         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                      July 9, 2003 Session

                JEREMIAH A. LEAVY v. STATE OF TENNESSEE

                     Direct Appeal from the Tipton County Circuit Court
                            No. 3275B    Joseph H. Walker, Judge



                    No. W2001-03031-CCA-R3-PC - Filed January 8, 2004


A Tipton County jury convicted the Petitioner of first degree murder, felony murder, aggravated
robbery, and especially aggravated kidnapping. The trial court merged the two murder convictions
and imposed a single life sentence with the possibility of parole. On direct appeal, this Court
affirmed the conviction, and the Tennessee Supreme Court denied the Defendant’s application for
permission to appeal. The Petitioner then sought post-conviction relief in the trial court, alleging
that he was denied effective assistance of counsel. Following a hearing, the post-conviction court
dismissed the petition. The Petitioner filed a motion to reconsider, which the trial court denied, and
the Petitioner appealed. Finding no error, we affirm the trial court’s dismissal of the petition.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
JOHN EVERETT WILLIAMS, J., joined.

Jeannie Kaess, Jackson, Tennessee, for the appellant, Jeremiah A. Leavy.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; J. Ross Dyer,
Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Walt Freeland,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                             OPINION
                                      I. Factual Background

       Our Court summarized the underlying facts of the Petitioner’s case on direct appeal as
follows:

              On April 27, 1997, at approximately 11:00 a.m., juvenile defendants Adams
       and Leavy, along with two adult co-defendants, entered the 71-year-old victim’s
       home. They intended to steal a large amount of money rumored to be kept in the
       house. After fruitlessly ransacking the residence, they sat down to watch basketball
         on television and await the victim’s return. Sometime shortly before 2:00 p.m., the
         victim returned from visiting his convalescent wife in a nursing home.

                 When the victim entered the kitchen, the four young men ambushed him. The
         adults bound the victim’s hands and feet with coat hangers and duct tape. Then, he
         was placed in the bathtub, which the perpetrators previously filled with water and
         kerosene. Before leaving, they covered the victim with various blankets, drapes, and
         pieces of furniture. The victim died of asphyxia.

                 The juvenile and adult defendants took twenty dollars from the victim’s
         wallet, a microwave oven, and a kerosene space heater. They left in the victim’s car
         shortly after 2:00 p.m. and spent the afternoon driving around eating snacks
         purchased with the victim’s money. They abandoned the car in a muddy field after
         getting stuck and hitchhiked back home sometime between 4:00 and 4:30 p.m.

                 Subsequently, both juvenile defendants gave statements admitting their
         involvement in the crimes. Authorities took the juveniles into custody on April 28,
         1997. The juvenile court entered a detention order on May 1, 1997. On June 3,
         1997, the juvenile court conducted the first of two transfer hearings and transferred
         the juveniles to circuit court on the charges of premeditated first degree murder,
         felony murder, and aggravated robbery. The juvenile court ordered that both
         juveniles be held without bond. At a second transfer hearing, conducted July 3,
         1997, the juvenile court transferred the juveniles to circuit court on the charge of
         especially aggravated kidnapping.1 At the close of the second hearing, the juvenile
         court again refused to set a bond for defendants. However, at their appearance in
         circuit court on July 18, 1997, the trial judge set $100,000 bonds for each.

State v. Adams and Leavy, No. W1998-00531-CCA-R3-CD, 1999 WL 1565193, at *1-2 (Tenn.
Crim. App., at Jackson, Dec. 21, 1999), perm. app. denied (Tenn. July 31, 2000).

         A Tipton County jury convicted the Petitioner of first degree murder, felony murder,
aggravated robbery, and especially aggravated kidnapping on March 17, 1998. The trial court
merged the two murder convictions and imposed a single life sentence with the possibility of parole.
This Court affirmed the conviction on direct appeal, and the Tennessee Supreme Court denied the
Petitioner’s application for permission to appeal. The Petitioner filed a pro se post-conviction
petition. The post-conviction court appointed Jeannie Kaess to represent the Petitioner in this post-
conviction matter. Kaess filed an amendment to the Petitioner’s original petition for post-conviction
relief. In his petition, the Petitioner asserted that he should be granted post-conviction relief based

         1
          After hearing the proof on June 3, 1997, the state filed an additional juvenile petition charging defendants with
especially aggravated kidnapping, under the incorrect assumption that the Grand Ju ry could indict defendants only on
the offenses for which they were transferred. Although we note the juvenile court judge erred in re-asserting jurisdiction
for purposes of the July 3, 1997, transfer hearing, see Tenn. Code Ann. § 37-1-134(c), any issue in this regard is moot
since the Grand Jury indicted , and the defend ants were con victed on all charged offenses.

                                                           -2-
upon numerous theories involving ineffective assistance of counsel at various stages of the
representation. The trial court conducted a hearing on the amended petition. After hearing the
evidence, the trial court issued an order denying the petition for post-conviction relief. Kaess filed
a motion to reconsider the trial court’s order denying post-conviction relief which the trial court
denied. The Petitioner filed a timely notice of appeal.

        The following evidence was presented at the post-conviction hearing: The Petitioner’s trial
counsel, Frank Deslauriers (“Counsel”), testified that he had represented hundreds of criminal
defendants from the time he was licensed to practice law in Tennessee in 1986 through the time of
the Petitioner’s trial in 1997. Counsel, who was the State’s only witness in this post-conviction
hearing, stated that he was appointed by the trial court to represent the Petitioner. He stated that he
initiated plea bargain proceedings, but the State refused to plea bargain. He explained that he was
appointed about three months before the trial and that, during that time, he met with the Petitioner
three or four times. Counsel explained that he believed both the period of time and the number of
times he met with the Petitioner were adequate to prepare for the trial. He also stated that he felt
there was no benefit to requesting a continuance.

        Counsel acknowledged that, at the time of the trial, he knew the Petitioner was mildly
mentally retarded; however, he stated that the Petitioner appeared to understand the seriousness of
the charges and expressed concern about going to jail. Counsel testified that the Petitioner was
similar to many of the other defendants he represented and that he believed the Petitioner understood
the charges against him and the possible consequences if found guilty.

        When asked about the statement the Petitioner gave to the police, Counsel explained that the
Petitioner’s mother was present for the police questioning. He stated that he spoke with her about
her recollection of the questioning, and she told him she did not believe the statement was coerced.
Counsel testified that he had no recollection of whether the mother thought the Petitioner did not
understand the questions because of his mild mental retardation. Counsel stated that, based on his
interactions with the Petitioner and reviewing the statement, Petitioner seemed to understand the
questions and was able to answer them “with no problem.”

        Counsel testified that, in preparing for trial, he was able to look at the State’s files and to
perform discovery. He also stated that prior to the trial he and David Stockton, of the Public
Defender’s Office, spent a lot of time working on the case. Stockton represented co-defendant
Kenneth Adams. Counsel stated that, when he examined the statement given by the co-defendant,
the statements were inconsistent.2 He explained that the statements placed the individuals in the
house, “but they all denied they did anything . . . bad to the old man.” Counsel explained that the
Petitioner’s statement was helpful to his defense because it assigned blame to the other individuals
and minimized his involvement. When asked why he did not try to suppress the Petitioner’s
statement, Counsel explained that he initially filed a motion to suppress the statement, but later


         2
          Police arrested four individuals for the murder of the victim. The Petitioner and co-defendant, Kenneth Adams,
were tried together. The other two defendants were tried sep arately. Police too k statements from all four defendants.

                                                          -3-
withdrew the motion for strategic reasons. Counsel stated that he withdrew the motion because he
“didn’t think it would be successful, and even more importantly, [Counsel] decided the statement
[the Petitioner] gave was about as good as [Counsel] could get from him on the witness stand, and
[Counsel] didn’t want [the prosecutor] to cross-examine [the Petitioner].” Counsel testified that the
evidence against the Petitioner was “at least strong” because police found a footprint in the victim’s
kitchen matching the Petitioner’s shoe, and an eyewitness saw the Petitioner and the three co-
defendants walking out of a muddy field after abandoning the victim’s car.

        Counsel explained that he did not have the Petitioner evaluated regarding his mental capacity
because the Petitioner had been evaluated two months before the murder. Counsel testified that he
spoke with Dr. Lori Keith, who evaluated the Petitioner prior to the murder, as well as informally
speaking with an outside doctor. Counsel stated that, when he spoke with the outside doctor, the
doctor did not think there was any benefit to having the Petitioner re-evaluated and that there was
nothing the doctor could do to help the defense. Counsel recounted that Dr. Keith’s diagnosis of the
Petitioner was that he suffered from mild mental retardation and oppositional defiant disorder which,
to Counsel’s understanding, meant the Petitioner was “mean.” Counsel also stated that, in addition
to speaking with these two doctors, he spoke with the Petitioner’s principal and one of his teachers
and examined the Petitioner’s school records. He testified that the Petitioner’s school records
showed that the Petitioner was involved in numerous fights. Counsel testified that, based on these
conversations, he did not want any of these people to testify at the trial because they “didn’t have a
whole lot good to say about his ability to fit in, in any social situation. . . .” Counsel testified that
part of his trial strategy was to tell the jury that the Petitioner was mildly retarded and to have the
Petitioner tried with his co-defendant, Kenneth Adams. Counsel explained that he wanted the
Petitioner “to be the mildly retarded defendant next to, hopefully, the really bad guy, and the jury
might cut [the Petitioner] a break because of that.”

        Counsel admitted to copying Stockton’s appellate brief “more or less,” having reviewed the
brief and the facts of the case. Counsel stated that he felt the brief raised a good issue, namely a
double jeopardy problem, which was ultimately unsuccessful. He also stated that he “batt[ed] around
a number of [other] issues,” including actual transfer of the Petitioner from juvenile court because
of the mental retardation. Counsel testified that he determined that there were no other serious
issues. He stated that, after examining the facts, he was determined that this was a bad case.
Counsel explained that “[t]his was a case in which four young men sat in a house waiting for a 70-
year-old man, tied him up, gagged him, threw him in the bathtub, piled furniture on him, with water
and kerosene.” Counsel testified that he did not think he could convince a jury that the Petitioner
did not recognize the inherent danger of placing a man wrapped in a blanked into a bathtub filled
with water and kerosene and then piling furniture on top of him.

        Counsel explained that, in hindsight, whenever he lost a case, he could always find things
that he wished he had done differently, but that it did not mean the outcome would have changed.

       When cross-examined, Counsel was asked about Stockton’s motion to withdraw from
representing both the Petitioner and co-defendant Adams. Counsel stated that the motion submitted


                                                  -4-
by Co-counsel cited a conflict of interest as the reason for the motion to withdraw from representing
both men. Counsel agreed that Stockton had represented the two defendants for approximately four
months prior to the motion to withdraw. Counsel stated that during that time, Stockton filed motions
to dismiss the indictment on behalf of both Petitioner and co-defendant Adams because they had
been held without bond from the time of their arrests on April 28, 1997, until the date of the motions
on July 10, 1997, in violation of their Fifth Amendment and due process rights. The trial court
denied these motions.


       Counsel explained that while reviewing the Petitioner’s Covington Middle School records
he found five instances of fighting and approximately 30 disciplinary write-ups. When asked if these
behavioral problems could have been related to or caused by the Petitioner’s mild mental retardation,
Counsel stated that he “took that behavior to be part of [the Petitioner’s] oppositional defiant
disorder, not his mental retardation.”

        Counsel stated that he withdrew the motion to suppress the statement given by Petitioner on
the morning of the trial. Counsel testified that he spoke with Dr. Keith and that she told him the
Petitioner read at a second or third grade level. Counsel explained that after he reviewed the
Miranda warnings signed by the Petitioner, he believed that the Petitioner understood his rights.
Counsel testified that he thought the Petitioner “understood he didn’t have to say anything if he
didn’t want to.” Counsel further testified that, while the Petitioner may not have understood certain
abstract ideas, “he understood that if he [told] them something . . . it may come back to hurt him.”

        Counsel also expressed concern that one of the other three defendants might have pled guilty
and testified against the Petitioner.

        Counsel explained that his main focus in his argument to the jury was to get a negligent
homicide conviction rather than felony murder. Counsel conceded that the victim was a very
sympathetic individual. Counsel testified that the reason he did not object to the portrayal of the
victim as an elderly man who visited his wife at least twice a week in the nursing home was because
he was afraid of jury backlash to his objecting to innocuous questions. Counsel explained that if he
objected to these questions, he would have been forced to object to every personal question, when
much of the information came in during voir dire. Counsel stated that he did not consider filing a
motion in limine to prevent the jury from hearing this testimony.

        Counsel testified that, while he wanted the jury to think of the Petitioner as mentally retarded,
he did not intend to show that the Petitioner did not understand what was going on. Counsel
explained that he wanted to show that the Petitioner was a “follower,” with the hope that the jury
would find him less responsible. Counsel stated that he did not think he could convince a jury that
the Petitioner did not know a man could die from being wrapped in a blanket and then buried in
furniture in a bathtub full of water and kerosene. Instead, Counsel explained that he was trying to
convince a jury that the Petitioner was not trying to kill the victim, rather he wanted to prevent the



                                                  -5-
victim from calling the police. Counsel admitted to introducing evidence at the trial that the
Petitioner had an IQ of 66 but failing to explain the significance of that evidence.

         Counsel was questioned about the Petitioner’s pre-sentence report that stated that the
Petitioner was on probation at the time of the incident. Counsel testified that he did not have a clear
recollection of what was done to determine whether the Petitioner was on probation. The
Petitioner’s post-conviction attorney argued that this was a clerical error and that Petitioner was not,
in fact, on probation at the time of the incident. Counsel stated that he was “pretty sure” that he did
not contact the Fayette County Court to determine whether the Petitioner was on probation. The
post-conviction court recognized the argument raised that Counsel “didn’t investigate [the allegation
of Petitioner being on probation] sufficiently by contacting another court, and that what [Counsel]
interpreted the records to be was perhaps incorrect.” The pre-sentence report stated that the
Petitioner was on probation; however, it mistakenly listed co-defendant Adams’s case number and
record on the Petitioner’s report. Accordingly, while co-defendant Adams was on probation at the
time of the incident, the Petitioner was not.

         Counsel stated that in addition to the mistaken pre-sentence report, another reason for the
sentences to run consecutively was because the Petitioner was a “dangerous offender.” When asked
if he presented any evidence that the Petitioner was not a dangerous offender, Counsel explained that
he did not remember, but that he probably put the Petitioner’s mother and possibly another family
member on the stand to say that the Petitioner was not dangerous.

       Counsel stated that he did not remember whether there was any mention of the Petitioner’s
mental retardation in the appellate brief. He testified that while he used Co-counsel’s appellate brief,
he did independent research concerning appealable issues and reviewed Co-counsel’s brief for
accuracy.

         The Petitioner produced two witnesses at the hearing, Dr. Ann Phyfer and Co-counsel. Dr.
Phyfer testified that she was a psychologist at Timber Springs Adolescent Center with a background
in clinical psychology. The parties stipulated that she was an expert. Dr. Phyfer stated that she did
not meet with the Petitioner until the night before the post-conviction hearing. She stated that she
tested the Petitioner using the Bender Gestalt, a neurological screening test to diagnose organic brain
damage, Minnesota Multiphasic Personality Inventory test (“MMPI”), and questions that test abstract
thinking. Dr. Phyfer explained that the answers to the questions and some of the Petitioner’s
questions to her about the various tests led her to conclude that the Petitioner “is a very concrete
thinker. He has consistent problems with abstract terms.” Dr. Phyfer stated that:

        [The Petitioner] understands hope in concrete terms. He can hope for – hope that
        he’ll have pizza for supper or he can hope that he’ll get to play basketball tomorrow,
        but whether he is hopeful, he has difficulty with. And it was that kind of, that level
        of abstraction where I would find him having trouble comprehending.




                                                  -6-
The doctor stated that another example of the Petitioner’s trouble with abstract terms was his
difficulty in understanding the terms like “social,” “drive” when meaning ambition, and “human
nature.” “[The Petitioner] understood specific activities, but it’s very hard for him to generalize and
then recognize the term again in another form. . . .” Dr. Phyfer testified that the Petitioner’s results
of the Bender Gestalt test indicated that there was no sign of neurological damage. She stated that
the Petitioner’s visual and motor perception was excellent. Dr. Phyfer explained that the Petitioner
had particular difficulty with double negatives.

        Dr. Phyfer testified that her “diagnosis by exclusion” of the Petitioner was that he suffered
from an adjustment disorder. She explained that the MMPI test did not indicate that the Petitioner
was antisocial, under-socialized or aggressive. She stated the Petitioner was someone who was
“quite concerned with the impression he is making, with being accepted by his peers.” Furthermore,
the doctor testified that the Petitioner did not score high on hostility or anger toward anyone, but
rather he had “high levels of empathy and understanding.” Dr. Phyfer gave the following diagnosis:

        [The Petitioner is] a person who’s concerned with being accepted by his peers, who
        has some doubts about whether other people are going to like him. And those are
        typical adolescent concerns. He didn’t show any pathology [on the tests]. There’s
        no mental illness and no antisocial personality stuff on the tests.

        Dr. Phyfer explained that the Petitioner felt sad most of the time. She stated that his sadness
came from his remorse and regret at having caused the victim’s death. The doctor testified that the
Petitioner thought about the victim’s death “pretty much all the time” unless he was given an activity
to take his mind off the death. She further testified that the Petitioner had nightmares and night
terrors when asleep and had flashbacks during the day about the incident.

        When asked if the Petitioner was a dangerous offender, Dr. Phyfer stated that he was
dangerous to the extent that he was led by dangerous people. She explained that, because he seeks
approval from peers, if he fell under the influence of bad or dangerous people, he may be susceptible
to doing bad things again. However, Dr. Phyfer testified that the Petitioner was not a danger in the
sense of planning or instigating robberies. Having examined the Petitioner’s school records, the
doctor stated that, although the Petitioner had been in fights, he had never used weapons, and the
idea of harming another person deliberately “was absolutely foreign to him.” She also stated that
the disciplinary problems indicated his desire to be accepted by his peers by being the class clown.
Dr. Phyfer explained that these disciplinary problems were the result of his efforts to make people
like him. She also speculated that he might suffer from an attention deficit disorder but, due to his
depression, it was hard to be certain.

        Dr. Phyfer testified that, while the Petitioner would recognize a knife, gun, or even an
instrument that causes blunt trauma as potentially lethal, he would not see the blanket or tape as
lethal weapons. She stated that, in his mind, the Petitioner was trying to keep the victim from
moving or calling the police, not trying to kill him. Dr. Phyfer admitted that she did not have enough



                                                  -7-
experience or interaction with the Petitioner, but that, in her opinion, the Petitioner would not see
a connection between covering someone with a blanket and his death.

        Dr. Phyfer testified that the Petitioner would not understand abstract terms in the Miranda
rights waiver form like “constitutional rights.” Furthermore, the doctor explained that conditional
statements like, “If you do answer questions, your answers can be used as evidence against you in
court,” “If you cannot afford to hire a lawyer,” and “If you decide to answer questions now without
a lawyer present, you will still have the right to stop answering questions at any time until you talk
to a lawyer,” were too abstract for the Petitioner to understand. She stated that a conditional
statement implies an alternative, which the Petitioner would have been unable to grasp. Dr. Phyfer
also explained that the Petitioner would not understand the statement, “You need not answer any
question,” because of the sentence’s structure. Dr. Phyfer stated that “[h]e would understand better,
‘You can answer these questions if you want to, but if you don’t want to, you don’t have to.’” Dr.
Phyfer’s conclusion was that the Petitioner would not have understood the language or the
significance of his rights in a legal context when the police read the Miranda rights to the Petitioner.
She stated that, in her opinion, the Petitioner could not have signed the waiver understanding what
his rights were and voluntarily waiving them.

         On cross-examination, Dr. Phyfer admitted that, other than being mildly retarded, the
Petitioner suffered from no mental disease or defect and that he knew the difference between right
and wrong. She also admitted that he told her about his participation. She testified that the
Petitioner went through the house looking for things to take and that he knew that this behavior was
wrong. She further testified that the Petitioner understood that water could cause a person to drown,
although she did not believe he understood why he was turning on the water. When shown a
photograph of the bathtub and told to assume that under the blanket was a man’s head, Dr. Phyfer
testified that she believed the Petitioner would see this as “a very, very dangerous thing to do.”

        Dr. Phyfer explained that, while the school may have diagnosed the Petitioner with an
oppositional defiant disorder, it was likely something more severe. She stated that oppositional
defiant disorders are usually amenable to behavioral programs which reinforce positive behavior and
punish the undesirable behavior. She testified that, in her opinion, the Petitioner suffered from
attention deficit hyperactivity disorder or an impulse control disorder.

        Dr. Phyfer stated that, while the Petitioner had the physical coordination to tie a knot and to
“hog-tie” an individual, he would need directions about how to do it. She explained that the
Petitioner “wouldn’t be able to think up and carry out that kind of [planned] behavior.” When shown
a photograph of the victim’s hands, Dr. Phyfer testified that she did not think the Petitioner could
have bound the hands without someone else modeling the behavior.

         On redirect, Dr. Phyfer explained that in general terms, a blanket would not be perceived as
lethal if the Petitioner had seen someone wrapped in a blanket with their head covered. She stated
that the Petitioner expressed concern about the victim calling the police, and that was why someone
put the chest-of-drawers over the bathtub. Dr. Phyfer speculated that:


                                                  -8-
       [B]y the time he was that far involved in the burglary, I don’t think [the Petitioner]
       was listening to what he called earlier his “best voice,” his “best mind,” and I don’t
       think he was thinking for himself at all at that point, so that he – the capacity for
       judgment that he would have ordinarily had would have been diminished even more
       by being there, with those people telling him what to do and rushing around and
       engaged in their own goal-directed activity, which was not his goal-directed activity.

       Stockton testified that he was appointed to represent both the Petitioner and co-defendant
Adams in July of 1997. He testified that, about four months later, he filed a motion to withdraw as
counsel for the Petitioner in early November of 1997. Stockton stated that, during that time, he did
not spend a great deal of time working with either the Petitioner or co-defendant Adams and he had
no recollection of meeting with either of them from July 10, 1997, through November 3, 1997.

        Stockton explained he filed the motion to withdraw as counsel for the Petitioner when he
received some discovery materials that indicated that the State was seeking to enhance the
punishment from life sentences with the possibility of parole to life without parole sentences. He
stated that, at the sentencing phase, there would be a discrepancy that could be material with regard
to the degree of culpability of the Petitioner and co-defendant Adams. Stockton further testified that
he did not perceive there being a conflict of interest because the Petitioner was mildly mentally
retarded.

        Following this evidence, the trial court denied the Petitioner’s petition for post-conviction
relief. The trial court found that:

               [The] petitioner has failed to establish the factual allegations contained in his
       petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-210. The
       petitioner has not shown that (a) the services rendered by trial counsel were deficient
       and (b) the deficient performance was prejudicial. The petitioner has not shown that
       the services rendered or the advice given was below the range of competence
       demanded of attorneys in criminal cases. The petitioner has not shown that there is
       a reasonable probability that, but for counsel’s deficient performance, the result of
       the proceeding would have been different.

                                             II. Analysis

        In order to obtain post-conviction relief, a petitioner must show that his or her conviction or
sentence is void or voidable because of the abridgment of a constitutional right. Tenn. Code Ann.
§ 40-30-203 (1997). The petitioner bears the burden of proving factual allegations in the petition
for post-conviction relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997).
A post-conviction court’s factual findings are subject to a de novo review by this Court; however,
we must accord these factual findings a presumption of correctness, which is overcome only when
a preponderance of the evidence is contrary to the post-conviction court’s factual findings. Fields
v. State, 40 S.W.3d 450, 456 (Tenn. 2001). A post-conviction court’s conclusions of law are subject


                                                 -9-
to a purely de novo review by this Court, with no presumption of correctness. Id. at 457. The
Tennessee Supreme Court has held that the issue of ineffective assistance of counsel is a mixed
question of law and fact and, as such, is subject to de novo review. State v. Burns, 6 S.W.3d 453,
461 (Tenn. 1999).

        The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and Article I, section 9, of the Tennessee Constitution.
U.S. CONST . amend. VI.; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). This right to
representation includes the right to “reasonably effective” assistance of counsel. Burns, 6 S.W.3d
at 461. In reviewing a claim of ineffective assistance of counsel, this Court must determine whether
the advice given or services rendered by the attorney are within the range of competence demanded
of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail on a claim of ineffective
assistance of counsel, a petitioner must show that “counsel’s representation fell below an objective
standard of reasonableness,” Strickland v. Washington, 466 U.S. 668, 688 (1984), and that this
performance prejudiced the defense, resulting in a failure to produce a reliable result. Id. at 687;
Cooper v. State, 849 S.W.2d 744, 747 (Tenn.1993). To satisfy the requirement of prejudice, a
petitioner must show a reasonable probability that, but for counsel’s unreasonable error, the fact
finder would have had reasonable doubt regarding the petitioner’s guilt. Strickland, 466 U.S. at 695.
This reasonable probability must be “sufficient to undermine confidence in the outcome.” Id. at 694;
see also Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994).

        When evaluating an ineffective assistance of counsel claim, the reviewing court should judge
the attorney’s performance within the context of the case as a whole, taking into account all relevant
circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim.
App. 1988). The reviewing court must evaluate the questionable conduct from the attorney’s
perspective at the time. Strickland, 466 U.S. at 690; Cooper, 849 S.W.2d at 746; Hellard v. State,
629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court must be highly deferential and
“should indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Burns, 6 S.W.3d at 462. Counsel should not be deemed to have
been ineffective merely because a different procedure or strategy might have produced a different
result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980).

        On appeal, the Petitioner argues that the post-conviction court erred by finding that the
Petitioner was not denied effective assistance of counsel. Specifically, the Petitioner makes the
following arguments:

       1.      He was denied effective assistance of counsel because (1) his trial attorney
               failed to move to remand the case to Juvenile Court since the trial court
               lacked jurisdiction: the Defendant’s constitutional rights were violated in the
               transfer hearing; and (2) his trial attorney failed to demonstrate, on direct
               appeal, that the Juvenile Court should not have transferred the child’s case.




                                                -10-
       2.      He was denied effective assistance of counsel because his trial attorney failed
               to move to disqualify Co-counsel, who had represented both co-defendants,
               but withdrew because of a conflict of interest.

       3.      He was denied effective assistance of counsel because his trial attorney failed
               to adequately investigate the case and failed to adequately develop his trial
               strategy.

       4.      He was denied effective assistance of counsel at trial because his attorney
               failed to object to three inaccurate jury instructions and failed to raise the
               errors on appeal.

       5.      He was denied effective assistance of counsel in his sentencing hearing
               because his trial attorney failed to demonstrate that his sentences should run
               concurrent, not consecutive.

       6.      He was denied an attorney to represent him on appeal; or in the alternative,
               he was denied effective assistance of counsel on appeal.

We disagree with these assertions.

                                 A. Transfer from Juvenile Court

        The Petitioner alleges that Counsel was ineffective for failing to move to remand the case to
juvenile court, and for failing to raise this issue on appeal. The juvenile court has exclusive original
jurisdiction over children alleged to be delinquent. Tenn. Code Ann. § 37-1-103(a)(1) (1996). The
juvenile court may transfer jurisdiction to a criminal court for trial as an adult upon petition, notice
and a hearing. Tenn. Code Ann. § 37-1-134(a) (1996). Such a transfer “terminates the jurisdiction
of the juvenile court over the child with respect to the delinquent acts alleged.” Tenn. Code Ann.
§ 37-1-134(c). There is no interlocutory appeal from the judgment of the juvenile court if it transfers
the child to a criminal court. Tenn. Code Ann. § 37-1-159(d) (1996).

                    1. Failure to File Motion to Remand to Juvenile Court

        Counsel was appointed for the Petitioner on November 3, 1997. The State filed a petition
to remove the case from juvenile court and have it transferred to circuit court, and the juvenile court
transferred the case after the transfer hearing held on June 3, 1997. At the time Counsel was
appointed, the Petitioner’s case was already transferred to the circuit court, and he had been indicted
by a grand jury. Counsel did not have any grounds under state law to appeal the transfer at the time
he was appointed. Tenn. Code Ann. § 37-1-159(d).

      Counsel’s only avenue for relief was on appeal, and this issue was not raised on direct appeal.
The post-conviction court found that:


                                                 -11-
       [W]hen the [Petitioner] was indicted the issues with regard to juvenile court were no
       longer viable. There was no legal basis presented at the hearing on the motion for
       post conviction relief for the remand to juvenile court. The Court of Criminal
       Appeals considered the issues raised with regard to the actions of the juvenile court,
       and other actions are waived for not being presented. T.C.A. 40-30-206(g).

The State contends that the Petitioner waived this issue by not adequately briefing the issue.
Tennessee Court of Criminal Appeals Rule 10(b) states that “[i]ssues which are not supported by
argument, citation to authorities, or appropriate references to the record will be treated as waived in
this court.” See also Tenn. R. App. P. 27(a)(7).

        The Petitioner’s brief alleges that Rickey W. Griggs, the public defender who represented
the Petitioner and co-defendant Adams at the transfer hearing, provided ineffective assistance of
counsel on several grounds including: representing both individuals when there was a conflict of
interest in representing both individuals at the transfer hearing; failing to object to the admission of
the co-defendant’s statement at the transfer hearing; failing to file a motion to sever; and failing to
object to co-defendant’s statement on hearsay grounds.

        The Petitioner fails to cite to any authority or references to the record to support these
allegations and the Petitioner failed to introduce evidence to bolster this claim at the post-conviction
hearing. The Petitioner’s argument is simply an assertion with no supporting evidence. Therefore,
we conclude that the Defendant has waived this issue.

               2. Challenge of Transfer from Juvenile Court on Direct Appeal

         The Petitioner also alleges that Counsel was ineffective for failing to challenge the transfer
from juvenile court on direct appeal. The Petitioner asserts that, had his statement been suppressed
at the transfer hearing, he would have been successful in keeping the case before the juvenile court.
This allegation is based on the Petitioner’s claim that the statement given to the police should have
been suppressed on the grounds that the Petitioner’s statement was not voluntarily and intelligently
given due to his mental retardation. Griggs made an oral motion to suppress the statement at the
time it was read by Special Agent Bieber at the transfer hearing. The motion was denied. After
Agent Bieber read the statement, Griggs moved to suppress the statement. This motion was also
denied.

        To prevail on a claim of ineffective assistance of counsel, the Petitioner must show that
Counsel’s “representation fell below an objective standard of reasonableness,” and that this
performance prejudiced the defense, resulting in a failure to produce a reliable result. Strickland,
466 U.S. at 687-88; Cooper, 849 S.W.2d at 747. The post-conviction court found that: (1) the
Petitioner failed to show that, but for Griggs’ unreasonable error, the juvenile court judge at the
transfer hearing would have denied the State’s motion to transfer the Petitioner’s case from juvenile
court to the circuit court; (2) the Petitioner failed to prove that, had Griggs moved to suppress his
statement, he would have been successful at keeping the case before the juvenile court; and (3) the


                                                 -12-
Petitioner failed to show that he would have prevailed had Counsel raised the issue concerning the
transfer hearing on appeal.

         The juvenile court transferred jurisdiction to the circuit criminal court after it provided the
Petitioner with notice and a hearing. Tenn. Code Ann. § 37-1-134(a) (1996). At the hearing, the
juvenile court judge stated that “a jury should decide the case. . . .” The judge made this
determination “based on the heinous nature of the crime, the fact that they are repeat offenders, [and]
the fact that apparently after the incident occurred there was little or no remorse. . . .” The judge
stated that he did not believe that possible rehabilitation through procedures and services available
through the juvenile court were appropriate in a first-degree murder case, which conflicts with the
statute; however, the Petitioner has failed to show prejudice. The judge cited to other factors
weighing in favor of transferring the case to the circuit court. The transfer terminated the jurisdiction
of the juvenile court over the Petitioner with respect to the delinquent acts alleged. Tenn. Code Ann.
§ 37-1-134(c). Accordingly, because the juvenile court based its determination to transfer the case
on multiple factors, none of those being related to the Petitioner’s statement, we conclude that the
evidence does not preponderate against the post-conviction court’s finding that Counsel’s failure to
move to remand the case to juvenile court and his failure to raise this issue on appeal does not
warrant post-conviction relief.

         B. Failure to Move to Disqualify Co-counsel because of Conflict of Interest

        The Petitioner alleges that Counsel was ineffective for failing to move to disqualify Co-
counsel because Co-counsel initially represented both the Petitioner and co-defendant Adams. Co-
counsel was appointed to represent the Petitioner and co-defendant Adams on July 10, 1997. Co-
counsel testified that he filed a motion to withdraw as counsel for the Petitioner on November 3,
1997, when he received notice from the State that it might seek life without possibility of parole.
He explained that he became concerned that there would be questions of culpability at the sentencing
hearing and that he could not continue representing both the Petitioner and co-defendant Adams.
Co-counsel further testified that, between July 10, 1997, and November 3, 1997, he spent little time
with either the Petitioner or the co-defendant, and that, in fact, he had no recollection of meeting
with them during that time and had no notes in his files from that period. Co-counsel testified that
he continued to represent the co-defendant during the trial and throughout the appeals process.

       To satisfy the requirement of prejudice, the Petitioner must show a reasonable probability that
he was prejudiced by Counsel’s failure to move to disqualify Co-counsel as counsel for co-defendant
Adams. Strickland, 466 U.S. at 695. This reasonable probability must be “sufficient to undermine
confidence in the outcome.” Id. at 694; see also Harris, 875 S.W.2d at 665. Further, the Petitioner
must show that but for Counsel’s unreasonable error, the jury would have reached a different finding
regarding the Petitioner’s guilt. Strickland, 466 U.S. at 687. The Petitioner has failed to show that
he was prejudiced by Co-counsel’s continued representation of his co-defendant.

       The Petitioner cites to the circuit court judge’s statement that “in a case like this I probably
should have appointed separate attorneys from the very beginning” to support the assertion that Co-


                                                  -13-
counsel’s representation of co-defendant Adams was prejudicial to the Petitioner. However, Co-
counsel testified at the post-conviction hearing that he did not initially foresee any conflict between
the Petitioner and co-defendant Adams, which is contrary to the Petitioner’s assertion. He stated that
he first thought there may be a conflict when he “received some discovery materials from the State
that indicated that in the event that the matter [went] to trial and the State was seeking to enhance
the punishment from the level of a life sentence up to life without parole. . . .” He testified that he
thought there may be a conflict of interest at the sentencing phase because there might be a
“material” discrepancy with regard to the degree of culpability regarding the Petitioner and co-
defendant Adams. The Petitioner attempts to undermine Co-counsel’s testimony by citing Wood
v. Georgia, 450 U.S. 261 (1981), for the proposition that an attorney is unlikely to admit that “he had
continued improperly to act as counsel.” Wood, 450 U.S. at 265, n.5. The Petitioner’s reliance on
Wood is misplaced.

         The attorney in Wood was being paid by an interested third-party to represent the individuals
at trial and on appeal. The individuals in Wood were charged with selling indecent material while
working at an adult theater and bookstore. The owner of the theater had promised to pay any fines,
legal fees, and post any bonds necessary if they faced legal troubles as a result of their employment.
The Supreme Court recognized that the attorney might be unable to represent the best interests of
the employees whose legal fees were being paid by the employer. There was a concern that what
was in the best interest of the defendants might not be in the best interest of the employer, who was
paying the legal fees. As a result of this potential conflict of interest, the attorney might be unwilling
to admit he acted improperly. In the case before us, Stockton’s conflict of interest did not arise as
a result of the source of either the Petitioner’s or Adams’ legal fees. Co-counsel is an employee of
the State and would not have the same inherent conflict arising from the source of his salary and
those he represents. Furthermore, Co-counsel recognized a potential conflict of interest affecting
the sentencing phase and requested to be removed as counsel prior to the trial and prior to any
meetings with either Petitioner or co-defendant.

        Lastly, the Petitioner argues that Counsel should have moved to disqualify Co-counsel
because of an appearance of impropriety. The Petitioner fails to cite to the record, and nothing in
the transcript indicates that the jury knew that Co-counsel represented both the Petitioner and co-
defendant Adams prior to the trial. Co-counsel testified at the post-conviction hearing that his
concern about the conflict of interest involved the State’s notification that it would seek a sentence
of life without possibility of parole. However, the State did not seek this sentence, eliminating the
potential conflict of interest. The post-conviction court found that:

        [Co-counsel], counsel for a co-defendant Adams, represented both [the Petitioner]
        and the co-defendant Adams at one point. He was relieved and [Counsel] was
        appointed to represent [the Petitioner], upon motion being filed, and it appeared that
        the case would be tried. It is alleged that [Counsel] should have objected to [Co-
        counsel] continuing to represent co-defendant. However, [the Petitioner] fails to
        show how he is prejudiced by [Co-counsel] continuing to represent a co-defendant.
        Even if he had objected, there was little likelihood that [Co-counsel] would have


                                                  -14-
       been relieved absent a showing of harmful conflict. [The Petitioner] has failed to
       demonstrate prejudice.

        We agree with the post-conviction court that the Petitioner failed to meet his burden of
proving that his trial’s outcome would have been different had Co-counsel, who represented co-
defendant Adams, been disqualified, or that he was prejudiced by Co-counsel representing the co-
defendant. Absent the Petitioner’s showing a harmful conflict, there is little likelihood that Co-
counsel would have been relieved, and no evidence was presented at the post-conviction hearing to
support a showing a of harmful conflict. Accordingly, we conclude that the Petitioner failed to show
how he was prejudiced by Counsel’s failure to file a motion to disqualify Co-counsel. The Petitioner
is not entitled to post-conviction relief on this issue.

               C. Failure to Investigate and Adequately Develop Trial Strategy

         The Petitioner alleges that Counsel failed to adequately investigate the case and failed to
adequately develop his trial strategy. The Petitioner argues that Counsel was ineffective when he
withdrew the motion to suppress the Petitioner’s statement; when he failed to file a motion to sever
the trials of the Petitioner and co-defendant Adams; and by failing to adequately investigate the case.
The evidence shows that Counsel developed a theory of the case and constructed his trial strategy
accordingly. Counsel testified that the facts were “bad facts.” Counsel also testified that the victim
was a sympathetic victim, and the State had forensic evidence of a footprint in the victim’s kitchen
matching the Petitioner’s shoe and an eyewitness who saw the Petitioner and the three co-defendants
walking out of the muddy field after abandoning the victim’s car. Counsel explained that, faced with
these facts, he believed the Petitioner’s only chance was to acknowledge his presence in the victim’s
house but to portray him as a mentally retarded individual who was a “follower,” with the hope that
the jury would find the Petitioner less responsible.

        Counsel testified that he initially filed a motion to suppress the Petitioner’s statement to the
police but withdrew the motion prior to the trial. He explained that, rather than put the Petitioner
on the stand and subject him to cross-examination by the district attorney, he thought it was better
to allow the somewhat self-serving statement into evidence. Counsel further explained that the
statement was somewhat beneficial to the Petitioner’s position that he had little involvement in the
crimes. Lastly, Counsel stated that he did not believe the motion would have been successful
because the motion had previously been presented to the juvenile court unsuccessfully, and because
the Petitioner’s mother was present at the time the statement was given.

        Counsel testified that he did not think a jury could be convinced that the Petitioner did not
recognize the inherent danger of placing a man wrapped in a blanked into a bathtub filled with water
and kerosene and then piling furniture on top of him. Rather than risk alienating the jury by
presenting this argument, Counsel decided the best strategy was to minimize the Petitioner’s
involvement. He stated that the Petitioner’s statement to the police was the best method to present
the Petitioner’s side of the story without subjecting him to cross-examination, and that the statement
shifted the responsibility of what happened to the others involved.


                                                 -15-
        The Petitioner also alleges that Counsel was ineffective because he failed to file a motion to
sever the trials of the Petitioner and co-defendant Adams. Counsel stated that he did not file a
motion to sever the Petitioner’s trial and co-defendant Adams’s trial as part of the trial strategy.
Counsel explained that, because the strategy involved making the Petitioner look like a follower, he
believed it was necessary to have someone sitting next to the Petitioner at the trial. Counsel
explained that, by not severing the trials, the Petitioner sat next to someone that the jury could have
thought was a “really bad guy.” He testified that the strategy was to have the Petitioner presented
as a mentally retarded individual who followed some bad people and made a mistake, with the hope
that the jury would “cut [the Petitioner] a break.”

        We conclude that Counsel’s trial strategy of attempting to present the Petitioner as less
culpable, withdrawing the motion to suppress the Petitioner’s statement, and not filing a motion to
sever the trials of the Petitioner and co-defendant Adams, “falls within the wide range of reasonable
professional assistance.” Burns, 6 S.W.3d at 462. Counsel admitted that, in hindsight, he wished
he had done some things differently and he may have changed his trial strategy, but he did not know
what he would have done differently. Furthermore, he was unconvinced any changes would have
made an impact on the verdict. In the midst of a first-degree murder trial, Counsel made a well-
reasoned judgment call regarding how to present the Petitioner to the jury. We will not deem
Counsel to have been ineffective merely because a different procedure or strategy might have
produced a different result. Williams, 599 S.W.2d at 279-80. Furthermore, the Petitioner has failed
to prove that Counsel’s performance prejudiced his defense, resulting in a failure to produce a
reliable result. Strickland, 466 U.S. at 687; Cooper, 849 S.W.2d at 747. Accordingly, we conclude
that the Petitioner is not entitled to post-conviction relief on this issue.

     D. Failure to Object to Inaccurate Jury Instructions or to Raise Errors on Appeal

        The Petitioner alleges that Counsel failed to object to the jury instruction on criminal
responsibility. Petitioner further alleges that Counsel was deficient for failing to object to the trial
court’s failure to instruct the jury on the natural and probable consequences rule. Lastly, the
Petitioner alleges that Counsel was ineffective for failing to object to the jury instructions on first-
degree murder and felony murder. We conclude that none of these issues entitle the Petitioner to
relief.

             1. Criminal Responsibility and Natural and Probable Consequences

         The Petitioner alleges that Counsel was ineffective for failing to object to the trial court’s
failure to instruct on the natural and probable consequences rule and how it relates to the criminal
responsibility of another. The Petitioner relies on State v. Carson, 950 S.W.2d 951 (Tenn. 1997),
and State v. Howard, 30 S.W.3d 271 (Tenn. 2000), for the proposition that Counsel was ineffective
for failing to object to the jury instruction for the criminal conduct of the co-defendant. The
Petitioner’s reliance on Howard is improper because Howard was not filed by the Tennessee
Supreme Court until July 6, 2000, and the case before us was tried in March of 1998 and the



                                                 -16-
Petitioner’s appeal was denied in December of 1999. Since Howard does not apply retroactively,
it is not applicable here.

        Carson is distinguishable from the case before us. In Carson, the defendant, who planned
the store robbery, furnished guns and inside information to his co-defendants but waited in the car
outside the store, and was convicted of aggravated robbery, aggravated assault, and felony reckless
endangerment. Carson, 950 S.W.2d at 952. The Supreme Court concluded that:

       [T]he defendant was criminally responsible for the acts of his co-defendants under
       Tenn. Code Ann. § 39-11-402(2) because . . . the common law rule (that a defendant
       who aids and abets a co-defendant in the commission of a criminal act is liable not
       only for that crime but also for any other crime committed by the co-defendant as a
       natural and probable consequence of the crime originally aided and abetted) is
       applicable under the statute.

Id. The Court affirmed the conviction.

        The “natural and probable consequences” rule underlies the doctrine of criminal
responsibility and is based on the determination that aiders or abettors should be responsible for the
criminal harms they have naturally, probably and foreseeably put into motion. Id. at 954-55. In
order for the State to impose criminal liability based on the natural and probable consequences rule,
the State must prove beyond a reasonable doubt and the jury must find: (1) the elements of the crime
or crimes that accompanied the target crime; (2) that the defendant was criminally responsible under
Tenn. Code Ann. § 39-11-402; and (3) that the other crimes that were committed were natural and
probable consequences of the target crime. Id. The Court found that Tennessee Code Annotated
section 39-11-402(2), which states that one may be criminally responsible if he or she “solicits,
directs, aids or attempts to aid another person to commit [an] offense,” is derived from common law.
The Court concluded that, in accordance with the “natural and probable consequences rule” applied
under Tennessee Code Annotated sections 39-11-401 and 402, “the evidence was sufficient to find
that the defendant, having directed and aided in the aggravated robbery with the intent to promote
or benefit from its commission, was criminally responsible for all of the offenses committed by his
co-defendants. . . .” Carson, 950 S.W.2d at 956.

        This case is factually different from Carson. In this case, the facts show that four individuals
acted in concert. Co-defendant Adams and [the Petitioner], along with two adult co-defendants,
entered the 71-year-old victim’s home with the intent to steal a large amount of money rumored to
be kept in the house. Unsuccessful in finding the money, they sat down to watch basketball and
waited for the victim’s return. When the victim returned home, the four co-defendants ambushed
him in the kitchen. The adults bound the victim’s hands and feet with coat hangers and duct tape.
Then, he was placed in the bathtub, which the Petitioner had filled with water and kerosene. Before
leaving, they covered the victim with various blankets, drapes, and pieces of furniture. The victim
died of asphyxia.



                                                 -17-
        The co-defendants took twenty dollars from the victim’s wallet, a kerosene space heater, and
the victim’s car. They spent the afternoon driving around in the victim’s car, eating snacks
purchased with the victim’s money. They abandoned the car in a muddy field after getting stuck and
hitchhiked back home. In Carson the defendant was waiting in the car. In this case, the Petitioner
was actively involved with three other defendants in tying the victim and putting him in a bathtub
filled with water and kerosene.

        The Petitioner maintains that death is not a natural and probable consequence of the acts of
the four defendants tying and binding the victim, rather the Petitioner contends that the victim died
because of his age and other health problems unrelated to being tied, bound, and placed in the
bathtub. The trial court determined that the death of the victim was a natural and probable
consequence of the acts of the Petitioner and his co-defendants.

         While the Petitioner argued that he did not intend the death of the victim, the trial court found
that death was undoubtedly a natural and probable cause of wrapping an elderly man in a blanket,
placing him in a bathtub filled with water and kerosene, and then placing furniture on top of him to
prevent him from getting out of the bathtub. Even if the Petitioner did not intend to kill the victim,
the result was a natural and probable result. On cross-examination, Dr. Phyfer admitted that the
Petitioner told her about his participation in the robbery. She testified that the Petitioner knew what
he was doing was wrong. She further testified that the Petitioner understood that water could be
dangerous and that the Petitioner would recognize wrapping an individual in a blanket, placing him
in a bathtub filled with water and kerosene, and then placing items on top of him to prevent the
individual’s escape as “a very, very dangerous thing to do.” The Petitioner failed to meet his burden
of proving his allegation by clear and convincing evidence of ineffective assistance of counsel for
failing to object to the trial court’s failure to instruct on the natural and probable consequences rule.
The Petitioner admitted being present and, at the very least, filling the bathtub with water, even if
at the time he did not know why he was doing it. His admission was sufficient for a jury to find him
responsible for the victim’s death. Accordingly, the Petitioner is not entitled to post-conviction relief
on this issue.

                           2. First-Degree Murder and Felony Murder

        The Petitioner alleges that Counsel was ineffective for failing to object to the jury instructions
on first-degree murder and felony murder. The Petitioner failed to raise the issue of the jury
instructions on first-degree murder and felony murder in his petition for post-conviction relief or at
the post-conviction hearing. Issues not presented in the post-conviction petition may not be raised
for the first time on appeal. Cone v. State, 747 S.W.2d 353, 356 (Tenn. Crim. App. 1987).
Accordingly, the allegation of ineffective assistance of counsel for failing to object to the jury
instruction on first-degree murder and felony murder is waived.

                E. Failure to Demonstrate Sentences Should Run Concurrently




                                                  -18-
        The Petitioner alleges that Counsel was ineffective for failing to demonstrate that his
sentences should have run concurrently rather than consecutively. We find this issue to be without
merit. At the sentencing hearing, the trial court sentenced the Petitioner to serve his sentences for
first-degree murder, felony murder, aggravated robbery and especially aggravated kidnapping
consecutively because it found that he was both on probation at the time he committed these crimes
and that he was a dangerous offender.

        At the post-conviction hearing, the Petitioner argued that there was a clerical error and he was
not, in fact, on probation at the time of the incident. The pre-sentence report indicated that the
Petitioner was on probation; however, it mistakenly listed co-defendant Adams’s case number and
record in the Petitioner’s report. Accordingly, while co-defendant Adams was on probation at the
time of the incident, the record lacks evidence that the Petitioner was on probation at the time of the
incident. While the State is willing to concede that there was a clerical error and that the Petitioner
was not on probation at the time of the incident, the Petitioner still must prove that the trial court
erred when it found the Petitioner to be a dangerous offender.

       Dr. Phyfer testified that the Petitioner was not a dangerous offender in the sense that he was
unlikely to plan or instigate robberies. However, Dr. Phyfer testified that the Petitioner was a
dangerous offender to the extent that he was led by dangerous people. She explained that, because
he seeks approval from peers, if he fell under the influence of bad or dangerous people, he may be
susceptible to doing bad things again. She further testified, that after reviewing the Petitioner’s
school records, she concluded that although the Petitioner had been in fights, he had never used
weapons, and the idea of deliberately harming another person “was absolutely foreign to him.” She
explained that the Petitioner’s disciplinary problems were the result of his efforts to make people like
him.

        Dr. Phyfer testified that the Petitioner told her about his participation in the incident. She
stated that he knew the difference between right and wrong, and that, while in his mind he was trying
to keep the victim from calling the police and not trying to kill him, the Petitioner would see
wrapping someone in a blanket and then placing the person in a bathtub filled with water and
kerosene as “a very, very dangerous thing to do.”

        Dr. Phyfer speculated that, by the time the victim was placed in the bathtub and wrapped in
the blanket, the Petitioner was so far involved in the robbery, he was not listening to his “best voice,”
and, in her opinion, the Petitioner was not thinking for himself at all. She explained that the
Petitioner’s ordinary capacity for judgment was likely diminished even more by being in the victim’s
house with other people telling him what to do.

         While Dr. Phyfer’s testimony was unavailable to the trial court at the time of the sentencing,
it is unclear that her testimony would have benefitted the Petitioner’s position. Dr. Phyfer stated that
the Petitioner, while not an obviously dangerous offender, had the potential to be one if he followed
the wrong people. Furthermore, she stated that the Petitioner admitted to being at the home of the



                                                  -19-
victim, participating in the burglary, and understanding the difference between right and wrong. The
trial court held that:

              Petitioner alleges that [Counsel] was ineffective at sentencing by failing to
       object to consecutive sentencing, and failed to show that defendant was not a
       dangerous offender.

              The state did not pursue life without parole at the trial. Therefore, the only
       sentence for the murder conviction was life.

               [Counsel] went over the pre-sentence report with his client, and stipulated to
       its admission. Petitioner now claims that there was an error in the report, which
       stated he was on probation at the time of the offense.

              Petitioner received the presumptive sentence of 8 years for aggravated
       robbery, and the presumptive sentence of 15 years for especially aggravated
       kidnapping, concurrent, but consecutive to the life sentence.

               The Court used two factors under T.C.A. 40-35-115 to impose consecutive
       sentencing. Therefore, even if in error about the factor that the offense was
       committed while on probation, the consecutive sentencing would still be imposed on
       the fact that the defendant is a dangerous offender whose behavior indicates little or
       no regard for human life, and who committed a crime in which the risk to human life
       is high. The Court found that an extended sentence was necessary to protect the
       public and that consecutive sentences reasonably relate to the severity of the offenses
       that were committed.

               The Court finds that petitioner has failed to satisfy his burden of showing that
       his counsel was deficient for failing to discover the error in the pre-sentence report,
       or that his failure to do so prejudiced the outcome of the sentencing. The petitioner
       is not entitled to post-conviction relief on this issue.

        The trial court articulated its finding that the Petitioner was “a dangerous offender whose
behavior indicates little or no regard for human life, and who committed a crime in which the risk
to human life is high.” The testimony by Dr. Phyfer does not contradict this finding. The Petitioner
failed to meet his burden of proving his allegation by clear and convincing evidence. Accordingly,
we conclude that the Petitioner is not entitled to post-conviction relief on this issue.

                     F. Denied Effective Assistance of Counsel on Appeal

        The Petitioner alleges that Counsel provided ineffective assistance of counsel during his
appeal. Petitioner bases this allegation on the fact that Counsel copied the co-defendant’s brief and,
as a result, failed to raise other issues on appeal. The trial court found that:


                                                -20-
               It is counsel’s responsibility to determine the issues to present on
       appeal. State v. Matson, 729 S.W.2d 281, 282 (Tenn. Crim. App. 1986). 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). There is
       no constitutional requirement 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.

              Petitioner has failed to show how copying the brief of co-counsel was
       prejudicial. [Counsel] testified that he and [Co-counsel] worked together on the case,
       and collaborated on the appeal. [Counsel] was satisfied that the main issues were
       presented on appeal. This was a tactical choice.

              The Court finds that petitioner has failed to satisfy his burden of showing that
       his counsel was deficient for failing to brief additional issues, or that his failure to do
       so prejudiced the outcome of the appeal. The petitioner is not entitled to post-
       conviction relief on this issue.

         The Petitioner alleges that Counsel merely copied the co-defendant’s brief, however, Counsel
testified at the post-conviction hearing that that was not the case. Counsel explained that while he
copied the brief, he did do research. He explained:

        I don’t mean I just copied [co-counsel’s brief] without reviewing anything and doing
        the research. That’s not correct. I used his hard copy, but I just didn’t blindly put
        things in my brief. I thought that issue on double jeopardy argument was a good
        issue, because if it was successful [the Petitioner] would walk. But, yes, I did do
        research.

While the Petitioner alleges that Counsel failed to research issues for appeal, Counsel testified to the
contrary at the post-conviction hearing. He testified that he researched possible issues and that he
ended up copying the co-defendant’s brief after he reached the conclusion that the double jeopardy
issue “was really the best appellate issue [the Petitioner] had.” We conclude that the Petitioner has
failed to show that Counsel’s representation at the appellate level was deficient.

         Even if Counsel’s representation were deficient, however, the Petitioner has failed to show
prejudice. To prevail on a claim of ineffective assistance of counsel, the Petitioner must show that
“counsel’s representation fell below an objective standard of reasonableness,” Strickland, 466 U.S.
at 688, and that this performance prejudiced the defense, resulting in a failure to produce a reliable
result. Id. at 687; Cooper, 849 S.W.2d at 747. To satisfy the requirement of prejudice, the Petitioner
must show a reasonable probability that, had Counsel raised certain issues on appeal, the appellate
court would have granted a new trial or the outcome would have been different. This reasonable
probability must be “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at



                                                  -21-
694; see also Harris, 875 S.W.2d at 665. The Petitioner has failed to satisfy this burden.
Accordingly, we conclude that the Petitioner is not entitled to post-conviction relief on this issue.

                                         III. Conclusion

        Thus, we conclude that the post-conviction court properly found that the Petitioner failed to
prove ineffective assistance of counsel by clear and convincing evidence and that Counsel fully
discharged his duties as the Petitioner’s attorney. Accordingly, the judgment of the post-conviction
court is AFFIRMED.


                                                       ___________________________________
                                                       ROBERT W. WEDEMEYER, JUDGE




                                                -22-
