         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE

                 JIMMY DALE SMITH v. STATE OF TENNESSEE

                               Circuit Court for Cheatham County
                                           No. 10-813



                     No. M1999-00952-CCA-R3-PC - Filed October 4, 2000


                                               ORDER


In 1990, the petitioner, Jimmy Dale Smith, was convicted by a Cheatham County jury of two counts
of aggravated kidnapping. On direct appeal, the petitioner argued, inter alia, that he was denied the
effective assistance of counsel at trial. This Court affirmed the conviction on direct appeal. State
v. Jimmy Dale Smith, No. 01C01-9205-CC-00152, 1995 WL 84021 (Tenn. Crim. App. March 2,
1995). The petitioner then filed a post-conviction petition alleging that he was denied the effective
assistance of appellate counsel. Following a hearing, the post-conviction court denied the
defendant’s petition, and the petitioner appeals that ruling here. Based on our review of the briefs
and of the record, we conclude that this is an appropriate case for affirmance under Rule 20,
Tennessee Court of Criminal Appeals Rules.
        On appeal, the petitioner argues that his appellate counsel was ineffective because, following
the petitioner’s trial, appellate counsel argued in the motion for new trial that trial counsel was
ineffective, but failed to present any evidence to prove the petitioner’s claims. The petitioner also
argues that appellate counsel’s argument in the motion for new trial effectively foreclosed any post-
conviction opportunity the petitioner had to litigate his trial counsel’s ineffectiveness, because the
issue of his trial counsel’s ineffectiveness had been the subject of a prior proceeding, i.e., the new
trial motion, and thus counsel’s effectiveness had been “previously determined” thereby foreclosing
relief on this issue. See, Tenn. Code Ann. § 40-30-206(f).
        The petitioner is correct that his trial counsel’s effectiveness has been previously determined.
A post-conviction court shall dismiss any petition for post-conviction relief that claims relief for
issues that have been waived or previously determined. Tenn. Code Ann. § 40-30-206 (f). Section
40-30-206 defines "previously determined" as follows:

        (h) A ground for relief is previously determined if a court of competent jurisdiction
        has ruled on the merits after a full and fair hearing. A full and fair hearing has
        occurred where the petitioner is afforded the opportunity to call witnesses and
        otherwise present evidence, regardless of whether the petitioner actually introduced
        any evidence.
Tenn. Code Ann. § 40-30-206 (h). The petitioner presented this claim in his motion for new trial.
After a hearing at which the petitioner testified, the trial court denied the petitioner’s motion, and
this Court affirmed the conviction. Thus, we agree with the trial court that the issue of trial counsel’s
effectiveness has been previously determined.
        The issue of appellate counsel’s effectiveness, however, has not been previously determined,
because it was raised for the first time in the petitioner’s post-conviction petition. Initially, we note
that the same principles apply in determining the effectiveness of both trial and appellate counsel.
Campbell v. State, 904 S.W.2d 594, 596-97 (Tenn.1995). When a claim of ineffective assistance of
counsel is made under the Sixth Amendment, the burden is upon the petitioner to show (1) that
counsel's performance was deficient and (2) that the deficiency was prejudicial in terms of rendering
a reasonable probability that the result of the trial was unreliable or the proceedings fundamentally
unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674
(1984); State v. Melson, 772 S.W.2d 417, 419 n. 2 (Tenn. 1989). Moreover, the approach to the
issue of the ineffective assistance of counsel does not have to start with an analysis of an attorney's
conduct. If prejudice is not shown, we need not seek to determine the validity of the allegations
about deficient performance. Strickland, 466 U.S. at 697.
        At the post-conviction hearing, the substance of the petitioner’s testimony was that, on
appeal, the petitioner wished to proceed pro se. We agree with the trial court that “[i]n view of the
quality of Petitioner’s pro se petition for post-conviction relief and his various amendments and
motions, appellate counsel would have been ineffective had she presented Petitioner’s appeal as he
desired it to be presented.” Furthermore, nothing presented in the post-conviction petition or
adduced at the hearing indicates that the petitioner was prejudiced in any way by his appellate
counsel’s performance.
        IT IS, THEREFORE, ORDERED that the judgment of the trial court is affirmed pursuant
to Rule 20, Tennessee Court of Criminal Appeals Rules. Because it appears that the petitioner is
indigent, costs of this appeal are taxed to the state.




                                                        ____________________________________
                                                        JERRY SMITH, JUDGE


                                                        ____________________________________
                                                        DAVID H. WELLES, JUDGE


                                                        ____________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE



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