         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs, December 18, 2001

       GEORGE THURMAN HAYNIE, JR. v. STATE OF TENNESSEE

                Direct Appeal from the Circuit Court for Williamson County
                          No. 200-59 Timothy L. Easter, Judge



                    No. M2001-01522-CCA-R3-PC - Filed March 26, 2001


Petitioner, George Thurman Haynie, Jr., filed a petition for post-conviction relief attacking a felony
conviction for passing a worthless check and a misdemeanor conviction for passing a worthless
check. The Circuit Court of Williamson County dismissed the petition and Petitioner now appeals.
After a thorough review of the record, the pro se brief filed by the Appellant, the brief filed by the
State, and the applicable law, we affirm the judgment of the trial court.

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

THOMAS T. WOODALL , J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER , J.,
joined. JOSEPH M. TIPTON, J., concurs in results only.

George Thurman Haynie, Jr., Nashville, Tennessee, pro se (on appeal); and J. Todd Faulkner,
Nashville, Tennessee (at trial).

Paul G. Summers, Attorney General and Reporter; Gill Robert Geldreich, Assistant Attorney
General; Ronald L. Davis, District Attorney General; and Derek K. Smith, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                    Background Information

        Pursuant to a negotiated plea agreement, Petitioner pled guilty as charged to one count of
Class D felony passing of a worthless check, and one count of Class A misdemeanor passing of a
worthless check. The plea agreement with the State was only that Petitioner would be sentenced as
a “persistent” rather than a “career” offender on the felony charge (even though he clearly qualified
to be sentenced as a “career”offender), and that the sentences for these two offenses would be served
concurrently with each other. The length of each sentence, the manner of service, and whether or
not the effective sentence from these two counts would be served consecutive to, or concurrent with
other unserved sentences, would be left to the trial court’s determination. Even though Petitioner
filed a notice of appeal upon the sentence imposed by the trial court, he later voluntarily dismissed
the appeal, and shortly thereafter filed his petition for post-conviction relief. Regarding other
pertinent facts of the underlying prosecution, we adopt, (with some editing), the procedural
background set forth by the post-conviction trial court in its memorandum of law and order
dismissing the petition for post-conviction relief, as follows:

               On August 14, 1998, an agent for Harpeth Ford signed an Affidavit of
       Complaint on an arrest warrant alleging that the Petitioner had passed two bad checks
       at Harpeth Ford on July 27 and July 28, 1998. The Affidavit of Complaint alleged
       that the amount of the checks was $2,286.99 and $319.62. The originals of these
       checks were attached to the affidavit and are included in the Court’s file. (The check
       in the amount of $2,286.99 is check #0748, drawn on an account at First American
       National Bank, dated July 28, 1998, and payable to Harpeth Ford. The check in the
       amount of $319.62 is check #1275, drawn on an account in the name of George T.
       Haynie, d/b/a/ HAYN-CO HOME IMPROVEMENTS. This check is to the order of
       “Harpeth” and lists George T. Haynie as the payor.) Both checks were returned as
       “account closed.”

               On September 23, 1998, with the assistance of the Public Defender’s Office
       for the Twenty-First Judicial District, the Petitioner waived preliminary hearing and
       the case was bound over to the Williamson County Grand Jury. On October 12,
       1999, the Petitioner was indicted by the Williamson County Grand Jury for one count
       of worthless check in an amount over $1,000 (Class D Felony) and a second count
       of misdemeanor bad check (Class A Misdemeanor). On November 6, 1998, the
       Petitioner was appointed the Public Defender’s Office for the Twenty-First Judicial
       District to represent him in the Circuit Court of Williamson County.

               After several review dates were set and the discovery process completed, the
       Petitioner’s case was set for trial on May 12, 1999.

               On May 12, 1999, the Petitioner waived his right to a jury trial and entered
       pleas of guilty to both counts of the indictment. The negotiated plea agreement
       indicated that the Petitioner would plead guilty to passing a worthless check over
       $1,000 and be sentenced as a Range 3 persistent offender, and the Petitioner would
       enter a plea of guilty to the offense of passing a worthless check under $500
       (misdemeanor), with both sentences running concurrently one with the other. All
       additional sentencing issues were left to be determined by the Court at a subsequent
       hearing.

               A full sentencing hearing was held on June 25, 1999, the Honorable Henry
       Denmark Bell presiding. After the sentencing hearing, Judge Bell sentenced the
       Petitioner to nine (9) years with the Tennessee Department of Correction as a Range

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       3 persistent offender in Count 1 and 6 months in Count 2. Pursuant to the negotiated
       plea agreement, the sentences were ordered to be served concurrently one with the
       other. Additionally, Judge Bell ordered that the two sentences run consecutive to the
       Petitioner’s sentence in Davidson County.

               The Petitioner was represented throughout the pendency of this matter in the
       Circuit Court of Williamson County by John P. Cauley, who at that time was an
       Assistant Public Defender.

                                      Post-Conviction Hearing

        At the post-conviction hearing, the evidence consisted of the testimony of Petitioner; the
testimony of Dan Hyland, an employee of Harpeth Ford; the testimony of John Cauley, Petitioner’s
trial counsel; and the stipulated testimony of certain other witnesses.

        Petitioner asserted during his testimony that his trial counsel, John Cauley, rendered
ineffective assistance of counsel. First, Petitioner claimed that his counsel failed to take steps to
withdraw Petitioner’s guilty plea due to the fact that the assistant district attorney had reneged on
a negotiated plea agreement. Petitioner asserted that the prosecutor had agreed to recommend
probation and repayment of restitution by Petitioner if he pled guilty to both charges. Petitioner
stated that after he pled guilty, his trial counsel informed him that the prosecutor had reneged on the
agreement because the victim did not believe that Petitioner would be able to pay restitution.
According to Petitioner, counsel claimed that “my hands are tied” and that the time period for
withdrawing a guilty plea had expired. However, Petitioner acknowledged during cross-
examination that he signed the plea agreement and stated in open court during the guilty plea hearing
that his actions were voluntary and not the result of force, threats, or promises other than what was
reflected in open court.

        Petitioner also complained that his trial counsel did not subpoena character witnesses who
Petitioner had requested him to subpoena for the sentencing hearing. Specifically, Petitioner asserted
that his trial counsel should have subpoenaed Wanda Jones, Disney Allen, and Victor Moore to
appear and testify at the sentencing hearing.

         Petitioner also asserted that his trial counsel was ineffective because he did not investigate
the case properly to show that the trial court lacked subject matter jurisdiction to impose judgments
of guilt against Petitioner. The crux of this argument by Petitioner is that the case was a civil matter,
and not a criminal case. Petitioner supported this argument by the assertion that when he returned
the “engine core” to Harpeth Ford, after the checks had been returned by the bank because the
accounts were closed, and Harpeth Ford accepted the engine core, that the matter became a
relationship of “debtor-creditor” rather than a criminal matter. Finally, Petitioner admitted during
his testimony that he had been convicted of numerous criminal charges in the past, including forgery,
grand larceny, passing worthless checks, theft, assault, and robbery. He also admitted that his


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probation and parole had previously been revoked on at least two (2) occasions because he had
committed additional criminal offenses while under these forms of release in the community.

        The parties stipulated the testimony of Assistant District Attorney General Derek Smith, the
prosecutor who represented the State in both the original prosecution, and during the post-conviction
proceedings. The stipulation of testimony was that General Smith did not recall agreeing to
recommend minimum sentencing; he was positive that he did not recommend probation. The
stipulated testimony of General Smith also included the fact that he did not renege on any plea
agreement with Petitioner, and that if he had done so, he would have remembered.

         Dan Hyland, an employee of Harpeth Ford, testified that he dealt with Petitioner in the
transactions which resulted in two (2) worthless checks being passed by Petitioner. The check which
led to the felony charge, included an amount of $500.00 of the total amount of $2,286.99, for a “core
charge.” Mr. Hyland explained that the manufacturers of rebuilt engines require that an engine core
which is being replaced be turned in at the time of purchase of a rebuilt engine, or in substitution
thereof, $500.00 be paid by the purchaser of the newly rebuilt engine. If the “engine core” is not
available at the time of the initial purchase, but is later brought to Harpeth Ford, the purchaser is
entitled to a refund of $500.00. He acknowledged that after the checks had been returned by the
bank, Petitioner brought an engine core to Harpeth Ford, which was accepted and kept by him.
Petitioner was not given a check for $500.00, because the original checks to pay for the newly rebuilt
engine and other parts had not been paid due to the accounts being closed. Petitioner had received
the newly rebuilt engine and other parts in exchange for him issuing the two checks which
“bounced.”

         Petitioner’s trial counsel, John Cauley, testified that he was appointed to represent Petitioner
in the circuit court level, in his capacity as an Assistant District Public Defender. He did not recall
the State ever offering to recommend minimum sentencing, or probation, in exchange for Petitioner’s
guilty pleas. He also did not recall Petitioner ever requesting that he be allowed to withdraw the
guilty pleas. Counsel acknowledged that although Petitioner provided him with a potential list of
character witnesses for the sentencing hearing, he did not subpoena the witnesses because most of
them were reluctant to testify. He explained that some of the witnesses claimed that Petitioner had
“harmed” them or the witnesses knew people whom Petitioner had “harmed.” One witness told
counsel that “I like [Petitioner], but you don’t want me to testify.” Counsel stated that he did not
think it was wise to subpoena the witnesses who were reluctant to testify, or otherwise expressed an
intention to not testify favorably. He also stated that he did not subpoena Petitioner’s close family
because he had asked them to come and expected them to appear at the sentencing hearing.

        Counsel testified that he adequately investigated the Petitioner’s case. Importantly, counsel
stated that until a short period of time prior to the scheduled trial, Petitioner had maintained that the
checks had been stolen from him and passed by someone else. Just before trial, Petitioner admitted
that he had passed the checks to Harpeth Ford. Counsel further testified that in his opinion, the fact
that Petitioner returned the engine core and received $500.00 credit was not relevant to the criminal
case. He felt that Petitioner would still be criminally liable for passing the worthless checks.

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                                            ANALYSIS

        In order to obtain post-conviction relief, a petitioner must allege that his conviction or
sentence is void or voidable because of an abridgement of a constitutional right. Tenn. Code Ann.
§ 40-30-203 (1997). If granted an evidentiary hearing, Petitioner has the burden of proving his
allegations by clear and convincing evidence. Id. § 40-30-210(f). Findings of fact and conclusions
of law made by the post-conviction court are afforded the weight of a jury verdict. See Tidwell v.
State, 922 S.W.2d 497, 500 (Tenn. 1996). Thus, this Court is bound by those findings unless the
evidence contained in the record preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461
(Tenn. 1999). This court’s application of the facts, however, is de novo without any presumption
of correctness. See id.

        Our examination of the post-conviction court's decision is constrained by three fundamental
rules of appellate review. First, this Court cannot reweigh or reevaluate the evidence, nor may this
Court substitute its inferences for those drawn by the trial judge. See Black v. State, 794 S.W.2d
752, 755 (Tenn. Crim. App. 1990). Second, any questions regarding the credibility of the witnesses,
the weight and value to be given to their testimony, and the factual issues raised by the evidence are
to be resolved by the trial judge. See id. Third, Petitioner bears the burden of proof, and must show
why the evidence in the record preponderates against the judgment entered by the post-conviction
court. See id.

        The above standards are slightly modified when the claim for relief is ineffective assistance
of counsel. In Burns, our Supreme Court held that a claim of ineffective assistance of counsel raised
on direct appeal raises mixed questions of law and fact, and thus is subject to a de novo review. 6
S.W.3d at 461. The de novo review of a trial court’s factual findings by an appellate court are
entitled to a presumption of correctness, which is overcome only when the preponderance of the
evidence is contrary to the trial court’s findings of fact. See Fields v. State, 40 S.W.3d 450, 458
(Tenn. 2001). A defendant alleging ineffective assistance of counsel must prove the allegations of
fact underlying his claim by clear and convincing evidence. See Tenn. Code Ann. § 40-30-210(f);
Fields, 40 S.W.3d at 458. This standard of proof is required regardless of whether a petitioner is
bringing the claim in a direct appeal or a post-conviction petition. See Burns, 6 S.W.3d at 461 n.5.

       We will now address each of the nine (9) issues raised by Petitioner in this appeal.

       Issue #1: Whether the court erred by finding that the trial court had subject matter
jurisdiction to adjudicate the case.

        The crux of Petitioner’s argument is that this case became a civil case when Harpeth Ford
accepted the engine core from Petitioner after the two checks had been returned from the bank
marked “account closed.” Therefore, according to Petitioner, the Williamson County Circuit Court
did not have subject matter jurisdiction to enter a judgment against Petitioner in the two criminal
counts. We disagree. In support of his argument, Petitioner relies upon Jones v. State, 197 Tenn.
667, 277 S.W.2d 371 (1955). His reliance is misplaced. In Jones, the defendant was convicted of

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two counts of passing worthless checks. The proof showed that between the time that the defendant
passed the first check and the occasion of passing the second check, the first check was returned to
the victim by the bank because of insufficient funds. Since the victim was put on notice that there
were not sufficient funds for the first check, there was a lack of proof of fraudulent intent by the
defendant when the victim accepted the second check. The supreme court concluded, therefore,
under the standard of review then applicable, that the preponderance of the evidence was in favor
of the defendant, and the conviction for passing the second worthless check had to be reversed. In
Petitioner’s case, there was no notice to the victim, Harpeth Ford, that the accounts were closed at
the time either check was passed by Petitioner to the victim.

       Petitioner also relies upon the case of Dishmon v. Shelby State Community College, 15
S.W.3d 477 (Tenn. Ct. App. 1999), in support of his argument that the Circuit Court of Williamson
County did not have subject matter jurisdiction to enter judgment against him in the criminal case.
Again, Petitioner’s reliance is misplaced. In Dishmon, the court of appeals held as follows:

                The concept of subject matter jurisdiction involves a court’s power to
        adjudicate a particular type of controversy. See Meighan v. U.S. Sprint
        Communications Co., 924 S.W.2d 632, 639 (Tenn. 1996); Turpin v. Conner Bros.
        Excavating Co.,761 S.W.2d 296, 297 (Tenn. 1988). Courts derive their subject
        matter jurisdiction from the Constitution of Tennessee or from legislative act, see
        Kane v. Kane, 547 S.W.2d 559, 560 (Tenn. 1977); Brown v. Brown, 198 Tenn. 600,
        618-19, 281 S.W.2d 492, 501 (1955), and cannot exercise jurisdictional powers that
        have not been conferred directly on them expressly or by necessary implication. See
        Hicks v. Hicks, No. 01A01-9309-CH-00417, 1994 WL 108896, at *2 (Tenn. Ct. App.
        Mar. 30, 1994) (No Tenn. R. App. P. 11 application filed).

Id. at 480.

       Tennessee Code Annotated section 16-10-102 explicitly provides that the circuit court has
exclusive original jurisdiction of all crimes and misdemeanors, either at common law or by statute.
See State v. Booher, 978 S.W.2d 953, 597 (Tenn. Crim. App. 1997).

        Petitioner’s entire argument on this issue essentially asserts that, in his opinion, the State did
not have sufficient evidence to prove that he committed the criminal acts of passing two worthless
checks. Attacks upon the sufficiency of the evidence are not available to obtain post-conviction
relief. See Cole v. State, 798 S.W.2d 261, 264 (Tenn. Crim. App. 1990).

        Clearly, the Circuit Court of Williamson County had subject matter jurisdiction to resolve
a criminal case wherein the grand jury of Williamson County had charged Petitioner with two counts
of violation of the bad check law. The fact that Petitioner considered the matters to be civil, rather
than criminal, did not remove the subject matter jurisdiction of the Williamson County Circuit Court.
Petitioner is not entitled to relief on this issue.


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      Issue #2: Whether the Circuit Court erred by not finding that the victim’s agent,
Suzanne Grambling, who filed the affidavit of complaint in support of the arrest warrant on
August 14, 1998, filed a false complaint, procuring a malicious prosecution against Petitioner.

         First, we note that even if it could be proven that an alleged victim of a crime intended to
initiate a malicious prosecution, that, in itself, would not be grounds for granting post-conviction
relief. Second, a conviction in an underlying criminal prosecution is a complete defense and a bar
to a malicious prosecution suit. See Sherrod v. Piedmont Aviation, Inc., 516 F. Supp. 39, 42 (1978);
Sadek v. Nashville Recycling Co., 751 S.W.2d 428 (Tenn. Ct. App. 1988). Third, Petitioner was
indicted by the Williamson County grand jury and any defect in an arrest warrant is cured by the
return of an indictment. See State v. Campbell, 641 S.W.2d 890, 893 (Tenn. 1982). Finally,
Petitioner did not present evidence in support of this issue at the post-conviction hearing. Thus,
Petitioner failed to carry the burden of proving this allegation of fact by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-210(f) (1997). Furthermore, issues not raised in the trial
court cannot be raised for the first time on appeal. See Simpson v. Frontier Community Credit
Union, 810 S.W.2d 147, 153 (Tenn. 1991). Petitioner is not entitled to relief on this issue.

       Issue #3: Whether the court erred by not dismissing the conviction and sentence in case
#I-1098-329, [the convictions being attacked on post-conviction] at the PCR evidentiary
hearing on April 27, 2001, finding that Petitioner’s constitutional right prohibiting
imprisonment for civil debt, has been violated under Article I, Section 18 of the Constitution
of Tennessee.

       Issue #4: Whether [the presiding judge at the post-conviction hearing] violated the
Judicial Code of Conduct when he denied Petitioner’s request for relief, after receiving first-
hand testimony from Dan Hyland affirming that Harpeth received and accepted a partial
payment from Petitioner against the worthless check, before criminal complaint was filed.

        Petitioner did not include any separate argument under “Issue #3" in his brief, but instead
argued “Issue #3" with “Issue #4.” Regarding “Issue #3,” there is a total lack of evidence in the
record to support Petitioner’s assertion that he was imprisoned for a civil debt, in violation of Article
I, Section 18 of the Constitution of Tennessee. Furthermore, Petitioner’s implication that he would
be entitled to post-conviction relief as a result of an alleged violation of the Code of Judicial Conduct
by the trial judge at the post-conviction hearing is without merit. Accordingly, Petitioner is not
entitled to relief on either “Issue #3" or “Issue #4.”

          Issue #5: Whether [the post-conviction hearing judge] erred by not responding to
Petitioner’s objections or imposing sanctions against the State because of the State’s untimely
response to Petitioner’s post-conviction petition pursuant to Supreme Court Rule 28, Section
(5), (I).

        Petitioner did not present evidence at the post-conviction hearing concerning this issue, and
thus failed to prove this allegation of fact by clear and convincing evidence. See Tenn. Code Ann.

                                                  -7-
40-30-210(f). Furthermore, issues not raised in the trial court can not be raised for the first time on
appeal. See Simpson, 810 S.W.2d at 153.

        Issue #6: Whether [the post-conviction trial court] violated Petitioner’s rights created
under Rule 28 Section 8(B) of the Rules of the Supreme Court when the post-conviction court
failed to conduct the evidentiary hearing within the four-month time limit of the order
scheduling the hearing, and further extending the hearing date, by continuances, more than
sixty days beyond the original hearing date of September 22, 2000.

       Upon our review of the record, and the circumstances under which the continuances were
granted, we conclude that there was no prejudice whatsoever to Petitioner as a result of any
continuances.

         Assuming that the post-conviction court did not comply with the time limits set forth in
Tennessee Rule of the Supreme Court 28, Section 8, this would not entitle Petitioner to be granted
post-conviction relief. Generally, statutory provisions requiring that an act be done within a
specified period of time are directory, rather than mandatory. See State v. Jones, 729 S.W.2d 683,
685 (Tenn. Crim. App. 1986). In the post-conviction setting, there is no indication at all that the
legislature, or the Tennessee Supreme Court, intended for a petitioner to be granted post-conviction
relief simply because of non-compliance of performing an act within a certain time limit. See
Warren v. State, No. 03C01-9610-CR-00407 (Tenn. Crim. App., Knoxville, Jan. 23, 1998), perm.
to app. denied (Tenn. Nov. 2, 1998). Accordingly, Petitioner is not entitled to relief on this issue.

       Issue #7: Whether the post-conviction court and the assistant district attorney general
representing the State in the post-conviction hearing violated Tennessee Supreme Court Rule
28, Section 7, Tennessee Code Annotated section 40-30-209, and Tennessee Rule of Criminal
Procedure 16 when there was a failure to comply with Petitioner’s motion for discovery and
production of documents.

         There was no assertion of this issue at the post-conviction hearing. Thus, the issue was not
raised at the post-conviction hearing. Again, issues not raised in the trial court cannot be raised for
the first time on appeal. See Simpson, 810 S.W.2d at 153. Accordingly, Petitioner is not entitled
to relief on this issue.

       Issue #8: Whether the assistant district attorney general violated the Petitioner’s
constitutional right to due process and violated the Code of Professional Responsibility by not
notifying the court of the State’s receipt of exculpatory evidence.

       Again, this issue was not presented in the trial court and can not be raised for the first time
on appeal. See Simpson, 810 S.W.2d at 153. Accordingly, Petitioner is not entitled to relief on this
issue.



                                                 -8-
       Issue #9: Whether the trial court erred by not finding that Petitioner was denied his
constitutional right to effective assistance of counsel.

       In this issue, Petitioner lists in his brief, fourteen reasons that support his assertion that he
received ineffective assistance of counsel. They are as follows:

         (1)    Counsel did not investigate the facts and the law that were in existence when the
                action was filed.
         (2)    Counsel failed to interview any of the witnesses who the State had subpoenaed to
                testify against Petitioner.
         (3)    Counsel failed to do any legal research of the facts that were available.
         (4)    Counsel failed to conduct an independent investigation.
         (5)    Counsel failed to confer with Petitioner about any of the facts of the case, prior to the
                scheduled date for the jury trial, even though he had been appointed to represent
                Petitioner approximately five months prior thereto.
         (6)    Counsel failed to interview Petitioner’s business partner, who happened to be
                Petitioner’s father, or subpoena him to testify at the penalty phase of the hearing.
         (7)    Counsel failed to issue subpoenas for the witnesses whose names were given to him
                by Petitioner, who would have provided evidence relevant to the request for
                alternative sentencing.
         (8)    Counsel made a recommendation to Petitioner to enter guilty pleas without first
                performing an investigation of the facts or researching the law in preparation of a
                valid defense for the Petitioner.
         (9)    Counsel failed to notify the court of Petitioner’s request, prior to the sentencing
                hearing, to withdraw the guilty pleas.
        (10)    Counsel did not discuss any potential strategies or tactical decisions with Petitioner.
        (11)    Counsel did not file any pre-trial motions for orders requiring handwriting exemplars
                and for a line-up, as requested by Petitioner.
        (12)    Counsel failed to notify the trial court of the district attorney’s withdrawal of an offer
                to recommend probation and restitution in return for guilty pleas.
        (13)    Counsel failed to conduct any interviews with Petitioner’s family, past employers,
                church members, friends, or any others in preparation for the sentencing hearing.
        (14)    Counsel failed to investigate to uncover mitigating evidence to be presented by
                Petitioner in support of a request for alternative sentencing.

         Petitioner specifically asserts in his argument, that his counsel was ineffective because he did
not present proof to show that the trial court did not have subject matter jurisdiction. We have
determined that the trial court did have subject matter jurisdiction, and therefore, it cannot be said
that trial counsel rendered ineffective assistance of counsel by not addressing this issue.

        The post-conviction court filed a detailed findings of fact in its memorandum denying the
petition for post-conviction relief. We have carefully reviewed the record regarding all of the
allegations made by Petitioner that assert ineffective assistance of counsel. The testimony of trial

                                                   -9-
counsel, along with other parts of the record, including the sentencing hearing and the guilty plea
hearing, contradict the testimony of Petitioner at his post-conviction hearing. The trial court
accordingly did not credit the testimony of Petitioner on the issue of ineffective assistance of
counsel. Our review of the record compels us to conclude that Petitioner is not entitled to relief on
this issue.

                                          CONCLUSION

        Having reviewed the record, we conclude that Petitioner is not entitled to relief on any of the
issues presented on appeal, and accordingly, the judgment of the post-conviction court is affirmed.


                                                        ___________________________________
                                                        THOMAS T. WOODALL, JUDGE




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