         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON

                         DECEMBER 1998 SESSION
                                                            FILED
                                                              March 19, 1999

                                                            Cecil Crowson, Jr.
                                                            Appe llate Court C lerk

ISAAC WILLIAMS,                    )
                                   ) C.C.A. No. 02C01-9802-CR-00049
      Appellant,                   )
                                   ) Shelby County
V.                                 )
                                   ) Honorable Joseph B. Dailey, Judge
                                   )
STATE OF TENNESSEE,                ) (Post Conviction--Aggravated Robbery)
                                   )
      Appellee.                    )




FOR THE APPELLANT:                    FOR THE APPELLEE:

JOHN F. CANALE III                    JOHN KNOX WALKUP
100 N. Main Building, Suite 1933      Attorney General & Reporter
Memphis, TN 38103
                                      GEORGIA BLYTHE FELNER
                                      Counsel for the State
                                      425 Fifth Avenue North
                                      Nashville, TN 37243

                                      WILLIAM L. GIBBONS
                                      District Attorney General

                                      LEE COFFEE
                                      Assistant District Attorney General
                                      Criminal Justice Center, Third Floor
                                      201 Poplar Avenue
                                      Memphis, TN 38103




OPINION FILED: ___________________


AFFIRMED


JOHN EVERETT WILLIAMS,
Judge
                                   OPINION

       Isaac Williams appeals as of right from a judgment of the Shelby County

Criminal Court denying his petition for post-conviction relief. On March 31, 1995,

following a bench trial, the appellant was convicted of aggravated robbery and

sentenced to twenty years’ confinement as a Range III offender. This Court

affirmed his conviction on direct appeal. See State v. Isaac Williams, No.

02C01-9507-CR-00205 (Tenn. Crim. App. filed Dec. 6, 1996, at Jackson). On

March 6, 1997, the appellant filed a pro se petition for post-conviction relief

alleging that his trial counsel was ineffective. Counsel was appointed, and the

appellant filed an amended petition on April 30, 1997. Following an evidentiary

hearing, the trial court denied relief. The sole issue for our review is whether the

evidence preponderates against the findings of the trial court. We conclude that

it does not and AFFIRM the judgment of the trial court.



       A petitioner alleging ineffective assistance of counsel bears the burden of

showing (1) that his or her counsel's representation was "deficient" and (2) that

"the deficient performance prejudiced the defense." Strickland v. Washington,

466 U.S. 668, 687 (1984). To show deficient performance, the appellant must

show that counsel's performance fell below an objective standard of

reasonableness under prevailing professional norms and must demonstrate that

counsel made errors so serious that he was not functioning as "counsel"

guaranteed by the Constitution. See Strickland, 466 U.S. at 687. Counsel's

performance is not deficient when "the advice given, or the services rendered by

the attorney, are within the range of competence demanded of attorneys in

criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). A

reviewing court must indulge a strong presumption that counsel's conduct falls

within the range of reasonable professional assistance and must evaluate

counsel's performance from counsel's perspective at the time of the alleged error

and in light of the totality of the evidence. See Strickland, 466 U.S. at 695.




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       To establish prejudice, a petitioner must demonstrate a reasonable

probability that, but for counsel's deficient performance, the result of the

proceeding would have been different. See id. at 687-88, 692, 694; Best v.

State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985). "A reasonable probability

is a probability sufficient to undermine confidence in the outcome." Strickland,

466 U.S. at 694.



       In post-conviction proceedings, the petitioner bears the burden of

establishing his or her factual allegations by clear and convincing evidence. See

Tenn. Code Ann. § 40-30-210(f) (1997). Evidence is clear and convincing when

there is no serious or substantial doubt about the correctness of the conclusions

drawn from the evidence. See Hodges v. S.C. Toof & Co., 833 S.W.2d 896,

901, n.3 (Tenn. 1992). The findings of fact of the trial court are conclusive and

binding on this Court unless the evidence preponderates against them. See

Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993) (citing Butler v. State, 789

S.W.2d 898, 899 (Tenn. 1990)). And, on appeal, the appellant bears the burden

of illustrating how the evidence preponderates against the judgment of the trial

court. See Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).



       The appellant first contends that his trial attorney, Lila Kathleen Mitchell,

was deficient in her examination of one of the state’s witnesses, Officer James

Holder. Holder testified at the appellant’s trial regarding fingerprint evidence

against the appellant. The appellant contends that Mitchell was ineffective in

failing to retain an expert or to consult a treatise for the purpose of refuting this

testimony. The appellant, however, has not shown or even alleged any benefit

that might have been attained though expert testimony. Nor has he shown any

deficiency in Mitchell’s cross-examination of Holder or of her knowledge

regarding fingerprint evidence. To the contrary, although Mitchell did not consult

a reference on fingerprint evidence specifically for the appellant’s trial, she




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testified at the post-conviction hearing that she was familiar with the issues

regarding such evidence.



         Additionally, during his testimony at the appellant’s preliminary hearing,

Officer Holder indicated the appellant’s offense occurred on March 14, 1992,

rather than on the correct date of March 24, 1992. The appellant’s trial counsel

candidly admitted at the post-conviction hearing that she “missed” this factual

inconsistency and, therefore, did not attempt to impeach the witness on this

point. Nevertheless, the appellant has not shown a reasonable probability that

the outcome of the proceeding would have been different had Holder been

impeached. Even if Holder’s testimony were completely disregarded, the

remaining evidence, including a videotape of the appellant in the act of

committing the robbery, was overwhelming. In fact, Mitchell stated at the post-

conviction hearing that it was the “strongest evidence” she had ever seen, and

that she had advised the appellant, in context of presenting a plea offer, that he

did not have a "snowball’s chance in hell" of acquittal. This issue is without

merit.



         The appellant next argues that Mitchell's performance was deficient in that

she did not fully advise him regarding a plea offer presented by the state. The

state had offered a range I, eight-year sentence in return for the appellant's guilty

plea. The appellant contends that Mitchell failed to explain to him (1) the

location at which he would be required to serve his sentence if he accepted this

offer and (2) that the state's offer might be withdrawn if he failed to accept.

Thus, the appellant asserts, he was precluded from making an informed decision

regarding the state’s offer. The appellant, however, did not raise this allegation

in his petition below, and the trial court, therefore, did not determine the issue.

As a result, we have no decision to review. This issue is without merit.




                                          -4-
        Finally,1 the appellant alleges that Mitchell failed to instruct him regarding

the jury selection process. On the day of the appellant’s trial, the prosecution

announced that the jury panel was present and that they were ready to proceed.

The appellant then surprised Mitchell by announcing that he wished to waive his

right to a jury trial and proceed with a bench trial instead. The appellant asserts

that he took the prosecution’s statement to mean that his jury had already been

selected and that he did not understand that he would have been able to voir

dire potential jurors. He stated that he would have proceeded to trial by jury had

he understood the selection process.



        The appellant admitted, however, that, having been convicted of seven

prior felonies, he understands the criminal justice system quite well. Moreover,

he admitted that the trial judge had instructed him regarding the jury selection

process during the court’s voir dire of the appellant prior to accepting his waiver

of a jury trial. Thus, the record fully supports the trial court’s conclusion that the

appellant “fully understood what was taking place, that he fully understood his

right to a jury trial and all that that entailed, and that he freely and voluntarily

waived that right.”



        We conclude that the evidence in the record does not preponderate

against the findings of the trial judge. Accordingly, the judgment of the trial court

is affirmed.




        1
           In the petition below, the appellant alleged additional deficiencies in the performance of his
trial counsel including, among others, that she failed to interview or call an alibi witness and that she
failed to show him certain incriminating photographs prior to the day of trail. In this appeal, however,
the appellant does not challenge the trail court’s finding that these allegations did not establish
ineffective assistance of counsel. Because the appellant bears the burden of demonstrating to this
Court how the evidence preponderates against the findings of the trial court, and because he has not
attempted to do so with regard to these allegations, we presume the trial court’s finding to be correct
and will not further address these allegations.

                                                 -5-
                                      _ ____________________________

                                      JOHN EVERETT WILLIAMS, Judge




CONCUR:




_____________________________

GARY R. WADE, Judge




_____________________________

THOMAS T. WOODALL, Judge




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