         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                    August 12, 2003 Session

        JESSE CLEO MINOR b/n/f LEANN MORRISON v. STATE OF
                           TENNESSEE

           Post-Conviction Appeal from the Criminal Court for Davidson County
                        No. 97-C-2096    Cheryl Blackburn, Judge



                   No. M2002-02378-CCA-R3-PC - Filed December 23, 2003


The petitioner, Jesse Cleo Minor, entered a best-interest plea to one count of attempted rape of a
child. He is currently serving an eight-year sentence. See State v. Jesse Cleo Minor, No. M1998-
00424-CCA-R3-CD, 1999 WL 1179143 (Tenn. Crim. App. at Nashville, Dec. 15, 1999). The post-
conviction petition at issue herein was filed by the petitioner’s daughter Leann Morrison as next
friend. The petition alleges that the petitioner is in poor health and suffers from irreversible
dementia that seriously affects his cognitive abilities. The petitioner attacks his conviction based
upon the following four allegations: (1) he was incompetent and unable to understand the prior
proceedings and therefore incapable of entering a voluntary guilty plea; (2) the State failed to
disclose material exculpatory evidence; (3) false and/or materially misleading statements were
offered to the trial court; and (4) trial counsel was ineffective. We affirm the trial court’s dismissal
of the post-conviction petition.


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

JERRY L. SMITH, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and DAVID G.
HAYES, J., joined.

Hal D. Hardin, Nashville, Tennessee; J. G. Mitchell, III, Murfreesboro, Tennessee; and Hugh C.
Howser, Jr., Nashville, Tennessee, for the appellant, Jesse Cleo Minor.

Paul G. Summers, Attorney General & Reporter; P. Robin Dixon, Jr., Assistant Attorney General;
Victor S. Johnson, District Attorney General; and Roger D. Moore, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                              OPINION

                                          Factual Background

         In 1997, the petitioner was charged with three counts of rape of a child, two counts of
aggravated sexual battery, and one count of aggravated assault. See State v. Jesse Cleo Minor, 1999
WL 1179143, at *1. Pursuant to settlement with the State, the petitioner entered a best-interest plea
on May 21, 1998 to one count of attempted rape of a child and received an eight-year, Range I
sentence. The remaining charges were dismissed. During the plea hearing, the prosecutor stated that
if the case had gone to trial, the State would have proven that in August of 1995, Stephanie Patton
asked nine-year-old A.D. to go with her to the petitioner’s business to do some painting. When they
arrived, the petitioner and Patton took A.D. to another location where Patton held a knife to A.D.’s
throat and ordered her to do what the petitioner wanted. The petitioner then had penile/vaginal
contact with A.D. and digital penetration of A.D. A.D. was subsequently forced to perform oral sex
on the petitioner while they watched a pornographic movie. The petitioner agreed that these were
the facts that the State would attempt to prove at trial.

       At the sentencing hearing, the trial court imposed incarceration as the manner of service of
the sentence. Id. On direct appeal, we affirmed the conviction, but modified the sentence to
eliminate the requirement of community supervision for life. Id. at *4.

        After the guilty plea and sentencing, the mother of the minor victim filed a civil lawsuit in
the Davidson County Circuit Court against the petitioner, his wife, and Stephanie Patton, who was
the petitioner’s co-defendant. The lawsuit alleged sexual assault of the victim and sought the award
of money damages. See Alana Dowell v. Jesse C. Minor, No. M2000-00378-COA-R9-CV, 2000 WL
489740, at *1 (Tenn. Ct. App. Apr. 26, 2000) (no Tenn. R. App. P. 11 application filed).

         On February 2, 2000, the petitioner, by and through his “next friend,” Leann Morrison, filed
a petition for post-conviction relief. The post-conviction court dismissed this petition as prematurely
filed because this Court had not yet issued its mandate from the direct appeal. Apparently, the
appellant did not appeal the dismissal.

         On April 20, 2000, the petitioner, through Ms. Morrison as “next friend,” again filed a
petition for post-conviction relief. The State moved to dismiss the petition, arguing that the petition
was improperly filed through a “next friend,” that the petitioner was at that time incompetent to
maintain the action, and that the statute of limitations would be tolled during the petitioner’s
incompetency. Although a written order of that dismissal does not appear in the record, the court
minutes reflect that the State’s motion to dismiss was granted on June 30, 2000. Other information
in the record indicates that the basis for that dismissal was the petitioner’s “next friend” status, which
the trial court ruled was not a permissible manner in which to bring a post-conviction action. As
with the previous filing, it appears that the petitioner did not appeal the dismissal.



                                                   -2-
        On July 13, 2000, the petitioner filed a third petition for post-conviction relief styled “Jesse
C. Minor, individually, and by and through counsel Hal D. Hardin v. State of Tennessee.” The
evidentiary hearing on the merits of the petition was scheduled for October 11, 2000. However, at
the outset of the hearing, the trial court expressed reservations regarding a potential conflict of
interest in that the petitioner’s post-conviction attorneys also represented the petitioner and his
family members in defense of the civil suit. In order to address these concerns, the trial court
appointed an attorney ad litem and ordered an independent mental evaluation of the petitioner to
determine if he was competent enough to chose his own legal counsel for the post-conviction
proceedings.

        On October 21, 2000, the petitioner filed a motion to reconsider the orders appointing the
attorney ad litem and requiring the mental evaluation. The caption of this pleading styled the case
“Jesse C. Minor, b/n/f/ Leann Morrison and by and through counsel, Hal D. Hardin v. State of
Tennessee.” This was the first attempt to inject Ms. Morrison as “next friend” into the third petition
for post-conviction relief. From this point forward, the petitioner’s filings have utilized the caption
adopted in this motion. A memorandum accompanying that motion complained of the trial court’s
“previous ruling” that Ms. Morrison could not proceed as “next friend.” The motion referenced the
June 30, 2000 order, which dismissed the second petition for post-conviction relief. As we have
noted, the dismissal was not appealed and apparently became a final order. Following a hearing, the
court denied this motion to reconsider by written order on December 4, 2000.

        The petitioner filed a motion in the lower court for certification of an interlocutory appeal
pursuant to Tennessee Rule of Appellate Procedure 9 in which the petitioner sought review of the
trial court’s rulings prohibiting Ms. Morrison from proceeding as the petitioner’s “next friend,”
appointing the attorney ad litem, and ordering the mental evaluation.

        The petitioner then filed a motion for recusal of the trial judge raising three bases for recusal:
(1) the appearance of partiality due to the trial judge’s former employment in the district attorney’s
office; (2) the appearance of bias because the trial judge met with one of the petitioner’s potential
witnesses in chambers without the parties or counsel being present; and (3) the trial judge conducted
an investigation into the court records of the collateral civil proceedings.

         The trial court denied both the petition for interlocutory appeal and the motion for recusal.
As a result, the petitioner filed an application for extraordinary appeal with this court. See Tenn. R.
App. P. 10. We granted the application to review three issues: (1) Whether a “next friend” may file
a petition for post-conviction relief on behalf of an incompetent prisoner; (2) if so, may a trial court,
sua sponte, order a mental evaluation of the prisoner or conduct other inquiries into the matter to
determine whether the “next friend” petition was properly filed on the prisoner’s behalf; and (3)
Whether the trial judge in this case properly denied the petitioner’s motion to recuse. Jesse C. Minor
v. State, No. M2001-00545-CCA-R10-PC, 2001 WL 1545498, at **1-4 (Tenn. Crim. App. at
Nashville, Dec. 5, 2001).




                                                   -3-
         Upon review of the issues presented in the Rule 10 application, this Court determined: (1)
that it “improvidently granted review” of the issues of whether a “next friend” may filed a post-
conviction petition on behalf of an incompetent prisoner and whether a post-conviction court may
sua sponte order a mental evaluation of the prisoner to determine whether the “next friend” petition
was properly filed because the issues were “not justiciable,” see Minor v. State, 2001 WL 1545498,
at **4-5; (2) that the trial court did not err in ordering a mental evaluation, appointing an attorney
ad litem, or inquiring into competency and conflicting interests; and (3) the trial court properly
denied the motion for recusal. As a result of our decision, this Court remanded the case for a
determination on the merits of the post-conviction petition.

        The petitioner did not appeal the decision of this Court on the issues presented in the Rule
10 application pursuant to Tennessee Rule of Appellate Procedure 11. The post-conviction trial
court subsequently ordered that the petition be set for a status hearing.

        On February 1, 2002, a motion was filed to set the petition for post-conviction relief for an
evidentiary hearing so that the trial court could rule on the merits of the petition. A second motion
was filed simultaneously requesting that Ms. Morrison be substituted as “next friend” in the matter.

        Prior to the evidentiary hearing on the petition, the trial court held a hearing to determine
whether the petitioner was mentally competent to choose and assist his own legal counsel in the case.
As a result of the testimony at this hearing, the trial court ruled that the petitioner was competent for
the purpose of choosing and assisting his legal counsel in the preparation of the post-conviction
petition.

                                       Post-Conviction Hearing

        An evidentiary hearing was held on the post-conviction petition on May 28, 2002. The trial
court dismissed the petition after hearing testimony from various individuals including trial counsel,
several medical personnel, the petitioner’s daughter, and a criminal law expert who rendered an
opinion as to the ineffective assistance of counsel claim.

        The evidence at the hearing consisted of the following. Trial counsel testified that during the
course of his initial preparation, he obtained the petitioner’s medical history and discovered that the
petitioner was diagnosed as impotent four years prior to the offense. As a result, trial counsel
interviewed the petitioner’s urologist, the petitioner, and the petitioner’s family. Trial counsel also
hired an investigator to look at the backgrounds of any potential State witnesses.

        When some of the family members expressed their concern about the petitioner’s mental
health, trial counsel immediately began to investigate their claims. He initially contacted Dr. David
MacMillan, a psychologist, who referred him to Dr. Ed Qualls, a forensic neuropsychologist. Trial
counsel asked Dr. Qualls to evaluate the petitioner by being “completely impartial.” He informed
Dr. Qualls that he did not want to bring him to court as a “hired gun.” He had several telephone
conversations with Dr. Qualls and specified that he asked the doctor for a determination regarding


                                                  -4-
the petitioner’s diminished capacity, competency, and insanity. Trial counsel understood Dr.
Qualls’s opinion to be that the petitioner “lacked the capacity to be able to form criminal intent for
this particular act,” but that “Dr. Qualls said that he felt that . . . [the petitioner] did at least have .
. . periods that he would be very, very aware of what was happening, on a particular day, . . . and .
. . he may go into some periods where he was not certainly aware of everything that was occurring
in his life. . . .” Dr. Qualls told trial counsel to ask the petitioner questions to see if he was oriented
with respect to time, place, and occurrence in order to ascertain the petitioner’s state of mind at any
given time.

         Trial counsel used the test suggested by Dr. Qualls and felt that there were “several
occasions” where the petitioner was very aware of what was going on, but that on other occasions,
he felt that the petitioner was not very aware of what was going on around him. Despite the
petitioner’s behavior, trial counsel felt that the petitioner was able to assist him in the preparation
of the defense because he was able to give specific details, thoughts, and ideas. The petitioner was
able to relay the facts surrounding the allegations to his attorney “on at least three or four occasions.”
When it came time to decide whether to go to trial or to plead, the petitioner was able to tell his
attorney specifically what he wanted and why. Counsel testified that there was no doubt in his mind
that the petitioner had an understanding of the legal procedures and the possible penalties he faced
if convicted of all the charges. At the time of the plea, the petitioner was scheduled to have open
heart surgery in the near future. Counsel discussed the possibility of a continuance with the district
attorney’s office, but got the impression that the plea would be withdrawn if he made such a request.
The petitioner did not want the offer withdrawn.

        Counsel testified that he discussed the possibility of a competency hearing with the petitioner.
The petitioner stated that he felt “pulled” because some family members wanted him to go forward
with a trial, while others felt it would be better if he accepted a plea offer. The petitioner relayed to
his attorney that he believed a jury would “crucify” him because he was “an old, white man” and the
victim was a “sweet, young, black girl.” After discussing the strengths and weaknesses of the case
with the petitioner and his family, the petitioner expressed his desire to go forward with the plea.

         Counsel stated that he never gave any serious consideration to a competency hearing because
both Dr. Qualls and Dr. MacMillan stated that the petitioner was competent and that he realized the
consequences of what was occurring in court. He also felt that the court would find the petitioner
competent. Counsel also had Dr. James Powers, a geriatric specialist at Vanderbilt, review all of the
petitioner’s medical records. Dr. Powers concluded that the petitioner was competent. Counsel
testified during cross-examination that nothing occurred during the guilty plea hearing to lead him
to believe that the petitioner did not understand what was happening.

         Dr. Qualls testified that he was contacted by Dr. MacMillan to perform an evaluation of the
petitioner in the role of a neuropsychologist. In response to that request, he prepared a battery of
tests, reviewed the petitioner’s medical records and performed an evaluation. In his opinion the
petitioner “suffered from vascular dementia also known at that time before the change in
nomenclature as multi-infarct dementia” and that “he did not present with the mental capacity to


                                                    -5-
have planned and executed the crimes as presented in the charges against him.” However, Dr. Qualls
did not ascertain whether the petitioner was competent to enter a guilty plea or stand trial because
he “was not asked to [by trial counsel].” Dr. Qualls was angered because he felt that trial counsel’s
testimony was inconsistent with what actually occurred. Specifically, Dr. Qualls stated that he never
had any discussions with trial counsel regarding the petitioner’s competency to stand trial.

        Overall, Dr. Qualls felt that the petitioner’s cognitive capacity declined over the years, but
that the petitioner exhibited some improvement in the psychotic features that he exhibited earlier.
Dr. Qualls felt that on petitioner’s “best day” he could understand a portion of the very complex
issue of the legal process, but that his understanding fluctuated.

        Dr. Qualls actually performed a competency evaluation of the petitioner on September 9,
1999, after the guilty plea and sentencing hearing, but prior to the post-conviction hearing, and found
that the petitioner’s ability to help his attorney and assist in his defense was severely compromised
and highly inconsistent. The petitioner understood in “broad terms” the consequences of the charges
against him, but did not understand the nuances of the legal proceedings. Dr. Qualls admitted on
cross-examination that he felt the petitioner was incompetent to stand trial when he first examined
the petitioner, but he did not relay this information to trial counsel because he was not asked for his
opinion on competency to stand trial.

        The petitioner also offered the testimony of Neil Cohen, a professor of law and preventive
medicine, on the issue of ineffective assistance of counsel. Professor Cohen reviewed the guilty plea
and the transcript of the sentencing hearing and concluded that there was “little doubt” in his mind
“that he [the petitioner] did receive ineffective assistance of counsel.” He felt that there was “no
doubt that competence to stand trial was a real issue that had to be addressed” and that it was
“remarkable” that it was not. Professor Cohen felt so strongly about the issue of the petitioner’s
competency to stand trial that he stated, “indeed, if I were tomorrow to teach a classic illustration
of when there should be an evaluation for competence, this would be the case.”

        Dr. Deborah Bryant, a general pediatrician with experience in forensic pediatrics, testified
that she examined the victim in November of 1995. She testified that in the parent/caretaker
interview that the victim’s mother stated that she had not questioned the victim and knows of no
other contact other than the penile/vaginal penetration. Dr. Bryant testified that the victim’s hymen
was intact at the time of the examination.

         The assistant district attorney who prosecuted the case up until the date of the plea also
testified. He indicated that he provided trial counsel with all materials pursuant to “Rule 16” and
that if he had known that the victim had engaged in “sex for hire” prior to the sentencing hearing that
he probably would have revealed it to the petitioner.

        Leeann Morrison, the petitioner’s daughter, testified that at the time of the plea she was
aware of the petitioner’s mental and physical problems. She thought that the petitioner did not want
to plead guilty, but believed that a jury would assume that he committed the offense. Ms. Morrison


                                                 -6-
also testified that the petitioner told her that he could not take the stand in his own defense. She was
concerned about the petitioner’s mental state at the time of the sentencing hearing because she felt
he could not understand what was taking place.

        The post-conviction petition seeks review of the following issues: (1) whether the petitioner
was denied effective assistance of counsel because counsel failed to request a competency hearing
and failed to properly investigate and present defenses in an adequate manner; (2) whether the
appellant was competent to understand the proceedings and waive his right to a trial by entering a
“best interest” plea; and (3) whether the State failed to disclose or permit access to exculpatory
evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).

                                Post-Conviction Standard of Review

        The post-conviction court’s findings of fact are conclusive on appeal unless the evidence
preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). During our review
of the issue raised, we will afford those findings of fact the weight of a jury verdict, and this Court
is bound by the post-conviction court’s findings unless the evidence in the record preponderates
against those findings. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State, 958
S.W.2d 138, 147 (Tenn. Crim . App. 1997). This Court may not reweigh or re-evaluate the evidence,
nor substitute its inferences for those drawn by the post-conviction court. See State v. Honeycutt,
54 S.W.3d 762, 766 (Tenn. 2001). However, the post-conviction court’s conclusions of law are
reviewed under a purely de novo standard with no presumption of correctness. See Fields v. State,
40 S.W.3d 450, 458 (Tenn. 2001).

                                  Ineffective Assistance of Counsel

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, the petitioner bears the burden of showing that (a) the services rendered by trial counsel
were deficient and (b) that the deficient performance was prejudicial. See Powers v. State, 942
S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient performance, the
petitioner must show that the services rendered or the advice given was below “the range of
competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). In order to demonstrate prejudice, the petitioner must show that there is a reasonable
probability that, but for counsel’s deficient performance, the result of the proceeding would have
been different. See Strickland v. Washington, 466 U.S. 668, 694 (1984). “Because a petitioner must
establish both prongs of the test to prevail on a claim of ineffective assistance of counsel, failure to
prove either deficient performance or resulting prejudice provides a sufficient basis to deny relief
on the claim.” Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997).

        As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record preponderates
against the court’s findings. See id. at 578. However, our supreme court has “determined that issues
of deficient performance by counsel and possible prejudice to the defense are mixed questions of law


                                                  -7-
and fact . . . ; thus, [appellate] review of [these issues] is de novo” with no presumption of
correctness. Burns, 6 S.W.3d at 461.

       Furthermore, on claims of ineffective assistance of counsel, the petitioner is not entitled to
the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. 1994). This Court may
not second-guess a reasonably-based trial strategy, and we cannot grant relief based on a sound, but
unsuccessful, tactical decision made during the course of the proceedings. See id. However, such
deference to the tactical decisions of counsel applies only if counsel makes those decisions after
adequate preparation for the case. See Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App.
1992).

       In the case herein, the petitioner argues that he was denied effective assistance from counsel
because counsel failed to request a competency hearing and failed to properly investigate and present
available defenses in an adequate manner.

                           A. Failure to Request a Competency Hearing

        In regards to the competency issue, the petitioner specifically argues that counsel was on
notice from the outset of the representation that the petitioner had potential mental health problems,
yet counsel employed medical personnel to evaluate the petitioner’s competency only at the time of
the commission of the offense rather than his competency to stand trial and also failed to request a
competency hearing. Petitioner argues that the trial counsel’s failure to request a competency
hearing was a violation of due process. The State argues that “trial counsel should not be faulted for
failing to request a mental competency hearing when none of the experts that reviewed the
petitioner’s medical history and files informed him that the petitioner was not competent to stand
trial.”

       After listening to the testimony at the post-conviction hearing, the trial court determined:

       [T]he case at bar is not a case in which counsel failed to conduct any investigation
       of the Petitioner’s potential for mental incompetence. Rather, even though
       Petitioner’s counsel did not request a competency hearing, counsel did present the
       testimony of Dr. Qualls at the sentencing hearing regarding the issue of the
       Petitioner’s mental competence . . . . Dr. Qualls proffered no testimony that would
       suggest that the Petitioner was unable to effectively assist his legal counsel in
       presenting and preparing his own defense.

       . . . [Dr. Qualls] deliberately failed to go beyond the limited purpose for which he was
       hired to evaluate the Petitioner. Because trial counsel reasonably relied upon Dr.
       Qualls’s evaluation as to the Petitioner’s mental competence and because that
       reliance on the opinion of a neuropsychiatric expert is not unreasonable, this Court
       finds that the assistance rendered by trial counsel cannot be deemed inadequate where
       the assistance of the mental health expert was intentionally deficient.


                                                 -8-
Further, the trial court found the testimony of trial counsel “credible” and felt that trial counsel’s
testimony “reflect[ed] the petitioner’s rational decision-making and ability to choose between
alternative selections.”

         It is well-established that subjecting a mentally incompetent defendant to trial violates his
right to due process of law. Drope v. Missouri, 420 U.S. 162, 171 (1975). The test applicable under
the federal constitution in evaluating a defendant’s mental competency to stand trial was set forth
by the United States Supreme Court in Dusky v. United States, 362 U.S. 402, 402 (1960), as:

       [W]hether he [the defendant] has sufficient present ability to consult with his lawyer
       with a reasonable degree of rational understanding - - and whether he has a rational
       as well as factual understanding of the proceedings against him.

       In other words, a defendant must possess the capacity to understand the nature and object of
the proceedings against him, to consult with counsel, and to assist in preparing his defense. Drope,
420 U.S. at 171. Tennessee courts have adopted this standard. See State v. Black, 815 S.W.2d 166,
173-74 (Tenn. 1991); State v. Leming, 3 S.W.3d 7, 8-9 (Tenn. Crim. App. 1998).

       Because a defendant has exclusive authority to make the ultimate decisions about his case
once having been fully informed of the rights and the potential consequences involved, the
competence of a criminal defendant is critically important. Zagorski v. State, 983 S.W.2d 654, 658-
61 (Tenn. 1998) (affirming a competent defendant’s right to decline to present mitigating evidence
during the sentencing phase of his capital trial). Consistent with this rationale, the American Bar
Association’s Standards for Criminal Justice provide that defense counsel should move for
evaluation of a defendant’ s competence to stand trial whenever he has a good faith doubt as to the
defendant’s competence, even if the client objects to such a motion being made. ABA Standards for
Criminal Justice § 7-4.2(c).

        Thus, in evaluating the petitioner’s claim of ineffective assistance of counsel herein, we must
determine whether petitioner’s counsel had reasonable cause to raise the issue of competency to
stand trial. We initially note that this is not a case in which counsel failed to conduct any
investigation of the petitioner’s history of mental illness. Rather, counsel reviewed records
pertaining to the petitioner’s medical past and consulted with at least one of the petitioner’s doctors,
a urologist, as a result of that review. Furthermore, trial counsel employed a neuropsychologist to
perform an evaluation on the petitioner to ascertain his competence at the time of the offense. The
records reviewed by counsel and the opinions of Dr. Qualls gave trial counsel the opinion that there
was “no doubt that . . . [the petitioner] had a full appreciation for the consequences of the criminal
case.” Counsel testified that he gave “no serious consideration” to a competency hearing because
the petitioner was able to relay the facts of the situation, understood his legal options, was able to
make an informed decision to enter into the guilty plea, and both Dr. Qualls and Dr. MacMillan told
him that the petitioner was competent and realized the consequences of what was occurring in court.
The trial court found that counsel’s “testimony on this issue is credible and reflects the petitioner’s
rational decision-making ability to choose between alternative selections.”


                                                  -9-
         “[Q]uestions of credibility of the witnesses, the weight and value of the evidence, and
resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact.”
State v. Odum, 928 S.W.2d 18, 23 (Tenn. 1996). Furthermore, this Court affords the post-conviction
court’s factual findings a presumption of correctness, rendering them conclusive on appeal unless
the record preponderates against the court’s findings. After a de novo review, we conclude that the
evidence in the record does not preponderate against the trial court’s decision that trial counsel was
effective despite the failure to request a competency hearing.

               B. Failure to Properly Investigate and Present an Adequate Defense

        The petitioner also complains that trial counsel failed to properly investigate and present
available defenses in an adequate manner. Specifically, the petitioner claims that trial counsel failed
to question potential witnesses, failed to obtain relevant information in a timely fashion, and failed
to compare the existing medical records with the testimony of the witnesses. The State counters that
the record does not preponderate against the trial court’s decision that trial counsel was not
ineffective.

        After hearing the testimony at the hearing on the post-conviction petition, the trial court
found that trial counsel’s testimony was credible regarding his investigation and strategic decisions
associated with the case. As a result, the trial court found counsel’s pre-trial performance was not
deficient.

        The evidence showed that trial counsel hired a private investigator to compile information
regarding the victim, the victim’s family, and other potential witnesses. Trial counsel obtained the
victim’s medical records, learned as much as he could about the co-defendant, and evaluated the
“glaring inconsistencies” in her statements regarding the case. He consulted two physicians
regarding the petitioner’s impotence, interviewed the petitioner’s own urologist, and hired Dr. Qualls
to perform a competency evaluation. Trial counsel relayed to the petitioner that he felt they had a
“persuasive” case based on the inconsistencies in the co-defendant’s story, the victim’s medical
history, and the petitioner’s lack of capacity to form criminal intent. After discussing the options
with the petitioner, the petitioner himself made the decision to plead guilty rather than face a trial.


        Petitioner herein did not establish both prongs of the test in order to prevail on a claim of
ineffective assistance of counsel. Henley, 960 S.W.2d at 580. In fact, he failed to satisfy even the
first prong by showing that counsel’s performance was deficient. Failure to prove either prong
provides a sufficient basis to deny relief. Id. The trial court afforded great credibility to the
testimony of trial counsel. As stated previously, we give that determination great deference on
appeal. See Odum, 928 S.W.2d at 23. We also afford the post-conviction court’s factual findings
a presumption of correctness, rendering them conclusive on appeal unless the record preponderates
against the court’s findings. After a de novo review, we conclude that the evidence in the record
does not preponderate against the trial court’s decision that trial counsel was effective in his
investigation of the case.


                                                 -10-
                                Voluntary and Knowing Guilty Plea

        The second issue raised by the petitioner in this post-conviction appeal questions the knowing
and voluntary nature of his “best interest” plea. The petitioner maintains that the State offered no
proof of his competency at the post-conviction hearing and that the trial court failed to order a
competency hearing when it was put on notice that there were issues regarding the petitioner’s
competency. The State argues that the evidence does not preponderate against the trial court’s
finding that the plea was knowingly and voluntarily entered and, therefore, the issue is without merit.


         When 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, 30 (1970). The court reviewing the voluntariness of a guilty plea
must look to the totality of the circumstances. See State v. Turner, 191 S.W.2d 346, 353 (Tenn.
Crim. App. 1995); see also Chamberlain v. State, 815 S.W.2d 534, 542 (Tenn. Crim. App. 1990).
Specifically, a reviewing court must consider “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).

         Looking at the totality of the circumstances, while trial counsel did not request a competency
hearing, counsel did present the testimony of Dr. Qualls at the sentencing hearing regarding the issue
of petitioner’s competence. Dr. Qualls’s testimony at the sentencing hearing was consistent with the
testimony he offered at the evidentiary hearing on the post-conviction petition. In his opinion, the
petitioner was not mentally competent to “formulate the intent, plan and execute the acts described
in the criminal charges against him.” Aside from this conclusion, Dr. Qualls made no comments that
would indicate that the petitioner was unable to effectively assist his counsel in preparing for trial,
standing trial, or entering a plea. Trial counsel relied on Dr. Qualls’s assessment of the petitioner
in making the determination as to whether or not to request a competency hearing.

         At the hearing on the “best interest” guilty plea, petitioner was able to articulate and
appropriately respond to questions asked of him by the trial court. In denying the post-conviction
relief based on the voluntariness of the guilty plea, the trial court noted that there was no “behavior
on behalf of the petitioner that would alert the court that the petitioner was mentally incompetent”
and that “petitioner’s responses to the questions posed him by the court at the guilty plea proceeding
were appropriate and germane to the subject matter at hand.” The trial court went on to point out
that the petitioner did not respond with the “stock” answers of “yes” and “no,” but that the petitioner
used such phrases as “that’s correct,” “no, I don’t,” “I would,” and “that’s right.” At the sentencing
hearing after the guilty plea when Dr. Qualls indicated that the petitioner might not be competent,
the trial court interrupted the proceedings to extensively question the petitioner about his


                                                 -11-
understanding of the nature of the criminal charges, his understanding of the guilty plea, his ability
to appreciate the consequences of the proceedings against him, and his ability to assist his legal
counsel in furtherance of his own defense. The trial court, satisfied with the petitioner’s responses,
proceeded with sentencing.

        Ultimately, the trial court found that while “not sophisticated in his understanding, the
petitioner was able to chose between alternatives and able to understand the consequences of the
legal proceeding,” that the petitioner failed to establish that he was incompetent to stand trial at the
time he entered his plea, and that the various witnesses at the sentencing hearing and evidentiary
hearing established that the petitioner was able to consult with his trial counsel, understand the
proceedings, and assist in the preparation of his defense.

        In the instant case, the trial court questioned the petitioner extensively in order to satisfy the
requirements of Blankenship. The trial court also accredited trial counsel’s testimony that the
petitioner was competent during his plea hearing, thus finding his guilty plea was entered knowingly
and voluntarily. The evidence in the record does not preponderate against the trial court's findings
in this case. Therefore, we conclude that, under the totality of the circumstances, the record fully
supports the trial court’s determination that the petitioner entered a knowing, intelligent and
voluntary guilty plea. This issue has no merit.

                              Failure to Disclose Exculpatory Evidence

        Finally, the petitioner argues on appeal that the State failed to disclose information and
permitted false testimony to be introduced at the sentencing hearing in violation of Brady v.
Maryland, 373 U.S. 83 (1963). Specifically, he argues that the trial court was under the impression
that the victim’s hospitalization rendered her unable to appear in court when the State knew that the
victim was hospitalized at the time of sentencing for reasons not related to the offense. Further, he
argues that the State knew that the victim “had been caught performing oral sex for money on some
fifteen young men” approximately one year after the incident, yet did not disclose the information
to the petitioner. The State argues that the victim’s mother indicated in her deposition that the victim
was receiving treatment as a result of the offense and that “the petitioner has not shown that the
result of the sentencing hearing would have been different had trial counsel been aware of the
information relative to the alleged promiscuous sexual behavior of the victim.”

        We observe at the outset that the petitioner waived these matters by failing to raise them on
direct appeal. See Tenn. Code Ann. § 40-30-206(g); Minor, 1999 WL 1179143, at *1. We therefore
conclude that he has waived these contentions. See State v. John L. Goodwin, III, No. M2001-
00044-CCA-R3-PC, 2002 WL 1827504, at *7 (Tenn. Crim. App. at Nashville, Aug. 2, 2002).
However, we observe that even if the petitioner had not waived these concerns, he failed to provide
the requisite clear and convincing evidence supporting them. See Tenn. Code Ann. § 40-30-210(f).

       In Brady v. Maryland, the Supreme Court held that “suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the evidence is material


                                                  -12-
either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”
Brady, 373 U.S. at 87; see also Hartman v. State, 896 S.W.2d 94, 101 (Tenn. 1995). In order to
establish a due process violation under Brady, four prerequisites must be met:

        1. The defendant must have requested the information (unless the evidence is
        obviously exculpatory, in which case the state is bound to release the information,
        whether requested or not);
        2. The state must have suppressed the information;
        3. The information must have been favorable to the accused; and
        4. The information must have been material.

State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). The burden of proving a Brady violation rests
with the defendant, and the violation must be proven by a preponderance of the evidence. Id. When
determining the materiality of undisclosed information, a reviewing court must establish whether “in
[the] absence [of the information, the defendant] received a fair trial, understood as a trial resulting
in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434 (1995). In other words,
evidence is considered material only if there is a reasonable probability that had the evidence been
disclosed to the defense, the results of the proceeding would have been different. Edgin, 902 S.W.2d
at 390-91.

        Here, the petitioner complains that the State failed to turn over information regarding the
nature of the victim’s hospitalization at the time of the sentencing hearing and information regarding
the promiscuous behavior of the victim that occurred about a year after the incident with the
petitioner. The petitioner argues that the behavior of the victim goes to the credibility of the victim.
The petitioner also claims that the State allowed false testimony by the victim’s mother at the
sentencing hearing regarding the victim’s hospitalization. The petitioner bases his argument on the
deposition of the victim’s mother which was taken during the related civil case in May of 1999,
approximately a year after the guilty plea.

        The evidence in the record reveals that in the deposition, the mother asserted that she told
the district attorney about the sexual incident and hospitalization. The petitioner therefore claims
that the information was made known to the State prior to the sentencing hearing by the victim’s
mother, but that neither the District Attorney nor the detective disclosed this information to the court
or the petitioner.

        Regarding the hospitalization, the excerpt from the deposition of the victim’s mother
indicates that the victim was receiving treatment for an incident involving her stepfather as well as
the “rape.” The State claimed no knowledge of the sexual promiscuity of the victim. In fact, the
assistant district attorney who prosecuted the case up until the date of the guilty plea testified at the
post-conviction hearing that he provided trial counsel with all material that was available to him
pursuant to Brady. He also testified that had he known that the victim had engaged in “sex for hire”
prior to sentencing that he probably would have revealed that information to the defense.



                                                  -13-
        The trial court found that “the reasons about why the victim may or may not have been
present at the sentencing hearing, which occurred after the entry of the guilty plea, are not relevant
to issues of post-conviction relief.” Further, in regards to the alleged promiscuous behavior of the
victim, the trial court found that “the petitioner has failed to prove by a preponderance of the
evidence that the withheld information, while favorable, was material in nature;” that the petitioner
“has failed to prove the reasonable probability that the result of the sentencing hearing would have
been different had his trial counsel been aware of the information;” that the information was not
“directly exculpatory in nature;” and that the evidence would not have been persuasive at the
sentencing hearing. The trial court also held that the evidence of the victim’s alleged behavior was
not admissible as impeachment evidence under Tennessee Rule of Evidence 412(c) because it was
not evidence of a pattern of behavior and the evidence was unfairly prejudicial to the victim.

         After a de novo review, we conclude that the record does not preponderate against the
findings of the trial court. The petitioner failed to show that the allegedly withheld evidence was
material because he did not show: (1) that the State suppressed the information; (2) that the
information was obviously exculpatory; (3) that the information was favorable to the petitioner; or
(4) that the information was material in that there was a reasonable probability that had the evidence
been disclosed to the defense, the results of the proceeding would have been different.
Consequently, this issue is without merit.

                                            Conclusion

      For the foregoing reasons, we conclude that none of the petitioner’s claims merit relief.
Accordingly, the judgment of the post-conviction court is affirmed.


                                                       ___________________________________
                                                       JERRY L. SMITH, JUDGE




                                                -14-
