         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON


                   KELVIN HOOKS v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                           No. P-27594 Arthur T. Bennett, Judge



                     No. W2004-02238-CCA-R3-PC - Filed May 25, 2005




This matter is before the Court upon the motion of appointed counsel seeking permission to
withdraw from further representation of the Appellant in the above-captioned appeal pursuant to
Rule 22, Rules of the Tennessee Court of Criminal Appeals. Counsel claims that there are no
meritorious issues available for appellate review. Counsel has complied with the procedural
requirements of Rule 22, Rules of the Tennessee Court of Criminal Appeals. The Petitioner, Kelvin
Hooks, has failed to submit a responsive brief pursuant to Rule 22(E), Rules of the Tennessee Court
of Criminal Appeals. After careful review of the motion, the accompanying Anders brief, and the
appellate record, including the transcripts of the post-conviction evidentiary hearing, we agree with
counsel’s assertion that the appeal has no merit and is, accordingly, frivolous within the meaning of
Rule 22, Rules of the Tennessee Court of Criminal Appeals. Counsel’s motion to withdraw is
granted and the judgment of the trial court is affirmed pursuant to Rule 20, Rules of the Tennessee
Court of Criminal Appeals.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed Pursuant to Rule 20, Rules of the
Court of Criminal Appeals

J.C. MCLIN , J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN EVERETT
WILLIAMS, JJ. joined.

C. Michael Robbins, Memphis, Tennessee, for the appellant.

Paul G. Summers, Attorney General & Reporter, for the appellee, the State of Tennessee.




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                                    MEMORANDUM OPINION


        The Petitioner, Kelvin Hooks, appeals pursuant to Rule 3, Tennessee Rules of Appellate
Procedure, the trial court’s denial of post-conviction relief. Petitioner was convicted of second
degree murder and felony murder by a Shelby County jury. See State v. Kelvin Hooks, No. W2001-
01516-CCA-R3-CD, 2002 WL 31466920, *1 (Tenn. Crim. App., at Jackson, Nov. 1, 2002), perm.
to appeal denied, (Tenn. Feb. 24, 2003). The trial court merged the two convictions and sentenced
the Petitioner to life on the felony murder conviction. Id. This Court affirmed the Petitioner’s
conviction and sentence on direct appeal. Id.

         On August 13, 2003, Petitioner filed a pro se petition for post-conviction relief. As grounds
for relief, Petitioner complained that counsel was ineffective, that the trial court denied him of his
right to trial by jury, and that the prosecutor failed to disclose exculpatory evidence. Counsel was
appointed to represent the Petitioner on September 2, 2003. On February 12, 2004, appointed
counsel filed an amended petition. The amended petition relied solely upon the ground of ineffective
assistance of counsel. An evidentiary hearing was held, after which, the trial court denied relief. In
denying relief, the trial court found that, as the Petitioner failed to testify at the post-conviction
hearing, his claims regarding specific instances of counsel’s deficiencies were unsupported by the
proof. The court further acknowledged that Petitioner’s claims that trial counsel was ineffective for
failing to challenge the jury instruction defining “knowing” was moot as the Petitioner was convicted
of first degree felony murder. A timely notice of appeal was filed.

       Appointed counsel has filed a Rule 22 motion and accompanying brief stating that after a
conscientious review of the record and law, he has found nothing in the record that might arguably
support an appeal. We agree.

        The Petitioner bears the burden in post-conviction proceedings of proving any factual
allegations in his petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f)
(2003). Moreover, on appeal, the findings of fact of the post-conviction court are afforded the
weight of a jury verdict and are conclusive unless the evidence in the record preponderates against
those findings. Henley v. State, 960 S.W.2d 572, 578, 579 (Tenn. 1997). In contrast, we review de
novo the post-conviction court’s application of the law and the court’s determination of mixed
questions of law and fact.

        Petitioner alleges that trial counsel failed to adequately and sufficiently confer with Petitioner
regarding the implications of testifying at trial. Petitioner also complains that he did not trust or have
confidence in counsel’s ability to defend him. He contends that this distrust resulted in his testifying
falsely at trial, i.e., that he was not at the crime scene. Petitioner now asserts that had counsel
properly advised him as to his decision to testify he would have testified that the shooting was in
self-defense. Petitioner refused to testify at the post-conviction hearing. The trial court found that
nothing in the record demonstrated that trial counsel was deficient in his performance or preparation.



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        Our review of the record and the relevant legal authority in this matter convinces us that the
trial court made no reversible error in denying the Petitioner relief. In addition, we have considered
counsel’s Rule 22 brief. Based upon our review of the record and pleadings, we agree with counsel’s
assertion that the appeal has no merit and is frivolous within the meaning of Rule 22, Rules of the
Court of Criminal Appeals. Accordingly, appointed counsel C. Michael Robbins’ motion to
withdraw is granted. Additionally, the trial court’s action was rendered in a proceeding without a
jury and was not a determination of guilt. In its written order denying post-conviction relief, the trial
court addressed the issues raised by the Petitioner and entered its findings and conclusions regarding
these issues. The evidence does not preponderate against the trial court’s findings and no error of
law requiring a reversal of the trial court’s action is apparent upon the record. We are convinced that
the trial court reached the correct result. Because an opinion in this matter would have no
precedential value, we affirm the trial court’s action in accordance with Rule 20, Rules of the
Tennessee Court of Criminal Appeals.



                                                ___________________________________
                                                J.C. MCLIN, JUDGE




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