the witnesses had any connection to the case, other than the man from Bradley
County who may have provided an alibi. The petitioner acknowledged that he did not know
the name of the man from Bradley County or how to contact him. Defense counsel was not
ineffective because he failed to contact these witnesses. Furthermore, the petitioner has
failed to show prejudice or deficient performance because the persons mentioned were not
called to testify at the evidentiary hearing. See Black v. State, 794 S.W.2d 752, 757 (Tenn.
Crim. App. 1990).

       Finally, we see no support for the claim that defense counsel should have investigated
the petitioner’s mental state. The post-conviction hearing afforded the petitioner the
opportunity to present proof of his lack of mental capacity. The petitioner failed to present
any medical evidence. He relied exclusively on the opinion of Patterson who testified that
the petitioner must have mental problems based on his persistent criminal behavior. The
petitioner presented no evidence that he lacked the mental capacity to commit the offenses;
therefore, the petitioner failed to show that defense counsel was deficient for failing to
investigate this issue.



                                              -9-
       The petitioner also contends that defense counsel should have contested the
sentencing factors at the sentencing hearing. The argument in his brief is limited to the
following assertion: “trial counsel failed to present any mitigating factors or argue against
the enhancement factors.” Based on the testimony at the post-conviction hearing, we
presume the petitioner is referring to the mitigating factor of whether the petitioner caused
or threatened serious bodily injury. T.C.A. § 40-35-113(1). At the post-conviction hearing,
defense counsel could not recall whether he contested this issue. Without a transcript of the
sentencing hearing, it is unclear what arguments defense counsel made at the sentencing
hearing. The appellant has a duty to prepare a record that conveys “a fair, accurate and
complete account of what transpired with respect to those issues that are the bases of appeal.”
T.R.A.P. 24(b); see also State v. Taylor, 992 S.W.2d 941, 944 (Tenn. 1999). Because the
petitioner failed to include a transcript of the sentencing hearing, we are precluded from
considering this issue. See State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988)
(concluding that this court is precluded from considering an issue if the record does not
contain parts of the record upon which a party relies).

       Lastly, the petitioner asserts that defense counsel should have filed a motion to reduce
bond. The petitioner has not shown that a motion to reduce bond would have been granted,
or that a successful motion would have affected the outcome of the trial. This claim is
without merit. Accordingly, the petitioner is not entitled to relief.

                                      CONCLUSION

       Based on the foregoing, the judgment of the post-conviction court is affirmed.




                                                    ______________________________
                                                    CAMILLE R. McMULLEN, JUDGE




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