         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                         FILED
                          AT KNOXVILLE
                                                         March 9, 2000

                      FEBRUARY 2000 SESSION            Cecil Crowson, Jr.
                                                      Appellate Court Clerk




WILLIAM LEWIS HOWELL,           )
                                )    NO. E1999-01502-CCA-R3-PC
      Appellant,                )
                                )    KNOX COUNTY
VS.                             )
                                )    HON. MARY BETH LEIBOWITZ,
STATE OF TENNESSEE,             )    JUDGE
                                )
      Appellee.                 )    (Post-Conviction)



FOR THE APPELLANT:                   FOR THE APPELLEE:

LESLIE M. JEFFRESS                   PAUL G. SUMMERS
P. O. Box 2664                       Attorney General and Reporter
Knoxville, TN 37901
                                     R. STEPHEN JOBE
                                     Assistant Attorney General
                                     Cordell Hull Building, 2nd Floor
                                     425 Fifth Avenue North
                                     Nashville, TN 37243-0493

                                     RANDALL E. NICHOLS
                                     District Attorney General

                                     CHARME J. KNIGHT
                                     Assistant District Attorney General
                                     400 Main Street
                                     P. O. Box 1468
                                     Knoxville, TN 37901-1468




OPINION FILED:



AFFIRMED



JOE G. RILEY, JUDGE
                                     OPINION


       Petitioner, William Lewis Howell, appeals as of right the Knox County

Criminal Court’s dismissal of his petition for post-conviction relief. The sole issue

for review is whether petitioner was deprived of the effective assistance of counsel

with regard to his 30-year sentence for his 1986 conviction for aggravated sexual

battery. After careful review, we AFFIRM the dismissal of the petition.



                              PROCEDURAL HISTORY



       Petitioner was convicted of aggravated sexual battery in 1986, was classified

as a Range II especially aggravated offender, and received a sentence of 30 years.

See Tenn. Code Ann. § 40-35-107 (1982). The conviction and sentence were

affirmed by this Court on direct appeal. State v. William Howell, C.C.A. No. 1113,

Knox County (Tenn. Crim. App. filed June 30, 1987, at Knoxville). Petitioner sought

post-conviction relief. After two summary dismissals by the trial court and two

remands from this Court, this matter was heard on the merits in January 1999.1

Following the hearing, the trial court dismissed the petition.



                             FACTUAL BACKGROUND



       The relevant facts are undisputed. At the time of commission of the instant

aggravated sexual battery, petitioner was on bail for theft of an automobile. Prior

to his conviction and sentence for aggravated sexual battery, petitioner entered into

a plea agreement in 1985 in the automobile theft case whereby he pled guilty to the

lesser-included felony offense of joyriding. See Tenn. Code Ann. § 55-5-104.2



       1
       The summary dismissals were ordered by Judge Ray L. Jenkins. Judge Mary Beth
Leibowitz conducted the hearing on the merits.
       2
       Petitioner was sentenced for joyriding in 1985. At that time joyriding was a felony.
The Sentencing Act of 1989, not relevant here, provides that the unauthorized use of an
automobile is a Class A misdemeanor. See Tenn. Code Ann. § 39-14-106.

                                            2
When petitioner was sentenced for aggravated sexual battery in 1986, he was

deemed an especially aggravated offender based upon the trial court’s finding that

the sexual offense was committed while the defendant was on bail for a prior felony

and was “ultimately convicted of such prior felony.” See Tenn. Code Ann. § 40-35-

107(3)(A)(1982) (repealed and reenacted 1989). 3



       Trial counsel did not raise any sentencing issues on direct appeal. Petitioner

now claims his trial counsel was ineffective for failing to argue that his conviction for

the lesser-included felony offense of joyriding was different from the original charge

of automobile theft; therefore, he contends it could not serve as the basis for the

especially aggravated offender status. We respectfully disagree.



                                      ANALYSIS



       This Court reviews a claim of ineffective assistance of counsel under the

standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner

has the burden to prove that (1) the attorney’s performance was deficient, and (2)

the deficient performance resulted in prejudice to the defendant so as to deprive

him of a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Goad v. State, 938

S.W.2d 363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994);

Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990).



       In order to address the issue of ineffective assistance of counsel, we must

interpret Tenn. Code Ann. § 40-35-107(3)(A)(1982) which defined an “especially

aggravated offense” as:

             (3) A felony committed while on any of the following forms of
       release status if such release is from a prior felony conviction:




       3
       As noted infra, this same language appears in the 1989 Sentencing Act as an
enhancement factor. See Tenn. Code Ann. § 40-35-114(13)(A)(1997).

                                           3
              (A) Bail, if the defendant is ultimately convicted of such prior felony ...



       It is undisputed that petitioner was on bail for automobile theft when the

instant offense was committed. It is further undisputed that prior to the instant

conviction and sentence, he pled guilty to the lesser-included felony offense of

joyriding and not automobile theft. Thus, the issue is whether a lesser-included

felony offense is encompassed within “such prior felony” as used in the statute. For

criminal offenses, a statute should be construed according to the fair import of their

terms in order to promote justice and to effect the objectives of the criminal code.

State v. Lewis, 958 S.W.2d 736, 739 (Tenn. 1997).



       Although the 1989 Sentencing Act no longer recognizes an especially

aggravated offense, much of the language of the former especially aggravated

offense statute, Tenn. Code Ann. § 40-35-107(1982), now appears under the

enhancement factors section of the present code. See Tenn. Code Ann. § 40-35-

114 (1997). In fact, Tenn. Code Ann. § 40-35-114 (13)(A)(1997) uses the exact

language utilized in former Tenn. Code Ann. § 40-35-107(3)(A)(1982). This Court

has applied this enhancement factor under the 1989 Act where the defendant was

on bail for aggravated assault and was ultimately convicted of felony reckless

endangerment. See State v. Larry Michael Williams, C.C.A. No. 02C01-9201-CC-

00010, Carroll County (Tenn. Crim. App. filed July 1, 1992, at Jackson).



       We are of the opinion that a person on bail for a felony offense, who

committed another felony, was an especially aggravated offender under Tenn. Code

Ann. § 40-35-107(3)(A)(1982); provided that person was ultimately convicted of that

specific prior felony or a lesser-included felony offense. The emphasis of the

statute is upon the prior felony conviction, not a specific felony.




                                           4
                                  CONCLUSION



       We conclude that counsel was not ineffective for failing to raise this

sentencing issue since petitioner would not have prevailed on the issue.

Concluding that petitioner has failed to establish prejudice as a result of counsel’s

performance, we AFFIRM the judgment of the trial court.




                                          ______________________________
                                          JOE G. RILEY, JUDGE



CONCUR:



_______________________________
THOMAS T. WOODALL, JUDGE



________________________________
JAMES CURWOOD WITT, JR., JUDGE




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