        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT KNOXVILLE             FILED
                     FEBRUARY SESS ION, 1999         May 27, 1999

                                               Cecil Crowson, Jr.
                                                Appellate C ourt Clerk
MARK S. MILLER,           )    C.C.A. NO. 03C01-9803-CR-00108
                          )
      Appe llant,         )
                          )
                          )    KNOX COUNTY
VS.                       )
                          )    HON. RICHARD R. BAUMGARTNER
STATE OF TENNESSEE,       )    JUDGE
                          )
      Appellee.           )    (Post-Conviction)




FOR THE APPELLANT:             FOR THE APPELLEE:

JOHN W. ROUTH                  JOHN KNOX WALKUP
4611 Old Broadway              Attorney General and Reporter
Knoxville,TN 37918
                               TODD R. KELLEY
                               Assistant Attorney General
                               425 Fifth Avenu e North
                               Nashville, TN 37243-0493

                               RANDALL E. NICHOLS
                               District Attorney General

                               ANNE CRISLER
                               Assistant District Attorney
                               City-County Building
                               Knoxville, TN 37902



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                                OPINION


         On September 10, 1991, Appellant Mark S. Miller pled guilty to one count

of conspiracy to sell cocaine. That same day, the trial court sentenced Appellant

to four years of imprisonment, but appare ntly postpo ned the entry of judg ment.

On Septem ber 24, 1992 , the trial court determ ined that App ellant should serve

sixty days of his sentence in confinement followed by the remainder on probation.

 Because Appellant had failed to adhere to the conditions of his probation, the

trial court ordered on January 11, 1995, that Appellant be placed under the

supervision of the Community Alternatives to Prison Program (“CAPP”). On April

13, 1995, the trial court revoked Appellant’s placement in CAPP because of

Appe llant’s fa ilure to c omp ly with the requirements of the program. In addition,

the trial court increased Appellant’s sentence to six years. On August 23, 1995,

Appellant filed a p etition fo r post-c onvictio n relief. On February 19, 1997, the

post-conviction court conducted a hearing on Appellant’s petition. That same

day, the post-conviction court dismissed the petition.1 Appellant challenges the

dismissal of his petition, raising the following issues:

         1) whether the post-conviction court erred when it determined that
         Appellant had received effective assistance of counsel; and
         2) whethe r it was inap propriate for the judg e who a ccepte d Appe llant’s
         guilty plea to represent the State as the prosecutor at the CAPP revocation
         hearing.



         1
          Appellant did not appeal the dismissal of his petition. Instead, Appellant filed a motion to reopen
his post-conviction petition on July, 18, 1997. The post-conviction court denied the motion on November
13, 1997 . Appellant filed notice of a ppeal of th e denial of his mo tion to reop en on D ecem ber 11, 1 997.
The State filed a motion to dismiss the appeal on September 8, 1998. The State asserted that the notice
of appeal was not filed within the ten days required by Tennessee Code Annotated section 40-30-217(c)
and even if it had, the motion to reopen had presented no claims that were cognizable under section 40-
30-217(a). By an order dated October 21, 1998, this Court noted that Appellant’s notice of appeal of the
denial of his motion to reopen was clearly untimely under section 40-30-217 (c). In addition, this Court
noted that the motion to reopen had presented no claims for relief that were cognizable under section 40-
35-217(a). However, this Court concluded that in the interests of justice, Appellant’s notice of appeal of
the d enial o f his m otion to reo pen shou ld be tr eate d as a delaye d not ice of appe al of th e dism issa l of his
petition.

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After a review of the record, we affirm the judgment of the pos t-conviction court.



                                 I. BACKGROUND




      The record indica tes tha t the trial ju dge w ho ac cepte d App ellant’s gu ilty

plea on Septem ber 10, 1991, was Ju dge Ran dall E. Nichols. Th at same d ay,

Judge Nichols sentenced Appellant as a Range I standard offender to a term of

four years in the Tennessee Department of Correction (“TDOC”). Although the

record is not clear, Judge Nichols apparently decided to postpone the entry of

judgment until Appe llant’s w ife cou ld recover from a stroke sufficiently to care for

the coup le’s child ren wh ile App ellant w as in co nfinem ent.       Ju dge N ichols

subsequ ently resigned his judicial office to becom e the Kn ox Cou nty District

Attorney General. On September 24, 1992, Judge Richard R. Baumgartner

ordered Appellant to serve sixty days of his sentence in confinement followed by

the rem ainder o f the four ye ars on p robation .



       On January 11, 1995, Judge Baumgartner placed Appellant in CAPP

because he had failed to comply with the conditions of his prob ation. In doing so,

Judge Baumgartner stated:

              “Now, understand as I told—as I tell everyone, one of the p owers
       that the Court has in—in these kinds of referrals is if you are revoked for
       a material violation of the program, not only can your sentence be imposed
       upon you, but it can be increased. And I routinely increase sentences
       within the range that I am permitted to do that. So you can count on the
       fact that if you end up b eing revoked from [CAP P], not only will you have
       your origina l sente nce, b ut you w ill have an additional sentence to go along
       with that.
                      ....
              So take this op portun ity, Mr. M iller, to— to get yo urself straightened
       out and se e if you can make some progres s beca use if you d on’t, you can
       count on the fact that you’ll do the mo st amo unt of time that I can impose
       upon yo u as a viola tor of the pro gram. “

                                          -3-
       The record indicates that Judge Baumgartner presided and General

Nichols repres ented the Sta te at Ap pellan t’s CA PP re vocatio n hea ring on April

13, 1995. Tamela Wheeler testifie d at the hearin g that s he wa s App ellant’s

CAPP supervisor. Wheeler testified that after only two months in the program,

Appellant had failed to attend classes, had failed to respond to Wheeler’s phone

calls and letters, and had failed to take a drug test despite being given two

opportunities to do so. Appellant admitted that he had missed some me etings.

Howeve r, Appe llant tes tified tha t he be lieved th at the C APP adm inistrato rs wou ld

be somewhat lenient.        After listening to the testimony, Judge Baumgartner

revoked Appellant’s participation in CAPP and ordered Appellant to serve a term

of six years in TDOC.



                          II. ASSISTANCE OF COUNSEL




       Appellant contends that the post-conviction court erred when it determined

that he had received effective assistance of counsel. Specifically, Appellant

contends that his trial counsel was ineffective bec ause (a ) couns el failed to

inform him th at if he d id not c omp ly with the CAP P req uirem ents, h e wou ld go to

prison and he could re ceive an increase d sente nce; an d (b) cou nsel failed to

appeal the imposition of the increased sentence after the CAPP revocation.



       When a petitioner seeks post-conviction relief on the basis of ineffective

assistance of counsel, he or she must first establish that the services rendered

or the advice given was below “the range of compe tence dem anded of a ttorneys

in criminal cases .” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Second,

                                           -4-
he or she must show that the deficiencies “actually had an adverse effect on the

defens e.”   Strickland v. Washington, 466 U.S. 668, 693, 104 S.Ct. 2052,

2067–68, 80 L.Ed .2d 674 (1984). “Because a p etitioner m ust estab lish both

prongs of the test to prev ail on a claim of ine ffective assistance o f counsel, failure

to prove either deficient performance or resulting prejudice provides a sufficient

basis to deny re lief on the cla im.” Henley v. State, 960 S.W.2d 572, 580 (Tenn.

1997). “Indee d, a co urt nee d not a ddres s the c omp onen ts in any particular order

or even address both if the defendant makes an insufficient showing of one

comp onent.” Id. “Moreover, on appeal, the findings of fact m ade by the trial

court are conclusive and will not be disturbed unless the evid ence conta ined in

the record preponde rates against the m.” Adkins v. State, 911 S.W.2d 334, 347

(Tenn. Crim. A pp. 199 4). “The burden is on the p etitioner to show that the

evidence pre ponderate d against thos e findings.” Id.



                                A. Failure to Inform




       Appellant first contends that he received ineffective assistance of counsel

because his trial co unse l never inform ed him that he would be sent to prison and

could receive an inc rease d sen tence if he viola ted the requir emen ts of CAPP.

We disagree.



       The record indica tes tha t when Judg e Bau mga rtner p laced Appe llant in

CAPP, he clearly in formed Appella nt of the ver y things A ppellant claims that

counsel failed to tell him. In fact, Jud ge Bau mgartn er expres sly told App ellant,

“you can count on the fact that if you end up being revoke d from [CAP P], not only

will you have your original sentence, but you will have an additional senten ce to

                                           -5-
go along with that.” Thus, it is clear that even if A ppella nt’s couns el had faile d to

tell him that he w ould be sen t to prison and co uld receive an increased sentence

if he violated the requirements of CAPP, Appellant could not have been

prejudiced by the fa ilure because Judge Baumgartner provided Appellant with the

same information. Indeed, Appellant has failed to even identify any prejudice that

he suffered because of his counsel’s alleged failure to provide him with the

informa tion. This is sue ha s no m erit. 2



                      B. Failure to Appeal the Increased Sentence




         Appellant also co ntend s that h is trial co unse l was in effective in failing to

appeal the increase in sentence from four to six years after the CAPP revocation.

Howeve r, the record indicates that Appellant did no t raise th is issue in his petition

for post-conviction relief and there is no indication in the record that Appellant

ever filed an amended petition that raised this issue. In addition, Appellant failed

to make any reference to this issue during the hearing on his petition. “As a

general rule, this court will not address post-conviction issues that were not

raised in the petition or addressed in the trial court.” Brown v. State , 928 S.W.2d

453, 457 (Tenn. Crim. App. 1996). 3 Indeed, because this issue was not raised

below, no evidence w as presen ted on this issue a nd the post-co nviction court


         2
          Appellant also contends that he is entitled to a new hearing on his petition for post-conviction
relief because his trial counsel did not testify at the hearing. Essentially, Appellant contends that the trial
court could not properly rule on the ineffective assistance of counsel claim without listening to the
testimony of Appellant’s trial counsel. However, the record indicates that Judge Baumgartner placed
App ellant in CA PP, s ubs equ ently re vok ed A ppe llant’s place me nt in C APP , and later r uled o n Ap pellan t’s
petition for post-conviction relief. Because Judge Baumgartner already knew that he had given Appellant
an exp ress wa rning abo ut the con seque nces o f violating the C APP re quirem ents, there was no need to
take testimony from Appellant’s trial counsel in regard to whether counsel had given the same warning.

         3
         W e note tha t Appellan t did raise this is sue in his m otion to reo pen his p ost-con viction petition.
How ever , this C ourt’s orde r of O ctob er 21 , 199 8, m erely a llowe d Ap pellan t to ap pea l the dis mis sal of his
post-conviction petition. Nothing in the order permitted Appellant to assert new claims on appea l that were
not raised in his petition.

                                                        -6-
obviou sly made n o findings of fact or con clusions of law reg arding it. Thus, there

is nothin g in the reco rd from w hich this C ourt cou ld review this issue. Because

Appellant failed to raise th is issue in his pe tition an d at the hearin g, this iss ue is

waived.



      III. REPRESENTATION OF THE STATE BY THE FORMER JUDGE




         Appellant contends that it was inappropriate for General Nichols to

represent the State at Appellant’s CAPP revocation hearing.                                     However, the

record indica tes tha t Appe llant faile d to rais e this iss ue in h is petitio n for post-

conviction relief, failed to file an amended petition that raised this issue, a nd

failed to make any reference to this issue during the hearing on his petition.4 As

previo usly stated , “this co urt will not address post-conviction issues that were not

raised in the petition or addresse d in the trial court.” Brown, 928 S.W.2d at 457.5

Because Appella nt failed to raise this issue in his petition and at the he aring, th is

issue is waived.



         According ly, the post-conviction court’s dismissal of Appe llant’s p etition is

AFFIRMED.


                                              ____________________________________
                                              JERRY L. SMITH, JUDGE




         4
        The re is a lso no indica tion in the re cord that A ppe llant e ver o bjec ted to Gen eral N icho l’s
representation of the State at the CAPP revocation hearing.

         5
        W e note tha t Appellan t raised this is sue in his m otion to reo pen his p ost-con viction petition. F or
the reasons stated previously, this fact has no bearing on our determination that this issue is waived.

                                                        -7-
CONCUR:



___________________________________
GARY R. WADE, PRESIDING JUDGE


___________________________________
L.T. LAFFERTY, SENIOR JUDGE




                              -8-
