            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                    September 26, 2000 Session

                     J.Y. SEPULVEDA v. STATE OF TENNESSEE

             Post-Conviction Appeal from the Circuit Court for Jefferson County
                            No. 15,954   Rex Henry Ogle, Judge



                                     No. E1999-02766-CCA-R3-PC
                                             July 27, 2001

This is an appeal from the denial of the appellant, J. Y. Sepulveda’s petition for post-conviction
relief on the grounds that he was denied the effective assistance of counsel at the pre-trial stage of
the prosecution. Appellant also alleges that the trial judge erred in not allowing testimony at the post-
conviction hearing concerning ineffective assistance of trial counsel during trial. We find that none
of these issues constitute error and affirm the trial court’s denial of the petition for post-conviction
relief.

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

JERRY L. SMITH, J., delivered the opinion of the court, in which JOSEPH M. TIPTON , and JAMES
CURWOOD WITT, JR., JJ, joined.

Tim S. Moore, Newport, Tennessee, for appellant, J. Y. Sepulveda.

Paul G. Summers, Attorney General & Reporter; Patricia C. Kussmann, Assistant Attorney General;
Al Schmutzer, Jr., District Attorney General; and Michael Murphy, Assistant District Attorney, for
appellee, State of Tennessee.

                                                 OPINION

                                       Factual Background
         On August 6, 19911, ninety-five year old Cora Nicholson was found lying injured on the floor
of her home, the victim of a beating. As the police investigated, they noticed blood on a broken
window of the house and inside the house. The appellant, Mrs. Nicholson’s neighbor, had a fresh
cut on his hand. The appellant stated that he cut his hand trying unsuccessfully to get into the house
to aid the victim. The appellant was advised of his rights at the scene and was asked to come to the
police station for questioning. As they were leaving the scene, the officers overheard the appellant


        1
         The facts are drawn from this Court’s opinion on direct appeal. See State v. Sepulveda, 1997 WL 351107,
*102, Sevier County, No. 03C01-9402-CR -00069 (Tenn. Crim. App., filed June 26, 1997, at Knoxville).
tell a family member to call his attorney. After arriving at the police station, the appellant was seated
in the lobby to await the arrival of his attorney. The appellant waited for two hours. The appellant
grew impatient and approached an officer and asked to make a statement. The appellant was again
advised of his rights and signed a waiver of those rights and gave a statement to Officer McCarter.
In this statement, the appellant admitted breaking into the house with David Johnson, the appellant’s
brother-in-law, but insisted that Johnson had inflicted the wounds on the victim. The appellant
claimed that he acted only to prevent further injury. The appellant was then arrested for the burglary.
         The appellant remained in jail and, in the subsequent weeks, gave two additional statements
to the police which were essentially the same as the first statement. Based on those statements, the
police arrested Johnson, who claimed the appellant had inflicted the wounds on the victim. The
police requested that each take a polygraph test. While answering preliminary questions prior to the
polygraph test, the defendant confessed to beating the victim.
         Ms. Nicholson eventually died, twelve weeks after the attack and before the appellant’s final
incriminating statement. Following a jury trial the appellant was convicted of felony murder,
especially aggravated burglary and theft of less than five hundred dollars.2 The jury sentenced the
appellant to life for the murder and the trial court sentenced him to ten years for the burglary and
eleven months twenty-nine days for the theft.3
                             Ineffective Assistance of PreTrial Counsel
         The appellant contends that he was denied effective assistance of counsel before the trial
because the appellant’s pretrial counsel allowed the police to interview the appellant without counsel
attending.
         The standards by which ineffectiveness of counsel is judged in Tennessee are set forth in
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.1975), which requires that the advice given, or the
services rendered by the attorney, be within the range of competence demanded of attorneys in
criminal cases. The rule devised by the United States Supreme Court in Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), provides:
         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. Unless the defendant makes
         both showings, it cannot be said that the conviction or ... sentence resulted from a
         breakdown in the adversary process that renders the result unreliable.


         2
           On direct app eal, this Court m odified the c onviction fo r especially aggravated burglary to a conviction for
aggravated burglary in light of its decision in State v. Jehiel Fields, Bradley C ounty, No. 03C01-9607-CC-00261, 1997
W L 122756 (Tenn. Crim. App. filed March 18, 1997, at Knoxville), in which we held that a defendant who is convicted
of both first degre e murder and espe cially aggravated burglary must have the especially aggravated burglary conviction
reduced to an aggravated burglary conviction because the “act of killing the victim constituted the ‘serious bo dily injury’
that was used to enhance the burglary o ffense to espe cially aggravate d burglary. See Sepulveda, at *9.

         3
             The appellant w as sentenced by this Court to five years for the aggrav ated burgla ry conviction . See Sepulveda,
at *9.

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         The findings of fact of the trial judge on post-conviction hearings are conclusive on appeal
unless the evidence preponderates against the judgment. Vermilye v. State, 754 S.W.2d 82, 84
(Tenn. Crim. App. 1987); Turner v. State, 698 S.W.2d 90, 91 (Tenn. Crim. App. 1985); Janow v.
State, 4 Tenn. Crim. App. 195, 470 S.W.2d 19, 21 (1971). A review of the record in this case does
not convince us that the proof preponderates against the judgment entered by the trial court denying
post-conviction relief.
         The trial court at the initial hearing on whether to suppress the appellant’s statements held,
and this Court agreed, that, while the appellant’s counsel’s failure to be present during the
appellant’s questioning by police and the subsequent polygraph test was not a desirable practice, this
impropriety was mitigated by the actions of the appellant. The appellant repeatedly approached law
enforcement seeking to provide information about his accomplice. He was informed of his right not
to speak and his right to counsel eight times and signed a waiver of those rights on seven of those
occasions. The appellant sought out law enforcement at every turn and repeatedly professed to his
pretrial counsel his innocence and his desire to cooperate with law enforcement. Also, there is no
evidence in the record that, given the spontaneous nature of the appellant’s confession, his attorney
could have stopped the appellant from making the incriminating statement. The appellant cannot
show that he has been prejudiced by the actions of his attorney prior to trial.
         In State v. Washington, this Court held that the absence of counsel while the defendant
testified at the trial of a co-defendant did not “constitute ineffective assistance per se.” State v.
Washington, Williamson County, No. C.C.A. 86-142-III, 1986 WL 14812, *1 (Tenn. Crim. App.
filed Dec. 30, 1986, at Nashville). This Court further stated that even if the actions of counsel fell
below the prevailing professional standard, prejudice must be shown. Id. at *2. In finding that the
defendant in Washington was not prejudiced, the Court relied on the fact that the defendant was
clearly advised of the ramifications that might result from his testimony, the fact that the defendant
had made previous inculpatory statements following arrest, and the defendant’s acknowledgment that
the testimony was given voluntarily. Id.
         The instant case is similar to Washington. The appellant had voluntarily admitted to breaking
into the victim’s home for the purpose of robbing her during his initial interview with police before
requesting counsel. The trial court also found that not only had appellant given his statement
voluntarily, he sought out law enforcement on several occasions to offer cooperation.
         The trial court failed to find that but for the ineffective assistance of pretrial counsel there
was a reasonable probability that the outcome would have been different. We conclude that the
evidence does not preponderate against the findings of the trial court. Therefore, the issue is without
merit.
                                Ineffective Assistance of Trial Counsel
         The appellant also contends that the trial court erred by refusing to consider testimony
concerning the ineffectiveness of trial counsel because it was not raised in the petition for post-
conviction relief.
Tennessee Code Annotated § 40-30-206(d), provides as follows:
                 The petition must contain a clear and specific statement of all grounds upon
         which relief is sought, including full disclosure of the factual basis of those grounds.
         A bare allegation that a constitutional right has been violated and mere conclusions
         of law shall not be sufficient to warrant any further proceedings. Failure to state a


                                                  -3-
       factual basis for the grounds alleged shall result in immediate dismissal of the
       petition. If, however, the petition was filed pro se, the judge may enter an order
       stating that the petitioner must file an amended petition that complies with this
       section within fifteen (15) days or the petition will be dismissed.

Tenn.Code Ann. § 40-30-206(d).

        The trial court did not err by initially refusing to consider testimony concerning the
ineffective assistance of trial counsel. The petition does not contain a clear and specific statement
of the grounds upon which relief is sought, nor does it contain a full disclosure of the factual basis
of the grounds asserted. The petition specifically states that the appellant was denied the effective
assistance of counsel by Mr. Miller, his attorney before trial. However, no mention is made of the
appellant’s trial counsel or possible ineffectiveness on his part.
        As we held in Pewitt v. State, 1 S.W.3d 674, 676 (Tenn. Crim. App. 1999), “the bare
allegations that counsel failed to interview witnesses, failed to discover evidence not disclosed by
the prosecution and failed to make proper objections during the trial carry neither a hint of deficient
performance by counsel nor a glint of those actions prejudicing the petitioner at his trial.”
        Furthermore, the record indicates that the trial court allowed the appellant to make an offer
of proof at the hearing on the petition for post-conviction relief. The offer of proof consisted of
testimony supporting the appellant’s contention that trial counsel was ineffective in failing to call
a pathologist to testify regarding the cause of death of the victim. Due to the testimony of other
medical personnel for both the prosecution and defense at trial, the trial court found that the
testimony of a pathologist would have gone only to the weight of the evidence already presented and
did not rise to the level of ineffective assistance of counsel. Furthermore, the trial court found no
evidence of prejudice. The burden is on the appellant to show that the evidence preponderates
against the findings of the trial court. Clenny v. State, 576 S.W.2d 12 (Tenn. Crim. App. 1978).
This burden has not been met.
        The trial court properly denied the appellant’s request for relief on the basis of ineffective
assistance at trial.
                                           CONCLUSION
        In consideration of the foregoing and the record as a whole, the judgment of the trial court
is AFFIRMED.



                                                       ___________________________________
                                                       JERRY L. SMITH, JUDGE




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