         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs December 2, 2003

                     WILLIE BAILEY v. STATE OF TENNESSEE

                    Direct Appeal from the Circuit Court for Tipton County
                           No. 3179 Joseph H. Walker, III, Judge



                    No. W2003-00977-CCA-R3-PC - Filed February 4, 2004


A Tipton County jury convicted the Petitioner, Willie Bailey, of aggravated robbery and felony
possession of a handgun, and the trial court sentenced him to twenty-six years in prison. On direct
appeal, this Court affirmed the Petitioner’s sentence, and the Tennessee Supreme Court denied the
Petitioner’s application for permission to appeal. The Petitioner then sought post-conviction relief,
alleging that he was denied effective assistance of counsel. Following a hearing on the post-
conviction petition, the trial court dismissed the petition. On appeal, the Petitioner contends that he
was denied effective assistance of counsel for the following reasons: (1) trial counsel failed to
stipulate to the Petitioner’s felony status during the trial; and (2) trial counsel failed to file the trial
transcript with the appellate court on direct appeal. Finding no error, we affirm the post-conviction
court’s dismissal of the petition.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JAMES CURWOOD WITT ,
JR., and ALAN E. GLENN , JJ., joined.

J. Barney Witherington, IV, Covington, Tennessee, for the appellant, Willie Bailey.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Kathy D.
Aslinger, Assistant Attorney General; Elizabeth T. Rice, District Attorney General, and Walt
Freeland, Assistant District Attorney General, for the appellee, State of Tennessee.

                                                 Opinion
                                                 I. Facts

        The underlying facts of the Petitioner’s case are not clear because no trial transcript was filed
either on direct appeal or on appeal from the post-conviction hearing. However, in its order denying
post-conviction relief, the post-conviction court summarized the facts of the Petitioner’s trial as
follows:
      The defendant was charged with being a convicted felon in possession of a
handgun and aggravated robbery. He was convicted of both counts.

       The clerk was called to introduce records of the criminal convictions of
defendant. The defendant had a prior conviction of robbery. The Court allowed the
testimony about the conviction, but gave the jury an immediate instruction that was
to be considered only for count two with regard to possession of a weapon by a
convicted felon, and could not be considered for any reason with regard to aggravated
robbery, and could not be considered as proof of his disposition to commit the crime
of aggravated robbery for which he is on trial in count one.

         Kum Sook Kitzmiller testified that she operated a beauty supply business in
Covington, and that on November 6, 1996, she was closing the store and had counted
the money and put it in her purse, and had left some in the register. Two men came
in the store and said they were looking for an earring. They shopped and purchased
an earring. The tall man pulled a gun on her. She could describe his appearance and
clothes. They forced her to open the register and took the money from the register,
and took her purse. The shorter man took the money out of her purse. She called the
police. She gave police an accurate description of the robbers and the money taken.
She identified the defendant at trial as the taller of the two robbers.

       Toinette Smith testified that she saw the defendant at the apartment of
Tammy Williams on the day of the robbery. The defendant was wearing the same
clothing described by Ms. Kitzmiller. At a time after the robbery, the defendant
changed clothing at the apartment. She heard the defendant say that the police were
outside, and the defendant went to the back bedroom. She heard the defendant say
he had a gun.

        Tammy Williams testified that she was Anthony Allen’s girlfriend and knows
the defendant. Allen is shorter than the defendant. Both Allen and the defendant
were at her apartment earlier on the day of the robbery, and Allen had a gun. They
left and were gone only a few minutes and then came back to the apartment and
changed clothes. The police showed up shortly afterwards. The clothes that Allen
and the defendant took off were recovered and same as identified by Ms. Kitzmiller.
Williams observed police recover money from her child’s toy that was not there
before the defendant and Allen hid in the room. Her apartment is very near the
business of Ms. Kitzmiller that was robbed.

        Linda Gamblin testified that she was present when the defendant was brought
into the justice center on the night of the robbery. The defendant was with Mr. Allen,
and Tony Moss, who was deceased at the time of the trial. She heard Ms. Kitzmiller
state that Tony Moss was not one of the men who robbe[d] her. Ms. Kitzmiller
described to her the amount of money and the denomination and number of bills


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       taken, which corresponded with the money recovered from Ms. Williams’ apartment.
       Ms. Kitzmiller identified the clothing that was recovered from Ms. Williams’
       apartment as being the same clothing worn by the tall robber with the gun.

               Telford Oren testified that he went to the apartment of Ms. Williams shortly
       after the robbery and found the defendant [lying] on the bed. Mr. Allen was hiding
       in the closet. The defendant stated that he had just been asleep, but he was sweating
       and the room was not hot. A pistol was recovered. Someone told police that two
       men just ran into the apartment.

              Scott Johnson testified the he was dispatched to a robbery call, and that within
       a few minutes had the defendant in custody.

               The defendant elected not to testify. The defendant was questioned by the
       Court whether it was his decision not to testify, and that if he wanted to testify a
       hearing would be held to determine which, if any, convictions could be used for
       impeachment purposes. [The defendant] indicated that he did not wish to testify, and
       that he understood that the case would be submitted to the jury without hearing his
       testimony.

        A Tipton County jury convicted the Petitioner of aggravated robbery and felony possession
of a handgun, and the trial court sentenced the Petitioner as a persistent Range III offender to twenty-
six years of incarceration for the aggravated robbery conviction and five years of incarceration for
the felony possession of a handgun, with the sentences to be served concurrently. This Court
affirmed the Petitioner’s sentence on direct appeal, and the Tennessee Supreme Court denied the
Petitioner’s application for permission to appeal. State v. Willie Bailey, No. W1999-01886-CCA-
R3-CD, 2000 WL 73711, at *1 (Tenn. Crim. App., at Jackson, Jan. 25, 2000), perm. app. denied
(Tenn. Dec. 31, 2001). Thereafter, the Petitioner filed a pro se post-conviction petition, and the
post-conviction court appointed J. Barney Witherington, IV, to represent the Petitioner in this matter.
Witherington filed an amendment to Petitioner’s original petition for post-conviction relief and
asserted that the Petitioner should be granted post-conviction relief based upon ineffective assistance
of counsel. The post-conviction court conducted a hearing on the amended petition on March 24,
2003, and subsequently dismissed the petition. The Petitioner filed a timely notice of appeal.

       The following evidence was presented at the post-conviction hearing. The Petitioner testified
that Cyburn H. Sullivan, III, (“Counsel”) represented him at his trial. He stated that Counsel only
met with him twice before the trial and that the meetings lasted approximately fifteen minutes and
occurred about a week before the trial. The Petitioner explained that Counsel did not inform him
about any specific trial strategies. He reported that he told Counsel about potential witnesses, but
Counsel did not investigate them or call them to the stand. The Petitioner stated that Counsel
advised him not to take the stand at trial, and he followed Counsel’s advice. He explained that he
wanted to testify “because I know I didn’t do this . . . .” He stated that he wanted to appeal both his
convictions and the sentencing on appeal, but only his sentencing was ultimately appealed. The


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Petitioner explained that Counsel did not file the trial transcript with the appellate court because the
trial judge told Counsel not to send the transcript.

        On cross-examination, the Petitioner testified that he did not actually know any witnesses
who would have helped his case at trial. He stated that Counsel should have used some sort of
strategy at his trial. The Petitioner explained that Counsel should have prevented the testimony
about his previous conviction for robbery from getting to the jury because the jury may have
convicted him of aggravated robbery based on that testimony. He stated that Counsel should have
asked the State to fingerprint him and the gun so his fingerprints could be compared to those on the
gun.

         The Petitioner then called Counsel to testify. Counsel testified that he could not recall how
many times he met with the Petitioner before trial or how long the meetings lasted. He stated that
the Petitioner never gave him any names of potential witnesses to interview. Counsel explained that
he visited the crime scene but did not take any measurements. He stated that the only times he
questioned the victim were at the preliminary hearing and at trial. Counsel testified that he recalled
the testimony about the Petitioner’s prior conviction of robbery. When asked if he felt that testimony
would be prejudicial to the Petitioner, Counsel replied that he did not have an opinion as to whether
the testimony was prejudicial. Counsel admitted that the testimony about the Petitioner’s prior
conviction was not helpful to the Petitioner’s case. He explained that he did not offer to stipulate
to the Petitioner’s status as a felon because the case law did not require him to do so at that time.
Counsel admitted that it was his responsibility to file the trial transcript with the appellate court and
that the appellate court might have reduced the Petitioner’s sentence if it had reviewed the transcript.

                                                   II. Analysis

        In order to obtain post-conviction relief, a petitioner must show that his or her conviction or
sentence is void or voidable because of the abridgment of a constitutional right. Tenn. Code Ann.
§ 40-30-203 (1997).1 The petitioner bears the burden of proving factual allegations in the petition
for post-conviction relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997).
A post-conviction court’s factual findings are subject to a de novo review by this Court; however,
we must accord these factual findings a presumption of correctness, which is overcome only when
a preponderance of the evidence is contrary to the post-conviction court’s factual findings. Fields
v. State, 40 S.W.3d 450, 456 (Tenn. 2001). A post-conviction court’s conclusions of law are subject
to a purely de novo review by this Court, with no presumption of correctness. Id. at 457. The
Tennessee Supreme Court has held that the issue of ineffective assistance of counsel is a mixed
question of law and fact and, as such, is subject to de novo review. State v. Burns, 6 S.W.3d 453,
461 (Tenn. 1999).



         1
           W e note that the 2003 amendment to the Post Conviction Procedure Act, Public Acts 1995, chapter 207,
section 1, changed the numbering of the general provisions part of the chapter to Tennessee Code Annotated section 40-
30-101, et seq.

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        The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and Article I, section 9, of the Tennessee Constitution.
Id.; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). This right to representation includes the
right to “reasonably effective” assistance. Burns, 6 S.W.3d at 461. In reviewing a claim of
ineffective assistance of counsel, this Court must determine whether the advice given or services
rendered by the attorney are within the range of competence demanded of attorneys in criminal cases.
Baxter, 523 S.W.2d at 936. To prevail on a claim of ineffective assistance of counsel, a petitioner
must show that “counsel’s representation fell below an objective standard of reasonableness,”
Strickland v. Washington, 466 U.S. 668, 688 (1984), and that this performance prejudiced the
defense, resulting in a failure to produce a reliable result. Id. at 687; Cooper v. State, 849 S.W.2d
744, 747 (Tenn. 1993). To satisfy the requirement of prejudice, a petitioner must show a reasonable
probability that, but for counsel’s unreasonable error, the fact finder would have had reasonable
doubt regarding the petitioner’s guilt. Strickland, 466 U.S. at 695. This reasonable probability must
be “sufficient to undermine confidence in the outcome.” Id. at 694; see also Harris v. State, 875
S.W.2d 662, 665 (Tenn. 1994).


        When evaluating an ineffective assistance of counsel claim, the reviewing court should judge
the attorney’s performance within the context of the case as a whole, taking into account all relevant
circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim.
App. 1988). The reviewing court must evaluate the questionable conduct from the attorney’s
perspective at the time. Strickland, 466 U.S. at 690; Cooper, 849 S.W.2d at 746; Hellard v. State,
629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court must be highly deferential and
“should indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Burns, 6 S.W.3d at 462. Counsel should not be deemed to have
been ineffective merely because a different procedure or strategy might have produced a different
result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980).


        On appeal, the Petitioner contends that the post-conviction court erred when it found that he
was not denied effective assistance of counsel based upon two grounds: (1) Counsel failed to
stipulate to the Petitioner’s felony status at trial for the purpose of the felony possession of a handgun
charge; and (2) Counsel failed to file the trial transcript with the appellate court on direct appeal.


                                    A. Felony Status Stipulation
         The Petitioner contends that Counsel’s failure to stipulate to Petitioner’s felony status during
his trial constituted ineffective assistance of counsel. The Petitioner relies upon State v. James, 81
S.W.3d 751 (Tenn. 2002), which states that:


        [W]hen the sole purpose of introducing evidence of a defendant’s prior convictions
        is to prove the status element of the offense, and when the defendant offers to
        stipulate his status as a felon, the probative value of the evidence is, as a matter of


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       law, outweighed by the risk of unfair prejudice.


Id. at 762. However, the James court did not hold that a defense attorney is required to stipulate to
the defendant’s felony status or that a defense attorney’s failure to do so renders his assistance
ineffective. The Tennessee Supreme Court recognized that “[t]his jurisdiction has long held that the
name or nature of crimes other than that for which the defendant is on trial is relevant to establish
an essential element of the crime for which the defendant is being tried.” Id. at 760 (citing State v.
Wingard, 891 S.W.2d 628, 633-34 (Tenn. Crim. App. 1994); State v. Blackmon, 701 S.W.2d 228,
232 (Tenn. Crim. App. 1985); Lacey v. State, 506 S.W.2d 809, 811 (Tenn. Crim. App. 1974)).


        In this case, the Petitioner was charged with aggravated robbery and felony possession of a
handgun. A person commits the crime of felony possession of a handgun when the person possesses
a handgun and: “(A) [h]as been convicted of a felony involving the use or attempted use of force,
violence or a deadly weapon; or (B) [h]as been convicted of a felony drug offense.” Tenn. Code
Ann. § 39-17-1307(b)(1)(A), (B) (1997). Therefore, in order for the State to convict the Petitioner
of felony possession of a handgun, it had to prove beyond a reasonable doubt that the Petitioner
possessed a handgun and had a previous felony conviction involving “the use or attempted use of
force, violence or a deadly weapon” or a previous conviction of a felony drug offense. In the trial
court’s order, it made the following findings regarding this testimony at trial:


              The clerk was called to introduce records of the criminal convictions of
       defendant. The defendant had a prior conviction of robbery. The Court allowed the
       testimony about the conviction, but gave the jury an immediate instruction that was
       to be considered only for count two with regard to possession of a weapon by a
       convicted felon, and could not be considered for any reason with regard to aggravated
       robbery, and could not be considered as proof of his disposition to commit the crime
       of aggravated robbery for which he is on trial in count one.


From these findings, we cannot determine the nature of the Petitioner’s prior convictions, other than
his prior conviction for robbery. Apparently, Counsel did not object to the State’s introduction of
the Petitioner’s prior conviction for robbery in order to prove that the Petitioner had a prior
conviction involving the use or attempted use of force, violence or a deadly weapon.


        After reviewing the limited record before us and the trial court’s findings, we conclude that
Counsel’s decision not to stipulate to the Petitioner’s prior felony conviction that would prohibit him
from carrying a weapon falls below an objective standard of reasonableness in the legal profession
and is not within the range of competence demanded of attorneys in criminal cases. Strickland, 466
U.S. at 688; Baxter, 523 S.W.2d at 936. Under the circumstances of this case, Counsel should have
stipulated that, at the time of the alleged offense of felony possession of a handgun, the Petitioner
had been convicted of a felony that would prohibit him from carrying a weapon under Tennessee

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Code Annotated section 39-17-1307(b)(1)(A), (B). By so stipulating, Counsel would have prevented
the jury from learning that the Petitioner’s prior felony conviction was for robbery, the same crime
for which he was on trial. We conclude that Counsel’s failure to stipulate in this case was
inexcusable because the Petitioner was on trial for aggravated robbery, and the Petitioner’s prior
robbery conviction had the potential to prejudice the Petitioner.


        However, even though we conclude that Counsel’s failure to stipulate in this case fell below
an objective standard of reasonableness in the legal profession , the Petitioner failed to prove that
his defense was prejudiced, resulting in a failure to produce a reliable result. Strickland, 466 U.S.
at 687. As the trial court noted in its findings, the evidence at trial was substantial against the
Petitioner, and the trial court immediately gave curative instructions that the Petitioner’s prior
robbery conviction should only be considered for the count of the indictment concerning felony
possession of a handgun. Accordingly, we conclude that the Petitioner is not entitled to post-
conviction relief on this issue.


                                         B. Trial Transcript
         The Petitioner next contends that Counsel’s failure to file the trial transcript with the
appellate court on direct appeal constituted ineffective assistance of counsel. The appellant in a
criminal case has the responsibility to prepare a transcript of “such part of the evidence or
proceedings as is necessary to convey a fair, accurate and complete account of what transpired with
respect to those issue that are the bases of appeal.” Tenn. R. App. P. 24(b). The appellant then must
file the transcript with the clerk of the trial court within ninety days after filing the notice of appeal.
Id. Because the burden is upon the defendant to demonstrate the impropriety of his or her sentence,
see State v. Wilkerson, 905 S.W.2d 933, 934 (Tenn. 1995), “failure to include a transcript of the trial
makes it impossible for [this Court] to conduct an appropriate de novo consideration of the case or
to determine whether the trial court erred relative to its determinations which were based in any part
on that evidence.” State v. Hayes, 894 S.W.2d 298, 300 (Tenn. Crim. App. 1994).


        On direct appeal, the Petitioner presented two issues for review: (1) whether the trial court
erred by sentencing the appellant as a persistent offender; and (2) whether the trial court misapplied
certain enhancement factors. Bailey, 2000 WL 73711, at *1. In this Court’s opinion on Petitioner’s
direct appeal, we held that, “[n]otwithstanding the absence of the transcript of the trial, the record
establishes that the trial court correctly sentenced the appellant as a persistent Range III offender.”
Id. We further held that:


        Although the State concedes that the trial court improperly applied these two
        enhancement factors, we have no way of determining what an appropriate sentence
        should be in the absence of such enhancement factors. . . . In summary, in order to
        fully assess the issues raised by the appellant, this court must consider, among other
        things, the evidence received at trial and the nature and characteristics of the crime.


                                                   -7-
        Because the record does not contain a transcript of the trial, we are unable to
        determine what an appropriate sentence should be. In the absence of a complete
        record, we decline to disturb the sentencing determinations of the trial court.


Id. Counsel admitted that it was his responsibility to file the trial transcript with the appellate court
and that the appellate court might have reduced the Petitioner’s sentence if it had reviewed the
transcript. We conclude that Counsel’s failure to file the trial transcript falls below an objective
standard of reasonableness in the legal profession and is not within the range of competence
demanded of attorneys in criminal cases. Strickland, 466 U.S. at 688; Baxter, 523 S.W.2d at 936.

         Having found that Counsel’s failure to file a trial transcript in this case fell below an
objective standard of reasonableness in the legal profession, we now turn to the prejudice prong of
the ineffective assistance of counsel analysis. The Petitioner contends that “Counsel’s failure with
regard to the transcript is evident by his own admission and the prejudicial effect is directly apparent
in the ruling of this Court in Defendant’s original appeal.” We disagree with the Petitioner’s
assertion that the prejudicial effect is “directly apparent in the ruling of this Court” on direct appeal.
On direct appeal, we explained, “Because the record does not contain a transcript of the trial, we are
unable to determine what an appropriate sentence should be. In the absence of a complete record,
we decline to disturb the sentencing determinations of the trial court.” Bailey, 2000 WL 73711, at
*1. Nothing in our holding suggests that we would have necessarily reached a different result had
the trial transcript been included. Moreover, the Petitioner failed to include either the trial transcript
or the sentencing hearing transcript on appeal from the post-conviction hearing. Without the trial
transcript and the sentencing hearing transcript, we are unable to determine whether the Petitioner’s
original sentence was erroneous. The Petitioner failed to provide any evidence at the post-conviction
hearing that showed by clear and convincing evidence that his defense was prejudiced as a result of
Counsel’s error, resulting in a failure to produce a reliable result. Strickland, 466 U.S. at 687.
Accordingly, we conclude that the Petitioner is not entitled to post-conviction relief on this issue.
                                           III. Conclusion


        In accordance with the foregoing authorities and reasoning, we conclude that the Petitioner
has failed to prove ineffective assistance of counsel by clear and convincing evidence, and the post-
conviction court did not err by finding that the Petitioner received effective assistance of counsel and
dismissing his petition. Therefore, we AFFIRM the post-conviction court’s judgment.



                                                         ___________________________________
                                                         ROBERT W. WEDEMEYER, JUDGE




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