        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs September 1, 2009

             COURTNEY ANDERSON v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                    No. P-28024    Carolyn Wade Blackett, Judge


               No. W2008-02814-CCA-R3-PC - Filed February 5, 2010


The Petitioner, Courtney Anderson, appeals the Shelby County Criminal Court’s denial of
post-conviction relief, contending that he received ineffective assistance of counsel based on
counsel’s failure to include a copy of the presentence report, a transcript of the plea
submission hearing, and a transcript of the sentencing hearing in the record on appeal. Upon
review, we affirm the judgment of the post-conviction court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which D AVID H. W ELLES
and A LAN E. G LENN, JJ., joined.

Claiborne H. Ferguson, Memphis, Tennessee, for the Petitioner-Appellant, Courtney
Anderson.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; William L. Gibbons, District Attorney General; Karen Cook and Lora Fowler,
Assistant District Attorneys General, for the Appellee, State of Tennessee.

                                         OPINION

       The Petitioner was indicted for eight counts of felony theft of property, seventeen
counts of forgery, and one misdemeanor count of possession of a handgun in a public place.
See State v. Courtney Anderson, No. W2000-02071-CCA-R3-CD, 2001 WL 912835, at *1
(Tenn. Crim. App., at Jackson, Aug. 13, 2001). He proceeded to trial on one count of theft
and one count of forgery. A Shelby County jury convicted him of these offenses, and he
received an effective sentence of twenty-one years. See id. After this court affirmed his
sentences on direct appeal, the Petitioner entered guilty pleas to twenty-one remaining
charges. See id.; see also State v. Courtney Anderson, No. W2000-00244-CCA-R3-CD,
2001 WL 91734, at *4 (Tenn. Crim. App., at Jackson, Jan. 31, 2001). The trial court initially
imposed an effective sentence of 171 years, 11 months, and 29 days but later modified it to
a sentence of 168 years, 11 months, and 29 days. See Countney Anderson, 2001 WL 912835,
at *2. The Petitioner appealed his sentence, and this court held that the trial court erred in
determining that the Petitioner was a career offender for his Class C felonies and remanded
the case for clarification or correction of the sentences imposed and for a resentencing
hearing regarding the Petitioner’s Class C felony convictions. See id. at *3.

       At the resentencing hearing, the trial court sentenced the Petitioner to an effective
sentence of 141 years, 11 months, and 29 days, which was to be served consecutively to his
previous sentence of 21 years. See State v. Courtney Anderson, No W2001-02764-CCA-R3-
CD, 2003 WL 57421, at *1 (Tenn. Crim. App., at Jackson, Jan. 6, 2003). The Petitioner
again appealed his sentence as excessive, and this court affirmed the judgment of trial court,
concluding:

              The defendant takes issue with the imposition of consecutive sentences
       and seeks a reduction in his sentence. However, reviewing this record, we find
       that the defendant failed to provide the transcript of the original sentencing
       hearing, the presentence report, or the guilty plea submission hearing. We can
       and did take judicial notice of our court records and retrieved the transcript of
       the original sentencing hearing and the presentence report in the first appeal.
       However, there was no transcript of the guilty plea submission hearing.

              Our review of a sentencing issue is de novo with a presumption of
       correctness. Tenn. Code Ann. § 40-35-401(d). A de novo review obviously
       requires us to examine the “nature and characteristics of the criminal conduct
       involved.” Tenn. Code Ann. § 40-35-210(b)(4). In this case, we are precluded
       from conducting a review of the underlying facts supporting the defendant’s
       convictions, because these facts, which were presented and stipulated to at the
       guilty plea submission hearing, are not included in the record.

              If the appellate record is inadequate, the reviewing court must presume
       that the trial court ruled correctly. See State v. Ivy, 868 S.W.2d 724[, 728
       (Tenn. Crim. App., at Jackson, June 23, 1993)]; State v. Oody, 823 S.W.2d
       554, 559 (Tenn. Crim. App. 1991). The burden of providing a complete and
       accurate record upon appeal rests upon the appealing party. See Tenn. R. App.
       P. 24(b).

Id. at *2.




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        The Petitioner filed a timely pro se petition for post-conviction relief. Following the
appointment of counsel, the Petitioner filed an amended post-conviction petition on October
5, 2004, claiming that counsel rendered ineffective assistance at the trial and appellate court
levels.

        On November 15, 2005, the Petitioner filed a Memorandum on Post-Conviction
Court’s Authority to Grant Relief, asserting for the first time that counsel failed to perfect
his appeal to the Tennessee Supreme Court pursuant to Tennessee Rule of Appellate
Procedure 11. On November 18, 2005, following a hearing, the post-conviction court
entered an order allowing the Petitioner to file a delayed application for permission to appeal
to the Tennessee Supreme Court and staying the post-conviction proceedings pending the
final disposition of the delayed appeal. On June 12, 2006, the Tennessee Supreme Court
denied the application.

       On October 30, 2007, the post-conviction court entered an order denying the petition
for post-conviction relief. On November 28, 2007, the court entered an order setting aside
the previous October 30, 2007 order on the ground that the Tennessee Supreme Court had
denied the Petitioner’s application for permission to appeal and that the Petitioner should be
given an opportunity to include Tennessee Rule of Appellate Procedure 11 issues in his
petition for post-conviction petition. On September 10, 2008, following the appointment of
new counsel, the Petitioner filed an amended motion for post-conviction relief on the denial
of the Rule 11 application.

        On November 24, 2008, the post-conviction court entered an order dismissing the
petition for post-conviction relief, and on December 16, 2008, the Petitioner filed a timely
notice of appeal. On December 18, 2008, in response to the Petitioner’s Motion to Re-Open
his Petition for Post-Conviction Relief, the post-conviction court entered an order finding
that all issues raised in the Motion to Re-Open had been resolved pursuant to the November
24, 2008 order denying post-conviction relief and that the Petitioner had not shown that his
appellate counsel’s actions were deficient in failing to appeal his case to the Tennessee
Supreme Court, since appointed counsel is only required to represent an individual through
the trial proceeding and through the first tier of appellate review. See T.C.A. § 40-14-203.

                               FACTUAL BACKGROUND

     Plea Submission Hearing. At the plea submission hearing on May 2, 2000, the State
summarized the facts supporting the offenses to which the Petitioner was pleading guilty:

              Your Honor, I’ll do the best I can. The file is downstairs. The matters
       that were set for trial today involve a victim by the name of William Kenneth

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        Lane, and similar to the trial the court heard months ago, [the Petitioner] got
        a photo – a driver’s license made with all of Mr. William Kenneth Lane’s
        personal numbers on it but with a picture of Courtney Anderson on it.

                And for about a three-day period in May of 1996, he went from jewelry
        store to jewelry store to apartment complex to the phone company posing as
        William Kenneth Lane and obtaining goods through that. He was eventually
        arrested at the Hickory Ridge mall and had, on his person, some receipts in the
        name of William Kenneth Lane.

               Obviously William Kenneth Lane was contacted and advised the
        authorities that he did not authorize [the Petitioner] to rent an apartment in his
        name or obtain phone services in his name.

                He had some stolen checks on him in the name of Consolidated Salvage
        that he had attempted to cash in the name of William Kenneth Lane, and I
        believe one of the remaining charges was possession of a handgun in an
        occupied public place or a convicted felon in possession of a handgun, and I’m
        blank on what the facts of that are other than he had a gun on him and the court
        is certainly aware of his lengthy felony record

      The Petitioner stipulated that the aforementioned facts were correct. The trial court
accepted the Petitioner’s guilty pleas as freely and voluntarily entered as to the twenty-one
charges and set the matter for a sentencing hearing.

        Post-Conviction Hearing. During the post-conviction hearing on October 31, 2005,
counsel testified regarding several claims of ineffective assistance of counsel in the post-
conviction petition that were not included in his post-conviction appeal to this court.1
Counsel stated that he had practiced law for approximately twenty-five years and that around
ninety-five percent of his practice was devoted to criminal defense. He also stated that he
had handled numerous appeals, had represented defendants in capital murder cases, and was
in good standing with the Bar. Counsel stated that he originally began representing the
Petitioner when he was appointed by the court. Counsel acknowledged that he did not
include a copy of the presentence report or the transcript from the sentencing hearing in the
third direct appeal that he handled for the Petitioner. However, he stated that the Tennessee


        1
          The other issues presented in the petitioner’s post-conviction petition, but excluded from his brief
to this Court allege ineffective assistance of counsel because counsel failed to (1) request continuances to
prepare for the case; (2) consult with the petitioner as to the results of the pre-trial investigation; (3) convey
all settlement offers to the petitioner; (4) to meet with the petitioner; and (5) provide the petitioner with
enough information to enable the petitioner to make an informed and intelligent decision to plead guilty.

                                                       -4-
Court of Criminal Appeals took “judicial notice” of the presentence report and the sentencing
hearing transcript because those documents were included in the Petitioner’s first appeal.
Counsel also acknowledged that he failed to include a copy of the transcript from the plea
submission hearing. He explained that he did not include the transcript from the plea
submission hearing because he felt it was not necessary, since the hearing centered around
whether the Petitioner had waived his rights. Counsel admitted that the Tennessee Court of
Criminal Appeals felt that the transcript from the plea submission hearing was important to
the Petitioner’s appeal. However, he stated that even if he had included the transcript of the
plea submission hearing on appeal, it would have had no effect on the sentence that the
Petitioner received.

      The Petitioner testified at the post-conviction hearing that counsel began representing
him in Criminal Court Division V in January of 1999. He stated that after reading the
Tennessee Court of Criminal Appeal’s decision regarding his third direct appeal, he
understood that the record on appeal was incomplete.

       In the November 24, 2008 Order Denying Petition for Post-Conviction Relief, the
post-conviction court concluded that the Petitioner had failed to show any prejudice from
counsel’s error:

               In this case, appellate counsel’s failure to provide the Tennessee Court
       of Criminal Appeals with a transcript of the guilty plea proceedings precluded
       the court from ruling on Petitioner’s appeal. There is no question that
       appellate counsel’s actions fell below an objective standard of reasonableness.
       In order for this court to grant Petitioner relief on this issue, however,
       Petitioner must also show that if the transcripts were provided, there was a
       reasonable probability that the results of the proceeding would have been
       different. Petitioner has not met his burden of showing prejudice to the
       outcome in this case. There is nothing in the appellate court’s opinion that
       suggests that it would have reached a different result had the transcript of the
       guilty plea proceedings been provided. Furthermore, Petitioner has not
       provided this Court with any allegations that there is anything in the transcript
       of the guilty plea proceedings that would have warranted a different result than
       the one reached by the Tennessee Court of Criminal Appeals.

                                        ANALYSIS

      Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction is void or voidable because of an abridgement of a constitutional right. T.C.A.
§ 40-30-103 (2006). The Tennessee Supreme Court has held:

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       A post-conviction court’s findings of fact are conclusive on appeal unless the
       evidence preponderates otherwise. When reviewing factual issues, the
       appellate court will not re-weigh or re-evaluate the evidence; moreover, factual
       questions involving the credibility of witnesses or the weight of their testimony
       are matters for the trial court to resolve. The appellate court’s review of a
       legal issue, or of a mixed question of law or fact such as a claim of ineffective
       assistance of counsel, is de novo with no presumption of correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal quotation and citations
omitted). “The petitioner bears the burden of proving factual allegations in the petition for
post-conviction relief by clear and convincing evidence.” Id. (citing T.C.A. § 40-30-110(f);
Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006)). Evidence is considered clear and
convincing when there is no serious or substantial doubt about the accuracy of the
conclusions drawn from it. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)
(citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901, n.3 (Tenn. 1992)).

       Vaughn further repeated well-settled principles applicable to claims of ineffective
assistance of counsel:

              The right of a person accused of a crime to representation by counsel
       is guaranteed by both the Sixth Amendment to the United States Constitution
       and article I, section 9, of the Tennessee Constitution. Both the United States
       Supreme Court and this Court have recognized that this right to representation
       encompasses the right to reasonably effective assistance, that is, within the
       range of competence demanded of attorneys in criminal cases.

Vaughn, 202 S.W.3d at 116 (internal quotations and citations omitted).

       In order to prevail on an ineffective assistance of counsel claim, the petitioner must
establish that (1) his lawyer’s performance was deficient and (2) the deficient performance
prejudiced the defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[A] failure to
prove either deficiency or prejudice provides a sufficient basis to deny relief on the
ineffective assistance claim. Indeed, a court need not address the components in any
particular order or even address both if the [petitioner] makes an insufficient showing of one
component.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S.
at 697, 104 S. Ct. at 2069).

      A petitioner successfully demonstrates deficient performance when the clear and
convincing evidence proves that his attorney’s conduct fell below “an objective standard of

                                              -6-
reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S.
at 688, 104 S. Ct. at 2065; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is
demonstrated once the petitioner establishes “a reasonable probability that but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 370.
“‘A reasonable probability is a probability sufficient to undermine confidence in the
outcome.’” Id. (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068).

       Ineffective Assistance of Counsel. On appeal, the Petitioner claims that trial counsel
rendered ineffective assistance by failing to include a copy of the presentence report, a
transcript from the plea submission hearing, and a transcript of the sentencing hearing in the
record for his second direct appeal. He contends that counsel’s failure to include these
documents in the record on appeal “precluded the possibility that the concurrent sentence be
re-considered.” He claims that because the Tennessee Court of Criminal Appeals must
review sentencing issues de novo with a presumption of correctness, it has to consider “the
nature and characteristics of the criminal conduct involved.” See T.C.A. § 40-35-210(b)(4).
Therefore, according to the Court of Criminal Appeals’ opinion, counsel’s failure to include
the aforementioned documents in the record prevented the court from reviewing the
underlying facts supporting the Petitioner’s convictions. Although the Petitioner
acknowledges that the Court of Criminal Appeals took judicial notice of the transcript of the
sentencing hearing and the presentence report that were in the record from the first direct
appeal, he contends that counsel rendered ineffective assistance in failing to include the
transcript from the plea submission hearing in the record for his third direct appeal.
Accordingly, the Petitioner claims that counsel’s failure to include the stipulated facts
supporting his convictions in the record was deficient and that this deficiency prejudiced him
by denying his right to appellate review. In response, the State contends that the trial court
properly dismissed the post-conviction petition because the Petitioner failed to prove by clear
and convincing evidence that he was prejudiced. Specifically, the State argues that the
Petitioner failed to provide any evidence at the post-conviction hearing or on appeal that his
sentence would have been different had counsel included the transcript from plea submission
hearing in the record on appeal. We agree with the State.

        While we believe that counsel’s failure to prepare an adequate record on appeal was
deficient, we conclude that the Petitioner has failed to establish how counsel’s deficient
performance prejudiced him. Specifically, the Petitioner has failed to establish a reasonable
probability that inclusion of the plea submission hearing transcript would have resulted in a
different sentence. It is clear that the State’s summary of the facts supporting the offenses
at the plea submission hearing would not have resulted in a lesser sentence for the Petitioner
on appeal. After reviewing the record, we conclude that the Petitioner did not show by clear
and convincing evidence that counsel prejudiced him by failing to prepare an adequate record
on appeal. Accordingly, we affirm the judgment of the post-conviction court.

                                              -7-
                               CONCLUSION

Upon review, we affirm the judgment of the post-conviction court.




                                         ______________________________
                                         CAMILLE R. McMULLEN, JUDGE




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