         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs October 5, 2004

                STATE OF TENNESSEE v. KENNY LYNN EVANS

                        Appeal from the Circuit Court for Dyer County
                               No. C02-86    Lee Moore, Judge



                   No. W2003-03083-CCA-R3-PC - Filed January 21, 2005


The petitioner, Kenny Lynn Evans, appeals the dismissal by the Dyer County Circuit Court of his
petition for post-conviction relief. On appeal, the petitioner argues that he was denied the effective
assistance of counsel at trial. After review of the record, we affirm the denial of post-conviction
relief.

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

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

Thomas H. Strawn, Dyersburg, Tennessee, for the Appellant, Kenny Lynn Evans.

Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General; and
C. Phillip Bivens, District Attorney General, for the Appellee, State of Tennessee.

                                             OPINION

               The petitioner stands convicted of one count of second degree murder and one count
of aggravated burglary, and he is serving an effective sentence of 40 years. Originally, the petitioner
was charged with premeditated first degree murder, felony murder, attempted first degree murder,
and aggravated robbery. Pursuant to negotiations with the state, the petitioner entered guilty pleas
on September 24, 2002, to the reduced charges and accepted Range II offender status for sentencing.

              The facts underlying the petitioner’s plea appear in the transcript of his plea
submission, which is before us. In February 2002, the petitioner and another man conspired to steal
weapons from a licensed firearms dealer, James Finley, and to sell the weapons to a third person
who, unbeknown to the thieves, was a confidential informant working with the Dyersburg Police
Department. On February 21, 2003, the petitioner, armed with an automatic revolver, and two
accomplices met briefly with the buyer and then drove to Mr. Finley’s residence and entered the
residence. Mr. Finley and Mickey Petty were home at the time. During the course of the attempted
robbery, the petitioner fatally shot Mr. Finley; Mr. Petty fled the scene and was able to summon help.

              The petitioner and his accomplices returned empty handed to the residence where the
buyer/informant was waiting. The petitioner then robbed the buyer/informant at gunpoint and fled.
He was quickly apprehended and arrested.

                On September 9, 2003, the petitioner filed a pro se petition for post-conviction relief.
Counsel was appointed, and an evidentiary hearing was conducted on December 5, 2003. As
grounds for post-conviction relief, the petitioner maintained that trial counsel’s representation was
constitutionally ineffective. The petitioner testified that shortly after his arrest, he was questioned
by investigators with the Dyer County Sheriff’s Department. The petitioner claimed that the
investigators “knocked [him] out of [his] chair and they beat [him] up pretty bad,” and the men told
him that he needed to make a statement. In connection with the beating, the petitioner said that the
investigators shocked him with a stun gun, spat on him, hit him in the face, and kicked him in the
chest.

                According to the petitioner, he advised his appointed counsel of the abusive treatment
and asked counsel to take photographs of his injuries. The petitioner testified that he asked two of
the attorneys to bring a camera to document his injuries, but no photographs were ever taken.

               The petitioner also claimed that his counsel ignored his request to seek a change of
venue based on pretrial publicity. The petitioner said that one of the attorneys told him “that it just
really wasn’t no use of even doing it.” The petitioner also wanted counsel to set a hearing to seek
the suppression of evidence that the state intended to introduce, particularly the audio tapes of his
confession to the investigators. The petitioner said that, at the time of trial, he was under the
impression that the evidence had been suppressed, although he never attended a suppression hearing.

                 When a plea was finally discussed with counsel, the petitioner said that it was his
understanding that he would enter a best-interests plea. The petitioner testified that the plea was in
his best interests to avoid greater punishment, including possibly the death penalty. The petitioner
said that, at the plea submission, he balked at agreeing that he was the person who shot Mr. Finley.
The petitioner recalled an earlier meeting with prosecution counsel, during which the petitioner was
told that he must answer the questions at the plea submission a certain way to “get the deal.”

                Last, the petitioner complained that it appeared to him “that the Public Defender’s
Office, you know, was probably intimidated by the, you know, the District, the District Attorney’s
Office,” such that fighting his case “to the fullest” might somehow damage his attorneys’ reputation
or ruin their careers.

               On cross-examination, the petitioner admitted that, completely independent from his
confession to the investigators, the state had numerous witness statements and other evidence
showing his involvement in the shooting and robbery. The state also pointed out that although the


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petitioner claimed that his confession was coerced and that the investigators told him what to say,
the petitioner told the investigators that what happened was an accident and blamed another person.
The petitioner responded by claiming that he made the statement “out of fear.”

               To rebut the petitioner’s testimony, the state presented testimony first from
Investigator Terry McCreight, who was involved in questioning the petitioner. Investigator
McCreight flatly denied ever abusing or coercing the petitioner and denied coaching the petitioner
about what to say in his statement. Investigator McCreight related other evidence that the police had
gathered showing the petitioner’s guilt, including eyewitness testimony from Mr. Petty, statements
from one of the co-defendants that the petitioner shot Mr. Finley, the murder weapon that was
recovered from the petitioner’s vehicle, and eyewitness testimony that the petitioner later robbed the
buyer/informant.

                 The second witness for the state was attorney James Lanier, who was part of the
defense team representing the petitioner. Mr. Lanier denied that the petitioner ever complained of
police mistreatment. Regarding the petitioner’s statements to law enforcement, Mr. Lanier explained
that the petitioner took the position that the shooting was an accident. In other words, the statements
that the petitioner wanted suppressed were “actually self-serving.” Mr. Lanier said that he spoke at
length with the petitioner about the poor prospects of having the jury accept that the shooting was
accidental, particularly in light of other state evidence. Nevertheless, Mr. Lanier left to the petitioner
the ultimate decision whether to plead or proceed to trial.

                The petitioner, according to Mr. Lanier, was willing to plead guilty if the state would
offer second degree murder. After considerable negotiations with the state, Mr. Lanier secured such
an agreement from the state under the condition that the petitioner plead outside the range. Before
the plea was entered, Mr. Lanier and prosecution counsel met privately with the petitioner. Mr.
Lanier recalled that the “main gist” of the meeting was for the state to find out what the petitioner
would say about his co-defendant who was still facing charges. Mr. Lanier flatly denied that anyone
ever “put words” in the petitioner’s mouth or told him what to say. Mr. Lanier did, however, explain
to the petitioner what type of questions that the court would ask during the plea submission.

               On cross-examination, Mr. Lanier testified that he never saw any signs that the
petitioner had been injured. Mr. Lanier talked many times to Investigator McCreight about
discovery, but nothing prompted Mr. Lanier to inquire whether the petitioner’s statements had been
coerced, particularly because in his statements the petitioner was more or less debating with the
investigators and trying to convince them that the shooting was accidental.

                Regarding a change of venue for trial, Mr. Lanier thought the issue might have been
discussed, but counsel collectively decided insufficient grounds existed pretrial to challenge venue.
The plan was to wait until trial and then re-evaluate the issue in light of jury selection. As for
suppression issues, Mr. Lanier testified that based upon their investigation of the evidence and the
evident chain of custody, no viable suppression issues were presented.



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              In concluding its proof, the state briefly recalled the petitioner and established that
he was familiar with the questions posed during his plea submission inasmuch as he had pleaded
guilty numerous times in the past.

                Based on the testimony presented, the post-conviction court ruled that the petitioner
had not carried his burden to show ineffective assistance of counsel. The court found that the
petitioner’s “allegations just simply are not credible.” In particular, the court noted that there was
no credible evidence that the petitioner had been coerced into making a confession. The court also
found no basis existed to conclude that the petitioner’s plea was involuntary; the court noted that
because of the plea, the petitioner received a substantially shorter sentence than he otherwise faced
at trial. Accordingly, the court dismissed the post-conviction petition. Aggrieved by this ruling, the
petitioner has appealed.

               Our review convinces us that the post-conviction court’s rulings should be affirmed.

                The law is settled that the post-conviction petitioner bears the burden of establishing,
at the evidentiary hearing, his allegations by clear and convincing evidence. Tenn. Code. Ann. §
40-30-110(f) (2003). Evidence is clear and convincing when there is no serious or substantial doubt
about the correctness of the conclusions drawn from the evidence. Hodges v. S.C. Toof & Co., 833
S.W.2d 896, 901 n.3 (Tenn. 1992). An appellate court is bound by the trial court’s findings of fact
unless we conclude that the evidence in the record preponderates against those findings. Black v.
State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).

                 When a post-conviction petitioner seeks relief on the basis of ineffective assistance
of counsel, he must 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). Also, he must show that the deficiencies “actually had an adverse effect on the defense.”
Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 2067 (1984). Should the petitioner
fail to establish either factor, he is not entitled to relief. See id. at 697, 104 S. Ct. at 2069.

                In sum, a defendant is not entitled to perfect representation, only constitutionally
adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other
words, “in considering claims of ineffective assistance of counsel, ‘we address not what is prudent
or appropriate, but only what is constitutionally compelled.’” Burger v. Kemp, 483 U.S. 776, 794,
107 S. Ct. 3114, 3126 (1987) (quoting United States v. Cronic, 466 U.S. 648, 655 n.38, 104 S. Ct.
2039, 2050 n.38 (1984)).

               Measured by these standards, it is readily apparent that the petitioner failed to carry
his burden, and the evidence in the record certainly does not preponderate against the post-conviction
court’s findings. The court specifically found that the petitioner’s allegations were not worthy of
belief, and the state offered testimony from eminently credible witnesses that directly and un-
equivocally contradicted the petitioner’s claims. On appeal, the petitioner offers nothing new to



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persuade us to disturb the trial court’s ruling. The trial court’s credibility determinations are clearly
reasonable and foreclose the need for any prolonged discussion of the issues.

               Consequently, for the foregoing reasons, we affirm the denial of post-conviction relief
and the dismissal of the petition.




                                                        ___________________________________
                                                        JAMES CURWOOD WITT, JR., JUDGE




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