         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                      July 19, 2000 Session

                THOMAS W. YELTON v. STATE OF TENNESSEE

                       Appeal from the Circuit Court for Bedford County
                           No. 6771    William Charles Lee, Judge



                    No. M1999-00597-CCA-R3-PC - Filed November 9, 2000


The petitioner, Thomas W. Yelton, appeals the denial by the Bedford County Circuit Court of his
petition for post-conviction relief from his 1992 convictions of fabricating evidence, theft of property
worth more than one thousand dollars ($1,000), coercion of a witness, and harassment. Specifically,
he alleges that he is entitled to relief from his convictions because he received ineffective assistance
of counsel during trial proceedings. The petitioner predicates his claim of ineffective assistance of
counsel upon the following grounds: (1) trial counsel failed to submit to the trial court a motion
requesting the severance of his offenses; (2) trial counsel maintained inadequate contact with the
petitioner during trial proceedings; (3) trial counsel failed to adequately investigate his case; and (4)
trial counsel failed to adequately advise the petitioner concerning the waiver of his right to appeal
his convictions. Following a review of the record and the parties’ briefs, we affirm the judgment of
the post-conviction court.

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

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which DAVID G. HAYES and ROBERT
W. WEDEMEYER , JJ., joined.

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Thomas W. Yelton.

Paul G. Summers, Attorney General and Reporter, David H. Findley, Assistant Attorney General,
and Robert G. Crigler, Assistant District Attorney General, for the appellee, State of Tennessee.

                                              OPINION
                                      I. Factual Background
                On March 24, 1992, the petitioner, Thomas W. Yelton, was tried by a jury in the
Bedford County Circuit Court for one count of fabricating evidence, one count of theft of property
worth more than one thousand dollars ($1,000), two counts of coercion of a witness, one count of
intentional killing of an animal, one count of false reports, and one count of harassment. The jury
acquitted the petitioner of the offense of false reports but otherwise returned verdicts of guilt.
                On April 6, 1992, the trial court conducted a sentencing hearing, the transcript of
which is included in the record in this post-conviction appeal. The transcript reflects that the trial
court sentenced the petitioner to nine years incarceration in the Tennessee Department of Correction
for the offense of fabricating evidence, six years incarceration for the offense of theft, six years
incarceration for each offense of coercion of a witness, and nine months incarceration for the offense
of harassment. The court further ordered that the petitioner serve his sentences for fabricating
evidence and harassment concurrently with one another and consecutively to his sentence for theft
of property and that he serve his sentences for coercion of a witness concurrently with one another
and consecutively to the other sentences, resulting in an effective sentence of twenty-one years
incarceration.

                The transcript of the sentencing hearing additionally reflects that the trial court did
not impose a sentence for the offense of intentional killing of an animal due to the court’s concern
that the State had failed to establish venue in that case and due to the State’s announcement at the
sentencing hearing of an agreement between the State and the petitioner. Specifically, the State
agreed to the dismissal with prejudice of the intentional killing of an animal case, and the petitioner,
in return, agreed to waive his right to appeal the remaining convictions. Prior to sanctioning the
agreement, the trial court questioned the petitioner concerning the agreement, reiterating the terms
of the agreement and ensuring that the petitioner understood those terms.

               The record in this appeal contains written waivers of the petitioner’s right to appeal
his convictions, including one count of fabricating evidence, one count of theft of property worth
more than one thousand dollars ($1,000), two counts of coercion of a witness, and one count of
harassment. The written waivers were filed in the Bedford County Circuit Court on the day of the
sentencing hearing and appear to have been signed on that day by both the petitioner and his
attorney.

               Notwithstanding the above waivers, on July 9, 1992, the petitioner filed pro se in the
Bedford County Circuit Court a notice of appeal of all of his convictions. When his efforts to appeal
his convictions apparently proved unsuccessful, the petitioner filed the instant petition for post-
conviction relief in the same court on July 16, 1993. The petitioner also filed a memorandum in
support of his petition. Moreover, the post-conviction court appointed counsel who filed several
amended petitions. The post-conviction court conducted an evidentiary hearing on March 23, 1999.1

               At the hearing, the petitioner testified on his own behalf. He confirmed that he was
alleging the ineffective assistance of his trial counsel, whom he apparently retained upon being


         1
           At the time of his offenses in this case, the petitioner was rele ased on p arole from a sentence o f life
imprisonment imposed pursuant to his prior conviction in Alabama of first degree murder. Following his conviction of
the instant offenses and the trial court’s imp osition of sente ncing, the petitio ner returned to Alabama in order to resume
service of his sentence of life imprisonment. The petitioner filed h is petition for po st-conviction re lief in this case while
serving his life sentence in the Alabama Departm ent of Corr ections. The Bedford County Circuit Court held the petition
in abeyance until the petitioner’s return to Ten nessee and his commencement of the service o f his sentences for these
offenses.

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charged with these offenses and after providing a confession to the police. With respect to his
attorney’s performance, the petitioner recounted that, prior to his trial, he was incarcerated in the
Bedford County Jail, and his attorney visited him at the jail on only two occasions for the sole
purpose of collecting the attorney’s fee. The petitioner conceded that he also met with his attorney
in court on at least two occasions for preliminary proceedings in his cases and spoke with his
attorney on the telephone on at least three occasions. The petitioner additionally corresponded with
his attorney by mail. According to the petitioner, he and his attorney discussed potential witnesses
in his cases; however, his attorney did not otherwise discuss with him the evidence in his cases,
including any discovery obtained from the State, nor did his attorney discuss with the petitioner any
ongoing plea negotiations. In particular, the petitioner stated that he was surprised at trial by the
testimony of the State’s principal witness concerning tape recordings relevant to his cases.

                The petitioner also asserted that, to his knowledge, his attorney did not file a motion
requesting discovery or obtain any discovery from the State. Moreover, the petitioner alleged that
his attorney neglected to interview the State’s witnesses prior to trial and neglected to interview
potential defense witnesses listed by the petitioner in a letter to his attorney. The petitioner conceded
that his attorney did subpoena some of these potential defense witnesses; however, he complained
that none of the witnesses testified on his behalf at trial.

                The petitioner further complained that, prior to his trial, he asked his attorney to file
a motion requesting the severance of his offenses, and his attorney failed to comply with his request.
The petitioner conceded that all of the charged offenses, with the exception of one offense, involved
the same victim and arose from a “common plan or scheme.”

                Finally, the petitioner denied that he waived his right to appeal any conviction other
than the theft of property conviction. The petitioner conceded that the signatures affixed to all of
the waiver of appeal documents appear to be his signatures. However, he asserted that he only
recalled signing one written waiver of appeal and, therefore, only acknowledged his signature on the
document waiving his right to appeal his conviction of theft of property.

                 The petitioner also admitted that he was present at the sentencing hearing when the
prosecutor announced his agreement with the State waiving his right to appeal all of his convictions
and that the trial court questioned him concerning the agreement. He confirmed his familiarity with
the criminal justice system, conceding that he had previously been convicted by a jury in Alabama
of first degree murder and that he had previously pled guilty in Bedford County to arson.
Nevertheless, the petitioner asserted that he was confused at the April 6, 1992 sentencing hearing.

                  At the post-conviction evidentiary hearing, in rebuttal of the petitioner’s allegations,
the State presented the testimony of the petitioner’s trial attorney, Rondle T. Wilson. Mr. Wilson
testified that, at the time of the petitioner’s trial, he had been practicing law for approximately thirty-
three years, having earned his license to practice law in 1959. According to Mr. Wilson, during the
course of his career, he served as an assistant district attorney general for ten or twelve years and



                                                   -3-
otherwise engaged in private practice. Approximately twenty-five percent (25%) of his private
practice involved criminal cases.

                 With respect to the petitioner’s cases, Mr. Wilson confirmed that he represented the
petitioner at trial. He also confirmed that, prior to the petitioner’s trial, he met with his client at the
jail on two occasions. He also met with the petitioner in court on several occasions for preliminary
proceedings. Finally, he spoke with the petitioner on the telephone on approximately three occasions
and corresponded with the petitioner by mail prior to trial. Contrary to the petitioner’s testimony,
Mr. Wilson asserted that he discussed the petitioner’s case with him on all of these occasions,
including Mr. Wilson’s visits to the Bedford County Jail.

               Mr. Wilson conceded that he did not file a motion requesting discovery from the
State. He explained that, pursuant to the local rules of court in Bedford County, he was not required
to file a formal motion for discovery. Rather, the State maintained an “open file” policy. Mr.
Wilson confirmed that, in fact, he received discovery in the petitioner’s cases.

                Mr. Wilson also testified that he interviewed the principal State witnesses at a
preliminary hearing in the petitioner’s cases and also interviewed several additional witnesses on
other occasions prior to trial. Moreover, Mr. Wilson asserted that he interviewed most of the
potential defense witnesses to whom he was referred by the petitioner. He stated that he did not call
those witnesses to testify on the petitioner’s behalf at trial because, “[he] did not find any that would
be beneficial to [the petitioner].”

                 Mr. Wilson further testified at the post-conviction evidentiary hearing that, either
prior to or during the petitioner’s trial, he became aware that the State possessed tape recordings
relating to the petitioner’s cases. He could not recall any details of proceedings relating to these
recordings. However, the petitioner’s post-conviction counsel conceded that, according to the
transcript of the petitioner’s trial proceedings, the State did not provide the tape recordings to defense
counsel prior to trial. Rather, trial counsel first became aware of the tape recordings when the State’s
primary witness testified concerning their contents. At that point, defense counsel objected both to
the witnesses’ testimony and to the introduction of the tape recordings. Defense counsel argued that
the State had failed to comply with Tenn. R. Crim. P. 16 and that the tape recordings were the result
of an illegal wiretap. The trial court sustained defense counsel’s Tenn. R. Crim. P. 16 objection to
the introduction of the tape recordings into evidence. However, the trial court disagreed that the
recordings were the result of any illegal wiretap and admitted into evidence the testimony of the
State’s witness concerning certain contents of the recordings.

               As to his failure to file a motion for severance of the petitioner’s offenses, Mr. Wilson
explained at the post-conviction evidentiary hearing that the petitioner chose to forego contesting
the consolidation of his offenses because the petitioner wanted to resolve the pending charges and
return to Alabama as soon as possible. Moreover, Mr. Wilson confirmed that, with the exception
of one offense, all of the charged offenses involved the same victim and were a part of a “common
scheme or plan.”


                                                   -4-
                 As to the petitioner’s waiver of his right to appeal his convictions, Mr. Wilson
testified that the petitioner entered into the agreement with the State because, again, the petitioner
wished to return to Alabama as soon as possible. Specifically, Mr. Wilson noted that the trial court
was concerned that the appropriate venue for the intentional killing of an animal case was Marshall
County, and the court was inclined to dismiss that case. According to Mr. Wilson, the petitioner
wanted to avoid the possibility that the State would re-indict and prosecute him for that offense in
Marshall County and, consequently, delay his return to Alabama. Therefore, in return for the State’s
agreement to the dismissal with prejudice of the intentional killing of an animal case, the petitioner
agreed to the waiver of his right to appeal his other convictions. Mr. Wilson acknowledged his
signatures on the waiver of appeal documents and testified that the other signatures on the waiver
of appeal documents appear to belong to the petitioner. Mr. Wilson tentatively recalled witnessing
the petitioner signing the documents. He further observed that his regular practice is to be present
when a client signs any document waiving substantial rights.

                The State additionally presented at the post-conviction evidentiary hearing the
testimony of Robert G. Crigler, the assistant district attorney general who prosecuted the petitioner’s
cases. Mr. Crigler testified that, at the petitioner’s sentencing hearing, the State agreed to the
dismissal with prejudice of the intentional killing of an animal case in return for the petitioner’s
waiver of his right to appeal his other convictions. In accordance with this agreement, Mr. Crigler
provided to Mr. Wilson waiver of appeal documents for each remaining conviction. On the same
day, Mr. Wilson returned the documents to Mr. Crigler, at which time Mr. Crigler observed that the
documents appeared to have been signed by both Mr. Wilson and the petitioner.

                Following the post-conviction evidentiary hearing, the court denied the petitioner
relief from his convictions, finding that the petitioner had failed to establish by a preponderance of
the evidence that any deficiency in trial counsel’s performance rose to constitutional proportions.

                                              II. Analysis
                The petitioner now challenges the post-conviction court’s denial of relief. As the
post-conviction court correctly noted, because the petitioner filed the instant petition prior to the
effective date of the 1995 Post-Conviction Procedure Act, he was required to prove any factual
allegations by a preponderance of the evidence. See, e.g., McConnell v. State, 12 S.W.3d 795, 797
n.2 (Tenn. 2000). Moreover, on appeal, the post-conviction court’s factual findings are binding upon
this court unless the evidence preponderates otherwise. Momon v. State, 18 S.W.3d 152, 156 (Tenn.
1999); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). “In evaluating whether the evidence
preponderates against the . . . [post-conviction] court's findings, we are guided by longstanding rules
of appellate procedure.” Henley v. State, 960 S.W.2d at 578. Thus, questions concerning the
credibility of witnesses and the weight and value of their testimony are for resolution by the post-
conviction court. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). This court will not
re-weigh or reevaluate the evidence or substitute its inferences for those of the post-conviction court.
Williams v. State, No. 03C01-9801-CC-00013, 1999 WL 58608, at *2 (Tenn. Crim. App. at
Knoxville, February 9, 1999). That having been said, this court reviews de novo mixed questions



                                                  -5-
of law and fact, including the ultimate issue of whether counsel rendered constitutionally ineffective
assistance. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

                In order to establish ineffective assistance of counsel in contravention of the Sixth
Amendment to the United States Constitution and Article I, Section 9 of the Tennessee Constitution,
a petitioner must demonstrate that (1) his counsel’s representation was deficient, and that (2) the
deficient performance was prejudicial. Strickland v. Washington, 466 U.S. 668, 687-697, 104 S. Ct.
2052, 2064-2069 (1984); see also Henley, 960 S.W.2d at 579-580; Powers v. State, 942 S.W.2d
551, 557 (Tenn. Crim. App. 1996). Reviewing courts need not address these components in any
particular order or even address both if the petitioner fails to meet his burden with respect to one.
Henley, 960 S.W.2d at 580.

                In order to demonstrate that his counsel’s performance was deficient, the petitioner
was required to show that counsel’s representation fell below an objective standard of reasonableness
under prevailing professional norms. Washington, 466 U.S. at 688; 104 S. Ct. at 2064; see also
Burns, 6 S.W.3d at 461-462. In Tennessee, our supreme court has interpreted this test to require a
showing that counsel’s performance was not within the range of competence demanded of attorneys
in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). In applying this test, this
court should refrain from second-guessing tactical and strategic decisions by defense counsel.
Henley, 960 S.W.2d at 579. Rather, this court should defer to such decisions if they are based upon
adequate preparation. Burger v. Kemp, 483 U.S. 776, 794, 107 S. Ct. 3114, 3126 (1987); see also
Holt v. State, No. 01C01-9805-CC-00201, 1999 WL 729206, at *7 (Tenn. Crim. App. at Nashville,
September 20, 1999).

               Moreover, a reviewing court should not examine every allegedly deficient act or
omission in isolation, but rather in the context of the case as a whole. State v. Mitchell, 753 S.W.2d
148, 149 (Tenn. Crim. App. 1988). Ultimately, the primary concern of the court should be the
fundamental fairness of the trial proceedings. Id. In other words, as previously noted, a petitioner
must establish prejudicial, as opposed to merely deficient, performance by trial counsel. In order to
establish prejudice, a petitioner must demonstrate a reasonable probability that the result of the
proceeding would have been different but for the defective performance of counsel. Henley, 960
S.W.2d at 580. A reasonable probability is a probability sufficient to undermine confidence in the
outcome. Washington, 466 U.S. at 694; 104 S. Ct. at 2068.

                 In this case, the petitioner first contends that his counsel rendered ineffective
assistance in failing to file a motion for severance of his offenses. He argues that he “specifically
requested that his cases be tried individually, [and] said request went ignored by Mr. Wilson.”
However, as noted previously, Mr. Wilson testified at the post-conviction evidentiary hearing that,
in fact, the petitioner chose to forego contesting the consolidation of his offenses due to his desire
to resolve the charges expeditiously. Although the post-conviction court did not explicitly address
in its “Findings of Fact and Conclusions of Law” counsel’s failure to file a motion for severance, the
court clearly accredited the testimony of Mr. Wilson.



                                                 -6-
                Moreover, Tenn. R. Crim. P. 14(b)(1) provides that
                [i]f two or more offenses have been joined or consolidated for trial .
                . . , the defendant shall have a right to a severance of the offenses
                unless the offenses are part of a common scheme or plan and the
                evidence of one would be admissible upon the trial of the others.
See also Spicer v. State, 12 S.W.3d 438, 445 (Tenn. 2000). In this case, both the petitioner and his
trial counsel testified at the post-conviction evidentiary hearing that all of the offenses charged by
the State, with the possible exception of one offense, involved the same victim and were part of a
“common scheme or plan,” and the petitioner did not identify any evidence of one offense that would
have been inadmissible upon the trial of the others. As to the single charged offense that was not
included in the “common scheme or plan,” the petitioner has failed to establish that trial counsel’s
compliance with his instructions in this regard was objectively unreasonable under prevailing
professional norms.

               The petitioner next contends that trial counsel failed to maintain adequate contact
with him during trial proceedings. Initially, we note that there exists no minimum number of
meetings between counsel and client necessary to the provision of constitutionally effective
assistance of counsel. See, e.g., United States v. Olson, 846 F.2d 1103, 1108 (7th Cir. 1988).
Keeping in mind this general principle, we further note that the petitioner himself conceded at the
post-conviction evidentiary hearing that, prior to trial, his attorney met with him on several
occasions, spoke with him on the telephone, and corresponded with him by mail. Although the
petitioner contends that his attorney did not discuss his cases on these occasions, this contention is
belied by Mr. Wilson’s testimony. As noted previously, the post-conviction court clearly accredited
Mr. Wilson’s testimony.

               The petitioner also asserts that, prior to his trial, trial counsel failed to obtain
discovery from the State, failed to interview State witnesses, and failed to interview potential defense
witnesses. He argues that, due to his lack of preparation, trial counsel failed to call certain witnesses
to testify on the petitioner’s behalf. Once again, however, the petitioner’s contentions are
contradicted by Mr. Wilson’s testimony. We also note that the petitioner failed to present the
testimony of any omitted defense witnesses at the post-conviction evidentiary hearing. Black v.
State, 794 S.W.2d 752, 753 (Tenn. Crim. App. 1990); Meeks v. State, M1998-00791-CCA-R3-PC,
2000 WL 235825, at *6 (Tenn. Crim. App. at Nashville, March 3, 2000); Jones v. State, No.
03C01-9606-CR-00227, 1997 WL 547997, at *4 (Tenn. Crim. App. at Knoxville, September 5,
1997).

                 The petitioner further contends that, due to his lack of preparation, trial counsel failed
to learn prior to trial that the State possessed certain incriminating tape recordings that were obtained
as a result of an illegal wiretap. Therefore, trial counsel was unable to file a motion to suppress the
recordings and any testimony relating to the recordings. Yet, as noted previously, Mr. Wilson
testified that he interviewed the State’s witnesses prior to trial. He also testified that, although he
did not file a formal motion for discovery, he acted in accordance with the local rules of court and,
in fact, obtained discovery from the State. The petitioner’s post-conviction counsel effectively


                                                   -7-
conceded that, according to the transcript of the trial proceedings, the State withheld the tape
recordings from defense counsel prior to trial. In short, the petitioner has not demonstrated by a
preponderance of the evidence that Mr. Wilson’s failure to obtain the tape recordings prior to trial
was the result of any lack of preparation by Mr. Wilson. Moreover, post-conviction counsel
conceded that, upon learning of the recordings, trial counsel immediately asked the trial court to
exclude the recordings and testimony relating thereto, both citing Tenn. R. Crim. P. 16 and arguing
that the disputed evidence was the fruit of an illegal wiretap.

                 Finally, the petitioner contends that Mr. Wilson rendered ineffective assistance in
failing to ensure that the petitioner understood the terms of his agreement with the State prior to
waiving his right to appeal his convictions. Assuming that this court does not otherwise grant the
petitioner relief from his convictions, the petitioner effectively requests a delayed appeal. Tenn.
Code Ann. § 40-30-120 (1993). However, the record reflects that, in fact, Mr. Wilson, the
prosecutor, and the trial court all advised the petitioner concerning the terms of his agreement with
the State, that the petitioner fully understood the terms of his agreement with the State, and that he
knowingly and voluntarily waived his right to appeal his convictions. As our supreme court has
previously observed, “the law does not require an appeal of a conviction in a criminal case in the
event the defendant, for reasons satisfactory to himself, desires not to have such an appeal.” Collins
v. State, 670 S.W.2d 219, 221 (Tenn. 1984).

                                        III. Conclusion
               For the foregoing reasons, we affirm the judgment of the post-conviction court.


                                                       ___________________________________
                                                       NORMA McGEE OGLE, JUDGE




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