         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs October 3, 2006

         JAMES ANTHONY MCCURRY v. STATE OF TENNESSEE

                      Appeal from the Circuit Court for Madison County
                          No. C-04-515     Roy B. Morgan, Judge


                  No. W2005-01521-CCA-R3-PC - Filed December 6, 2006


The Appellant, James Anthony McCurry, appeals the Madison County Circuit Court’s dismissal of
his petition for post-conviction relief in which he asserts that his conviction for misdemeanor
evading arrest is voidable because of an abridgement of his Sixth Amendment right to the effective
assistance of counsel. After review of the record, we affirm the post-conviction court’s judgment.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which THOMAS T. WOODALL and ROBERT
W. WEDEMEYER , JJ., joined.

J. Colin Morris (at post-conviction hearing), Jackson, Tennessee; and Mike Mosier (on appeal),
Jackson, Tennessee, for the Appellant, James Anthony McCurry.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; James G. (Jerry) Woodall, District Attorney General; and Al Earls, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                            OPINION

                                       Factual Background

        The Appellant was charged with driving on a revoked license and evading arrest, which
occurred on December 5, 2001, in Jackson. After a jury trial, the Appellant was found not guilty of
driving on a revoked license, but guilty of evading arrest. The facts, as stated by this court in the
direct appeal of the Appellant’s Class A misdemeanor conviction, established:

       Officer Julian Wiser testified that while on patrol during the evening hours of
       December 5, 2001, he spotted the defendant driving a vehicle that the officer passed
       going in the opposite direction. Officer Wiser was aware that the defendant had an
       outstanding warrant for a probation violation at that time. The officer turned his car
       around . . . . The suspect vehicle turned into a driveway, and the officer pulled in
       behind the vehicle. Officer Wiser did not activate his blue lights or siren at any time.
       The driver exited the vehicle and ran. Officer Wiser got out of his patrol car and
       exclaimed, “stop Ant.”FN1 The officer chased the suspect on foot but did not
       apprehend him at that time. Officer Wiser . . . ran the license plate of the abandoned
       vehicle and discovered that it was registered to the defendant's mother.


       The defendant was arrested at a later date and charged with driving on a revoked
       license and misdemeanor evading arrest.


       The defendant testified that he was a passenger in the vehicle and not the driver. He
       stated that after the officer chased the driver, he got out of the car and walked into the
       house where the vehicle was parked. . . . He said that at the time of this incident, he
       knew that he had an outstanding warrant for his arrest . . . .


       The jury found the defendant not guilty of driving on a revoked license, but found
       him guilty of misdemeanor evading arrest.
       _________
       1
           The defendant testified that his street name is “Ant Banks”.


State v. James A. McCurry, No. W2002-02870-CCA-R3-CD (Tenn. Crim. App. at Jackson, Nov.
26, 2003), perm. to appeal denied, (Tenn. 2004).


       On December 13, 2004, the Appellant filed a Petition for Post-Conviction Relief, and on
December 28, 2004, the post-conviction court appointed counsel to represent the Appellant.1
Following an evidentiary hearing, the Appellant’s petition for post-conviction relief was denied.
This appeal followed.


                                                       Analysis


        A court may grant post-conviction relief when the conviction or sentence is void or voidable
because of the abridgement of any right guaranteed by the Constitution of Tennessee or the
Constitution of the United States. T.C.A. § 40-30-103 (2003). A defendant must prove his or her
factual allegations by clear and convincing evidence at an evidentiary hearing. T.C.A. § 40-30-
110(f) (2003); Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006). The post-
conviction court’s findings of fact are conclusive on appeal unless the evidence preponderates


       1
           Appointed counsel was later dismissed with substituted counsel being appointed for purposes of appeal.

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otherwise. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). This court will afford those findings
of fact the weight of a jury verdict, and this court is bound by the court’s findings unless the evidence
in the record preponderates against those findings. Henley v. State, 960 S.W.2d 572, 578 (Tenn.
1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). This court may not reweigh
or re-evaluate the evidence, nor substitute its inferences for those drawn by the post-conviction court.
State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn. 2001). All questions concerning the credibility of
the witnesses, the weight and value to be given their testimony, and the factual issues raised by the
evidence are to be resolved by the trial judge, not the appellate courts. Momon v. State, 18 S.W.3d
152, 156 (Tenn. 1999); Henley, 960 S.W.2d at 578-79. However, the post-conviction court’s
conclusions of law are reviewed under a purely de novo standard of correctness. Fields v. State, 40
S.W.3d 450, 458 (Tenn. 2001).


        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, the petitioner bears the burden of showing that (a) the services rendered by trial counsel
were deficient and (b) that the deficient performance was prejudicial. Powers v. State, 942 S.W.2d
551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient performance, the petitioner
must show 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). In
order to demonstrate prejudice, the petitioner 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). Because a petitioner must establish both prongs of the test, a failure to prove either deficient
performance or resulting prejudice provides a sufficient basis to deny relief on the ineffective
assistance of counsel claim. Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).


       Furthermore, on claims of ineffective assistance of counsel, the petitioner is not entitled to
the benefit of hindsight. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). This court
may not second-guess a reasonably-based trial strategy, and we cannot grant relief based on a sound,
but unsuccessful, tactical decision made during the course of proceedings. Id. However, such
deference to the tactical decisions of counsel applies only if counsel makes those decisions after
adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).


        The Appellant’s twenty-four page petition collaterally attacking his misdemeanor conviction
recites eight areas of deficient performance underlying his ineffective assistance of counsel claim.2
On appeal, the Appellant presents two factual claims alleging deficient performance: (1) “that [the
Appellant] was not prepared by Trial Counsel to testify at his trial . . .” and (2) “that Trial Counsel



         2
           The grounds recited in the Appellant’s petition are that trial counsel: (1) failed to prepare for trial; (2) failed
to conduct a pre-trial investigation; (3) failed to advise as to results of pre-trial investigation; (4) failed to interview
crucial witnesses; (5) failed to file pre-trial motions; (6) failed to effectively cross-examine witnesses; (7) failed to obtain
discovery; and (8) failed to properly impeach the State’s witnesses.

                                                              -3-
did not advise him of the consequences of testifying.”3 Two witnesses were called at the hearing,
the Appellant’s trial counsel and the Appellant. Trial counsel testified that on the date of the
Appellant’s arrest in December 2001 for the crimes of driving on a revoked license and evading
arrest, the Appellant was already serving a twelve-year sentence of probation stemming from his
convictions for felony possession of cocaine, reckless driving, two counts of driving on a suspended
license, possession of cocaine, aggravated assault, and felony evading arrest. Based upon his arrest
for the December 2001 crimes, the State filed a petition to revoke the balance of the Appellant’s
twelve-year suspended sentence. Trial counsel stated that he was appointed to represent the
Appellant in the revocation proceeding and conducted an investigation of the facts in preparation for
the hearing. Following the hearing, the Appellant’s probation was revoked, resulting in the
reinstatement of his original twelve-year sentence. Notwithstanding revocation, the State pursued
prosecution of the December 2001 misdemeanor charges, resulting in the Appellant’s conviction for
evading arrest. Again, trial counsel was appointed to represent the Appellant at his misdemeanor
trial, which involved essentially the same facts as those in the revocation proceeding. Trial counsel
testified that although he was already acquainted with the facts of the case, he again consulted with
the Appellant, obtained discovery from the State, and interviewed available witnesses in preparation
for trial. As a result of trial counsel’s efforts, the Appellant was acquitted of driving on a revoked
license, thus escaping enhanced punishment for this offense.


        The Appellant testified that he remains incarcerated on his original twelve-year sentence and
that because Madison County has placed a “hold” on him for evading arrest, this has hindered his
chances for parole. At the hearing, the Appellant testified that his attorney did not adequately
prepare him to testify for his jury trial. He explained by stating that a competent attorney would have
“coach[ed] and prepared him proper before he testif[ied].”


       Second, the Appellant alleged at the hearing that trial counsel was deficient for failing to
advise him of the consequences of testifying and that his decision to testify was not informed. The
following colloquy occurred:


         [POST-CONVICTION COUNSEL]: Were you advised of the consequences of
         testifying versus not testifying, the good, the bad and maybe the necessity of it and
         the problems that arise when you do or if you don’t?
         [APPELLANT]: No, sir.
         [POST-CONVICTION COUNSEL]: And do you feel as though you should have
         testified or that you shouldn’t have testified?
         [APPELLANT]: Well now I think I should have.



         3
          These two allegations are at best tangential to the claims raised in the Appellant’s petition; however, no
objection was made by the State with regard to these claims being raised for the first time at the evidentiary hearing.

                                                         -4-
         The Appellant’s issue on appeal is somewhat puzzling as the record reflects that the
Appellant did testify at trial, and his testimony at the hearing appears to reaffirm his decision to take
the stand and testify in his own behalf. Beyond these limited assertions, no further development of
the two factual claims were made by the Appellant at the hearing. With regard to the Appellant’s
lack of preparation argument, we are unaware of any authority which requires trial counsel to
“coach” a witness in preparation for trial, and none is presented by the Appellant. Moreover, with
regard to the Appellant’s claim that trial counsel failed to advise him of the consequences of
testifying, we are offered no suggestions as to what consequences the Appellant should have been
informed of, other than to speak the truth.


        In dismissing the Appellant’s petition, the post-conviction court found as follows:


        As to the issue of ineffective assistance of trial counsel and appellate counsel the
        petitioner alleges many issues as to why counsel was ineffective but the proof in this
        matter was very limited.


        The sole issue as to which the petitioner offered proof relates to his confusion as to
        the apparent inconsistencies of the jury verdict wherein the petitioner was acquitted
        of Driving on Revoked License but convicted of the misdemeanor offense of evading
        arrest. But this was an issue that was appealed and addressed on appeal and is
        therefore previously determined.


        The petitioner’s issue that he should not have elected to testify is a matter of trial
        strategy that he is now second guessing. This is simply not a basis upon which to
        grant post conviction relief.


        The Court finds that trial counsel did perform effectively in all respects.


       Following a careful review of the record on appeal, we conclude that the proof does not
preponderate against these findings. Accordingly, the Appellant has failed to prove by clear and
convincing evidence that he was denied the effective assistance of counsel.


                                           CONCLUSION


       Based on the foregoing and the record as a whole, we affirm the judgment of the post-
conviction court dismissing the Appellant’s petition for post-conviction relief.

                                                        ___________________________________
                                                        DAVID G. HAYES, JUDGE


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