         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs December 13, 2005

                 DONNIE W. FOULKS v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Greene County
                          No. 01CR223     James E. Beckner, Judge



                       No. E2005-00351-CCA-R3-PC Filed April 7, 2006


The Appellant, Donnie W. Foulks, appeals the judgment of the Greene County Criminal Court
denying post-conviction relief. On appeal, Foulks argues that he was denied his Sixth Amendment
right to the effective assistance of counsel and that his sentencing violated the constitutional mandate
of Blakely v. Washington. After review of the record, we affirm the denial of post-conviction relief.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JAMES
CURWOOD WITT , JR., JJ., joined.

Janie Lindamood, Johnson City, Tennessee, for the Appellant, Donnie W. Foulks.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
and James Goodwin, Assistant District Attorney General, for the Appellee, State of Tennessee.

                                              OPINION

                                        Factual Background

     The procedural history recited by this court in State v. Donnie W. Foulks, No. E2002-00224-
CCA-R3-PC (Tenn. Crim. App. at Knoxville, Oct. 9, 2002), reflects:

               In December 1996, the petitioner was convicted of second degree murder and
       sentenced to twenty-five years in confinement. On August 17, 1998, this court
       affirmed the petitioner's conviction and sentence. State v. Donnie Wayne Foulks, No.
       03C01-9705-CR-00194, 1998 Tenn. Crim. App. LEXIS 864 (Knoxville, Aug. 17,
       1998). Following this court's decision, the petitioner's counsel did not withdraw from
       further representation of the petitioner pursuant to Tennessee Supreme Court Rule
       14 and did not seek to appeal this court's judgment to the supreme court pursuant to
       Rule 11, Tennessee Rules of Appellate Procedure.
               On May 12, 1999, the petitioner filed a pro se petition for post-conviction
       relief and asserted, among other grounds, that his counsel was ineffective for failing
       to notify the petitioner of this court's adverse decision and also for failing to file an
       application for permission to appeal to the supreme court. The post-conviction court
       denied relief and the petitioner timely filed a notice of appeal to this court on July 3,
       2000. This court entered an order on July 2, 2001, which vacated and reentered its
       judgment of August 17, 1998, “for the sole purpose of reinstating the time allowed
       for the petitioner to seek second-tier appellate review in the Tennessee Supreme
       Court.” The order further provided, “[t]he petition for post-conviction relief filed in
       trial court case no. 99CR079 and the remaining claims raised therein shall be
       dismissed without prejudice.” On November 5, 2001, the petitioner's application for
       permission to appeal his conviction was denied by the Tennessee Supreme Court.

                On December 31, 2001, the petitioner filed. . . [a] petition for post-conviction
       relief, alleging ineffective assistance of counsel at trial and on appeal. On January
       11, 2002, the post-conviction court summarily dismissed the instant petition, citing
       Tennessee Code Annotated section 40-30-202(c) and concluding that because the
       petitioner had previously filed a petition for post-conviction relief on May 12, 1999,
       he was precluded from filing the instant petition. Furthermore, the petitioner's
       motion to reconsider was denied on January 18, 2002. The petitioner timely appealed
       the post-conviction court's ruling, alleging that because his first petition for
       post-conviction relief was not decided on its merits, the post-conviction court erred
       in dismissing his second post-conviction petition.

       On October 9, 2002, this court concluded that the trial court erred in summarily dismissing
the Appellant’s claim for relief as his first post-conviction petition was filed for the purpose of
obtaining a delayed appeal of his original conviction and was dismissed without prejudice. The
Appellant filed an amended petition for post-conviction relief on April 28, 2003, focusing primarily
upon the ineffective assistance of appellate counsel. In a supplemental amended petition, the
Appellant alleged that his sentence violated the constitutional requirements of Blakely v.
Washington.

        At the post-conviction evidentiary hearing, the Appellant testified that he met with appellate
counsel’s associate and discussed all possible issues that could be raised on appeal and that he told
the associate that he “wanted everything raised.” He stated that he never delegated decision making
authority to his family. Appellate counsel testified that after the Appellant was convicted of second
degree murder, the Appellant’s family retained him to appeal the case. Along with his associate, he
met with the family and ascertained that they were “most upset with the sentence.” He never met
with the Appellant personally, instead sending his associate. Appellate counsel testified that he
reviewed the motion for new trial but chose to appeal only the sentence. He explained that after

       a reading of the record . . . the transcript was pretty bad on behalf of [the Appellant].
       I felt like there were a lot of circumstances and facts in there, that I guess Judge


                                                 -2-
       Beckner saw, that we thought perhaps maybe not the Court of Appeals (sic) need to
       review all of that before they made their mind up on whether he had made a mistake
       on some other things; so we very carefully, I guess, crafted an appeal based upon the
       sentencing and the way that it was applied and did not appeal the other matters.

Appellate counsel sent the Appellant copies of the briefs and believed that the Appellant and his
family agreed with the appellate strategy. Furthermore, appellate counsel acknowledged that he
failed to notify the Appellant of this court’s adverse decision on direct appeal and failed to seek
permission to appeal the decision to the Tennessee Supreme Court. By written order of January 7,
2005, the Greene County Criminal Court denied post-conviction relief. This appeal followed.

                                               Analysis

I. Ineffective Assistance of Counsel

       The Appellant first argues that appellate counsel was deficient in his representation of the
Appellant on appeal. It is undisputed that a criminal defendant is guaranteed the effective assistance
of appellate counsel as of right. The effectiveness of appellate counsel’s representation is
determined on appeal using the same standards as applied to trial counsel.

        To succeed on a challenge of ineffective assistance of counsel, the Appellant bears the burden
of establishing the allegations set forth in his petition by clear and convincing evidence. T.C.A. §
40-30-110(f) (2003). The Appellant must demonstrate that counsel’s representation fell below the
range of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). Under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984),
the Appellant must establish (1) deficient performance and (2) prejudice resulting from the
deficiency. 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).

        It is unnecessary for a court to address deficiency and prejudice in any particular order, or
even to address both if the petitioner makes an insufficient showing on either. Strickland, 466 U.S.
at 697, 104 S. Ct. at 2069. In order to establish prejudice, the petitioner must establish a “reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999) (quoting Strickland, 466 U.S. at 694, 104
S. Ct. at 2068) (citations omitted).

        On appeal, the Appellant argues that he was denied his Sixth Amendment right to counsel
because appellate counsel “failed to adequately communicate with [the Appellant] and failed to raise
issues on appeal that would likely have resulted in relief for [the Appellant].” Our review of the
Appellant's argument is two-fold. First, we must consider whether appellate counsel's failure to raise


                                                  -3-
issues represents deficient performance. We preface our inquiry with the observation that counsel's
choices, as to the issues to raise on appeal, are generally entitled to substantial deference. Strickland,
466 U. S. 689, 104 S. Ct. At 2065. Our supreme court has stated that counsel on appeal has no
obligation to raise every conceivable argument which might be made. Carpenter v. State, 126
S.W.3d 879, 887 (Tenn. 2004) (citing King v. State, 989 S.W.2d 319, 334 (Tenn. 1999)). Clearly,
counsel cannot be considered ineffective for failing to raise issues that are meritless.
“[I]neffectiveness is very rarely found in cases where a defendant asserts that appellate counsel failed
to raise an issue on direct appeal, primarily because the decision of what issues to raise is one of the
most important strategic decisions to be made by appellate counsel.” Kennath Henderson v. State,
No. W2003-01545-CCA-R3-PD (Tenn. Crim. App. at Jackson, June 28, 2005).

        Second, the Appellant is required to demonstrate prejudice due to appellate counsel's error.
In order to establish prejudice, the Appellant must show that had appellate counsel raised the issue
or issues asserted, there is a reasonable probability that his conviction would have been reversed.
Thus, we are required to examine the merits of the issues which were not raised by appellant counsel
on appeal. Carpenter, 126 S.W.3d at 887.

        On appeal, the Appellant argues that appellate counsel’s failure to raise “eighteen issues of
error,” contained in the Appellant's motion and amended motion for new trial, constituted deficient
appellate performance. The Appellant follows with the bald assertion that raising these issues on
appeal “would likely have resulted in relief.” The Appellant offers no argument, nor does he cite
to any authority in support of this position of deficient performance. It is the Appellant’s burden to
prove, by clear and convincing evidence, that the issues which were not raised on appeal had merit
and that if they had been raised on appeal, there is a reasonable probability that the murder
conviction would have been reversed. Because the Appellant has failed to carry this burden, this
issue is without merit.

        Moreover, with regard to the Appellant's argument that appellate counsel was ineffective for
failing to communicate, resulting in the Appellant's forfeiture of supreme court review of his
conviction, we, likewise, conclude that this issue is without merit. The Appellant, through the
delayed appeal provisions of the Post-Conviction Procedure Act, see T.C.A. § 40-30-113 (2003), did
obtain permission to appeal this court's adverse decision to the Tennessee Supreme Court.
Accordingly, no prejudice resulted.

II. Blakely v. Washington

        The Appellant argues that the trial court’s application of enhancement factors to increase the
length of his sentence beyond the statutory minimum violated his “Constitutional right to a
determination of guilt beyond a reasonable doubt” as required by Blakely v. Washington, 542 U.S.
296, 124 S. Ct. 2531 (2004). This court has previously held that retrospective application of the rule
announced in Blakely to cases on collateral review is not required. See, e.g., Patrick C. Parks v.
State, No. M2004-2524-CCA-R28-CO (Tenn. Crim. App. at Nashville, Mar. 21, 2005); Issac Herron
v. State, No. W2004-02533-CCA-R28-PC (Tenn. Crim. App. at Jackson, Nov. 22, 2004). More


                                                   -4-
importantly, our supreme court in State v. Gomez, 163 S.W.3d 632, 650-51 (Tenn.), reh’g denied,
(2005), concluded that Blakely has no application to Tennessee's 1989 Sentencing Reform Act.
Moreover, in Gomez, our supreme court specifically held that “Blakely did not announce a new rule,”
thus, precluding retroactivity to a final conviction. Id. at 649-50. Accordingly, this issue is without
merit.
                                            CONCLUSION

       Based upon the foregoing, we affirm the dismissal of the Appellant's petition for post-
conviction relief by the Greene County Criminal Court.



                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE




                                                 -5-
