         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE              FILED
                              JUNE SESSION, 1997          November 5, 1997

                                                          Cecil W. Crowson
                                                         Appellate Court Clerk
VERNON BEARD,                      )   C.C.A. NO. 01C01-9607-CC-00324
                                   )
      Appe llant,                  )
                                   )   WILLIAMSON COUNTY
                                   )
V.                                 )
                                   )   HON . HEN RY D ENM ARK B ELL,
STATE OF TENNESSEE,                )   JUDGE
                                   )
      Appellee.                    )   (POST CONVICTION)



FOR THE APPELLANT:                     FOR THE APPELLEE:

J. TIMOTHY STREET                      JOHN KNOX WALKUP
136 Fo urth Ave nue, So uth            Attorney General & Reporter
Franklin, TN 37064
                                       EUGENE J. HONEA
                                       Assistant Attorney General
                                       2nd Floor, Cordell Hull Building
                                       425 Fifth Avenue North
                                       Nashville, TN 37243

                                       JOS EPH D. BAU GH, JR .
                                       District Attorney General

                                       MAR K L. PU RYE AR, III
                                       Assistant District Attorney General
                                       Williams on Coun ty Courthous e, Ste. G-6
                                       P.O. Box 937
                                       Franklin, TN 37065-0937




OPINION FILED ________________________

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

THOMAS T. WOODALL, JUDGE
                                  OPINION

       The Petitioner, Vernon Beard, appeals from the trial court’s dismissal of his

petition for post-co nviction relief. P etitioner rais es two iss ues: (1) whether the

trial court erred in denying him a delayed appeal under Tennessee Code

Annotated section 40-30-120 (repealed 19 95) and (2) w hether the trial court

erred in denying post conviction relief on the grounds that he received ine ffective

assistan ce of cou nsel. W e affirm in p art and re verse an d rema nd in par t.



       Since the petition was filed March 9, 1995, the law prior to the enactment

of the “Post-Co nviction Proced ure Act,” effective May 10, 1995 (Tenn. Code Ann.

§ 40-30-201 et seq.) is applicable. A brie f history of the events lea ding to

Petition er’s conviction and this action for pos t-conv iction re lief is necessary. On

August 12, 1993, a grocery store in Franklin, Tennessee, was robbed.               The

owners of the store reported the missing items as beer, cigarettes and cigarette

lighters, as well as insurance papers. Several days later, the Franklin Police

Department received a tip from an anonymous phone caller that the police could

locate some of the miss ing me rchand ise at 173 Spring S treet. When the police

arrived at that a ddres s, Glen Benn ett, Pe titioner’s half brother and resident of the

home at 173 Spring Street, invited the police to come inside. After they followed

him in, he led them to the bedroom and showed them some of the missing

merch andise .



       Benn ett was questioned at the police station later that day, and he gave a

statement which implicated himself and the Petitioner. When Petitioner was



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brought to the station for questioning, Sergeant Barbara Derricks read him the

Miranda rights. Petitioner s igned a waive r, and th en De rricks w rote ou t his

statem ent. In the stateme nt, Petitioner adm itted his involvemen t in the burglary

and theft. Petitioner was charged and was a ppointed an attorney. Prior to trial,

the attorney m et with Petitioner several times. Petitioner requested his counsel

to file a motion to suppress the statement. Counsel responded that his filing the

motion to suppress would be futile when Petitioner had signed the Miranda

waiver of rights. Following a jury trial, Petitioner was convicted of burglary and

theft unde r $500.0 0.



      Prior to the sentencing hearing, counsel received a letter from Petitioner

advising counsel that Petitioner w anted to appea l the convic tion. On the day of

the senten cing hea ring Petition er indicate d that he did not want to appeal, but

counsel informe d Petitione r that there was some time to decide whether or not

to appea l. Counsel further testified that Petitioner became ambivalent and was

not exactly sure whether or not he wanted to appeal. The State attempted to

elicit testimony at the post-conviction hearing that Petitioner’s mother

subs eque ntly called counsel and advised that Pe titioner d id not w ant to a ppea l.

The objec tion of P etitione r’s attorney, b ased u pon he arsay, wa s sustain ed. The

State then specifically argued that it was not attempting to elicit this testimo ny to

prove the truth of th e matte r asserte d, but to show the “state of mind” of trial

counsel when he was deciding whether or not to proceed with an appeal o n

beha lf of Petitio ner. T he trial court then allowed, for that limited purpose, the

testimony from counsel that Petitioner’s mother advised that Petitioner did not

want to a ppeal.




                                         -3-
       Trial counsel did n ot file a motion for new trial or otherwise pursue an

appeal of Petitioner’s conviction. On December 30, 1994, Petitioner sent trial

counsel a letter re gardin g the s tatus o f his appea l. After learning that no appeal

had be en filed, Pe titioner then filed his petition for post-co nviction relief.



                               I. DELAYED APPEAL



       Petitioner argue s the tria l court e rred in d enying him a d elayed appe al.

Under Tennessee Code Annotated section 40-3 0-120 (re pealed 1995), a

petitioner denied the right to an appeal from his original conviction in violation of

his constitutional rights may be granted a delayed appeal by the trial judge. On

appe al, we are bound by the trial court’s findings of fact in a post-conviction case

unless we conclude that the evidence in the record preponderates against those

findings. Black v. S tate, 794 S.W .2d 752 , 755 (T enn. C rim. App . 1990).



       Under Tennessee Code Annotated section 40-35-401 and Rule 37 of the

Tennessee Rules of Crimin al Proce dure, the Petitioner w as entitled to appe al his

sentence. While the record reflects there is no dispute as to whether petitioner

was advised as to h is rights to an a ppea l, there is a lack of evidence to prove that

counsel was effective with regards to pursu ing Petition er’s appe al. See State v.

Black, No. 03C 01-9201-C R-00001 (Tenn. Crim. App., Jackson, May 12, 1993)

(No Rule 11 application filed). Tennessee Code Annotated section 40-14-203

requires petitioner’s appointed counsel to represent petitioner on appeal. The

record reflects that Pe titioner’s attorney never received definite information from

Petitioner that he wished to waive his right to appeal. Since the State offered the

testimony regard ing the teleph one c all from Petition er’s m other o nly to show the

                                           -4-
“state of mind” of trial counsel, this is no substantive evidence that Petitioner

decided to waive h is right to app eal. At bes t, the record shows that Petitioner

“wasn ’t exactly sure” as to whether or not he wanted to appeal as of the date of

the sentencing hearing.       Furthermore, there is no written waiver filed by

Petitioner’s attorney regarding the right to Pe titioner’s app eal. See Rule 37(d),

T.R.Cr.P. The re cord do es not sh ow that P etitioner de finitely waived his right to

appe al, and therefore the evidence preponderates against the findings of the trial

court. Black, slip op. at 3. Cf. Sean Rainer v. State, No. 02C01-9603-CR-00103,

Shelby County (Tenn. Crim. App., Jackson, March 27, 1997) (Rule 11 application

denied Se pt. 15, 1997).



      The petitioner was entitled to an appeal as of right from his conviction.

Tenn. R. Crim. P. 37; T.R.A.P. 3(b). Likewise, he was entitled to the effective

assistance of couns el in pursu it of that right. See Evitts v. Lucey, 469 U.S. 387

(1985 ). Petitio ner is entitled to proceed with a motion for new trial and delayed

appeal in compliance with Tennessee Code Annotated section 40-30-120

(repealed 19 95).




                II. INEFFECTIVE ASSISTANCE OF COUNSEL



                       A. MOTION TO SUPPRESS CONFESSION




                                         -5-
         Petitioner argues the trial court erred by denying his reque st for post-

conviction relief on the is sue o f ineffec tive ass istanc e of co unse l at the tria l.

Petitioner asse rts that c ouns el should h ave filed a mo tion to s uppre ss his

confession. In reviewing the Petitioner’s Sixth Am endme nt 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

by attorneys in criminal ca ses. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.

1975). 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” and th at this performance prejudiced the defense in that there

must be a re ason able probability that but for counsel’s error the result of the

proceeding would have be en differen t. Strickland v. Washington, 466 U.S. 668,

687-88, 692, 69 4 (1984 ); Best v. Sta te, 708 S.W.2d 421, 422 (Tenn. Crim. App.

1985).



         During the post-c onviction p roceed ing, trial counsel testified that he

refused to file a m otion to supp ress P etitione r’s confession b ecause h e felt there

was “no chance” of getting the confession overturned.              Counsel knew that

Petitioner had signe d the w aiver o f his Mira nda rig hts prio r to giving his

confession. Petitioner c laimed that the m edication he was tak ing affe cted h is

ability to understand the waiver of rights.        Counsel verified the medication

Petitioner was taking with Petitioner’s physician and the effect it would have upon

him. The physician told counsel that the medication would not have affected

Petition er’s judgment, and counsel concluded that he could not argue that

Petitione r’s confession was not knowingly made. Rather than file a motion to

suppress, counsel stated that his trial strategy was “based on all the evidence the

                                           -6-
jury should n ot treat the evidenc e as h aving a ny sub stantia l weigh t beca use it

was coerce d, and tha t he was forced to sign it [confession] and that he denied

that wha t was in the statem ent ever h appen ed.”



       The trial court found that Petitioner’s counsel was n ot ineffe ctive du e to his

failure to file a motion to suppress.        Counsel could have filed a motion to

suppress the co nfess ion in addition to his “trial strategy” of arguing to the jury that

the statement lacked “substantial weight,” but legitimate trial tactics based upon

adequ ate preparation do not give rise to second-guessing in the context of an

ineffective assistan ce of cou nsel claim . Hellard v. S tate, 629 S.W.2d 4, 9-10

(Tenn . 1982).



       W hile Petitioner claims that his statement should be suppressed just as

Benn ett’s     confession   was    suppressed,      the   circumstances      surrounding

Petition er’s confession were not similar. Derricks testified that wh ile she read the

“admon ition and waiver of rights” to P etitioner, he told her it was not nec essary

to read the rights to him as “he u ndersto od them and [kne w] all abou t that.”

Following her read ing of rights to Petitioner, he signed the waiver and then gave

a confession.      Derricks also stated that Pe titioner voluntarily talked with her.

Petitioner attemp ts to persuade this court that his statement was given under the

same circums tances as Ben nett’s state ment. However, the trial court found that

Benn ett’s “obvio us lim itations ,” includ ing his lack of e duca tion an d pos sible mild

retardation, under the totality of the circumstances, made Bennett’s waiver of

rights invalid. There was no evidence that this Petitioner suffered from the same

limitations.




                                            -7-
       It is appare nt to this cou rt that unde r the stand ards of Strickland that

Petitioner did not suffer any prejudice by counsel’s failure to file a m otion to

suppre ss. This is sue is with out me rit.



                                   B. A LIBI DEFENSE



       Petitioner also argues co unsel w as ineffec tive based upon h is failure to

investigate and present alibi defense witnesses on Petition er’s beha lf at trial. If

petitioner conte nds th at trial co unse l failed to intervie w or pr esen t witnes ses in

support of his defense, “these witnesses should be presented by petitioner at the

evidentiary hearing.” Black v. S tate, 794 S.W.2 d 752, 7 57 (Tenn. Crim. App.

1990). In add ition to e stablis hing that a material witness existed and was not

interviewed due to counsel’s neglect in investigation, petitioner must also

establish that such failure inured to his prejudice or resulted in the denial of

critical eviden ce which cause d prejud ice of the p etitioner. Id. at 757.



       W hile Petitioner properly presented his alibi witnesses at the hearing on

the post-conviction petition, the alibi evidence failed to establish either

ineffectiveness of counsel or pre judice to Petitioner. Durin g the tria l, Petitioner

testified that on the ev ening o f Augus t 12, 1993 , he was asleep w ith his wife at

his moth er-in-la w’s home. During the post-conviction evidentiary hearing , both

Petition er’s mother and brother testified that he was at their home asleep on the

evening of August 12, 1993. There is also conflicting evidence regarding their

testimony as to whether Petitioner was separated from his wife on that date. As

the alibi testimony of Petitione r’s where abouts on the evening of August 12, 1993




                                             -8-
is contrad icted by P etitioner’s ow n testimony at tria l, the trial ju dge p roper ly

discredite d the alibi pro of.



       Trial counsel testified that he interviewed both Petitioner’s mother and

brother and that he received conflicting information regarding the alibi defense.

Even Petitioner’s mo ther wa s not c lear in w hethe r she h ad told coun sel of th is

alibi information prior to trial. The burden of proving the allega tions at a p ost-

conviction proceeding by a preponderance of the evidence , including ineffective

assistan ce of cou nsel, is on th e petitione r. Clenny v. State, 576 S.W.2d 12, 14

(Tenn. Crim. App. 1978). From the rec ord, we find tha t coun sel’s representation

did not fall below an objective stan dard of re asona blenes s.          Strickland v.

Washington, 466 U.S. 66 8, 687-88, 69 2, 694 (1984 ).



       W e affirm th e trial co urt’s de nial of post-conviction relief in the matter of

ineffective assistance of counsel at the trial, but reverse the trial court’s denial of

a delaye d app eal. Th is cause is rem anded to the trial court to allow Pe titioner to

file a motion for new trial and pursue a direct appeal of the judgments of

conviction and senten ce in accord ance with th e time limitatio ns se t forth in

Tenne ssee Co de Anno tated section 40 -30-120 (repe aled 1995).




                                   ____________________________________
                                   THOMAS T. W OODALL, Judge



CONCUR:




                                          -9-
___________________________________
JOSEPH B. JONES, Presiding Judge


___________________________________
WILLIAM M. BARKER, Judge




                             -10-
