         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT NASHVILLE         FILED
                      NOVEMBER 1998 SESSION
                                               December 30 1998

                                               Cecil W. Crowson
                                              Appellate Court Clerk
SHONE KING,                     )
                                )    NO. 01C01-9709-CR-00408
      Appellant,                )
                                )    DAVIDSON COUNTY
VS.                             )
                                )    HON. J. RANDALL WYATT, JR,
STATE OF TENNESSEE,             )    JUDGE
                                )
      Appellee.                 )    (Post-Conviction)



FOR THE APPELLANT:                   FOR THE APPELLEE:

SAM E. WALLACE, JR.                  JOHN KNOX WALKUP
227 Second Avenue North              Attorney General and Reporter
Second Floor
Nashville, TN 37201                  LISA A. NAYLOR
                                     Assistant Attorney General
                                     Cordell Hull Building, 2nd Floor
                                     425 Fifth Avenue North
                                     Nashville, TN 37243-0493

                                     VICTOR S. JOHNSON III
                                     District Attorney General

                                     NICHOLAS D. BAILEY
                                     D. PAUL DeWITT
                                     Asst. District Attorneys General
                                     Washington Square, Suite 500
                                     222 Second Avenue South
                                     Nashville, TN 37201-1649




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                      OPINION



       The petitioner, Shone King, appeals the trial court’s denial of post-

conviction relief. Petitioner is currently serving an effective sentence of ninety-

nine (99) years following his conviction by a Davidson County jury for three (3)

counts of aggravated rape and one (1) count each of aggravated burglary,

aggravated robbery, and aggravated assault. The petitioner filed for post-

conviction relief alleging ineffective assistance of counsel. After a hearing, the

trial court dismissed the petition. After a review of the record, we AFFIRM the

judgment of the trial court.



                               PROCEDURAL HISTORY



       Petitioner was convicted in June 1993, by a Davidson County jury of three

(3) counts of aggravated rape and one (1) count each of aggravated burglary,

aggravated robbery, and aggravated assault. He was sentenced as a Range I,

standard offender, to consecutive sentences of twenty-five (25) years for each of

the aggravated rape convictions, six (6) years for aggravated burglary, twelve

(12) years for aggravated robbery, and six (6) years for aggravated assault, for

an effective sentence of ninety-nine years.



       This Court affirmed the petitioner’s convictions and sentences. State v.

Gregory Lamont Turner, Shone D. King, Larry E. Davis, and David Clark, C.C.A.

No. 01C01-9402-CR-00068, Davidson County (Tenn. Crim. App. filed November

15, 1995, at Nashville). The Tennessee Supreme Court subsequently denied

permission to appeal on May 6, 1996.



       The petitioner, with the aid of counsel, timely filed the instant petition

alleging ineffective assistance of trial counsel. After a hearing, the trial court

issued a written order dismissing the petition. The petitioner filed a timely notice



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of appeal.



                     INEFFECTIVE ASSISTANCE OF COUNSEL



       The trial judge's findings of fact on post-conviction hearings are conclusive

on appeal unless the evidence preponderates otherwise. Butler v. State, 789

S.W.2d 898, 899 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 341 (Tenn.

Crim. App. 1995). The trial court’s findings of fact are afforded the weight of a

jury verdict, and this Court is bound by the trial 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); Dixon v. State, 934 S.W.2d 69, 72 (Tenn. Crim. App. 1996).

This Court may not reweigh or reevaluate the evidence, nor substitute its

inferences for those drawn by the trial judge. Henley v. State, 960 S.W.2d at

578-79; Massey v. State, 929 S.W.2d 399, 403 (Tenn. Crim. App. 1996); Black v.

State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).



       This Court reviews a claim of ineffective assistance of counsel under the

standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The

petitioner has the burden to prove that (1) the attorney’s performance was

deficient, and (2) the deficient performance resulted in prejudice to the defendant

so as to deprive him of a fair trial. Strickland v. Washington, 466 U.S. at 687,

104 S.Ct. at 2064; Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Overton v.

State, 874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State, 789 S.W.2d at 899.

Decisions based upon trial strategy are generally not subject to post-conviction

challenge. See Goad v. State, 938 S.W.2d at 369; Hellard v. State, 629 S.W.2d

4, 9 (Tenn. 1982).




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                       1. Counsel Under Federal Indictment



       The petitioner contends he was prejudiced by the fact that his attorney

was under a federal indictment for fraud during the trial of this case. He

contends he only learned of his attorney’s indictment during his trial and was

effectively prevented from seeking new counsel.



       Both the petitioner and trial counsel recalled an in-chambers conference

regarding trial counsel’s indictment. The petitioner indicated no dissatisfaction

with trial counsel’s representation at that time and advised the court he wanted

counsel to continue his representation. Further, the petitioner chose to employ

counsel to represent him on direct appeal.



       The mere fact that trial counsel had a pending federal charge does not

per se indicate ineffective assistance of counsel. See Weaver v. State, 472

S.W.2d 898, 901 (Tenn. Crim. App. 1971). The post-conviction court found no

deficiency with trial counsel in this regard and no prejudice to petitioner. The

evidence does not preponderate against these findings.



       This issue is without merit.



                                2. Petitioner Testifying



       The petitioner claims he was denied effective assistance of counsel by his

attorney’s preventing him from testifying in his own defense. Petitioner testified

at the post-conviction hearing that he informed trial counsel that he wanted to

testify at trial, but trial counsel would not allow it.



       Counsel testified that he never had blanket prohibitions against a

defendant testifying. Counsel refuted petitioner’s claim that counsel did not


                                             4
advise petitioner of his right to testify. Counsel testified it was his practice to wait

until the appropriate time during the trial, explain to his client the benefits and

risks of testifying, and then make a recommendation to the client.



       The trial court found petitioner’s trial counsel not only informed petitioner

of his right to testify, but wisely advised against it. Further, the post-conviction

court did not find petitioner’s testimony in this regard to be credible.



       The evidence does not preponderate against the findings of the trial court.

Thus, this issue is without merit.



                                  3. DNA Evidence



       The petitioner finally alleges trial counsel was ineffective for relying too

strongly on the lack of DNA evidence.



       Petitioner is actually attacking counsel’s strategy pursued at trial. Counsel

testified he pursued two lines of defense: 1) that the DNA evidence did not

match the petitioner; and 2) the victim incorrectly identified the petitioner as one

of the perpetrators of the rape. The defense theory was consistent with

petitioner’s pre-trial insistence that he was not in the victim’s residence.



       The trial court found counsel’s selection of trial strategy was an informed

and reasoned decision based upon his years of experience as a criminal

defense attorney. The trial court found no reason to second guess counsel’s

strategy, nor do we. See Goad, 938 S.W.2d at 369.



       We also note petitioner has failed to establish any prejudice. Specifically,

petitioner has not shown what trial counsel could have done to affect the

outcome of the trial. The victim’s in-court identification of the petitioner as one of



                                           5
the rape perpetrators was devastating. There has been no showing as to what

trial counsel could have done to impeach this testimony.



       This issue is without merit.



                                  CONCLUSION



       The trial court examined the assistance rendered the petitioner by trial

counsel and found it exceeded the level mandated by Strickland v. Washington,

supra. In what was essentially a swearing contest, the trial court found counsel’s

testimony more credible than that of the petitioner. The trial judge was in a much

better position to determine the credibility of the witnesses, and we yield to his

determination in that regard. Further, petitioner has failed to demonstrate that he

was prejudiced as a result of counsel’s performance.



       Accordingly, the judgment of the trial court is AFFIRMED.




                                                 _________________________
                                                 JOE G. RILEY, JUDGE



CONCUR:




____________________________
PAUL G. SUMMERS, JUDGE



____________________________
L.T. LAFFERTY, SENIOR JUDGE




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