        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE              FILED
                           JULY SESSION, 1998          September 30, 1998

                                                      Cecil W. Crowson
LARRY T. CARTER,              )                     Appellate Court Clerk
                                     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 General and Reporter
TDOC #83297
Middle Tennessee Correctional        LISA A. NAYLOR
Complex                              Assistant Attorney General
7177 Cockrill Bend-Industrial Road   425 Fifth Avenu e North
Nashville, TN 37209-1005             Nashville, TN 37243-0493

                                     VICTOR S. JOHNSON
                                     District Attorney General

                                     ROGER MOORE
                                     Assistant District Attorney
                                     Washington Square - Ste. 500
                                     222-2nd Avenue N.
                                     Nashville, TN 37201-1649



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                     OPINION

       Appellant Larry T. Carter appeals the trial court's denial of his petition for

post-conviction relief. He pre sents the following issues for our consideration on

this appe al: (1) wheth er the trial co urt denie d Appe llant a full and fair evidentiary

hearing by failing to timely file its order dismissing his petition for post-conviction

relief; (2) whether there is a constitutiona l and statutory right to the effec tive

assis tance of counsel in post-conviction proceedings; and (3) whether the trial

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, four counts of rape, and one count of sexual

battery.   As a Range II multiple offender, Ap pellant received an effective

sentence of one hund red ninety-eight years incarceration with the Tennessee

Department of Correction. This Court affirmed his conviction 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., Nashville, October 29, 1992). The Tennessee Supreme Court

denied permission to appeal on Jan uary 25, 1 993. perm. to appeal denied,

(Tenn. 19 93).

       On July 20, 1995, Appellant filed his pro se petition for post-conviction

relief in the D avidso n Cou nty crim inal Co urt, alleg ing, inter alia, that his trial

counsel ineffectively represented him. The trial court conducted a hearing on the

petition on April 17, 1996. On May 12, 1997, the trial c ourt dis miss ed Ap pellan t's


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petition for post-co nviction relief. On June 16, 19 97, Ap pellan t filed an untim ely

notice of app eal.

         Specifically, Appellant alleges the following deficiencies in his trial

counsel's representation:

               (1) failure to present an alibi 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 his post-conviction hearing.

It is these cla ims we will addres s first.

                          II. POST-CONVICTION RELIEF

               In post-convic tion proceedings, the Appellant bears the burden of

proving the allegations raise d in the petition by clear a nd convincing 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).         Moreover, 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, 922 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. FULL AND FAIR HEARING

         Appe llant's first contention is that he was denied a full and fair hearing on

his post-conviction petition because the trial court failed to issue an ord er within

the time constraints 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 rule within sixty (60) days of conclusion of
               the proof.     Su ch dea dline sha ll not be exte nded by
               agreem ent, and s uch d eadlin e may be extended only by order

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            of the court base d upon a findin g that unforeseeable
            circumstances render a con tinuance a m anifest necess ity.
            Such extension shall not exceed thirty (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 later, the trial court entered an order dismissing Appe llant's

petition for p ost-con viction relief.

         Nothing in the post-conviction procedure act prescribes either a remedy or

a sanction for a trial c ourt’s failure to comply with the time limits set out in Section

40-30-211 (d).1 Althoug h we do not cond one a fa ilure to comply with the law as

stated in Section 40-30-112(d), we reject the notion that such an error in this case

deprived Appellant of a full and fair hearing of his post-conviction claims. A full

and fair hearing of post-c onviction c laims is a hea ring wh erein th e petitio ner is

given every opportunity to present evidenc e and argum ent with respe ct to his

claims. See, House v. State, 911 S.W.2d 705, 711 (Tenn. 1995). Appellant was

afforded such an opportunity in this case. The fact that the final order was

entered in an u ntime ly fashion does not detract from the full presentation of

Appe llant’s claim s to the co urts. The refore, this iss ue is witho ut merit.




B. CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL

                       DURING POST-CONVICTION PROCEEDINGS

         Appellant next ur ges th is Court to conclude that the constitution al right to

effective assistance o f counsel sho uld be broad ened to ap ply in the context of




         1
          The only thing remotely resembling some sanction for a failure to comply with Section 40-30-
211(d) is an annual report to the general assembly by the administrative 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 -
post-conviction proceedings. To bo lster this assertion , he allege s that the P ost-

Conviction Proced ure Act o f 1995, T enn. Code Ann. § 4 0-30-20 1, et seq.,

created a statutory right to the effective assistance of counsel in post-conviction

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 constitutional right to the effective assistance of p ost-co nviction coun sel.

House v. State, 911 S.W .2d 705 , 712 (T enn. 19 95); State v. Phillips, 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 constitutional right to the effective assistance of post-conviction

counsel).    Furthermore , Tenn . Code Ann. § 4 0-30-20 1, et seq., contains no

statutory right to the e ffective a ssista nce o f coun sel in the post-conviction setting.

This issu e is withou t merit.



                  III. EFFECTIVE ASSISTANCE OF COUNSEL

       Appe llant's final claim on this appeal is that the trial court erred in denying

his petition for post-conviction relief based upon Appellant's allegation that he

receive d ineffe ctive as sistan ce of tria l and a ppella te cou nsel.



              A. EFFECTIVE ASSISTANCE OF TRIAL COUNSEL

       The Sixth Ame ndmen t provides in part, "In all criminal prosecutions, the

accused shall enjoy the right. . . to have the assistance of counse l for his

defense."     U.S. Const. amend. 6.           Similarly, the Tennessee Constitution

guarantees an accused "the right to be heard by himself an d his cou nsel. . . "

Tenn. Const. a rt. I § 9. In Strickland v. Washington, the United States Supreme

Court articulated a two-prong test for courts to employ in evaluating claims of

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ineffective assistance of couns el. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). The Tennessee Supreme Court adopted Strickland's two-p art test in

Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). The Strickland Court began

its analys is by no ting tha t "The benc hma rk for jud ging a ny claim of

ineffectiveness must be whether counsel's conduct so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as having

produced a just resu lt."    Strickland, 104 S.Ct. at 2064.        When a convicted

defendant challenges the effective assistance of counsel in a post-conviction

proceeding, the Appellant bears the burden of establishing                (1) deficient

representation of counsel an d (2) prejudice res ulting from that deficien cy.

Strickland, 104 S.Ct. at 2064; Powe rs v. State, 942 S.W.2d 551, 558 (Tenn. Crim.

App. 1996). Appellant must prove that counsel's representation fell below an

objective standa rd of reas onable ness. Strickland, 104 S .Ct. at 2 064. T his Court

is not require d to cons ider the two prongs of Strickland in any particular order.

Harris v. State, 947 S.W.2d 156, 163 (Tenn. Crim. App. 1996). "Moreover, if the

Appellant fails to establish one prong, a reviewing court need not consider the

other." Id. With reg ard to couns el's deficient perform ance, the proper m easure

is that of reasonableness under prevailing profession al norm s.             Id. (citing

Strickland, 104 S .Ct. at 2 065). P ut differe ntly, cou nsel's perfor man ce is required

to be "within 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 Strickland, the Appellant must establish that

"there is a reaso nable p robability that, but for counsel's unprofessional errors, the

result of the procee ding wo uld have been d ifferent. A reaso nable proba bility is

a probability sufficient to undermine confiden ce in the o utcom e." Strickland, 104

S.Ct. at 2068.

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       The Strickland Court emphasized 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 . . .

requires that 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 Strickland, 104 S.Ct. at 2065). The m ere

failure of a particular tactic or strategy d oes no t per se estab lish un reaso nable

representation. Id. at 369. H owev er, this Court will defer to counsel's tactical and

strategic choices only where those choices 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 deficiency, he specifically complains

that trial cou nsel p erform ed de ficiently a t trial by failing to present an alibi

defense.     At the hearing on Appellant's post-conviction petition, trial counsel

testified that he and Appellant had discussed the trial strategy of discrediting the

two victims as well as oth er chara cter witnes ses. Th e attorne y testified that

Appellant understood this strategy. In its ord er dism issing Appe llant's petition for

post-conviction relief, the trial court concluded that because the victims resided

with Appellant and because the "criminal conduct was an ongoing part of [the

victims] daily existence. . ., the acts simply could not be tied to calendar dates 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 victims could not identify specific dates on which the

offenses occurred. The trial court properly concluded that the attorney had

directed his efforts in a more appropriate direction by focusing on discrediting the




                                           -7 -
testimony of the victims rather than pursuing 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.

       W e find no merit in Appellant's second allegation that his trial attorney

rendered deficient representation by failing to call Appellant’s wife, Re ba Carter,

as a witness although he had mentioned her nam e during his open ing statem ent.

Counsel conceded that he had mentioned Reba Carter's name in his opening

statem ent. However, after the first day of the tria l, Reba Carte r purpo rtedly

threatened one of her daughters (the alleged victims) during a telephone

conversation. As a result of some of the comments made by Mrs. Carter to her

daughter during the telephone conversation, trial counsel advised Appellant that

it would be pro blem atic to u se Mr s. Car ter's testimony. Counsel further testified

that Appellant wanted counsel to make the final decision as to whether or not to

call Reba Carter. Finally, although counsel gave no explanation to the jury as to

the reason for not calling Mrs. Carter as a witness, the decision not to call Reba

Carter as a witness was a reasonable tactical choice under the circumstances.

Moreover, during the jury selection process, the trial court instructed the jury that

lawyers commonly added or deleted people from their list of potential witnesses

as the trial evolved and that such alterations were not significant. In light of the

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 asserts that trial counsel was in effective in

failing to present Appellant's testimony. At the post-conviction hearing, trial

counsel explained 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 ination concerning

Appe llant's prior conviction for child sexual abuse. See, Tenn. R. Evid. 609. Trial

counsel successfully prevented the jury from becoming aware of this prior

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conviction, and given the n ature of the charges we conclude this was a prudent

strategic d ecision. T his issue is without m erit.



          B. EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

       Appellant next urges this Court to conclude that the trial court e rrone ously

determined that he received effective assistance of counsel on appeal. How ever,

Appellant does not specifically enumerate the deficiencies of which he complains.

      The same two-prong standard that is used in considering claims of

ineffective assistance of trial counsel is also employed to evaluate allegations of

ineffective assistance o f appellate couns el. See, e.g ., Porterfield v. S tate, 897

S.W.2d 672, 67 7-78 (T enn. 19 95). Typically, the decision about which iss ues to

raise on appeal is one that is left to the professional judgment and sound

discretion 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 Appellant's trial, trial counsel filed a motion

to withdraw. However, according to counsel’s testimony at the post-conviction

hearing, he withdrew the motion because Appellant wanted counsel to continue

to represent him on appeal.      Coun sel’s time sheet reflects that he spent over

51.3 out-of-court hours preparing Appellant's case for appeal.         Trial counsel

raised ten issues on appea l to this Cou rt. Carter, C.C.A. No. 01C01-9110-CR-

00308, slip op. at 1-2. The trial attorney testified that after this Court issued its

decision in Appellant's case, counsel again filed a motion to withdraw. Given the

state of this record we can discern no insufficiency in counsel’s performance

during the direct appeal of this case.




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    Accordingly, the judgment of the trial court is affirmed.



                              ____________________________________
                              JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
PAUL G. SUMMERS, JUDGE


___________________________________
DAVID G. HAYES, JUDGE




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