         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs May 3, 2005

                JASON RAY TAYLOR v. STATE OF TENNESSEE

                       Appeal from the Circuit Court for Henry County
                            No. 13613    Julian P. Guinn, Judge



                     No. W2004-02064-CCA-R3-PC - Filed June 28, 2005


The Defendant, Jason Ray Taylor, pled guilty to aggravated burglary, burglary, two counts of
vandalism and three counts of forgery. He subsequently filed for post-conviction relief alleging
ineffective assistance of counsel. After an evidentiary hearing, the trial court denied relief; this
appeal followed. We affirm the judgment of the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JOHN
EVERETT WILLIAMS, J., joined.

Jim L. Fields, Paris, Tennessee, for the appellant, Jason Ray Taylor.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General;
Robert Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION


        The record before the Court in this appeal is sparse. The Defendant’s amended petition for
post-conviction relief indicates that, on May 19, 2003, the Defendant pled guilty to “Agg. Burg.,
Theft of prop. (1,000 - 10,000), Forgery (up to $1,000), Burglary - other than habitation, Vandalism
(1,000 - 10,000), forgery (up to 1,000), Forgery (up to 1,000).” The trial court determined that,
although the “convictions complained of are less than clear because of an absence of identifying
docket numbers in the pleadings,” the court’s research indicated that “[j]udgments were entered on
July 14, 2003, [following guilty pleas on May 19, 2003,] memorializing the following convictions:
aggravated burglary under docket number 13493; burglary under docket number 13494; and, two (2)
counts of vandalism and three (3) counts of forgery under indictment number 13495.” The record
contains a transcript of a guilty plea that the Defendant entered on May 14, 2002; it does not,
however, contain a transcript of the plea to the charges under timely attack in the post-conviction
petition.1 Accordingly, we do not have before us the State’s recital of facts supporting the instant
guilty pleas.

         The basis for the Defendant’s petition for post-conviction relief was ineffective assistance
of counsel in conjunction with his pre-trial preparation and subsequent guilty pleas. At the
evidentiary hearing, the only witness called was the Defendant’s trial lawyer (“Counsel”). Counsel
testified that he met with the Defendant several times, discussed the cases, and spoke with a number
of the State’s witnesses as well as the prosecuting attorney. He was familiar with the evidence the
State intended to produce against the Defendant. The Defendant had not made any incriminating
statements. The State offered a plea agreement. When Counsel presented the plea bargain to the
Defendant, the Defendant stated that he wanted to take it. Counsel saw no reason to file motions
seeking to sever offenses or suppress evidence. When asked if he had seen “any reasonable
possibility of maintaining a defense in this case?” Counsel replied, “No, sir.” Counsel further stated
that there was “no problem” with the Defendant’s plea submission. The Defendant never indicated
to him that he wanted to go to trial.

        The trial court took the matter under advisement and subsequently entered a comprehensive
order disposing of the Defendant’s claims and allegations. The trial court found that the Defendant
had not adduced sufficient proof to support his allegations and concluded that “there is nothing in
the record that even remotely suggests an abridgement of any right guaranteed the [Defendant] by
the constitutions of the United States of America or the State of Tennessee.” We agree.

        To sustain a petition for post-conviction relief, a defendant 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 re-
weigh 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 trial 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 trial 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.

         Both 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. See
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


         1
          The record does contain a transcript of the Defendant’s guilty plea to other charges made on May 14, 2002.
According to the trial court’s findings entered in this post-conviction proceeding, judgments on these earlier convictions
were entered on June 19, 2002. The Defendant’s post-conviction petition was filed on December 18, 2003, and is
therefore not timely with respect to these prior convictions. See Tenn. Code Ann. § 40-30-102(a).

                                                           -2-
range of competence demanded of attorneys in criminal cases. See 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. See id. at 687; Burns, 6 S.W.3d at 461. The defendant
bears the burden of establishing both of these components by clear and convincing evidence. See
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. See Burns, 6 S.W.3d at 461; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

        This two-part standard of measuring ineffective assistance of counsel also applies to claims
arising out of a guilty plea. See 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.” See 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. See 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. See 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.

       The Defendant’s sole argument contained in his appellate brief is as follows:

              In the instant case where Counsel for Defendant failed to interview potential
       or actual witnesses, failed to file routine pretrial motions to suppress any pretrial
       statement of Defendant in possible violation of Miranda v. Arizona, or file motion


                                                 -3-
       to sever the several offenses, not only was Counsel’s performance defective, it
       probably affected the outcome.

This “argument” is not supported by proof in the record. The Defendant has simply failed to
demonstrate that Counsel was either deficient in his performance, or that the Defendant suffered any
prejudice as a result of any alleged deficiency. Furthermore, there is no proof in the record that, but
for Counsel’s “errors,” the Defendant would not have pleaded guilty and would have instead gone
to trial. The Defendant’s allegations are without merit and the trial court committed no error in
dismissing the Defendant’s petition for post-conviction relief.

       We affirm the judgment of the trial court.


                                                       ___________________________________
                                                       DAVID H. WELLES, JUDGE




                                                 -4-
