         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs October 28, 2003

             CRAIG STEPHEN BOURNE v. STATE OF TENNESSEE

                        Appeal from the Circuit Court for Sullivan County
                              No. C46,232    R. Jerry Beck, Judge



                                    No. E2003-00462-CCA-R3-PC
                                           March 18, 2004

The petitioner, Craig Stephen Bourne, appeals the Sullivan County Circuit Court’s denial of his
petition for post-conviction relief from his convictions for especially aggravated kidnapping,
attempted second degree murder, and aggravated burglary and effective thirty-two-year sentence.
The petitioner claims that he received the ineffective assistance of counsel because his attorneys (1)
failed to raise the issue of double jeopardy; (2) failed to raise the issue of the trial court’s interference
during plea negotiations; (3) failed to raise the issue that the trial court gave the jury inaccurate
instructions on release eligibility dates; (4) failed to challenge a jury instruction on a crime that was
not included in the indictment in his motion for a new trial; and (5) failed, in the petitioner’s motion
for a new trial, to challenge the trial court’s denial of trial counsel’s motion to withdraw before trial.
We affirm the trial court’s denial of the petition.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and ALAN
E. GLENN , J., joined.

Charles R. Martin, Kingsport, Tennessee, for the appellant, Craig Stephen Bourne.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
H. Greeley Wells, Jr., District Attorney General; and Joseph E. Perrin, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                                OPINION

        This case relates to the petitioner’s attack on his ex-girlfriend in 1996. The record reflects
that the petitioner was sentenced to twenty-five years for the especially aggravated kidnapping
conviction, eight years for the attempted second degree murder conviction, and six years for the
aggravated burglary conviction. The especially aggravated kidnapping sentence was ordered to be
served concurrently to the aggravated burglary but consecutively to the attempted second degree
murder for an effective thirty-three-year sentence. A jury convicted the petitioner, and this court
affirmed the convictions. See State v. Craig Stephen Bourne, No. 03C01-9807-CR-00237, Sullivan
County (Tenn. Crim. App. Oct. 18, 1999), app. denied (Tenn. Apr. 24, 2000). However, this court
modified the petitioner’s sentence to thirty-two years. On appeal, this court stated the following
facts:

                       The victim, Karen Suzette Zimmer, and the defendant dated
               for approximately three years until August of 1996. Their
               relationship ended, according to the victim, because the defendant
               had struck her on two different occasions. The victim, who worked
               in Morristown part-time as a substitute school teacher and part-time
               as a waitress at Scooter’s Restaurant, had two sons, ages twenty and
               twenty-four, by a prior marriage at the time of the offense.

                       At approximately 10:00 to 10:30 P.M. on October 25, 1996,
               the victim returned from her work at the restaurant. Both of her sons
               had gone camping that night and were away from the residence. At
               approximately midnight, the victim went to bed. Shortly after 2:30
               A.M., she was suddenly awakened by the defendant who, according
               to the victim, grabbed her by the hair and said, “Get up, bitch, I’m
               going to kill you.”

                        At trial, the victim testified that the defendant had telephoned
               her several times on the evening prior to the assault. Finally, the
               victim left the receiver off the telephone when the defendant persisted
               in the use of abusive language. Later, the defendant somehow entered
               the residence and awoke the victim. After slapping her twice, the
               defendant struck her with a clenched hand, claiming that was the first
               time he “ever hit a woman with his fists.” The victim recalled the
               defendant saying that he did not “have anything to live for” and that
               he intended to slit her throat before committing suicide. She
               remembered that the defendant took a knife from his pocket, unfolded
               it, continued to strike her, and then cut her head, causing a wound on
               her forehead from the hairline to an eyebrow, which eventually
               required twelve stitches to close. The victim remembered grabbing
               at the knife with her hand, causing a cut across her palm and the last
               two fingers, which ultimately required fifteen stitches. During the
               course of events, the victim also recalled receiving small cuts to the
               crown of her head. She was forced to look at herself in a full-length
               mirror and, as she did so, the defendant, who held her by her hair,
               smashed her head into the mirror.

                      The victim related that the episode continued for hours, during
               which the defendant would alternately talk a while, get upset, and


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                 strike the victim again. At one point, the defendant dragged the
                 victim to the kitchen so he could get a beer and then “flung [her]
                 down on the couch in the living room and kicked over the coffee
                 table,” striking her “once or twice more” before returning her to the
                 bedroom. Later, the defendant said to the victim, “Get down over
                 there . . . I’ll give you a minute to make peace with your maker.” The
                 victim recalled attempting to talk the defendant “out of this” after
                 which the defendant observed, “Your lips are blue, you know what
                 that means, don’t you?”

                         By this time, the victim had lost quite a bit of blood and the
                 defendant, who went to the kitchen to get another beer, left her alone
                 in the bedroom. The victim testified that she escaped by running out
                 her front door and to the residence of her neighbor, Tonya Renee
                 Terry. The victim recalled “banging” on the outside of the door, after
                 which Ms. Terry pulled her inside and called the police. The victim
                 sustained other injuries which included two black eyes, a cut lip, and
                 a chipped tooth. Three small, color photographs taken shortly after
                 the arrival of police reflected to a degree the extent of her visible
                 injuries and the extent of her blood loss.

Id., slip op. at 3-5.

        At the post-conviction evidentiary hearing, the petitioner testified that his trial attorney only
met with him three to four times before trial. He said that his attorney should have emphasized that
the petitioner put the knife away after the victim was cut, that there were limited blood stains at the
victim’s house, and that he did not drag the victim throughout the house. He said his attorney should
have talked to the victim before he was scheduled to enter a best interest plea, i.e., a plea that he
considered in his best interest even though he denied committing the offenses. The record reflects
that the plea offer was for the petitioner to plead guilty to kidnapping, attempted second degree
murder, and aggravated burglary and receive an effective twelve-year sentence. On cross-
examination, the petitioner acknowledged that his attorney filed several motions before trial,
including suppression and discovery motions. He admitted that he told the victim that he should cut
her throat. He acknowledged that his attorney kept him well informed on his court proceedings. He
acknowledged that when asked by the trial court if his plea was voluntary and knowing, he told the
court that he thought his attorney should have contacted the victim. He said, though, that he knew
the victim was not required to speak with his attorney. He said he believed it was wrong for the state
to withdraw the plea offer. He said his trial attorney did what he was supposed to do in preparing
for his case.

        The petitioner’s trial attorney testified that he met with the petitioner several times, gave the
petitioner his file, and made various motions on his behalf. He said he tried unsuccessfully to
contact the victim three times before the scheduled plea hearing. He said that at the plea hearing,


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the petitioner told the trial court that he believed his attorney should have interviewed the victim.
He said that the court stopped the proceedings at that time and that the state withdrew its plea offer
the next day. He said that he objected to the withdrawal but that his objection was overruled by the
court. He said that he contacted the victim after the hearing but that she did not want to talk to him.
On cross-examination, the trial attorney testified that he did not remember if he discussed the
strategical advantages of the petitioner taking the stand. He said he did not object to the release
eligibility dates given by the court because he believed that they were accurate.

        The petitioner’s appellate attorney testified that he raised ten issues in the petitioner’s direct
appeal of his conviction, including whether the trial court erred by allowing the prosecution to
withdraw its plea offer. He said he wrote several letters to the petitioner explaining the process. He
said that in deciding which rulings to challenge on appeal, he looked mainly at the issues raised in
the petitioner’s motion for a new trial.

        The trial court denied the petition for post-conviction relief. The trial court found that the
petitioner’s double jeopardy claim was not properly before the court because the issue had been
raised by counsel and rejected by this court in the petitioner’s direct appeal. The court also found
that double jeopardy would not apply because the trial court stopped the guilty plea hearing before
accepting the plea agreement. In addition, the trial court determined that its statements to the jury
regarding release eligibility dates were correct. The trial court noted that even if the dates were
wrong, it would be harmless error in light of the overwhelming evidence against the petitioner.
Finally, the trial court determined that overall, the petitioner had failed to prove by clear and
convincing evidence that his attorneys were ineffective.

        Under the Sixth Amendment, when a claim of ineffective assistance of counsel is made, the
burden is on 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 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). 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


                                                   -4-
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.

        In a post-conviction case, the burden is on the petitioner to prove by clear and convincing
evidence his grounds for relief. T.C.A. § 40-30-110(f) (2003). On appeal, we are bound by the trial
court’s findings of fact unless we conclude that the evidence in the record preponderates against
those findings. Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001). Because they relate to mixed
questions of law and fact, we review the trial court’s conclusions as to whether counsel’s
performance was deficient and whether that deficiency was prejudicial under a de novo standard with
no presumption of correctness. Id. at 457.

        We observe that the petitioner has not made the trial transcript containing the trial court’s
November 25, 1998 instructions to the jury and the June 18 and 19, 1997 plea hearings as part of the
post-conviction record. It is his duty to present a full record in this appeal. However, we may take
judicial notice of the record in the appeal of the petitioner’s conviction. See State ex rel. Wilkerson
v. Bomar, 213 Tenn. 499, 505, 376 S.W.2d 451, 453 (1964).

                                      I. DOUBLE JEOPARDY

         The petitioner claims that double jeopardy attached when the prosecution withdrew the plea
agreement, that his trial attorney was ineffective for failing to raise this issue in the petitioner’s
motion for a new trial, and that his appellate attorney was ineffective for failing to raise this issue
in the petitioner’s appeal. The state contends jeopardy did not attach when the prosecution withdrew
its plea offer because the trial court had already rejected the petitioner’s plea after questioning the
petitioner at the plea hearing.

         We note that in the appeal of his convictions, the petitioner claimed the state breeched a
contract by withdrawing the plea offer upon the trial court’s rejection of the offer. The trial court
rejected the plea agreement after the petitioner told the court at the plea hearing that his trial attorney
should have interviewed the victim. This court ruled against the petitioner, concluding that the trial
court was within its discretion in rejecting the petitioner’s plea. See Stephen Craig Bourne, slip op.
at 6-9. The court also held that an offer by the state is revocable until it is accepted by the trial court.
Id., slip op. at 8; see also State v. Williams, 851 S.W.2d 828, 830-32 (Tenn. Crim. App. 1992). In
Bell v. State, 220 Tenn. 685, 423 S.W.2d 482 (1968), our supreme court concluded that “[t]he
essential element of a valid plea of double jeopardy is that the record should disclose that the
defendant was lawfully convicted or acquitted of the offense for which he was indicted and called
upon to answer.” In State v. Sluder, 493 S.W.2d 467, 470 (Tenn. 1973) (quoting Holt v. State, 160
Tenn. 366, 371, 24 S.W.2d 886, 887 (1929)), the court stated:

                “The [double jeopardy] rule is designed to protect the individual,
                obnoxious to the government, from successive harassing prosecutions
                for a single offense. . . .” [T]he entry of a plea of guilty in and of itself



                                                    -5-
                is not a bar to a subsequent prosecution for the same or higher offense
                without some judicial action upon the plea in a judicial sense.

In the present case, there were no successive prosecutions and the defendant was not “lawfully
convicted” upon his attempted plea. Jeopardy did not attach at the attempted plea hearing and,
therefore, the petitioner’s attorneys were not ineffective for failing to raise this issue at trial or on
appeal.

                II. JUDICIAL INTERFERENCE IN PLEA NEGOTIATIONS

        The petitioner claims that his attorneys were ineffective by failing to challenge the trial
court’s interference in his plea negotiations with the state. After the trial court rejected the plea
agreement, the prosecution talked with the victim and decided to withdraw its offer. In a hearing on
June 19, 1997, the petitioner’s attorney requested that the trial court reinstate the plea agreement that
the court had rejected the previous day. The court asked the petitioner if he had wanted to withdraw
the plea agreement that the court had rejected, to which the petitioner responded that he did not. The
court, summarizing the agreement from the failed plea, stated: “All right. Now, the Defendant –
under the plea agreement, the Defendant was originally charged with a Class A felony offense. The
agreement that had been submitted to the Court in writing provided for a Class B disposition, Class
B felony.” The petitioner’s trial attorney then informed the court that the Class A felony had actually
been reduced to a Class C felony under the agreement. The court then said that he would allow the
petitioner to plead guilty as charged in the indictment and the petitioner’s attorney responded that
the petitioner did not want to do this. The court then denied the petitioner’s request that the plea
agreement be reinstated.

        The petitioner argues that the court attempted to influence the state in its subsequent plea
negotiations in violation of Tennessee Rule of Criminal Procedure 11(e)(1). Rule 11(e)(1) provides
as follows:

                        In General. The district attorney general and the attorney for
                the defendant or the defendant when acting pro se may engage in
                discussions with a view toward reaching an agreement that, upon the
                entering of a plea of guilty or nolo contendere to a charged offense or
                to a lesser or related offense, the district attorney general will do any
                of the following:

                        (A) move for dismissal of other charges; or

                        (B) make a recommendation, or agree not to oppose the
                defendant’s request, for a particular sentence, with the understanding
                that such recommendation or request shall not be binding upon the
                court; or



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                       (C) agree that a specific sentence is the appropriate disposition
               of the case.

               The court shall not participate in any such discussions.

The comments by the trial court do not indicate an intent to interfere with or participate in plea
negotiations. The court merely stated that the petitioner had been charged originally with a Class
A felony and that he was now willing to plead guilty to a Class B felony. The state routinely offers
reduced charges to defendants in order to avoid trials. The court was only restating the failed plea
agreement in this case. The petitioner’s attorneys were not ineffective for failing to raise this issue.

                       III. RELEASE ELIGIBILITY INSTRUCTIONS

         The petitioner contends that the trial court erred in its instructions to the jury on release
eligibility rates for his attempted second degree murder, aggravated burglary, and especially
aggravated kidnapping convictions and that his attorneys were ineffective for failing to raise this
issue. The state contends that the jury instructions on release eligibility dates were correct.

                  A. Attempted Second Degree Murder and Aggravated Burglary

        Relying on T.C.A. § 40-35-201 (repealed 1998), the trial court instructed the jury that the
minimum amount of time the defendant could serve for an attempted second degree murder
conviction would be ninety-five percent of a year. He calculated this number based on the minimum
eight-year sentence for attempted second degree murder served at a thirty-percent rate as a Range
I offender, or 2.4 years. The court then reduced the 2.4 years to .95 years by taking into account
other possible sentence reduction credits so it could reach an approximate calculation of the actual
earliest release possibility. Using information from the Administrative Office of the Courts to
calculate possible sentence reduction credits, the court arrived at ninety-five percent of a year as the
minimum amount of time that the petitioner would be required to serve if convicted of second degree
murder. T.C.A. § 40-35-201(b) provided, in pertinent part:

                       (b)(1) In all contested criminal cases . . . upon the motion of
               either party . . . the court shall charge the possible penalties for the
               offense charged . . . .

               (2)(A)(i) When a charge as to possible penalties has been requested
               pursuant to subdivision (b)(1), the judge shall also include in the
               instructions for the jury to weigh and consider the meaning of a
               sentence of imprisonment for the offense charged and any lesser
               included offenses. Such instruction shall include an approximate
               calculation of the minimum number of years a person sentenced to
               imprisonment for the offense charged and lesser included offenses
               must serve before reaching such person’s earliest release eligibility


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               date. Such calculation shall include such factors as the release
               eligibility percentage established by § 40-35-501, maximum and
               minimum sentence reduction credits authorized by § 41-21-236 . . .
               .

(Repealed 1998).

        Under T.C.A. § 40-35-201(b)(2)(A)(i) (repealed 1998), the trial court correctly used possible
sentence reduction credits to calculate the approximate minimum amount of time the petitioner could
serve for an attempted second degree murder conviction. Because the trial court instructed the jury
on the minimum amount of time the petitioner would have to serve for an aggravated burglary
conviction in the same manner as it did for attempted second degree murder, this instruction was also
correct.

                               B. Especially Aggravated Kidnapping

        The court instructed that the petitioner’s minimum sentence for an especially aggravated
kidnapping conviction was 12.75 years, fifteen percent less than the petitioner claims a person
convicted of especially aggravated kidnapping is eligible to receive. Based on the holding in State
v. Meyer, 994 S.W.2d 120 (Tenn. 1999), the petitioner claims that the trial court erred by including
sentence reduction credits in its calculation. He asserts that like the defendant in Meyer who was
convicted of rape of a child, a defendant convicted of especially aggravated kidnapping is not eligible
for sentence reduction credits. Thus, he states that the trial court erred by instructing the jury that
the petitioner could serve less than one hundred percent of the fifteen- to twenty-five-year sentence
that a Range I offender is required to serve.

        In Meyer, the Tennessee Supreme Court concluded that it was reversible error for a trial court
to instruct a jury that the minimum sentence for a defendant convicted of rape of a child could be
served at less than a one hundred percent rate. 994 S.W.2d at 131; see also T.C.A. §§
40-35-501(i)(3), 39-13-523(b) (Supp. 1995). Meyer, however, relied upon T.C.A. § 39-13-523,
which provides that a child rapist is not eligible for sentence reduction credits. In contrast, a
defendant convicted of especially aggravated kidnapping is eligible to receive a fifteen percent
sentence reduction pursuant to T.C.A. § 40-35-501(i)(1). The aggravated kidnapping statute, T.C.A.
§ 39-13-305, unlike the rape of a child statute, does not mandate that a defendant be denied sentence
reduction credits. The trial court found correctly that, if convicted of especially aggravated
kidnapping, the petitioner’s sentence could be reduced by fifteen percent using sentence reduction
credits. Because the trial court instructed the jury correctly, the petitioner’s attorneys were not
ineffective for failing to raise this issue.

             IV. ATTEMPTED SECOND DEGREE MURDER INSTRUCTION

       The petitioner claims that the trial court erred in instructing the jury on attempted second
degree murder because it included subsections (1), (2), and (3) of T.C.A. § 39-12-101(a) by which


                                                 -8-
a jury could find that an “attempt” occurred. The petitioner contends that based on the wording of
the charging instrument, the jury should have only been able to convict the petitioner of attempted
second degree murder under subsection (3) of the statute, not subsections (1) and (2). He asserts that
his trial counsel was ineffective by not raising this issue in his motion for a new trial. The state
claims that the issue is waived because the petitioner failed to include the jury instructions in the
record in this appeal, that the issue should have been raised in the petitioner’s first appeal, and that
the petitioner has shown no prejudice as a result of the instruction. As discussed above, although
the petitioner did not include the jury instructions, we may take judicial notice of the record. See
Bomar, 213 Tenn. at 505, 376 S.W.2d at 453. In addition, the state is incorrect in its assertion that
this issue should have been raised in the petitioner’s first appeal and is not properly before us. The
petitioner’s claim is that he received the ineffective assistance of counsel because his trial attorney
failed to challenge an erroneous jury instruction on attempted second degree murder. If the petitioner
can show that his trial counsel was deficient for failing to raise this issue and it resulted in the
proceedings being unreliable or fundamentally unfair, he is entitled to relief in this post-conviction
appeal. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

         In determining whether the petitioner’s trial counsel was ineffective for failing to challenge
the trial court’s instruction on attempted second degree murder, the approach to the issue does not
have to start with an analysis of the 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 order to establish prejudice, the defendant must show that a reasonable
probability exists that “‘but for counsel’s unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.’” State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999) (quoting Strickland, 466 U.S. at 694,
104 S. Ct. at 2068) (citations omitted).

        In the present case, the petitioner has presented no evidence of prejudice. He offered no
proof at the evidentiary hearing as to how the result in his case would have been different if the trial
court had only instructed the jury on subsection (3) of the statute when defining an “attempt.” See
T.C.A. § 39-12-101(a). In addition, proof of the petitioner’s guilt for attempted second degree
murder was overwhelming. The petitioner told the victim several times that he was going to kill her.
He then cut the victim on her hands and forehead and threw her head into a mirror. During the
attack, he told the victim he would give her a few moments to “make peace with [her] maker.” At
the post-conviction hearing, the petitioner acknowledged that he told the victim he was going to slit
her throat. We are unable to conclude that trial counsel’s claimed deficiencies “so undermined the
proper functioning of the adversarial process that the jury’s verdict was not a just result.” See
Strickland, 466 U.S. at 686, 104 S. Ct. at 2064.

                                  V. MOTION TO WITHDRAW

         The petitioner contends that the trial court erred by denying his trial counsel’s motion to
withdraw from the case. He claims that because his trial counsel’s ineffectiveness resulted in the
trial court’s rejection of the plea agreement, the trial court should have granted trial counsel’s motion


                                                  -9-
to withdraw. He claims that his trial counsel was ineffective for failing to raise the issue of his own
ineffectiveness in the petitioner’s motion for a new trial. The state claims that the petitioner has not
shown any prejudice resulting from his trial attorney’s representation and that, therefore, he did not
receive the ineffective assistance of counsel on this issue.

         As discussed, the trial court rejected the plea agreement between the petitioner and the state
when the court was questioning the petitioner to determine if his plea was knowing and voluntary
and the petitioner said that his attorney should have interviewed the victim. After the state had
withdrawn the plea agreement and the trial court had ruled that it would not reinstate it, the court
denied counsel’s motion to withdraw from the case. The gist of the petitioner’s argument is that his
trial attorney was ineffective for failing to interview the victim, which led to the petitioner’s
interjection at the plea hearing and the subsequent rejection of the plea by the court. The trial
attorney testified, however, that he tried to contact the victim on three separate occasions but was
unable to make contact. He said that once the court began its inquiry into the voluntariness of the
petitioner’s plea, there was little he could do once the petitioner decided to complain. He said that
he did not believe he was ineffective in the petitioner’s case and that there was no conflict in his
continued representation of the petitioner. We see no evidence that the petitioner’s trial attorney was
ineffective as claimed by the petitioner. Therefore, there was no need for the petitioner to raise this
issue in the motion for a new trial. We hold that the trial court properly rejected the petitioner’s
claim for post-conviction relief.

        Based on the foregoing and the record as a whole, we affirm the trial court’s denial of the
petition.



                                                                ______________________________
                                                                JOSEPH M. TIPTON, JUDGE




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