         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs July 11, 2001

                     JAMES DUMAS v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                           No. P21475    L. Terry Lafferty, Judge



                    No. W2000-01814-CCA-R3-PC - Filed August 9, 2001


The petitioner filed a petition for post-conviction relief, claiming that he had received ineffective
assistance of counsel during the sentencing hearing following his trial in which he was convicted of
second degree murder. Specifically, he argues that trial counsel should have presented evidence of
his youth and mental condition. The petitioner appealed after being denied relief by the post-
conviction court. Based upon our review, we affirm the judgment of the post-conviction court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which DAVID G. HAYES and JERRY L.
SMITH, JJ., joined.

Robert Little (on appeal) and John E. Finklea (at trial), Memphis, Tennessee, for the appellant, James
Dumas.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Kim R.
Helper, Assistant Attorney General; William L. Gibbons, District Attorney General; and Daniel R.
Woody, Assistant District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                         BACKGROUND
        The petitioner, James Dumas, is presently serving a twenty-five-year sentence in the
Tennessee Department of Correction for second degree murder. In this appeal as of right, petitioner
challenges the denial of his petition for post-conviction relief in the Criminal Court for Shelby
County. The petitioner presents one issue for our review: whether he was denied his constitutional
right to effective assistance of counsel. Petitioner’s assertion that trial counsel was ineffective is
based on the performance of counsel at his sentencing hearing.1 Specifically, petitioner argues that
counsel failed to present mitigating evidence that: (a) because of his youth, petitioner lacked
substantial judgment in committing the offense (mitigating factor (6)); (b) petitioner suffered from
a mental condition that significantly reduced his culpability for the offense (mitigating factor (8));
and (c) because of his borderline intellectual functioning and mild visual motor processing deficits,
petitioner lacked insight and judgment (mitigating factor (13)). See Tenn. Code Ann. § 40-35-
113(6), (8), and (13). Following a hearing at which both the petitioner and trial counsel testified,
the post-conviction court issued its order denying relief. We have reviewed the entire record and
affirm the judgment of the post-conviction court.2

                                                          FACTS

        The procedural history of this case is lengthy. The record indicates that the murder was
committed on May 12, 1993, when the defendant was three months shy of his eighteenth birthday.
Following a jury trial at which he was represented by retained counsel, petitioner was convicted of
first degree murder on June 23, 1994, and sentenced to life in prison. He appealed the conviction,
and this court determined that the evidence was insufficient to support a conviction for first degree
murder but did support a conviction for second degree murder. We remanded the case to the trial
court for resentencing. See State v. James Dumas, No. 02C01-9502-CR-00031, 1995 WL 580931


         1
           Various other claim s are alleged in petitioner’s pro se petition, but petitioner’s Second Amended Petition for
Post-Conviction Relief, dated November 30, 1999, presents, as the sole ground for relief, the ineffective assistance of
counsel at the sentencing phase, based on the failure of trial counsel to develop and present certain mitigating evidence.
In his brief, petitio ner asserts th at his trial coun sel failed to in troduce evidence at his trial of a mental condition that
would have negated an element of the offense, supposedly, the intent to c omm it the crime . This allegation is nowhere
supported by argu ment, citatio n, or refere nce to the record. T his issue is wa ived. See Tenn. C t. Crim. App. R. 10(b).
Even if not waived, nothing in the psychological report of Dr. Parr indicates that the petitioner has, or has ever h ad, a
mental c ondition that wou ld preclud e his form ing the inte nt to shoo t the victim.

         2
          As a prelimin ary ma tter, we no te that the State asserts for the first time on appeal th at the petition er’s claim
is time-barred. Rule 49(c) of the Tenne ssee Rules of Crim inal Proce dure, in effect at the time of this petition, pro vides,
in pertinent part, the following:

                   If petitions for post conviction relief or other p apers are p repared by or on behalf
                   of a pro se litigant incarcerated in a correctional facility, filing shall be timely if the
                   papers are delivered to the app ropriate individu al at the corre ctional facility within
                   the time fix ed for filing .

According to the record, judgment was final in this cause on June 1, 1998; th ereafter, pe titioner had one yea r to timely
file his petition fo r post-con viction relief . See Tenn. C ode An n. § 40-30-202 (1997). The petition was filed in the
Shelby County Criminal Court Clerk’s Office on June 17, 1999. We are unable to determine from the record before
us whether the petition was delivered to “the appropriate individual at the correctional facility within the time fixed for
filing.” See Neely v. State, 34 S.W .3d 879 , 880 (T enn. Crim . App.), perm. to appeal denied (Tenn. 2000). The issue
was not raised b efore the p ost-conv iction cou rt, and the hearing on the merits was held on June 12, 2000, without
discussion of timeliness. G iven fair no tice, the petition er migh t have be en able to produce the necessary documentation
to show a time ly filing from prison . Accordingly , we will consider the petition on its merits.

                                                              -2-
(Tenn. Crim. App. Oct. 4, 1995). After a sentencing hearing following the remand, the petitioner
was ordered to serve the maximum sentence of twenty-five years as a Range I, standard offender for
second degree murder. He appealed that sentence. The judgment of the trial court was affirmed by
this court. See State v. James Dumas, No. 02C01-9610-CR-00368, 1997 WL 584287 (Tenn. Crim.
App. Sept. 19, 1997), perm. to appeal denied (Tenn. June 1, 1998). Petitioner then filed a petition
for post-conviction relief, and a hearing was held at which he was represented by appointed counsel.
Relief was denied, and the petitioner appealed. It is the denial of relief that is the subject of this
appeal.

       The facts of this case, as set out in State v. James Dumas, 1995 WL 580931, at *1, are
uncontroverted:

                       The evidence adduced at trial, in the light most favorable to
               the State, revealed that at about 9:00 p.m. on the evening of May 12,
               1993, James Henry Ballard was walking down Sun Crest Avenue in
               Memphis when he saw the victim’s white Mustang parked near the
               side of Sun Crest Drive. The appellant was standing at the driver’s
               side door of the car. Ballard kept walking toward and then past the
               Mustang, and was approximately thirty to forty feet past the car when
               he heard someone say, “drop it off,” followed by a gunshot. When
               Ballard turned around, he saw the Mustang automobile being driven
               down the street. The appellant was standing in the middle of the
               street holding a pistol. The appellant put the pistol in his pocket,
               looked around, and took off running. Ballard testified that he
               continued walking in the same direction that the Mustang had taken,
               and upon topping a hill, he saw that the Mustang had crashed into a
               tree. It was later discovered that the sole occupant of the Mustang
               was the victim, and that he had sustained a fatal gunshot wound to the
               chest. A twenty-dollar bill was found in the front floorboard of the
               automobile.

The evidence further showed that the victim, a cocaine addict, was a regular customer of the
petitioner’s. This court described the case as one that might be called “‘a drug deal gone bad.’” Id.

        Although the petitioner did not testify at his trial, he had maintained that he was not even on
the street at the time of the shooting. Two alibi witnesses testified on his behalf, one petitioner’s
brother. At his April 3, 1996, sentencing hearing, the petitioner still vigorously maintained his
complete innocence:

               Your Honor, I will be back in court again on appeal on my second-
               degree murder because I didn’t kill nobody. So you-all will see me
               again on -- on -- I’m going to appeal this, whatever you sentence me,


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               Judge, and I’ll be back again. Before it’s all over with, I believe I’m
               going to -- I’m going to beat all of it because I didn’t kill nobody.

       Some four years after this statement, the petitioner testified to the following at his post-
conviction hearing, admitting for the first time that he had killed the victim:

               Q. You are telling the Court something different now than you did
               at that time; is that correct?

               A. Yes, sir.

               Q. What are you saying now about what happened?

               A. You know, that at first I was saying I didn’t have nothing to do
               with it, you know. I pleaded not guilty to the case. I pleaded not
               guilty to the case. I said I didn’t have nothing to do with [it]. Over
               the years I sat and thought about it and came to my senses, you know.
               The only way I can get some forgiveness for this is admitting to it,
               you know.

               Q. And did you in fact kill this man?

               A. Yes, sir. I killed - - yeah.

                                            ANALYSIS

                                      I. Standard of Review

         The post-conviction petitioner bears the burden of proving his allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-210(f). When an evidentiary hearing is held
in the post-conviction setting, the findings of fact made by the court are conclusive on appeal unless
the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996).
Where appellate review involves purely factual issues, the appellate court should not reweigh or
reevaluate the evidence. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, review
of a trial court’s application of the law to the facts of the case is de novo, with no presumption of
correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issues of deficient performance
of counsel and possible prejudice to the defense are mixed questions of law and fact and, thus,
subject to de novo review by the appellate court. See State v. Burns, 6 S.W.3d 453, 461 (Tenn.
1999).




                                                 -4-
                              II. Ineffective Assistance of Counsel

        Petitioner argues that his trial counsel was ineffective in that he failed to present any
mitigating factors at petitioner’s sentencing hearing following the remand of his case. It is the
petitioner’s contention that had his counsel presented mitigating factors based on the psychological
report of Dr. Parr and on petitioner’s age, he would have received a lesser sentence.

                                      A. Applicable Standard

        In order to determine the competence of counsel, Tennessee courts have applied standards
developed in federal case law. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997)
(noting that the same standard for determining ineffective assistance of counsel that is applied in
federal cases also applies in Tennessee). The U.S. Supreme Court articulated the standard in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which is widely
accepted as the appropriate standard for all claims of a convicted petitioner that counsel’s assistance
was defective. The standard is firmly grounded in the belief that counsel plays a role that is “critical
to the ability of the adversarial system to produce just results.” Id. at 685, 104 S. Ct. at 2063. The
Strickland standard is a two-prong test:

               First, the defendant must show that counsel’s performance was
               deficient. This requires showing that counsel made errors so serious
               that counsel was not functioning as the “counsel” guaranteed the
               defendant by the Sixth Amendment. Second, the defendant must
               show that the deficient performance prejudiced the defense. This
               requires showing that counsel’s errors were so serious as to deprive
               the defendant of a fair trial, a trial whose result is reliable.

Id. at 687, 104 S. Ct. at 2064. The Strickland Court further explained the meaning of “deficient
performance” in the first prong of the test in the following way:

               In any case presenting an ineffectiveness claim, the performance
               inquiry must be whether counsel’s assistance was reasonable
               considering all the circumstances. . . . No particular set of detailed
               rules for counsel’s conduct can satisfactorily take account of the
               variety of circumstances faced by defense counsel or the range of
               legitimate decisions regarding how best to represent a criminal
               defendant.

Id. at 688-89, 104 S. Ct. at 2065. Petitioner must therefore, establish that “the advice given or the
service rendered was not within the range of competence demanded of attorneys in criminal cases[.]”
Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991).



                                                  -5-
        As for the prejudice prong of the test, the Strickland Court stated: “The defendant must
show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” 466 U.S. at 694, 104 S. Ct. at 2068; see also Overton v.
State, 874 S.W.2d 6, 11 (Tenn. 1994) (holding that petitioner failed to establish that “there is a
reasonable probability that, but for counsel’s errors, the outcome of the proceedings would have been
different”).

        Courts need not approach the Strickland test in a specific order or even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S. at 697,
104 S. Ct. at 2069; see also Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (stating that “failure
to prove either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).

         The reviewing court must indulge a strong presumption that the conduct of counsel falls
within the range of reasonable professional assistance, see Strickland, 466 U.S. at 690, 104 S. Ct.
at 2066, and may not second-guess the tactical and strategic choices made by trial counsel unless
those choices were uninformed because of inadequate preparation. See Hellard v. State, 629 S.W.2d
4, 9 (Tenn. 1982). The fact that a strategy or tactic failed or hurt the defense does not alone support
the claim of ineffective assistance of counsel. See Thompson v. State, 958 S.W.2d 156, 165 (Tenn.
Crim. App. 1997). Finally, a person charged with a criminal offense is not entitled to perfect
representation. See Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996).

                                    B. Performance of Counsel

        In the first prong of the Strickland test, petitioner must show that counsel’s performance was
deficient in that it fell below the level of competence demanded of attorneys in criminal cases. Here,
the petitioner contends that, by failing to rely on the psychological report of Dr. Parr or the
petitioner’s age as bases for asserting mitigating factors at petitioner’s sentencing hearing, the
performance of his trial counsel fell below that level of competence to which the petitioner was
constitutionally entitled.

        The record shows that trial counsel has been licensed to practice law in Tennessee since
1967. His practice has included criminal cases since the beginning of his career, and such cases now
constitute a sizable portion of his practice. He represented the petitioner from the time of his arrest
through his first appeal, an appeal that resulted in a reduction of petitioner’s conviction from first
degree murder to second degree murder.

        The psychological report referred to by the parties was a report prepared and signed by Dr.
Robert M. Parr, clinical psychologist, and Mr. Perry Adams, psychological examiner, that was
requested by the Memphis and Shelby County Juvenile Court. The report was based on a clinical
interview, the verbal tasks of the Wechsler Adult Intelligence Scale–Revised, the Bender Visual-
Motor Gestalt Test, and the Rorschach Test. It is dated May 25, 1993, thirteen days after the murder.

                                                  -6-
The report was apparently part of the petitioner’s juvenile record, which was made a State’s exhibit
at the sentencing hearing. The report was also made an exhibit at the post-conviction hearing.

        The psychological report reviewed the background of the petitioner, noting that petitioner
had approximately eight other juvenile complaints against him. At the time of his arrest, he was
living with his mother. He had seven sisters and three brothers and had no contact with his father,
who apparently lived somewhere outside Memphis. According to the report, the petitioner denied
that he had any knowledge of the crime. Petitioner admitted that he had previous arrests for
“shoplifting, assault charge, weapon on school property and a burglary charge which I beat.” The
report described the petitioner as 6' 4" tall, weighing 235 pounds, neat and clean in appearance and
in seeming good health. He was further described as polite and cooperative.

       Two instances of prior mental health treatment were reported by petitioner. One was a six-
week stay at St. Joseph Hospital in 1988 where he was sent “because [he] had a spell one day.” The
other was in 1990 when he and his sister were involved in outpatient therapy at Frayser Mental
Health Center “for family problems about getting along.” Petitioner told his examiners that he had
had no other mental health treatment since the outpatient, group therapy sessions in 1990.

       Petitioner’s mental status was described in the following paragraph of the report:

               He did not appear to be excessively anxious or threatened in the
               testing situation, and he maintained a relaxed physical posture
               throughout. He was typically spontaneous in his verbal interactions,
               and he had no difficulty making and keeping direct eye contact with
               the examiner. There were no speech abnormalities, and verbal
               expressions were generally relevant, clear and coherent. No loose
               associations were observed. Additionally, he was oriented as to time,
               person and place, and there has reportedly been no history of
               delusions or hallucinations. The examiner noted no evidence of
               significant distress or disturbance during this evaluation. Insight and
               judgment are judged to be mild to moderately lacking due to
               borderline intellectual functioning.

        The Bender Visual-Motor Gestalt Test showed scoreable errors in “distortion of shape. This
is indicative of mild visual motor processing deficits.” The report further assessed the petitioner’s
personality:

               The personality assessment gives no evidence of an overt or
               psychotic process, and reality testing appears to be adequate. The
               psychological data shows that this individual has very poor impulse
               control and is typically attracted to novelty and excitement. He has
               a great deal of difficulty in delaying gratification and frequently acts
               with very little consideration of consequences. He also finds it

                                                 -7-
               difficult to accept responsibility for problems in his life and will
               rationalize shortcomings and failures by blaming people and events
               that he cannot control. He will likely impress others as being moody
               and irritable, and the protocol suggests rather intense feelings of
               anger which may be expressed overtly in occasional emotional
               outbursts. He reveals a moderately high potential for acting out and
               using poor judgment.

        In conclusion, the examiners determined that the petitioner’s assessment “failed to reveal
serious psychopathology” or any reason to assume that “he is committable to an institution for the
mentally retarded or psychologically disturbed.”

        At the post-conviction hearing, trial counsel testified that, although he had no direct
recollection of reading this report, he was convinced, based on his years of practice and habit, that
he would not have allowed the report to be admitted as evidence at the sentencing hearing without
having reviewed it because, “I wouldn’t have just said, okay, go ahead and introduce it. I just don’t
do that.” The fact that trial counsel caught misstatements concerning the juvenile record of the
petitioner supports this contention. Counsel testified that, in deciding not to rely on the
psychological report, he “made a judgment call. If it was in there and I saw it, there were things in
there I would probably not want the Court to see. . . . I think it would be a judgment call because
some of the things in there were not helpful for us.”

        As to the petitioner’s assertion that defense counsel also failed to argue his age as a
mitigating factor, we note that defense counsel did, in fact, mention the age of petitioner at the
sentencing hearing. In requesting the minimum sentence for petitioner, defense counsel noted, “This
is a young man[,]” possibly hoping for some sympathy for his client. Nevertheless, to argue that
petitioner’s youth was a mitigating factor, defense counsel would have had to show that the
defendant did not “appreciate the nature of his conduct.” See State v. Carter, 908 S.W.2d 410, 413
(Tenn. Crim. App. 1995). Given the fact that the petitioner continued to claim at the sentencing
hearing that he had no involvement in the shooting whatsoever, arguing to the sentencing court that
the petitioner’s youth affected his judgment in committing a crime he denied committing would have
been at best an incongruous argument.

       The post-conviction court determined the following:

               [Trial counsel] testified that he may have decided not to utilize Dr.
               Parr’s psychological report due to both positive and negative factors
               present in the report. A review of the report would support such
               decision. This is a judgment call on the part of the attorney to argue
               such as the petitioner’s lack of good judgment and limited intellectual
               ability. This is especially true in this case, since at trial and the
               sentencing hearing, the petitioner strongly insisted that he had
               nothing to do with the killing of the victim. This Court refuses to

                                                -8-
                second guess defense counsel’s decision regarding what proof to
                submit at the sentencing hearing in this cause.

        We agree with the post-conviction court that the decision not to rely on either the
psychological report of Dr. Parr or the petitioner’s age as mitigating factors was well within the
range of competence demanded of attorneys representing defendants in criminal cases. Because
petitioner has failed to meet the first prong of the Strickland test, we conclude that the post-
conviction court did not err in denying relief to petitioner.

                                      C. Prejudice to Defense

         Even if we were to determine that counsel’s performance was deficient, the petitioner would
still be required to show prejudice, that is, that, had he received effective assistance of counsel, the
outcome of the sentencing hearing would have been different.

         In this case, the sentencing court found no mitigating factors and defense argued for none.
The sentencing court specifically asked if there were any mitigating circumstances defense wished
it to consider or if the testimony of the petitioner would be the only evidence offered. After the
petitioner testified, the sentencing court asked, “Okay. That’s your mitigation, [trial counsel]?”
Trial counsel replied, “Yes, sir.” During this testimony that presented an opportunity for the
petitioner to speak in his own behalf, petitioner was asked by the State if he had any remorse about
the killing. Petitioner answered, “I didn’t kill nobody. I don’t know what you’re talking about.”

        Without any mitigating evidence other than the testimony of the petitioner, the sentencing
court found three enhancement factors to support a maximum sentence: enhancement factor (1),
based on the petitioner’s previous history of criminal convictions or criminal behavior; factor (9),
based on the petitioner’s use of a firearm in committing the murder; and factor (10), based on the
petitioner’s lack of hesitation about committing a crime where evidence showed that the shooting
was in a residential community and at least two bystanders might have been harmed. See Tenn.
Code Ann. § 40-35-114(1), (9), and (10). This court determined that the trial court properly applied
each of these enhancement factors. See State v. James Dumas, No. 02C01-9610-CR-00368, 1997
WL 584287, at *2 (Tenn. Crim. App. Sept. 19, 1997), perm. to appeal denied (Tenn. June 1, 1998).

        Petitioner here asserts that his counsel was deficient in failing to argue for the application of
the following mitigating factors: (a) because of his youth, petitioner lacked substantial judgment in
committing the offense (mitigating factor (6)); (b) petitioner suffered from a mental condition that
significantly reduced his culpability for the offense (mitigating factor (8)); and (c) because of his
borderline intellectual functioning and mild visual motor processing deficits, petitioner lacked
insight and judgment (mitigating factor (13)). See Tenn. Code Ann. § 40-35-113(6), (8), and (13).
As to factor (6), evidence indicated that the petitioner was almost eighteen years old and was a
streetwise criminal. As to factor (8), the psychological report specifically excluded any mental
disorder. As to the “catch-all” factor (13), nothing in the record or testimony of trial counsel
indicates that the petitioner was not fully able to understand all aspects of his case. In fact, counsel

                                                  -9-
testified that the petitioner “[could] understand better than most, as I call them, juveniles. He
understood the process very well, above what most of them would have come close to.” While
petitioner’s verbal IQ score of 73 is considered borderline, there was no proof that petitioner was not
in full command of his situation. Further, there was no proof offered that petitioner’s mild visual
motor deficits had any relevance to this case. None of the suggested mitigating factors would have
been applicable. Therefore, petitioner has failed to show by clear and convincing evidence that the
outcome of the sentencing hearing would have been different. All three enhancement factors were
properly applied, and the weight to be given those factors rested within the sound discretion of the
sentencing court. See State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).

       We conclude that, even had the performance of counsel been deficient—and we have
determined that it was not—petitioner has failed to show prejudice.

                                          CONCLUSION

        Having reviewed the entire record, we conclude that petitioner has failed to meet his burden
of proving ineffective assistance of counsel by clear and convincing evidence. We, therefore, affirm
the judgment of the post-conviction court in denying his petition for relief.




                                                        ___________________________________
                                                        ALAN E. GLENN, JUDGE




                                                 -10-
