            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                          APRIL SESSION, 1998

                                                               FILED
WILLIE L. PEGUES,              )                                April 6, 1998
                               )   No. 02C01-9705-CR-00182
      Appellant                )                          Cecil Crowson, Jr.
                               )   SHELBY COUNTY          Appellate C ourt Clerk

vs.                            )
                               )   Hon. JOSEPH B. DAILEY, Judge
STATE OF TENNESSEE,            )
                               )   (Post-Conviction)
      Appellee                 )



For the Appellant:                 For the Appellee:

Loys A. "Trey" Jordan, III         John Knox Walkup
4171 Lamar Avenue, Suite 101       Attorney General and Reporter
Memphis, TN 38118
                                   Kenneth W. Rucker
                                   Assistant Attorney General
                                   Criminal Justice Division
                                   450 James Robertson Parkway
                                   Nashville, TN 37243-0493


                                   William L. Gibbons
                                   District Attorney General

                                   James M. Lammey
                                   Asst. District Attorney General
                                   Criminal Justice Complex, Suite #301
                                   201 Poplar Street
                                   Memphis, TN 38103




OPINION FILED:


AFFIRMED


David G. Hayes
Judge
                                               OPINION



        The appellant, Willie L. Pegues, appeals the denial of his petition for post-

conviction relief by the Shelby County Criminal Court. He is currently serving a life

sentence in the Department of Correction imposed as a result of his 1991 conviction

for the felony murder of Nore Bolar. 1 His conviction was affirmed on direct appeal to

this court. See State v. Pegues, No. 02C01-9202-CR-00040 (Tenn. Crim. App. at

Jackson, Mar. 9, 1994), perm. to appeal denied, (Tenn. Jul. 5, 1994). In February

1995, the appellant filed a pro se petition for post-conviction relief. After counsel was

appointed, an amended petition was filed. Following a hearing on the merits, the trial

court denied the post-conviction petition. In this appeal as of right, the appellant argues

ineffectiveness of counsel at trial and on appeal. Specifically, he contends that trial

counsel failed to adequately prepare for trial and failed to file a written motion to

suppress; and, that appellate counsel failed to challenge the admissibility of the

appellant’s statements to the police. In a separate, but related issue, the appellant

argues that the trial court improperly admitted into evidence his statement to the police.



        After a review of the appellant’s issues, we affirm the decision of the trial court.




                            Evidence at Post-Conviction Hearing



        In support of the allegations in his petition, the appellant presented the testimony

of his mother, Frances Pratcher. She testified that she was present when police

officers arrested her son, who was seventeen years old. Ms. Pratcher asserted that the

appellant was not advised of his right to counsel or his right to remain silent. The


        1
         The appellant’s conviction resulted from the July 1990 beating death of eighty-one year
old Nore Bolar. In a signed statement to police officers, the appellant related that he completed an
errand for the eighty-one year old Bolar and then watched television with her at her home. The
appellant admitted that he then murdered the victim with a sheetrock hammer and an ax and
procee ded to tak e over thre e hund red dollars in cash a nd a beig e telepho ne from her resid ence.

                                                  2
appellant was then placed in a patrol car and transported, accompanied by his mother,

“downtown.” At the station, the appellant was placed in a room while his mother

remained outside in the hall. Frances Pratcher stated that she was not permitted to

enter the room. Despite allegations that Ms. Pratcher had signed the appellant’s

statement to the police, she stated that the only paper which she signed was a consent

to search her home. Additionally, regarding trial counsel’s performance, Ms. Pratcher

asserted that trial counsel only contacted her once prior to trial. Furthermore, even

though Ms. Pratcher could supply her son with an alibi, trial counsel refused to develop

this defense maintaining that “it was too late” to be used at trial.



       The appellant corroborated his mother’s testimony. He stated that he was never

advised as to the reason for his arrest and was never advised of his right to counsel or

his right to remain silent. In fact, the appellant testified that the only reason he provided

a statement was so “[he] would be able to leave.” On cross-examination, the appellant

conceded that he was advised of his rights prior to his statement. However, he

subsequently recanted his testimony, stating that his rights were not read to him until

after he gave his statement.



       The appellant stated that Betty Thomas was appointed to represent him at trial.

He testified that Ms. Thomas only met with him three times prior to trial for a total of

about an hour. He related that a written motion to suppress was not filed by Ms.

Thomas, although he conceded that an oral motion was made and a hearing held on

that motion. He verified that the only issue raised on direct appeal challenged the

sufficiency of the evidence, although other issues existed which he would have wanted

raised on appeal.



       The State introduced the testimony of Betty Jo Thomas, the appellant’s trial

counsel. Ms Thomas, a veteran member of the Shelby County Public Defender’s

Officer, testified that she visited the appellant “quite a few times because he was a


                                           3
juvenile at the time.” She stated that the appellant did not have any witnesses, and

although he supposedly was with some friends at the time of the murder, these friends

were State witnesses. Ms. Thomas further indicated that she only learned about the

purported alibi during Ms. Pratcher’s post-conviction testimony.



       Regarding the motion to suppress, Ms. Thomas testified that she recalled filing

a boilerplate motion to suppress, although she did not have a copy of the motion in her

possession. She explained that, “because of the age of the case,” the file was sent to

the archives and could not be located. She conceded that this motion may have been

during a juvenile remand, which included an extensive hearing on the suppression

issue. She stated that a written motion was not required by the court and that a hearing

on an oral motion was held prior to trial. She explained that she waited until the day of

the trial to pursue the motion because she was waiting for a psychological evaluation

of the appellant, which would have indicated his competency at the time the statement

was made.



       The trial court denied the appellant’s petition. Specifically, the trial court held,

in portions relevant to the present appeal:

       With regard to the Motion to Suppress, everyone is in agreement that an
       oral motion to suppress was lodged and a hearing was held pursuant to
       that motion. The motion was denied and the case proceeded to trial.
       Trial counsel gave full and adequate explanations for why a written
       motion to suppress was not filed and why the matter was not heard until
       the day of trial. This case had been pending for quite some time and had
       involved a thorough juvenile remand hearing as well as numerous
       psychiatric evaluations and other hearings that necessitated a delay in
       actually hearing the Motion to Suppress.

       With regard to the complaint that there were too few meetings between
       the attorney and client, trial counsel stated that she met on numerous
       occasions with the defendant and consulted with him both in regard to
       pre-trial preparation and simply to reassure him that work was being done
       on his case. In addition to the meetings in the jail that were conducted,
       there were no less than 16 in court report dates during which time the two
       met.

       ...




                                          4
        For all of these reasons . . . trial counsel . . .provided through and
        outstanding representation . . . and . . .her representation far exceeds the
        minimum standards . . . .



                                            Analysis



        In post-conviction proceedings, the appellant must prove the allegations

contained in his petition by a preponderance of the evidence.2 State v. Kerley, 820

S.W.2d 753, 755 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1991); Oliphant

v. State, 806 S.W.2d 215, 218 (Tenn. Crim. App.), perm. to appeal denied, (Tenn.

1991). Findings of fact and conclusions of law made by the trial court are given the

weight of a jury verdict, and, this court is bound by those findings unless the evidence

contained in the record preponderates otherwise. Butler v. State, 789 S.W.2d 898, 899

(Tenn. 1990); Teague v. State, 772 S.W.2d 932, 934 (Tenn. Crim. App. 1988), cert.

denied, 493 U.S. 874, 110 S.Ct. 210 (1989). This court may not reweigh or reevaluate

the evidence or substitute its inferences for those drawn by the trial court. Questions

concerning the credibility of witnesses and the weight and value to be given their

testimony are for resolution by the trial court. Black v. State, 794 S.W.2d 752, 755

(Tenn. Crim. App. 1990).



        In his first challenge, the appellant argues that “the trial court erred in allowing

the statements made by the defendant, while in police custody, to be admitted into

evidence.” The trial court correctly observed that this issue was not raised on direct

appeal and is, therefore, waived. See Tenn. Code Ann. § 40-30-112(b)(1) (repealed

1995). However, the appellant also frames this identical issue as an ineffective

assistance claim, arguing that appellate counsel was ineffective for failing to challenge

the admissibility of his confession. Initially, we note that the appellant failed to raise the

issue of ineffective appellate counsel in his petition for post-conviction relief and he


        2
         The appellant’s pro se petition was filed on February 20, 1995. Accordingly, the
appellant’s burden of proof was by a “preponde rance of the evidence.” See Tenn . Code A nn. §
40-30-105 (repealed 1995).

                                               5
failed to argue it before the trial court.3                   Issues not raised in a petition for post-

conviction relief cannot be raised for the first time on appeal. A post-conviction petition

“must necessarily rest upon and be determined by the factual allegations it contains.”

Lofton v. State, No. 02C01-9603-CR-00073 (Tenn. Crim. App. at Jackson, Mar. 7,

1997), perm. to appeal denied, (Tenn. Oct. 6, 1997). See also Thomas v. State, No.

02C01-9408-CR-00167 (Tenn. Crim. App. at Jackson, Mar. 22, 1995), perm. to appeal

denied, (Jul. 10, 1995). Moreover, the appellant has also failed to prepare an adequate

record; further precluding review of this issue on its merits.4 See Tenn. R. App. P. 24.

 A determination as to the substance of a claim is essential to the determination of

whether counsel’s failure to raise an issue on direct appeal amounted to deficient

performance or that counsel’s failure to raise this issue prejudiced the appellant.5 See

Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 2583 (1986) (to prevail on

ineffectiveness claim involving counsel’s failure to raise legal issue on appeal,

defendant must show that issue has merit.). Accordingly, the issues relating to the

merits of the motion to suppress and failure to raise the issue on appeal are waived.




                                  I. Ineffectiveness of Trial Counsel

         In his only issue properly before this court, the appellant contends that trial

counsel was ineffective for failing to file a written motion to suppress and for failing to

adequately prepare for trial. To succeed in such a challenge, the appellant must show



         3
            In es tablis hing t he ine ffec tivene ss o f app ellate coun sel, th e bur den upon the a ppe llant is
no different than establishing the ineffectiveness of trial counsel. The appellant must prove the
allegation; an allegation sta nding alon e does not cons titute proof. See Clenny v. S tate, 576
S.W .2d 12 (T enn. Cr im. Ap p.1978 ), cert. denied, 441 U.S. 947, 99 S.Ct. 2170 (1979). Indeed,
there is the presum ption that co unsel wa s effec tive. See Barr v. Sta te, 910 S.W.2d 462, 464
(Tenn . Crim. A pp.), perm. to appeal denied, (Tenn . 1995). A ppellate co unsel wa s not ca lled to
testif y at the hear ing, th eref ore, w e are witho ut the bene fit of h is rea son s for failing to rais e this
issue on appea l. Clearly, one su ch reas on cou ld be that ap pellate cou nsel believe d the issu e to
be without merit. Nonetheless, we are not permitted to speculate as to whether appellate counsel
was de ficient.

         4
         W e note tha t the appe llant ma kes nu mer ous refe rences in his brief to the trial transcript.
However, he has failed to include the transcript in the present record, rendering such references
to the record meaningless.

         5
         Although not conclusive to the issue, the record indicates that the appellant signed a
written waiver of his constitutional rights.

                                                         6
that counsel's representation fell below the range of competence demanded of

attorneys in criminal cases, Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and,

that, but for these errors, the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068 (1984); State v.

Melson, 772 S.W.2d 417, 419 n.2 (Tenn.), cert. denied, 493 U.S. 874, 110 S.Ct. 211

(1989). Again, on post-conviction review, there is a strong presumption of satisfactory

representation, Barr, 910 S.W.2d at 464, and the appellant bears the burden of proving

his allegations by a preponderance of the evidence. Taylor v. State, 875 S.W.2d 684,

686 (Tenn. Crim. App. 1993), perm. to appeal denied, (Tenn. 1994).



                      i. Failure to File Written Motion to Suppress

         Again, focusing on the admissibility of his confession, the appellant asserts that

trial counsel was ineffective for failing to file a written motion to suppress according to

Rule 6 of the Shelby County Criminal Court Local Rules of Practice and Procedure.

Although the appellant concedes that an oral motion to suppress was made and heard

by the court, he argues that this procedural “deviation” resulted in deficient

performance. Whether the trial court permitted admission of the appellant’s statement

to the police following an oral motion or a written motion is of no consequence. Under

these facts, neither deficient performance nor prejudice is found. This issue is without

merit.



                              ii. Failure to Prepare for Trial

         In his final allegation, the appellant contends that trial counsel failed to meet with

him to prepare for his defense. Specifically, he claims that counsel only met with him

for a cumulative one hour period prior to trial. He asserts that this failure to meet with

him is indicative of her overall representation of the appellant. The trial court found that

counsel had met with the appellant “numerous times.” The evidence in the record does

not preponderate against these findings. This issue is without merit.




                                             7
       For the reasons discussed herein, the order of the trial court denying the

appellant’s petition for post-conviction relief is affirmed.




                                    ____________________________________
                                    DAVID G. HAYES, Judge



CONCUR:



_______________________________
WILLIAM M. BARKER, JUDGE



_______________________________
JOE G. RILEY, JUDGE




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