                                                                                        10/25/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs July 10, 2018

             RICHARD DICKERSON v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                    No. 11-02622       Paula L. Skahan, Judge
                     ___________________________________

                           No. W2017-01572-CCA-R3-PC
                       ___________________________________


The Petitioner, Richard Dickerson, appeals the post-conviction court’s denial of his
petition for post-conviction relief, arguing that he received ineffective assistance of
counsel because trial counsel coerced him into testifying and failed to discover a mistake
in his presentence report. After thorough review, we affirm the denial of the petition.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which D. KELLY THOMAS, JR.,
and CAMILLE R. MCMULLEN, JJ., joined.

Kirk W. Stewart, Memphis, Tennessee, for the appellant, Richard Dickerson.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Amy P. Weirich, District Attorney General; and Charles Summers, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                                        FACTS

        The Petitioner was indicted for the first degree premeditated murder of his
girlfriend, but was convicted of second degree murder and sentenced to twenty-five years
in the Department of Correction. State v. Richard Dickerson, No. W2012-02283-CCA-
R3-CD, 2014 WL 1002003, at *1 (Tenn. Crim. App. Mar. 19, 2014), perm. app. denied
(Tenn. Sept. 3, 2014). His conviction and sentence were affirmed by this court on direct
appeal, and the Tennessee Supreme Court denied his application for permission to appeal
on September 3, 2014. Id. at *12. This court recited the facts underlying the Petitioner’s
case on direct appeal as follows:

              Jacqueline Smith testified that she was the victim’s mother. She last
      saw the victim on Wednesday, November 17, 2010. After this visit, Smith
      tried to contact the victim numerous times over the next several days via
      text messages and phone calls but got no response. Alarmed, she called the
      police department on that Friday and filed a missing persons report. She
      reported that the victim’s boyfriend was Richard Dickerson. Some time
      later, the police called and informed her that the victim’s body had been
      found. At the time, the victim’s car was a green Mazda 626. The victim
      was twenty-one years old.

              Sergeant Kathy L. Gooden of the Memphis Police Department
      (“MPD”) missing persons bureau testified that she received a missing
      persons report from Jacqueline Smith in November 2010. In response to
      the report, she prepared a missing persons flyer including a photograph of
      the victim. She also called Richard Dickerson, reported as the victim’s
      boyfriend, to inquire if he had heard from the victim. She identified the
      [Petitioner] at trial as Dickerson. The [Petitioner] told her that the victim
      had spent the night of Monday, November 15, 2010, with him and that the
      last time he saw her was the next morning when she left. Sgt. Gooden
      learned that the victim had not reported to work on that Thursday and
      Friday.

             When Sgt. Gooden called the [Petitioner] a second time to inquire if
      he had heard from the victim, the [Petitioner] reiterated that the last time he
      saw the victim was on that Tuesday morning. He added that the victim
      called him the next afternoon, Wednesday, November 17, 2010, at about
      4:00 p.m.

              After receiving a tip from Crime Stoppers, Sgt. Gooden and two
      other officers went to the [Petitioner]’s residence to speak with him in
      person. The [Petitioner] then admitted that the victim “had previously
      gotten an order of protection on him on a domestic violence assault.” The
      [Petitioner] also stated that he had contacted the victim’s aunt because he
      “had had a gut feeling that something had happened to” the victim. Sgt.
      Gooden later confirmed that there had been a previous domestic violence
      complaint.



                                           -2-
       On cross-examination, Sgt. Gooden acknowledged that she
investigated several persons as possibly responsible for the victim’s
disappearance.

       On redirect examination, Sgt. Gooden stated that one of the tips she
got through Crime Stoppers was that the victim’s body would be found in
the trunk of her car at the Willow Creek Apartments. A Crime Stoppers tip
also claimed that the [Petitioner] had killed the victim. She gave this
information to the homicide department.

       LaDonna Garfield, the victim’s aunt, testified that she and the victim
had been close. She identified the [Petitioner] as the victim’s ex-boyfriend,
explaining that “they had broke up.” On Wednesday evening, November
17, 2010, the [Petitioner] called and told her that he thought something had
happened to the victim. The conversation was short because Garfield had
to go to work. The next morning, the [Petitioner] called again, repeating
that he thought something had happened to the victim. Garfield spoke with
him several more times over the phone that day and the next day after the
missing persons report was filed. The [Petitioner] continued to call her
over the next several days “on up until the day he was arrested.” His calls
focused on his concerns over the victim.

        Garfield testified that, on February 22, 2010, the victim had been
living with Garfield’s parents on Cedarwoods Cove. Garfield was in bed in
the front bedroom when she heard a scream. When she got up to
investigate, the victim walked past her “crying and upset.” The victim went
into the bathroom and locked the door. Garfield went to the carport door
where her father was and looked out. She saw the [Petitioner] in the
[Petitioner]’s mother’s car. She returned to the victim, who came out of the
bathroom and sat down on the couch in the den. Garfield described the
victim’s appearance as disheveled. Garfield kept asking the victim what
had happened, and the victim told her that she had gotten into an altercation
with the [Petitioner] at the [Petitioner]’s house. When the victim left in her
car, the [Petitioner] followed her. The victim drove to Cedarwoods Cove
and, as she was trying to get in the house, the [Petitioner] approached her
and kept trying to talk to her. The victim told him she did not want to have
anything more to do with him. The [Petitioner] told her that he would
leave, but first he wanted her to give him a hug. The victim told Garfield
that, when she told him no, “he grabbed her and started choking her and
she’s trying to get away and he slammed her down on the concrete.”

                                    -3-
       On cross-examination, Garfield stated that the last time she saw the
victim and the [Petitioner] together was in July 2010.

        Britney Harrell, ex-girlfriend of the [Petitioner]’s friend Rodricus
Shaw, testified that, while she was talking on the phone with Shaw, she
overheard the [Petitioner] “saying that he didn’t mean to kill her.” She
stated that she was familiar with the [Petitioner]’s voice. The following
week, she overheard a phone conversation between Shaw and the
[Petitioner] while Shaw’s phone was in speaker-phone mode. She heard
the [Petitioner] say that he had killed “her,” put her body in the car, and
then drove the car to some apartments in east Memphis. She reported this
information to the police. She later gave a statement to the police and
identified the [Petitioner] in a photographic array. Underneath his
photograph, she wrote, “This is Richard Dickerson who killed Jacklyn
Miller.”

        Vincent Ingram testified that he and the [Petitioner] had been friends
since childhood. In November 2010, he lived around the corner from the
[Petitioner]. One day, the [Petitioner] told him that he, the [Petitioner],
thought that the victim was “setting him up” because he had found some
text messages on her phone giving “some guy” the directions to the
[Petitioner]’s house. The [Petitioner] told Ingram that he was going to talk
to the victim about it and that she was on her way over. Later, Ingram saw
the victim getting out of her car in front of the [Petitioner]’s house. Later
that night, the [Petitioner] came over to Ingram’s house, woke Ingram up,
and told Ingram that he thought he had killed the victim. The [Petitioner]
told Ingram that he had strangled the victim and that she was not moving.
The [Petitioner] then left. Sometime in the next day or two, Ingram and
Shaw were at the [Petitioner]’s house. Ingram overheard the [Petitioner]
tell Shaw that he, the [Petitioner], had killed the victim and put her body in
the trunk of her car.

       Subsequently, Ingram identified the [Petitioner] from a photographic
array. On the array he wrote, “This is Richard. He told me him and Jacky
had a fight which led to him choking her to death.”

       On cross-examination, Ingram stated that, when the [Petitioner] first
told him about what he had done, the [Petitioner] “was kind of shaken up a
whole lot.” Ingram had no doubt that the [Petitioner] loved the victim, and
the [Petitioner] expressed remorse about what he had done.

                                    -4-
        Craig Holmes testified that he was the [Petitioner]’s cellmate in
December 2010. The [Petitioner] told him that he had strangled his
girlfriend.

        Fred Anderson testified that he was a “courtesy officer” at Willow
Creek Apartments in November 2010. His job was to patrol and make sure
that nothing was out of the ordinary. Anderson stated that the first time he
saw the victim’s Mazda was on November 17, 2010. He noticed the
victim’s Mazda because he had not seen that car before. When he first saw
the Mazda, he noticed “a black male walking away from the car.” He had
not seen that person before, but he got a good look at him. Anderson
identified the [Petitioner] as the black male he saw.

       Anderson testified that, after he made a full circle around the parking
complex, he saw that the Mazda had been moved and “backed in.” He
reported what he had seen to his supervisor.

       Anderson continued to see the car in the parking lot for one week. It
stayed in the same place during this time. He explained that he was away at
his other job when the police came to get the car.

      On cross-examination, Anderson clarified that it was between 2:00
p.m. and 3:00 p.m. when he first saw the Mazda. The next time he saw it
was about four to five minutes later.

        Officer Russell Mooney of the MPD testified that he responded to an
apartment complex after receiving a report about the victim’s car. After
locating the car, he notified his lieutenant. Officer Mooney described the
car’s location as “backed in against the fence.” He remained on the scene
until the car was towed. No one opened the car or inventoried it prior to its
being towed away.

       Officer Dewayne Johnson, a crime scene investigator with the MPD,
responded to the Willow Tree Apartments on November 23, 2010,
regarding a car found there that belonged to a missing person. After
photographs were taken of the scene, he followed the car as it was towed to
the Crime Scene Office (“CSO”). The car was not opened prior to its
arriving at the CSO. After the vehicle was positioned in the CSO, Officer
Johnson processed its exterior for fingerprints. He did not find any
fingerprints. Officer Johnson then used an entry tool on the locked car to
open the door. Officer Johnson took photographs of the car’s interior and
                                    -5-
swabbed for DNA. When officers finished searching the interior of the car,
they opened the trunk and found the victim’s body.

       On cross-examination, Officer Johnson stated that he dusted the
inside of the car for fingerprints but did not recover any.

       Officer Kevin Lundy, a homicide investigator with the MPD,
responded to the victim’s car at the CSO. He identified photographs taken
of the victim’s body in the trunk of her car. He stated that, although the
victim was clothed, her clothing was disheveled. The victim’s bra was
twisted and above her breasts, her panties were around her thighs, and her
pants were unzipped and down around her hips. There was a rope around
the victim’s neck.

        On further investigation, Officer Lundy learned that the [Petitioner]
had been the last person known to have seen the victim. Officer Lundy
prepared a photographic array with the [Petitioner]’s photograph and
showed the array to Anderson on November 24, 2010. Anderson identified
the [Petitioner]’s photograph as the man he had seen near the victim’s car
in the apartment complex parking lot.

       Officer Lundy obtained a search warrant for the [Petitioner]’s
residence. In the garage, he found some rope hanging on the wall. The
rope was photographed, collected, and transmitted to the Tennessee Bureau
of Investigation (“TBI”). Law enforcement also collected a DNA sample
from the [Petitioner] with the [Petitioner]’s consent.

        Donna Nelson, a special agent forensic scientist with the serology
DNA unit at the Memphis Regional Crime Laboratory, testified that blood
located on underwear recovered from the victim’s body matched the
[Petitioner]’s DNA.

        Special Agent Linda Littlejohn of the TBI Crime Laboratory
testified that she performed fiber comparisons. She analyzed the rope
recovered from the victim’s body and the rope recovered from the
[Petitioner]’s residence. She testified that the two ropes did not match.
        Dr. Karen Chancellor, the Chief Medical Examiner for Shelby
County, testified that she performed an autopsy on the victim on November
24, 2010. She determined the cause of death to be “asphyxiation due to
ligature strangulation.” Dr. Chancellor explained that, although it took two

                                    -6-
to three minutes to accomplish an individual’s death by strangulation, the
individual would lose consciousness in less than ten seconds.

       Officer Darnell Bridgeforth, Jr., of the MPD testified that he
responded to the Cedarwoods Cove address on February 22, 2010, on a
domestic assault call. He spoke with the black female victim who stated
that she had been assaulted by her boyfriend. Officer Bridgeforth described
the victim’s demeanor as “distraught” and added that her hair was “messed
up.” She advised him that her boyfriend was Richard Dickerson. After
reviewing his report, he identified the victim as the victim in this case.

        Barbara Scott, an employee of the Hair Design School in Memphis,
testified that the victim was one of her students. The [Petitioner] was also
one of her students. She testified that the victim and the [Petitioner] met at
the school and began dating. Scott stated that, in late February 2010, she
noticed bruises around the victim’s neck. The victim did not tell her how
she got the bruises.

        Monica Parker testified that she went to “hair school” with the
victim and that they had been friends. She also knew the [Petitioner] from
school. Beginning in August 2010, the victim stayed with Parker at
Parker’s apartment two or three nights a week. On one occasion after the
victim began staying with her, the [Petitioner] called Parker and told her
that the victim was on her way to Parker’s apartment “and that she might be
crying.” When Parker asked the [Petitioner] why the victim might be
crying, he told her that he spit on her. When the victim arrived, the victim
told Parker that the [Petitioner] had bitten her. The victim showed Parker
what appeared to be a bite mark on the victim’s cheek.

        On cross-examination, Parker explained that, when the victim was
not spending the night at Parker’s apartment, the victim was with either her
grandmother or with the [Petitioner].          At one point, the victim’s
grandmother “put her out” because the victim had resumed her relationship
with the [Petitioner]. Parker stated that the bite mark was not bleeding
when she observed it. During her phone call with the [Petitioner], the
[Petitioner] told her that he had not meant to hurt the victim.

       The [Petitioner] testified that he was responsible for the victim’s
death. He explained that she came over to his house and that they started to
have sex. They stopped, however, because the victim wanted to talk to

                                    -7-
him. They got into an argument. The victim “start[ed] swinging.” He told
her to stop, but, he testified,

       [s]he kept swinging. I grabbed her told her to stop. She kept
       on and I like was choking her but I wasn’t trying to—I wasn’t
       trying to harm her. I wasn’t trying to kill her and like I put
       her on the floor and got on top of her and told her to stop
       swinging at me and she kept on doing that and she just
       stopped. She stopped. After I noticed she done closed her
       eyes, I panicked. I wanted to call the police but I was scared.

       When the [Petitioner] realized that the victim was dead, he put her
clothes on her body and put her body in the trunk of her car and drove to
some nearby apartments.

      Asked about the rope around the victim’s neck, the [Petitioner]
answered,

       We already had some rope in that trunk of that car and it was
       like a small portion of it. I didn’t want to put the rope around
       her neck but like I got scared just—I just tied it around her
       neck because I don’t know if I was driving the car or she
       would just wake up or what. I didn’t know what would
       happen. I don’t know. I didn’t put it on there tight. I just
       wrapped it around there and like cut the ends up off of it.

       The [Petitioner] denied that he planned or expected to kill the victim.

        In rebuttal, the State re-called Monica Parker. Parker testified that
she never saw the victim scream at anyone or hit anyone. She testified
about an occasion at “hair school” when she was talking to the victim on
the phone and, when the [Petitioner] realized she was speaking with the
victim, the [Petitioner] “went off” on her (Parker), “yelling and screaming”
at her.

       The State also re-called Barbara Scott, who described the victim as
“a very loving, caring, happy little girl that had been sheltered.” Scott
described the [Petitioner] as “a young man that was very angry and
violent.” She explained that he had been subject to discipline at the hair
school for “outbursts or cursing.”

                                    -8-
               After considering this proof, the jury convicted the [Petitioner] of the
       lesser-included offense of second degree murder. After a sentencing
       hearing, the trial court sentenced the [Petitioner] as a Range I offender to
       the maximum term of twenty-five years’ incarceration.

Id. at *1-6.

       The Petitioner filed a timely petition for post-conviction relief on September 25,
2015, which he amended on December 13, 2016. He raised numerous complaints in his
petition and amended petition, including those pursued on appeal, namely that trial
counsel was ineffective in failing to investigate his presentence report and in forcing him
to testify at trial. The post-conviction court conducted evidentiary hearings on the
Petitioner’s issues on June 24, 2016, and December 13, 2016.

        At the June evidentiary hearing, trial counsel testified that he was appointed to
represent the Petitioner and had been a criminal defense attorney for eighteen years,
handling “hundreds” of murder cases over the course of his practice. He further testified
that “whether or not [the Petitioner] testified” was a “point of contention” between trial
counsel and the Petitioner, and the two discussed whether he would testify “at length
many, many times.” When trial counsel learned that a particular witness, a friend of the
Petitioner’s, was going to give the “most damning” testimony against the Petitioner, trial
counsel testified that he told the Petitioner that he needed to stop asserting “‘it wasn’t
none of me.’ Because everything suggested it was.” He further explained that he told the
Petitioner it was his opinion, based on the State’s evidence, that if the Petitioner did not
stop asserting “‘I didn’t do it and it wasn’t me and I wasn’t there,’ that he was going to be
convicted and he would serve life in prison.” The Petitioner “didn’t believe [trial
counsel]” that his friend was going to testify against him, and trial counsel testified that
he gave a generic opening statement at trial so that the Petitioner could hear the
“damning” testimony before deciding whether he wanted to testify. Trial counsel stated
that the Petitioner decided to testify on his own behalf after hearing his friend’s testimony
because “he’s intelligent enough[;] he saw the testimony.”

       Regarding the Petitioner’s sentencing, trial counsel testified that he did not review
the sentencing hearing transcript, but recalled that the Petitioner “won when he didn’t get
first degree murder.” He further stated that he “did what he could” regarding the
Petitioner’s sentencing, but that the Petitioner:

       [D]idn’t really help himself . . . at sentencing he sat back with his arms
       across three chairs and his body language was like he just didn’t care. And
       I don’t know what mitigation I could have put on for him. And the facts
       were the facts. And the facts were terrible.
                                            -9-
        The post-conviction court held a second evidentiary hearing on December 13,
2016. The Petitioner affirmed that he was made aware of his rights by both trial counsel
and the trial court during his Momon hearing and “went on and testified . . . went on with
[trial counsel’s] strategy.” He further affirmed that he testified of his own free will. With
respect to his sentencing hearing, the Petitioner alleged that trial counsel did not ask him
about his criminal history, but conceded that trial counsel argued the Petitioner’s criminal
history should not have been considered as an enhancement factor because he completed
diversion and therefore did not technically have a criminal history. He further conceded
that this frustration was directed more towards the trial court than trial counsel, stating
that “[trial counsel] said I didn’t have no history, but [the trial court] still allowed certain
issues.”

       Following the evidentiary hearings, the post-conviction court entered a written
order denying the Petitioner’s petition for post-conviction relief on July 31, 2017. The
Petitioner now appeals the denial of his petition.

                                         ANALYSIS

      On appeal, the Petitioner alleges he received ineffective assistance of counsel
because trial counsel forced him to testify at trial and because trial counsel failed to
discover a mistake in his presentence report.

       The post-conviction petitioner bears the burden of proving his factual allegations
by clear and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). When an
evidentiary hearing is held in the post-conviction setting, the findings of fact made by the
court are conclusive on appeal unless the evidence preponderates against them. See
Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves
purely factual issues, the appellate court should not reweigh or reevaluate the evidence.
See Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). However, review of a trial
court’s application of the law to the facts of the case is de novo, with no presumption of
correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective
assistance of counsel, which presents mixed questions of fact and law, is reviewed de
novo, with a presumption of correctness given only to the post-conviction court’s
findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6
S.W.3d 453, 461 (Tenn. 1999).

       To establish a claim of ineffective assistance of counsel, the petitioner has the
burden to show both that trial counsel’s performance was deficient and that counsel’s
deficient performance prejudiced the outcome of the proceeding. Strickland v.
Washington, 466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn.
Crim. App. 1997) (noting that same standard for determining ineffective assistance of
                                             - 10 -
counsel that is applied in federal cases also applies in Tennessee).        The Strickland
standard is a two-prong test:

      First, the defendant must show that counsel’s performance was deficient.
      This requires showing that counsel made errors so serious that counsel was
      not functioning as the “counsel” guaranteed the defendant by the Sixth
      Amendment. Second, the defendant must show that the deficient
      performance prejudiced the defense. This requires showing that counsel’s
      errors were so serious as to deprive the defendant of a fair trial, a trial
      whose result is reliable.

466 U.S. at 687.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
The prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a
“probability sufficient to undermine confidence in the outcome,” that “but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.

       Courts need not approach the Strickland test in a specific order or even “address
both components of the inquiry if the defendant makes an insufficient showing on one.”
466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.”).

       In denying the Petitioner’s petition for post-conviction relief, the post-conviction
court made the following findings with respect to the issues the Petitioner now raises on
appeal:

      Trial counsel testified that a recurring theme of his and [the] Petitioner’s
      attorney-client relationship was whether [the] Petitioner would testify or
      not, and therefore trial counsel and [the] Petitioner discussed the possibility
      of [the] Petitioner taking the stand on a regular basis. Additionally, [the]
      Petitioner acknowledged that he understood and was aware of his right to
      remain silent prior to testifying, and that his testimony was of his own free
      will.

             ....
                                          - 11 -
               [The] Petitioner alleges that trial counsel should have specifically
       presented evidence that [the] Petitioner’s previous charge of facilitation of
       aggravated burglary was reduced to assault-bodily harm. [The] Petitioner
       admitted in the evidentiary hearing that trial counsel did argue that [the]
       Petitioner’s criminal history should not be considered as an enhancement
       factor, and that [the] Petitioner’s frustration was with the trial court because
       the court took [the] Petitioner’s criminal history into account anyway.

        The record wholly supports the post-conviction court’s finding that the Petitioner
received effective assistance of counsel. The transcripts of the post-conviction
evidentiary hearings reveal, based on both trial counsel’s testimony and the Petitioner’s
own testimony, that the Petitioner understood he did not have to testify but decided to do
so anyway of his own free will after hearing “damning” testimony against him. Further,
the Petitioner had the opportunity to discuss whether he would testify at length multiple
times with trial counsel, and trial counsel even gave him the opportunity to hear the
testimony against him before deciding whether to testify. Although the Petitioner argues
that trial counsel’s “threat of life imprisonment” forced him to testify, trial counsel
testified he only told the Petitioner that it was his opinion that, based on the amount of
evidence that the State had against him, he would be convicted of first degree
premeditated murder as charged and sentenced to life imprisonment if he continued to
deny that he had any involvement in the murder, and the post-conviction court accredited
such testimony. In following trial counsel’s advice, the Petitioner’s testifying allowed the
jury to find an absence of premeditation, leading to him being convicted of second degree
murder, a lesser offense. Again, as we have laid out, the Petitioner affirmed both at his
Momon colloquy and at the evidentiary hearing that he testified of his own free will.
Based on the overwhelming physical and testimonial evidence against the Petitioner
presented by the State at trial, the Petitioner has failed to show how his testimony
prejudiced him or how trial counsel was deficient. In fact, the record indicates that
following trial counsel’s advice to testify was beneficial to the Petitioner.

        With respect to the Petitioner’s argument that he received ineffective assistance
because trial counsel did not correct the court’s erroneous application of his criminal
history, the evidentiary hearing transcripts reveal that such an argument is contradictory
to the Petitioner’s own post-conviction testimony. The Petitioner affirmed that trial
counsel argued against the court’s consideration of the Petitioner’s prior criminal history
as an enhancement factor, stating that his completion of diversion meant the Petitioner
technically did not have a criminal record. The Petitioner also affirmed that his
frustration was really directed toward the trial court for considering his criminal history,
not toward trial counsel. Trial counsel testified that he did everything possible for the
Petitioner with respect to sentencing. Further, the post-conviction court noted that even if
trial counsel had not objected to the use of the Petitioner’s criminal history as an
                                            - 12 -
enhancement factor, it is “within the court’s discretion to impose any sentence allowable
under the appropriate range of punishment.” Therefore, the Petitioner has failed to show
how trial counsel was deficient or how he was prejudiced. In sum, we conclude that the
post-conviction court properly determined that the Petitioner failed to meet his burden of
demonstrating that trial counsel was ineffective, and we accordingly affirm the denial of
the petition.

                                    CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the judgment of the
post-conviction court denying the petition for post-conviction relief.


                                            ____________________________________
                                            ALAN E. GLENN, JUDGE




                                          - 13 -
