         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs January 27, 2004

          FRANK CHESTER BRIGHT, JR. v. STATE OF TENNESSEE

                Direct Appeal from the Criminal Court for Davidson County
                     Case No. 97-A-597    J. Randall Wyatt, Jr., Judge



                      No. M2003-00239-CCA-R3-PC - Filed May 18, 2004


A Davidson County jury convicted the Petitioner, Frank Chester Bright, Jr., of possession with intent
to deliver over twenty-six grams of a substance containing cocaine, a Class B felony, and facilitation
of possession of a deadly weapon, a Class A misdemeanor. The trial court sentenced the Petitioner
as a career offender to thirty years in prison on the possession count and eleven months and twenty-
nine days in prison on the facilitation count, with the sentences to run concurrently. On direct
appeal, this Court affirmed the conviction, and the Tennessee Supreme Court denied the Petitioner’s
application for permission to appeal. The Petitioner then filed a petition seeking post-conviction
relief in the trial court, which the court dismissed. On appeal, the Petitioner asserts that the post-
conviction court erred when it dismissed his petition finding that there was no merit to his claims
that: (1) he was denied effective assistance of counsel at his sentencing hearing; (2) the prosecutor
committed prosecutorial misconduct at the sentencing hearing; and (3) the trial court’s instructions
to the jury violated his due process rights. Finding no error, we affirm the post-conviction court’s
dismissal of the petition.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
ALAN E. GLENN , joined.

Peter T. Skeie, Nashville, Tennessee, for the Appellant, Frank Chester Bright.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Jennifer L.
Bledsoe, Assistant Attorney General; Victor S. Johnson, District Attorney General; and John C.
Zimmerman, Assistant District Attorney General, for the appellee, State of Tennessee.

                                             OPINION
                                      I. Factual Background

       This Court summarized the underlying facts of the Petitioner’s case on direct appeal as
follows:
The arrests of the defendant, Shawntava Shields, and Lisa Rice on October 1, 1996,
were the result of an undercover operation carried out by Sergeant Greg Bunch of the
Eighteenth Judicial District Task Force. In September 1996, Rice was in jail on an
aggravated burglary charge. While in jail, Rice agreed to arrange a purchase of five
ounces of cocaine for another female inmate whom she knew as Teresa. The plan
was for Rice to arrange the sale through her supplier, once she was released from jail,
and deliver the cocaine to Teresa’s boyfriend, Chris. On October 1, 1996, Rice was
released on Community Corrections, and that same day she was contacted by
telephone by the person she thought was Chris. In fact, Sergeant Bunch had been
informed by a confidential informant of the proposed sale, and it was Bunch, posing
as “Chris,” who made this and subsequent calls to Rice to arrange the drug sale.
“Chris” promised to pay Rice $1,000 for setting up the deal. Rice paged the
defendant to set up the sale. Her home phone number was entered in the beeper
recovered from the defendant at the crime scene. Arrangements were made for the
sale of five ounces of cocaine for $5,000. The defendant promised Rice an “eight-
ball” of cocaine for making the contact. Once a location for the sale was established,
Shields, the defendant’s “sometimes” girlfriend, drove a Nissan Maxima to the
agreed location, with the defendant in the front passenger seat and Rice in the back
seat. On the way to the location, the defendant showed Rice five bags of cocaine and
a gun, which he threatened to use if the deal turned out to be a setup.

        The defendant, Shields, and Rice arrived at the agreed location shortly after
Sergeant Bunch and parked close to his car. Rice got out of the back seat and
approached Sergeant Bunch, who sent her back to the Maxima for the drugs before
he was willing to hand over the money. Once she returned with the cocaine and
handed it to Sergeant Bunch, other undercover police officers, who had been
monitoring the situation from close by in three separate vehicles, moved in, with
strobe lights and sirens activated, to block the Maxima. As these police vehicles
blocked that of the suspects, Shields, who was operating the suspects’ vehicle,
rammed the vehicles in both her front and rear. The defendant then jumped from the
passenger seat into Shields’s lap and began operating the gear lever himself, ramming
the police vehicles blocking his own. However, the defendant was unsuccessful in
extricating the vehicle, and he and Shields were arrested. The pistol, found on the
passenger seat where the defendant had been sitting, was fully loaded. Recovered
were two bags of cocaine, one weighing 14.2 grams and the other weighing 9.4
grams, on the driver’s seat of the Maxima; a bag of 2.7 grams of cocaine and a bag
of 2.6 grams of marijuana on the defendant’s person; and on Shields’s person,
twenty- one small bags of marijuana with a total weight of 19.2 grams and a
marijuana joint laced with cocaine base.

       Other evidence from the scene included the bag of cocaine Rice had given to
Sergeant Bunch, which weighed 5.1 grams, and the defendant’s wallet, containing



                                         -2-
        a driver’s license in the name of “Mervyn Leo Jordan,” the person the defendant
        claimed to be when he was arrested.

State v. Frank Chester Bright, Jr., No. 01C01-9807-CR-00291, 1999 WL 743604, at *1-2 (Tenn.
Crim. App., at Nashville, Sept. 24, 1999), perm. app. denied (Tenn. Oct. 23, 2000) (footnotes
omitted).

        On direct appeal, this Court affirmed the convictions, and the Tennessee Supreme Court
denied the Defendant’s application for permission to appeal. The Petitioner filed a pro se petition
for post-conviction relief. The post-conviction court appointed an attorney to represent the
Petitioner, and the attorney filed an amended post-conviction petition. In this amended petition, the
Petitioner asserted that his conviction “must be voided and a new trial ordered.” After a hearing, the
post-conviction court dismissed the petition, and the Petitioner filed a timely notice of appeal. On
appeal, the Petitioner asserts that the post-conviction court erred when it dismissed his petition
finding that there was no merit to the Petitioner’s claims that: (1) he was denied effective assistance
of counsel at his sentencing hearing when his trial counsel, Robert Turner (“Counsel”), failed to
argue that the evidence showed that the Petitioner was not a career offender; (2) the prosecutor
committed prosecutorial misconduct at the sentencing hearing; and (3) the trial court’s instructions
to the jury violated his due process rights.

         The following evidence was presented at the post-conviction hearing. The Petitioner testified
that Counsel “showed up . . . right around time for the first trial.” He explained that the first trial
ended with a hung jury and that he was retried a few weeks later. The Petitioner stated that both
Counsel and Steven Wells were his lawyers at the first trial. He explained that while Wells was first-
chair, both Counsel and Wells questioned witnesses. The Petitioner explained that, prior to the first
trial, he met with one of the attorneys twice, once for about ten minutes and once for about five
minutes, but that he did not speak with Counsel at all between the first and second trial. The
Petitioner stated that the only time he met with Counsel following the first trial was on the day of
the second trial in a back room of the court house. The Petitioner stated that both Counsel and Wells
were involved in the second trial. The Petitioner explained that to his knowledge neither Counsel
nor Wells interviewed either of the co-defendants or police officers involved in his arrest.

        The Petitioner testified that he was charged with some serious charges as well as some lesser-
included offenses. He stated that he never discussed with Counsel the possibility of seeking a
conviction on one of the lesser-included offenses in order to avoid a conviction on the most serious
charge of possession with intent to deliver. The Petitioner stated that he “didn’t know anything
about lesser-included offenses” and that, when he asked Counsel about lesser-included offenses,
“[Counsel] said . . . don’t worry about that” because they were trying to achieve a hung jury again
in the second trial. The Petitioner testified that neither Counsel nor Wells ever told him that, if he
was convicted of possession with intent to deliver, he could receive a thirty-year mandatory sentence.
The Petitioner recounted that Counsel and Assistant District Attorney General John Zimmerman
discussed, in open court, possible jail time if he was convicted of possession with intent to deliver.
The Petitioner stated that Counsel asked for the lower end of the range, eight to fifteen years at forty-


                                                  -3-
five percent, and that General Zimmerman asked for the higher end of the range, twenty to thirty
years at forty-five percent.

        The Petitioner explained that, at that time, he did not understand enhancement and mitigating
factors in sentencing and that no one explained these factors to him until after he was convicted. The
Petitioner stated that, during the trial, he believed he would receive between eight and thirty years
in prison at forty-five percent or less if he was convicted. The Petitioner testified that he would have
considered trying to get an acquittal on the possession with intent to deliver charge by focusing the
jury’s attention on the facilitation of possession of a deadly weapon charge if Counsel had explained
to him that he would receive a thirty-year sentence at sixty-five percent if convicted of possession
with intent to deliver.

       The Petitioner testified that, during jury deliberations, the jury came back into the courtroom
during a recess and saw, in addition to the evidence used against him during the trial, a television
and “other stuff” that was evidence in an unrelated trial. The Petitioner speculated that the jury was
confused by the evidence from the other trial and mistakenly believed that he had other charges
pending against him.

        On cross-examination, the Petitioner reiterated that he did not understand lesser-included
offenses and stated that the judge never instructed the jury in his first trial on lesser-included offenses
because “it was all or nothing [at] the first trial.” The Petitioner testified that the second trial was
also “all or nothing” and that the judge never instructed on lesser-included offenses. The State then
introduced into evidence copies of jury charges from both trials.

       The Petitioner explained that he only understood what “Range I” meant but did not know that
after multiple convictions his sentence would be enhanced. Further, the Petitioner testified that no
other judge had ever explained to him that his convictions would be used to enhance future
punishments.

       The Petitioner stated that, before his first trial, Wells visited him twice and Counsel spoke
to him on the telephone once. The Petitioner explained that, at the first trial, Wells was “the main
lawyer” but that at the second trial Counsel was the lead attorney. The Petitioner stated that he did
not have a problem with either attorney’s representation during the first trial.

        The Petitioner denied that he was caught with twenty-six grams of cocaine and that he tried
to get away by smashing a police car. He admitted that he was in the vehicle but claimed that he
“was in the passenger side” and that he never drove the vehicle. The Petitioner acknowledged that
he knew he could be convicted of possession with intent to deliver and that he had a prior record.
The Petitioner testified that he had multiple prior felonies, “about four, maybe, five. But not six.”
The Petitioner explained that he was not a “career criminal.” The Petitioner stated that he was
positive that he did not have six felony convictions, and that if the judgments from prior convictions
indicated that he had six convictions, the judgments were wrong.



                                                   -4-
        Counsel was called by the Petitioner. He stated that, initially, the Petitioner retained him and
Wells as counsel, but that, subsequently, they were court-appointed. Counsel stated that he only had
a portion of the Petitioner’s file. Counsel explained that Wells was now living in Alaska and that
he took some of the Petitioner’s files when he left. Counsel stated that there were two trials, the first
ended with a hung jury and the second ended with a conviction. Counsel explained that he only had
a vague recollection of what happened at the two trials. Counsel stated that he and Wells filed a
request for discovery, and the State responded to that request.

        Counsel testified that, during plea negotiations, the State offered the Petitioner a sentence of
“eighteen years, Range II, [consecutive to] the sentence he was [currently] serving, with an additional
eight years concurrent with the eighteen years, Range II.” Counsel then read a portion of Wells’
notes that indicated that the State made a second offer to the Petitioner for “twenty years, at forty-
five percent, Range III, consecutive [to the twelve years at thirty-percent which the Petitioner was
currently serving], and then eight years concurrent [with the twenty years at forty-five percent].”
Counsel testified that he met with the Petitioner and explained to him, with the aid of a sentencing
matrix, “what he was looking at if he was convicted.” Counsel stated that he went over the State’s
offer at that time, but the Petitioner “was not interested in . . . any type of plea. He was interested
in beating the case.” Counsel testified that, at the time he met with the Petitioner, he knew and
understood that the Petitioner was facing a “career criminal type of sentence” if he was convicted,
based on the Petitioner’s prior record.

        I, specifically, recall [] having his record and having his Discovery from the state and
        using the sentencing matrix and showing him where . . . he fell on that. I don’t,
        specifically, recall saying, [Petitioner,] you’re a career offender, you fall over here or
        you’re a persistent offender. I knew he had a very lengthy criminal record. And if
        he would have been a career offender at that time, I would have said, on this matrix,
        this [is] where you fall.

Counsel explained that, after discussing the Petitioner’s possible sentence with him, the Petitioner’s
reaction was that he could beat the charges. Counsel stated that the Petitioner “wanted to go to trial
and beat the case” and did not entertain the plea agreements that Counsel and Wells had negotiated
for him.

        Counsel testified that he spoke with the lead detective and other police officers involved in
the Petitioner’s case, but he could not recall whether he did so prior to the first or second trial.
Counsel further stated that he could not recall whether he spoke with or interviewed Jose Ramirez.
Counsel explained that, in preparation for the trial, he and Wells met with the Petitioner, filed a
motion for discovery and reviewed the materials, held plea negotiations with the State, made a copy
of the Preliminary Hearing transcript, and spoke with the lead detective and other police officers.
Counsel testified that “there was a joint trial in the first trial, and then Lisa [Rice, a co-defendant,]
pled, and maybe testified at the second trial.” Counsel testified that he did not interview Rice before
the second trial because she was represented by counsel.



                                                   -5-
         Counsel explained that the theory of the case was that the Petitioner was simply with Lisa
Rice at the time of the offense and that the drugs were not his. Counsel testified, “Lisa [Rice] was
closer to [the drugs] than him. And based upon the facts . . . [the Petitioner] couldn’t have known
that the cocaine was in the car[,] but [Rice] would be the one that knew about it.” Counsel explained
that the Petitioner had distanced himself from Rice and “somehow or another, he just happened to
be at the car at the time of the drug bust.”

         Counsel stated that he did not request a copy of the transcript from the first trial and he did
not know whether Wells did. Counsel explained, “I [took] almost verbatim notes” during the first
trial, and the two of them worked off those notes at the second trial. Counsel acknowledged that they
did not ask for a continuance in order to get a copy of the transcript from the first trial.

         Counsel testified that he could not recall whether Shields, the other co-defendant, pled guilty
before the second trial. He explained that he did not remember when he found out that Rice was
going to testify against the Petitioner at the second trial, but “it seems like it may have been a
surprise . . . .” Counsel explained that they did not request a continuance because they were prepared
to try the case and had just tried it two weeks before. Counsel stated that he had no recollection as
to Shields’ testimony at the first trial and that he had no recollection of interviewing her.

        Counsel testified that he and Wells discussed the strategy of achieving a conviction on a
lesser-included offense in exchange for an acquittal on the possession charge, but “it was an all or
nothing thing” in the Petitioner’s mind. Counsel explained, “[H]e wasn’t interested in doing any
lesser included offenses. Otherwise, we would have done that.” Counsel stated that, “I have no
doubt that he knew what he was facing, because I went over it with him, and Mr. Wells went over
it with him. And I think that there was one occasion that we both sat down and went over it with
him.” Counsel explained that the Petitioner knew “a lot more than the average client” because he
spent time in the prison law library figuring out what his legal situation was and “how to get out of
it.”

        Counsel testified that, after the Petitioner was convicted at the second trial, Wells handled
the case from the conviction through the sentencing hearing. Counsel stated that he had no
recollection of preparing for the sentencing hearing. Counsel indicated that the sentencing hearing
transcript indicated that Wells was the only one who spoke to the Court.

         On cross-examination, Counsel testified that Lisa Rice got her drug “samples” from the
Petitioner. Further, Counsel acknowledged that the Petitioner knew of the possible outcomes of the
trial, but he was only interested in beating the charges. Counsel explained that, after the first trial,
he went to the Petitioner with a plea offer from the State. He stated that he met with the Petitioner
and “he wasn’t interested in pleading to anything.” Counsel stated that either he or Wells discussed
each plea offer with the Petitioner, but the Petitioner was unwilling to agree to any of the offers.
Counsel explained that, if the Petitioner had agreed to a plea offer, he would have “jumped” at the
opportunity because the offer was the same as what they hoped would be the outcome at the trial.



                                                  -6-
        Counsel testified that, if the Petitioner was a career offender and was convicted of the
possession with intent to deliver charge, the only possible sentence was thirty years at sixty percent.
He also agreed that the sentence was not probatable. Counsel stated that,“not only did I think [the
Petitioner] understood [the possible sentences], but he had questions about it. And we were . . .
looking at the different possibility on the [sentencing matrix], like kind of playing checkers,
discussing them.” However, Counsel explained that, after consulting with the Petitioner, the
Petitioner refused the plea offers and the strategy was to beat the charges.

         The Petitioner next called General Zimmerman. General Zimmerman testified that he has
practiced law since 1974 and has been a prosecutor since 1981. The Court took judicial notice that
in the time General Zimmerman has been a prosecutor, “he’s participated in a number of cases.” The
general stated that, in preparing for a sentencing hearing, he would sometimes read the presentence
report. He explained, “Usually I’m looking for the defendant’s statement since I know what the case
is about. All I’m really interested in is what the defendant said and whether or not . . . the
Presentence Report writer made any comments about the defendant’s . . . drug usage or when he last
used drugs.” He explained that there is a statutory requirement that a presentence report be
introduced as an exhibit at a sentencing hearing. The Court took judicial notice that the presentence
reports are official documents prepared by probation officers who work for the State in the Probation
Department. General Zimmerman stated that the documents should be completed as accurately as
possible but that “[probation officers] make mistakes . . . they’re only human.”

        General Zimmerman testified that he did not use the presentence report when he made his
recommendation to the judge. He admitted that he read the report but explained that he did not use
it because he is “merely interested in what the defendant told the writer of the Presentence Report.”
He stated that he wanted to see if the Petitioner’s statements to the writer of the presentence report
were self-serving or contained an admission. General Zimmerman explained that the presentence
report contained the Petitioner’s statement and criminal history. General Zimmerman stated that he
did not know how the presentence reports were prepared.

        General Zimmerman identified the Petitioner’s “record card.” He explained that the record
card was an internal document prepared by secretaries in the District Attorney’s Office by
“deciphering” the information “as best they can . . . from the covers of our blue files after a case is
disposed.” He further explained that the record cards prepared by the District Attorney’s Office are
not official records. General Zimmerman conceded that record cards are business records, but
“they’re only [as] reliable as the Assistant D.A. who writes on the blue file and the secretary [who]
properly takes that from the blue file.” General Zimmerman stated that the record cards are used by
prosecutors to find out whether a defendant has prior convictions and, if so, what the convictions are.

        On cross-examination, General Zimmerman admitted that he had no independent recollection
of the Petitioner’s case. He stated that:

       [I]f someone is going to be sentenced in a range above the Standard Range I, then it’s
       our duty to go get certified copies of the conviction, judgments of convictions and the


                                                 -7-
         indictments if the judgments do not reflect the date of the offense. And that’s what
         we rely upon, what the actual official records of the Court are.

He then explained that the documents relied upon are obtained from the clerk’s office, not the
internal records of the district attorney’s office. On re-direct, General Zimmerman stated that he had
no recollection of having read the presentence report prior to the post-conviction hearing. He
explained, “I do know, based on our D.A. records, I went and found the [Petitioner’s] convictions
to show Judge Wyatt. We filed a Notice of Sentence Enhancement that he was a career criminal.
That was based on the certified copies of the judgment of convictions.”

       Following the presentation of the evidence, the post-conviction court found that the Petitioner
was not denied effective assistance of counsel and dismissed the petition. The court stated:

         Based on the testimony and exhibits presented at the hearing and the entire record of
         both trials, the Court finds that [Counsel’s] representation of the Petitioner was
         competent and thorough. The Court does not find that the Petitioner has presented
         sufficient evidence to establish that his trial counsel’s representation at either trial
         was deficient or prejudicial. For these reasons the Court must reject the Petitioner’s
         ineffective assistance of counsel claim.

                 The Court also finds that the jury instructions given were proper and
         supported by the record. The Court notes that the Tennessee [Court of Criminal
         Appeals] found that the Petitioner was sentenced appropriately by the Trial Court.
         The Court, therefore, is of the opinion that the Petitioner’s claim that the jury
         instructions were improper, is without merit.

                 The Petitioner’s final argument is that the prosecuting attorney, John
         Zimmerman, committed prosecutorial misconduct by arguing that the Petitioner was
         a career offender, even though he knew that the Petitioner was not a career offender.
         The Petitioner, however, has failed to present any evidence that Assistant District
         Attorney Zimmerman intentionally mislead the Court. The Court is of the opinion
         that attorney Zimmerman prosecuted the case in an ethical and competent manner.

                                                   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).1 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).


         1
           W e note that the 2003 amendment to the Post Conviction Procedure Act, Public Acts 1995, chapter 207,
section 1, changed the numbering of the general provisions part of the chapter to Tennessee Code Annotated section 40-
30-101, et seq.

                                                         -8-
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
to a purely de novo review by this Court, with no presumption of correctness. Id. at 457.

        On appeal, the Petitioner alleges that the post-conviction court erred when it dismissed his
petition for post-conviction relief. Specifically, he asserts that the post-conviction court erred when
it found there was no merit to the Petitioner’s claims that: (1) he was denied effective assistance of
counsel at his sentencing hearing when Counsel failed to argue that the proof showed that he was
not a career offender; (2) the prosecutor committed prosecutorial misconduct at the sentencing
hearing; and (3) the trial court’s jury instructions violated the Petitioner’s right to due process.

                               A. Ineffective Assistance of Counsel

        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.
State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999);
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). This right to representation includes the right
to “reasonably effective” assistance. Burns, 6 S.W.3d at 461. 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 a de novo review. Id.

        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


                                                 -9-
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).

        In the case under submission, the Petitioner alleges that he was denied effective assistance
of counsel at his sentencing hearing when Steven Wells2 failed to argue that the presentence report
and other evidence showed that the Petitioner was a persistent offender and not a career offender.
The Petitioner argues that the primary issue at his sentencing hearing was whether he was a “career
offender” or a “persistent offender.” A career offender is defined by Tennessee Code Annotated
section 40-35-108 (2003) as being “a defendant who has received: (1) Any combination of six (6)
or more Class A, B or C prior felony convictions, and the defendant’s conviction offense is a Class
A, B or C felony.” The State has the burden of proving that a defendant is a career offender beyond
a reasonable doubt. Tenn. Code Ann. § 40-35-108(c). A “persistent offender” is defined by
Tennessee Code Annotated section 40-35-107 (2003) as being “a defendant who has received: (1)
Any combination of five (5) or more prior felony convictions within the conviction class or higher,
or within the next two (2) lower felony classes, where applicable.”

        The Petitioner acknowledges that the State met its burden of proof of showing he is a career
offender by “introducing certified copies of court documents that recorded all six prior felonies as
[Class] C felonies,” but argues that Wells was ineffective for not contesting this evidence because
“the State’s presentence report contradicted the State’s allegation that [the Petitioner] was a career
[offender].” The Petitioner alleges that instead of arguing that the Petitioner was not a career
offender, Wells asked the Court for leniency which it could not give. The Petitioner contends that
the State provided Wells with ample evidence to raise reasonable doubt at the sentencing hearing in
the form of the presentence report that allegedly showed he was a persistent offender. The Petitioner
alleges that Wells failed to adequately review the contents of either the presentence report or the
record card, and that this failure falls below the range of competence demanded of attorneys in
criminal cases. The Petitioner maintains that this failure “had an adverse effect on his defense”
because, had Wells raised this issue at the sentencing hearing, it would have created a reasonable
doubt as to whether the Petitioner was a career offender. The State asserts that this issue is waived
because the Petitioner failed to include a transcript of the sentencing hearing in the record on appeal.
However, on June 11, 2003, upon motion by the Petitioner to supplement the record, this Court
ordered that it will take judicial notice of the direct appellate record, which includes a sentencing
hearing transcript. Therefore, we will decide this issue on its merits.

        After thoroughly reviewing the sentencing hearing transcript and the appellate record, we
conclude that the Petitioner was not denied effective assistance of counsel at his sentencing hearing.
At the sentencing hearing, the State introduced certified copies of six judgments for convictions of
burglary in the second degree, a Class C felony. Wells argued to the trial court that the Petitioner
had a serious drug problem and “a lot of the offenses that he’s committed have been to support his
habit.” Wells told the trial court, “Your Honor, I don’t think that . . . thirty years, simply because


         2
           Counsel did not represent the Petitioner at the sentencing hearing and testified that he did not recall preparing
for the sentencing hearing.

                                                           -10-
he’s addicted to drugs, is right. . . . I would ask that, . . . in the discretion of this Court, that you
would find that . . . it’s, perhaps, better to address the problem, rather than just putting him away.”
The presentence report and the district attorney’s office record card indicate that the Petitioner was
convicted of burglary in the second degree five times and burglary one time; however, those
documents are incorrect. For case number IF-5624, the certified copy of the judgment clearly states
that the Petitioner pled guilty to burglary in the second degree on May 18, 1989, while the
presentence report states that the Petitioner was convicted of “burglary–other than habitation,” and
the record card states he was convicted of burglary.

         “The original or certified copy of the court record of any prior felony conviction, bearing the
same name as that by which the defendant is charged in the primary offense, is prima facie evidence
that the defendant named therein is the same as the defendant before the court, and is prima facie
evidence of the facts set out therein.” Tenn. Code Ann. § 40-35-202(a) (2003). The certified copies
of the judgments were sufficient to prove beyond a reasonable doubt that the Petitioner was a career
offender pursuant to Tennessee Code Annotated section 40-35-108, and the discrepancies in the
presentence report and the record card would not have raised a reasonable doubt as to the Petitioner’s
status as a career offender. Once the trial court found that the Petitioner was a career offender, it had
no discretion in sentencing the Petitioner. Moreover, the Petitioner did not call Wells, his lawyer
at the sentencing hearing, to testify at the post-conviction hearing, and Counsel testified that he had
no recollection of preparing for the sentencing hearing. Without any testimony from Wells, we are
unable to ascertain what he did to prepare for the sentencing hearing or why he chose not to
challenge the State’s prima facie evidence of the Petitioner’s six prior convictions. Therefore, under
the circumstances, we conclude that Wells was not ineffective for not challenging the certified copies
of the judgments. Furthermore, we conclude that the Petitioner failed to present any proof that
Wells’ representation of the Petitioner at the sentencing hearing fell below an objective standard of
reasonableness and was not within the range of competence demanded of attorneys in criminal cases.
Accordingly, we conclude that the Petitioner was not denied effective assistance of counsel at his
sentencing hearing.

                                   B. Prosecutorial Misconduct

        The Petitioner next alleges that the post-conviction court erred when it found that his claim
of prosecutorial misconduct was without merit. The Petitioner asserts that General Zimmerman
committed prosecutorial misconduct at the Petitioner’s sentencing hearing by “never inform[ing] him
or the court that the presentence report [General Zimmerman] submitted to the Court contained
evidence that called for a lesser sentence than the career [offender] sentence [General] Zimmerman
wanted the court to impose.” Further, the Petitioner contends that General Zimmerman certified that
the presentence report was factually accurate to the best of his knowledge when he submitted it to
the Court at the sentencing hearing. The Petitioner argues that General Zimmerman must be deemed
to have known about the “inaccuracies” between the presentence report and the judgments obtained
from the clerk’s office. The Petitioner contends that an attorney “must be deemed to have known
about the exonerating content of the presentence report,” and, regardless of whether it was knowingly
or inadvertently, General Zimmerman committed prosecutorial misconduct.


                                                  -11-
      While the post-conviction court addressed this issue on the merits, we conclude that this issue
was waived because the Petitioner failed to bring this issue on direct appeal. Tennessee Code
Annotated section 40-30-206(g) (1997) provides that:

         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 unless:

                 (1) The claim for relief is based upon a constitutional right not recognized as
         existing at the time of trial if either the federal or state constitution requires
         retroactive application of that right; or

                 (2) The failure to present the ground was the result of state action in violation
         of the federal or state constitution.

The Petitioner’s ground for relief that the assistant district attorney committed prosecutorial
misconduct should have been brought on direct appeal, and this claim for relief is not “based upon
a constitutional right not recognized as existing at the time of trial.” Also, the Petitioner’s failure
to present this claim on direct appeal was not “the result of state action in violation of the federal or
state constitution.” Accordingly, we conclude that the Petitioner has waived this issue.

                                               C. Jury Instructions

        Lastly, the Petitioner alleges that the post-conviction court erred when it dismissed his post-
conviction petition finding that the trial court did not violate his due process rights when it instructed
the jury of his possible sentence if convicted of possession. The State submits that the trial court’s
jury instructions were not erroneous and that, even if the jury instructions were incorrect, the
Petitioner failed to show that it affected the jury’s verdict of guilt.

        At the time of the Petitioner’s second jury trial, the trial court was required to instruct the jury
on the range of punishment for the charged offense as well as lesser-included offenses if requested
to do so by either party.3 See Tenn. Code Ann. § 40-35-201(d)(1) (1997 & Supp. 1998). The
Tennessee Supreme Court ruled that Tennessee Code Annotate section 40-35-201(b) gave a
defendant a “claimable statutory right to have the jury know the range of punishment applicable to
the charges before deciding guilt or innocence,” and rejected the argument that this raised a


         3
          Tennessee Code Annotated section 40-35-201(b)(1) (1997) provided that for all non-capital cases, if
requested, the trial court “shall charge the possible penalties for the offense charged and all lesser included offenses.”
This instruction “shall include an approximate calculation of the minimum number of years a person sentenced to
imprisonment . . . must serve before reaching such person’s earliest release date.” T enn. Code Ann. § 40-35-
201(b)(2)(A)(i). Since the trial sub judice, this provision has been repealed so that for all non-capital criminal trials
subsequent to M ay 19, 1998, “the judge shall not instruct the jury, nor shall the attorneys be permitted to comment at
any time to the jury, on possible penalties for the offense charged nor all lesser included offenses.” Tenn. Code Ann.
§ 40-35-201(b) (2003).

                                                          -12-
constitutional error. State v. Cook, 816 S.W.2d 322, 326 (Tenn. 1991) (emphasis added). Because
the right to have the jury know the range of punishment applicable to the charges before deciding
guilt or innocence is a statutory right and not a constitutional one, the Petitioner should have raised
this issue on direct appeal.

        A post-conviction court shall dismiss claims which have been waived. Tenn. Code Ann. §
40-30-206(g) (1997). “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,” with certain exceptions not applicable
in the present case. Tenn. Code Ann. § 40-30-206(g).

        We conclude that the issue regarding the trial court’s instructions to the jury of the
Petitioner’s possible sentence if convicted is dismissed because it is not based on a constitutional
right and it was not raised in the Petitioner’s direct appeal of his conviction. See Cook, 816 S.W.2d
at 326. Because the issue should have been raised on direct appeal, and because it is a statutory right
and not a constitutional one, the issue is waived in this post-conviction proceeding pursuant to
Tennessee Code Annotated section 40-30-206(g). Accordingly, we conclude that the Petitioner is
not entitled to post-conviction relief on this issue.

                                          III. Conclusion

        In accordance with the foregoing reasoning and authorities, we AFFIRM the post-conviction
court’s judgment.


                                                        ___________________________________
                                                        ROBERT W. WEDEMEYER, JUDGE




                                                 -13-
