         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs February 8, 2005

                  LA SOUTHAPHANH v. STATE OF TENNESSEE

                     Appeal from the Circuit Court for Rutherford County
                      Nos. F-48867, F-49649    James K. Clayton, Judge



                    No. M2003-02730-CCA-MR3-PC - Filed March 29, 2005


The petitioner, La Southaphanh, appeals from the Rutherford County Circuit Court’s dismissal of
his two petitions for post-conviction relief from his convictions for aggravated burglary, a Class C
felony, aggravated assault, a Class C felony, and theft over one thousand dollars, a Class D felony.
He contends that he received the ineffective assistance of counsel at his trial for aggravated burglary
and theft over one thousand dollars because his attorney failed to move to suppress his confession,
failed to move for a mistrial when his co-defendant stated that the petitioner was in a gang, failed
to attack the credibility of one of the investigating officers, and failed to meet with him and prepare
for trial adequately. He contends that he received the ineffective assistance of counsel at his trial for
aggravated assault because his attorney failed to meet with him and prepare for trial adequately. We
affirm the trial court.

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

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and J. C.
MCLIN , JJ., joined.

Bruce A. Poag, Nashville, Tennessee, for the appellant, La Southaphanh.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
William C. Whitesell, Jr., District Attorney General, for the appellee, State of Tennessee.

                                               OPINION

        This case arises from the petitioner’s convictions at two separate trials. At the first trial, the
jury found the petitioner guilty of aggravated assault for a drive-by shooting into a residence. On
appeal, this court rejected the defendant’s claims that the evidence was insufficient and that his
sentence was excessive. State v. La Southaphanh, No. 01C01-9804-CC-00173, Rutherford County
(Tenn. Crim. App. Feb. 9, 1999), app. denied (Tenn. July 12, 1999). At the second trial, the jury
found the petitioner guilty of aggravated burglary and theft over one thousand dollars for stealing
personal property from a residence. On appeal, this court rejected the defendant’s claim that the
evidence was insufficient. State v. La Southaphanh, No. M1999-00302-CCA-R3-CD, Rutherford
County (Tenn. Crim. App. Mar. 9, 2000), app. denied (Tenn. July 31, 2000).

         The defendant attacked both of his convictions by filing petitions for post-conviction relief
which the trial court consolidated for hearing. On appeal, as in the trial court, the petitioner contends
that the trial court should have granted his petition for post-conviction relief from his aggravated
burglary and theft over one thousand dollars convictions because he received the ineffective
assistance of counsel when his trial attorney failed to file a motion to suppress his confession, failed
to move for a mistrial after the petitioner’s co-defendant testified that the petitioner was a gang
member, failed to impeach properly the credibility of an investigating officer who was a witness at
the trial, and failed to meet with the petitioner and prepare for trial adequately. The petitioner further
contends the trial court should have granted his petition for post-conviction relief from his
aggravated assault conviction because he received the ineffective assistance of counsel when his trial
attorney failed to meet with him and prepare for trial adequately. The state argues that the petitioner
has failed to prove any of his claims of ineffective assistance of counsel by clear and convincing
evidence. We agree with the state.

         At the post-conviction hearing, the petitioner testified that he was not given Miranda
warnings before his confession in the aggravated burglary and theft over one thousand dollars case
and that the only reason he confessed was because he was told he would not be allowed to go home
without confessing. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). He said that in
the interview room, the officer conducting the interrogation slammed a book down on the table and
said that if he did not confess, he would be locked up for a very long time but that if he did confess,
he would be allowed to go home, return for a court date, and given a lesser sentence. He said his
trial attorney never had a conversation with him about filing a motion to suppress the confession.
He said this failure was unduly and unfairly prejudicial. He said his trial attorney never discussed
with him the possibility of asking for a mistrial if his co-defendant, Mr. Xayaphaoumy, testified that
the petitioner was a gang member. The petitioner said his trial attorney was ineffective for not
attacking the credibility of one of the investigating officers in the case. The petitioner said that his
trial attorney “could have asked more questions or, you know, bring up more stuff, you know, some
useful thing.”

        The petitioner testified that, applicable to both his trials, his trial attorney never came and
talked to him while he was in the county jail awaiting trial. He said his trial attorney never talked
to him about either case until the day of the trials, never rehearsed his possible testimony with him
for either trial, never discussed trial strategy with him for either trial, and never prepared for the trials
with him. The petitioner said he was prejudiced by his attorney’s failure to prepare for trial
adequately.

       The petitioner’s trial attorney testified that he had been licensed to practice law in Tennessee
since 1984. He said that he met with the petitioner on many different occasions before both trials.
He said that on some occasions, other members of the public defender’s office were present but that
on other occasions, he met alone with the petitioner. He said he conducted several discovery


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conferences with the petitioner and went over the evidence and discussed plea bargain offers in the
different cases with the petitioner. He said he did not rehearse testimony with the petitioner because
he does not believe in doing so.

        The petitioner’s trial attorney testified that he reviewed all of the information surrounding
the petitioner’s confession and discovered that the petitioner had signed a waiver of his Miranda
rights. He said that because of the waiver, he had no justifiable basis for moving to suppress the
confession. He said he did not file motions to suppress just for the sake of filing them.

        The petitioner’s trial attorney said he objected when the co-defendant stated during testimony
that the petitioner was a gang member. He said that the objection was sustained and that the trial
court instructed the jury to disregard the statement. He said he did not move for a mistrial because
in his experience he usually was not granted a mistrial when he had an objection sustained.

       After considering the evidence presented at the post-conviction hearing, the trial court
concluded that the petitioner’s trial attorney provided him the effective assistance of counsel. It also
found that the petitioner’s numerous grievances were not supported by the evidence presented at the
hearing. Therefore, the trial court dismissed the petition for post-conviction relief.

        The burden in a post-conviction proceeding is on the petitioner to prove his grounds for relief
by clear and convincing evidence. T.C.A. § 40-30-110(f). On appeal, we are bound by the trial
court’s findings of fact unless we conclude that the evidence in the record preponderates against
those findings. Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001). Because they relate to mixed
questions of law and fact, we review the trial court’s conclusions as to whether counsel’s
performance was deficient and whether that deficiency was prejudicial under a de novo standard with
no presumption of correctness. Id. at 457.

        Under the Sixth Amendment, when a claim of ineffective assistance of counsel is made, the
burden is on the petitioner to show (1) that counsel’s performance was deficient and (2) that the
deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838, 842-44 (1993). In other
words, a showing that counsel’s performance falls below a reasonable standard is not enough; rather,
the petitioner must also show that but for the substandard performance, “the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that attorneys should be held to the
general standard of whether the services rendered were within the range of competence demanded
of attorneys in criminal cases. In reviewing counsel’s conduct, a “fair assessment of attorney
performance requires that every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see Hellard v.
State, 629 S.W.2d 4, 9 (Tenn. 1982).




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         Regarding the petitioner’s appeal of the trial court’s dismissal of his petition for post-
conviction relief from his convictions for aggravated burglary and theft over one thousand dollars,
the petitioner’s attorney testified at the post-conviction hearing that because the petitioner waived
his Miranda rights in writing, a motion to suppress the confession would have been futile. He further
testified that he met with the petitioner numerous times and that they prepared for his upcoming
trials. Finally, he testified that he objected when the petitioner’s co-defendant said he was a member
of a gang and that the trial court gave a curative instruction to the jury. We conclude that the
evidence does not preponderate against the trial court’s findings and that the petitioner’s attorney’s
performance was not deficient.

        Regarding the petitioner’s appeal of the trial court’s dismissal of his petition for post-
conviction relief from his conviction for aggravated assault, the petitioner’s attorney testified at the
post-conviction hearing that he met with the petitioner numerous times and that they prepared for
his upcoming trials. We again conclude that the petitioner’s attorney’s performance was not
deficient.

       Based upon the foregoing and the record as a whole, we affirm the judgment of the trial court.



                                                        ___________________________________
                                                        JOSEPH M. TIPTON, JUDGE




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