          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE             FILED
                            JANUARY SESSION, 1998          March 31, 1998

                                                        Cecil W. Crowson
                                                       Appellate Court Clerk
KEN NET H CH EATH AM,               )   C.C.A. NO. 01C01-9703-CC-00109
                                    )
            Appe llant,             )
                                    )   WILLIAMSON COUNTY
V.                                  )
                                    )
                                    )   HON. CORNELIA A. CLARK, JUDGE
STATE OF TE NNE SSE E,              )
                                    )
            Appellee.               )   (POST-C ONVIC TION)




FOR THE APPELLANT:                       FOR THE APPELLEE:

JOHN H. HENDERSON                        JOHN KNOX WALKUP
District Public Defender                 Attorney General & Reporter

LARRY D. DROLSUM                         LISA A. NAYLOR
Assistant Public Defender                Assistant Attorney General
407-C Main Street                        2nd Floor, Cordell Hull Building
P.O. Box 68                              425 Fifth Avenue North
Franklin, TN 37065                       Nashville, TN 37243

                                         JOSEPH D. BAUGH, JR.
                                         District Attorn ey Ge neral

                                          DEREK K. SMITH
                                          Assistant District Attorney General
                                          Williamson Co. Courthouse, Ste. G-6
                                          P.O. Box 937
                                          Franklin, TN 37065




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                   OPINION
       The Petitioner, Kenneth Cheatham, appeals as of right from the order of the

Williamson County Circuit Court denying his petition for post-con viction relief.

Petitioner was originally charged in a multi-count indictment with four (4) different

sales of cocaine, four (4) different charges of delivery of cocaine, and one (1) count

of conspiracy to sell or deliver cocaine. He pled guilty to th e four (4 ) coun ts of sa le

of coca ine an d the c harge s of de livery of c ocain e were dism issed .      Petitioner

exercised his right to a jury trial on the charge of conspiracy to sell or deliver cocaine

and was found guilty. Subsequently, a sentencing hearing was held for the four (4)

convictions of sale of cocaine and the conviction for conspiracy. On three (3) of the

convictions of sale of cocaine, he received sentences of twelve (12) years on each

count to be served conc urren tly with each othe r. For the conviction of co nspiracy,

he also re ceived a six (6) y ear se ntenc e to be served conc urren tly. However, the

trial court sentenced him to serve a six (6) year sentence for the fourth conviction for

sale of cocaine consecutively to the other sentences, for an effective sentence of

eighteen (18) years. The Petitioner did not appeal the sentences he received for the

convictions of sale of coc aine, b ut did appeal the conviction and sentence imposed

for consp iracy. This court affirm ed. See State v. Kenny Cheatham, No. 01C01-

9506-CC-00196, William son Co unty (Tenn. Crim. App., Nashville, June 11, 19 96).

At the hearing on the petition for post-conviction relief, the sole issue was whether

or not counse l was ineffective during the sentencing hearing and that specifically, as

a result of the ineffectiveness of coun sel, co nsec utive se ntenc ing wa s wron gfully

impos ed upo n Petitione r. We affirm the ju dgme nt of the trial co urt.




                                            -2-
      Even though the issue was effective assistance of counsel regarding

sentencing and there was testimony by both the Petitioner and his trial counsel

regarding events which transpired following the conviction and prior to and during

the sentencing hearing, Petitioner devoted a section of his argum ent in this co urt to

a direct cha llenge of th e proprie ty of consecutive sente ncing . In add ition, in h is

request for relief, he asks this cou rt to modify the sentence within the range and run

the sentences concurrently rather than consecutively. This relief cannot be granted

in a post-conviction proceeding.       The only relief that could be granted to the

Petitioner in this petition for post-conviction relief is a setting aside of the judgm ent.

Tenn. Code Ann. § 4 0-30-21 1(a). W e will therefore confine our review to whether

or not the trial court committed error by denying the petition for post-conviction relief

insofar as it alleges ineffective a ssistanc e of counsel regarding the sentencing

proceedings.



       In determ ining w hethe r coun sel pro vided e ffective assistance at trial level

proceedings, the court m ust de cide w hethe r coun sel’s performance was within the

range of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975).         To succeed on a claim that his counsel was

ineffective, a petitio ner be ars the burde n of sh owing that his counsel made errors so

serious that he was not functioning as counsel guaranteed under the Sixth

Amendment and that the deficient representation prejudiced the petitioner resulting

in a failure to produce a reliable re sult. Strickland v. Washington, 466 U.S. 668, 687,

reh’g denied, 467 U.S. 12 67 (198 4); Coop er v. State , 849 S.W.2d 744, 747 (Tenn.

1993); Butler v. Sta te, 789 S.W .2d 898 , 899 (T enn. 19 90).




                                            -3-
       When review ing trial c ouns el’s actio ns, this court s hould not us e the b enefit

of hindsight to second-guess trial strategy and criticize couns el’s tactics. Hellard v.

State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors should be judged at

the time th ey wer e ma de in light of all facts a nd circum stance s. Strickland, 466 U.S.

at 690; see Cooper, 849 S.W.2d at 746.



       At the hearing for the post-conviction petition, Petitioner testified regarding his

trial counsel’s representation of him after the convictions but prior to and during his

sentencing hearin g. Petitio ner sta ted tha t followin g his trial and guilty plea hearing,

he did not have any contact whatsoever with his trial counsel. Petitioner believed

that the sente ncing hearin g wou ld be to , “[J]ust g o in and get some time and come

right back out, tha t’s all I thought it would be.” He claimed that his attorney never

discussed with him his right to present witnesses at the sentencing hearing. As of

the date of the post-conviction petition hearing, Petitioner identified four (4) peop le

who would have testified on his behalf regarding his work habits, his employment

history, and his personal habits in that he was a drug user but was not a professional

criminal. On cross-examination, Defendant admitted that he had numerous prior

convictions, including auto burglary, grand larceny, evading the police and

possession of cocain e, in addition to those c onvictions for the sale of cocain e to

which he pled guilty. Defendant stated that he began selling cocaine in April 1994,

and continued to sell until he was arrested in July 1994. Defendant was earning at

least two to three hundred ($200.00 - $300.00) per week from these cocaine sales,

and du ring at leas t part of that tim e he wa s not em ployed.



       Defe ndan t’s trial counsel testified that he had ten (10) ye ars experience as a

trial attorney including six (6) years as an assistant district attorney general. Trial

                                            -4-
counsel stated that their strategy at trial was to wait and see if the confidential

informant showed up to testify at the trial, and, if he did not, to try to get the charges

dismissed. If the co nfiden tial inform ant did appe ar to tes tify, then tria l coun sel’s

defense was only to dispu te that there was any evidence of a criminal cons piracy.

Prior to trial, counsel spoke with most of the witnesses Defendant suggested, but at

the post-conviction hearing he did not recall the content of their proposed testimony.

The day followin g the trial, trial cou nsel wro te Defendant a letter to discuss what had

happened at trial and what was coming up at the sentencing hearing. Specifically,

the letter stated as follows:

       This letter is written to confirm that on De cemb er 8th an d 9th, 199 4, I
       appeared on your behalf in Circu it Court for W illiamson Cou nty,
       Tennessee, at the trial setting of the captioned matter which
       represented a prosecution for the sale/delivery of cocaine and
       conspiracy to sell/deliver cocaine. On December 7th, 1994, you
       elected to enter ple as of guilty to Counts 1, 3, 5 and 7 representing four
       counts of sale of coca ine, three counts of Class B felony sale of
       cocaine with the penalty range of from eight to twelve years to the
       Tennessee Departm ent of Corre ctions and a fine range between two
       thousand and one hundred thousand dollars. Additionally, on
       December 8th and 9th, 1994, I participated in a trial of Count 9 of the
       presentment against you which represented a prosecution for the Class
       C felony of conspiracy to sell and deliver cocaine. That trial resulted in
       the jury convicting you of that offense and assessing a ten thousand
       dollar fine.

       Sentencing in regard to all five convictions w ill occur on Mond ay,
       January 23rd, 1995 at 2:00 p.m. The she riff will transport you to court
       on that day. I have enclosed copies of the pertinent statutes which the
       court will be required to consider in sentencing you for your review. If
       you have any particular witnesses that you desire to be subpoenaed,
       please inform me of the same at your first convenience so that proper
       process m ay issue in a time ly manner.

       I’ve also filed a post-trial motion for judgment of acquittal which I
       assume will be heard on January 23rd, 1995, also. This is the second
       opportu nity to the court to dismiss the charge against you, meaning the
       conspiracy charge. If you have any que stions or c omm ents concerning
       your cas e, please feel free to c ontact m e.




                                            -5-
       Trial counsel further stated that he had gone o ver the item s in this letter w ith

the Defendant at some time, and he recollected speaking with Defendant regarding

the impo rtance of havin g fam ily members present at the sentencing hearing. At the

sentencing hearing, trial counsel still had not been provided with the presentence

report for the Defendant. If the report had been prepared prior to the hearing, trial

coun sel’s habit was to have a meeting with the defendant and go over the report, line

by line, to discuss its accuracy. Rather than seek a continuance to allow time to

obtain and review a presentence report, Defendant wanted to waive that right so that

he migh t receive his sentence and move on with his life. The strategy trial counsel

employed was to show the trial cour t the Defe ndant’s h onesty and th e cha nge in his

life regarding his drug habits. As the intu ition of th e cou rt is a guiding factor in the

sentencing outco me, tria l coun sel be lieved th at De fenda nt’s honesty, his remorse,

his amenability to rehabilitation and drug treatment would appear favorable in the

eyes of the trial court. Trial counsel’s impression from the Defendant was that

Defendant did not want to pursue using proof of character witnesses. Trial counsel

further explained that following the sente ncing he aring, De fendan t chose n ot to

pursue an appeal on the issue of consecutive sentencing because he “understood

how and why the court sentenced him as it did.” Rathe r, Defendant only appealed

regarding the conspiracy conviction, and waived his rights to appeal any other issue

with rega rd to sen tencing o n the sale conviction s.



       In making its ruling at the post-conviction he aring, the trial court assumed that

all the statements made by Defe ndan t regar ding h is potential witnesses’ testimony

were fact. Ultimately, the trial court determined that counsel in the case sub judice

was effective and that specifically nothing that trial c ouns el did o r failed to do co uld

have affected the outcome of the sentence. In light of Defendant’s past record and

                                            -6-
his conviction of Class B felonies , probation was no t a possib ility, therefore any

poss ible witnesses on this issue would have been futile to the court’s determination.

Also, as regarding mitigating factors, the trial court found that thos e did not apply.



       On the issue of trial cou nsel’s ineffectiveness as to consecutive sentencing,

the trial court noted that none of Petitioner’s proposed witnesses w ould have

affected the imposition of con secutive sentences as the finding that Defendant was

a professional crim inal was base d upon his o wn testimon y. Furthermore, Petitioner

admitted to the trial court his history of crimina l activity, including a uto theft, the ft,

reckless driving, assau lt, possession of cocaine, and driving on a suspended license.

Either of thes e two c onditio ns, Pe titioner’s status as a pr ofess ional c rimina l or his

history of criminal activity, would have justified consecutive sentencing, and no

amount of testimony by any witnesses nor any other trial strategy employed by trial

counsel would have allowed th e trial court to re ach a d ifferent resu lt. See Tenn.

Code A nn. § 40-35-1 15(b).



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

the allega tions in his petition b eyond a prepon deranc e of the ev idence . McBee v.

State, 655 S.W .2d 191, 195 (Tenn. C rim. App. 1983). Pe titioner failed to prove

these allegations by a preponderance of the evidence, and the factual findings of the

trial court are, therefore, conc lusive on ap peal. See State v. Buford , 666 S.W.2d

473, 475 (Tenn. Crim. App. 1983). Based upon his testimony at the post-conviction

hearing, trial counsel’s choices were informed decisions. We will not second-guess

his tactical and s trategic ch oices bo th prior to an d during the sente ncing he aring.




                                             -7-
       After a thorough review of the facts , records and the briefs in this matter, we

affirm the ju dgme nt of the trial co urt.



                                    ____________________________________
                                    THOMAS T. W OODALL, Judge


CONCUR:


___________________________________
JOHN H. PEAY, Judge


___________________________________
DAVID H. WELLES , Judge




                                             -8-
