             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON                 FILED
                           MARCH 1999 SESSION
                                                                 April 20, 1999

                                                              Cecil Crowson, Jr.
                                                              Appellate C ourt Clerk
TONEY N. SMITH,                    )
                                   )
             Appellant,            )   No. 02C01-9806-CR-00200
                                   )
                                   )   Shelby County
v.                                 )
                                   )   Honorable Joseph Dailey, Judge
                                   )
STATE OF TENNESSEE,                )   (Post-Conviction)
                                   )
             Appellee.             )


For the Appellant:                     For the Appellee:

William C. Gosnell                     John Knox Walkup
100 North Main Street, Ste. 3010       Attorney General of Tennessee
Memphis, TN 38103                             and
(AT TRIAL)                             J. Ross Dyer
                                       Assistant Attorney General of Tennessee
Toney N. Smith, Pro Se                 450 James Robertson Parkway
Turney Center 4-B-49                   Nashville, TN 37243-0493
Route No. 1
Only, TN 37140-9709                    William L. Gibbons
(ON APPEAL)                            District Attorney General
                                               and
                                       J. Robert Carter
                                       John Sorrell
                                       Assistant District Attorneys General
                                       201 Poplar Ave., Ste 301
                                       Memphis, TN 38103-1947




OPINION FILED:____________________



AFFIRMED

Joseph M. Tipton
Judge
                                        OPINION



              The petitioner, Toney N. Smith, pro se, appeals as of right from the denial

of post-conviction relief by the Shelby County Criminal Court. He contends that he

received the ineffective assistance of counsel and that the negotiated settlement of his

sentences was not knowingly and voluntarily entered. We disagree.



              The petitioner was convicted in 1994 of second degree murder and

aggravated child abuse. He entered into an agreement with the state at his sentencing

hearing to receive a thirty-year sentence on each count as a Range II, multiple

offender, to be served concurrently. Pursuant to the agreement, the petitioner waived

his right to a motion for a new trial and his right to appeal.



              At the post-conviction evidentiary hearing, the petitioner claimed that his

trial attorney failed to meet with him in jail adequately, failed to interview and call

character witnesses, failed to object timely to an amendment of the indictment, failed to

file certain motions, failed to pursue a motion to suppress his statements to the police,

failed to make certain objections, and failed to advise him that he would forfeit his right

to appeal if he accepted the effective sentence of thirty years. On cross-examination,

the petitioner admitted that his attorney tried to keep his statement to the police out of

the trial. He also acknowledged that he had a twelfth-grade education and had entered

guilty pleas on several occasions.



              The only other witness called on the petitioner’s behalf was his mother.

Essentially, she stated that the petitioner’s attorney had said that he would use her as a

witness, but she was not called to testify.




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              The trial attorney testified that he replaced the petitioner’s original attorney

five months before the trial. He said that he met with the petitioner in jail on two

occasions and saw him when they would go to court. He stated that he filed a set of

motions one month after taking the case, including a motion to suppress the petitioner’s

written statement to the police in which he admitted that he shook the victim. He said

that a hearing on the motion occurred the day before trial and that the trial court ruled

that the statement could be used. He acknowledged that the petitioner gave an earlier

oral statement that was not the subject of the motion, but he noted that in the oral

statement, the petitioner denied abusing the child. The attorney also said the oral

statement was less significant because it was given before the written one which

incriminated him.



              The attorney acknowledged that he did not call any character witnesses

during the trial. He said that even if the petitioner’s character had become an issue, he

would have recommended against such witnesses because of the petitioner’s criminal

record. He noted that the petitioner did not testify. The attorney stated that he

explained to the petitioner his concerns about the petitioner taking the stand and using

any character witnesses.



              The attorney testified that when he was appointed to the case, there were

already two indictments. He said the indictment was not amended, and he saw nothing

wrong with the procedures used.



              The attorney testified that the victim’s mother’s use of cocaine was

proven. He said that no one gave him any witnesses who could testify to the mother

abusing the child or to the fact that other people may have had access to the child.

However, he said that the petitioner admitted to shaking the victim and being

responsible for her death.



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               Relative to sentencing, the attorney testified that he fully explained to the

petitioner his rights to a motion for a new trial and to an appeal but that he did not see

any reversible error. He said that there was little controverted evidence that would

make a difference. He said that he explained to the petitioner that he was exposed to

seventy years in prison and that the petitioner willingly agreed to the thirty-year offer.



               The transcript of the sentencing hearing reflects that the trial court fully

discussed with the petitioner his rights to a motion for a new trial and to an appeal and

explained that pursuant to the agreement, the petitioner would be waiving and giving up

his right to appellate review of the conviction. Also, the trial court told the petitioner that

it considered him to be eligible for consecutive sentencing and that he was eligible for

Range III sentencing for the aggravated child abuse offense. The petitioner was made

aware that he was exposed to a maximum sentence of seventy years for the two

convictions.



               In its order denying relief, the trial court stated that it considered the

convicting case record as well as the testimony at the evidentiary hearing. It found, in

pertinent part, as follows:

               [The trial attorney] interviewed witnesses, filed motions,
               conducted a thorough suppression hearing on the date prior to
               the trial, vigorously argued that the confession should be
               suppressed, fully represented Mr. Smith at trial to the best of
               his ability, and gave him the best advice he could at the
               sentencing hearing. In [the attorney’s] judgment as an
               experienced trial attorney the likelihood of his getting a much
               greater sentence if they proceeded with a sentencing hearing
               in front of the judge was great. It was his opinion that the best
               possible sentence Mr. Smith could receive under the
               circumstances given his prior record and nature of these cases
               was the 30 year sentence that had been negotiated. [The
               attorney] stated that he fully advised his client of what he
               would be giving up in exchange for accepting that agreed upon
               sentence. In this Court’s opinion, the transcript of the trial fully
               bears out [the attorney’s] assertion. In the opinion of this
               Court, the Petitioner was thoroughly and properly represented
               at his trial and at his sentencing hearing.


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The trial court concluded that the petitioner had failed to meet his burden of

demonstrating that his attorney was ineffective in his representation.



              The petitioner had the burden in the trial court of proving his allegations by

clear and convincing evidence. T.C.A. § 40-30-210(f). On appeal, he has the burden

of showing that the evidence of record preponderates against the trial court’s judgment

before we can reject the trial court’s determinations. See Black v. State, 794 S.W.2d

752, 755 (Tenn. Crim. App. 1990).



              Under the Sixth Amendment, when a claim of ineffective assistance of

counsel is made, the burden is upon the petitioner to show (1) that counsel's

performance was deficient and (2) that the deficiency was prejudicial in terms of

rendering a reasonable probability that the result of the trial was unreliable or the

proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S.

Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 369-72, 113 S. Ct. 838,

842-44 (1993). The Strickland standard has been applied, as well, to the right to

counsel under Article I, Section 9 of the Tennessee Constitution. State v. Melson, 772

S.W.2d 417, 419 n.2 (Tenn. 1989).



              In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court

decided that attorneys should be held to the general standard of whether the services

rendered were within the range of competence demanded of attorneys in criminal

cases. Further, the court stated that the range of competence was to be measured by

the duties and criteria set forth in Beasley v. United States, 491 F.2d 687, 696 (6th Cir.

1974) and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also,

in reviewing counsel's conduct, a "fair assessment of attorney performance requires

that every effort be made to eliminate the distorting effects of hindsight, to reconstruct

the circumstances of counsel's challenged conduct, and to evaluate the conduct from



                                             5
counsel's perspective at the time." Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982) (counsel's conduct will not be measured

by "20-20 hindsight"). Thus, the fact that a particular strategy or tactic failed or even

hurt the defense does not, alone, support a claim of ineffective assistance. Deference

is made to trial strategy or tactical choices if they are informed ones based upon

adequate preparation. See Hellard, 629 S.W.2d at 9; DeCoster, 487 F.2d at 1201.



              Also, we note that the approach to the issue of the ineffective assistance

of counsel does not have to start with an analysis of an attorney's conduct. If prejudice

is not shown, we need not seek to determine the validity of the allegations about

deficient performance. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.



              The record fully supports the trial court’s findings. The fact that the

attorney did not meet with the petitioner in the jail more than twice does not indicate

deficient performance. Moreover, the petitioner has not shown that prejudice resulted

from the lack of more meetings. Also, the attorney’s decisions and ultimate advice to

the petitioner regarding the petitioner testifying and the use of character witnesses were

proper matters of trial strategy. The record reflects that no last minute amendment to

an indictment occurred, and it otherwise shows that the petitioner was put to trial on two

valid indictments. The attorney vigorously sought to suppress the petitioner’s statement

in which he admitted that he shook the victim, and nothing in the record indicates that

the petitioner was entitled to suppression. Also, the record reflects that the attorney

fully discussed with the petitioner his rights and options relative to the sentencing

agreement.



              The petitioner also contends in his brief that there were other problems at

his trial relative to improper vouching by the state in its closing argument, to the jury’s

exposure to his prior record, and to the use of hearsay evidence of guilt. However, we



                                              6
view the closing argument and the reference to the defendant having been in jail to be

harmless. The hearsay about which the petitioner complains was admissible because it

consisted of his own statements to other witnesses. In sum, we conclude that the

record shows that the petitioner received the effective assistance of counsel.



               Relative to the sentencing agreement, the transcript of the sentencing

hearing belies the petitioner’s claim that he was unaware of the fact that he was giving

up the right to appeal his conviction by accepting an effective sentence of thirty years.

The record justifies the conclusion that the defendant knowingly, understandingly, and

voluntarily waived his rights to a motion for a new trial and appellate review of his

convictions in exchange for the sentences he received.



               In consideration of the foregoing and the record as a whole, the judgment

of the trial court is affirmed.



                                                 ____________________________
                                                 Joseph M. Tipton, Judge

CONCUR:



____________________________
Gary R. Wade, Presiding Judge


____________________________
Thomas T. Woodall, Judge




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