         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs February 26, 2003

                 CHARLES W. COLE v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Carter County
                           No. S15355     Lynn W. Brown, Judge



                                  No. E2002-02535-CCA-R3-PC
                                        August 29, 2003

The petitioner, Charles W. Cole, pled guilty on February 4, 2000, to five sexual offenses and, in
January 2001, filed a petition for post-conviction relief, asserting that his trial counsel was
ineffective. Following a hearing, the post-conviction court dismissed the petition, and the petitioner
timely appealed. We affirm the dismissal of the petition.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JAMES CURWOOD WITT,
JR. and JOHN EVERETT WILLIAMS, JJ., joined.

H. Randolph Fallin, Mountain City, Tennessee, for the appellant, Charles W. Cole.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
Joe C. Crumley, Jr., District Attorney General; and Kenneth C. Baldwin, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION
                                              I. Facts

        Little information is contained in the record on appeal as to the offenses to which the
petitioner entered pleas of guilty. The post-conviction court stated that the petitioner had received
ten-year sentences for each of his convictions, with two of the sentences to be served consecutively.
While it appears that the pleas of guilty were to two counts of aggravated sexual battery and three
counts of child rape, the latter three pleas may have been to rape.

        The first witness at the June 3, 2002, post-conviction hearing was the petitioner’s daughter,
Lisa Parlier, who said that the petitioner could not read or write. She said that the petitioner was
living with her in North Carolina at the time he learned of the charges. She subsequently brought
the petitioner to meet with Investigator Randy Bowers at the Carter County Sheriff’s Department.
At this meeting, she asked if the petitioner needed a lawyer, and Bowers responded, “No, we’re just
going to talk to him.” Bowers then “took [the petitioner] back to the back,” and, after about an hour
and a half, he and the petitioner returned. Bowers informed Parlier that the petitioner had confessed
to sexual assault. The petitioner was allowed to leave at that time, but, a week or two later, she
received a telephone call from a law enforcement officer who asked her to bring the petitioner back
to Carter County. She did so; the petitioner was arrested; and counsel was appointed. Both Bowers
and the petitioner’s trial counsel offered to let Parlier watch the videotape of her father’s confession
to Bowers, but she declined to do so.

        On cross-examination, Parlier said that the petitioner is married to her mother and had
worked for State Line Coal Yard and Estep Coal Company for twenty-four years, driving a truck and
working in the yard. She said that the petitioner liked to watch television and work on cars. To her
knowledge, the petitioner had not had any mental health problems or visited a mental health facility.
However, he apparently was suffering from black lung disease. The petitioner had obtained a
driver’s license through an oral test. She said she did not know if the petitioner understood the word
“molest,” but it could be explained to him “[i]f you used the right words.” The petitioner met with
trial counsel “between four and five times,” and she had accompanied him on two of those
occasions.

        Kathy Parlier, another daughter of the petitioner, testified that she was living with the
petitioner in Hampton “when the incident supposedly happened.” He later moved to North Carolina.
 On the day the petitioner met with Investigator Bowers, she heard her sister, Lisa, ask Bowers if the
petitioner needed a lawyer and Bowers replied that he did not. She was also present during one of
the petitioner’s meetings with trial counsel, at which time counsel informed them that there was
“nothing he could do.”

         The sixty-eight-year-old petitioner testified that he had a second grade education and could
not read or write. He said that he suffers from “a lung problem” and emphysema. At the age of
eighteen, he obtained a driver’s license by taking an oral test and began working for a coal company
delivering coal. When questioned by the post-conviction court about the prices of coal and how he
collected the money for the coal he delivered, the petitioner said that he “can count money” and “can
figure . . . some things I have to figure with a pencil and paper . . . [a]nd some things . . . I can figure
it in my head . . . [T]hey can’t cheat me out of money. I know that.”

        The petitioner further testified that he was living with his daughter, Lisa Parlier, in Granite
Falls, North Carolina, when Investigator Bowers first contacted him. His daughter brought him to
Carter County to meet with Bowers who first told him that he did not need a lawyer and then advised
him that he “had a right to remain silent and a lawyer.” The petitioner acknowledged that Bowers
had read his rights to him and that he initialed the paper although he did not understand “half of it
cause I wasn’t interested . . . in it because I didn’t know what it was.” The petitioner did not inform
Bowers that he did not understand his rights because he did not think it was important or that he
would “get railroaded.” Bowers told the petitioner that he “probably wouldn’t go to court,” but if
the case did go to court, he would “get probation.” His interview with Bowers lasted approximately
two hours and he was allowed to leave at the conclusion of the interview.


                                                    -2-
        The petitioner said that trial counsel was appointed to represent him after his arrest and that
he met with counsel three times. He told counsel about the videotape of his confession but did not
tell counsel not to show it to his family. Trial counsel told him that if his case went to court, “he
couldn’t win it.” The petitioner said he and trial counsel never discussed “any way to get rid of the
statement,” and he never told counsel not to file a motion to suppress the statement. He gave counsel
permission to discuss his statement with his daughters. He acknowledged that he knew that his
videotaped statement was “heavy evidence” against him. He said that his complaint was that trial
counsel did not file a motion to get rid of his statement and “didn’t do what I thought he ought to
do.” The petitioner said that he did not know the meaning of the word “suppress” and that he had
relied entirely upon trial counsel to help him.

        Investigator Randy Bowers testified that he interviewed the petitioner on October 19, 1999.
Neither the petitioner nor his daughter who had accompanied him asked Bowers if the petitioner
needed an attorney. Bowers said that if an interviewee asked him if an attorney was needed, his
practice was to tell the interviewee that he had the right to an attorney, and he would not tell an
interviewee that he did not need an attorney. At the beginning of the petitioner’s interview, Bowers
read the Miranda rights to him even though he was not in custody. Bowers did not recall the
petitioner saying anything about whether he could read or write. He read the petitioner his rights,
asking him after each sentence if he understood, and the petitioner acknowledged each time that he
did. Bowers denied making any promises to the petitioner or telling him he would get probation.

        When Investigator Bowers asked the petitioner what had happened between him and the
victim, the petitioner told him the “entire story.” Bowers then put in a videotape and “went back
over” the petitioner’s story with him to “make sure that we were clear on it.” Subsequently, he made
a copy of the videotape which he gave to trial counsel.

        Trial counsel, an assistant public defender since 1989, testified that he was appointed to
represent the petitioner and met with him “several, more than two or three” times. Trial counsel
obtained statements of the victim’s version of the incident, as well as a copy of the petitioner’s
videotaped statement. Counsel made notes as he watched the tape and was allowed to read portions
of his notes during his testimony. The petitioner told trial counsel that his rights had been read to
him twice on the day of his interview and that no promises or threats had been made to him, but he
had been “tricked” by the investigators. Neither the petitioner nor any of his family told trial counsel
that they had asked Investigator Bowers if the petitioner needed an attorney. Because of the
petitioner’s health problems, counsel had a mental evaluation performed on the petitioner “which
came back that he understood what he was doing. He was competent and no insanity defense could
be supported.”

        Trial counsel was satisfied that the petitioner “understood the mechanics of the motion to
suppress and how that would work in terms of procedure.” Although trial counsel’s normal practice
“in a case of this magnitude” was to file a motion to suppress, he did not do so after discussing it
with the petitioner “[m]any times” because the petitioner did not want his family, a jury, or a judge
to see the videotape of his statement. Further, the petitioner never authorized him to show the tape


                                                  -3-
to anyone. Trial counsel explained that the videotape was “extremely damning in that looking at it
objectively you might get the sense that [the petitioner] was sort of trying to put it on the [victim],
trying to say, I wasn’t really doing anything, it was her idea . . . she reached up my pants leg.” The
petitioner did not want the videotape played unless counsel “could assure him that [they] would win
either the motion or the trial.” Because counsel could not assure him that they would be successful,
he did not file a motion to suppress the statement. The petitioner ultimately decided to take the
State’s plea offer of twenty years. Trial counsel said that he had no reservation about the petitioner’s
“competence to stand trial or his ability to understand the consequences of a guilty plea.”

        At the conclusion of the hearing, the post-conviction court made the following findings of
fact and conclusions of law:

        The court credits testimony of Mr. Bowers and [trial counsel]. And to the extent
        there are conflicts in the testimony of [the petitioner] and his two daughters, the court
        does not place credibility in what they say. For one thing, [the petitioner] says that
        he was promised that he would not get much time, that probation was mentioned.
        [Trial counsel’s] testimony is very clear and positive that he went over, Were there
        any promises made, were there any threats? All that was investigated, and at the time
        [the petitioner] said no, that the primary thing that was driving [the petitioner] was
        for his family to avoid seeing this videotape. . . . And [the petitioner] was so
        embarrassed by what he had said that he refused to give his lawyer . . . even
        permission to talk to his family for the first bit of it. And the finding is that there
        were no threats, that were no promises made. . . . The court finds that [trial counsel]
        was instructed to avoid playing the videotape in court, and by doing so and following
        his client’s wishes, that . . . prevented an effective motion to suppress.

        ....

        [A] motion to suppress would have been futile. If one had been filed, it would have
        been overruled by this court without a doubt. Therefore, the final conclusion is that
        no constitutional deprivation occurred. [The petitioner] was accorded all of his
        rights. There’s no indication that counsel was other than effective in this case.

Although the post-conviction court instructed post-conviction counsel to prepare written findings
of fact and conclusions of law, they are not included in the record before this court.

                                              I. Analysis

        The petitioner argues that trial counsel was ineffective for not filing a motion to suppress his
videotaped statement, saying that because of his limited intellect, counsel “should have erred on the
side of caution and file[d] a Motion in raising the issue of voluntariness.”




                                                  -4-
         In order to determine the competence of counsel, Tennessee courts have applied standards
developed in federal case law. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997)
(noting that the same standard for determining ineffective assistance of counsel that is applied in
federal cases also applies in Tennessee). The United States Supreme Court articulated the standard
in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which is
widely accepted as the appropriate standard for all claims of a convicted petitioner that counsel’s
assistance was defective. The standard is firmly grounded in the belief that counsel plays a role that
is “critical to the ability of the adversarial system to produce just results.” Id. at 685, 104 S. Ct. at
2063. The Strickland standard is a two-prong test:

        First, the defendant must show that counsel’s performance was deficient. This
        requires showing that counsel made errors so serious that counsel was not
        functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
        Second, the defendant must show that the deficient performance prejudiced the
        defense. This requires showing that counsel’s errors were so serious as to deprive the
        defendant of a fair trial, a trial whose result is reliable.

Id. at 687, 104 S. Ct. at 2064. The Strickland Court further explained the meaning of “deficient
performance” in the first prong of the test in the following way:

        In any case presenting an ineffectiveness claim, the performance inquiry must be
        whether counsel’s assistance was reasonable considering all the circumstances. . . .
        No particular set of detailed rules for counsel’s conduct can satisfactorily take
        account of the variety of circumstances faced by defense counsel or the range of
        legitimate decisions regarding how best to represent a criminal defendant.

Id. at 688-89, 104 S. Ct. at 2065. The petitioner must establish “that counsel’s representation fell
below an objective standard of reasonableness under prevailing professional norms.” House v. State,
44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

        As for the prejudice prong of the test, the Strickland Court stated: “The defendant must show
that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” 466 U.S. at 694, 104 S. Ct. at 2068; see also Overton v.
State, 874 S.W.2d 6, 11 (Tenn. 1994) (concluding that petitioner failed to establish that “there is a
reasonable probability that, but for counsel’s errors, the outcome of the proceedings would have been
different”).

        Courts need not approach the Strickland test in a specific order or even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S. at 697,
104 S. Ct. at 2069; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency
or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”).



                                                  -5-
        By statute in Tennessee, the petitioner at a post-conviction relief hearing has the burden of
proving the allegations of fact by clear and convincing evidence. See Tenn. Code Ann. § 40-30-
210(f) (1997). A petition based on ineffective assistance of counsel is a single ground for relief,
therefore all factual allegations must be presented in one claim. See Tenn. Code Ann. § 40-30-
206(d) (1997).

        We note that when post-conviction proceedings have included a full evidentiary hearing, as
was true in this case, the trial judge’s findings of fact and conclusions of law are given the effect and
weight of a jury verdict, and this court is “bound by the trial judge’s findings of fact unless we
conclude that the evidence contained in the record preponderates against the judgment entered in the
cause.” Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). The reviewing court must
indulge a strong presumption that the conduct of counsel falls within the range of reasonable
professional assistance, see Strickland, 466 U.S. at 690, 104 S. Ct. at 2066, and may not second-
guess the tactical and strategic choices made by trial counsel unless those choices were uninformed
because of inadequate preparation. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The fact
that a strategy or tactic failed or hurt the defense does not alone support the claim of ineffective
assistance of counsel. See Thompson v. State, 958 S.W.2d 156, 165 (Tenn. Crim. App. 1997).
Finally, a person charged with a criminal offense is not entitled to perfect representation. See
Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). As explained in State v. Burns, 6
S.W.3d 453, 462 (Tenn. 1999), “[c]onduct that is unreasonable under the facts of one case may be
perfectly reasonable under the facts of another.”

         We have viewed the approximately thirty-minute videotape of the petitioner’s statement
regarding the allegations against him. At the beginning of the videotape, Investigator Bowers
entered the room where the petitioner was seated in a chair and handed him cups of water which,
apparently, the petitioner had requested. The petitioner then agreed with Bowers’ statement that they
earlier had been talking, the petitioner had been advised of and understood his rights, and wished to
give his version of what had happened. The questioning was conversational in tone, nonthreatening,
and the petitioner gave responses which were appropriate to the questions. Often, the responses
consisted of several sentences. The petitioner’s limited education was not at all apparent from his
responses to the questions. At the end of the session, he agreed that he had told the truth, but “didn’t
know what was going to happen to [him], though.”

        We conclude that the record on appeal fully supports the findings of the post-conviction court
that Investigator Bowers had advised the petitioner of his Miranda rights, who then had voluntarily
given his statement. Likewise, the record supports the post-conviction court’s determination that,
since a motion to suppress the statement would have been without merit, the petitioner failed to
prove that he had been prejudiced by the alleged ineffective representation of counsel.

                                           III. Conclusion

        We affirm the post-conviction court’s dismissal of the petition.



                                                  -6-
      ___________________________________
      ROBERT W. WEDEMEYER, JUDGE




-7-
