             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                                        February 15, 2005 Session

             ANTONIO DEWAYNE BLEDSOE v. STATE OF TENNESSEE

                        Appeal from the Criminal Court for Davidson County
                               No. 98-D-2709   Seth Norman, Judge


                          No. M2004-01132-CCA-R3-PC - Filed May 24, 2005


The Appellant, Antonio Dewayne Bledsoe, appeals the denial of his petition for post-conviction
relief by the Davidson County Criminal Court. On appeal, Bledsoe contends that he was denied the
effective assistance of counsel and, as a result, his nolo contendere plea was not knowingly and
voluntarily entered. After review, we affirm the denial of the petition.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and THOMAS
T. WOODALL, J., joined.

Kathleen G. Morris, Nashville, Tennessee, for the Appellant, Antonio Dewayne Bledsoe.

Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General;
and Dan Hamm, Assistant District Attorney General, for the Appellee, State of Tennessee.

                                                     OPINION

                                              Factual Background

        In November 1998, a Davidson County grand jury returned a seven-count indictment against
the Appellant and two co-defendants, Tino Skinner and Anthony Collier,1 charging them with four
counts of attempted first degree murder, one count of attempted aggravated robbery, one count of
first degree felony murder, and one count of aggravated robbery. The facts underlying the
indictment, as presented at the guilty plea hearing, are as follows:

         . . . [o]n Sunday morning, September 7, 1997 at approximately two-thirty in



         1
          Collier was charged only in Counts 1-4 with attempted first degree murder, attempted aggravated robbery, first
degree felony murder, and aggravated robbery.
         the morning, [the Appellant], Tino Skinard,2 Anthony Collier, and others, went in
         two cars to the dead end of Reservoir Court. All these individuals attempted to gain
         entry to the back door of 929 Reservoir Court for the purpose of robbing the occupant
         of money, guns, or drugs.

                  ....

                 Keith Stevenson Rice answered the door at 929 Reservoir Court. One of the
         persons in this group fired the AK forty-seven and shot Keith Stevenson Rice in the
         chest, killing him. The robbery was thwarted by Mike Battle, who returned fire.

                  ....

                 Earlier that morning [the Appellant], Anthony Collier, and Tino Skinard
         actively participated with others in the aggravated robbery of Tracy Marshall. . . .

                 On August 23, 1997 [the Appellant] and Tino Skinard actively participated
         in the drive-by shooting of Calvin Gibson. The AK forty-seven which shot Mr.
         Gibson - - who did survive his injuries, . . . - - also fired the shot that killed Keith
         Stevenson Rice.

         Trial counsel was appointed to represent the Appellant, and an investigator was hired to assist
in the defense. On June 16, 2000, the Appellant entered a nolo contendere plea to one count of
facilitation of first degree murder and was sentenced to a term of twenty years as a Range I offender.
All other charges were dismissed. The trial court reviewed the standard litany of rights with the
Appellant before accepting the plea, and the Appellant specifically stated that he was entering into
the agreement both knowingly and voluntarily.

        On May 23, 2001, the Appellant filed a pro se petition for post-conviction relief alleging,
among other grounds, ineffective assistance of counsel. Counsel was appointed, and an amended
petition was filed. The Appellant, again proceeding pro se, filed a second amended petition dated
January 27, 2003. A hearing was held on March 2, 2004, at which the Appellant, trial counsel, and
Tino Skinner testified. Trial counsel testified that while the Appellant maintained his innocence
throughout the proceeding, the investigation did not reveal facts which would support an alibi
defense. He further testified that he believed the case was “triable” because the evidence against the
Appellant was circumstantial. However, because of the amount of time the Appellant was facing,
over one hundred forty years, trial counsel did discuss the advantages and disadvantages of the
proposed plea agreement. The Appellant testified that he was “forced” into accepting the plea
agreement based upon misrepresentations by trial counsel. The post-conviction court denied relief



         2
           W e note a different spelling of Tino “Skinard’s” last name than that which appears in the indictment and at
the guilty plea hearing.

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by written order on April 21, 2004, finding that the Appellant had failed to demonstrate either
deficient performance or prejudice. This timely appeal followed.

                                               Analysis

        On appeal, the Appellant asserts that he was denied the effective assistance of counsel and,
as a result, his nolo contendere plea was not entered knowingly and voluntarily. In order to succeed
on a post-conviction claim, the Appellant bears the burden of showing, by clear and convincing
evidence, the allegations set forth in his petition. Tenn. Code Ann. § 40-30-110(f) (2003). On
appeal, the Appellant’s claim of ineffective assistance of counsel stems from the following
allegations of deficient performance: (1) that trial counsel failed to file a motion to dismiss based
upon an unreasonable delay in the prosecution; (2) that trial counsel pressured the Appellant to
accept the plea agreement by promising that the parole board would look more favorably upon a nolo
contendere plea; (3) that trial counsel failed to investigate the case by not seeking an interview with
a co-defendant; and (4) that trial counsel failed to inform the Appellant of the “physical facts” rule
which would have excluded the potentially damaging testimony of a jailhouse snitch.

        In evaluating the knowing and voluntary nature of a guilty plea, the United States Supreme
Court has held that “[t]he standard was and remains whether the plea represents a voluntary and
intelligent choice among the alternative courses of action open to the defendant.” North Carolina
v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164 (1970). In making this determination, the reviewing
court must look to the totality of the circumstances. State v. Turner, 919 S.W.2d 346, 353 (Tenn.
Crim. App. 1995); see also Chamberlain v. State, 815 S.W.2d 534, 542 (Tenn. Crim. App. 1990).
Indeed, a

        court charged with determining whether . . . pleas were ‘voluntary’ and ‘intelligent’
        must look to various circumstantial factors, such as the relative intelligence of the
        defendant; the degree of his familiarity with criminal proceedings; whether he was
        represented by competent counsel and had the opportunity to confer with counsel
        about the options available to him; the extent of advice from counsel and the court
        concerning the charges against him; and the reasons for his decision to plead guilty,
        including a desire to avoid a greater penalty that might result from a jury trial.

Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). Once a guilty plea has been entered,
effectiveness of counsel is relevant only to the extent that it affects the voluntariness of the plea. In
this respect, such claims of ineffective assistance necessarily implicate that guilty pleas be
voluntarily and intelligently made. Hill v. Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 369 (1985)
(citing North Carolina v. Alford, 400 U.S. at 31, 91 S. Ct. at 164).

       To succeed in a challenge for ineffective assistance of counsel, the Appellant must
demonstrate that counsel’s representation fell below the range of competence demanded of attorneys
in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984), the Appellant must establish (1)


                                                  -3-
deficient representation and (2) prejudice resulting from the deficiency. In the context of a guilty
plea, to satisfy the second prong of Strickland, the Appellant must show that “there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted
on going to trial.” Hill, 474 U.S. at 59, 106 S. Ct. at 370; see also Walton v. State, 966 S.W.2d 54,
55 (Tenn. Crim. App. 1997). The petitioner is not entitled to the benefit of hindsight, may not
second-guess a reasonably based trial strategy, and cannot criticize a sound, but unsuccessful, tactical
decision made during the course of the proceeding. Adkins v. State, 911 S.W.2d 334, 347 (Tenn.
Crim. App. 1994). This deference to the tactical decisions of trial counsel is dependant upon a
showing that the decisions were made after adequate preparation. Cooper v. State, 847 S.W.2d 521,
528 (Tenn. Crim. App. 1992).

        The issues of deficient performance by counsel and possible prejudice to the defense are
mixed questions of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). “A trial court’s
findings of fact underlying a claim of ineffective assistance of counsel are reviewed on appeal under
a de novo standard, accompanied with a presumption that those findings are correct unless the
preponderance of the evidence is otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001)
(citing Tenn. R. App. P. 13(d)); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However,
conclusions of law are reviewed under a purely de novo standard, with no presumption of
correctness. Fields, 40 S.W.3d at 458.

I. Unreasonable Delay

         First, the Appellant contends that trial counsel was ineffective for failing to file a motion to
dismiss based upon unreasonable delay in the commencement of the prosecution. While the crimes
were committed in August and September of 1997, the Appellant was not indicted until over a year
later in November 1998. The Appellant asserts that this delay violated his due process rights and
that prejudice inured because potential alibi witnesses were unable to provide exact details with
regard to the Appellant’s whereabouts on the day of the crime due to the delay. Trial counsel
testified at the hearing that he “probably thought about [filing such a motion] . . . , but based on the
case law, there was no chance of winning a motion like that.” Thus, with regard to the alleged
deficiency, the Appellant was required to show by clear and convincing evidence (1) that a motion
to dismiss would have been granted and (2) that there was a reasonable probability that the
proceedings would have concluded differently if counsel had performed as suggested. As concluded
below, the Appellant has failed to establish either of these factors. Clearly, trial counsel cannot be
considered deficient for failing to make or pursue a motion that would have been meritless.

        In Tennessee, the law is well settled that while delay between the commission of an offense
and the commencement of adversarial proceedings does not violate an accused’s constitutional right
to a speedy trial, an unreasonable delay between the commission of the offense and the
commencement of the prosecution may violate the constitutional right to due process. State v.
Carico, 968 S.W.2d 280, 284 (Tenn. 1998) (citing State v. Gray, 917 S.W.2d 668, 671 (Tenn.
1996)). In order to be entitled to relief based upon the delay between the offense and the initiation
of adversarial proceedings, the accused must show that ‘“(a) there was a delay, (b) the accused


                                                  -4-
sustained actual prejudice as a direct and proximate result of the delay, and (c) the State caused the
delay in order to gain tactical advantage over or to harass the accused.”’ State v. Utley, 956 S.W.2d
489, 495 (Tenn. 1997) (quoting State v. Dykes, 803 S.W.2d 250, 255 (Tenn. Crim. App. 1990)). In
Gray, our supreme court articulated a second test, requiring consideration of only the length of the
delay, the reason for the delay, and the degree of prejudice to the accused, but limited its application
to cases in which the State is unaware of the commission of the crime during the delay. Id.
However, the court reaffirmed that in all other cases, the Dykes test remained controlling. Id.

         Clearly, in this case the State was aware of the commission of the crimes when they occurred;
however, a review of the determinative factors does not show a violation of the Appellant’s right to
due process. As trial counsel stated at the post-conviction hearing, a delay of fourteen months in the
commencement of prosecution is not a significant one. Cf. Carico, 968 S.W.2d at 284 (delay of
seven years); Utley, 956 S.W.2d at 496 (delay of five years); Gray, 917 S.W.2d at 673 (delay of
forty-two years); Ray Charles Gasaway v. State, No. M2000-00991-CCA-R3-PC (Tenn. Crim. App.
at Nashville, Mar. 29, 2001) (delay of four years). Some evidence was presented, mainly through
the testimony of the Appellant, that because of the delay, witnesses were unable to provide him with
an alibi; however, the Appellant failed to offer any specific testimony at the hearing that had there
been no delay, witnesses would have been able to substantiate his alibi. Thus, we find that the
Appellant has also failed to establish prejudice. More importantly, the Appellant has offered no
evidence that the State caused the delay to gain a tactical advantage. Though not entirely clear, it
appears from the record that the delay in commencement of prosecution against the Appellant was
caused by a witness’ failure to initially identify the Appellant. Accordingly, we find that the
Appellant has failed to establish either deficient performance or prejudice as a result of trial
counsel’s failure to pursue this issue.

II. Promises Regarding the Parole Board

        Next, the Appellant contends that trial counsel “pressured” him to accept the plea agreement
by giving him erroneous advise regarding his treatment by the parole board if he accepted the plea
agreement. At the post-conviction hearing, the Appellant testified that trial counsel informed him
that the board would act more favorably with regard to parole if the Appellant pled nolo contendere.
Trial counsel was never questioned at the hearing regarding any statement he made to the Appellant
concerning potential parole eligibility. Moreover, the post-conviction court made no finding on this
issue in its final order.

       As the State correctly asserts, the Appellant failed to include this issue in his petition for post-
conviction relief or any of the subsequent amendments. Accordingly, the issue was never before the
post-conviction court, and no findings were made by the court. Issues not raised in the post-
conviction petition cannot be raised for the first time on appeal. Jimmy Earl Lofton v. State, No.
02C01-9603-CR-00073 (Tenn. Crim. App. at Jackson, Mar. 7, 1997); see also Cauthern v. State, 145
S.W.3d 571, 599 (Tenn. Crim. App. 2004) (an issue raised for the first time on appeal is waived).
A post-conviction petition “must necessarily rest upon and be determined by the factual allegations



                                                   -5-
it contains.” Long v. State, 510 S.W.2d 83, 85 (Tenn. Crim. App. 1974). Therefore, this issue is
waived.

III. Failure to Investigate/Interview the Co-defendant

       Third, the Appellant asserts that trial counsel was ineffective by failing to seek an interview
with co-defendant Tino Skinner. At the post-conviction hearing, Skinner, who was indicted for the
same crimes as the Appellant, testified that the Appellant was not present or involved in any of the
crimes as alleged. The record reflects that both the Appellant and Skinner entered their pleas
simultaneously, and at no time did Skinner dispute the stipulated facts and inform the court that the
Appellant was innocent. With regard to his prior silence, Skinner testified that he informed his
attorney regarding the Appellant’s innocence, but she advised him to say nothing.

         Trial counsel testified at the post-conviction hearing that he attempted to contact Skinner to
determine if he had information which would be beneficial to the Appellant. However, he was
unable to do so because Skinner was represented by counsel. Although Skinner professed at the
evidentiary hearing that the Appellant was not involved in the crime for which he was convicted,
there is nothing in the record which suggests that this was Skinner’s position prior to the Appellant’s
nolo contendere plea. Indeed, Skinner testified that he was told by his attorney to say nothing about
the Appellant’s innocence. Furthermore, trial counsel testified that he was unable to consult with
Skinner because Skinner was represented by counsel. We review trial counsel’s conduct not on the
facts as they exist today, rather, upon the facts as they existed at the time of counsel’s conduct during
representation. Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. Accordingly, we apply the rule of
contemporary assessment of counsel’s conduct, i.e., that counsel may only be charged for a failure
to assess or investigate that which was available to counsel at the time. Lockhart v. Fretwell, 506
U.S. 364, 372, 113 S. Ct. 838, 844 (1993). Because we conclude that Skinner’s revelations at the
post-conviction hearing were not available to trial counsel during his representation of the Appellant,
we likewise conclude that trial counsel cannot be found deficient for failure to obtain unavailable
facts.

IV. Physical Facts Rule

        Last, the Appellant asserts that trial counsel’s failure to inform him that operation of the
physical facts rule would exclude the potentially damaging testimony of James Smith, a jailhouse
snitch, constituted deficient performance. According to the Appellant’s testimony, Smith had given
a statement to police claiming that the Appellant told him that the gun used in the September 1997
crimes was stolen that same night. However, the evidence established that the same gun was used
in the August crimes. Thus, the Appellant asserts that Smith’s testimony would violate the physical
facts rule and would have been excluded. Trial counsel acknowledged that he did not inform the
Appellant regarding operation of this specific rule. The post-conviction found that it was
“insignificant that the [Appellant] was not knowledgeable as to the . . . rule. It would be counsel’s
duty to consider the feasibility of implementation of certain defenses, in conjunction with the
available evidence.” We agree.


                                                  -6-
        Nonetheless, we note that the rule would not be applicable upon the facts before us. The
physical facts rule is the “accepted proposition that in cases where the testimony of a witness is
entirely irreconcilable with the physical evidence, the testimony can be disregarded.” State v.
Hornsby, 858 S.W.2d 892, 894 (Tenn. 1993). However, our supreme court cautioned that the power
to disregard testimony should be used sparingly, “[o]nly when the testimony is inherently improbable
and impossible of belief.” Id. at 895. It instructed that the matter should be left to the jury when the
testimony is capable of different interpretations because it is within the province of the jury to decide
whether there are inconsistencies in testimony, to reconcile conflicts in testimony, and to determine
the credibility of witnesses. Id. Additionally, in order for the rule to apply, the “facts used to negate
the testimony must be ‘well-established and universally recognized physical laws.’” Id. (quoting
Nelms v. Tennessee Farmers Mut. Ins. Co., 613 S.W.2d 481, 483 (Tenn. App. 1978)).

         First, the Appellant’s claim must fail because he has failed to present any evidence, other
than his own self-serving testimony, that the rule would be applicable to the facts of the case. Smith
did not testify at the post-conviction hearing. Thus, to apply the rule based upon only what the
Appellant said Smith would testify to would require speculation. It was the Appellant’s burden to
present supporting proof at the post-conviction hearing, and he failed to do so. See Black, 794
S.W.2d at 757. Nonetheless, even assuming that Smith had testified as the Appellant asserted he
would, we do not find the testimony in question regarding when the gun was stolen sufficient to
invoke application of the physical facts rule. According to the Appellant, Smith’s testimony only
relates to what he was told by the Appellant, something clearly not subject to the physical facts rule
as that testimony is not irreconcilable with any physical evidence. Rather, it would require a
credibility determination by the jury as to whether they believed that the Appellant had confessed
his involvement in the crimes to Smith. This issue is without merit.

        We find no evidence in the record to support the Appellant’s assertion that he would have
proceeded to trial absent trial counsel’s alleged errors. No deficient performance has been
established. The post-conviction court found that trial counsel had adequately investigated the case,
conferred with the Appellant, and advised him of the advantages and disadvantages of accepting the
plea agreement. We note that the Appellant was facing a possible sentence of over one hundred
forty years had he proceeded to trial, instead of the twenty-year sentence he received for his
involvement in a violent crime spree. Moreover, we note that the Appellant was fully advised of his
rights before accepting the plea agreement and stated that he was satisfied with trial counsel’s
performance. Accordingly, we find that the Appellant has failed to establish that his plea was not
entered knowingly and voluntarily.

                                            CONCLUSION

        Based upon the foregoing, we affirm the denial of the Appellant’s petition for post-conviction
relief by the Davidson County Criminal Court.



                                                ___________________________________
                                                DAVID G. HAYES, JUDGE


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