          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT KNOXVILLE
                              Assigned on Briefs January 22, 2003

                  JOSEPH SHEPHERD v. STATE OF TENNESSEE

                   Direct Appeal from the Criminal Court for Monroe County
                      Nos. 97-127 and 97-128   William H. Inman, Judge



                                   No. E2002-01455-CCA-R3-PC
                                        September 17, 2003

Prior to this appeal, the petitioner, Joseph Shepherd, was convicted of involuntary manslaughter in
one proceeding, and, in a separate proceeding, he was convicted of felony murder and aggravated
assault. He is currently serving a life sentence. The petitioner filed a petition for post-conviction
relief in each case, raising several issues, including ineffective assistance of counsel. The post-
conviction court denied relief in both cases and the petitioner appealed. Upon 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 Criminal Court is Affirmed.

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
JOSEPH M. TIPTON, J., joined.

Richard L. Burnett, Knoxville, Tennessee, for the appellant, Joseph Shepherd.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General;
Jerry N. Estes, District Attorney General; and William Reedy, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                              OPINION


                                       I. Factual Background

         In a previous opinion, this court briefly summarized the procedural history of the petitioner’s
cases:

                In April 1991, a jury convicted the petitioner of the felony murder of
                Roxanne Woodson and the aggravated assault of law enforcement
                officers investigating the case. The [petitioner] was sentenced to
                death for the felony murder and to two-to-five years for the
                   aggravated assault. On May 30, 1995, our supreme court reversed the
                   death sentence and remanded the case for resentencing. State v.
                   Shepherd, 902 S.W.2d 895 (Tenn. 1995). The petitioner was
                   resentenced to life imprisonment for his felony murder conviction on
                   April 29, 1997. In a separate trial, the petitioner was convicted of the
                   second degree murder of Kathy Clowers and sentenced to ninety-nine
                   years imprisonment. This court reversed the second degree murder
                   conviction and remanded the case for a new trial. State v. Shepherd,
                   862 S.W.2d 557 (Tenn. Crim. App. 1992).

Joseph Shepherd v. State, Nos. E1999-01279-CCA-R3-PC and E1999-02266-CCA-R3-PC, 2000
WL 1742077, at *1 (Tenn. Crim. App. at Knoxville, Nov. 28, 2000).

        Upon retrial of the Clowers case, the appellant was found guilty of involuntary manslaughter,
and he received a sentence of two to five years incarceration. Subsequent to his conviction, the
petitioner filed a motion for new trial. While this motion was pending, our supreme court remanded
the Woodson case for resentencing. Thereafter, the petitioner entered into an agreement with the
State in which he waived his right to appeal the Clowers case in exchange for a life sentence in the
Woodson case.1 In June 1997, the petitioner filed for post-conviction relief in both cases.

       The petitions on both the Clowers and Woodson cases were effectively consolidated for the
post-conviction court’s review. See Shepherd, Nos. E1999-01279-CCA-R3-PC and E1999-02266-
CCA-R3-PC, 2000 WL 1742077, at *1. In case 97-127, the petitioner raised complaints concerning
the Clowers case, and in case 97-128, he raised complaints regarding the Woodson case. The post-
conviction court initially dismissed both petitions as barred by the statute of limitations. Id.
However, this court reversed the post-conviction court’s ruling as to the petition involving the
Woodson case, finding that the petition was timely filed. Id. at *4. This court further reversed the
post-conviction court’s dismissal of the petition involving the Clowers case and remanded for further
proceedings. Id. at *5. Thereafter, the post-conviction court held a hearing on both petitions, first
hearing proof regarding the Clowers case, then listening to proof regarding the Woodson case.

        At the post-conviction hearing, the petitioner first contended that because there was no record
of a ruling on his motion for new trial in the Clowers case, the trial court retained original
jurisdiction over the case. The State argued that because the appellant waived his right to appeal in
the Clowers case in exchange for a life sentence in the Woodson case, the appellant effectively
withdrew his motion for new trial. Regarding the Clowers case, the appellant also complained that
his counsel failed to perfect an appeal and that the trial court erred in allowing the testimony of Ann
Barnett at trial.2


         1
             At the post-conviction hearing, this document is often referred to as “the waiver.”

         2
            In his brief, the appellant explains that “Ms. Barnett testified . . . that the petitioner had on occasion provided
her with c ertain drugs, and further testified as to the effects said d rugs had upon her.”

                                                             -2-
        Based upon the proof adduced at the post-conviction hearing, the post-conviction court
denied both petitions. Specifically, the court determined that the petitioner had not met his burden
of establishing by clear and convincing evidence any of the claims alleged in his post-conviction
petitions.

         On appeal, the petitioner raises the following issues for our review: (1) whether the petitioner
was denied the effective assistance of counsel when his attorney failed to file a notice of appeal and
seek appellate review of the Clowers conviction; (2) whether the petitioner was denied his
constitutional right to a fair trial when the trial court permitted the State to present the testimony of
Ann Barnett at the Clowers trial; (3) whether the original trial court retained jurisdiction in this
matter, as the petitioner’s motions for new trial in the Clowers case were never ruled upon or
otherwise disposed of by the trial court; (4) whether the petitioner’s fundamental constitutional right
to testify at the Woodson trial was violated when his attorneys failed to allow him to testify, as
requested by the petitioner; and (5) whether the petitioner received the ineffective assistance of
counsel when his attorneys failed to interview and/or present certain witnesses and defenses at trial.

                                             II. Analysis

         To be successful in his claim for post-conviction relief, the petitioner must prove all factual
allegations contained in his post-conviction petition by clear and convincing evidence. See Tenn.
Code Ann. § 40-30-210(f) (1997). “‘Clear and convincing evidence means evidence in which there
is no serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999) (quoting Hodges v. S.C.
Toof & Co., 833 S.W.2d 896, 901 n.2 (Tenn. 1992)). Issues regarding the credibility of witnesses,
the weight and value to be accorded their testimony, and the factual questions raised by the evidence
adduced at trial are to be resolved by the post-conviction court as the trier of fact. See Henley v.
State, 960 S.W.2d 572, 579 (Tenn. 1997). Therefore, we afford the post-conviction court’s findings
of fact the weight of a jury verdict, with such findings being conclusive on appeal absent a showing
that the evidence in the record preponderates against those findings. Id. at 578.

        Additionally, as the petitioner has claimed that he received the ineffective assistance of
counsel in both cases, we note that a claim of ineffective assistance of counsel is a mixed question
of law and fact. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). In Fields v. State, 40 S.W.3d
450, 458 (Tenn. 2001) (citations omitted), our supreme court explained the standard of review in
cases of ineffective assistance of counsel:

                [A post-conviction] court’s findings of fact underlying a claim of
                ineffective assistance of counsel are reviewed on appeal under a de
                novo standard, accompanied with a presumption that those findings
                are correct unless the preponderance of the evidence is otherwise.
                However, a [post-conviction] court’s conclusions of law--such as
                whether counsel’s performance was deficient or whether that
                deficiency was prejudicial--are reviewed under a purely de novo


                                                  -3-
                standard, with no presumption of correctness given to the [post-
                conviction] court’s conclusions.

        “To establish ineffective assistance of counsel, the petitioner bears the burden of proving
both that counsel’s performance was deficient and that the deficiency prejudiced the defense.” Goad
v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064 (1984)). In evaluating whether the petitioner has met this burden, this court
must determine whether counsel’s performance was within the range of competence required of
attorneys in criminal cases. See Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).


                                    A. 97-127: The Clowers Case

        The proof at the post-conviction hearing revealed that the petitioner was represented by
attorney Charles Corn at trial. Corn testified that the petitioner executed a waiver of the right to
appeal the Clowers case in exchange for the State agreeing to a sentence of life imprisonment,
instead of seeking the death penalty, in the Woodson case. Corn acknowledged that the waiver did
not specifically provide that the motion for new trial in the Clowers case would be withdrawn. In
connection with this issue, the following colloquy took place:

                The Court: And at that time the motion for new trial in [the Clowers
                case] hadn’t been ruled upon, but you just considered the waiver of
                appeal to take care of that.

                Corn: I must have thought that, Judge. I don’t remember, but I must
                have thought that.

         Corn further explained that the motion for new trial had been filed to preserve the petitioner’s
right to appeal even though the jury delivered the desired outcome in the case, namely an involuntary
manslaughter conviction instead of a second degree murder conviction. Corn testified that he did
not think the petitioner had a meritorious appeal. Accordingly, counsel believed that the State’s
proposal to not seek the death penalty in the Woodson case in exchange for the petitioner’s waiver
of the right to appeal in the Clowers case was an “excellent agreement.”

         Corn stated that there was no indication that the petitioner “did not know what he was doing”
at the time of the waiver. Additionally, the petitioner did not appear to be under the influence of any
drugs or intoxicants. Corn maintained that he would not have allowed the petitioner to execute the
waiver if he had believed that the petitioner’s mind was affected by drugs.




                                                  -4-
       Corn further related that he was sure that the waiver of the petitioner’s right to appeal the
Clowers case was announced in open court.3 Corn acknowledged that a letter he wrote to Judge
Weatherford indicated that the petitioner wished to set aside his waiver of appeal. The letter, which
was dated May 2, 1997, states that the petitioner telephoned Corn, asking to set aside his waiver
because his thinking was distorted by changes in his blood pressure medication. Corn admitted that
he did not file any motions to try to set aside the petitioner’s waiver of the right to appeal the
Clowers case. He explained that “once I do [a plea bargain] I don’t go back on it.”

        Reed Dixon, the petitioner’s co-counsel in the Woodson case, testified regarding the
circumstances surrounding the petitioner’s waiver of his right to appeal the Clowers case. Dixon
recalled that the petitioner’s waiver of his right to appeal the Clowers case took place in open court.
Dixon clarified that he did not recall if the waiver was “executed” in open court.

         Dixon stated that he had no reservations regarding the petitioner’s ability to understand the
waiver. Notably, Dixon averred that he was “extremely impressed with [the petitioner’s] intelligence
and his grasp of what was going on.” Dixon also opined that had he known the petitioner wished
to set aside the waiver of his right to appeal, he would have attempted to dissuade the petitioner from
such action because of his concern that the petitioner would be sentenced to death in the Woodson
case.

        The petitioner testified at the post-conviction hearing and acknowledged that he waived his
right to appeal in the Clowers case. However, after executing the waiver the petitioner contacted
Corn, advising Corn that he wanted to set aside the waiver because he was on new blood pressure
medication which affected his thinking at the time he signed the waiver. The petitioner claimed that
he “wasn’t thinking in a rational state of mind.” The petitioner further claimed that he wanted to
pursue a direct appeal of his sentence and conviction in the Clowers case.

        After receiving a copy of Corn’s letter to Judge Weatherford, the petitioner believed that his
only available avenue for relief was a post-conviction proceeding. Accordingly, the petitioner stated
that he filed for post-conviction relief in June 1997 after he read Corn’s letter.

        The petitioner’s complaints regarding the Clowers case concern whether the petitioner’s
waiver of appeal was knowingly and voluntarily made. The post-conviction court determined that
in the Clowers case, the petitioner

                 alleges various grounds for relief, all of which he abandoned-offered
                 no evidence thereon-except the issue of waiver of appeal. Petitioner
                 concedes that he signed a waiver of his appeal, but that he was taking
                 blood pressure medication at the time and was not thinking clearly.



        3
           Judge M ashburn originally presided over the Clowers and Woodson cases. However, upon his demise, Judge
W eatherford p resided o ver the cases.

                                                       -5-
               . . . The proof is clear that petitioner waived his right to appeal
               knowledgeably and intelligently.

        As we earlier recounted, both Corn and Dixon testified that the petitioner was facing a
possible death sentence in the Woodson case. In fact, the petitioner was originally sentenced to
death in the Woodson case, but this court remanded the case for resentencing. As we noted, prior
to resentencing the petitioner agreed to forfeit an appeal in the Clowers case in exchange for a life
sentence in the Woodson case, thereby avoiding the death penalty. Furthermore, Corn testified that
the petitioner did not have a meritorious claim for appeal in the Clowers case because the petitioner
received the most favorable outcome possible, an involuntary manslaughter conviction.

        Moreover, regarding the petitioner’s waiver of his right to appeal, we note that a defendant
must voluntarily waive this right. See Carter v. State, 102 S.W.3d 113, 119 (Tenn. Crim. App.
2002). “Further, the waiver should be reduced to writing in a document signed by the defendant,
subscribed to by counsel, and clearly reflecting the defendant’s awareness of the right to appeal and
voluntarily waiving it.” Id.; see also Tenn. R. Crim. P. 37(d) (providing that if a defendant waives
the right to appeal, the waiver should be in writing and should also “clearly reflect that the defendant
was aware of the right and voluntarily waived it”).

        At the post-conviction hearing, the petitioner presented no proof, aside from his own
testimony, to indicate that his mental state at the time of the execution of the waiver was adversely
affected by his medication. Contrarily, Corn and Dixon both asserted that there was no indication
that the petitioner was under the influence at the time he executed the waiver. In the order denying
the petition, the post-conviction court stated that “[t]he proof offered by the State respecting the
waiver of appeal in the involuntary manslaughter case is fully credited.” We conclude that the post-
conviction court did not err in finding that the petitioner knowingly and voluntarily waived his right
to appeal. See Tenn. R. Crim. P. 37(d); Carter, 102 S.W.3d at 119; Floyd Campbell v. State, No.
M2001-00408-CCA-R3-PC, 2002 WL 970441, at *5 (Tenn. Crim. App. at Nashville, May 10, 2002),
perm. to appeal denied, (Tenn. 2002).

        We further conclude that such waiver effectively acted as an abandonment of the petitioner’s
motion for new trial. See State v. Holder, 634 S.W.2d 284, 285 (Tenn. Crim. App. 1982); Tracy
Lynn Potter v. Denise Margaret Kriley Potter, No. 13, 1989 WL 3134, at *2 (Tenn. Ct. App. at
Knoxville, Jan. 20, 1989). Additionally, we note that a valid waiver of the right to appeal serves as
a waiver of many claims, such as the petitioner’s complaint regarding Ann Barnett’s testimony. See
Tenn. Code Ann. § 40-30-206(g) (1997); see also Miller v. State, 54 S.W.3d 743, 747 (Tenn. 2001).
Finally, in light of our determination that the petitioner’s waiver of his right to appeal the Clowers
case was valid, we conclude that the petitioner has failed to prove by clear and convincing evidence
that Corn was ineffective in failing to seek appellate review of that conviction.

                                   B. 97-128: The Woodson Case




                                                  -6-
         Concerning the Woodson case, the petitioner raised the issues of whether he was denied the
right to testify and whether he received the ineffective assistance of counsel. At the post-conviction
hearing, Corn testified that he advised the petitioner not to testify in the Woodson case, but he never
informed the petitioner that he could not testify. Corn opined that the petitioner was not a good
witness and would damage his case. During a break in the Woodson trial proceedings, Corn again
advised the petitioner against testifying and the petitioner agreed to not testify. The petitioner gave
Corn a written account of his version of events which was placed in the petitioner’s file at Corn’s
office. Corn asserted that Judge Mashburn never told the petitioner that he could not testify. In sum,
Corn stated that the petitioner voluntarily waived his right to testify.

        Regarding the petitioner’s claim that counsel did not adequately investigate the case, Corn
stated that he interviewed several witnesses that the petitioner asked him to interview. The petitioner
informed Corn that these witnesses would be helpful to the petitioner’s case. However, upon
interviewing these witnesses, Corn deduced that the proposed witnesses had nothing but
“speculation” to offer.

        Dixon asserted that prior to the commencement of the Woodson case, Judge Mashburn ruled
that the State would be able to cross-examine the petitioner regarding the Clowers conviction.4
Therefore, defense counsel did not prepare the petitioner to testify because the defense had no
intention of calling the petitioner to the stand. Regardless, during trial Judge Mashburn reversed his
earlier ruling and ordered that the State would not be allowed to cross-examine the petitioner
regarding the Clowers conviction.

        Subsequent to Judge Mashburn’s second ruling, the trial court allowed a one and one-half
to two hour break in the proceedings to allow defense counsel to speak with the petitioner. Dixon
stated that the petitioner wanted to testify, but he agreed not to after counsel advised against it.
Dixon explained that originally the defense did not want the petitioner to testify because of the
possibility that the jury would be told about the Clowers conviction. Additionally, Dixon stated that
he did not want the petitioner to testify because the petitioner’s version of events “did not make
common logical sense” and “past events” of the petitioner could be brought in on cross-examination.
Dixon maintained that the petitioner was not prohibited from testifying, but the petitioner acceded
to the advice of counsel and agreed not to testify.

         Billy Ray Shepherd, the petitioner’s brother, testified at the post-conviction hearing that he
was never interviewed by defense counsel. Shepherd asserted that two weeks before Woodson’s
body was discovered on his parents’ property, Shepherd had been on the property and did not notice
a grave. The petitioner was incarcerated in North Carolina at this time. Shepherd made no specific
effort to make the police aware of this fact. In explanation for his laxity, Shepherd asserted, “I was
busy at the time myself, sir.”



         4
           As we have noted, at the time of the Wood son trial the petitioner had been convicted of second degree murder
in the Clowers case and the direct app eal in that case wa s pending.

                                                          -7-
        The petitioner testified that he thought he would be allowed to testify at the Woodson trial
until the defense rested its case. He asserted that he never waived his right to testify; instead, the
petitioner claimed that counsel and Judge Mashburn would not allow him to testify. The petitioner
conceded that he never heard Judge Mashburn forbid him from testifying, but “[t]hat’s the way I took
it.” Additionally, the petitioner maintained that he asked counsel to interview several witnesses.
The petitioner asserted that these witnesses were present at trial, but defense counsel would not
permit them to testify.

         It is unquestionable that a criminal defendant has a fundamental, constitutional right to testify
at trial. See Momon v. State, 18 S.W.3d 152, 161 (Tenn. 1999). This fundamental right may only
be waived by the defendant himself. Id. “Generally, a right that is fundamental and personal to the
defendant may only be waived if there is evidence in the record demonstrating ‘an intentional
relinquishment or abandonment of a known right or privilege.’” Id. at 161-62. A waiver of this right
may not be presumed by a silent record. Id. at 162.

         Momon outlined procedural safeguards to be employed to ensure that a defendant’s knowing,
voluntary, and intelligent waiver would be reflected on the record. Id. However, because Momon
served only to clarify the existing law, “the mere failure to follow these guidelines will not in and
of itself support a claim for deprivation of the constitutional right to testify if there is evidence in the
record to establish that the right was otherwise personally waived by the defendant.” Id. at 163.

         It is undisputed that the trial in the Woodson case occurred prior to Momon. Therefore, the
failure to have the petitioner waive his right to testify on the record is not determinative of the issue.
The post-conviction court accredited Corn’s testimony concerning the petitioner’s waiver of the right
to testify after being thoroughly apprised of the dangers of testifying. See Kong C. Bounnam v.
State, No. W2001-02603-CCA-R3-PC, 2002 WL 31852865, at *10 (Tenn. Crim. App. at Jackson,
Dec. 20, 2002), perm. to appeal denied, (Tenn. 2003). The evidence does not preponderate against
this finding.

        The petitioner also complains that counsel were ineffective in failing to “interview and/or
present certain witnesses and defenses at trial.” The petitioner makes no further mention of which
“defenses” counsel failed to pursue. Thus, we are precluded from addressing this claim. See Black
v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Additionally, the only uncalled witness the
petitioner specifically alleged counsel should have called was his brother, Billy Ray Shepherd.

         Shepherd testified at the post-conviction hearing that he was not interviewed by counsel prior
to trial. Shepherd stated that two weeks prior to the discovery of Woodson’s body there was no
grave at the location where the body was found. He also stated that during this time the petitioner
was incarcerated in North Carolina. Shepherd explained that he did not contact counsel or the
authorities to relate this information because he was “busy.” Dixon testified that Corn was
responsible for interviewing witnesses prior to trial. Corn testified that he had several meetings with
the petitioner’s family and encouraged them to ask family members to come forward if they had any



                                                    -8-
information regarding the case. The post-conviction court specifically noted that the testimony of
Shepherd “is not credited.”

        Accordingly, we conclude that the petitioner has failed to meet his burden of establishing by
clear and convincing evidence that counsel was deficient in failing to interview Shepherd and that
such deficiency prejudiced the petitioner. See Ralph E. Thompson, Jr. v. State, No. E2001-00003-
CCA-R3-PC, 2002 WL 392820, at *10 (Tenn. Crim. App. at Knoxville, Mar. 14, 2002), perm. to
appeal denied, (Tenn. 2002). This issue is without merit.

                                         III. Conclusion

       Based upon the foregoing, we affirm the judgment of the post-conviction court.




                                                      ___________________________________
                                                      NORMA McGEE OGLE, JUDGE




                                                -9-
