        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                  May 20, 2014 Session

             BLAIN STEVEN COVERT v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Campbell County
                       No. 15983    E. Shayne Sexton, Judge




               No. E2013-02531-CCA-R3-PC - Filed September 2, 2014




T HOMAS T. W OODALL, J., dissenting.

       I would affirm the judgment of the post-conviction court and therefore respectfully
dissent from the majority opinion.

        The trial court implicitly found that Petitioner was credible when he testified that he
never told trial counsel that he was guilty and that he had always maintained he was innocent
of the charges. Also, the trial court implicitly concluded that Petitioner was prejudiced by
trial counsel’s deficient performance by losing his opportunity for a trial - i.e. absent trial
counsel’s deficient performance, Petitioner would not have pled guilty but would have
insisted on going to trial on all twenty-seven charges in the indictment.

       The factual findings of the trial court in a post-conviction hearing are conclusive on
appeal, except where the evidence in the record preponderates against them. Dellinger v.
State, 279 S.W.3d 282, 294 (Tenn. 2009); Vaughn v. State, 202 S.W.3d 106, 115 (Tenn.
2006). As stated by our supreme court in Mobley v. State, 397 S.W.3d 70, 80 (Tenn. 2013),
appellate courts,

        generally defer to a [trial] court’s findings [in a post-conviction matter] with
        respect to witness credibility, the weight and value of witness testimony,
        and the resolution of factual issues presented by the evidence.

Id. (citing Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999).

       An appellate court cannot make a contrary finding of fact based solely upon the cold
record without seeing the witnesses or hearing the testimony in person. Lay witness
testimony of Petitioner’s mental health problems persuaded the trial court that mental health
difficulties existed, and in conjunction with Petitioner’s continued assertions of innocence,
warranted post conviction relief. Whether members of this Court might have denied relief
if we sat as the trial court is irrelevant in the context of credibility of witnesses. If well
settled law which grants great deference to the trial court in post-conviction proceedings
means anything, then the judgment of the trial court in this case must be affirmed. The State
asserts that prejudice was not proven because Petitioner failed to show that, if not for trial
counsel’s deficient representation, Petitioner would not have pled guilty and would have
insisted on a trial. I disagree. Petitioner’s testimony and the testimony of Petitioner’s father
established this proof of prejudice.

       Accordingly, I would affirm.

                                                    _________________________________
                                                    THOMAS T. WOODALL, JUDGE




                                              -2-
