         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE           FILED
                         NOVEMBER 1997 SESSION
                                                       December 23, 1997

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk
ALLEN GARY LORD                      )
aka GARY ALLEN LORD,                 )
                                     ) C.C.A. No. 03C01-9610-CR-00384
      Appellant,                     )
                                     ) Hamilton County
V.                                   )
                                     ) Hon. Douglas A. Meyer, Judge
STATE OF TENNESSEE,                  )
                                     )
      Appellee.                      ) (Post-Conviction)
                                     )
                                     )




FOR THE APPELLANT:                   FOR THE APPELLEE:

Neal L. Thompson                     John Knox Walkup
615 Lindsay Street, Suite 150        Attorney General & Reporter
Chattanooga, TN 37403
                                     Michael J. Fahey, II
                                     Assistant Attorney General
                                     450 James Robertson Parkway
                                     Nashville, TN 37243-0493

                                     William H. Cox, III
                                     District Attorney General

                                      Yolanda Mitchell
                                      Assistant District Attorney General
                                      Courts Building, Suite 300
                                      Chattanooga, TN 37402




OPINION FILED: _______________________


AFFIRMED


PAUL G. SUMMERS,
Judge




                                 OPINION
       The appellant, Allen Gary Lord, alias Gary Allen Lord, appeals the denial

of his request for post-conviction relief. The appellant was convicted in March

1993 of second degree murder and abuse of a corpse. He was sentenced to

consecutive sentences of twenty-two years for murder and six years, as a career

offender, for abuse of a corpse. On direct appeal this Court affirmed his

convictions. In 1996, the post-conviction court denied the request for relief.



       The appellant presents four issues for our review: (1) whether his attorney

was ineffective during the guilt phase of his trial; (2) whether his attorney was

ineffective during his sentencing hearing; (3) whether the appellant was

improperly classified as a career offender because the sentencing statute is

unconstitutionally vague; and (4) whether the reasonable doubt jury instruction is

unconstitutional. We affirm.



       In his first issue, the appellant asserts that his attorney was ineffective at

the guilt phase of his trial. His argument is threefold: that his attorney failed to

research the law regarding the abuse of a corpse charge, failed to show the

violent past of the victim, and failed to call as a witness the police officer the

victim had kidnapped.



       The state argues that the appellant’s attorney was not ineffective at the

guilt phase of the trial. First, the state asserts that the appellant’s attorney

researched the law and discussed with the coroner his findings. Therefore, the

state maintains that the appellant’s attorney investigated the issue “to the

furthest possible extent.” Second, the state contends that the appellant’s

attorney elicited “most of the victim’s past behavior and crimes through the

victim’s girlfriend,” and also brought out that the victim had spent a substantial

amount of time in prison. Finally, the state asserts that the appellant’s attorney

chose not to call the police officer as a witness because he did not believe that



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the officer would be a favorable witness for the appellant and because he

believed that the victim’s girlfriend’s version of the facts were more favorable to

the appellant’s case than the officer’s version would have been.



       To be granted relief on the ground of ineffective assistance of counsel, an

appellant must establish that the advice given or the services rendered were not

within the competence demanded of attorneys in criminal cases and that, but for

counsel’s deficient performance, the result of his or her trial would have been

different. Strickland v. Washington, 466 U.S. 668 (1984). In Tennessee, the

appropriate test is whether counsel’s performance was within the range of

competence demanded of attorneys in criminal cases. Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975).



       In post-conviction proceedings, petitioners bear the burden of proving

their allegations by a preponderance of the evidence. Black v. State, 794

S.W.2d 752, 755 (Tenn. Crim. App. 1990); McBee v. State, 655 S.W.2d 191,

195 (Tenn. Crim. App. 1983). Furthermore, the trial court’s findings of fact in

post-conviction hearings are conclusive on appeal unless the evidence

preponderates against those findings. Butler v. State, 789 S.W.2d 898, 899

(Tenn. 1990); State v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983);

Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).



       Based upon the record before us, the appellant’s trial attorney attempted

to accomplish what the appellant now complains about in his brief. It appears

that the appellant’s trial attorney prepared the best defense strategy for the

appellant that he could, given the facts of the case. This Court finds that the

appellant has failed to carry the burden of establishing that his attorney was

ineffective. The evidence does not preponderate against the post-conviction

court’s findings. This issue is without merit.




                                         -3-
       In his second issue, the appellant argues that his trial attorney was

ineffective at the sentencing phase. He asserts that his attorney failed to

introduce medical records at sentencing which would have mitigated his

sentence. Before his arrest in the victim’s death, the appellant on September 26,

1992 filed a complaint against police officers for shooting him. At the time, the

appellant was at Erlanger Hospital for treatment of a cut on one of his fingers.

He was subsequently arrested because he was intoxicated and because he was

hostile toward police officers. On September 27, 1992, the appellant was taken

to Moccasin Bend Mental Health Institute because of his arrest and his behavior.

Five days later he left Moccasin Bend and that same day gave a statement to the

police about the murder.



       The state argues that the appellant’s trial attorney was not ineffective at

the sentencing phase. In its brief, the state asserts that appellant’s trial attorney

did review the medical records from Moccasin Bend; and although he did not

interview the appellant’s two doctors, both doctors at Moccasin Bend indicated in

their reports “that Lord presented no psychosis.” The appellant’s trial attorney

maintained that the medical records did not show a diminished capacity or

support a mitigated sentence. However, the appellant contends that his trial

attorney never reviewed these medical records “until the day of the Post-

Conviction trial.” Furthermore, the state argues that on direct appeal, this Court

noted that consecutive sentencing was based on the trial court’s finding that the

appellant had an extensive criminal history and was a dangerous offender.

Thus, the state maintains that had these medical records been introduced,

consecutive sentencing would still have been warranted.



       The appellant’s trial attorney testified at the post-conviction hearing that

the appellant’s defense was self-defense, not insanity. Furthermore, this Court

noted on direct appeal that consecutive sentencing was based on the appellant’s

criminal record and status as a dangerous offender. The appellant has failed to



                                         -4-
carry the burden of proving that his trial attorney was deficient. This issue is

without merit.



       In his third issue, the appellant argues that Tenn. Code Ann. §§ 40-35-

108 and 117 (1990) are unconstitutional. He contends that Tenn. Code Ann.

§ 40-35-108(b)(2) (1990) is “so vague that men of common intelligence must

necessarily guess as to its meaning and differ as to its application.” Also, he

challenges Tenn. Code Ann. § 40-35-117(c) (1990) as ambiguous “by inferring

that all crimes committed prior to July 1, 1982, shall not be included in

determining the classification of a defendant under the 1989 Sentencing Act.”

Therefore, the appellant’s argument is that his pre-1982 convictions should not

have been used to classify him as a career offender.



       The state, however, argues that Tenn. Code Ann. § 40-35-108(b)(2) is

clear that “[a]ll prior felony convictions including those occurring prior to

November 1, 1989, are included” in calculating whether a defendant is a career

offender. Furthermore, the state in its brief notes that this Court has interpreted

the statute based on its clear meaning: “There appears to be no doubt that the

legislature intended to permit consideration of all prior felony convictions

occurring during the defendant’s life.” State v. Wright, 836 S.W.2d 130, 136

(Tenn. Crim. App. 1992). Therefore, the state maintains that the language in the

statute is clear and that the appellant was properly classified as a career

offender.




       We agree with the state that the statutes challenged by the appellant

clearly indicate that all felony convictions during a defendant’s lifetime may be

considered when deciding whether to classifiy him as a career offender. This

issue is without merit.




                                          -5-
       In his final issue, the appellant argues that the term “moral certainty” in the

trial court’s reasonable doubt jury instruction violates the due process provision

of the United States Constitution. Although the state notes that the record does

not contain the trial court’s reasonable doubt jury instruction, it asserts that the

courts of this state have determined that the use of this term does not render the

reasonable doubt jury instruction unconstitutional.



       The record before us does not contain the jury instructions given at the

trial. It is the appellant’s responsibility to prepare a record that includes all

material necessary for disposition of his appeal. Tenn. R. App. P. 24(e); see

State v. Beech, 744 S.W.2d 585, 588 (Tenn. Crim. App. 1987). Failing to do so

results in a waiver of this issue. Tenn. R. Ct. Crim. App., Rule 10(b).



       Therefore, the judgment of the court denying post-conviction relief is

affirmed.




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                                         ________________________
                                         PAUL G. SUMMERS, Judge

CONCUR:




______________________________
JOSEPH B. JONES, Presiding Judge




______________________________
J. CURWOOD WITT, JR., Judge




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