          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE

                           OCTOBER 1999 SESSION
                                                   FILED
                                                   November 29, 1999

MELVIN DARRELL SAWYER,              )            Cecil Crowson, Jr.
                                    )           Appellate Court Clerk
                                         NO. 01C01-9811-CR-00440
       Appellant,                   )
                                    )    DAVIDSON COUNTY
VS.                                 )
                                    )    HON. J. RANDALL WYATT, JR.,
STATE OF TENNESSEE,                 )    JUDGE
                                    )
       Appellee.                    )    (Post-Conviction)


FOR THE APPELLANT:                       FOR THE APPELLEE:

TERRY J. CANADY                          PAUL G. SUMMERS
211 Printer's Alley Building             Attorney General and Reporter
Suite 400
Nashville, TN 37201-1414                 ELIZABETH T. RYAN
                                         Assistant Attorney General
                                         Cordell Hull Building, 2nd Floor
                                         425 Fifth Avenue North
                                         Nashville, TN 37243-0493

                                         VICTOR S. JOHNSON III
                                         District Attorney General

                                         D. PAUL DeWITT
                                         Assistant District Attorney General
                                         Washington Square
                                         222-2nd Avenue North, Suite 500
                                         Nashville, TN 37201-1649




OPINION FILED:



AFFIRMED


JOE G. RILEY, JUDGE
                                       OPINION



       Petitioner appeals the denial of his petition for post-conviction relief by the
Criminal Court of Davidson County. Petitioner was convicted in 1986 of two counts

of aggravated rape, and the trial court imposed an effective forty-year sentence. In

1988, this Court affirmed the convictions and sentences. Petitioner timely filed a
petition for post-conviction relief which the trial court denied after an evidentiary

hearing. In 1996, this Court determined that, due to the loss of the post-conviction

hearing transcript, “fundamental fairness” required petitioner be granted a new
evidentiary hearing on his 1988 petition. The new post-conviction court limited the

issues on re-hearing to those delineated by the original 1988 petition which were

neither waived nor previously determined. It also denied petitioner relief. In this
appeal as of right, petitioner frames his sole issue as follows:

       “whether the [post-conviction] court erred in denying [petitioner] a
       complete post-conviction relief hearing subject to [this Court’s] order
       entered on [June 4, 1996.]”
We find the post-conviction court did, in fact, grant petitioner a complete hearing in

compliance with our June 1996 order and AFFIRM the judgment of the post-

conviction court.




                            I. PROCEDURAL HISTORY



       A Davidson County jury convicted petitioner of two counts of aggravated rape
in 1986, and the trial court imposed two consecutive twenty-year sentences. This

Court affirmed the convictions and sentences and the Tennessee Supreme Court

denied permission to appeal. State v. Melvin Darrell Sawyer, C.C.A. No. 86-269-III,

Davidson County (Tenn. Crim. App. filed February 24, 1988, at Nashville), perm.

app. denied (Tenn. May 23, 1988).



       In October 1988, petitioner timely filed a petition for post-conviction relief, and
the trial court appointed counsel who amended the petition in 1989. The trial court

conducted an evidentiary hearing on July 27, 1989, after which it issued findings of

fact and an order of denial. Counsel neither informed petitioner of the dismissal, nor
filed an appeal.




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       In 1994, petitioner was informed of counsel’s suspension from the practice

of law and wrote the trial court regarding the status of his case. The trial court

appointed new counsel to assist petitioner in pursuit of a delayed appeal.


       In June 1996, this Court, by order, remanded petitioner’s case back to the

trial court. State v. Melvin Sawyer, C.C.A. No. 01C01-9602-CR-00059, Davidson

County (Tenn. Crim. App. filed June 6, 1996, at Nashville). We determined that the

transcript of the original post-conviction hearing was gone, and the existing record

was inadequate for purposes of appellate review. Thus, in the interest of fairness,
we authorized “a new hearing on [petitioner’s] post-conviction petition filed in 1988.”



       Upon remand, new counsel alleged several issues not raised in the original
petition, but the trial court declined to expand the scope of the hearing beyond those

issues stated in the 1988 petition. After a limited evidentiary re-hearing, the trial

court again denied relief. This appeal followed.




                                      II. FACTS

                                       A. Trial

       The pertinent underlying facts are summarized from our opinion on direct
appeal. The ten-year-old male victim, petitioner’s step-grandson, testified to two

occurrences in December 1984, wherein petitioner coerced him into performing acts

of fellatio.   The victim’s stepmother testified that the victim reported his
grandfather’s behavior after viewing part of a commercial television program relating

to child sexual abuse. Petitioner denied any sexual contact with the child and

attempted to present evidence to the jury that the child was lying.


                         B. 1989 Post-Conviction Hearing

       Allegations contained in petitioner’s original 1988 post-conviction petition (as

amended in 1989) may be summarized as follows:
       1.      Violations of the V, VI, and XIV Amendments to the
               United States Constitution.
       2.      Violations of Art. I, §§ 8 and 9 of the Tennessee
               Constitution.
       3.      Ineffective assistance of counsel at preliminary hearing.

       4.      Ineffective assistance of counsel at trial.


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       5.     Ineffective assistance of appellate counsel on direct
              appeal.
       6.     Numerous Due Process violations based upon the trial
              court’s evidentiary rulings throughout the trial.

       Although the original post-conviction evidentiary hearing transcript is lost, the
original post-conviction court’s findings of fact remain in the record as recited by this

Court in its June 1996 order. The original post-conviction court found (1) the issue

of ineffective assistance of trial counsel was previously determined on direct appeal;
(2) allegations concerning ineffective assistance of appellate counsel were “totally

unsupported by the evidence;” and (3) numerous other claims were either previously

determined on direct appeal or waived.


                                C. 1998 Re-hearing

       Pursuant to this Court’s June 1996 order, the trial court granted petitioner a
re-hearing on his 1988 post-conviction petition. However, the court declined to

consider additional issues raised by petitioner in his motion to re-hear:

       The [c]ourt notes that additional issues raised by the petitioner in his
       [1996 petition] are not properly before the [c]ourt for review. The
       opinion of the Court of Criminal Appeals is very plain in this regard.
       The extraordinary circumstances which serve as a basis for this
       rehearing do not entitle petitioner to assert additional claims that could
       have been pursued but were not pursued at the time of the original
       petition. The [c]ourt points out that the central purpose behind the
       rehearing is to build an appropriate record for appellate review.
       (Footnote omitted.)

The trial court also limited the scope of the re-hearing by declining to consider
issues it deemed waived or previously determined:

       The [c]ourt . . . observes that several of the allegations are either
       waived or previously determined and will not be the subject of this
       rehearing. Most notably, the claims of ineffective assistance of trial
       counsel and prosecutorial misconduct were litigated in the Motion for
       a New Trial and on direct appeal and, as such, are previously
       determined. Moreover, the challenges raised by the petitioner to the
       evidentiary rulings by the trial court are also barred from consideration
       on the basis of waiver or previous determination. In short the
       petitioner is bound by his prior action or inaction with regard to the
       issues now raised. (Citations omitted.)



       The trial court then conducted a limited evidentiary re-hearing which
addressed the sole remaining issue: effectiveness of appellate counsel. After

hearing testimony from petitioner and appellate counsel, the post-conviction court

again denied relief, concluding:
       [P]etitioner has lodged a number of claims, most of which have been
       previously determined or waived. However, the [c]ourt has heard all
       the testimony in the matter and has found no claim [upon] which the
       petitioner has carried its burden and [which] would justify granting the

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         relief the petitioner seeks.




                           III. LIMITATION ON RE-HEARING



         Petitioner asserts the trial court denied him a complete post-conviction relief
hearing pursuant to this Court’s 1996 order when it refused to address issues not

raised in his original petition. We respectfully disagree.



         This Court’s order dated June 6, 1996, remanded petitioner’s case to the

Davidson County Criminal Court for a “new hearing on his post-conviction petition

filed in 1988 since no record of the prior hearing can be found.”1 (Emphasis added.)
In compliance with this order, the trial court granted petitioner’s motion for re-

hearing. However, the trial court further determined that the majority of petitioner’s

1988 issues were previously determined or waived.                Those issues included
effectiveness of trial counsel, prosecutorial misconduct, and challenges to the trial

court’s evidentiary rulings. Our review of the record reveals the trial court was

entirely correct in this determination.



         After petitioner’s conviction, the trial court appointed new counsel who
pursued a motion for new trial and direct appeal on petitioner’s behalf. In particular,

appellate counsel litigated effectiveness of trial counsel at the motion for new trial

and on direct appeal. In both instances, the issue was found to be without merit.
This Court’s opinion on direct appeal, affirming petitioner’s conviction, also shows

that appellate counsel pursued petitioner’s claims of prosecutorial misconduct and

improper evidentiary rulings by the trial court.


         Pursuant to House v. State, 911 S.W.2d 705 (Tenn. 1995), the petitioner

received a “‘full and fair hearing’ sufficient to support a finding of previous

determination” regarding these issues. Id. at 706.


         This case is governed by the now-repealed Post-Conviction Procedure Act,

Tenn. Code Ann. § 40-30-101 et seq. (1990), under which the trial court "may freely
allow amendments." Tenn. Code Ann. § 40-30-115(a)(repealed 1995). Thus, it was

  1
      Obviously, this would include the 1989 amendments to the original petition as well.

                                             5
in the trial court’s discretion whether to allow or restrict amendments to petitioner’s

post-conviction petition. See Tenn. Code Ann. § 40-30-115(a)(1990); cf. Wade v.

State, 914 S.W.2d 97, 103 (Tenn. Crim. App. 1995). The trial court did not abuse
its discretion in disallowing amendments which went beyond the 1988 petition for

purposes of the 1998 re-hearing.




          IV. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL



       The sole remaining issue for the trial court to consider upon re-hearing was

effectiveness of appellate counsel. Petitioner claimed that he received ineffective

assistance of appellate counsel in pursuit of his myriad of claims on direct appeal.
Particularly, petitioner claimed at re-hearing that appellate counsel failed to

zealously pursue his claim of ineffective assistance of trial counsel, failed to properly

brief the evidentiary issue pertaining to the trial court’s ruling that the victim was not
an accomplice such that his testimony required corroboration,2 and foreclosed

avenues of relief by narrowing the issues on appeal in the application for permission

to appeal to the Tennessee Supreme Court.



       It is counsel’s responsibility to determine the issues to present on appeal.
State v. Matson, 729 S.W.2d 281, 282 (Tenn. Crim. App. 1986). This responsibility

addresses itself to the professional judgment and sound discretion of appellate

counsel. Porterfield v. State, 897 S.W.2d 672, 678 (Tenn. 1995). There is no
constitutional requirement that every conceivable issue be raised on appeal.

Campbell v. State, 904 S.W.2d 594, 597 (Tenn. 1995). The determination of which

issues to raise is a tactical or strategic choice. Id.


       Appellate counsel testified at re-hearing that she communicated extensively

with petitioner in the course of working on his case. At the motion for new trial, she

raised numerous contentions relating to ineffective assistance of counsel, as well




   2
    On direct appeal, this issue was framed in terms of a trial court error for ruling that
the victim was not an accomplice. On re-hearing petitioner argued that appellate counsel
should have framed the issue in terms of trial court error for refusing to allow an offer of
proof.

                                             6
as other issues. She continued her representation on direct appeal where she

again pursued the ineffective assistance of counsel claim. Furthermore, appellate

counsel raised the issue of the victim’s status as an accomplice.


       Appellate counsel testified that both the motion for new trial and the direct

appeal were denied, and that she did not believe there were any legitimate issues
remaining for review at that point. Nevertheless, after conferring with petitioner, she

filed an application for permission to appeal with the Tennessee Supreme Court

which was also denied. At no time did the petitioner express any dissatisfaction
with counsel’s representation.



       Upon hearing the above proof, the trial court expressly found no evidence of
deficient appellate representation and no prejudice to petitioner. The judge's

findings of fact on post-conviction hearings are conclusive on appeal unless the

evidence preponderates otherwise. Butler v. State, 789 S.W.2d 898, 899 (Tenn.

1990); Adkins v. State, 911 S.W.2d 334, 341 (Tenn. Crim. App. 1995). Questions

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

testimony are resolved by the trial court, not this court. Henley v. State, 960 S.W.2d

572, 579 (Tenn. 1997); Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App.

1990). The burden of establishing that the evidence preponderates against the
post-conviction court’s findings is on petitioner. Henley, 960 S.W.2d at 579; Black,

794 S.W.2d at 755.



       The evidence in the record does not preponderate against the trial court’s

ruling that petitioner received effective assistance of appellate counsel. We find no

reason to disagree with the trial court’s assessment of this issue.




                                 IV. CONCLUSION


       Based upon the foregoing, we AFFIRM the trial court’s denial of post-

conviction relief.




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                                   ____________________________
                                    JOE G. RILEY, JUDGE




CONCUR:



____________________________
THOMAS T. WOODALL, JUDGE



____________________________
JAMES CURWOOD WITT, JR., JUDGE




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