             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                             Assigned on Briefs January 17, 2001 Session

               ANTWAN LAMAR PATTON v. STATE OF TENNESSEE

                  Appeal as of Right from the Criminal Court for Davidson County
                                No. 94-A-313    Seth Norman, Judge



                           No. M2000-00370-CCA-R3-PC - Filed May 18, 2001


A Davidson County jury convicted the petitioner of two counts of child rape. For each of these
offenses, he received a sentence of eighteen years, and the trial court ordered the sentences to be run
consecutively. On direct appeal this Court modified the petitioner’s sentences to sixteen and one half
years each, resulting in an effective sentence of thirty-three years, but otherwise found the
petitioner’s claims merited no relief. Subsequently the petitioner filed a pro se post-conviction
petition alleging ineffective assistance of counsel. Determining that the petitioner had raised a
colorable claim, the trial court appointed counsel1 to represent him and later conducted an
evidentiary hearing on the petition. After taking the matter under advisement, the trial court filed an
opinion denying the petition. From this denial the petitioner brings the instant appeal alleging that
trial counsel provided ineffective assistance by inadequately advising the petitioner of the potential
sentence he could receive should he elect to go to trial.2 However, following our review of the
record, we find that the trial court correctly denied the petition, and we, therefore, affirm the lower
court’s decision.

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

JERRY L. SMITH, J., delivered the opinion of the court, in which DAVID H. WELLES, J., and THOMAS
T. WOODALL , J., joined.

Ralph Newman, Nashville, Tennessee, at trial and sentencing; C. LeAnn Smith, Nashville,
Tennessee, on post-conviction, for appellant, Antwan L. Patton.




         1
          The petitioner’s present counsel is actually the second attorney appointed to represent him on this post-
conviction matter as the first was allowed to withdraw.

         2
            Through his petition and at the evid entiary hearing thereon, the p etitioner raised additional a lleged erro rs said
to rise to the level of ineffective assistance. However, the petitioner only elected to argue the aforementioned issue on
appeal, an d this is the only co ntention which will be consid ered in this op inion.
Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
Victor S. Johnson, District Attorney General, Pam Anderson, Assistant District Attorney, for
appellee, State of Tennessee.

                                             OPINION

                                  FACTUAL BACKGROUND

       In deciding the petitioner’s case on direct appeal, this Court summarized the facts as follows:

                On an evening between September 25 and 30, 1993, at approximately 5 or 6
       p.m., the [twelve year old] male victim ... was playing hide-and-seek near his
       residence in Preston Taylor Homes, a public housing project in Nashville. The
       defendant approached the victim, who was hiding behind a tree, saying he had a
       birthday present for him. The victim recognized the defendant whose mother was a
       friend of the victim's mother.
                When the defendant, who was carrying a stick about one-and-one-half feet in
       length, grabbed his arm, the victim attempted to resist and run away. The defendant
       then struck the victim with the stick, producing a large bruise on his arm, and forced
       the victim into some bushes about fifty feet from the street. The defendant removed
       a roll of duct tape from his back pocket, tore off a section with his teeth, and placed
       it over the victim's mouth. The victim cried as the defendant anally penetrated the
       victim with his penis. Afterward, the defendant removed the tape, forced the victim
       to his knees, and required him to perform oral sex. Revulsed, the victim vomited.
                The defendant then released the victim, threatening to kill the victim and his
       mother if he told of the incident. When he returned home, the victim complained to
       his mother of rectal pain but did not inform her of the rape. The victim took some
       milk of magnesia and prune juice after which he experienced a bowel movement and
       bleeding.
                On October 11, 1993, about two weeks after the rapes, the victim received a
       poor report card from school and was grounded. At this point, the victim informed
       his mother about the defendant's assault. His mother called the victim's grandmother
       and then the police. Afterward, the victim made a statement to the police, spoke with
       social worker at the Department of Human Services, and went for an evaluation at
       Our Kids Clinic at Vanderbilt.
                There were inconsistencies in the victim's testimony. His recollection at trial
       of the sequence of the sex acts differed from his testimony at the preliminary hearing.
       The victim explained that he had misunderstood the questions posed to him at the
       preliminary hearing and was certain that the rapes occurred as he testified at trial. He
       also testified that the defendant had sexually assaulted him on eight other occasions
       in different locations. The victim acknowledged, however, that he had not told
       anyone of these other incidents. In fact, just three days prior to September 25, 1993,



                                                 -2-
when questioned by a doctor at Vanderbilt Hospital, the victim denied that he had
ever been sexually abused.
        Pamela Primm, the victim's mother, testified that in September, 1993, the
victim came home complaining that his bottom hurt. She described his eyes as "kind
of watery," his behavior as "kind of strange," and his gait as "kind of hopping." She
recalled having given the victim some milk of magnesia and prune juice but did not
ask him about his leg. She confirmed that when she grounded the victim two weeks
later for a report card containing three failing grades, he first told her of the rapes.
        Ms. Primm claimed that her son had been adversely affected by the incident.
She testified that he would not play outside, and was just "not the same little boy
anymore." She also arranged counseling for him.
        Detective Harry Meek of the Metro Police Department testified that the
victim showed him numerous locations where the victim claimed the other assaults
had occurred. Detective Meek took photographs of these locations.
        Julie Rosof of Our Kids Center at Vanderbilt, an expert trained in
examination of sexually abused children, testified that she examined the victim.
After learning of the victim's account of the rapes, she examined and found normal
the victim's mouth and rectal area. Ms. Rosof testified that it is not unusual for small
abrasions or injuries in the rectal area to heal "very, very quickly ... within 24 or 72
hours." She saw no signs of scarring. Laboratory tests for sexually transmitted
diseases were negative.
        Corey Dewayne Smith, thirteen years old, testified that he lived in Preston
Taylor Homes. While acknowledging that he had played with the victim in the past,
Smith denied playing hide-and-seek with the victim in September, 1993. He testified
that he stopped playing with the victim in 1990 or 1991 because of rumors that the
victim was gay.
        The defendant, twenty years old at the time of trial, was eighteen in
September of 1993. He testified that he left school, where he took special education
classes, in the ninth grade. The defendant, who has a three-year-old child and has
worked off and on since leaving school, testified that he was sometimes living with
his girlfriend's aunt and sometimes at his mother's home during that time. He
acknowledged knowing the victim but denied raping him.
        At trial, the defendant claimed that he worked for Labor World and had
worked there regularly the week before the trial. The General Manager of Labor
World, however, established that the defendant had not worked at all the week before
trial and had worked only one day during the preceding week. Don Black of the
Davidson County Sheriff's office testified that the defendant was in jail for
approximately seven days during the same time period.
        The jury returned a verdict of guilty on both counts of rape of a child as
charged in the indictments. At the sentencing hearing, Ms. Primm testified that the
victim no longer played outside in the neighborhood and had suffered recurrent
nightmares since the rapes. She stated that the victim had moved in with his
grandmother to escape the environment at Preston Taylor Homes.


                                          -3-
State v. Antwan Patton, No. 01C01-9606-CR-00241, 1997 WL 742514 at *1-2 (Tenn. Crim. App.
at Nashville, Nov. 25, 1997) (footnotes omitted).

         Moving to the post-conviction hearing, the petitioner provided the only proof for his claim.
At the outset the petitioner stated that he believed his IQ to be 65; that he functions on a third grade
level; and that he has a tough time understanding things. While acknowledging that trial counsel had
initially informed him that he could receive fifteen to twenty-five years for the crimes with which
he was charged, the petitioner denied that counsel ever discussed the terms “concurrent” or
“consecutive” with him. Also, the petitioner claimed that trial counsel did not tell him that, if he
were sentenced to consecutive sentences, he could potentially receive fifty years if convicted.
Furthermore, the petitioner stated that on the Friday before his trial, he had signed an agreement to
offer a best interest plea for which he would receive six years. However, shortly after entering into
the agreement the petitioner spoke by telephone with his attorney to say that he no longer wanted the
offer. Explaining at the hearing his rationale for rejecting the offer, the petitioner said, “Why am I
going to plead guilty for something I didn’t do?” Thereafter, he added that he had believed that the
most he could receive upon conviction at trial was the six years he had been offered and, thus, that
he had not been aware that he could be sentenced to serve up to fifty years. He further alleged that
he did not come to this realization until the trial judge had sentenced him. In response to a question
on direct examination, the petitioner affirmed that he would not have taken his case to trial had trial
counsel explained to him “that the six years was no longer an option.” He then stated, “I wouldn’t
a’went to trial if I knew that I was going to get the time I have now.”
         Subsequent to the petitioner’s testimony, the prosecution called the petitioner’s trial counsel
Ralph Newman as its sole witness. This attorney stated that he had been with the public defender’s
office since 1989. Further describing his experience with the practice of criminal law, Newman
asserted that he had handled at least eight hundred felony cases and had tried twenty to thirty cases
before a jury since moving to the criminal court level in 1991. He added that some of these cases
had been class A felonies. Specifically with regard to the petitioner, trial counsel averred that on
multiple occasions he had explained to the petitioner that the petitioner was charged with A felonies
and, therefore, faced fifteen to twenty-five years on each count. In addition, he advised the petitioner
that he would not be eligible for parole and that the trial judge could order these sentences to be
served consecutively or concurrently. Newman testified that he had given this advice to the
petitioner on the Friday before trial in explaining the above-referenced six year best interest plea to
attempted aggravated sexual battery. Realizing that the petitioner’s intelligence level was low, trial
counsel talked with the petitioner “at great length” concerning the plea petition explaining the
consequences and alternatives. The attorney testified that at the conclusion of this discussion, the
petitioner had indicated that he understood the range of punishment and that his sentences could be
ordered to be served consecutively. 3 However, though the petitioner signed the plea agreement, later
that same day the petitioner informed counsel that he wanted his case to be tried and that such was




         3
           During cross-examination trial counsel stated that he could not recall the exact metho d that he had used in
explaining co nsecutive sen tencing to the p etitioner but tha t he had co vered this co ncept with his clie nt.

                                                         -4-
his final decision.4 Counsel further candidly acknowledged that he had not tried to change the
petitioner’s mind as it seemed that the petitioner had decided that he was not interested in pleading
to any charge. Relatedly, trial counsel admitted on cross-examination that he may not have told the
petitioner in that telephone conversation that the petitioner would again be facing up to fifty years.
Nevertheless, trial counsel was clear that he had explained the limits of exposure on occasions before
and after the rejection of the plea and that, prior to the petitioner’s signing the plea, he had advised
the petitioner that “if [the petitioner] rejected the plea agreement then he’d be facing trial on the
original counts of the indictment.”
        Having heard the proof, the trial court subsequently denied the petitioner post-conviction
relief. Within its finding, the lower court stated that “[t]he petitioner was advised of the nature of
the punishment and that the sentences could be consecutive.” Through this appeal the petitioner
contests the trial court’s ruling and maintains that counsel provided him ineffective assistance.
                        POST-CONVICTION STANDARD OF REVIEW
        In analyzing the issue raised, we first note that a petitioner bringing a post-conviction petition
bears the burden of proving the allegations asserted in the petition by clear and convincing evidence.
See Tenn. Code Ann. § 40-30-210(f). Moreover, the trial court's findings of fact are conclusive on
appeal unless the evidence preponderates against the judgment. Tidwell v. State, 922 S.W.2d 497,
500 (Tenn. 1996); Campbell v. State, 904 S.W.2d 594, 596 (Tenn. 1995); Cooper v. State, 849
S.W.2d 744, 746 (Tenn. 1993).
                          INEFFECTIVE ASSISTANCE OF COUNSEL
                                        A. Standard of Review
        Beyond this we are to observe the following standard of review applied in cases alleging
ineffective assistance of counsel. When a petitioner seeks post-conviction relief on the basis of
ineffective assistance, the petitioner must prove “that (a) the services rendered by trial counsel were
deficient and (b) the deficient performance was prejudicial.” Powers v. State, 942 S.W.2d 551, 558
(Tenn.Crim.App. 1996). To satisfy the deficient performance prong of this test, the petitioner must
establish that the service rendered or the advice given was below "the range of competence
demanded of attorneys in criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).
Furthermore, to demonstrate the prejudice required, the petitioner must show that there is a
reasonable probability that, but for counsel's deficient performance, the result of the proceeding
would have been different. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80
L.Ed.2d 674 (1984). "Because a petitioner must establish both prongs of the test to prevail on a
claim of ineffective assistance of counsel, failure to prove either deficient performance or resulting
prejudice provides a sufficient basis to deny relief on the claim." Henley v. State, 960 S.W.2d 572,
580 (Tenn. 1997). As a matter of fact, “a court need not address the components in any particular
order or even address both if the [petitioner] makes an insufficient showing of one component ." Id.

                       B. Allegation of Failure to Advise of Sentencing Exposure

         4
            Actually, it was the petitioner’s mother who had called counsel quite upset that afternoon. Though counsel
would not speak with her in that state, he had asked to talk with the petitioner, who then indicated that he was no longer
interested in pleading. On cross-examination post-conviction counsel asked Newman if he had ever discussed the
petitioner’s risk of exposure with the petitioner’s mother since the petitioner had limited mental abilities, and trial counsel
indicated tha t he had not.

                                                             -5-
         In asserting his position, the petitioner states that counsel failed to advise him of the potential
sentence that he could receive if convicted as charged and that he would not have taken the matter
to trial had he received such advice.5 However, after reviewing the record, we do not find that he has
proven such by clear and convincing evidence. Though at one point he claims that he would not have
pled had he received the allegedly omitted advice, his more accurate statement may have been the
one that followed: “I wouldn’t a’went to trial if I knew that I was going to get the time I have now.”
In contrast to the petitioner’s claims, his trial counsel testified that he had advised the petitioner on
more than one occasion of the full potential sentence that the petitioner could receive if convicted
as charged. Furthermore, counsel indicated that he had explained that this would be the sentence that
the petitioner risked receiving if the petitioner declined the State’s six year offer. Additionally, trial
counsel recounted that in rejecting the offer, the petitioner had indicated that he wanted to go to trial
and that such constituted his final decision. Even in the post-conviction hearing, the petitioner stated,
“Why am I going to plead guilty for something I didn’t do?” in response to a question from his
current counsel concerning his reason for rejecting the plea agreement.
          Applying these facts to the above-outlined two prong test for determining the effectiveness
of counsel, we conclude that the petitioner has failed to prove either deficient performance or that
there is a reasonable probability that the outcome of the proceeding would have been different had
he received the allegedly missing advice. Again, as aforementioned, the trial court found that “[t]he
petitioner was advised of the nature of the punishment and that the sentences could be consecutive.”
In denying the petition, the trial court further found that counsel had not been ineffective. The
evidence does not preponderate against these determinations and, thus, this issue lacks merit.
                                              CONCLUSION
         For the foregoing reasons we find that the petitioner’s claim entitles him to no relief.
Accordingly, the judgment of the trial court is AFFIRMED.



                                                                      ___________________________________
                                                                      JERRY L. SMITH, JUDGE




          5
             Through his brief the petitioner seemingly adds a sub-issue not clearly presented to the lower court. The
petitioner goes beyond stating that he had not been informed of the potential aggregate sentence that he might receive
should he refuse the six ye ar offer to asserting that trial counsel had an obligation to attempt to persuade him to accept
the plea. (In support of this claim, the petitioner cites caselaw such as State v. McClennon, 669 S.W.2d 705, 707 (Tenn.
Crim. App. 1984).) However, the lower court did not have an opportunity to rule on this issue; thus, it is not pro perly
before this Court. See Tenn. R. App. P 36(a). Furthermore, while the evidence indicates that trial counsel did not seek
to talk the petitioner out of the petitio ner’s “final decisio n,” post-conv iction couns el did not elicit a ny proof rela tive to
persuasion trial counsel may or may not have utilized prior to the petitioner’s having agreed to the State’s offer. As such,
trial counsel ma y well have engag ed in such p ersuasion ea rlier but allowe d the petitione r to make his ow n decision to
go to trial, as was his right.

                                                               -6-
