         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs February 8, 2005

             ALFIO ORLANDO LEWIS v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Davidson County
                        No. 2000-A-121     Cheryl Blackburn, Judge



                     No. M2004-01282-CCA-R3-PC - Filed March 16, 2005


The petitioner, Alfio Orlando Lewis, appeals as of right from the dismissal of his petition for post-
conviction relief by the Davidson County Criminal Court. He seeks relief from his convictions for
two counts of attempted second degree murder and consecutive twelve-year sentences. The
petitioner contends that he received the ineffective assistance of counsel at his trial and that his
sentences are invalid under Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004). We
affirm the judgment of the trial court.

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

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and J. C.
MCLIN , JJ., joined.

David M. Hopkins, Nashville, Tennessee, for the appellant, Alfio Orlando Lews.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General;
Victor S. (Torry) Johnson, III, District Attorney General; and Bret Thomas Gunn, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

        The following facts which led to the petitioner’s convictions are taken from this court’s
opinion in the direct appeal from his convictions: The petitioner fired his pistol at two brothers, the
owners of the South Side Market and Deli, as they left their store on Murfreesboro Road in
Nashville, Tennessee. Earlier that evening, the petitioner entered the store and purchased a frozen
pizza. When one of the brothers refused the petitioner permission to use the microwave to heat the
pizza, the petitioner became angry. A spirited argument followed during which the petitioner
threatened to return, shoot the brothers, and blow the place up. When the brothers closed the store
and got into their car to go home, the petitioner and a man with a shotgun approached their car and
began firing at them. The brothers were also armed and returned fire. The petitioner and his
companion fled, but the brothers recognized the petitioner. They called the police, described the
petitioner, and provided the police with the store surveillance video showing the petitioner in the
store earlier that day.

        At trial, the petitioner admitted that he argued with one of the brothers but testified that he
was with his mother, his girlfriend, and his cousin on the evening of the shooting. The petitioner’s
girlfriend and mother also testified the petitioner was with them during the shooting. The jury
convicted the petitioner of two counts of attempted second degree murder and two counts of
aggravated assault. Following a sentencing hearing, the trial court merged the aggravated assault
convictions into the attempted second degree murder convictions and imposed sentences of twelve
years as a Range I, standard offender for each conviction, to be served consecutively for an effective
sentence of twenty-four years. The petitioner appealed, and this court affirmed his convictions and
sentences. State v. Alfio Orlando Lewis, No. M2000-03160-MR3-CD, Davidson County (Tenn.
Crim. App. March 6, 2002), app. denied (Tenn. Sept. 16, 2002).

         The petitioner filed a petition for post-conviction relief alleging that his counsel rendered
ineffective assistance by failing to investigate his case adequately, to communicate with him during
the trial, and to present certain witnesses. At the post-conviction hearing, the petitioner testified that
the attorney who represented him at trial was appointed approximately ten months before trial and
that he was the second attorney appointed to represent him in the case. He said that he met with his
attorney two or three times before trial and that during those meetings, they did not review the facts
of his case, the evidence against him, or the materials received through discovery. He said that he
knew the surveillance videotape might be used as evidence against him at the trial but that he never
watched the videotape. He said he gave his attorney the names of three witnesses who could testify
in his behalf: Anthony Hart, Floyd Robinson and Shea Brown. He said these witnesses told him they
had information beneficial to his case. He said that these witnesses could have cleared his name but
that his attorney did not subpoena any of them. He said that he had spoken to Mr. Hart who was
willing to come to court on the petitioner’s behalf but that Mr. Hart’s location was unknown at that
time. He said Mr. Hart would have admitted committing the offenses in issue.

         The petitioner said he attempted at his trial to tell the jury what Mr. Hart had told him, but
the information was ruled inadmissible as hearsay. When asked what made him decide to testify at
his trial, the petitioner responded that his attorney instructed him to take the stand. He said they
never met before the trial to prepare his testimony or even discuss whether he would testify. He said
that he asked his attorney whether the state would offer a settlement and that his attorney told him
it would make no difference because it was a lot of time. He said a plea bargain was never
discussed. He admitted that he told his attorney he was innocent and that he wanted the truth to be
out. He said his attorney did not inform him what type of punishment he might receive or what
consequences he faced going to trial. He said the only advice he received was to go to trial.

        On cross-examination, the petitioner said that he learned the facts relevant to his case from
the discovery materials and that his trial attorney told him nothing. He said he received the discovery
materials from his first attorney, who asked to be removed from the case because he and the
petitioner did not get along. He admitted that he was not surprised by any of the evidence presented


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at trial and that he was primarily concerned with seeing the videotape. He said he gave his attorney
the names of the three witnesses when they met and told him Mr. Hart would “step up and take this
charge” and clear his name. He said Mr. Robinson told him that he had the shotgun, that Mr. Brown
had the automatic weapon, and that Mr. Hart observed the incident from across the street. The
petitioner conceded that he was unable to give his attorney exact addresses for the three witnesses
and that he could only give him a general area to search for them.

        At the conclusion of the petitioner’s testimony, the petitioner’s attorney informed the trial
court that he had issued a subpoena for Mr. Hart who had since been paroled and that he believed
Mr. Hart was living in Nashville. The trial court granted the petitioner a continuance to locate Mr.
Hart and heard the testimony of the petitioner’s attorney.

        The petitioner’s trial attorney testified he had practiced law as a criminal defense attorney
since 1986 or 1987. He said that he met with the petitioner at the courthouse and at the Justice
Center a couple of times, that he discussed the case with the petitioner, and that the petitioner was
not interested in negotiating a settlement or pleading guilty. He said he mentioned the idea of a plea
agreement only one time because the petitioner was adamant about his innocence and told him that
he would not plead guilty to something he did not do. He said the petitioner was confident the
testimony of his alibi witnesses would help his case. He said he spoke with the alibi witnesses, and
they corroborated the petitioner’s testimony. He stated that he told the petitioner what was on the
videotape but that the petitioner was unable to view the videotape because the rules prohibited taking
videotapes inside the Justice Center. He said he discussed the petitioner’s testimony with him before
trial. With regard to Mr. Hart’s confessing that he was involved in the crime, the attorney testified
that he did not receive this information from the petitioner until after the trial began and that the
petitioner did not know Mr. Hart’s whereabouts. He said the petitioner had given Mr. Hart’s name
only to his previous attorney. He said he asked a private investigator to assist him in locating Mr.
Hart to no avail. He did not recall being advised of the other two witnesses, Mr. Robinson and Mr.
Brown. However, he admitted he read a letter in the discovery materials sent by the petitioner to the
victims which mentioned the names of the three witnesses who could allegedly attest to the
petitioner’s innocence. He said the petitioner was unable to give him the location of the witnesses,
other than they could be found “in the neighborhood.” He stated that according to the petitioner, Mr.
Hart observed Mr. Robinson and Mr. Brown commit the crime from across the street and that Mr.
Robinson’s and Mr. Brown’s alleged involvement in the crime was based solely on information
furnished the petitioner by Mr. Hart, not Mr. Brown or Mr. Robinson.

        On cross-examination, the attorney testified he did not recall the number of times he met with
the petitioner before trial. When asked whether he and the petitioner reviewed his trial testimony,
he said that the petitioner had told him what his testimony would be on numerous occasions and that
it was unwise in his opinion to rehearse. He said his advice to the petitioner was to get on the stand
and tell the truth. He did not recall reviewing the discovery materials with the petitioner. He said
the petitioner had a good grasp of the discovery materials and was aware of the charges he faced.
He said that they discussed the alibi defense strategy and that their success at trial depended on
whom the jury believed.


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         When the petitioner’s attorney concluded his testimony, the trial court granted the petitioner
a three-week continuance to locate Mr. Hart. At the next hearing, the petitioner’s attorney informed
the trial court that Mr. Hart could not be found. The petitioner rested his case on the petition and the
proof presented at the first hearing.

        In denying the petitioner relief, the trial court found the petitioner failed to demonstrate by
clear and convincing evidence that his trial attorney failed to communicate adequately with him. It
noted that the petitioner was knowledgeable of his case and found that the petitioner’s attorney
discussed with the petitioner both the case and the state’s evidence. With regard to the attorney’s
alleged failure to investigate, the trial court credited the testimony of the attorney and found that he
attempted to locate the petitioner’s witnesses but was unable to do so. The trial court also concluded
that the petitioner’s attorney was not ineffective for such failure and that the petitioner failed to
demonstrate prejudice. As for the attorney’s failure to call certain witnesses, the trial court observed
that the petitioner failed to show through the witnesses’ testimony what evidence would have been
presented if they had testified.

                       I. INEFFECTIVE ASSISTANCE OF COUNSEL

        On appeal, the petitioner contends that he received the ineffective assistance of counsel
because his trial attorney failed to investigate adequately the facts in his case, failed to locate and
interview witnesses who could have testified favorably in his defense, and failed to advise the
petitioner of the nature of the charges and evidence against him. The state contends the petitioner
failed to prove by clear and convincing evidence that his attorney was deficient or that he was
prejudiced by the alleged deficiency. We agree with the state.

        The burden was on the petitioner in the trial court to prove by clear and convincing evidence
the factual allegations that would entitle him to relief. T.C.A. § 40-30-110(f). 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. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
Because the trial court’s conclusions regarding the effectiveness of counsel involve mixed questions
of law and fact, our review is de novo with no presumption of correctness.

        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. See
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); State v. Melson, 772
S.W.2d 417, 419 n.2 (Tenn. 1989). In other words, a showing that counsel’s performance falls
below a reasonable standard is not enough; rather, the petitioner must also show that but for the
substandard performance, “the result of the proceeding would have been different.” Strickland, 466
U.S. at 694, 104 S. Ct. at 2068. 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. 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


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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 or tactical choices if they are informed
ones based upon adequate preparation. See id.; United States v. DeCoster, 487 F.2d 1197, 1201
(D.C. Cir. 1973).

         The petitioner bases his claim of inadequate investigation primarily on the failure of his
attorney to locate and interview certain witnesses that he wanted to testify at his trial. The
petitioner’s trial attorney testified, however, that he received the information concerning Mr. Hart
late in the trial proceedings and that the information was incomplete. Nevertheless, the attorney tried
to locate Mr. Hart with the assistance of a private investigator. Their efforts proved unsuccessful,
but neither the investigator nor the attorney had much information with which to work. The
petitioner admitted that he was unable to provide an address or any other specific information
regarding Mr. Hart or the other two witnesses he wanted his attorney to locate. Although the
attorney testified the names of the three witnesses were provided in the discovery materials before
trial, he said he was unaware of the importance of Mr. Hart’s testimony until after the trial had
started. In any event, the petitioner failed to present testimony from any of the three witnesses to
show what evidence would have been presented if they had testified. When a petitioner contends
that trial counsel failed to discover, interview, or present witnesses in support of his defense, these
witnesses should be presented by the petitioner at the evidentiary hearing. This is the only way the
petitioner can establish that a material witness existed and could have been discovered, that a known
witness was not interviewed, that the failure to interview a witness caused prejudice, or that the
failure to have a known witness present or to call the witness to the stand resulted in the denial of
critical evidence which prejudiced the petitioner’s case. Black v. State, 794 S.W.2d 752, 757 (Tenn.
Crim. App. 1990). Neither a trial judge nor an appellate court can speculate as to whether further
investigation would have revealed a material witness or what a witness’s testimony might have been
if introduced by defense counsel. Id.

         Regarding the petitioner’s claim that his attorney failed to advise him of the nature of the
charges and the evidence against him, the trial court found that the petitioner was knowledgeable of
the facts of his case and that the petitioner’s attorney discussed with the petitioner his case as well
as the state’s evidence against him. The petitioner admitted that he received the discovery materials
before his trial attorney was appointed, well in advance of trial, and that he read them. The attorney
testified the petitioner had a good grasp of the discovery materials and knew the charges against him.
As a result, the attorney admitted he did not review the discovery materials with the petitioner. The
petitioner argues that his attorney failed to show him the videotape, but the petitioner’s attorney
testified that the rules of the Justice Center forbade this practice. The petitioner claims that he was
interested in a plea bargain, but his attorney testified that the petitioner was adamant about his
innocence and refused to consider a guilty plea. The trial court accredited the attorney’s testimony
in all respects.




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        The record does not preponderate against the trial court’s findings. The petitioner failed to
prove his allegations by clear and convincing evidence. We conclude the petitioner did not receive
the ineffective assistance of counsel.

                                           II. SENTENCING

         The petitioner contends that his sentences are invalid under Blakely v. Washington, 542 U.S.
___, 124 S. Ct. 2531 (2004). He argues the trial court violated Blakely by imposing his sentences
based on facts which were not reflected in the jury verdict or admitted by the petitioner. The
petitioner urges this court to notice the error under Rule 52(b), Tenn. R. Crim. P. The state contends
that the petitioner has waived these issues for failure to raise them on direct appeal and in the petition
for post-conviction relief.

         The Post-Conviction Procedure Act states, “A ground for relief is waived if the petitioner .
. . failed to present it for determination in any proceeding before a court of competent jurisdiction
in which the ground could have been presented . . . .” T.C.A. § 40-30-106(g). It also states that
appeals from the dismissal of a petition for post-conviction relief are to be governed by the rules of
appellate procedure. T.C.A. § 40-30-116. The advisory commission comments to Rule 36(a),
T.R.A.P., state that it is an “accepted principle that a party is not entitled to relief if the party invited
error, waived an error, or failed to take whatever steps were reasonably available to cure an error.”
The petitioner did not raise sentencing issues on direct appeal or in his petition for post-conviction
relief. Rather, he requests this court to grant relief based upon a finding of plain error under Rule
52(b), Tenn. R. Crim. P.

         The plain error doctrine has no application in post-conviction relief proceedings. Tennessee
Supreme Court Rule 28 addresses applicable procedures and remedies with regard to Tennessee’s
Post-Conviction Procedure Act, T.C.A. §§ 40-30-101 through 40-30-313. Section 3(B) of Rule 28
states, “Neither the Tennessee Rules of Civil Procedure nor the Tennessee Rules of Criminal
Procedure apply to post-conviction proceedings except as specifically provided by these rules.” See
State v. West, 19 S.W.3d 753, 756 (Tenn. 2000) (concluding that plain error under Rule 52(b), Tenn.
R. Crim. P., does not apply to post-conviction cases).

        We also note that although the United States Supreme Court has not yet addressed the
retroactive application of Blakely, it has held that Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428
(2002), which required that a jury, not a trial judge, find the existence of aggravators necessary to
impose the death penalty, was not a watershed rule of criminal procedure and therefore did not apply
retroactively to cases already final on direct review. Schriro v. Summerlin, __ U.S. __, 124 S. Ct.
2519, 2526 (2004). Based on Summerlin, this court has concluded that Blakely does not apply
retroactively to collateral attacks for prior convictions and sentences. See Donald Branch v. State,
No. W2003-03042-CCA-R3-PC, Shelby County (Tenn. Crim. App. Dec. 21, 2004). We agree that
Blakely does not apply in this post-conviction proceeding collaterally attacking the petitioner’s
sentences.



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       Based on the foregoing and the record as a whole, we affirm the judgment of the post-
conviction court.



                                                  ___________________________________
                                                  JOSEPH M. TIPTON, JUDGE




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