         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE             FILED
                         SEPTEMBE R SESSION, 1998      February 10, 1999

                                                      Cecil W. Crowson
                                                     Appellate Court Clerk
RICK Y FLAM INGO BRO WN ,         )    C.C.A. NO. 01C01-9708-CR-00363
                                  )
           Appe llant,            )
                                  )    DAVIDSON COUNTY
V.                                )
                                  )
                                  )    HON. ANN LACY JOHNS, JUDGE
STATE OF TENNESSEE,               )
                                  )
           Appellee.              )    (NOTICE OF APPEAL)



FOR THE APPELLANT:                     FOR THE APPELLEE:

MICHAEL E. TERRY                       JOHN KNOX WALKUP
209 Tenth Avenue South                 Attorney General & Reporter
Suite 310 Cummings Station
Nashville, TN 37203                    KAREN M. YACUZZO
                                       Assistant Attorney General
                                       2nd Floor, Cordell Hull Building
                                       425 Fifth Avenue North
                                       Nashville, TN 37243

                                       VICTO R S. JO HNS ON, III
                                       District Attorney General

                                       ROGER MOORE
                                       Assistant District Attorney General
                                       Washington Square
                                       222 Second Avenue North, Suite 500
                                       Nashville, TN 37201-1649




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                     OPINION

         The Petitioner, R icky Flam ingo Bro wn, appea ls the order of the Davidson

Coun ty Crimina l Court dismiss ing his petition for pos t-conv iction re lief.     In this

appeal, the Defendant challenges (1) the trial court’s ruling as to the effectiveness

of his trial counsel, (2) the admission of incompetent testimony at trial, and (3) the

legality of the sen tence im posed by the trial co urt. We affirm the judgment of the trial

court.



         The post-c onvictio n court accurately summarized the procedural history of

Petitioner’s case as follows:

         [Petitioner] was indicted by the Davidson County Grand Jury in 1986
         and charged w ith aggravated rape, accu sed o f having sex with his
         twelve year old d aughte r. Trial was held in the Criminal Court for
         Davidson County, Tennessee, Division II, on August 3 and August 4,
         1987. The jury con victed [P etitione r] and h is bon d was imm ediate ly
         revoked. [Petitioner] was placed in a room in the Criminal Justice
         Center in Nashville, Tennessee, and later the same day escaped from
         the Justice Center. [Petitioner] did not appear for the sentencing
         hearing. [Petitioner] received a life sentence in abse ntia. A motion for
         new trial was filed but denied as waived, and no direct appeal was
         prosecuted.

         [Petitioner] was arrested and incarcerated in June 1990 and since has
         been serving a life sentence in Tennessee correctional facilities. On
         July 23, 1990, [Petitioner] filed a pro se post conviction petition in this
         court, seeking review of h is conviction and se ntence . Subs eque ntly, all
         parties agreed to postpone further proceedings, to allow [Petitioner] the
         opportu nity to seek a direct ap peal.

         [Petitioner] filed an application for delayed appe al with the Court of
         Criminal Appe als. Su bseq uently [Petitioner] sought both direct appeal
         and delaye d app eal, and was d enied by the C ourt of Crim inal Ap peals
         and the Tennessee Supreme Court. In March and May 1996
         evidentiary hearings were held on the post-conviction petition, and at
         the conclusion, proposed findings were ordered, at the suggestion of
         the parties, and subsequently filed.




                                             -2-
         Petitioner filed his post-conviction petition in 1990, nearly three (3) years from

date of his conviction, but still within the statute of limitations period in effect at the

time. Tenn. Co de Ann. §4 0-30-102 (rep ealed May 1 0, 1995). At the time Petitioner

filed his petition for post-con viction relief, the petitioner had the burden of proving

the allegations by a prepo nderan ce of the e vidence . McBe e v. State , 655 S.W.2d

191, 195 (Tenn. Crim. App. 1983). Moreover, the trial court’s findings of fact are

conclusive on appeal unless the evidence preponderate s agains t the judgm ent.

State v. Buford, 666 S.W .2d 473 , 475 (T enn. C rim. App . 1983); Tidwe ll v. State, 922

S.W.2d 497, 500 (T enn. 1996 ); Cam pbell v. State , 904 S.W.2d 594, 595-96 (Tenn.

1995).



         In review ing the Petition er’s Six th Am endm ent cla im of ineffective assistance

of counsel, this Court must determine whether the advice given or services rendered

by the attorney are within the range of co mpe tence dem ande d of atto rneys in

criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on

a claim of ine ffective counsel, a petitioner must show that counsel made errors so

serious that he was no t functionin g as cou nsel as g uarante ed und er the Sixth

Amendment and that the deficient representation prejudiced the petitioner resulting

in a failure to produce a reliable res ult. Strickland v. Washington, 466 U.S. 668, 687,

reh’g denied, 467 U.S . 1267 (1 984); Coop er v. State , 849 S.W.2d 744, 747 (Tenn.

1993); Butler v. Sta te, 789 S.W .2d 898, 899 (Tenn. 199 0).             On the issue of

ineffective assistance o f counsel, the trial court found that the record demonstrated

“defense counsel’s ge neral knowled ge of the law, derived from his ma ny years of

successful practice in the criminal law field, and his case-specific preparation, were

adequa te to meet the s tandard requ ired of criminal defen se attorneys.”




                                             -3-
       Petitioner cites the following instances of ineffective assistance of counsel by

his trial attorney:

       1.     Counsel failed to contact all witnesses, failed to interview
              availab le prosec ution witne sses, an d failed to prepare for
              trial.

       2.     Counsel failed to conduct discovery and any other
              investigation, and failed to develop a theory of defense.

       3.     Counsel did not communicate with his predecessor who
              forme rly represented the Petitioner in this case and
              counsel did not communicate with the prosecuting
              attorneys.

       4.     Cou nsel d id not a dequ ately pr epare the De fenda nt for tria l.

       5.     Counsel only me t with Petition er for one (1) hour p rior to
              the trial, and stated that he did not need any witnesses.

       6.     Counsel failed to call witnesses at trial who were available,
              and whose testimony would have aided the Pe titioner’s
              defense.

       7.     Counsel failed to subpoena witnesses               who were
              necessary to establish a plausible defense.

       8.     Cou nsel’s failure to investigate the facts and
              circumstances surrounding the case prevented counsel
              from effective ly exam ining and cross-examining witnesses
              during the trial.

       9.     Counsel did not file appropriate pre-trial motions and/or
              motions in limine and did not object to “prejudicial and
              incompetent testimony” of Era Hogan, Ann Brooks, and
              Dr. Margaret Ann Martin.

       10.    Counsel did not file an effective and appropriate motion for
              new trial and the refore failed to develo p app ealab le issues
              which w ould ha ve helpe d the De fendan t.

       11.    Counsel failed to represent the Petitioner in sentencing
              procedures. Specifically, he states that counsel did not file
              a sentencing memorandum, argue sentencing guidelines
              to the trial c ourt, an d “sim ply acqu iesced” in the
              sentencing procedure which resulted in a life sentence.

       12.    Counsel did not pursue or otherwise pre serve the right of
              a direct appea l for Petitioner.



                                            -4-
      We have reviewed the transcript of the trial. Issues which Petitioner argues

shou ld now be considered as if there we re a direct appe al of the conviction are

without merit, or if error, were harmless error. Tenn. R. App. P. 36(b); Tenn. R. Crim.

P. 52(a). Both the issues of incompetent testimony and improper sentencing are

not proper issues to be addressed in post-conviction proceedings. Tenn. Code Ann.

§ 40-30-105. Only issues of cons titutiona l impo rt are pr oper c onsid eration for this

court on review of a petition for post-conviction relief. While Petitioner may have had

a right for review of these is sues o n direct ap peal, he waived this right when he

absconded prior to the trial court’s consideration of his motion for new trial and

remained at large during the tim e in wh ich he could have filed a direct appea l. See

Lamm v. State, No. 03C0 1-9702-C C-00073 , Blount Cou nty (Tenn. Crim. App., at

Knoxville, March 23, 1998) (No Rule 11 application filed); Curtis v. Sta te, 909

S.W.2d 465, 468 (T enn. Crim. A pp. 1995). While his prior escape does not preclude

post-conviction relief, “a criminal defendant cannot interrupt or terminate a criminal

proceeding by his failure to pursue the leg al proc edure s availa ble for the correction

of errors and then, in a post-conviction proceeding, seek relief based on an error

committed during the proce eding.” Shaze l v. State, 966 S.W.2d 414, 416 (Tenn.

1998); French v. State, 824 S.W .2d 161 (Tenn . 1992).



      Any evidence which Petitioner complains was “incompetent testimony” but

admitted at trial as “fresh c ompla int” evidence was clearly admissible under the law

in existen ce at th e time of his trial. His reliance upon State v. Livingston, 907

S.W.2d 392 (Tenn. 1995)(holding in child sexual offense cases, neither the fact of

complaint nor details of complaint to a third party is admissible under “fresh

comp laint” doctrine), is misplaced as that case was not decided un til eight (8) years

                                           -5-
after the conclusion of Petitioner’s trial. In addition, Petitioner’s argument that the

record fails to justify his sentence as a Range II Offender is without merit. In 1987,

at the time of Petitioner’s offense, the prescribed punishment for aggravated rape

of a child le ss tha n thirtee n (13) y ears o f age in violation of Tennessee Code

Annotated section 39-2-603 (repealed November 1, 1989) was “imprisonment in the

penitentiary for life or a pe riod not les s than twe nty (20) yea rs” as a R ange II

Offender.     Tenn. Co de Ann. § 4 0-35-107(5 ) (repealed N ovembe r 1, 1989).

Therefore, the only issue this court will consider is whether Petitioner’s trial counsel

provid ed ine ffective a ssista nce d uring th e trial.



       At the post-con viction hea ring, defen se cou nsel testified as to his recollection

of the trial a nd his trial prep aration . The in ordina tely long passa ge of time (in part

directly due to the Pe titioner’s escap e) com bined w ith counsel’s physical limitations

did not allow defense counsel to completely detail his trial preparation and strategy.

Dim inished recollection of the attorney at a post-conviction hearing delayed as a

result of a defen dant’s es cape is u ndersta ndable . Curtis v. Sta te, 909 S.W.2d 465

(Tenn. Crim. App. 1995). The record demonstrates that Petitioner’s trial counsel

presented four (4) witnesses on the Petitioner’s be half, including the Pe titioner,

Petition er’s wife, step-daughter and mother.             Counsel also thoroughly cross-

examined the State’s witnesses. There is every appearance from the record that

trial couns el was pr epared for trial.



       W hile the orig inal pre trial mo tion is n ot con tained within th e reco rd, it is clear

from the trial transcript that Petitioner’s counsel sought to introduce testimony that

others had sexual relations with the victim and the trial court ruled this testimony

inadmissible. Specifically, the trial court addressed the Petitioner during trial, stating

                                               -6-
“You were present when I made my ruling that any evidence regarding prior sexual

conduct on the part of [the victim] is irrelevant and inadmissible, and any attempt on

your part to get e vidence of that into the record is a flagrant violation of m y order,

and it should not happen again.” Also, it is evident from the trial transcript that

counsel’s defense theory was that the victim had fabricated the allegations due to

the pos sible influen ce of her mothe r.



       Petition er’s trial coun sel tes tified tha t he ha d acc ess to the Pe titioner’s file

from his former attorney and had open access to the State’s files for discovery. He

then reviewed the State’s files and discussed the m erits of the case with the

prosecutor. He testified that he discus sed th e cas e with b oth the Petition er and his

wife and prepared both of the m for the ir testimon y.         He m ade ob jections a s to

certain testimony during the course of the trial, some of which were sustained.

Defense counsel noted that if he did not object specifically to evidence introduced,

his strategy was either that the eviden ce sh ould have co me in o r was no t harmfu l to

the Petitioner.   In light of the law in effect at the time of Petitioner’s trial, the

testimony of som e witne sses was a dmis sible as “fresh complaint” evidence.

Livingston, 907 S.W .2d at 395. W hen re viewing defen se co unse l’s action s, this

court should not use the bene fit of hindsight to second-guess trial strategy and

criticize cou nsel’s tactic s. Hellard v. S tate, 629 S.W .2d 4, 9 (T enn. 19 82).



      Following Petitioner’s conviction and escape, defense counsel filed a motion

for new trial which was denied in light of the Petitioner’s escape. Defense counsel

did not file a notice of app eal du e to the fact tha t Petition er’s es cape resulted in a

waiver of his right to appeal. The remaining allegations of ineffective assistance of

counsel by virtue of co unsel’s fa ilure to file app ropriate motions fo r new tr ial,

                                             -7-
represent Petitioner properly at the sentencing hearing and pursue or preserve the

right of a direct appeal are without merit. Petitioner escaped prior to the time the

motion for new trial was filed and remained out of the custo dy of the S tate until the

time for a direct appeal had passed. Thus, he does not show any prejudice from the

trial couns el’s actions following th e trial. See Lamm, slip op. at 2; Curtis , 909 S.W.2d

at 468.   In other words, no matter how we ll any attorne y would h ave tried to

represent Petitioner on direct appeal after his escape, the issues that could be

presented w ould be wa ived becaus e of the escap e from custo dy.



       As the trial court noted within its findings of fact, the “record demonstrates that

defense counsel, an extraordinarily experienced criminal trial lawyer, had

communication with predecessor defense counsel; enjoyed open file discovery from

the State, supplemented with the victim’s medical records requested and obtained

from the State; and had access to his client, who was free on bond [prior to trial].”



       The Petitioner has failed to prove his allegations by a preponderance of the

evidence, and we affirm the trial court’s dismissal of the Pe titioner’s petition for post-

conviction relief.



                                   ____________________________________
                                   THOMAS T. W OODALL, Judge




CONCUR:



___________________________________
GARY R. WA DE, Presiding Judge

                                            -8-
___________________________________
JAMES CURW OOD W ITT, JR., Judge




                               -9-
