         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned On Briefs April 11, 2001

                   STATE OF TENNESSEE v. KELVIN WILSON

                   Direct Appeal from the Circuit Court for Fayette County
                           No. 4480   Jon Kerry Blackwood, Judge



                     No. W2000-02704-CCA-R3-PC - Filed June 27, 2001


The Petitioner was convicted of aggravated kidnapping and sentenced to ten years incarceration.
Following direct appeal to this Court, which affirmed the Petitioner’s conviction and sentence, and
to the Tennessee Supreme Court, which denied permission to appeal, the Petitioner filed a petition
for post-conviction relief, alleging that he received ineffective assistance of counsel at trial. The
post-conviction court conducted a hearing and denied relief. The Petitioner now appeals the post-
conviction court’s decision. Having reviewed the record, we conclude that the Petitioner’s
representation at trial was adequate and therefore affirm the post-conviction court’s denial of post-
conviction relief.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JOE G. RILEY and JOHN
EVERETT WILLIAMS, JJ., joined.

Richard G. Rosser, Somerville, Tennessee, for the Appellant, Kelvin Wilson.

Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney
General; Elizabeth T. Rice, District Attorney General; and Colin A. Campbell, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                             OPINION

         The Petitioner, Kelvin Wilson, was convicted by a Fayette County jury of aggravated
kidnapping and sentenced to ten years incarceration. On direct appeal, this Court affirmed his
conviction and sentence, and the Tennessee Supreme Court subsequently denied permission to
appeal. See State v. Kelvin Andre Wilson, No. 02C01-9802-CC-00052, 1998 Tenn. Crim. App.
LEXIS 1163, at *1 (Tenn. Crim. App. Nov. 12, 1998). In December 1999, the Petitioner filed a pro
se petition for post-conviction relief. On March 17, 2000, the trial court conducted a post-conviction
hearing and denied post-conviction relief. The Petitioner now appeals the trial court’s decision,
arguing that he received ineffective assistance of counsel at trial. We conclude that the Petitioner
received effective representation at trial and therefore affirm the judgment of the trial court.

       The facts underlying the Petitioner’s conviction were summarized on direct appeal as
follows:
               At trial, the proof developed the following facts. On March 21, 1997, the
       [Petitioner], a juvenile, was incarcerated at the Wilder Youth Development Center,
       a state facility for delinquent youth, which is located in Somerville. Christine
       Johnson, a forty-two year old youth service officer at Wilder, was supervising the
       recreation of the Programmatic Segregation Unit (PSU), which the officer described
       as the “overly aggressive, assaultive type students.” A total of eight juveniles were
       outside at the basketball courts including the [Petitioner], who was seventeen years
       old, and his two co-defendants, Quincy Bledsoe and Fredrequos Demon Neal, both
       sixteen years old.

              Because the [Petitioner] began “horseplaying” with another juvenile, Ms.
       Johnson ceased the juveniles’ recreation time and ordered them to prepare to return
       indoors. The [Petitioner] encountered Ms. Johnson stating, “We’re straight.” Ms.
       Johnson replied, “No, we’re going in because you know horseplaying is not allowed.”
       The [Petitioner] then grabbed Ms. Johnson around her neck and began choking her.

               In an effort to call for help, Ms. Johnson attempted to “key” her radio,
       however, someone had taken the radio as well as her keys. At this point, Ms.
       Johnson believed she would die; therefore, she feigned unconsciousness and fell to
       the ground. Next, the [Petitioner] and Charles Lusk attempted to handcuff the
       victim. She pleaded with Bledsoe not to kill her, and Bledsoe told her, “just lay
       down and let them handcuff you.” After handcuffing Ms. Johnson, one of the co-
       defendants groped the victim’s buttocks. The [Petitioner ] and his co-defendants
       placed a sock in the victim’s mouth to gag her. Then, the group tied her feet with
       strips of cloth from pillow cases, unlocked the storage room door with her keys, and
       placed her inside.

               While confined, Ms. Johnson overheard the juveniles plotting their escape
       plans to elude Mr. Hayes, another officer at Wilder stationed at the observation
       booth. Eventually, Mr. Hayes noticed two other juveniles, uninvolved in these
       charges, quickly peering inside the door which alerted him to the fact that something
       was wrong. Upon finding Ms. Johnson’s keys and radio, Officer Hayes radioed for
       backup. Hayes, then proceeded to secure the remaining juveniles in their quarters.
       Thereafter, Hayes found Ms. Johnson locked in the storage room “handcuffed, legs
       tied, gagged, and . . . trembling.”

              At trial, Ms. Johnson testified that the handcuffs were extremely tight upon
       her wrists requiring the assistance of two officers to remove them. She testified that


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       she experienced numbness in her hands for one month following the incident. She
       further testified that she sustained temporary injuries to her wrists from the
       handcuffs, to her neck from the choking which temporarily damaged her voice, and
       cuts to the corners of her mouth from the gag. The record reflects that Ms. Johnson
       missed several months of work in order to physically and mentally recuperate from
       the effects of this incident.

                The defense presented one witness, Charles Tate, an eighteen year old who
        was housed at Wider [sic] at the time of the offense. Tate testified that he and the
        [Petitioner] had discussed escaping from Wilder one week before this incident. Tate
        stated that the [Petitioner] was the leader in the plot to escape and initiated the plan
        by choking Ms. Johnson. Tate revealed that Charles Lusk had torn the pillow case
        into strips and hid them in his pants before going outside for recreation. Through
        Tate’s testimony, he revealed that the [Petitioner] and Lusk successfully “got under
        the fence;” however, the [Petitioner] was unable to penetrate the second fence
        because the fence was affixed to concrete.
See id. at *2-3.

        At the post-conviction hearing, the Petitioner testified that he had been imprisoned since
December 28, 1998 for the offense of aggravated kidnapping and that he was seventeen years old
when he became incarcerated. The Petitioner claimed that his attorney spoke with him only once
before trial and failed to inform him of the penalties for the charges against him. He stated that his
attorney also failed to discuss with him his right to call witnesses on his behalf.

        The Defendant claimed that he told his trial attorney that he attempted to escape the Wilder
Youth Development Center primarily because he feared injury or death at the hands of Wilder
employees. He claimed that while he was being loaded onto a vehicle to transport him from Wilder
to Alabama after his stay at Wilder was terminated, an employee of Wilder threatened him. The
Petitioner stated that when he told his attorney this information, his attorney “said that it was
irrelevant because it happened after the incident” and chose not to present the evidence to the jury.
The Petitioner also reported that one of the officers who transported him to Alabama was willing to
testify about the threat, but his attorney did not call the officer as a witness.

         The Petitioner also complained that his attorney failed to present as evidence at trial his
extensive mental health history. He testified that he was diagnosed with attention deficit disorder
as a child and reported that he had been prescribed medication for the disorder. He also testified that
he had been diagnosed as severely depressed and had taken medication for his depression. The
Petitioner stated that he had been hospitalized approximately five or six times times for these and
other disorders. He recalled that his shortest hospitalization lasted six months and that his longest
hospitalization lasted two and a half years. The Petitioner testified that he had been a patient at Saint
Joseph Hospital, Western Mental Health Institute, Charter Lakeside Hospital, Shelby Training
Center, and Memphis Mental Health Institute. The Petitioner stated that he had attempted suicide
several times and had once tried to set his room on fire at one institution. In addition, the Petitioner


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stated that he was on “suicide watch” two days prior to the incident leading to his conviction. He
testified that although he shared this information with his trial attorney, his attorney failed to present
evidence concerning his mental health history at trial or at the sentencing hearing. The Petitioner
maintained that his attorney should have pursued an insanity or diminished capacity defense. He
further testified that his attorney did not inform him that his mental illness could be presented as a
mitigating factor at the sentencing hearing. Additionally, he complained that his attorney failed to
submit other applicable mitigating factors at the sentencing hearing, including that he was acting
under duress at the time of the crime and that the victim was left alive.

         The Petitioner testified that he and his attorney discussed whether he should testify at trial.
He maintained that he wished to testify at his trial. The Petitioner recalled, “[My attorney] told me
that if I testified, it wouldn’t do no good . . . . [H]e say let him do it his way. And I did that. I
thought that was best.” Nevertheless, the Petitioner maintained at the post-conviction hearing that
he wished to testify at his trial. Upon further questioning, however, the Petitioner admitted that
based on advice from his attorney, he decided not to take the stand.

         The Petitioner complained that his attorney failed to file a motion requesting a severance of
his trial from that of his co-defendants. The Petitioner testified that during the trial, the confession
of one of his co-defendants, implicating the Petitioner in the crime, was read to the jury without
objection by his trial attorney. The Petitioner also claimed that his attorney did not object to the
make-up of the grand jury that indicted him and did not object to two minority members of the jury
being excused from the jury during voir dire. In addition, he complained that his attorney did not
object to an inappropriate jury instruction defining reasonable doubt.

       The Petitioner further testified that after his stay at the Wilder Youth Development Center,
he was transported to and held in Alabama for approximately two and a half months without being
charged with any crime. He also claimed that while he was in Alabama, an investigator tried to
speak with him, and he requested a lawyer. According to the Petitioner, the investigator continued
to question him despite the request. The Petitioner testified that he told his trial attorney about the
questioning. However, when asked if his attorney had filed a motion to suppress any statements he
had made to the investigator, the Petitioner stated, “I didn’t speak with [the investigator].”

        Finally, the Petitioner complained that his attorney failed to interview Charles Tate, an
inmate at Wilder at the time of the crime. However, the Petitioner also admitted that Tate was called
as a witness for the defense at trial. The Petitioner stated that Tate testified against him rather than
for him.

        The Petitioner’s trial attorney responded to the Petitioner’s allegations at the post-conviction
hearing. He stated that he had been an assistant public defender for three years and had practiced
law for a total of ten years. The attorney reported that he was appointed to the Petitioner’s case when
another member of his office took maternity leave. He recalled meeting with the Petitioner at least
two times prior to trial, but stated, “I’m quite sure I saw him more than that.”



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        The attorney did not recall the Petitioner ever indicating to him that he feared for his life
before the crime. He testified, “I recall him saying that after the incident happened, threats were
being made by some of the guards to him. And I don’t recall him saying that that was the reason he
attempted to escape.” The attorney reported that he told the Petitioner that he did not believe the
threats were relevant because they were made after the incident occurred. He stated, “And without
me having any knowledge of threats being made beforehand, . . . I had no basis to assert that as a
defense.”

        With regard to the Petitioner’s mental health history, the attorney testified that he requested
a mental evaluation of the Petitioner prior to trial. He stated that he obtained the Petitioner’s records
from several places and submitted them to J.B. Summons Mental Health for an evaluation. The
Petitioner was found competent to stand trial. The attorney stated that when one of his clients is
evaluated and declared competent for trial, it is his practice to notify the court and request a second
evaluation if he becomes aware of any problems with the client after the evaluation. However, he
did not request a second evaluation in this case. The attorney stated that based on his interactions
with his client, he concluded that the Petitioner was competent. He recalled that the Petitioner
appeared to understand their conversations and seemed to understand what he was doing at the time
of the crime. Based on his interactions with the Petitioner and the evaluation from J.B. Summons
Mental Health, the attorney decided not to pursue an insanity or diminished capacity defense.
However, the attorney stated that he could not recall whether he researched the defense of
diminished capacity at the time of the Petitioner’s trial.

        The attorney further testified that he did not file a list of mitigating factors for use in
sentencing, choosing instead to argue the mitigating factors at the sentencing hearing. He recalled
that he argued that the court should consider the Petitioner’s youth as a mitigating factor. He stated
that he did not argue that the Petitioner was under duress at the time of the crime because he
understood that threats were made to the Petitioner only after the crime occurred. He also stated that
he did not present as a mitigating factor the fact that the victim was left alive because the case was
not a murder case and he felt there would be no misunderstanding with the court about whether the
victim had been left alive. In addition, the attorney testified that he presented lengthy testimony by
the Petitioner’s mother at the sentencing hearing concerning the Petitioner’s mental health history.

        The attorney testified that he could not specifically recall any conversations he had had with
the Petitioner regarding the Petitioner’s right to testify at trial. However, he stated that his policy
with all clients was to advise them regarding their right to testify and then act on their decisions. He
stated that despite the Petitioner’s age, the Petitioner seemed to fully understand his advice, and he
believed the Petitioner was capable of making his own decisions.

        The attorney stated that he and the Petitioner discussed severing the Petitioner’s trial from
that of his co-defendants. However, the attorney recalled that he told the Petitioner that if the trials
were severed, “the State at that point would be in a position to possibly work out an agreement with
one of the co-defendants who could testify against him at trial.” The attorney stated that he believed
it was unlikely that either of the co-defendants would testify at a consolidated trial and therefore that


                                                  -5-
if the cases remained consolidated, neither of the co-defendants could implicate the Petitioner in the
crime. The attorney stated that for these reasons, he advised his client that it was in his best interest
not to sever the trials.

        The Petitioner’s attorney stated that he and the Petitioner did not discuss the make-up of the
grand jury, but he stated that they may have discussed the make-up of the jury. He reported that he
objected to the exclusion of two minority members from the jury by the State, but he stated that his
objection was overruled. The attorney testified that he could not recall anything about a jury
instruction defining reasonable doubt. However, he also testified that he had heard jury instructions
on reasonable doubt on other occasions from the judge presiding over the Petitioner’s trial, and he
maintained that he had never found the instructions to be objectionable.

        With regard to the Petitioner’s incarceration in Alabama prior to his indictment in this case,
the attorney stated, “I didn’t think that he was being prejudiced. He was already in Wilder, which
is a penal facility for juveniles. So it wasn’t like his liberty was at a loss in Alabama.”

        The attorney refuted the Petitioner’s claim that he failed to interview witness Charles Tate
before trial, stating that he interviewed Tate at the transfer hearing. He also explained that he called
Tate as a witness to show that “the purpose of [the Petitioner] being involved in this act . . . was
merely to escape as opposed to cause any harm to the guard.”

        The Petitioner argues that he should receive post-conviction relief because he received
ineffective assistance of counsel at trial. In order to obtain post-conviction relief, a petitioner must
show that his or her conviction or sentence is void or voidable because of the abridgment of a
constitutional right. Tenn. Code Ann. § 40-30-203. The petitioner bears the burden of proving
factual allegations in the petition for post-conviction relief by clear and convincing evidence. Id. §
40-30-210(f). A post-conviction court’s factual findings are subject to a de novo review by this
Court; however, we must accord these factual findings a presumption of correctness, which is
overcome only when a preponderance of the evidence is contrary to the post-conviction court’s
factual findings. Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001) (citing Henley v. State, 960
S.W.2d 572, 578 (Tenn. 1997)). A post-conviction court’s conclusions of law, such as whether
counsel’s performance was deficient or whether that deficiency was prejudicial, are subject to a
purely de novo review by this Court, with no presumption of correctness. Id. at *457.

        The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and Article I, Section 9 of the Tennessee Constitution.
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).
This right to representation includes the right to “reasonably effective” assistance. Burns, 6 S.W.3d
at 461.

        In reviewing a claim of ineffective assistance of counsel, this Court must determine whether
the advice given or services rendered by the attorney are within the range of competence demanded
of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail on a claim of ineffective


                                                  -6-
assistance of counsel, a petitioner must show that “counsel’s representation fell below an objective
standard of reasonableness,” Strickland v. Washington, 466 U.S. 668, 688 (1984), and that this
performance prejudiced the defense, resulting in a failure to produce a reliable result. Id. at 687;
Cooper v. State, 849 S.W.2d 744, 747 (Tenn.1993). To satisfy the requirement of prejudice, a
petitioner must show a reasonable probability that, but for counsel’s unreasonable error, the fact
finder would have had reasonable doubt regarding the petitioner’s guilt. Strickland, 466 U.S. at 695.
This reasonable probability must be “sufficient to undermine confidence in the outcome.” Id. at 694;
see also Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994).

        When evaluating an ineffective assistance of counsel claim, the reviewing court should judge
the attorney’s performance within the context of the case as a whole, taking into account all relevant
circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim.
App. 1988). The reviewing court must evaluate the questionable conduct from the attorney’s
perspective at the time. Strickland, 466 U.S. at 690; Cooper, 849 S.W.2d at 746; Hellard v. State,
629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court must be highly deferential and
“should indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Burns, 6 S.W.3d at 462. Counsel should not be deemed to have
been ineffective merely because a different procedure or strategy might have produced a different
result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980).

       In its written order denying post-conviction relief, the post-conviction court made the
following findings:
               Although the petitioner alleges numerous instances in which he insists
       counsel failed to provide effective assistance of counsel, the most serious allegations
       relate to counsel’s failure to rely on either a defense or insanity or diminished
       capacity; utilize the defendant’s mental condition as a mitigating factor; and the issue
       concerning the defendant’s failure to testify.
               The petitioner presented as exhibits voluminous records of mental health
       commitments in the past. Included in the mental health records were instances of
       attempted suicide. The petitioner asserts that counsel failed to give notice and rely
       upon insanity or diminished capacity as a defense. Also included in the record is a
       document from J.B. Summers Counseling Center. Pursuant to an order by the trial
       Court the petitioner was examined to determine his competency and sanity at the time
       of the offense. The report indicates that the petitioner was both competent and sane.
       [The Petitioner’s trial attorney] further testified that at all of his meetings with the
       petitioner, he did not detect any hint of the petitioner’s inability to understand the
       charges against him, the nature of the proceedings, or to communicate or cooperate
       with him in the preparation of his defense. Lastly, there is nothing in the mental
       health records to indicate a possible defense of insanity or diminished capacity. Most
       of the mental health records reveal attention deficit disorder or behavioral problems.
       Furthermore, there is no showing at this hearing that a defense of insanity or
       competency could have been sustained at a trial of this matter.



                                                 -7-
                The petitioner complains that [his attorney] did not make the court aware of
       the mental health records as a mitigating factor as sentencing. However, the
       petitioner’s mother testified at the sentencing hearing. She presented the petitioner’s
       mental health problems for the Court’s consideration. Therefore, the Court was
       aware of the significant mental health situation of the petitioner.
                The petitioner vaguely asserts that [his attorney] prevented him from taking
       the witness stand to testify. [The attorney] testified that he had no recollection of any
       conversation with the petitioner regarding this issue. However, [the attorney]
       testified that it was his policy to allow his clients to make that decision. [The
       attorney] was certain that it was the petitioner’s choice not to testify. Furthermore,
       the petitioner made no showing as to what his testimony would be at trial, or how it
       would have changed the outcome of the trial.
                Numerous other incidental allegations of ineffectiveness were made by the
       petitioner. Challenges to the racial composition of the Grand Jury, the petitioner’s
       transfer to other institutions after a juvenile transfer hearing, improper executive
       delegation of legislation, failure to make objections to the District Attorney General’s
       arguments, and various other procedural technicalities were complained of. None of
       the allegations could have changed the outcome of this trial.

         We conclude that the evidence does not preponderate against these findings by the trial court.
There is no evidence in the record that the Petitioner was unable to appreciate the nature or
wrongfulness of his acts at the time he committed the offense in this case. See Tenn. Code Ann. §
39-11-501. Nor did the Petitioner present expert testimony aimed at negating the requisite culpable
mental state for the crime charged. See State v. Hall, 958 S.W.2d 679, 688 (Tenn. 1997). Thus, as
the post-conviction court noted, “[t]here is nothing in the trial nor the post-conviction record to
indicate either a defense of insanity or competence could have been supported in this matter.” We
are also unconvinced that the Petitioner was prevented from taking the stand at trial. Finally, we
conclude that the record supports the post-conviction court’s conclusion that the trial court was
aware of the Petitioner’s mental health history when sentencing him for this crime. Although a
transcript of the sentencing hearing is not included in the record,1 the Petitioner’s trial attorney
testified at the post-conviction hearing that he presented testimony at the sentencing hearing by the
Petitioner’s mother concerning the Petitioner’s extensive mental health history. Having reviewed
the record, we are satisfied that the Petitioner’s representation at trial was well within the range of
competence demanded of attorneys in criminal cases. See Baxter, 523 S.W.2d at 936.

       Accordingly, we AFFIRM the judgment of the post-conviction court.


                                                                    ___________________________________
                                                                    ROBERT W. WEDEMEYER, JUDGE


       1
           It is the appellan t’s duty to prep are an ade quate reco rd on app eal. Tenn. R . App. P. 2 4(b).



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