             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT NASHVILLE              FILED
                                 APRIL 1999 SESSION
                                                                 May 13, 1999

                                                            Cecil W. Crowson
                                                           Appellate Court Clerk
EDWARD D. COKER,                       )
                                       )     C.C.A. NO. 01C01-9805-CC-00210
             Appellant,                )
                                       )     WILLLIAMSON COUNTY
VS.                                    )
                                       )     HON. DONALD P. HARRIS,
STATE OF TENNESSEE,                    )     JUDGE
                                       )
             Appellee.                 )     (Post-Conviction)



FOR THE APPELLANT:                           FOR THE APPELLEE:


JOHN HENDERSON                               PAUL G. SUMMERS
District Public Defender                     Attorney General & Reporter

EUGENE J. HONEA                              MARVIN E. CLEMENTS, JR.
Asst. District Public Defender               Asst. Attorney General
P.O. Box 68                                  John Sevier Bldg.
Franklin, TN 37065-0068                      425 Fifth Ave., North
                                             Nashville, TN 37243-0493

                                             RON DAVIS
                                             District Attorney General

                                             DEREK SMITH
                                             Asst. District Attorney General
                                             P.O. Box 937
                                             Franklin, TN 37065-0937




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                     OPINION



              The petitioner, who was convicted of two counts of theft of services and

received an effective sentence of six years, filed a petition for post-conviction relief,

alleging ineffective assistance of counsel. After a hearing, the trial court dismissed the

petition, and the petitioner now appeals. Finding no merit to the petitioner’s arguments,

we affirm.



              The underlying charges in this case, theft of services over one thousand

dollars ($1000) and theft of services over five hundred dollars ($500), stem from unpaid

hotel bills in late 1993 and early 1994. The petitioner asked Tony Vick, a life-long family

friend who had represented him in other criminal matters, to represent him in this case.

After plea negotiations, the State offered to recommend a suspended sentence after

service of forty-five days in jail in exchange for guilty pleas. Not wanting jail time, the

petitioner rejected the State’s offer and entered an open plea of guilty.



              At the sentencing hearing, the petitioner testified that in 1981, he suffered

a brain injury in an automobile accident. He also testified that before he checked into the

first hotel, he had been injured in a work-related accident when watermelons fell on his

head. When he attempted to testify about what a treating physician had told him, the

State lodged a hearsay objection, which was sustained. The petitioner then testified that

as a result of his injuries, when he experiences stress and pressure, he does whatever

is necessary for relief. He also explained that at the time of the crimes, he was

experiencing stress because his mother’s husband had kicked him out of the house.



              Based on its finding of a lengthy criminal history, the trial court gave the



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petitioner the maximum sentences for a Range I standard offender, that is, four years for

the theft of services over one thousand dollars ($1000) and two years for the theft of

services over five hundred dollars ($500), to be served consecutively in prison. The

petitioner appealed, arguing that his sentence was excessive. On appeal, this Court

agreed that the trial court should have applied two mitigating factors, that the petitioner’s

conduct neither caused nor threatened serious bodily injury and that the crimes were

motivated by his desire to provide necessities for himself. State v. Edward D. Coker, No.

01C01-9507-CC-00240, Williamson County (Tenn. Crim. App. filed September 19, 1996,

at Nashville). This Court disagreed, however, with the petitioner’s contention that it

should apply mitigating factor (8), that he was suffering from a mental or physical

condition that significantly reduced his culpability, because there was no proof his injuries

reduced his culpability. See T.C.A. § 40-35-113(8). Even applying two mitigating factors,

this Court determined that maximum sentencing was justified given the petitioner’s

lengthy criminal history and that consecutive sentencing was also appropriate.



              In September 1997, the petitioner filed a pro se petition for post-conviction

relief, asserting he was denied effective assistance of counsel at the sentencing hearing

and on appeal. His appointed counsel moved for an order of mental evaluation, claiming

that a mental examination was necessary in order to amend the post-conviction petition.

In support of this motion, an affidavit and a 1989 report from Dr. Donald Nassr, a licensed

physician who had previously treated the petitioner, was attached. According to Dr.

Nassr’s 1989 report, the petitioner’s injuries from his automobile accident were of the type

that “can be very far reaching on the personality” and the “effects on the personality can

be wide ranging and completely unpredictable and unknown to the patient.” In his

affidavit, Dr. Nassr attested he had not examined the petitioner since 1990 and believed

that “an up-to-date psychiatric reevaluation” of the petitioner would be necessary to



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provide the court with “definitive information” on his “present condition or as to his

condition at the time of the incidents at issue in this case.” In a written order, the trial

court summarily denied the petitioner’s motion for a mental examination. Although the

trial court’s order refers to a hearing that was held on the motion and the petitioner

acknowledges that such a hearing was held, the transcript is not in the record.



              The petitioner’s counsel amended the post-conviction petition, alleging inter

alia, that Mr. Vick was ineffective for not presenting evidence of the petitioner’s brain

injuries at the sentencing hearing. The amended petition also alleged that the petitioner’s

appellate counsel, Tim Street, was ineffective for failing to argue on appeal that the

petitioner received ineffective assistance of trial counsel and for failing to present

evidence of the petitioner’s brain injuries on appeal in order to facilitate this Court’s de

novo review of the sentencing orders.



              At the post-conviction hearing, Mr. Vick testified he was aware of the

petitioner’s injuries and had employed Dr. Nassr to testify on the petitioner’s behalf in a

prior criminal case. He testified he had discussed with the petitioner his problems in

judgment and had intended to develop this point through the petitioner’s testimony at the

sentencing hearing. He did not, however, believe that Dr. Nassr would examine the

petitioner prior to the sentencing hearing or testify at the hearing because he knew the

petitioner could not pay for Dr. Nassr’s services and in fact had not paid him for

previously rendered services. He also testified that Dr. Nassr never concluded that the

petitioner was either insane or incompetent and that there was no additional information

Dr. Nassr would have or could have provided if called to testify at the sentencing hearing.



              Mr. Street, the petitioner’s appellate counsel, testified he had discussed the



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petitioner’s injury with both the petitioner and Mr. Vick before filing the appellate brief.

Even though he argued on appeal that mitigating factor (8) should have applied, he was

aware that the record did not contain proof to support the petitioner’s claim that the

residual effects of his brain injury negated his culpability. He testified he asked the

petitioner and Mr. Vick to provide medical proof to support this argument, but neither did.

As a result, and because he believed that this medical proof should have been introduced

at the sentencing hearing, Mr. Street made a tactical decision not to raise ineffective

assistance of counsel in his direct appeal.



              In denying the petitioner relief, the trial court judge found inter alia that there

was no evidence the petitioner was suffering from any psychological deficiency at the

time he committed the crimes and that his counsel did not have access to any evidence

that, if submitted, would have affected the sentence imposed by the trial court. Moreover,

he determined that Mr. Street was not ineffective for arguing that mitigating factor (8)

should have been applied even though there was no evidence to support this argument

because Mr. Street, as appellate counsel, did not have an opportunity to present new

evidence to the appellate court.



              The defendant now argues that because of his counsels’ failures to

introduce proof of his mental condition, it is reasonably probable that he received a

lengthier sentence than he would have otherwise. He also contends that the trial court

placed him in an impossible legal situation by denying his motion for a mental evaluation

and then denying his post-conviction relief petition because the record lacked medical

proof of a mental defect that affected his culpability. He urges this Court either to

“assume,” based on Dr. Nassr’s 1989 report, that he was suffering from a mental

condition that significantly reduced his culpability or to remand this case for a mental



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evaluation to be conducted at the State’s expense to determine whether he was suffering

from a mental condition that significantly reduced his culpability.



               Despite the petitioner’s suggestion we rely upon Dr. Nassr’s 1989 report,

the record contains no evidence upon which to conclude that the defendant was suffering

from a mental condition that significantly reduced his culpability. Dr. Nassr’s 1989 report

does nothing more than suggest that the petitioner’s injury might have affected his

personality in some unspecified way. Even assuming that Dr. Nassr had concluded that

the petitioner’s personality was somehow affected by his injury, the report, under any

reasonable reading, does not even imply that this had significantly reduced the

petitioner’s culpability.



               Moreover, the petitioner has not shown how the trial court abused its

discretion in denying his motion for mental evaluation. See State v. Lane, 689 S.W.2d

202, 204 (Tenn. Crim. App. 1984)(decision to deny psychiatric evaluation is reversible

only when trial court abuses its discretion). Although a hearing on the motion was

apparently held, the record does not contain an account of the evidence presented to the

trial court. The record contains only the trial court’s written order summarily denying the

petitioner’s motion, which itself does not show an abuse of discretion. Accordingly, no

grounds exist to remand this case for a mental evaluation.



               Further, the record contains nothing to even suggest that the petitioner

could ever provide proof he was suffering from a mental condition that significantly

reduced his culpability. Even assuming that such proof could have been presented, the

petitioner has not shown a reasonable probability that applying mitigating factor (8) would

have reduced the petitioner’s sentence, given the tremendous weight placed upon his



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criminal history at the sentencing hearing and on direct appeal. In short, the petitioner

has not shown how he has been prejudiced by his counsels’ actions in failing to introduce

medical proof that might not even exist. Accordingly, he has not shown entitlement to

post-conviction relief. See Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694

(1984)(petitioner must shown a reasonable probability that his defense was prejudiced

in order to receive relief).



               Finding no merit to the petitioner’s argument, the trial court’s denial of post-

conviction relief is affirmed.



                                                    _______________________________
                                                    JOHN H. PEAY, Judge



CONCUR:



______________________________
DAVID H. WELLES, Judge



______________________________
J. CURWOOD WITT, JR., Judge




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