        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                    Assigned on Briefs July 27, 2010 at Knoxville

             LARRY PAUL KOFFMAN v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Robertson County
                      No. 02-0440     Michael R. Jones, Judge




              No. M2009-00951-CCA-R3-PC - Filed September 29, 2010


The petitioner, Larry Paul Koffman, appeals from the Robertson County Circuit Court’s
denial of his petition for post-conviction relief. After reviewing his issues, we hold that his
first issue has been previously determined and that all other issues are waived, and we affirm
the order of the circuit court.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which JOSEPH M.
T IPTON, P.J., and D. K ELLY T HOMAS, J R.,J., joined.

Jordon D. Mathies, Nashville, Tennessee, for the appellant, Larry Paul Koffman.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; John W. Carney, District Attorney General; and Dent Morris, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                In 2003, a Robertson County jury convicted the petitioner of aggravated
robbery and aggravated assault. The trial court sentenced him to an effective 23-year
sentence as a Range II offender. This court affirmed the defendant’s convictions, see State
v. Koffman, 207 S.W.3d 309 (Tenn. Crim. App. 2006), and the supreme court denied his
application for permission to appeal on August 28, 2006. On October 3, 2006, the petitioner
filed a pro se petition for post conviction relief, which he subsequently amended. The post-
conviction court appointed counsel, and counsel filed a final amended petition.

              The post-conviction petition alleged, among other things, that the petitioner’s
trial counsel was ineffective in handling his pretrial suppression hearing and in failing to
investigate his mental history. At the post-conviction hearing, the petitioner stated that his
trial counsel performed deficiently by failing to “match the transcripts with the tape” of the
White House Police Department’s interview of the petitioner. He also complained that his
arrest was illegal, and he testified,

              [D]uring the trial the one officer who was at trial was asked if
              I was a suspect for any crime when he pulled into this parking
              [sic], and he said no; but yet Jonathan Dillard jumped out and at
              gunpoint had me get down to the ground, and yet I was never –
              never given Mirandas, or any reason, or anything I was just –
              just taken down at gunpoint and put in the back of the police car.

The petitioner testified that Detective Matthew Marshal then climbed into the police car with
him to start questioning him.

               Regarding his claim that counsel failed to investigate his mental history and
present a “diminished capacity defense,” the petitioner testified, “I have seen so many
psychologists, psychiatrists; I’ve been in some of the psychiatric institutions; I’ve been on
all kinds of psychiatric medications from the age of 11; and . . . I felt that it was real
important for [counsel] to get my mental history; and he did not.” The petitioner explained
that he had a “dull mind” and mental diseases. He admitted that he received a court-ordered
mental evaluation, but he complained that his trial counsel never discussed his mental
condition with him.

               The post-conviction court denied the petition for post-conviction relief. In a
written order, the court noted that the petitioner presented no evidence from any law
enforcement officers to establish that the White House police officers lacked probable cause
for his arrest and denied relief on these grounds. The post-conviction court found that the
petitioner’s claim that his confession was coerced had been previously determined by the
Court of Criminal Appeals. As to the petitioner’s claim that counsel was ineffective in
failing to present a diminished capacity defense, the court ruled that “[n]o expert was
presented during [the post-conviction] proceedings that would have established diminished
capacity as a defense to these charges.” The post-conviction court dismissed the petition, and
the petitioner filed a timely notice of appeal.

             The petitioner’s first claim is that the post-conviction court erred in “precluding
[his] argument’s [sic] of improper search and seizure, finding the [petitioner’s] arguments
‘predetermined’ was reversible error.” To the extent that the petitioner presents the issue on
appeal as one of trial court error, it was previously determined. The admissibility of the

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petitioner’s pretrial statements to police was squarely before this court on direct appeal, and
we held that, although the trial court erred in admitting the petitioner’s statements, the error
was harmless beyond all reasonable doubt. Koffman, 207 S.W.3d at 320. The
post-conviction procedure may not be used to re-litigate issues that have been “previously
determined.” See T.C.A. § 40-30-106(f) (2006). A ground for relief is previously
determined when “a court of competent jurisdiction has ruled on the merits after a full and
fair hearing.” Id. § 40-30-106(h). “A full and fair hearing has occurred where the petitioner
is afforded the opportunity to call witnesses and otherwise present evidence, regardless of
whether the petitioner actually introduced any evidence.” Id.; see Miller v. State, 54 S.W.3d
743, 747-48 (Tenn. 2001) (holding that issue raised and resolved in the petitioner’s direct
appeal “cannot be revisited in this post-conviction proceeding”). This court has clearly
determined the issue of the petitioner’s statement to the police and we will not revisit the
issue.

                In his petition, the petitioner presented this issue as one of ineffective
assistance of trial counsel. To establish entitlement to post-conviction relief via a claim of
ineffective assistance of counsel, the post-conviction petitioner must affirmatively establish
by clear and convincing evidence first that “the advice given, or the services rendered by the
attorney,” were outside “the range of competence demanded of attorneys in criminal cases,”
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and second that his counsel’s deficient
performance “actually had an adverse effect on the defense,” Strickland v. Washington, 466
U.S. 668, 693 (1984). In other words, the petitioner “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. As an issue of ineffective assistance of counsel, the
petitioner failed to establish prejudice as required by Strickland. This court’s ruling on direct
appeal that the suppression error was harmless beyond a reasonable doubt equates to a lack
of prejudice for an ineffective assistance of counsel claim.

               The petitioner’s claim that his arrest was otherwise unconstitutional is waived;
it was not previously presented to the court of conviction. Code section 40-30-106(g) states
in pertinent part, “A ground for relief is waived if the petitioner personally or through an
attorney failed to present it for determination in any proceeding before a court of competent
jurisdiction in which the ground could have been presented.” T.C.A. § 40-30-106(g).

               The petitioner’s second issue asserts that “[t]he ruling of the court finding
insufficient evidence of the applicability of diminished capacity defense for the defendant
is reversible error because there was insufficient proof at trial of a history of mental illness
of the [petitioner].” The petitioner’s brief admits that this issue was not brought before the
post-conviction court but urges this court to review the issue under plain error. See Tenn. R.
App. P. 36(b). Specifically, he argues, “In regards to the [petitioner’s] post-conviction

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proceeding, once the context for objection is made plainly apparent, then the propriety of the
applicability of the diminished capacity rule of evidence may be reviewed for erroneous
error.” We acknowledge that the petitioner argued during his post-conviction hearing that
his trial counsel was ineffective by failing to present a diminished capacity defense; however,
his brief before this court clearly abandons that argument in favor of asking us to reverse his
convictions because the failure of the lower court to recognize his diminished capacity
defense affected his “substantial right.” We decline to evaluate this issue on appeal because
the petitioner waived it by presenting it for the first time on appeal. See T.C.A. §
40-30-106(g); see also Fayne v. Vincent, 301 S.W.3d 162, 171 (Tenn. 2009) (“The
jurisprudential restriction against permitting parties to raise issues on appeal that were not
first raised in the trial court is premised on the doctrine of waiver.”).

               Even if we afforded the petitioner the benefit of the doubt on appeal and treated
the issue as one of ineffective assistance of counsel, the prejudice rule again precludes relief.
The petitioner did not establish by clear and convincing evidence in the post-conviction
hearing that he was afflicted with any mental disease or defect at trial; hence, he failed to
establish that he was prejudiced by his trial counsel’s failure to take further action regarding
his mental state.

                The petitioner’s third issue is unclear. He argues that his due process rights to
a fair trial were violated “by the criminal courts [sic] admission of cumulative evidence from
the State relevant to the sentencing hearing.” His appellate brief explains that he “alleges
several issues in regards to due process of law violations by counsel’s failure to object to the
admission of evidence by the [S]tate for review of sentencing errors in his post-conviction
amended petition.” Apparently the petitioner argues that trial counsel failed to make a
“poisonous tree objection” to certain evidence at trial and/or during the sentencing hearing.
The petitioner’s brief never specifies exactly how and when trial counsel was ineffective, and
the brief essentially cites to the entire trial, sentencing hearing, and post-conviction
proceeding transcripts for its argument. See Tenn. R. App. P. 27(g) (“If reference is made
to evidence, the admissibility of which is in controversy, reference shall be made to the pages
in the record at which the evidence was identified, offered, and received or rejected.”). We
decline to consider this issue, and we also note that, from our reading of the post-conviction
record, the petitioner failed to assert this claim to the post-conviction court and that he has
waived the issue. See T.C.A. § 40-30-106(g).

              We affirm the denial of post-conviction relief.

                                                     _________________________________
                                                     JAMES CURWOOD WITT, JR., JUDGE



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