         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs January 14, 2004

                CLIFFORD WARD, JR. v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Davidson County
                       No. 2001-A-378    J. Randall Wyatt, Jr., Judge



                    No. M2003-00668-CCA-R3-PC - Filed February 6, 2004


The petitioner, Clifford Ward, Jr., appeals the Davidson County Criminal Court’s denial of his
petition for post-conviction relief from his guilty pleas to two counts of rape of a child, two counts
of aggravated sexual battery, and effective twenty-five-year sentence. He contends that he received
the ineffective assistance of counsel because his trial attorney failed to investigate his case. We
affirm the trial court.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR. and
JOHN EVERETT WILLIAMS, JJ., joined.

Matthew F. Mayo, Nashville, Tennessee, for the appellant, Clifford Ward, Jr.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Victor
S. Johnson, III, District Attorney General; and Brian Keith Holmgren, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

         This case relates to the petitioner’s having sexual contact with his six-year-old daughter from
November 1999 to November 2000. At the guilty plea hearing, the state presented the following
factual account of the crimes: While the petitioner and his family were living in an apartment in
Nashville, the petitioner forced the victim to perform fellatio on him multiple times and had “penis
to vaginal contact” with the victim. In addition, the petitioner would bounce the victim up and down
on his lap, causing him to become sexually aroused. Nasvhille Metropolitan Police Officers
interviewed the petitioner twice, and he acknowledged that he had forced the victim to perform
fellatio on him and had bounced her on his lap.

       At the evidentiary hearing, the petitioner testified that he originally had been charged with
two counts of rape of a child and twelve counts of aggravated sexual battery but pled guilty to the
rapes and only two counts of aggravated sexual battery. He said that he retained his trial attorney
after his preliminary hearing and that he met with his attorney only three or four times at the
courthouse and only once in jail. He said that his attorney went over the charges and possible
penalties with him and that his attorney gave him some of the state’s discovery. He said that his
attorney asked him to look over the discovery materials but that they never discussed them. He
acknowledged giving two audiotaped statements to the police and discussing the statements with his
attorney.

         The petitioner testified that he gave his attorney the names, addresses, and telephone numbers
of witnesses but that his attorney never contacted them. He said that one or two of the witnesses
were coworkers and that the others lived in his apartment complex. He said his attorney should have
gotten his employment records. He said that he and his attorney discussed trying to suppress his
audiotaped statements, that his attorney told him a motion to suppress the statements had been filed,
and that no hearing on the motion was held. He said that at first, his attorney told him and his family
that the state did not have any evidence against him and that he should go to trial. He said that later,
his attorney told him he did not have a defense and advised him to plead guilty. He said that the state
initially offered to let him plead guilty in exchange for a thirty-year sentence but that it later offered
him a twenty-five-year sentence. He said his attorney told him that if he did not accept the state’s
offer, he may never get out of prison. He said he had wanted to go to trial but decided to accept the
state’s plea offer because his attorney was unprepared for trial. He said his attorney would not come
to the jail to talk to him and would not return his telephone calls.

        On cross-examination, the petitioner testified that he was forty-one years old, obtained his
GED while in jail, and was not guilty. He said he did not hear much of what the trial court said
during the guilty plea hearing because both of his hearing aids were broken. He said he told his
attorney about his hearing aids not working but did not tell the trial court. He said that the victim
was lying and that he felt threatened by the police during the interviews. He said that he never
listened to his audiotaped statements but that he did not believe he told the police he had sex with
the victim. He acknowledged that he was not under arrest when he gave the statements and that after
the interviews, he was free to leave. He also acknowledged that he gave the police permission to
search his apartment and that the police found “adult sexual things” during the search. He denied
showing the sexual items to the victim or using them on her.

       The petitioner testified that his attorney should have interviewed his apartment complex
manager and his coworkers. He said that his coworkers would have testified that he worked fourteen
to seventeen hours per day, six days per week and that he could not have committed the crimes
because he was always working. He said his wife did not work, was always at home, and that he was
never alone with the victim. He said his attorney never explained why his statements to the police
could not be suppressed. Upon being questioned by the trial court, the petitioner stated that he
looked over the guilty plea form but did not read all of it. He acknowledged signing the form.

      The petitioner’s trial attorney testified that he had been practicing law since 1995 and had
worked as an assistant district attorney before going into private practice. He said that he had


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represented several hundred criminal defendants and that he had represented three defendants who
had been charged with crimes similar to the petitioner’s crimes. He said that before accepting the
petitioner’s case, he talked with the petitioner twice. He said that after the petitioner retained him,
he met with the petitioner about eight times and filed motions. He said that at first, he believed the
state had a very weak case against the petitioner. He said that after he reviewed the state’s discovery
materials and the petitioner’s audiotaped statements, he told the petitioner that the petitioner
probably would be convicted and should consider pleading guilty. He said that the state lowered its
offer from thirty years to twenty-five years and that about one week before trial, the petitioner began
seriously considering a guilty plea. He said that a few days before trial, the petitioner agreed to plead
guilty.

        The petitioner’s attorney testified that the petitioner was not under arrest when the petitioner
gave two statements to the police and that the statements were highly incriminating. He said that
he saw no legal basis for filing a motion to suppress the statements and that the statements
corroborated some physical evidence in the case. He said the petitioner never told him at the guilty
plea hearing that the petitioner could not hear and never expressed confusion about the guilty plea.
He acknowledged that he went over the guilty plea form with the petitioner and that the petitioner
appeared to understand it. He said he looked at the petitioner’s time cards and talked with the
petitioner’s employer. He said that the petitioner’s witnesses were going to testify that the petitioner
worked many hours and that while it was clear the petitioner worked much of the time, no alibi
defense existed.

        On cross-examination, the attorney testified that the petitioner wanted an opportunity to get
out of prison someday. He said that he did not file a motion for a bill of particulars and that he
talked with the petitioner about raising an issue regarding the fresh complaint doctrine. He said that
he reviewed case law on fresh complaint but concluded it was not a valid issue in the case. He said
that he did not remember the victim’s age and did not interview her but that he read Child Services’
reports about the case. He said that although nothing indicated the victim was lying, the petitioner’s
family had a difficult time believing the victim’s allegations. He said the petitioner told him that the
victim may have been sexually abused by someone when the family lived in an apartment complex
in Colorado. He said he and the petitioner talked about the petitioner taking the stand at trial to
dispute the victim’s allegations. He said that he did not believe the petitioner pled guilty because
the petitioner thought he was unprepared for trial. He said that although he did not read the plea
agreement form to the petitioner word for word, he explained every paragraph of the form to the
petitioner.

        The trial court held that the petitioner’s attorney adequately investigated the case and
discussed the case with the petitioner. It determined that the petitioner chose to plead guilty and that
he understood his rights. The trial court noted that the guilty plea hearing transcript shows the
petitioner “responded intelligently to each question asked of him by the Court, and appeared very
attentive during the proceedings.” It denied the petition for post-conviction relief.




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        The petitioner claims that he had no choice but to plead guilty because his attorney did not
investigate his case adequately, did not interview witnesses, and failed to file a motion for a bill of
particulars. He argues that if his attorney had done these things, “it would have possibly given the
Petitioner a better opportunity to formulate an alibi defense and proceed to trial.” The state argues
that the petitioner received the effective assistance of counsel. We agree with the state.

        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 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 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838,
842-44 (1993). The Strickland standard has been applied to the right to counsel under article I,
section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

        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. Further, the court stated that the range
of competence was to be measured by the duties and criteria set forth in Beasley v. United States,
491 F.2d 687, 696 (6th Cir. 1974), and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir.
1973). Also, 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). Thus, the fact that a particular strategy or tactic failed or even hurt the
defense does not, alone, support a claim of ineffective assistance. Deference is made to trial strategy
or tactical choices if they are informed ones based upon adequate preparation. See Hellard, 629
S.W.2d at 9; DeCoster, 487 F.2d at 1201.

        The burden is on the petitioner to prove his grounds for relief by clear and convincing
evidence. T.C.A. § 40-30-210(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.

        The trial court obviously accredited the petitioner’s trial attorney, who testified that he met
with the petitioner at least eight times, obtained discovery, reviewed the petitioner’s audiotaped
statements, interviewed the petitioner’s wife and employer, and could not establish an alibi defense.
Although the petitioner claims that his attorney should have interviewed other potential witnesses,
none of these witnesses testified at the evidentiary hearing. Without testimony from the witnesses,
the petitioner cannot demonstrate that he was prejudiced by his attorney’s failure to interview them.
See Black v. State, 794 S.W.2d 753, 757 (Tenn. Crim. App. 1990). Regarding the attorney’s failure


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to file a motion for bill of particulars, the petitioner has presented no evidence that his attorney’s
failing to file the motion changed the outcome of his case. Thus, he is not entitled to relief.

       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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