            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                        OCTOBER SESSION, 1998

                                                             FILED
REIKO NOLEN,                )                                October 16, 1998
                            )    No. 02C01-9711-CC-00441
      Appellant             )                          Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk
                            )    DYER COUNTY
vs.                         )
                            )    Hon. J. STEVEN STAFFORD, Judge
STATE OF TENNESSEE,         )
                            )    (Post-Conviction)
      Appellee              )



For the Appellant:               For the Appellee:

William K. Randolph              John Knox Walkup
422 N. Church Street             Attorney General and Reporter
P. O. Box 611
Dyersburg, TN 38025-0611         Marvin E. Clements, Jr.
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 425 Fifth Avenue North
                                 2d Floor, Cordell Hull Building
                                 Nashville, TN 37243-0493


                                 C. Phillip Bivens
                                 District Attorney General
                                 P. O. Drawer E
                                 Dyersburg, TN 38024




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                                      OPINION



          The appellant, Reiko Nolen, appeals the Dyer County Circuit Court’s

dismissal of his petition for post-conviction relief. The appellant collaterally attacks

his aggravated robbery conviction upon grounds of ineffective assistance of counsel.

Specifically, he contends that his trial counsel was deficient for failing to discredit the

State’s proof of “serious bodily injury,” an essential element of the convicting

offense.



          After review of the record, we affirm the trial court’s denial of post-conviction

relief.



                                                       Analysis



          In July 1995, the appellant was convicted of one count of especially

aggravated robbery1 and was sentenced to twenty years in the Department of

Correction.2 His conviction and sentence were affirmed on direct appeal to this

court. See State v. Nolan, No. 02C01-9601-CC-00008 (Tenn. Crim. App. at

Jackson, Aug. 2, 1996), perm. to appeal denied, (Tenn. Jan. 27, 1997). As a result

of this conviction, the appellant is currently confined at Northwest Correctional

Center in Tiptonville.




          1
           The appellant was also charged with attempted first degree murder. This charge was
ultim ately d ism isse d by th e trial c ourt a s the jury fa iled to reac h an u nan imo us ve rdict a s to th is
count.

          2
          The appellant’s conviction stems from an incident on September 17, 1994, in which the
appellant, acting in concert with other unidentified persons, pursued the victim throughout
Dyersburg, ultimately shooting the victim in the lower back and taking a beepe r and thirty-five
dollars from his perso n. See State v. Nolan, No. 02C01-9601-CC-00008 (Tenn. Crim. App. at
Jack son, Au g. 2, 1996 ), perm. to appeal denied, (Tenn . Jan. 27, 1 997). “T he victim was flow n to
Memphis where he was hospitalized for three weeks. The bullet could not be removed. The
victim unde rwen t exte nsive physic al the rapy to learn to wa lk ag ain. H e also lost c ontro l of his
bladder.” Id.

                                                          2
         On March 26, 1997, the appellant filed a petition for post-conviction relief.

This petition was subsequently amended on May 22, 1997. As grounds for relief,

the petition asserted various claims of ineffective assistance of trial counsel.3 On

June 6, 1997, following an evidentiary hearing, the trial court denied the appellant

relief. In dismissing the petition, the trial court found, specifically to the issue now

before this court, that:

         The incident giving rise to the prosecution of this case involves the
         shooting of the victim. The victim was questioned about his injuries
         and their effect on him on pages 41-43 of the trial transcript. The
         victim stated that after he was shot, he was in bad pain and that he
         had to be airlifted to Memphis to the hospital. He stated that he was
         required to stay in the hospital in Memphis for approximately three
         weeks. He also testified that he still had the bullet in his back and that
         when he left the hospital he was not able to walk. He further stated
         that he was still in therapy and that during his therapy, he had to walk
         first using parallel bars and then crutches. At the time of the trial, the
         victim testified that he had only been off of crutches for approximately
         1½ months. The victim further testified that as a result of the shooting,
         he was unable to control his bladder and that he was required to wear
         adult diapers. He called this a permanent problem.

         The petitioner has presented no evidence as to how Davis [the
         appellant’s trial counsel] could rebut any of the victim’s testimony. It is
         clear that the evidence presented by the victim substantiates a claim
         for serious bodily injury. . . . This Court finds this issue to be without
         merit.



         To succeed in a post-conviction claim of ineffectiveness, the appellant must

show, by clear and convicting evidence, Tenn. Code Ann. § 40-30-210(f) (1996

         3
           Although the trial court acknowledged that the appellant had previously raised the issue
of ineffec tive assista nce of c ounse l on direct ap peal, see Nolan, No. 02C01-9601-CC-00008
(finding the appellant’s claim that counsel was ineffective for opening the door regarding a prior
incident with the victim without merit), the court proceeded to address additional allegations of
ineffectiveness raised for the first time in the post-conviction petition. However, ineffective
assistance of counsel is generally a "single ground for relief" under the post-conviction statute.
Cone v. State, 927 S.W .2d 579, 5 81-82 (T enn. Cr im. Ap p.1995 ), perm. to appeal denied,
(Tenn .1996), cert. denied, --- U.S. ----, 117 S.Ct. 309 (1996). "[T]he fact that such violation may
be proved by multiple acts or omissions does not change the fact that there remains only one
ground for relief." McC ray v. State , No 01C01-9108-CR-00255 (Tenn. Crim. App. at Nashville,
Sept. 11, 1992). A ground for relief has been “previously determined” when “a court of competent
jurisdiction has ruled on the merits after a full and fair hearing.” Tenn. Code Ann. § 40-30-
206 (f)(1 996 Sup p.). A petitio ner m ay not re-litig ate p revio usly de term ined g roun ds fo r relief sim ply
by adding f actual ba sis for an ineffective assistan ce of co unsel cla im. Cone, 927 S.W.2d at
581-82. The appellant offers no explanation as to why these additional alleged acts and
omissions were not raised when the issue of counsel's effectiveness was litigated on direct
app eal. T hus , the a ppe llant’s claim s in th is app eal ar e wa ived b eca use they h ave b een prev ious ly
determined. Notwithstanding, we elect to review the claim presented sub judice as the trial court
resolved the issue on its m erits.




                                                        3
Supp.), that the services rendered by trial counsel were deficient and that, but for

the deficient performance, the results of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 687 104 S.Ct. 2052, 2064 (1984).                       In

determining whether the appellant received effective assistance of counsel, this

court must remain mindful that it is not our function to second guess trial counsel's

tactical and strategic choices on matters of defense, unless these choices are made

without knowledge of the relevant facts or the law applicable to the issue. Hellard v.

State, 629 S.W.2d 4, 9 (Tenn.1982); State v. Swanson, 680 S.W.2d 487, 490

(Tenn. Crim. App.1984).



       The proof is overwhelming that the victim suffered “serious bodily injury”

within the purview of the statute. See Tenn. Code Ann. § 39-11-106(a)(33) (1991). 4

Contrary to the appellant’s argument, even considering information possessed by

trial counsel that the victim “could tell when [he] needed to go [to the bathroom]” and

that he could move his legs but not his toes, we fail to see how this information

would have negated the seriousness of the injuries sustained by the victim. Indeed,

it is difficult to conceive how any cross-examination by trial counsel relating to the

victim’s injuries could have changed the facts before the jury or the ultimate

outcome of this trial. Clearly, the appellant has failed to carry his burden of

establishing his claims. Additionally, we cannot conclude that the evidence

preponderates against the trial court’s findings of fact. See Davis v. State, 912

S.W.2d 689, 697 (Tenn. 1995).



       As a result, we find no error of law requiring reversal. The judgment of the

trial court dismissing the appellant’s petition for post-conviction relief is affirmed.




       4
        "Serious bodily injury” means bodily injury which involves: (A) A substantial risk of death;
       (B) Protracted unconsciousness; (C) Extreme physical pain; (D) Protracted or
       obvious disfigurement; or (E) Protracted loss or sub stantial impairment of a
       function of a bod ily mem ber, orga n or m ental facu lty.”

                                                4
                          ____________________________________
                          DAVID G. HAYES, Judge




CONCUR:



____________________________________
JOHN H. PEAY, Judge



____________________________________
L. T. LAFFERTY, Senior Judge




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