          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON               FILED
                          FEBRUARY SESS ION, 1998           May 5, 1998

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk

FREDRICK M. SLEDGE,                )   C.C.A. NO. 02C01-9702-CR-00086
                                   )
            Appe llant,            )
                                   )   SHELBY COUNTY
V.                                 )
                                   )
                                   )   HON. JOSEPH B. DAILEY, JUDGE
STATE OF TENNESSEE,                )
                                   )
            Appellee.              )   (POST -CON VICTIO N)



FOR THE APPELLANT:                     FOR THE APPELLEE:

HARR Y E. SAY LE, III                  JOHN KNOX WALKUP
99 North Third Street                  Attorney General & Reporter
Memphis, TN 38103
                                       DEB ORAH A. TULL IS
                                       Assistant Attorney General
                                       2nd Floor, Cordell Hull Building
                                       425 Fifth Avenue North
                                       Nashville, TN 37243

                                       JOH N W. P IERO TTI
                                       District Attorn ey Ge neral

                                       TER REL L L. HAR RIS
                                       Assistant District Attorney General
                                       201 Poplar Avenue - Third Floor
                                       Memphis, TN 38103




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                     OPINION
       The Petitioner, Fre drick M. S ledge, ap peals from the orde r denying his petition

for post-conviction relief. In this appeal, Petitioner raises the following issues:

       1)      The trial court erred in waiving P etitioner’s grounds for relief
               pursuant to T ennesse e Code A nnotated se ction 40-30-20 6(g).

       2)      The trial court erred in instructing the jury on reasonable doubt
               as the language of the instruc tion relieved the State of its burden
               of proof.

       3)      The trial court erred in determining that the appellant was not
               denie d the e ffective a ssista nce o f trial cou nsel.

We affirm the ju dgme nt of the trial co urt.



       Petitioner was convicted of two (2) counts of aggravated robbery and was

sentenced to two consec utive sente nces of ten (1 0) yea rs for ea ch co nviction in the

Criminal Cour t for Sh elby C ounty . Petition er’s dire ct app eal of th ose c onvictio ns was

denied, State v. Fredrick Sledge, C.C.A. No. 02C01-9306-CR-00116, Shelby C ounty

(Tenn. Crim. App . , at Jackson, Au g. 10, 1994), an d he filed a petition for post-

conviction relief. After an evidentiary hearing, his petition for relief was denied by the

trial court.



       In post-conviction relief proceedings the petitioner has the burden of proving

the allegation s in his petition by a prep ondera nce of the evidenc e. McBe e v. State ,

655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, the factual findings of

the trial court in hearings “are conclusive on appeal unless the evidence

preponderates against the judg ment.” State v. Buford , 666 S.W.2d 473, 475 (Tenn.

Crim. App . 1983).




                                              -2-
                                    W AIVER OF CLAIMS



      In his first issue, Petitioner claims that the application of the waiver stand ard

to his grounds for relief pursuant to Tennessee Code Annotated section 40-30-

206(g) and Hous e v. State, 911 S.W.2d 705 (Tenn . 1995), cert. denied, 116 S.C t.

1685 (1996), violates his due process rights. Petitioner argues that his petition was

governed by Tennessee Code Annota ted sectio n 40-30 -101, the Post-Conviction Act

repealed in 1995. Petitioner asserts that he has a constitutional right to rely upon

the statute as written a nd in effec t at the time of the beh avior in que stion.



       Defendant is corre ct in his assertion that his petition for post-conviction relief

is determined pursuant to Tennessee Code Annotated section 40-30-112(b) as his

petition for post-conviction re lief was filed on A pril 23, 199 5. The c urrent Po st-

Conviction Act go verns all petitions filed after May 10, 199 5. See Compiler’s Notes,

Tenn. Code Ann. § 40-30-201. Under the provisions of the former statute, a ground

for relief is waived if the petitioner knowingly and understandingly fails to present it

for determination in any procee ding before a court of competent jurisdiction in which

the ground could have been presented. Tenn. Code Ann. § 40-3 0-112(b)(1). T here

is a “rebuttable presumption” that a ground for relie f not raised in any such

proceeding which w as held w as waive d. Id. at (b)(2). In House, our supreme court

determined that the rebuttable presumption of waiver is not overcome by an

allegation that the petition er did n ot pers onally and, therefore, “knowingly and

unders tanding ly,” waive a groun d for relief. House, 911 S.W.2d at 714. Waiver is

determined by an objective standard under which a petitioner is bound by the action

or inaction of his attorn ey. Id.




                                            -3-
       The trial court found that by failing to present numerous grounds for appeal

before a court of competent jurisdiction, Petitioner had waived all grounds for relief

other than P etitione r’s claim for ineffe ctive as sistan ce of c ouns el.    Und er this

objective standard, Petition er “kno wingly and understandingly” waived these claims.

Therefore, the po st-con viction c ourt’s finding that Petitioner’s groun ds for relief were

waived is c orrect.



       Petitioner asserts that by applying this standard of waiver to his claim, the

statutory change in the Post-Conviction Act is rendere d “nuga tory,” and th is subjec ts

Petitioner to an ex post facto standard. In determining whether an ex pos t facto

violation exists, there are five broad classifications:

       1)     A law which provides for the infliction of punishment upon a person for
              an act do ne whic h, when it was com mitted, w as innoc ent.

       2)     A law which aggravates a crime or makes it greater than when it was
              committed.

       3)     A law that changes punishment or inflicts a greater punishment than the
              law annexed to the crime when it was committed.

       4)     A law that changes the rules of evidence and receives less or different
              testimony than was required at the time of the commission of the
              offense in orde r to convict the offende r.

       5)     Every law which, in relation to the offense or its conseque nces, alters
              the situation of a person to his disadvantage.

State v. Pearson, 858 S.W .2d 879 , 882 (T enn. 19 93); citing Miller v. State , 584
S.W .2d 758, 761 (Tenn. 197 9).

Petition er’s claims o bviously d o not fit into the se class ifications. No law has been

changed to which P etitioner is su bject to for trial or punishment. Neither is Petitioner

subject to a new law under the Post-Conviction Act as Petitioner’s claims are subject

to determination pursuant to the former Post-Conviction Act. There is no valid ex

post facto argum ent, and this issue is without m erit.


                                            -4-
                                   J URY INSTRUCTION



      Petitioner argues that the instruction on reasonable doubt as charged to the

jury relieved the State of its burden of proof. Petitioner’s claim was not raised as a

ground for relief in any prior proceedings. Therefore, this claim is waived pursuant

to Tennessee Code Annotated section 40-30-112(b). Moreover, Petitioner has failed

to include the trial court’s charge to the jury as part of the record, and, therefore, we

are prec luded fro m con sidering th is issue. T enn. R . App. P. 2 4(b); State v. Bunch,

646 S.W .2d 158, 160 (Tenn. 198 3); State v. R oberts , 755 S.W.2d 833, 836 (Tenn.

Crim. A pp. 198 8).



                         INEFFECTIVE ASSISTANCE OF COUNSEL



      Petitioner argues that the denial of post-conviction relief on the basis of

ineffective assistance of trial counsel was error. He contends that trial counsel failed

to interview and call alibi witnesses on his behalf to testify at trial. Petitioner states

that if trial cou nsel h ad be en pre pared for trial, then he would have discovered and

subpoenaed his alibi witnesses.



      In reviewing the Pe titioner’s Sixth Amendment claim of ineffective assistance

of counsel, this court must determine whether the advice given or the services

rendered by the a ttorney are with in the range of compe tence dem anded of a ttorneys

in criminal c ases. Baxter v. Rose, 523 S.W .2d 93 0, 936 (Ten n. 197 5). To preva il

on a claim o f ineffective co unsel, a p etitioner “m ust show that            counsel’s

representation fell belo w an o bjective stand ard of re ason ablen ess” a nd tha t this

performance prejudiced the defense. There must be a reasonable probability that

                                           -5-
but for counsel’s error the result of the proceed ings wo uld have been d ifferent.

Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694, 104 S.Ct. 2052, 2064,

2067-68, 80 L.Ed.2d 674 (19 84); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.

App. 1985 ).



      This court should not se cond -gues s trial co unse l’s tactica l and s trategic

choices unless those choices we re uninform ed bec ause o f inadequ ate preparation.

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). C ounse l should n ot be de emed to

have been ineffec tive me rely because a different procedu re or strategy mig ht have

produced a different re sult. William s v. State, 599 S.W.2d 276, 280 (Tenn. Crim.

App. 1980 ).



      During the post-conviction hearing, Petitioner testified that his mo ther, M innie

Sledge, hired trial counsel to represent him. He and trial counsel met prior to trial

on four (4) or five (5) o ccasion s, but Pe titioner was not satisfied with the len gth of

these meetings. During these meetings, Petitioner claimed he told trial counsel that

he did not commit the robberies and had alibi witnesses, Tony Sledge and Brad

Johnson, who could verify his activities on the evening of the robbery, December 13,

1991. Petitioner stated that Sledge and Johnson picked him up on the evening of

December 13 between 7:00 and 7:30 p.m.              They drove to a club in Victoria,

Mississippi where they stayed for three (3) hours, then th ey wen t to ano ther clu b in

Olive Branch, Mississippi. They returned Petitio ner to h is hom e at ap proxim ately

3:00 a.m. P etitione r stated that he told his trial counsel that he could contact these

two witnes ses th rough Minnie Sledge . On cross-examination, Petitioner stated that

he saw several other people that evening who could verify his alibi, but he did not

give their names as potential witnesses to his trial counsel. He also confirmed that

                                           -6-
he did not tes tify at trial, even thoug h no o ther witn esse s testifie d rega rding h is alibi.




       Tony Sledge, Petitioner’s brother, testified that he and his cousin Brad

Johnson picked Petitioner up in the Cleaborn Homes area between 7:00 and 7:30

p.m. They drove to Club Elmores in Victoria, Mississippi, where they stayed for

about thirty (30) minutes in the parking lot. They returned to Olive Branch where

they went to a club called Sam Scale s and rema ined u ntil app roxim ately 3:00 a.m.

Sledg e’s girlfriend dropped him off at hom e and then drove Johnson and Petitioner

to their homes. Sledge stated that he never met with Petitioner’s trial counsel prior

to the trial for aggravated robbery, but that he did call trial counsel on one occasion

to tell him that “[he] could be there for him for that.” Sledge did not co me to

Petition er’s trial for aggravated robbery b ecaus e he did n ot know what da te it would

be held .



       Brad Johnson testified that he was the cousin of the Petitioner. On December

13, 1991, he and Tony Sledge decided to go out and went to pick up Petitioner

around 7:00 to 7:30 p.m . They drove to Olive Branch , Mississippi, where th ey drove

around and talked. They went to Club E lmore s in Victoria, Mississippi, and stayed

for two (2) hours. Johnson stated that he went in the club, but Sledge and Petitioner

remained outside. Sledge was “high” and throwing up, so Petitioner came in and

asked Johnson to leave the club. They left and drove to Sam Scales , a club in Olive

Branch, arriving there at approximately 2:00 a.m. They left Sam Scales at 3:00 a.m.,

and Johnson stated that Petitioner was driving. Th ey dropp ed To ny Sledg e off first,

and then returned home. Johnson could not recall if any females were with them

that night, but one of his friends was riding with them because he did not have a ride

                                               -7-
home.     Johns on rec alled th at no o ne co ntacte d him regarding the po ssibility o f his

testifying prior to Petitioner’s trial. During cross-examination, Johnson recalled that

Tony S ledge’s g irlfriend was in the car o n their wa y home from the clubs.



        Trial counsel testified that he was hired by Petitioner’s mother, Minnie Sledge,

to represent Petitioner. Counsel met with Petitioner regarding several charges

against him, including murder and aggravated robbery charges. Counsel stated that

he investigated each charge and received discovery from the State so that he was

fully aware o f the proof and the witnesses the State intended to use against

Petitioner. Counsel met with Pe titioner a t least fo ur (4) to five (5) tim es prio r to trial,

prima rily focusing upon the most serious charge of murder. Counsel received an

offer from the State to plead guilty on all charges in exchange for a life sentence on

the murder charge and two concurrent sentences for the aggravated robbery

charges. Petitioner refused to plead guilty, despite counsel’s advice that this was

a good offer.



        During trial preparation, Petitioner told counsel that he committed the

aggravated robbery and had no defense or witnesses on his behalf. Counsel made

written notes to that conve rsation . On on e even ing du ring Pe titioner’s aggravated

robbery trial, Tony Sledge called coun sel and id entified hims elf as P etitione r’s

brother. Sledge notified counsel that he was with Petitioner on December 13, 1991,

from 7:30 p.m . until 3:00 a.m . Couns el instructe d Sledg e to come to court the next

day. Counsel was concerned because Tony Sledge was confused as to which night

he was actually with Petitioner. There was another robbery which occurred on

December 14, 1991, of whic h Petitio ner wa s initially charg ed bu t was s ubse quen tly

cleared, and counsel observed that Sledge was incorrect as to which evening he

                                              -8-
was with the Petitioner. Counsel stated that Sledge did not appear the following

morning at trial. Counsel thought it was very unusual because Petitioner had notified

him earlier that sa me d ay that h e had no witn esse s on h is beh alf and had committed

the robbery. Other than Sledge’s phone call, no other family members offered to

serve as an alibi for Petitioner, but several o f his family m embe rs did testify for the

State ag ainst Pe titioner rega rding his in volveme nt in the rob bery.



       Following the post-conviction hearing, the trial court set forth in its findings of

fact and c onclu sions of law th at Petitio ner’s c laim of ineffective assistance of counsel

was dism issed . The tr ial cou rt denie d Petitio ner’s c laim in light of the trial testimony

and Petitioner’s stateme nts to counse l regarding his pa rticipation in the robbery.

The trial court noted the inconsistencies between Petitioner’s testimony and his alibi

witnesses.     Upon review of the record in this matter, there were obvio us

inconsistencies betwee n Petitione r’s testimo ny and th at of his alibi witnesses,

therefore, the trial court accredited the testimony of trial counsel.              Questions

concerning the credibility of the witnesses, and the weight and value to be given their

testimony are to be resolved by the trier of fa ct, not this co urt. State v. Pappas, 754

S.W.2d 620, 623 (T enn. Crim. App.), perm. to appeal denied, id. (Tenn. 198 7).

Furthermore, the notes from P etitioner’s file made by trial counsel indicate that

Petitioner advised counsel that he had committed the offense and had no alibi

witnesses. In order to prove trial counsel was ineffective, Petitioner’s burden of proof

was to overcome the findings of the trial court by a preponderance of the evidence.

Petitioner has failed to meet this burden of proof, therefore this court is bound by the

trial court’s find ings of fac t. This issu e is withou t merit.



       We affirm the ju dgme nt of the trial co urt.

                                              -9-
                         ____________________________________
                         THOMAS T. W OODALL, Judge


CONCUR:


___________________________________
JOSEPH B. JONES, Presiding Judge


___________________________________
JOHN H. PEAY, Judge




                               -10-
