         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs May 6, 2003

                   ANDREW COLE v. STATE OF TENNESSEE

                       Appeal from the Circuit Court for Gibson County
                              No. 15354    L. T. Lafferty, Judge



                   No. W2002-01432-CCA-R3-PC - Filed August 29, 2003


The Appellant, Andrew Cole, appeals the dismissal of his petition for post-conviction relief by the
Gibson County Circuit Court. Cole is currently incarcerated as a result of his jury convictions for
attempted first degree murder, attempted second degree murder, aggravated assault, and felon in
possession of a firearm. On appeal, Cole raises the issues of: (1) whether he received ineffective
assistance of counsel; (2) whether the trial court erred in refusing to appoint “new counsel” for him
at trial; and (3) whether he was improperly sentenced as a multiple offender. After review of the
issues, we affirm the dismissal of the petition.

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

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

Richard W. Vaughn, Jr., Milan, Tennessee, for the Appellant, Andrew Cole.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; P. Robin
Dixon, Jr., Assistant Attorney General; Garry G. Brown, District Attorney General; and Larry
Hardister, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                            OPINION

                                       Factual Background

        On December 20, 1996, the Appellant received a ride to the Milan Box Factory to meet his
estranged wife, Tammy Cole. After finishing her shift, Mrs. Cole came out of the factory with her
uncle, John Hannah, and the two proceeded to get into the car of Mrs. Cole’s boyfriend, Johnny
Crayton. While in prison, the Appellant had learned that his wife was living with Crayton. This
relationship continued after the Appellant’s release from prison and resulted in numerous threats by
the Appellant to kill both his wife and Crayton. Upon observing his wife with Crayton, the
Appellant, brandishing a pistol, ran toward Crayton’s vehicle and began shooting into it. Two bullets
hit Crayton, one in the chest and one in the back of his neck, and Mrs. Cole was shot twice in the leg.
Mr. Hannah was not shot; however, several bullets passed nearby. The Appellant fled the scene but
was apprehended several days later at the apartment of his girlfriend.

        On January 21, 1997, a Gibson County grand jury returned a seven count indictment charging
the Appellant with two counts of attempted first degree murder, three counts of aggravated assault,
one count of reckless endangerment, and one count of felon in possession of a firearm. On
September 16, 1997, a jury convicted the Appellant of: (1) attempted first degree murder; (2)
attempted second degree murder; (3) aggravated assault; and (4) felon in possession of a firearm.
The trial court subsequently sentenced the Appellant, as a Range II offender, to an effective sentence
of thirty years in the Department of Correction.1 The Appellant appealed, challenging only the
sufficiency of the convicting evidence, and a panel of this court affirmed the convictions and
sentences. State v. Andrew Cole, No. 02C01-9712-CC-00461 (Tenn. Crim. App. at Jackson, Sept.
22, 1998).

        The Appellant then filed a pro se petition for post-conviction relief on September 27, 1999,
which was amended following the appointment of counsel. A post-conviction hearing was held on
April 29, 2002, during which only the Appellant and trial counsel testified. The Appellant testified
at the hearing that trial counsel failed to communicate with him or to keep him informed of
developments in the case, meeting with him only twice before trial. In addition, the Appellant
asserted that trial counsel was inadequately prepared for trial by failing to interview witnesses.
Further, the Appellant testified that there was confusion regarding the length of the sentence in the
plea agreement offered by the State.

        Trial counsel testified that he maintained contact with the Appellant, meeting with him at
least three times and logging at least thirty-five phone calls from the Appellant, in addition to
replying to numerous written communications. This communication was accomplished despite the
fact that the Appellant was transferred to the Department of Correction pending trial due to his
misconduct in the jail. Trial counsel testified that the facts of the case were essentially
uncontroverted, and the only defense available to the Appellant was “one of passion.” Nonetheless,
trial counsel testified that he proceeded to interview all material witnesses. Counsel further
maintained that, despite the fact that the Appellant had physically threatened his safety, he felt he
was capable of continuing his representation of the Appellant. Trial counsel further explained that
during the pretrial stage of the case, he had filed a motion to withdraw as counsel for the Appellant;
however, this was done at the Appellant’s insistence. This motion was denied by the trial court.
After hearing all the evidence, the post-conviction court dismissed the petition, finding that no relief
was warranted. This appeal followed.



        1
          The Appellant was sentenced to thirty years for attempted first degree murder, fifteen years for attempted
second degree murder, seven years for aggravated assault, and eleven months and twenty-nine days for being a felon in
possession of a firearm. T he sentences were ordered to be served concurrently.

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                                               Analysis

I. Ineffective Assistance of Counsel

        To succeed on a challenge of ineffective assistance of counsel, the Appellant bears the burden
of establishing the allegations set forth in his petition by clear and convincing evidence. Tenn. Code
Ann. § 40-30-210(f) ( 1997). The Appellant must demonstrate that counsel’s representation fell
below the range of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). Under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984), the Appellant must establish (1) deficient representation and (2) prejudice resulting from the
deficiency. The petitioner is not entitled to the benefit of hindsight, may not second-guess a
reasonably based trial strategy, and cannot criticize a sound, but unsuccessful, tactical decision made
during the course of the proceeding. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).
This deference to the tactical decisions of trial counsel is dependant upon a showing that the
decisions were made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).

        The issues of deficient performance by counsel and possible prejudice to the defense are
mixed questions of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). “[A] trial court’s
findings of fact underlying a claim of ineffective assistance of counsel are reviewed on appeal under
a de novo standard, accompanied with a presumption that those findings are correct unless the
preponderance of the evidence is otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001)
(citing Tenn. R. App. P. 13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). However,
conclusions of law are reviewed under a purely de novo standard, with no presumption that the post-
conviction court’s findings are correct. Id.

         In support of his argument of ineffectiveness the Appellant asserts: (1) trial counsel only met
with him for approximately two hours during his preparation for trial; (2) trial counsel failed to
interview the victim, Tammy Cole; (3) trial counsel failed to sufficiently prepare the Appellant prior
to his testimony; and (4) trial counsel did not clearly communicate the State’s plea offer. The post-
conviction court, accrediting the testimony of trial counsel, found all allegations of ineffectiveness
to be without merit. The court found that trial counsel had “adequately conferred with Petitioner
about the details surrounding the offenses, conducted an investigation and developed a trial strategy
of passion and provocation to reduce the offenses to attempted voluntary manslaughter.” Regarding
the plea offer, the post-conviction court, again accrediting trial counsel’s testimony, found that
“Petitioner’s desire for a better State offer and the failure to obtain the same does not constitute
ineffective assistance on the part of trial counsel.” In sum, the post-conviction court found that the
Appellant had failed to meet his burden of proof and that “defense counsel’s representation did not
fall below the standards.”

        After review of the record, we find nothing which would lead us to disturb the conclusions
of the post-conviction court. The court’s findings of fact are entitled to substantial deference on
appeal unless the evidence preponderates against those findings. Henley v. State, 960 S.W.2d at 578.


                                                  -3-
Questions concerning credibility of witnesses, the weight and value to be given their testimony, and
the factual issues raised by the evidence are to be resolved by the trial court. Id. at 579. We will not
reweigh or reevaluate the evidence or substitute out inference for those drawn by the trial court. Id.
at 578-79. Trial counsel conducted a thorough investigation, interviewed the necessary witnesses
in order to prepare for trial, and communicated the State’s offer to the Appellant. Finding nothing
in the record before us which preponderates against the post-conviction court’s findings, we find
the issue of deficient performance to be without merit.

II. Choice of Counsel

       The Appellant next argues that “the trial court err[ed] in not granting [the Appellant] post-
conviction relief based upon his desire to obtain new counsel and/or his inability to cooperate and/or
work with trial counsel.” First, we note that the Appellant cites no authority for this argument. See
Tenn. R. App. P. 27(a)(7); see also Tenn. Ct. Crim. App. R. 10(b).

        The post-conviction court’s findings acknowledge that while differences existed between the
Appellant and trial counsel, “these differences clearly did not affect [trial counsel’s] ability to
adequately represent Petitioner. . . . It is significant to this Court that Petitioner has some problems
with his attitude, in that Petitioner has a history of violence, his courtroom threats to trial counsel,
and Judge Jerman’s order transferring Petitioner to the Department of Correction pending trial, due
to Petitioner’s disruptive behavior in the Gibson County jail would give any defense counsel
concern.”

         We agree with the post-conviction court that no relief is warranted. The court determined
that trial counsel’s performance was not deficient, nor was it adversely affected by the “conflict”
between him and the Appellant. While the United States Constitution guarantees an indigent
criminal defendant the right to counsel at trial, which necessarily encompasses the right to effective
assistance of counsel, the right does not entitle a defendant to the counsel of his choice. Wheat v.
United States, 486 U.S. 153, 159, 108 S. Ct. 1692, 1697 (1988); see also State v. Carruthers, 35
S.W.3d 516, 546 (Tenn. 2000) (holding that “[t]he right of an accused to assistance of counsel . . .
does not include the right to appointment of counsel of choice, or to special rapport, confidence, or
even a meaningful relationship with appointed counsel”). This issue is without merit.

III. Sentencing

        As his final issue, the Appellant argues that it was error for the trial court to sentence him as
a Range II multiple offender based upon the Appellant’s prior felony convictions. The Appellant
asserts that he should have been sentenced as a Range I offender because the prior felonies used to
enhance his range all occurred within twenty-four hours of each other, thus falling under Tennessee
Code Annotated § 40-35-106(a)(4) (1997), which states that convictions for multiple felonies
committed as a part of a single course of conduct within twenty-four hours should constitute one
conviction for the purpose of determining prior convictions. The Appellant acknowledges that this
rule contains an exception, which states that acts resulting in bodily injury or threatened bodily injury


                                                  -4-
are not to be construed as a single conviction. However, the Appellant alleges that the State’s notice
of intent to seek enhanced punishment does not articulate and establish beyond a reasonable doubt
that his prior crimes fell within this exception; thus, they should be viewed as a single conviction.2

        First, we would note that Tennessee Code Annotated § 40-35-401 states that “[t]here is no
appellate review of the sentence in a post-conviction or habeas corpus proceeding.” Tenn. Code
Ann. § 40-35-401(a) (1997). Moreover, the Appellant’s issue of improper sentencing is not one
which is cognizable in a post-conviction proceeding. Only issues of constitutional import are proper
consideration for this court on review of a petition for post-conviction relief. Tenn. Code Ann. § 40-
30-203 (1997). The Appellant’s available avenue for relief on sentencing issues was the direct
appeal of his case. It is well established that a party may not raise an issue in a post-conviction
petition that could have been raised on direct appeal. State v. Townes, 56 S.W.3d 30, 35 (Tenn.
Crim. App. 2000). “A ground for relief is waived if the petitioner personally or through an attorney
failed to present it for determination in any proceeding before a court of competent jurisdiction in
which the ground could have been presented.” Tenn. Code Ann. § 40-30-206(g) (1997). “The
opportunity to raise the issue during a direct appeal of the conviction, coupled with a failure to
pursue that appeal or a failure to raise the issue during that appeal, constitutes a waiver of the issue
pursuant to Code section 40-30-206(g) for purposes of a post-conviction relief proceeding.” Townes,
56 S.W.3d at 35. Thus, the Appellant’s failure to raise the issue of his sentence on direct appeal
results in waiver and precludes any review on the merits by this court.




                                                                   ___________________________________
                                                                   DAVID G. HAYES, JUDGE




         2
             Attached to the Appellant’s brief is purportedly the State’s Notice of Intent to Seek Enhanced P unishment
which sets forth the following convictions: “(1) On July 20, 1993 . . . convicted o f Reckless En dangerm ent, a class E
felony. (2) O n July 20, 19 93 . . . co nvicted of Aggravated Assault, a class C felony. (3) On July 20, 1993 . . . convicted
of Aggrava ted Assault, a class C felony.” However, docum ents attached to the brief which are not authenticated by the
trial court may not be considered as evidence by this court. Tenn. R. A pp. P . 24(f). E ven if authenticated, it would be
impo ssible to determine from this doc ument whether the d ate of July 20, 1993, refers to the date of the offenses or the
date o f the con victions.



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