             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT NASHVILLE                 FILED
                               JULY 1999 SESSION
                                                              September 2, 1999

                                                             Cecil Crowson, Jr.
LUCIEN SHERROD                   )                          Appellate Court Clerk
                                 )
             Appellant,          )    No. 01C01-9808-CR-00328
                                 )
                                 )    Davidson County
v.                               )
                                 )    Honorable Seth Norman, Judge
                                 )
STATE OF TENNESSEE,              )    (Post-Conviction)
                                 )
             Appellee.           )



For the Appellant:                    For the Appellee:

Gregory D. Smith                      Paul G. Summers
One Public Square, Suite 321          Attorney General of Tennessee
Clarksville, Tn 37040                        and
                                      Lucian D. Geise
                                      Assistant Attorney General of Tennessee
                                      425 Fifth Avenue North
                                      Nashville, TN 37243

                                      Victor S. Johnson, III
                                      District Attorney General
                                              and
                                      Jon Seaborg
                                      Assistant District Attorney General
                                      Washington Square, Suite 500
                                      222 2nd Avenue North
                                      Nashville, TN 37201-1649




OPINION FILED:____________________



AFFIRMED

Joseph M. Tipton
Judge
                                                      OPINION



                   The petitioner, Lucien Sherrod, appeals as of right from the Davidson

County Criminal Court’s order denying him post-conviction relief from his 1994

conviction for first degree murder and the resulting sentence of life in prison without the

possibility of parole. The trial court granted the petitioner a delayed appeal of this

court’s affirmance of his conviction. See State v. Lucien Samuel Sherrod, 01C01-9505-

CR-00157, Davidson County (Tenn. Crim. App. Jan. 30, 1997). The petitioner

contends (1) that he received the ineffective assistance of counsel and (2) that we

should vacate and reinstate this court’s judgment in the direct appeal in order that he

may seek review by the Tennessee Supreme Court. We affirm the trial court.



                   The petitioner was convicted for murdering his estranged wife, who had

filed for divorce. She was found in her place of business with at least twenty-five stab

and cut wounds. She had six stab wounds to the back of the body. One went through

her spine into a lung while two went through her ribs into her lungs. Another wound

penetrated her esophagus. The pathologist testified that the victim received most of the

wounds while she was lying on the floor, and the wounds would have required

considerable force.



                       The petitioner primarily contends that his trial attorney inadequately

prepared for and presented evidence at the sentencing hearing.1 At the evidentiary

hearing, the petitioner complained about the lack of preparation for the sentencing

hearing. He said the attorney did not talk to relatives, employers, or neighborhood




                   1
                    The petitio ner’s brief in dica tes, w ithou t exp ress ly statin g, a c onc ern a bou t the p etition er’s
trial attorney’s approach at the guilt stage, but it gives no particulars other than a comment that the
decision not to pursue a self-defense strategy was a trial tactic. As the trial attorney testified at the
evidentiary hearing, under the evidence in the case, “a self defense argument . . . was almost frivolous,
just alm ost totally non-p revalent.”

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friends. He said he thought he had psychological problems, but his attorney only

arranged a short visit for an evaluation.



              The trial attorney testified that his primary aim was to try to negate any

premeditation and deliberation evidence so as to reduce the offense to second degree

murder. As for sentencing, the attorney stated that he was not aware of the petitioner

having close family members. He said he recalled that the petitioner was on his own

during that period of time. Also, he stated that he did not believe the case called for a

mitigation expert, partly because he believed there was very little mitigation to pursue.

The attorney admitted that he inadvertently missed the deadline for appealing this

court’s decision in the direct appeal to the Tennessee Supreme Court.



              The trial court found that the defendant’s trial attorney was not ineffective

at the sentencing phase. The trial court also found that the trial attorney inadvertently

failed to seek appellate review by our supreme court and ordered that the petitioner be

granted a delayed T.R.A.P. 11 appeal. See Tenn. Code Ann. § 40-30-213. The

petitioner did not file a T.R.A.P. 11 appeal but rather appealed the trial court’s post-

conviction determination to this court and requested that we affirm the trial court’s grant

of a delayed appeal.



              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, 368-72, 113 S. Ct. 838,

842-44 (1993). The Strickland standard has been applied to the right to counsel under




                                             3
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

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).



              We also 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.



              In a post-conviction case, the burden is on the petitioner to prove his

grounds for relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f).

On appeal, we are bound by the trial court’s findings unless we conclude that the

evidence preponderates against those findings. Black v. State, 794 S.W.2d 752, 755

(Tenn. Crim. App. 1990). The petitioner has the burden of illustrating how the evidence

preponderates against the judgment entered. Id.




                                             4
              First, we conclude that the petitioner has not shown that the evidence

preponderates against the trial court’s finding that he received the effective assistance

of counsel. Although the petitioner claims that his attorney was ineffective for failing to

present mitigation evidence at the sentencing hearing, the petitioner did not present

such evidence at the evidentiary hearing. “When a petitioner contends that trial counsel

failed to discover, interview, or present witnesses . . . these witnesses should be

presented by the petitioner at the evidentiary hearing.” Black, 794 S.W.2d at 757.

Having failed to do so, the petitioner has not established prejudice. Id. at 758.



              Next, the petitioner asks us to vacate and reinstate this court’s judgment

in the direct appeal in order to give him time to apply to the Tennessee Supreme Court

for permission to appeal. The state acknowledges that the trial court appropriately

granted the petitioner a delayed appeal, but it asserts that the issue is not properly

before us. The state contends that the petitioner should have filed his application for

permission to appeal within sixty days of the trial court’s order granting a delayed

appeal. Pursuant to Rule 28, § 9(D), Tenn. S. Ct., the petitioner had sixty days from the

trial court’s determination within which to seek supreme court review pursuant to Rule

11, T.R.A.P. That time has passed. However, we believe that we retain the jurisdiction

through this post-conviction appeal to grant the delayed appeal pursuant to Rule 28, §

9(D), as well, under the trial court’s findings of fact. Therefore, in the interest of justice,

we grant the petitioner a delayed appeal in State v. Lucien Samuel Sherrod, No.

01C01-9505-CR-00157, Davidson County (Tenn. Crim. App. JAN. 30, 1997).



              In consideration of the foregoing and the record as a whole, we affirm the

trial court’s denial of post-conviction relief and the grant of a delayed appeal to the

Tennessee Supreme Court.




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                                      __________________________
                                      Joseph M. Tipton, Judge

CONCUR:


___________________________
James Curwood W itt, Jr., Judge



___________________________
John Everett W illiams, Judge




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