         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs May 16, 2001

                MICHAEL W. CLARK v. STATE OF TENNESSEE

                 Direct Appeal from the Circuit Court for Rutherford County
                         No. F-46024    James K. Clayton, Jr., Judge



                       No. M2000-02092-CCA-R3-PC - Filed July 3, 2001


The petitioner appeals the denial of his petition for post-conviction relief. Specifically, he asserts
that he received ineffective assistance of counsel because trial counsel failed to inform him of
charges against the victim of the crime. He claims that had he known about the charges against the
victim, he would not have pled guilty. After review, we affirm the judgment of the post-conviction
court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JERRY L. SMITH and
NORMA MCGEE OGLE , JJ., joined.

James O. Martin, III, Nashville, Tennessee, for the appellant, Michael Clark.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
William C. Whitesell, Jr., District Attorney General; and John W. Price III, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                             OPINION

        The petitioner, Michael W. Clark, appeals the judgment of the Circuit Court for Rutherford
County denying his petition for post-conviction relief. The petitioner asserts that he received
ineffective assistance of counsel because trial counsel did not inform him that the victim of the crime
had been charged with filing a false police report. He claims that if he had been informed of the
charges against the victim, he would not have pled guilty. The petitioner’s appeal is properly before
this court.
                                                Facts

         The petitioner’s case was set for trial, and on the morning of trial, after lengthy discussions
with his attorney, the petitioner decided to plead guilty to aggravated robbery. At the post-conviction
hearing, the petitioner claimed that his trial counsel, in these discussions, failed to inform him that
the victim in the case had been charged with filing a false police report. He further stated that he
would not have pled guilty had he known about this charge against the victim. When cross-
examined, the petitioner admitted that Detective Nobles had informed him of the charges against the
victim. He claimed that he did not speak to his trial counsel about the charges because he believed
his trial counsel would speak to him about it.

        The petitioner’s trial counsel next testified at the post-conviction hearing. According to the
petitioner’s trial counsel, he informed the petitioner about the charges against the victim and
discussed the significance of those charges. He also testified that he sent the petitioner a letter
explaining that he thought the petitioner’s best chance was to wait until trial to see if the victim
appeared to testify. Trial counsel felt the petitioner’s only chance would be if the victim did not
testify. However, trial counsel discussed with the petitioner the significant amount of evidence
contained in an ATM video tape. This video tape clearly depicted the petitioner robbing the victim.

        On the day of trial, the victim was present and trial counsel advised the petitioner that given
the victim’s testimony, the video tape of the incident, and the testimony of a co-defendant, the
petitioner would most certainly be convicted. Trial counsel testified he advised the petitioner that
although the victim’s credibility would be damaged by the victim’s involvement in a drug deal and
giving false information to the police, the mountain of evidence against the petitioner necessitated
accepting the plea offer.

        At the conclusion of the hearing, the post-conviction court found that the petitioner was
aware of the victim’s status and understood the significance of such. The court further found that
the petitioner made a knowing and voluntary plea given the events depicted on the video tape, which
the petitioner viewed several times. Based upon these findings, the post-conviction court concluded
that the petitioner received effective assistance of counsel, and, therefore, denied the petitioner any
relief.

                                               Analysis

        Post-conviction petitioners bear the burden of proving their allegations by clear and
convincing evidence. Tenn. Code Ann. § 40-30-210(f). On appeal, the appellate court affords the
trial court’s findings of fact the weight of a jury verdict, and these findings are conclusive on appeal
unless the evidence preponderates against them. Henley v. State, 960 S.W.2d 572, 578-79 (Tenn.
1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997).

      The Sixth Amendment to the United States Constitution and Article I, section 9 of the
Tennessee Constitution both require that a defendant in a criminal case receive effective assistance


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of counsel. Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). When a defendant claims
constitutionally ineffective assistance of counsel, the standard applied by the courts of Tennessee is
“whether the advice given or the service rendered by the attorney is within the range of competence
demanded by attorneys in criminal cases.” Summerlin v. State, 607 S.W.2d 495, 496 (Tenn. Crim.
App. 1980).

        In Strickland v. Washington, the United States Supreme Court outlined the requirements
necessary to demonstrate a violation of the Sixth Amendment right to effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). First, the defendant must show that
counsel’s performance fell below an objective standard of reasonableness under prevailing
professional norms and must demonstrate that counsel made errors so serious that he was not
functioning as “counsel” guaranteed by the Constitution. Strickland, 466 U.S. at 687, 104 S. Ct. at
2064. Second, the petitioner must show that counsel’s performance prejudiced him and that errors
were so serious as to deprive the petitioner of a fair trial, calling into question the reliability of the
outcome. Id.; Henley, 960 S.W.2d at 579.

        “When addressing an attorney’s performance it is not our function to ‘second guess’ tactical
and strategic choices pertaining to defense matters or to measure a defense attorney’s representation
by ‘20-20 hindsight.’” Henley, 960 S.W.2d at 579 (quoting Hellard v. State, 629 S.W.2d 4, 9 (Tenn.
1982)). Rather, a court reviewing counsel’s performance should “eliminate the distorting effects of
hindsight . . . [and] evaluate the conduct from the perspective at the time.” Strickland, 466 U.S. at
689, 104 S. Ct. at 2065. “The fact that a particular strategy or tactic failed or hurt the defense, does
not, standing alone, establish unreasonable representation.” Goad v. State, 938 S.W.2d 363, 369
(Tenn. 1996). On the other hand, “deference to matters of strategy and tactical choices applies only
if the choices are informed ones based upon adequate preparation.” Id.

        To establish prejudice, a party claiming ineffective assistance of counsel must show a
“reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id.; Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. A reasonable
probability is “a probability sufficient to undermine confidence in the outcome.” Id. In reviewing
a claim of ineffective assistance of counsel, an appellate court need not address both prongs of
Strickland if it determines that the petitioner has failed to carry his burden with respect to either
prong. Henley, 960 S.W.2d at 580.

        The evidence at the post-conviction hearing showed that the petitioner’s trial counsel advised
him about the charges against the victim and how that could be used to attack the victim’s credibility.
Trial counsel also advised the petitioner about the significant amount of the State’s evidence against
him without the victim’s testimony, specifically the video tape depicting the petitioner robbing the
victim. Although the petitioner claims that his counsel never advised him of the charges against the
victim, petitioner admitted that he knew about such charges. Based upon this evidence, the post-
conviction court found that trial counsel was effective. In reviewing this evidence, we agree with
the post-conviction court’s findings. Therefore, because the record does not preponderate against
the post-conviction court’s findings, we affirm the judgment of the post-conviction court.


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                                           Conclusion

        After reviewing the record before us and the findings of the post-conviction court, we hold
that the evidence in the record supports the conclusion that the petitioner received effective
assistance of counsel. The judgment of the post-conviction court is affirmed.




                                                     ___________________________________
                                                      JOHN EVERETT WILLIAMS, JUDGE




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