         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     April 13, 2004 Session

                 MICHAEL R. LEWIS v. STATE OF TENNESSEE

                     Appeal from the Circuit Court for Lauderdale County
                          No. 7127 Joseph H. Walker, III, Judge



                     No. W2003-01935-CCA-R3-PC - Filed June 28, 2004


The petitioner, Michael R. Lewis, appeals the Lauderdale County Circuit Court’s dismissal of his
petition for post-conviction relief. On appeal, he claims that ineffectiveness of trial counsel resulted
in an invalid, 2001 jury conviction of reckless aggravated assault and that post-conviction relief from
the conviction is warranted. Because the record supports the post-conviction court’s findings and
conclusion, we affirm.

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

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which DAVID G. HAYES and
NORMA MCGEE OGLE, JJ., joined.

William Dan Douglas, Jr., Ripley, Tennessee, for the Appellant, Michael R. Lewis.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; Elizabeth
T. Rice, District Attorney General; and Tracey A. Brewer, Assistant District Attorney General, for
the Appellee, State of Tennessee.

                                              OPINION

               On direct appeal this court affirmed the petitioner’s conviction. See State v. Michael
Lewis, No. W2001-03121-CCA-R3-CD (Tenn. Crim. App., Jackson, Mar. 26, 2003). This court’s
opinion on direct appeal provides a brief explication of the facts of the case:

                       The defendant and the victim were inmates at West Tennessee
               State Penitentiary. Unit Six is the maximum security unit, which
               contains four “pods” or housing areas. Inmates in maximum security
               who do not have jobs are required to remain in their cells
               twenty-three hours a day and are prohibited from contacting other
               inmates. When an inmate is out of his cell, he must wear leg
               restraints and handcuffs.
        Kevin McWilliams was a co-defendant and former
correctional officer at the prison who pled guilty to charges arising
from these events. He testified that on December 15, 2000,
co-defendant William Lynn Webb, who was tried along with the
defendant, requested McWilliams’ presence at B-Pod. When he
arrived, Webb asked him if he had experienced problems with two
inmates arguing, and McWilliams did not respond. Donald Phillips,
the victim, returned to B-Pod where his cell was located from the
laundry room where he had been working. McWilliams stated that
Webb instructed him to remove Phillips’ restraints and to retrieve the
defendant from his cell. Webb told McWilliams he wanted to put the
two inmates together because he was tired of hearing them argue.

        McWilliams testified that upon removing Phillips’ restraints,
he had Phillips strip down to his boxer shorts and socks. He stated he
did not observe a weapon on Phillips. Phillips then entered a room,
and McWilliams went upstairs to retrieve the defendant from his cell.
McWilliams stated he searched the defendant visually and rectally
and was “pretty sure” the defendant did not have a weapon.

        McWilliams then permitted the defendant to exit his cell
without wearing restraints. McWilliams testified the defendant
walked to the edge of the stairs, ran down the stairs and into the room
where Phillips was located, and slammed the door. The defendant
and Phillips then began fighting. Phillips began bleeding and yelled
that the defendant had a “shank.” McWilliams stated he and Webb
entered the room and separated the inmates.

        McWilliams testified he and Webb escorted Phillips to the
prison nurse for treatment. McWilliams stated he observed injuries
to Phillips’ back and head. He further stated Phillips was bleeding
badly from an injury to his back and opined Phillips’ injuries were
caused by a shank, a homemade knife. McWilliams stated that
although he never saw a weapon, a shank can be hidden in the palm
of a hand or in a person’s hair.

         McWilliams testified Webb prepared a statement, which they
both signed. According to the statement, Phillips was injured when
he fell down the stairs. McWilliams stated Webb informed him that
if they stated Phillips fell down the stairs, they would not be
punished. Webb also instructed Phillips to tell the nurse he fell down
the stairs, and Phillips complied. McWilliams testified that although



                                 -2-
both inmates agreed to a fist fight, Phillips never agreed to being
attacked by a shank.

         Carolyn Tatum, the personnel manager at the prison, testified
Webb told her that the two inmates argued for the majority of the day,
and that McWilliams wanted to allow the two inmates to fight. Webb
told her that he escorted one inmate to a room, while McWilliams
escorted the other inmate. Tatum stated Webb informed her that
during the fight, one inmate produced a shank, which the officers did
not know he had, and stabbed the other inmate several times. She
testified that when she asked Webb what he had done with the shank,
he replied, “Well, don’t worry. It’s not in the building.”

        Kathy Privett, an LPN at the prison, testified that on
December 15th, between 5:30 p.m. and 6:00 p.m., an officer informed
her someone had been injured. She stated she examined Phillips,
who was bleeding “rather profusely” from his back. Nurse Privett
stated she prepared an incident traumatic injury report, in which she
indicated that Phillips had a small, semicircular cut on his neck,
several cuts on his back, a cut on his arm, and a cut on his head. One
of the cuts on Phillips’ back was approximately one centimeter deep
with skin and flesh missing. Nurse Privett testified Phillips informed
her that he fell down the stairs; however, he showed no signs of
bruising. Phillips was then sent to a hospital and returned to the
prison later that night.

        Cheryl Manns, the custodian of medical records at Lauderdale
County Baptist Memorial Hospital, testified Phillips had cuts on his
right shoulder, his neck, and his left shoulder blade, and a wound on
his back, which required staples.

         Frederick Zonge, an inmate, testified that his cell was located
in Unit Six. While Phillips, who worked in the laundry room, was
passing bags of laundry to each cell, the defendant discovered Phillips
did not fold his clothes. Zonge stated that in the penitentiary inmates
who want their clothes folded must give the laundry worker “a little
something” in order for him to fold them. The defendant was angered
by the fact that Phillips folded Zonge’s clothes, but did not fold his
clothes. Zonge stated the defendant believed this to be a racial issue
because Phillips was an “Aryan want-to-be,” who claimed to be
affiliated with the White Aryan Resistance.




                                  -3-
                         Zonge testified Phillips and the defendant argued and cursed
                 at each other. Phillips then challenged the defendant to a fight, and
                 the defendant agreed. The defendant told Phillips to persuade Webb
                 to allow them to “fight it out.” When Zonge asked Webb if he would
                 permit the inmates to fight, Webb stated he would likely allow it. A
                 short time later, Zonge observed Webb strip search Phillips, and
                 Zonge did not observe a weapon in Phillips’ possession. After
                 searching Phillips, Webb yelled at McWilliams, who was standing
                 near the defendant’s cell, that he did not find anything. McWilliams
                 replied, “I’ve got it covered,” and opened the defendant’s cell door.
                 Zonge testified the defendant ran down the stairs and into the room
                 before Webb had a chance to stop him. The defendant closed the
                 door; he and Phillips fought; and during the fight, Phillips began
                 bleeding “like a stuck hog.” Zonge stated that upon viewing the
                 blood, Webb yelled, “He’s got a knife,” entered the room, and broke
                 up the fight.

Id., slip op. at 2-3.

                 The post-conviction court conducted a hearing. The petitioner’s elbow counsel at trial
testified that he met with the petitioner four or five times. Prior to trial, the petitioner agreed that
he had acquired the prior convictions listed by the state and understood that he qualified as a Range
II multiple offender. Counsel was excused from remaining in the courtroom during the trial court’s
instructing the jury; however, elbow counsel did attend the sentencing hearing and served as the
petitioner’s appointed counsel on direct appeal. He testified that, in reviewing the case for appeal,
he rejected raising the claim that the victim was an accomplice whose testimony must be
corroborated because he had opined that, even if the victim were an accomplice, the evidence at trial
contained corroboration. He agreed that at the petitioner’s sentencing hearing, he opined to the trial
court that the petitioner qualified as a multiple offender, based upon two prior felony offenses that
were committed on different dates.

                The petitioner testified in the evidentiary hearing that his elbow counsel-appellate
counsel did not believe the issues relative to the victim’s status as an accomplice were worthwhile
for appeal. He stated his belief that the jury would have viewed the evidence in a different light had
they been instructed that the victim was an accomplice. He testified that, during sentencing, the
court erroneously believed that his prior Class E felony conviction was a Class D felony; counsel
failed to raise that issue on appeal. He posited that the mistake resulted in the use of a higher
sentencing classification.

                The post-conviction court entered an order in which it found that the petitioner had
failed to establish either deficient performance of appellate counsel or prejudice from counsel’s
appellate representation of him. Specifically with regard to the claim that the petitioner did not
qualify as a multiple offender, the court found that the petitioner’s prior felonies consisted of a Class


                                                  -4-
B robbery and a Class E theft. In the present case, the petitioner was convicted of a Class D offense.
The post-conviction court noted that according to Tennessee Code Annotated section 40-35-106(a),
the petitioner qualified as a multiple offender. See Tenn. Code Ann. § 40-35-106(a) (2003)
(defendant qualifies as multiple offender after acquiring a minimum of two prior felony convictions
“within the conviction class, a higher class, or within the next two (2) lower conviction classes” of
the conviction class being currently sentenced).

                 On appeal, the petitioner claims that appellate counsel deficiently performed in failing
to raise the issues of the trial court failing to instruct the jury that the victim was an accomplice and
of the offender classification for sentencing purposes. Because the record supports the post-
conviction court’s determinations, we affirm the denial of post-conviction relief.

               The post-conviction petitioner bears the burden of proving his or her allegations by
clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997). On appeal, the appellate
court accords to the trial court’s findings of fact the weight of a jury verdict, and these findings are
conclusive on appeal unless the evidence preponderates against them. Henley v. State, 960 S.W.2d
572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997).

                When a post-conviction court denies a petitioner’s claim of ineffective assistance of
counsel, this court, on appeal, must determine whether the evidence preponderates against a
post-conviction court’s findings (1) that counsel’s performance was within the range of competence
demanded of attorneys in criminal cases, Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and/or
(2) that any deficient performance did not prejudice the petitioner, Strickland v. Washington, 466
U.S. 668, 687-79, 104 S. Ct. 2052, 2064-2069 (1984). See also Powers v. State, 942 S.W.2d 551,
557 , 466 (Tenn. Crim. App. 1996). Courts need not address these components in any particular
order or even address both if the petitioner fails to meet his burden with respect to one. Henley, 960
S.W.2d at 580.

                 In evaluating counsel’s performance, this court should not examine every allegedly
deficient act or omission in isolation, but rather we view the performance in the context of the case
as a whole. State v. Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The primary concern
of the court should be the fundamental fairness of the proceeding of which the result is being
challenged. Id. Therefore, this court should not second-guess tactical and strategic decisions by
defense counsel. Henley, 960 S.W.2d at 579. Instead, this court must reconstruct the circumstances
of counsel’s challenged conduct and evaluate the conduct from counsel’s perspective at the time.
Id.; see also Irick v. State, 973 S.W.2d 643, 652 (Tenn. Crim. App. 1998).

                Even if the petitioner establishes that counsel’s performance was not within the
requisite range of competence, he must also demonstrate a reasonable probability that the result of
the proceeding would have been different but for the defective performance of counsel. Henley, 960
S.W.2d at 580. A court must




                                                  -5-
               “consider the totality of the evidence before the judge or jury. Some
               of the factual findings will have been unaffected by the errors, and
               factual findings that were affected will have been affected in different
               ways. Some errors will have had a pervasive effect on the inferences
               to be drawn from the evidence, altering the entire evidentiary picture,
               and some will have had an isolated trivial effect. . . .”

Henley, 960 S.W.2d at 580 (quoting Strickland, 466 U.S. at 696-97, 104 S. Ct. at 2069).

                We agree with the post-conviction court that the petitioner failed to carry his burden
of establishing his claims of ineffective assistance of appellate counsel by clear and convincing
evidence. Although the petitioner represented himself during the trial, counsel was appointed to
represent him on appeal. It is appellate counsel’s responsibility to determine the issues to present
on appeal. State v. Matson, 729 S.W.2d 281, 282 (Tenn. Crim. App. 1986) (citing State v. Swanson,
680 S.W.2d 487, 491 (Tenn. Crim. App. 1984)). This responsibility addresses itself to the
professional judgment and sound discretion of appellate counsel, Porterfield v. State, 897 S.W.2d
672, 678 (Tenn. 1995), and neither the state nor federal constitution requires that every conceivable
issue be raised on appeal, Campbell v. State, 904 S.W.2d 594, 597 (Tenn. 1995). The determination
of which issues to raise is a tactical or strategic choice. Id. The petitioner failed to demonstrate how
counsel abused his discretion in failing to present either the victim/accomplice-instruction issue or
the offender classification issue on appeal.

                The petitioner did not present the jury instructions as evidence in his post-conviction
proceeding, and we are at a loss to know how the jury was instructed on the issues of accomplice
definition and corroboration. Appellate counsel testified that he reviewed the instructions and found
no instruction issues worthy of appellate presentation. Additionally, the petitioner failed to
demonstrate how or why he was prejudiced by the claimed failure to raise instruction issues on
appeal.

                The same is true with respect to the failure to challenge in the sentencing hearing or
on appeal the petitioner’s classification as a Range II multiple offender. The petitioner appears to
be under the mistaken belief that had the trial court discerned that his prior theft conviction was of
a Class E felony, he would not have qualified as a multiple offender. However, the prior Class E
felony conviction clearly qualified as one of the two prior convictions needed for Range II
placement. It occupies an offense class less than two classes below reckless aggravated assault, the
Class D offense for which the petitioner had been convicted and was being sentenced. Thus, we see
neither deficient performance nor prejudice in counsel’s failure to raise this issue.

               Discerning no error, we affirm the denial of post-conviction relief.




                                                  -6-
      ___________________________________
      JAMES CURWOOD WITT, JR., JUDGE




-7-
