         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   November 20, 2008 Session

                        JOE TYREE v. STATE OF TENNESSEE

                   Direct Appeal from the Circuit Court for Marshall County
                            No. 07-CR177     Robert Crigler, Judge



                     No. M2008-01273-CCA-R3-PC - Filed August 21, 2009


The petitioner, Joe Tyree, appeals the denial of his petition for post-conviction relief. The petitioner
submitted a guilty plea to one count of violation of the sex offender registry. On appeal, he contends
that: defense counsel provided ineffective assistance of counsel; his plea was not knowingly and
voluntarily entered; and the post-conviction court failed to comply with the statute that requires the
court to set forth findings of fact and conclusions of law with regard to each issue. After careful
review, we conclude no reversible error exists and affirm the judgment from the post-conviction
court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID H. WELLES and
NORMA MCGEE OGLE , JJ., joined.

Emeterio R. (Terry) Hernando, Lewisburg, Tennessee, for the appellant, Joe Tyree.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General;
Frank Crawford, Jr., District Attorney General; and Weakley E. Barnard, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                               OPINION

         The petitioner entered a guilty plea to one count of violation of the sex offender registry. The
petitioner testified during the post-conviction hearing that he received ineffective assistance of
counsel leading to the entry of his guilty plea. Specifically, he stated that counsel did not investigate
his case and that he believed he was being prosecuted under a defective indictment. The petitioner
testified that he requested the discovery materials both orally and in writing from his counsel and that
he also provided counsel with a list of potential witnesses to call at trial. The petitioner testified that
he told counsel that there were important documents in his truck that could be used at trial. He said
that he did not receive a response to his written inquiries and that, to his knowledge, no one ever
went to check on the documents in his vehicle.
         The petitioner also sent a letter to counsel raising several issues concerning the validity of
the indictment. An attorney with the public defender’s office replied to the petitioner’s letter
concerning the indictment and sent it along with a copy of the discovery materials. The petitioner
testified that he was later charged with aggravated robbery and was also represented by the public
defender’s office on that charge. He believed that, when the aggravated robbery arose, counsel put
the violation of the sex offender registry charge “on the back burner.”

        The petitioner testified that the witnesses he proposed were not investigated or brought to
court on the day of his trial. He contended that counsel did not file pretrial motions because he said
the case was “cut and dried.” The petitioner testified that counsel did not communicate with him
about any possible defenses and that they did not develop any defenses together. Counsel told him
that he would not file any pretrial motions because they would be frivolous. He said that counsel
told him that he could “post-convict” him about his issues with the indictment.

        Counsel testified that he worked with the public defender’s office and was appointed to
represent the petitioner. He said that he met with the petitioner at least four or five times regarding
the violation of the sexual offender registry. He said that his office sent a request to their
investigators to look into the petitioner’s inquiries from his letters and his proposed witnesses. He
said that they could find no record of the truck being impounded and they were unable to make
contact with one of the proposed witnesses. They spoke to the petitioner’s prior landlord, who
confirmed everything that the State’s case alleged. The police became aware that the petitioner
moved without updating his address when they were called to his new residence to investigate an
incident of domestic violence. Counsel testified that he put together a time line of the events and
did not see a need to request a bill of particulars. He said that the time line reflected that the
petitioner had not registered his new address for more than a month.

        Counsel said the initial plea offer was approximately one year and six months as a Range I
offender. The petitioner was actually a Range II or III offender with several prior convictions that
were not in the computer system. Counsel wanted to keep those other convictions from the State.
The petitioner eventually entered a guilty plea to serve one year as a Range I offender. Counsel said
he did not recall advising a client to enter a plea and file a petition for post-conviction relief. He told
the petitioner that he was looking at five to six years at forty-five percent if he went to trial and was
convicted.

        The post-conviction court determined that counsel provided effective assistance to the
petitioner and that the petitioner entered his guilty plea knowingly and voluntarily.

                                                Analysis

       On appeal, the petitioner contends that the post-conviction court improperly determined that
counsel provided effective assistance. Specifically, the post-conviction court determined that:
counsel adequately met with and communicated with the petitioner; counsel properly determined that
there were no defects in the indictment; counsel properly determined that the pretrial motions


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requested by the petitioner were without merit; counsel was not ineffective for failing to tell the
petitioner he had a right to be sentenced by a jury; and the petitioner failed to show that he was
deprived of a fair proceeding.

        When a claim of ineffective assistance of counsel is made under the Sixth Amendment, the
petitioner bears the burden of proving that (1) counsel’s performance was deficient and (2) the
deficiency was prejudicial in terms of rendering a reasonable probability that the result of the trial
was unreliable or the proceedings were fundamentally unfair. Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). This standard has also been applied to
the right to counsel under Article I, Section 9 of the Tennessee Constitution. State v. Melson, 772
S .W.2d 417, 419 n.2 (Tenn. 1989). When a petitioner claims ineffective assistance of counsel in
relation to a guilty plea, the petitioner must prove that counsel performed deficiently, and, but for
counsel’s errors, the petitioner would not have pled guilty but, instead, would have insisted upon
going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985).

       In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court required that the
services be rendered within the range of competence demanded of attorneys in criminal cases. In
reviewing counsel’s conduct, a “fair assessment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland,
466 U.S. at 689, 104 S. Ct. at 2065; see also Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002).

        The petitioner bears the burden of proving by clear and convincing evidence the factual
allegations that would entitle the petitioner to relief. T.C.A. § 40-30-210(f) (2006). This court is
bound by the post-conviction court’s findings of fact unless the evidence preponderates against those
findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001).

       The petitioner raised five areas in which he claimed counsel was deficient. He contends that
counsel improperly advised the petitioner regarding possible defenses and that counsel did not
properly communicate and advise the petitioner, properly investigate the case, file the proper pretrial
motions, and advise the petitioner that he had a right to be sentenced by a jury.

       First, the petitioner contends that counsel failed to properly advise him about the case.
However, the evidence reflects that counsel communicated with the petitioner on several occasions
and participated in plea negotiations with the State during his representation of the petitioner.
Counsel testified that he informed the petitioner that he was facing five or six years at forty-five
percent as a Range III offender if convicted. The post-conviction court found that the petitioner’s
testimony was “extremely vague” and, in turn, accredited the testimony of counsel. The petitioner
merely asserts that counsel did not properly advise him. He has not demonstrated that counsel failed
to meet with and instruct him adequately. This issue is without merit.

       Next, the petitioner contends that counsel failed to properly investigate specific witnesses that
he recommended for his defense. Counsel testified that he tried to find the witness proposed by the


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petitioner. “When a petitioner contends that trial counsel failed to discover, interview, or present
witnesses in support of his defense, these witnesses should be presented by the petitioner at the
evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990); see also Scott
v. State, 936 S.W.2d 271, 273 (Tenn. Crim. App. 1996). As a general rule, this is the only way the
petitioner can establish that (1) a material witness existed who could have been discovered but for
counsel’s negligent investigation of the case; (2) a known witness was not interviewed; (3) the
failure to discover or interview the witness caused him prejudice; or (4) the failure to present a
known witness resulted in the denial of critical evidence which caused the petitioner prejudice.
Black, 794 S.W.2d at 757. Neither the trial court nor this court can speculate on what a witness’s
testimony might have been if introduced by counsel. Id. The petitioner failed to call any such
witnesses at the post-conviction hearing; thus, this issue is without merit.

         Next, the petitioner contends that counsel was ineffective for incorrectly advising him
regarding possible defenses and failing to challenge the validity of the indictment. The post-
conviction court determined that the petitioner failed to demonstrate that counsel was ineffective for
not challenging the validity of the indictment. Defense counsel testified that he did not file pretrial
motions because they would have been without merit. Counsel did not file any motion with regard
to the indictment because he believed that it contained all the pertinent information. He testified that
the defense compiled a time line to reconstruct the events alleged by the State. His review reflected
that the petitioner was in violation of the registration requirements of the sexual offender registry.
Counsel testified that the indictment contained enough evidence that he could prepare for a defense
or that the court could properly enter judgment against the petitioner. The Tennessee Supreme Court
has held that the purpose of an indictment is to provide the defendant with notice of the offense
charged, provide the court with an adequate ground upon which a judgment may be entered, and
provide the defendant with protection against double jeopardy. See State v. Byrd, 820 S.W.2d 739,
741 (Tenn. 1991). Because, as found by the post-conviction court, the indictment in this case did
that, this issue is without merit.

        Next, the petitioner contends that counsel was ineffective for failing to file the pretrial
motions requested by the petitioner. As previously stated, counsel testified that he did not file any
pretrial motions, specifically, a motion for a bill of particulars, because he felt it had no merit.
Counsel testified that he would have filed a bill of particulars if the information contained in the
indictment was not adequate to assist him in preparing a defense. He knew the time line regarding
the period alleged by the State and did not deem a bill of particulars to be necessary. The petitioner
has not demonstrated on appeal that he was prejudiced by counsel’s decision not to request a bill of
particulars nor has he shown that he would have proceeded to trial if the motion had been filed. This
issue is without merit, and the petitioner is entitled to no relief.

        Next, the petitioner argues that counsel was ineffective when he did not advise him that he
had a right to be sentenced by a jury rather than the judge. Specifically, the petitioner argues that the
line of cases beginning with Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000),
including State v. Gomez, 239 S.W.3d 733 (Tenn. 2007), stands for the proposition that a jury, rather
than a judge, must impose a sentence in Tennessee. The State argues on appeal that this is a


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misreading of Gomez II, and we agree. In Gomez II, our supreme court held that a trial court’s use
of enhancement factors based on facts not found by a jury were a violation of a defendant’s Sixth
Amendment right. Gomez II, 239 S.W.2d at 740. The Gomez II decision does not state that a jury
must sentence a defendant; therefore, counsel can not be ineffective for failing to so advise the
petitioner. The petitioner is not entitled to relief on this issue.

         Next, the petitioner argues that his guilty plea was entered involuntarily and unknowingly.
Basically, the petitioner argues that this issue is intertwined with his argument that counsel was
ineffective. The State argues that this issue is waived because the petitioner failed to include a
transcript of the guilty plea hearing. The petitioner bears the burden of preparing a record “that
presents a complete and accurate account of what transpired in the trial court with respect to the issue
on appeal. The failure to do so results in a waiver of such issues and a presumption that the ruling
of the trial court was correct.” State v. Thompson, 958 S.W.2d 156, 172 (Tenn. Crim. App. 1997)
(citing Tenn. R. App. P. 24(b), which requires an appellant to file a transcript of all proceedings at
issue on appeal); see also State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991); State v.
Draper, 800 S.W.2d 489, 493 (Tenn. Crim. App. 1990). Because the petitioner has failed to
introduce a transcript of the hearing, this issue is waived.

       Finally, the petitioner argues that the post-conviction court failed to comply with the
requirements of Tennessee Code Annotated section 40-30-111(b), that requires a court to set forth
findings of fact and conclusions of law. The relevant statute reads:

       Upon the final disposition of every petition, the court shall enter a final order, and
       except where proceedings for delayed appeal are allowed, shall set forth in the order
       or a written memorandum of the case all grounds presented, and shall state the
       findings of fact and conclusions of law with regard to each ground.

T.C.A. § 40-30-111(b) (2006).

        Although this requirement is mandatory, reversal is not always warranted when a trial judge
fails to include written findings of fact and conclusions of law in the order dismissing a post-
conviction petition. State v. Swanson, 680 S.W.2d 487, 489 (Tenn. Crim. App. 1984). The
legislative intent of the statute is to aid the appellate court’s review of post-conviction proceedings.
Id.; George v. State, 533 S.W.2d 322, 326 (Tenn. Crim. App. 1975). Where the court orally
pronounces its findings from the bench, failure to state findings of fact and conclusions of law in the
final order may be harmless error. State v. Higgins, 729 S.W.2d 288, 290-91 (Tenn. Crim. App.
1987).

        In the instant case, the post-conviction court’s order incorporates by reference the oral
findings of fact and conclusions of law that are contained in the record of the post-conviction
hearing. The petitioner has not demonstrated on appeal that he was prejudiced because the trial court
did not issue detailed findings of fact in his written order with regard to each issue raised in his
petition. The petitioner is not entitled to relief on this issue.


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                                         Conclusion

       Based on the foregoing and the record as a whole, we affirm the judgment from the post-
conviction court.




                                                   ___________________________________
                                                   JOHN EVERETT WILLIAMS, JUDGE




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