        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                November 23, 2010 Session

             GERALD DEON JENKINS v. STATE OF TENNESSEE

                    Appeal from the Circuit Court for Blount County
                       No. C-15386     David R. Duggan, Judge




                  No. E2010-00938-CCA-R3-PC - Filed March 9, 2011


The Petitioner, Gerald Deon Jenkins, entered a best-interest guilty plea to one count of
second degree murder, a Class A felony; one count of theft over $500, a Class E felony; one
count of theft over $1,000, a Class D felony, and one count of setting fire to personal
property, a Class E felony. See Tenn. Code Ann. §§ 39-13-210(b), -14-103, -14-105(2)-(3),
-14-303(b) (2003). The trial court sentenced the Petitioner to twenty-five years for the
second degree murder conviction, two years for the theft over $500 conviction, four years
for the theft over $1,000 conviction, and two years for the setting fire to personal property
conviction. The court ordered that the terms run concurrently for a total effective sentence
of twenty-five years. The Petitioner filed a timely petition for post-conviction relief, and,
after a hearing, the post-conviction court denied relief. In this appeal, the Petitioner presents
the following issues for review: (1) The post-conviction court erred when it found that the
Petitioner received the effective assistance of counsel; (2) The post-conviction court
“commit[ted] error in finding that the sentence of maximum punishment was correct”; and
(3) The trial court committed plain error when it considered the convictions contained in the
presentence report, failed to consider “lingering doubt or innocence,” and incorrectly applied
enhancement factors. After our review, we affirm the judgment of the post-conviction court.

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

D AVID H. W ELLES, J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,
J R., and N ORMA M CG EE O GLE, JJ., joined.

F.D. Gibson, III, Maryville, Tennessee, for the appellant, Gerald Deon Jenkins.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant
Attorney General; Mike Flynn, District Attorney General; and Tammy Harrington, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                          OPINION

                                   Factual Background
        In April 2005, a Blount County grand jury returned a five-count indictment alleging
that the Petitioner committed the offenses of first degree murder, first degree felony murder,
theft over $500, theft over $1,000, and setting fire to personal property or land. On
November 29, 2005, the Petitioner entered “open” best-interest pleas to one count of second
degree murder, one count of theft over $500, one count of theft over $1,000, and one count
of setting fire to personal property. In accordance with the plea agreement, the State
dismissed one count of first degree murder.

        The official version of the events underlying the Petitioner’s convictions, as reported
in the presentence report, is as follows:

       On [November 18, 2004], [Michael Johnson] picked the [Petitioner] and
       Thomas Presley up at the [Petitioner’s] residence. The three went to Johnson’s
       residence to work on his television. While Presley was in the bedroom the
       other two went to the crawl space under the home. After a short time, Presley
       heard a gun shot. He stated [the Petitioner] then returned to the bedroom and
       stated he had killed Johnson. The two then went to the crawl space where
       Presley advised he heard Johnson gurgling. [The Petitioner] then went inside
       and Presley observed [the Petitioner] shoot Johnson a second time. At that
       time, [the Petitioner] ordered Presley upstairs to the truck where they loaded
       a four wheeler in the back and sped away. They went to [the Petitioner’s]
       residence where they uploaded [sic] the four wheeler. [The Petitioner] then
       ordered 2 members of his family to follow him in their van. They proceeded
       to a field where Presley got out of the van and helped destroy Johnson’s
       vehicle. Several days after the incident the [Petitioner], Presley, and the family
       members went for a ride and somewhere, possibly in Sevier County, they
       stopped on a bridge and Presley threw the alleged murder weapon (gun) in the
       water.

        The Petitioner’s sentencing hearing was conducted on January 9, 2006. The trial court
found that two enhancement factors applied and sentenced the Petitioner to twenty-five years
for his second degree murder conviction, two years for his theft over $500 conviction, four
years for his theft over $1,000 conviction, and two years for his setting fire to personal
property conviction. The court ordered that the sentences be served concurrently. The
Petitioner filed a timely notice of appeal but later requested that his appeal be voluntarily
dismissed. This Court granted the Petitioner’s motion to voluntarily dismiss his appeal on



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January 3, 2007. The Petitioner filed a petition for post-conviction relief on July 16, 2007.

       On December 1, 2009, the Petitioner’s post-conviction hearing was conducted. Trial
Counsel stated that, as part of the plea agreement, the State agreed that they would only rely
upon two enhancement factors—prior convictions and use of a gun—during the sentencing
phase. Trial Counsel testified that he did not recall objecting to the presentence report as
unreliable hearsay. When asked whether, under Blakely v. Washington, 542 U.S. 296
(2004),1 it was Trial Counsel’s understanding that mitigating and enhancement factors
needed to be submitted to a trier of fact and proven beyond a reasonable doubt, Trial Counsel
responded, “Well, I believe you can waive that right. I think that’s what he did in his plea
form.”

        Trial Counsel recalled that, because the Petitioner maintained his innocence and
pleaded guilty via a best-interest plea, Trial Counsel attempted to “get into the proof . . .
whether or not my client actually was the one that possessed the firearm.” However, he
testified that the trial court did not allow him to present such evidence. Trial Counsel
acknowledged that he did not preserve the evidence by making an offer of proof.

      Trial Counsel testified that he told the Petitioner that he was facing between fifteen
and twenty-five years of incarceration. He recalled that the Petitioner decided to reject a
twenty-year offer by the State and “knew he was gambling five years.”

      Regarding the withdrawal of the Petitioner’s direct appeal, Trial Counsel testified as
follows:

               [A]t the time we filed the appeal, the issue we were bringing up to the
        Appellate Court was the use of the gun. And I wasn’t—we hadn’t
        contemplated including in the appeal any other issues at that point. And upon
        researching the issue of whether or not a gun should be used as an
        enhancement factor on a murder case that involved the manner of death being
        a gunshot wound, I found case law that was exactly on point that precluded me
        from making a good faith argument for a change in the existing law. I felt that
        there was a chance that our appeal would be considered frivolous since the


        1
           In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the United States Supreme Court held,
“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” In
Blakely, the Court explained that “the relevant ‘statutory maximum’ is not the maximum sentence a judge
may impose after finding additional facts, but the maximum he may impose without any additional findings.”
542 U.S. at 303-04.

                                                   -3-
       issue had recently been litigated and decided against us. So, I drove to
       Northeast—or Northwest Correctional Facility, went over the case law, told
       him I didn’t feel like that appeal would be successful. I advised him of his
       rights of post-conviction relief, that he could file relief against my work if he’s
       not happy with me, and that’s where he left it.

Trial Counsel elaborated, “And I believed in my heart that it would have been a frivolous
appeal.” However, he admitted, “I didn’t consider the Blakely issues at the time.” Trial
Counsel added that he was not sure if “the Blakely issue” could have been argued
successfully or in good faith.

        On cross-examination, Trial Counsel acknowledged that the fact the victim died from
a gunshot wound was undisputed. Trial Counsel testified that it was the Petitioner’s decision
to plead guilty and that the Petitioner never asked him to file a motion to withdraw his guilty
plea. He also recalled that it was his strategy to have the State to agree that it could only
argue two enhancement factors. Trial Counsel said that he felt there was not much he could
do about his client’s previous convictions and that, regarding the use of a gun, it was his
strategy to argue that the Petitioner was not the one who possessed the firearm. He also
stated that he “relied heavily” upon the fact that the trial court had recently sentenced another
defendant to fifteen years for a separate homicide when two enhancement factors were
applied.

        Trial Counsel recalled that he had seven witnesses testify on behalf of the Petitioner
during his sentencing. Regarding why he did not object to the presentence report, Trial
Counsel stated, “There would have been no reason to object to the convictions. I don’t know
if I missed any other reason. I can’t think of any reasons why I would have needed to object
to the presentence report.”

       On January 19, 2010, the post-conviction court denied the Petitioner relief in an
eighty-page written order. The Petitioner now appeals.

                                           Analysis
       The Petitioner presents the following issues for review: (1) The post-conviction court
erred when it found that the Petitioner received effective assistance of counsel; (2) The post-
conviction court “commit[ted] error in finding that the sentence of maximum punishment
was correct”; and (3) The trial court committed plain error when it considered the convictions
contained in the presentence report, failed to consider “lingering doubt or innocence,” and
incorrectly applied enhancement factors.




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       To sustain a petition for post-conviction relief, a petitioner must prove his or her
factual allegations by clear and convincing evidence at an evidentiary hearing. See Tenn.
Code Ann. § 40-30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon
review, this Court will not reweigh or re-evaluate the evidence below; all questions
concerning the 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 post-conviction judge, not
the appellate courts. See Momon, 18 S.W.3d at 156; Henley v. State, 960 S.W.2d 572, 578-
79 (Tenn. 1997). The post-conviction judge’s findings of fact on a petition for post-
conviction relief are afforded the weight of a jury verdict and are conclusive on appeal unless
the evidence preponderates against those findings. See Momon, 18 S.W.3d at 156; Henley,
960 S.W.2d at 578.

I. Ineffective Assistance of Counsel
       The Petitioner asserts that his Trial Counsel was ineffective because he: (a) failed to
object to prior convictions in the presentence report as improper hearsay; (b) failed to argue
that one of the enhancement factors the trial court applied was not proven by sufficient
evidence; (c) failed to properly preserve issues for appeal; and (d) advised the Petitioner to
withdraw his direct appeal.

        The Sixth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel.
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). Both the United States Supreme Court and the Tennessee Supreme Court have
recognized that the right to such representation includes the right to “reasonably effective”
assistance, that is, within the range of competence demanded of attorneys in criminal cases.
Strickland v. Washington, 466 U.S. 668, 687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523
S.W.2d at 936.

       A lawyer’s assistance to his or her client is ineffective if the lawyer’s conduct “so
undermined the proper functioning of the adversarial process that the trial cannot be relied
on as having produced a just result.” Strickland, 466 U.S. at 686. This overall standard is
comprised of two components: deficient performance by the defendant’s lawyer and actual
prejudice to the defense caused by the deficient performance. Id. at 687; Burns, 6 S.W.3d
at 461. To demonstrate prejudice, a defendant must show “a reasonable probability that but
for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. The defendant bears the burden of establishing both of these
components by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f); Burns, 6
S.W.3d at 461. The defendant’s failure to prove either deficiency or prejudice is a sufficient
basis upon which to deny relief on an ineffective assistance of counsel claim. Burns, 6
S.W.3d at 461; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

                                              -5-
       This two-part standard of measuring ineffective assistance of counsel also applies to
claims arising out of a guilty plea. Hill v. Lockhart, 474 U.S. 52, 58 (1985). The prejudice
component is modified such that the defendant “must show that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would have
insisted on going to trial.” Id. at 59; see also Hicks v. State, 983 S.W.2d 240, 246 (Tenn.
Crim. App. 1998).

       In evaluating a lawyer’s performance, the reviewing court uses an objective standard
of “reasonableness.” Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The reviewing
court must be highly deferential to counsel’s choices “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; see also Strickland, 466 U.S. at 689. The court should
not use the benefit of hindsight to second-guess trial strategy or to criticize counsel’s tactics,
see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982), and counsel’s alleged errors should be
judged in light of all the facts and circumstances as of the time they were made, see
Strickland, 466 U.S. at 690; Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998).

       A trial court’s determination of an ineffective assistance of counsel claim presents a
mixed question of law and fact on appeal. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
This Court reviews the trial court’s findings of fact with regard to the effectiveness of
counsel under a de novo standard, accompanied with a presumption that those findings are
correct unless the preponderance of the evidence is otherwise. Id. “However, a trial court’s
conclusions of law—such as whether counsel’s performance was deficient or whether that
deficiency was prejudicial—are reviewed under a purely de novo standard, with no
presumption of correctness given to the trial court’s conclusions.” Id. (emphasis in original).

       A. Convictions in the Presentence Report
       The Petitioner claims that his Trial Counsel was ineffective because he failed to object
and argue that the prior convictions listed in the presentence report were testimonial hearsay.
The Petitioner also appears to argue that, because he did not testify during his sentencing
hearing, Trial Counsel did not ask him about his prior convictions or if he was represented
by counsel during those proceedings.

      Tennessee Code Annotated section 40-35-209(b) addresses the sentencing hearing and
provides in pertinent part:

       The rules of evidence shall apply, except that reliable hearsay, including, but
       not limited to, certified copies of convictions or documents, may be admitted
       if the opposing party is accorded a fair opportunity to rebut any hearsay
       evidence so admitted; provided, that this subsection (b) shall not be construed

                                               -6-
       to authorize the introduction of any evidence secured in violation of the United
       States or Tennessee constitutions.

This Court has consistently held that information in a presentence report is reliable hearsay
which may be admitted if the opposing party is offered the opportunity to rebut the same.
See State v. Baker, 956 S.W.2d 8, 17 (Tenn. Crim. App. 1997); State v. Richardson, 875
S.W.2d 671, 677 (Tenn. Crim. App. 1993). We also note that the trial court is required to
consider the presentence report before imposing a sentence. Tenn. Code Ann. §
40-35-210(b)(2) (2003).

        Moreover, the Tennessee Criminal Sentencing Reform Act of 1989 contemplates that
much of the information contained in a presentence report will be hearsay. Baker, 956
S.W.2d at 17. However, the information is reliable because it is “based upon the presentence
officer’s research of the records, contact with relevant agencies, and the gathering of
information which is required to be included in a presentence report.” Id. Even if Trial
Counsel had objected to the admission of the Petitioner’s presentence report, his objection
would have been unsuccessful because it is settled law that the presentence report is reliable
hearsay and is admissible during sentencing hearings. Thus, the Petitioner has failed to
demonstrate that he was prejudiced by Trial Counsel’s failure to object and is not entitled to
relief on this issue.

        Additionally, to the extent that the Petitioner argues that Trial Counsel was ineffective
because, during the sentencing hearing, he was not questioned about his prior convictions or
whether he had representation during them, he has failed to show that he was prejudiced by
either. No evidence was presented during his post-conviction hearing that the convictions
listed on his presentence report were inaccurate. Thus, the Petitioner is not entitled to relief
on these issues.

        B. Enhancement Factors
        The Petitioner’s plea agreement contained the following provision, “[I understand]
[t]hat I am entitled to have a jury determine all issues related to the length of my sentence.
I hereby waive that right and submit the determination of enhancing and mitigating factors
to the judge without a jury.” Although it is often difficult to discern the gist of the
Petitioner’s arguments from his brief, it appears that he is contending that Blakely required
the trial court to find sentencing enhancement factors beyond a reasonable doubt and that
Trial Counsel was ineffective because he failed to argue that the State presented insufficient
evidence that the Petitioner possessed or employed a firearm during the commission of the
offense. However, the Petitioner cites no relevant authority to support that argument, nor
does he recognize that State v. Gomez, 163 S.W.3d 632, 661 (Tenn. 2005) (“Gomez I”), was
the controlling law in this state when his sentencing hearing was held.

                                               -7-
       The offense to which the Petitioner pleaded guilty occurred before the enactment of
the 2005 amendments to the Sentencing Act, which became effective June 7, 2005, and the
Petitioner was sentenced under the pre-2005 law. The Tennessee Supreme Court
summarized the pre-2005 sentencing scheme as follows:

       . . . Tennessee’s Criminal Sentencing Reform Act of 1989 (“the Reform Act”)
       which, prior to its amendment in 2005, established a “presumptive sentence”
       for each class of felonies other than capital murder. Absent enhancing or
       mitigating factors, the presumptive sentence for Class B, C, D, and E felonies
       was the minimum in the applicable range. Tenn. Code Ann. § 40-35-210(c)
       (Supp. 2001). For Class A felonies, the presumptive sentence absent
       enhancing or mitigating factors was the midpoint in the applicable range. Id.
       A sentencing court could not increase a defendant’s sentence above the
       presumptive sentence except upon the application of statutory enhancement
       factors. See id.; see also State v. Jones, 883 S.W.2d 597, 601 (Tenn. 1994)
       (“The sentence imposed [for most felonies] cannot exceed the minimum
       sentence in the range unless the State proves enhancement factors.”). A
       sentencing court determined the existence of enhancement factors by a
       preponderance of the evidence. See State v. Carico, 968 S.W.2d 280, 287
       (Tenn. 1998). Once the trial court found enhancement factors, it had the
       authority to “set the sentence above the minimum in [the sentencing] range but
       still within the range.” Tenn. Code Ann. § 40-35-210(d) (Supp. 2001). The
       weight afforded enhancement factors was left to the trial court’s discretion.
       See Tenn. Code Ann. § 40-35-210, Sentencing Comm’n Cmts. (1997); see also
       State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). In sum, a
       maximum sentence could not be imposed absent a judicial finding of
       enhancement factors.

State v. Gomez, 239 S.W.3d 733, 739-40 (Tenn. 2007) (footnote omitted) (“Gomez II”).

        When the Petitioner’s sentencing hearing was conducted on January 9, 2006, Gomez
I was the controlling law. See Gomez I, 163 S.W.3d at 661 (concluding that the Tennessee
Criminal Sentencing Reform Act of 1989 did not violate the dictates of Blakely). It was not
until October 2007 that our supreme court held that “to the extent the Reform Act permitted
enhancement based on judicially determined facts other than the fact of a prior conviction,
it violated the Sixth Amendment as interpreted by the Supreme Court in Apprendi, Blakely,
and Cunningham.” Gomez II, 239 S.W.3d at 740 (citing Apprendi v. New Jersey, 530 U.S.
466 (2000); Blakely v. Washington, 542 U.S. 296 (2004); Cunningham v. California, 549
U.S. 270 (2007)).



                                            -8-
        Our review of the record indicates that the trial court complied with the 1989
Sentencing Act when sentencing the Petitioner to an effective sentence of twenty-five years.
When announcing that it found that two enhancement factors applied—(1) the Petitioner’s
previous history of criminal convictions or criminal behavior and (9) the Petitioner possessed
or employed a firearm during the commission of the offense—the trial court commented that
both had “been established, without any question, by the proof and weigh heavily in my
opinion.” See Tenn. Code Ann. § 40-35-114(1), (9) (2006). We also note that the State did
present sufficient evidence to show that the Petitioner possessed or employed a firearm in the
commission of the murder. The Petitioner pleaded guilty to the second degree murder of
Michael Johnson. See Hicks v. State, 983 S.W.2d 240, 247-48 (Tenn. Crim. App. 1998) (“A
‘best interests’ plea is treated exactly like any other guilty plea except for the defendant’s
protestation of innocence.”). According to the statement the Petitioner gave to the
presentence officer, he did not dispute that he killed Michael Johnson but claimed he acted
in self-defense. The autopsy report, which was entered as an exhibit during the Petitioner’s
sentencing hearing, stated that Michael Johnson’s cause of death was “[m]ultiple gunshot
wounds to the head.” Additionally, the presentence report stated that Thomas Presley, a co-
defendant, heard a gunshot and then “observed [the Petitioner] shoot Johnson a second time.”
As we have noted, the Petitioner waived his right to have a jury determine any sentencing
issues. The Petitioner specifically agreed to allow the trial court to determine enhancing and
mitigating factors. The Petitioner is not entitled to relief on this issue.

       C. Preserving Issues for Appeal
       The Petitioner contends that Trial Counsel failed to preserve issues for appeal. In his
brief, he states, “Trial Counsel had at least three issues for appeal involving hearsay
statements in the presentencing report as to convictions and statements attributed to Tommy
Pressley [sic], length of sentence and lingering doubt as to guilt as a mitigating factor.”

        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.

       The principles are the same when determining the effectiveness of both trial and
appellate counsel. Campbell, 904 S.W.2d 594, 596 (Tenn. 1995). A petitioner alleging
ineffective assistance of appellate counsel must prove both that (1) appellate counsel was
objectively deficient in failing to raise a particular issue on appeal, and (2) absent appellate
counsel’s deficient performance, there was a reasonable probability that the petitioner’s
appeal would have been successful before the state’s highest court. See, e.g., Smith v.

                                              -9-
Robbins, 528 U.S. 259, 285 (2000). Therefore, when “a claim of ineffective assistance of
counsel is based on the failure to raise a particular issue . . . then the reviewing court must
determine the merits of the issue.” Carpenter v. State, 126 S.W.3d 879, 887 (Tenn. 2004).
Our supreme court has explained that “if an issue has no merit or is weak, then appellate
counsel’s performance will not be deficient if counsel fails to raise it. Likewise, unless the
omitted issue has some merit, the petitioner suffers no prejudice from appellate counsel’s
failure to raise the issue on appeal.” Id.

        As we have already discussed above, it is settled law in Tennessee that convictions
listed in the presentence report are reliable hearsay and are admissible during a sentencing
hearing if the opposing party is offered the opportunity to rebut the same. See State v. Baker,
956 S.W.2d 8, 17 (Tenn. Crim. App. 1997); State v. Richardson, 875 S.W.2d 671, 677 (Tenn.
Crim. App. 1993). Even if Trial Counsel had preserved this issue for appeal, there is no
reasonable probability that it would have been successful. Thus, the Petitioner has failed to
show that he was prejudiced by Trial Counsel’s failure to appeal the use of the prior
convictions listed in his presentence report.

        Regarding the Petitioner’s argument that Trial Counsel should have preserved the
issue of the length of his sentence for appeal, we have pointed out that as part of his plea
agreement, the Petitioner waived the right to have a jury determine facts relative to
sentencing. The Petitioner has not demonstrated prejudice and has failed to cite any authority
that indicates he would have prevailed on this issue had it been appealed.

       Finally, the Petitioner asserts that Trial Counsel should have appealed the use of the
statements attributed to Tommy Presley in the presentence report, as well as the issue of
“lingering doubt as to guilt as a mitigating factor.” However, we conclude that these issues
have been waived because the Petitioner failed to cite any relevant authority in his brief to
support these assertions. See Tenn. Ct. Crim. App. R. 10(b) (providing that “[i]ssues which
are not supported by argument, citation to authorities, or appropriate references will be
treated as waived in this court”); see also Tenn. R. App. P. 27(a)(7) (stating that briefs shall
contain citations to the authorities relied on).

        D. Withdrawal of Direct Appeal
        After his sentencing hearing, the Petitioner filed a timely notice of appeal. However,
on November 6, 2006, the Petitioner filed a motion for voluntary dismissal of his direct
appeal, along with an affidavit waiving his right to appeal. This Court granted the
Petitioner’s motion on January 3, 2007. In the instant appeal, the Petitioner argues that Trial
Counsel was ineffective because he advised him to withdraw his direct appeal. Although his
brief is not a model for clarity, it appears that the Petitioner is arguing that he had a viable



                                              -10-
Blakely claim and was prejudiced by Trial Counsel’s advice that he withdraw his direct
appeal.

       We cannot conclude that Trial Counsel was deficient for failing to pursue a Blakely
claim in the Petitioner’s direct appeal. In Trial Counsel’s motion to dismiss the Petitioner’s
appeal, he stated, “Counsel has researched the case law in this matter extensively and does
not find any support for a good faith argument.” The Petitioner does not cite to any relevant
authority that persuades us that Trial Counsel was deficient in coming to this conclusion.
Again, we note that the Petitioner specifically waived his right to have a jury determine
sentencing issues as part of his plea agreement. The Petitioner is not entitled to relief on this
issue.

II. Length of Sentence
        The Petitioner claims that the post-conviction court “commit[ted] error in finding that
the sentence of maximum punishment was correct.” However, this issue is not appropriate
in this appeal, as “[t]here is no appellate review of the sentence in a post-conviction or
habeas corpus proceeding.” Tenn. Code Ann. § 40-35-401(a). Moreover, this issue is
waived because it could have been presented on direct appeal. See Tenn. Code Ann. § 40-
30-106(g) (“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.”).

III. Plain Error Review
        Finally, the Petitioner contends that this Court should grant relief because the
following issues were plain error: (a) the trial court’s consideration of convictions contained
in the presentence report; (b) the trial court’s failure to consider “lingering doubt or
innocence”; and (c) the trial court’s application of enhancement factors. However, these
issues have been waived because they were not raised in a direct appeal. See Tenn. Code
Ann. § 40-30-106(g). Moreover, “the plain error rule, which would otherwise permit an
appellate court to address the issue sua sponte, may not be applied in post-conviction
proceedings to grounds that would otherwise be deemed either waived or previously
determined.” Grindstaff v. State, 297 S.W.3d 208, 219 (Tenn. 2009). Thus, the Petitioner
is not entitled to relief on these issues.

                                    Conclusion
      Based on the foregoing authorities and reasoning, we affirm the denial of post-
conviction relief.




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       _________________________________
       DAVID H. WELLES, JUDGE




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