         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs May 18, 2004

           THOMAS JEFFREY PERKEY v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Sullivan County
                           No. C47-406    Phyllis H. Miler, Judge



                      No. E2003-02370-CCA-R3-PC - Filed July 12, 2004


The petitioner, Thomas Jeffrey Perkey, appeals from the denial of his petition for post-conviction
relief. The single issue presented for review is whether the petitioner was denied the effective
assistance of counsel at trial. The judgment is affirmed.

                  Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which JOE G. RILEY and ALAN E. GLENN ,
JJ., joined.

Nat H. Thomas, Kingsport, Tennessee, for the appellant, Thomas Jeffrey Perkey.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General;
and Teresa Smith, Assistant District Attorney General, for the appellee, State of Tennessee.


                                             OPINION

        On March 7, 2001, the petitioner was convicted of aggravated assault, a Class C felony. See
Tenn. Code Ann. § 39-13-102. Trial counsel withdrew before the sentencing hearing and the
petitioner's current counsel represented the petitioner at sentencing, at the hearing on the motion for
new trial, and on direct appeal. The trial court imposed a Range II sentence of ten years and ordered
service in the Department of Correction. The sentence was ordered to be served consecutively to
a prior sentence for which the petitioner was on parole. The record establishes that the petitioner,
after an evening of drinking and marijuana use, stabbed the victim as the result of a quarrel. There
were three eyewitnesses. This court affirmed, concluding that the evidence was sufficient and that
any inconsistencies in the testimony had been resolved favorably to the state by the jury verdict.
State v. Thomas Perkey, No. E2001-02241-CCA-R3-CD (Tenn. Crim. App., at Knoxville, Oct. 18,
2002). There was no application for permission to appeal to the supreme court.
         On February 4, 2003, the petitioner filed a petition for post-conviction relief, alleging that
his trial counsel was ineffective by failing to adequately investigate and failing to file appropriate
motions. Current counsel was re-appointed to represent the petitioner and an amendment was filed
alleging that trial counsel had failed to adequately explain the state's offer to plea bargain, had failed
to discuss with the petitioner possible defenses, possible trial strategies, or the potential range of
punishment upon conviction.

        At the evidentiary hearing, the thirty-seven-year-old petitioner testified that he was on parole
for voluntary manslaughter at the time he was charged with aggravated assault. He complained that
his trial counsel had filed no pre-trial motions, had not discussed with him the content of the
indictment, and had failed to explain the elements of the offense. He also contended that his trial
counsel failed to discuss possible defenses and did not disclose the potential range of punishment.
The petitioner also testified that his trial counsel had failed to call Thomas Edwards, who would
have testified that the petitioner did not have possession of the knife which was alleged to have been
the assault weapon, as a defense witness. Edwards, the petitioner contended, would have testified
that he had sold the knife to the victim's brother, Michael Amix. He complained that his trial
counsel had failed to investigate the case at all and had only met with him for ten to fifteen minutes
on the evening before the trial. The petitioner testified that he had accepted a plea offer proposed
by the state which, without explanation, had been withdrawn immediately prior to trial.

       The petitioner explained that he wanted to testify in his own defense but that trial counsel
advised otherwise. He also contended that trial counsel candidly admitted that he would "take it
easy" on state witnesses due to their ages. The petitioner insisted that there were discrepancies
between the witnesses' testimony at the preliminary hearing and the trial.

        During cross-examination by the state, the petitioner acknowledged that he had a copy of the
indictment as well as copies of the statements made by each of the witnesses for the state. He
conceded that he was aware of the difference between a concurrent and a consecutive sentence. He
claimed that he did not understand, however, why the trial court rejected the plea agreement calling
for concurrent sentencing with his prior conviction. The petitioner admitted that he had been advised
that a sentence of aggravated assault had to be served consecutively to his prior sentence. The
petitioner acknowledged that one of the witnesses testified that he had seen the knife used in the
assault in the possession of the victim's brother, who had testified that he had purchased the knife
from the petitioner's nephew. The petitioner also conceded that his trial counsel had established
during the course of the trial that so many people had handled the knife that fingerprinting would not
have been helpful to the defense or the state.

        Trial counsel testified that he had filed a motion to discover the evidence in the possession
of the state and that the state had cooperated with his investigation. He stated that his defense
strategy was to establish that the knife used in the assault did not belong to the petitioner and instead
was owned by the victim's brother. Trial counsel explained that he chose to avoid a harsh cross-
examination of the state's witnesses due to their youth. Trial counsel pointed out that he had
subpoenaed Thomas Edwards as a defense witness, but did not call him to testify at trial because


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both the victim and the victim's brother admitted that the knife had been purchased from Edwards.
He acknowledged that the petitioner expressed a lack of confidence immediately after the return of
the guilty verdict. It was trial counsel's recollection that each of the state witnesses admitted to
drinking or using marijuana at the time of the offense. He conceded that he recommended the
petitioner not testify.

          On September 9, 2003, the post-conviction court filed a detailed order summarizing the
evidence, identifying the applicable law, and making findings of fact. Included among the court's
findings was that the petitioner, on parole for a fifteen-year sentence at the time of the aggravated
assault charge, had other prior convictions for grand larceny, theft over $500, and felony escape. The
post-conviction court found that the petitioner had signed a document establishing his receipt of the
copy of the indictment and that trial counsel had, through motions, successfully acquired pre-trial
discovery and a copy of the preliminary hearing transcript. The post-conviction court concluded that
the petitioner had several meetings with his trial counsel, including between four and six court
appearances. It determined that it was unnecessary for Thomas Edwards to be called as a defense
witness because the victim had acknowledged at trial that he had seen his brother in possession of
the knife. The post-conviction court accredited trial counsel's assertion that Edwards was to be
presented as a defense witness only if the victim or his brother had denied ownership or prior
possession of the assault weapon. The post-conviction court also determined that fingerprinting of
the knife would have been fruitless, that the petitioner had been questioned during the course of the
trial as to whether he had voluntarily relinquished his right to testify, and that trial counsel was fully
prepared for trial. The post-conviction court further concluded that trial counsel had in fact advised
the petitioner of the possible range of punishment and had made a reasonable tactical decision
regarding the cross-examination of the state witnesses in view of their admission that they had been
drinking and using marijuana immediately prior to the offense.

        The post-conviction court also ruled that while the state had made a plea offer which was
acceptable to the petitioner, it was not approved by the court because it provided that the aggravated
assault conviction would be served concurrently to the existing sentence for voluntary manslaughter.
The post-conviction court specifically accredited the testimony of trial counsel and rejected the
testimony of the petitioner as "completely untrue."

       In this appeal, the petitioner insists that trial counsel was ineffective for having failed to
adequately communicate with him, vigorously cross-examine the state witnesses, and request
fingerprinting of the assault weapon. The petitioner also argues that Thomas Edwards should have
been called as a defense witness.

       Under our statutory law, the petitioner bears the burden of proving the allegations in his post-
conviction petition by clear and convincing evidence. See Tenn. Code Ann. § 40-30-210(f) (1997).1
Evidence is clear and convincing when there is no serious or substantial doubt about the accuracy


        1
         In 2003, the Post-Conviction Procedure Act was renumbered within the Code. It now appears at sections 40-
30-101 through 40-30-122.

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of the conclusions drawn from the evidence. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App.
1998). On appeal, the findings of fact made by the post-conviction court are conclusive and will not
be disturbed unless the evidence contained in the record preponderates against them. Brooks v.
State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the petitioner to show that
the evidence preponderated against those findings. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim.
App. 1978). The credibility of the witnesses and the weight and value to be afforded their testimony
are questions to be resolved by the post-conviction court. Bates v. State, 973 S.W.2d 615 (Tenn.
Crim. App. 1997).

        Claims of ineffective assistance of counsel are regarded as mixed questions of law and fact.
State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn.
1999). When reviewing the application of law to the post-conviction court's factual findings, our
review is de novo, and the post-conviction court's conclusions of law are given no presumption of
correctness. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001); see also State v. England, 19
S.W.3d 762, 766 (Tenn. 2000).

        A petitioner seeking post-conviction relief on the basis of ineffective assistance of counsel
must first establish that the services rendered or the advice given was below "the range of
competence demanded of attorneys in criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). Second, he must show that the deficiencies "actually had an adverse effect on the defense."
Strickland v. Washington, 466 U.S. 668, 693 (1984). Should the petitioner fail to establish either
factor, he is not entitled to relief. Our supreme court described the standard of review as follows:

               Because a petitioner must establish both prongs of the test, 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 defendant makes an insufficient showing
       of one component.

        On claims of ineffective assistance of counsel, the petitioner is not entitled to the benefit of
hindsight, may not second-guess a reasonably based trial strategy, and cannot criticize a sound, but
unsuccessful, tactical decision made during the course of the proceedings. Adkins v. State, 911
S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference to the tactical decisions of counsel,
however, applies only if the choices are made after adequate preparation for the case. Cooper v.
State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

        The post-conviction judge saw and heard the testimony of the petitioner and of trial counsel
and specifically accredited the testimony of trial counsel. The contents of the record on appeal do
not preponderate against the findings of the post-conviction court. Moreover, the petitioner failed
to call Edwards as a witness, thereby failing to establish how his testimony might have made a
difference in the result of the trial. Finally, the petitioner has been unable to demonstrate how any
further communication with his trial counsel, additional preparations for trial, or specific pre-trial
motions would have resulted in a reasonable probability of a different outcome at the trial.


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Accordingly, the judgment is affirmed.



                                               ___________________________________
                                               GARY R. WADE, PRESIDING JUDGE




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