         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs September 18, 2001

               STATE OF TENNESSEE v. JOHN L. GOODWIN, III

            Post-Conviction Appeal from the Criminal Court for Sumner County
                             No. 5718    Tom E. Gray, Judge



                     No. M2001-00044-CCA-R3-PC - Filed August 2, 2002



        The petitioner, John L. Goodwin, III, was convicted of attempted rape and aggravated
burglary. State v. John L. Goodwin, III, No. 01-C01-9108-CR-00242, 1992 Tenn. Crim. App.
LEXIS 859, at *1 (Tenn. Crim. App. at Nashville, Nov. 12, 1992). The petitioner decided to waive
his right to a direct appeal of his verdict and filed a post-conviction petition for review. Id. His
petition was denied, and on appeal this Court found that the petitioner waived his right to a direct
appeal based on erroneous advice of counsel and thus granted him an opportunity to file a motion
for new trial and bring a delayed direct appeal. Id. at **3-4. The petitioner filed a motion for new
trial, which the trial court denied, and the petitioner brought a delayed direct appeal before this
Court. State v. Goodwin, 909 S.W.2d 35, 37 (Tenn. Crim. App. 1995). This Court affirmed the
petitioner’s conviction, but remanded the petitioner’s case for re-sentencing. Id. at 45-46. The
petitioner was re-sentenced, and he appealed his new sentence to this Court, as well as the trial
court’s denial of his writ of habeas corpus. State v. John L. Goodwin, III, No. 01C01-9601-CR-
00013, 1997 Tenn. Crim. App. LEXIS 679, at *1 (Tenn. Crim. App. at Nashville, July 23, 1997).
We reviewed his sentence and ultimately found that the trial court properly imposed the petitioner’s
new sentence. Id. While this Court was reviewing the petitioner’s appeal of his new sentence, he
filed an “application for coram nobis and/or in the alternative to re-open post-conviction petition.”
 John L. Goodwin, III v. State, No. M2000-0757-CCA-R28-CO, at *2 (Tenn. Crim. App. at
Nashville, Sept. 19, 1997) (no electronic database citation available). The trial court dismissed this
pleading, and we affirmed that ruling. John L. Goodwin, III v. State, No. 01C01-9608-CR-00337
(Tenn. Crim. App. at Nashville, Sept. 19, 1997) (no electronic database citation available). The
petitioner then filed a motion to re-open his post-conviction petition, which was ultimately dismissed
without a hearing. Id. Thus, we remanded his case for a hearing to determine the merits of what
was, essentially, his post-conviction petition. The petitioner now brings the instant appeal of the
denial of his petition for post-conviction relief, challenging: the fairness of his post-conviction
hearing; his sentence; his notice of the charges against him; the constitutionality of Tennessee Rule
of Criminal Procedure 44(a); the alleged conspiracy between various court officers against him; the
effectiveness of his counsel; and the jury instructions. After reviewing the petitioner’s claims, we
find that they are either waived, previously determined, or without merit.
     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed.

JERRY L. SMITH, J., delivered the opinion of the court, in which GARY R. WADE, P.J. and DAVID G.
HAYES, J., joined.

John L. Goodwin, III, Pikeville, Tennessee, pro se.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; David H.
Findley, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Dee
David Gay, Assistant District Attorney General, for appellee, State of Tennessee.

                                            OPINION

                                      Factual Background

       In the petitioner’s delayed direct appeal, this Court summarized the facts of his case as
follows:
       On August 3, 1989, the victim returned from work to her home, in Hendersonville,
       Tennessee, between 3:30 and 4:00 in the afternoon. She went back to her bedroom
       to lie down. While she was lying down, she heard a door slam. Thinking it was her
       daughter or husband, whom she was expecting, the victim got up to see who it was.
       Upon opening the door to her bedroom, she saw the Defendant standing in her
       hallway. She told him to get out of her house, but he grabbed her by the arms and
       pushed her into the adjacent guest bedroom. The victim stated at trial that the
       Defendant repeated, “You know you want it,” several times. The victim attempted
       to fight the Defendant off. He pushed her onto the bed, ripped her blouse, tore her bra
       and pulled off her pantyhose.

       As the victim and Defendant were fighting, they heard her husband's truck in the
       driveway. The Defendant got up and attempted to leave the house, but the victim's
       husband grabbed him as he was trying to walk out the door. The victim called the
       police, and the victim's husband got the Defendant's name and license plate number
       to “buy some time” until the police could get there. When the victim's husband
       thought the police should almost be at the house, he let the Defendant go. An officer
       arrived, radioed the license plate number to a back-up officer and the back-up officer
       picked up the Defendant.

       The Defendant was arrested and arraigned on August 3, 1989. On August 16, 1989,
       the Defendant filed a motion for self-representation. He was indicted by the Grand
       Jury of Sumner County on September 14, 1989. The trial court appointed counsel
       John Pellegrin on September 22, 1989. The trial court held a hearing on Defendant's
       motion for self-representation on October 27, 1989. The trial court granted the

                                                -2-
       motion; however, because of certain statements made by the Defendant, the trial
       court decided to let appointed counsel and Defendant decide if appointed counsel
       would represent the Defendant or act in an advisory capacity only. On November 9,
       1989, the Defendant filed a motion for the trial court to enter an order granting the
       Defendant the right to represent himself. On November 20, 1989, the court entered
       an order granting the Defendant's motion to represent himself. The order also stated
       that Pellegrin would be Defendant's advisory counsel only. On November 20, 1989,
       the case was continued until December 12, because certain of the Defendant's
       subpoenas had not been served.

        On December 6, 1989 Pellegrin filed a motion to withdraw as advisory counsel due
        to a conflict of interest. The trial court granted this motion on December 7. The trial
        court appointed Louis Oliver as advisory counsel after a hearing on December 11.
        The Defendant was convicted in a jury trial in which he represented himself on
        December 12, 1989. The Defendant filed a motion for the appointment of counsel on
        December 19. An order granting the motion was also filed December 19 appointing
        Keith Bell to represent the Defendant at his sentencing hearing. The Defendant was
        sentenced to eight years on each count to be served consecutively. Bell withdrew as
        counsel before the appeals process began, and the court ordered the Defendant to be
        represented by the Public Defender's Office.

        David Doyle was the attorney of record for the Defendant's Motion for New Trial.
        This motion was denied. Following the advice of Doyle, the Defendant waived his
        right to appeal on May 10, 1990. He filed a pro se Petition for Post-conviction relief
        the same day. Defendant signed a waiver and was allowed to proceed pro se. He
        made a motion for the appointment of advisory counsel on September 17, 1990.
        David Doyle was appointed. Although it is not clear when, Doyle subsequently
        withdrew as advisory counsel.

         The Defendant later decided to be represented by an attorney, and Matt Bastian was
         appointed to represent the Defendant at the post-conviction hearing, which took place
         April 19, 1991. The trial court denied the post-conviction petition and the Defendant
         appealed to this court. State v. John L. Goodwin, III, 1992 Tenn. Crim. App. LEXIS
         859, No. 01-C01-9108-CR-00242 (Tenn. Crim. App., Nashville, filed Nov. 12,
         1992). This court ordered that the Defendant proceed by a delayed direct appeal and
         ordered the trial court to allow the Defendant to file another motion for a new trial.
         Id. The motion for new trial was denied.
Goodwin, 909 S.W.2d at 38-39. Through Mr. Bastian, the petitioner brought a delayed direct appeal
of his denied motion for new trial, and this Court affirmed the petitioner’s convictions, but vacated
his sentences and remanded his case for a new sentencing hearing because the trial court failed to
compare the petitioner’s potential sentences under the 1982 and 1989 sentencing acts and because
the trial court did not adequately articulate either a basis for enhancing the petitioner’s sentences or
for sentencing him as a Range II offender. Id. at 45-46. The trial court re-sentenced the petitioner,


                                                  -3-
and he was represented by attorney John R. Phillips at the re-sentencing hearing. Phillips
represented the petitioner on appeal of his new sentence, and the petitioner appealed the trial court’s
denial of his petition for writ of habeas corpus, which he had filed pro se. This Court reviewed both
the petitioner’s sentence and the trial court’s denial of his writ and accordingly affirmed the lower
court’s determinations. John L. Goodwin, III, 1997 Tenn. Crim. App. LEXIS 679, at *1.

        Prior to the issuance of that opinion, the petitioner filed a pro se “application for coram nobis
and/or in the alternative to re-open original post-conviction petition.” John L. Goodwin, III v. State,
No. M2000-0757-CCA-R28-CO, at *2 (Tenn. Crim. App. at Nashville, Sept. 19, 1997) (no
electronic database citation available). The trial court dismissed the pleading without conducting
a hearing. Id. This Court reviewed the lower court’s dismissal of the petitioner’s pleading and
affirmed it, finding that the application for writ of coram nobis was time-barred and that the
petitioner had not set forth sufficient grounds for re-opening the petition for post-conviction relief.
John L. Goodwin, III v. State, No. 01C01-9608-CR-00337 (Tenn. Crim. App. at Nashville, Sept. 19,
1997) (no electronic database citation available).

         The petitioner subsequently filed a motion to reopen his petition for post-conviction relief.
Judge Jane Wheatcraft deemed this motion to be a petition for post-conviction relief and ruled that
the petitioner had presented a colorable claim for relief. Id. The petition was dismissed by another
trial judge without a hearing, and thus this Court remanded the petitioner’s case for a post-conviction
hearing. Id. The post-conviction court held a hearing and found that the petitioner’s claims did not
merit relief.

        The petitioner now brings the instant appeal of his denied petition for post-conviction relief,
alleging (1) that he did not receive a full and fair post-conviction hearing; (2) that he was incorrectly
sentenced; (3) that the state withheld exculpatory information; (4) that he received inadequate notice
of the charges against him; (5) that Tennessee Rule of Criminal Procedure 44(a) is unconstitutional;
(6) that the assistant district attorney and defense counsel conspired against him; (7) that the trial
judge acted as a state agent; (8) that the jury instructions were erroneous; and (9) that he received
ineffective assistance of counsel. After reviewing the petitioner’s claims, we find that none of them
merit relief.

                               Post-Conviction Standard of Review

        As mentioned supra, the petitioner is currently before this court alleging that his petition for
post-conviction relief was wrongly denied. When analyzing allegations that a petitioner is entitled
to post-conviction relief, we first note that a petitioner bringing a post-conviction petition for relief
bears the burden of proving the allegations asserted in that petition by clear and convincing evidence.
See Tenn. Code Ann. § 40-30-210(f); Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).
“Evidence is clear and convincing when there is no serious or substantial doubt about the correctness
of the conclusions drawn from the evidence.” Hicks, 983 S.W.2d at 245 (citing Hodges v. S.C. Toof
& Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)). Furthermore, the appellate court is bound by the
trial court's findings of fact, unless the record preponderates against those findings. Id.


                                                  -4-
                                             Post-Conviction Hearing

       The petitioner complains that he did not receive a fair post-conviction hearing because he was
denied access to relevant records and because the state failed to issue several necessary subpoenas.
We will address both of these allegations below.

             (a) Petitioner’s Access to Transcripts of Evidence and the Technical Record

         The petitioner complains that he was erroneously denied access to the transcripts of evidence
and the technical record for his case, despite his numerous requests for them. The petitioner claims
that these records were necessary in order for him to properly frame and support his allegations of
error. He first asserts that the state failed to file the record for review by the post-conviction court,
despite its statutory obligation to do so. However, the petitioner relied on a repealed law to support
this proposition. Per Tennessee Code Annotated section 40-30-208(b), a section of the 1995 Post-
Conviction Act that was the law in 1999 when the petitioner filed for post-conviction relief, the
district attorney general is empowered to file records or portions thereof for post-conviction or
appellate review if the petitioner fails to include records when filing his petition. Tenn. Code Ann.
§ 40-30-208(b). However, the language of the statute is permissive and does not mandate action.
See Marise E. Smith v. State, No. 01C01-9708-CR-00342, 1999 Tenn. Crim. App. LEXIS 906, at
**9-10 (Tenn. Crim. App. at Nashville, Sept. 12, 1999). Thus, the state has no obligation to file such
records. “[T]he petitioner has the obligation of ensuring that relevant portions of the record from
the original case are included in the record on appeal.” Woodruff v. State, No. M1998-00695-CCA-
R3-CD, 2000 Tenn. Crim. App. LEXIS 57, at *6 n.1 (Tenn. Crim. App. at Nashville, Jan. 25, 2000)
(citing Tenn. R. App. P. 24; Morgan v. State, No. 03-C01-9611-CR-00404, 1999 Tenn. Crim. App.
LEXIS 51, at *6 (Tenn. Crim. App. at Knoxville, Jan. 15, 1999)).1

       Moreover, despite the petitioner’s contention, these transcripts were made available to him
when the post-conviction court ordered the state to file them with the clerk’s office per Tennessee
Rule of Supreme Court 28, section 6. See Tenn. R. Sup. Ct. 28, § 6. As stated by the post-
conviction court,

         [The State] complied with section (6) of Rule 28 of the Tennessee Supreme Court as
         far as section (d) that orders the State to respond in an appropriate – to file with the
         clerk certain transcripts, exhibits, or records from the prior trial or hearing, and they
         have filed those records with the clerk. That is where they are to be filed.




         1
           Furthermore, despite the petitioner’s assertion that he was denied access to his trial record, including the jury
instructions, the petitioner quotes portions of those instructions in his petition.

                                                            -5-
                There is a transcript of Evidence, Volume 1 of 1, from the trial in this case.
         That may be something you say that you want to take a look at. That has been filed.
         So they complied with that.

        Accordingly, it appears that the state complied with the court’s orders to file certain
transcripts of evidence and technical records that the court deemed crucial to the case and therefore
these records were made available to the petitioner.2

        However, the petitioner complains that he was erroneously denied access to certain other
records, and that access to these records would enable him to establish his claims that the jury
instructions were erroneous, that the public defender’s office and the prosecutor conspired against
him, and that his counsel was ineffective. However, the issues regarding the alleged conspiracy and
alleged erroneous jury instructions are issues that have been either waived or previously determined.
See Tenn. Code Ann. 40-30-206(g), (h); Tenn. R. Sup. Ct. 28, § 2(D), (E). Therefore, the post-
conviction court was not obligated to allow the petitioner to access records in order to develop issues
that were not within the scope of its review.

        Regarding the petitioner’s complaint that he was denied access to records that would allow
him to develop his allegation that his various attorneys ineffectively represented him, the petitioner
did not state his theory of how his attorneys were ineffective with sufficient specificity to warrant
granting his request. Because the petitioner did not allege how his attorneys were ineffective, we
must assume that he demanded “any and all” appellate records so that he could examine them and
develop a basis for alleging that he received ineffective assistance of counsel. However, this Court
has held that an appellant is not entitled to receive a complete trial transcript at state expense when
the petitioner has not sufficiently articulated what he hopes to prove by reviewing the transcript.
        A petitioner is not entitled to a complete trial transcript at state expense to go on a
        fishing expedition to see what he can find. McCracken v. State, 529 S.W.2d 724
        (Tenn. Crim. App. 1975). The petitioner must demonstrate to the satisfaction of the
        trial court, after filing his post[-]conviction petition, that the record will be of
        reasonable assistance to him in establishing his right to the relief sought. Dotson v.
        State, 477 S.W.2d 763 (Tenn. Crim. App. 1971).
Givens v. State, 702 S.W.2d 578, 580 (Tenn. Crim. App. 1985). Because the petitioner’s rationale
for requesting a copy of the entire appellate record was not specific, we find that the trial court did
not err by failing to order the state to comply with his request.

             (b) Petitioner’s Complaint Regarding the State’s Failure to Issue A Subpoena

       The petitioner further complains that the state erroneously failed to issue a subpoena for
Susan P. Clayton, who would testify that she received an affidavit from the victim detailing the
crime, and that this affidavit contradicted the victim’s sworn trial testimony and was therefore


         2
           We assume this because neither the technical record nor the transcripts from the petitioner’s trial are part of
the record filed for review.

                                                           -6-
exculpatory evidence. The state counters that the petitioner failed to set forth how this affidavit
contradicts the victim’s sworn testimony and that even if the petitioner’s claim does have merit, he
waived the issue by failing to bring this error to the post-conviction court’s attention in order to
allow the court to remedy the situation.
        We agree that the petitioner does not describe how this affidavit would have been
inconsistent with the victim’s sworn statement and therefore has not met his burden of proving his
allegations with the requisite specificity. See Tenn. Code Ann. § 40-30-210(f) (1997); Hicks, 983
S.W.2d at 245. Moreover, although the petitioner did bring this omission to the court’s attention
during trial, during his latter conversations with the trial court about procuring the testimony of
several witnesses, he stressed the importance of procuring his former counsel and, on several
occasions, indicated that his counsel was the only remaining witness that he intended to call.
Accordingly, because the petitioner did not inform the trial court of the importance of procuring this
witness, we will not allow him to now claim that he was prejudiced by this omission.

                                        Sentencing Challenge

        The petitioner challenges his current sentence, which was determined at his re-sentencing
hearing. Because this Court determined that the trial court erred when it originally sentenced the
petitioner, we remanded his case for re-sentencing. At the re-sentencing hearing, the trial court
sentenced the petitioner as a Range II offender to serve an 18-year sentence, which is comprised of
two consecutive 9-year sentences. The petitioner complains that the trial court erroneously classified
him as a Range II offender and ordered him to serve his sentences consecutively. However, this
Court has previously determined that the trial court correctly both classified the petitioner as a Range
II offender and ordered him to serve his sentences consecutively. See John L. Goodwin, 1997 Tenn.
Crim. App. LEXIS 679, at **8-13. Accordingly, we find that the petitioner’s sentencing challenge
lacks merit.

                                           Brady Violation

       The petitioner alleges that the state withheld several pieces of exculpatory information,
namely several affidavits supporting his arrest warrants. These affidavits were made by the victim,
and the petitioner states that he was entitled to receive them as exculpatory evidence because the
victim’s affidavits contradicted her sworn trial testimony.

         At the outset of our analysis, we note that the petitioner waived this issue by failing to raise
it on direct appeal. See Tenn. Code Ann. § 40-30-206(g). Regardless of whether the issue has been
waived, this issue lacks merit.

        According to Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963),
        in order to establish a Brady violation, four elements must be shown by the
        defendant:




                                                  -7-
         1) that the defendant requested the information (unless the evidence is obviously
         exculpatory, in which case the State is bound to release the information whether
         requested or not);
         2) that the State suppressed the information;
         3) that the information was favorable to the accused; and
         4) that the information was material.

See Johnson v. State, 38 S.W.3d 52, 56 (Tenn. 2001) (citing State v. Edgin, 902 S.W.2d 387, 390
(Tenn. 1995); State v. Walker, 910 S.W.2d 381, 389 (Tenn. 1995)).

        However, the petitioner has not met the third and forth criteria above, namely that the
evidence is favorable to the accused and that it is material. “Evidence is deemed to be material when
‘there is a reasonable probability that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different.’” Johnson, 38 S.W.2d at 58 (quoting Edgin, 902 S.W.2d
at 390); see also Walker, 910 S.W.2d at 389; State v. Copeland, 983 S.W.2d 703, 706 (Tenn. Crim.
App. 1998). The petitioner claims that if he had been able to impeach the victim with her affidavit,
the jury would have learned that the victim’s affidavit states that she first saw the petitioner in her
room, while she testified at trial that she first saw him in her hallway. Presumably, the petitioner
would have used this inconsistency to impeach the victim and establish that her recollection of his
whereabouts in her house was inconsistent because she fabricated the story. However, at trial, the
petitioner testified that, on the day of the alleged crime, he followed the victim and entered her house
because he believed that she was in need of aid. In light of his admitted presence at the crime scene,
we cannot say that the impeachment value of the victim’s affidavits would have changed the
outcome of his trial.3 Accordingly, we find that this issue does not merit relief.4

             Whether Petitioner Was Given Proper Notice of the Charges Against Him

         The petitioner contends that the trial court did not inform him of the charges against him and
that if he had been properly informed of the charges and their severity, he would not have requested
to represent himself at his trial. We first note that the petitioner waived this issue by failing to raise


         3
                     The petitioner also refers to another inconsistency between the victim’s trial testimon y and her sw orn
statement in her arrest affidavit, namely that in her affidavit the victim states that the “[s]ubject] was leaving when
affiant’s husband drove up,” while at trial the victim testified that the petition er on ly began to leave when her husband
drove up. Again, the petitioner admitted at trial that he was indeed at the victim’s home. Therefore, although the
petitioner now claims that if he had impeached the victim with this inconsistency, he would have been able to
dem onstrate that the victim had fabricated the entire incident, we do not believe that the impeachment value of the
affida vits is so sig nificant that it wou ld have affected the outcome of the trial.

         4
            The petitioner also raises this issue as a deprivation of his constitutional right to effective cross-examination,
claiming that because he was denied ac cess to these a ffidav its, he w as also denied an opp ortunity to effectively cro ss-
examine the witness. Because we find that the impeachment value of these affidavits is significantly diminished in light
of the petitioner’s ad mitted p resence a t the crime scene, w e find that he was not denied his right to effective c ross-
examin ation beca use h e cou ld not imp each the victim with her affidav its.

                                                             -8-
it on direct appeal. See Tenn. Code Ann. § 40-30-206(g). Regardless, the petitioner’s allegation is
contradicted by his own remarks during his opening statement.

                 I know a lot of you may be wondering why is this man up there is
        representing himself, why doesn’t he have this man right over here represent him or
        why didn’t the Judge appoint him another one. I chose that my own self. I feel like
        this is a very serious charge. I don’t take this charge very lightly. On the street I’m
        what – I’ve worked in the area of paralegal.5 I’m not an attorney, but I do know my
        rights. I know that I have the right to get up here and confront witnesses. I have the
        right to speak to each one of you. And I have the right to put on my own set of
        witnesses to prove that I’m not guilty.
                 You may find that to understand why a man would not want an attorney to
        represent him. Because, as I said, somebody says that I raped them. I want to look
        them dead square in the eye. I want to be able to ask the questions my own self.

        Based on the above statements, the petitioner appears to have fully understood the severity
of the charges against him at the time of his trial and to have made a careful decision to represent
himself. Moreover, at the petitioner’s motion for new trial hearing, his counsel acknowledged that
the petitioner was aware of the charges against him when he made the decision to represent himself.
Accordingly, we find that the petitioner’s claim lacks merit.

                  Constitutionality of Tennessee Rule of Criminal Procedure 44(a)

        The petitioner challenges the constitutionality of Tennessee Rule of Criminal Procedure
44(a), arguing that it is unconstitutional because it does not require that a trial court advise a pro se
defendant of the charges against him or her before accepting that defendant’s request to represent
him- or herself. Once more, the petitioner has waived this contention by failing to raise it on direct
appeal. See Tenn. Code. Ann. § 40-30-206(g).

                                  Impartiality of Petitioner’s Trial Judge

        The petitioner contends that the trial judge who presided over his trial became prejudiced
against him and acted as a state agent during his trial. According to the petitioner, the trial judge
became impartial once she learned that the petitioner had sent a juror a letter that the juror found
threatening. However, this issue has been waived by the petitioner because he did not raise this issue
in his direct appeal. See Tenn. Code Ann. § 40-30-206(g); Tenn. R. Sup. Ct. 28, § 2(D).
Furthermore, the petitioner alleges that the trial judge’s impartiality is demonstrated by her erroneous
application of an unsupportable enhancement factor during sentencing. However, this Court has
previously addressed this allegation and found the application of the enhancement factor to have
been the result of a proper exercise of discretion. See Goodwin, 1997 Tenn. Crim. App. LEXIS 679,



        5
            The representation that the petitioner had worked as a paralegal was later determined to be false.

                                                          -9-
at **12-15; see also Tenn. Code Ann. § 40-30-206(h); Tenn. R. Sup. Ct. 28, § 2(E). Accordingly,
we find that this issue does not merit post-conviction relief.

                              Effectiveness of Assistance of Counsel

        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 there is a reasonable probability that,
but for counsel’s deficient performance, the result of the proceeding would have been different.
“Because a petitioner must establish both prongs of the test to prevail on a claim of ineffective
assistance of counsel, failure to prove either deficient performance or resulting prejudice provides
a sufficient basis to deny relief on the claim.” Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997).
“Moreover, on appeal, the findings of fact made by the trial court are conclusive and will not be
disturbed unless the evidence contained in the record preponderates against them.” Adkins v. State,
911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). “The burden is on the petitioner to show that the
evidence preponderated against those findings.” Id.

        On claims of ineffective assistance of counsel, the petitioner is not entitled to the benefit of
hindsight. Adkins, 911 S.W.2d at 347. 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 the 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).

    (1) Alleged Conspiracy Between the Assistant District Attorney and Petitioner’s Counsel

         The petitioner claims that his counsel ineffectively represented him at trial by conspiring with
the assistant district attorney to ensure his conviction. The petitioner contends that his attorney’s
bias is demonstrated by his correspondence with the assistant district attorney and his volunteering
to testify at his post-conviction hearing.

         The petitioner’s complaints are regarding the February 27, 1992, letter from his former
counsel for new trial and post-conviction advisory counsel to the assistant district attorney. Counsel
wrote this letter after he had been discharged as the petitioner’s counsel on January 7, 1991. The
letter references the petitioner’s complaints about the calculation of his sentence and was apparently
written in anticipation of the post-conviction hearing in which counsel was to be called as a witness
because the petitioner alleged that counsel had rendered ineffective assistance. Thus, counsel was
corresponding with the assistant district attorney regarding his testimony and strategy for defending
against the petitioner’s allegation that counsel had rendered ineffective assistance.


                                                  -10-
         As counsel was not representing the petitioner at the time that he wrote to the assistant
district attorney, he was able to reveal recent statements made to him by the petitioner because those
statements were not made in the context of the attorney/client relationship. See Code Prof. Resp.
R. 8 DR-4-101(A) (explaining that “secrets” are certain information that an attorney gains during
the course of the attorney-client relationship); cf. Code Prof. Resp. R. 8 EC 4-6 (stating that an
attorney should preserve the confidences and secrets of clients gained during the attorney/client
relationship after the termination of that relationship).
         Additionally, counsel did not act unethically by revealing confidences or secrets gained
during the attorney/client relationship if those confidences were necessary to formulate his defense
against the petitioner’s accusation that counsel provided ineffective representation. See Code Prof.
Resp. R. 8 DR-4-101(C)(4) (allowing attorneys to reveal “[c]onfidences or secrets necessary to . .
. defend the lawyer . . . against an accusation of wrongful conduct”). After reviewing the content of
the letter at issue, we find that the letter discussed only matters relevant to the petitioner’s claim that
he received ineffective assistance of counsel at the sentencing phase of his trial. Accordingly, we
find that the post-conviction court correctly determined that counsel did not violate his ethical
obligations when he corresponded with the assistant district attorney.

                        (2) Effectiveness of Counsel Representing Petitioner
                         at Re-Sentencing and the Post-Conviction Hearing

        The petitioner makes similar complaints regarding the effectiveness of his original post-
conviction counsel and counsel on direct appeal, as well as his counsel at the re-sentencing hearing
and on appeal of the new sentence. He claims that both attorneys failed to: (a) investigate the
petitioner’s alibi and challenge the sufficiency of the evidence based on his alibi defense; (b)
investigate the factual and legal claims in the affidavits supporting his arrest warrants and challenge
the sufficiency of the evidence supporting his convictions on the basis of the contradictions
contained within those affidavits; (c) investigate the pre-sentence report; (d) contest the state’s notice
of enhanced punishment; and (e) raise the issue of erroneous jury instructions.

        The petitioner’s first claim that both attorneys erroneously failed to investigate his alibi
defense and challenge the sufficiency of the evidence supporting his conviction on that ground is
meritless because the petitioner himself failed to present an alibi defense at trial. In fact, he admitted
to being present at the crime scene at the time of the crime. Accordingly, he cannot now criticize
his attorneys for failing to investigate a potential alibi and challenge the sufficiency of the evidence
on the basis of an alibi defense theory that the petitioner refuted at trial.

       Regarding the petitioner’s claim that his attorneys erroneously failed to investigate the
inconsistencies in the affidavits supporting his arrest warrants, appealing his conviction on the basis
those inconsistencies would not have warranted relief because, as discussed supra, those
inconsistencies would not have changed the outcome of the trial. See Strickland v. Washington, 466
U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674 (1984). Thus, we cannot say that his
attorneys’ failure to raise this issue on appeal constituted deficient performance.


                                                   -11-
        Moreover, the crux of the petitioner’s complaint regarding his attorneys’ failure to properly
investigate the pre-sentence report is similar to his complaint that his attorneys did not properly
investigate inconsistencies among various statements made by the victim: He complains that page
two of his presentence report contains a description of the crime that was copied from one of the
affidavits that we have discussed supra. For the same reasons outlined above, the petitioner has not
demonstrated deficient performance based upon his attorneys’ failure to investigate this discrepancy
or raise it as a basis for a sufficiency appeal.
        The petitioner also complains that his attorneys deficiently represented him by failing to
investigate potential discrepancies in the petitioner’s employment, military, and educational records.
The petitioner questioned both of his attorneys, counsel who represented him on post-conviction and
counsel who represented him at re-sentencing, about the inconsistencies between the victim’s
statements in the pre-sentence report and her testimony at trial and their failure to challenge the
sufficiency of the evidence on that basis. Both attorneys responded that they had not appealed the
sufficiency of the evidence on this basis because they felt that it would not have been a meritorious
issue. The petitioner then went on to ask only one attorney, his counsel who represented him on his
original post-conviction petition and on his delayed direct appeal, if he had investigated several other
statements in the presentence report, namely facts regarding his educational level, his military record,
and his employment issue. Counsel responded that he had discussed the pre-sentence report with
the petitioner and that the petitioner had testified regarding several of these subject areas. The
petitioner has failed to prove how his counsel deficiently represented him by failing to further verify
the facts set forth in the presentence report. He does not allege what would have been discovered
had counsel done further investigation nor how the petitioner was prejudiced by this omission.
Because the petitioner has failed to prove his allegation by clear and convincing evidence, we find
that this issue lacks merit.

         The petitioner further complains that both of his attorneys were deficient for failing to
challenge the state’s notice of enhancement, claiming that the notice was “nothing more than an
empty notice.” While the petitioner’s complaint is quite vague, after reviewing the record and the
written notice of enhancement, we believe that he is complaining that the notice is deficient because
it fails to inform the petitioner that the state will seek to have him classified as an especially
aggravated offender if convicted. The petitioner was originally convicted in 1989, the year of the
passage of the 1989 Sentencing Reform Act. See Tenn. Code Ann. §§ 40-35-101 to 504 (1997).
Accordingly, the trial court that sentenced the petitioner was required to determine his sentence
under both the 1982 Sentencing Act and the 1989 Sentencing Act and then sentence the defendant
under the act that would require him to serve the least amount of time. See State v. Pearson, 858
S.W.2d 879, 884 (Tenn. 1993).

       The structure of the 1982 Act categorizes defendants into two sentencing ranges, Range I and
Range II. See Tenn. Code Ann. §§ 40-35-101 to 109 (Supp. 1986). Range I consisted of “standard
offenders,” Tenn. Code Ann. § 40-35-105 (Supp. 1986), and Range II consisted of “persistent
offenders” and “especially aggravated offenders,” Tenn. Code Ann. §§ 40-35-106, -107 (Supp.
1986). The 1989 Act is comprised of four sentencing ranges, Range I, “standard offenders,” Tenn.
Code Ann. § 40-35-105 (1997), Range II, “multiple offenders,” Tenn. Code Ann. § 40-35-106


                                                 -12-
(1997), Range III, “persistent offenders,” Tenn. Code Ann. § 40-35-107 (1997), and Range IV,
“career offenders,” Tenn. Code Ann. § 40-35-108 (1997). Additionally, the 1989 Act does not use
the term “especially aggravated offender.”

        When the state filed its notice of intent to seek enhanced punishment in November of 1989,
it used a form that reflected the 1982 Act’s terminology, but altered it to reflect its notice of intent
to seek to classify the petitioner as a Range II multiple offender under the new 1989 Act. The trial
court sentenced the petitioner without determining the petitioner’s potential sentence under both acts,
and thus this court remanded the instant case for re-sentencing. See Goodwin, 909 S.W.2d at 45-46.
On remand, the trial court sentenced the petitioner under the 1982 Act as a Range II offender after
finding him to be an especially aggravated offender. See Goodwin, 1997 Tenn. Crim. App. LEXIS
679, at *16. When reviewing the new sentence, this Court determined that the trial court had failed
to properly consider the petitioner’s potential sentence under both acts and that the petitioner should
have been sentenced under the 1989 Act because he was subject to a lesser sentencing range for his
second-degree burglary conviction under the 1989 Act: Under the 1982 Act he faced 9-15 years,
while his range was 6-10 years under the 1989 Act. Id. However, because the petitioner’s 9-year
sentence for this conviction was within the 1989 Act’s range, and because the petitioner’s sentence
would have been enhanced by several applicable enhancement factors under the 1989 Act that were
not figured into his sentence under the 1982 Act, this Court determined that the error was ultimately
harmless. Id.

        Accordingly, although the petitioner was not properly notified of the state’s intent to classify
him as an especially aggravated offender under the 1982 Act, we do not believe that proper notice
would have affected the sentence received. While the petitioner was sentenced as an especially
aggravated offender under the 1982 Act, he should have been sentenced as a multiple offender under
the 1989 Act. The notice of intent to seek enhancement indicated that the prosecutor was properly
seeking to classify the petitioner as a multiple offender. Furthermore, as mentioned supra, the
petitioner would have received a similar sentence if sentenced under the 1989 Act. Because proper
notice essentially would not have affected the sentencing hearing, we find that the petitioner’s
counsel did not render ineffective assistance. See Strickland, 466 U.S. at 694.

        Finally, the petitioner complains that one attorney, the attorney who represented him on his
original post-conviction petition and on his delayed direct appeal, erroneously failed to challenge the
jury instructions. However, those instructions have not been filed as part of our record for review.
The petitioner requested the instructions, but allegedly never received them. As discussed supra, the
trial court was not required to comply with this request because his request failed to state what he
hoped to prove by reviewing the instructions. See Givens, 702 S.W.2d at 580. We cannot determine
the merits of this claim without reviewing the instructions. Therefore, we find that this issue does
not merit relief.

                                             Conclusion




                                                 -13-
      For the foregoing reasons, we find that none of the petitioner’s allegations merit relief.
Accordingly, the judgment of the post-conviction court is AFFIRMED.




                                                    ___________________________________
                                                    JERRY L. SMITH, JUDGE




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