         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs October 2, 2001

                JOHN H. FRASURE, III v. STATE OF TENNESSEE

                       Appeal from the Criminal Court for Shelby County
                           No. P-20018    Bernie Weinman, Judge



                    No. W2000-03106-CCA-R3-PC - Filed January 18, 2002


The petitioner, John H. Frasure, III, appeals the Shelby County Criminal Court’s denial of his
petition for post-conviction relief from his guilty plea to especially aggravated robbery, a Class A
felony, and theft of property valued over ten thousand dollars but less than sixty thousand dollars,
a Class C felony. The trial court sentenced the petitioner as a violent offender to fifteen years in the
Tennessee Department of Correction for the especially aggravated robbery conviction and as a
Range I, standard offender to three years for the theft of property conviction, to be served
concurrently. The petitioner claims that he received the ineffective assistance of counsel because
his trial attorney (1) failed to prepare adequately for trial because she did not interview any witnesses
for the case and did not hire an investigator to assist with the case; (2) did not subpoena witnesses
for a hearing to suppress the petitioner’s confession or trial; (3) failed to investigate thoroughly his
mental condition; and (4) failed to file a change of venue motion. We affirm the trial court’s denial
of the petition.

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

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which GARY R. WADE, P.J. and ROBERT
W. WEDEMEYER , J., joined.

Howard B. Manis, Memphis, Tennessee, for the appellant, John H. Frasure, III.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Rosemary Andrews, Assistant District Attorney
General for the appellee, State of Tennessee.

                                              OPINION

         The petitioner’s underlying convictions relate to the theft of a Cadillac and the robbery of
the French Quarter Inn in Memphis. The record reflects that the petitioner planned the robbery and
waited in a stolen getaway car as his two co-defendants robbed the French Quarter Inn and shot one
of the hotel’s employees. At the post-conviction hearing, the petitioner testified that his appointed
trial attorney was ineffective because she did not get a preliminary hearing transcript. He said that
when he requested that his trial attorney get the transcript, she told him that she could not because
she was only being paid one thousand dollars to represent him and the transcript would cost about
three hundred dollars. He said that his trial attorney also was ineffective because she did not tell
him that she was married to an assistant district attorney. He said that he learned of that fact about
thirty days before trial and that when he asked his trial attorney about it, she told him that “it more
or less could work to our benefit” and that her husband could be an “inside contact” to the district
attorney’s office. The petitioner testified that he believed that it was inappropriate for his attorney
to be connected to the district attorney’s office.

        The petitioner testified that he was diagnosed with bipolar disorder in 1990 and that part of
his defense was going to be his mental condition. He said that despite this, his trial attorney never
obtained copies of his medical records. He said that he gave his trial attorney a list of witnesses to
interview but that she did not interview anyone on the list. He said that his two co-defendants pled
guilty and that they indicated they were going to testify against him at trial. He said that he and his
attorney never discussed how she was going to handle their testimony. He said that his trial attorney
never investigated whether any deals had been made between his co-defendants and the state. He
said that one of his co-defendants pled guilty to aggravated robbery and received a ten-year sentence.

        The petitioner testified that to his knowledge, his attorney did not investigate his case. He
acknowledged that his trial attorney requested that he receive a mental evaluation and that Dr.
Nichols performed the evaluation. He also acknowledged that his trial attorney filed a motion to
suppress a confession that he gave to the police. He claimed, though, that his trial attorney was not
prepared for the suppression hearing. He said that at the suppression hearing, the defense was going
to argue that the petitioner’s confession was coerced. He said that in order to prove that the
confession was coerced, the defense needed to show that the petitioner suffered from bipolar
disorder. He said that even though Dr. Nichols had not reported the results of the petitioner’s mental
evaluation, his trial attorney proceeded with the suppression hearing anyway. He said that if his
attorney had gotten his medical records as he had requested, then she could have used them at the
suppression hearing to show that he suffered from bipolar disorder and that his confession should
have been suppressed. He said that his trial attorney also was not prepared for the hearing because
she did not have the preliminary hearing transcript, which could have been used to attack the
credibility of a state witness who gave conflicting testimony at the preliminary hearing and the
suppression hearing. He said that he asked his trial attorney to subpoena two West Memphis police
officers to the suppression hearing but that she failed to do so.

         The petitioner testified that he asked his trial attorney to file a motion for change of venue
because of publicity about the robbery and because one of the victims was a Shelby County court
clerk. He said that even though he did not think that he could get a fair trial, his trial attorney told
him that there was no point in filing a change of venue motion because the trial court would not
change venue. He said that when he pled guilty, the trial court told him that he would have to serve
at least eighty-five percent of his sentence. He said that despite what the trial court said, his trial
attorney had told him that he would never serve eighty-five percent of his sentence and that he
believed her over the trial court. He said that his trial attorney told him that if he did not plead
guilty, he would be convicted and sentenced to thirty years. He said that even though the jury had

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been selected for his trial, his trial attorney had not prepared a defense and that he decided to plead
guilty the day after the jury was selected. He said that if he had known what he knew at the post-
conviction hearing, he would not have pled guilty and would have gone to trial.

        On cross-examination, the petitioner denied that his trial attorney played an audio tape of the
preliminary hearing for him. He acknowledged that his trial attorney gave him copies of all
discovery documents. He said that his trial attorney borrowed his copies of the discovery documents
and did not return them to him until he wrote a letter of complaint to the Board of Professional
Responsibility. The petitioner denied that his trial attorney told him when she was appointed to his
case that her husband was an assistant district attorney. He said that he did not know if the
relationship between his trial attorney and her husband harmed his case. He acknowledged that Dr.
Nichols said that the petitioner was competent to stand trial and that the petitioner could help his trial
attorney with his defense. He also acknowledged that Dr. Nichols said that the petitioner was
competent at the time of the robbery. He acknowledged that at his trial attorney’s request, the state
agreed not to prosecute some other cases against him.

        Dr. Nichols, a psychologist, testified that he performed a mental evaluation on the petitioner.
He said that he interviewed the petitioner for about an hour and reviewed the petitioner’s medical
records. He said that he determined that the petitioner was competent at the time of the French
Quarter Inn robbery and competent to stand trial. He said that an insanity defense was not an option.
Dr. Nichols said that the petitioner told him that the petitioner had been diagnosed with bipolar
illness in 1989 and that he believed the petitioner had bipolar illness. However, he said that the
petitioner was not showing symptoms of the illness when he interviewed the petitioner. He said that
the petitioner was extremely bright and verbal and that he did not prescribe medication for the
petitioner. He said that he was not asked to evaluate the petitioner’s diminished capacity and that
he could not give an opinion about it.

        The petitioner’s trial attorney testified that at the time of the post-conviction hearing, she had
been licensed to practice law for seventeen years and that she practiced criminal law exclusively.
She said that the prosecutor gave her discovery in the petitioner’s case and that the petitioner
received copies of all documents. She said that after the petitioner was sentenced, he lost his legal
records and wrote her a letter, requesting that she send him another copy of his file. She said that
he also wrote a letter to the Board of Professional Responsibility and told the Board that she had
never given him a copy of his file. She said that the Board did not force her to give the petitioner
a copy of his file but that she did so anyway. She said that the Board did not take disciplinary action
against her.

        The petitioner’s trial attorney acknowledged that she did not get a preliminary hearing
transcript, but she said that she and the petitioner listened to audio tapes of the preliminary hearing
before the suppression hearing. She said that one of the state’s witnesses, who testified at the
preliminary hearing, “waffled a bit” in his testimony at the suppression hearing. She said that the
petitioner telephoned her several times and told her that he wanted another attorney. She said that
the petitioner usually called back the next day and apologized. She said that she told the petitioner


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during their initial interview that her husband was an assistant district attorney and that the petitioner
had no objection. She said that her husband had no knowledge of this case.

         The petitioner’s trial attorney testified that at the suppression hearing, the defense took the
position that the petitioner had given his detailed confession only because the West Memphis police
were pressuring the mother of his children, Dena Shockley. She said that the petitioner told her that
he saw Ms. Shockley crying after an interview that Ms. Shockely had with West Memphis police
officers. She said that the petitioner was so upset about Ms. Shockley’s emotional state that he told
the police “whatever they wanted to know” in order to get the police to leave Ms. Shockley alone.
She said that the petitioner’s mother testified at the suppression hearing that after Ms. Shockley’s
interview with police, the petitioner was not upset and calmly comforted Ms. Shockley. She said
that this testimony was the reason that the trial court denied the petitioner’s motion to suppress his
confession. She said that the petitioner talked to her about subpoenaing some West Memphis police
officers to the suppression hearing but that she did not subpoena them because she did not think the
officers’ testimony would be relevant.

        The petitioner’s trial attorney testified that after the trial court denied the motion to suppress,
the defense strategy focused on the petitioner’s bipolar condition. She said that even though the
petitioner was very active in his defense, she requested that he receive a mental evaluation. She said
that she told the petitioner that being bipolar was not a defense to the crime. She said that there was
no justification for a change of venue motion because there had not been any ensuing publicity about
the French Quarter Inn robbery. She said that she did not subpoena any witnesses for trial because
there were no witnesses to subpoena. She said that the petitioner gave her a list of West Memphis
police officers but that she did not subpoena them for trial because she did not think their testimony
would be relevant. She said that she told the petitioner that if the police officers’ testimony became
necessary during trial that she could have the trial court issue instanter subpoenas.

        On cross-examination, the petitioner’s trial attorney testified that the petitioner’s trial would
have been her first jury trial in Tennessee. She said that appointed cases were not a significant part
of her law practice. She said that she knew that she could get funding to pay for a preliminary
hearing transcript and hire an investigator but that she did not think that a preliminary hearing
transcript or an investigator were necessary.

         The petitioner’s trial attorney testified that she did substantial legal research for the
petitioner’s suppression hearing and that she made the trial court aware at the suppression hearing
that Dr. Nichols had not completed the results of the petitioner’s mental evaluation. She said that
the trial court decided to conduct the suppression hearing anyway. She said that she had no reason
to believe that the petitioner was incompetent and no reason to seek a second opinion about his
mental condition. She said that although the state could not convict the petitioner based solely on
his co-defendants’ testimony, the state was prepared to have Ms. Shockley testify that the petitioner
and his co-defendants brought a box to Ms. Shockley’s house shortly after the robbery and requested
a hammer and a screwdriver. She said that Ms. Shockley was also going to testify that the petitioner
was driving a Cadillac that matched the description of the one used in the robbery.


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        The petitioner’s trial attorney testified that she could not locate Sandy Garcia, the victim who
was shot during the robbery, and that the petitioner told her that Ms. Garcia was out of state and
would not testify at trial. She said that she did not attempt to interview the West Memphis police
officers or the petitioner’s co-defendants. She said that the petitioner’s co-defendants were
represented by counsel and that their attorneys had agreed they would not talk to each other’s clients.
She said that at trial, the defense was going to rely on the petitioner’s co-defendants and the victim
not testifying. She said she also was going to argue at trial that the petitioner’s confession was
coerced and that the petitioner was not at the French Quarter Inn during the robbery. She said that
when Ms. Garcia showed up at the petitioner’s trial, he decided to plead guilty. She said that the fact
that one of the robbery victims was a sessions court clerk did not justify a change of venue motion.

         The trial court denied the petitioner’s post-conviction petition and ruled that the petitioner
received the effective assistance of counsel. The trial court believed the testimony of the trial
attorney over that of the petitioner, finding that the trial attorney (1) played a tape of the preliminary
hearing for the petitioner while he was in jail and (2) told the petitioner that her husband was an
assistant district attorney. The trial court stated that the petitioner’s trial attorney thoroughly
investigated the petitioner’s case, developed a defense theory, and was prepared for trial. The trial
court also found that a full and thorough hearing was held on the petitioner’s motion to suppress and
that the petitioner’s mental condition was thoroughly investigated. Finally, the trial court determined
that the petitioner knew at the guilty plea hearing that he would have to serve at least eighty-five
percent of his sentence and that the petitioner entered his plea knowingly and voluntarily.

        The petitioner contends that his trial counsel was ineffective because she (1) did not
interview witnesses or hire an investigator to assist with the petitioner’s case; (2) did not subpoena
witnesses for the suppression hearing or trial; (3) did not adequately investigate the petitioner’s
mental history; and (4) refused to file a change of venue motion even though the robbery was highly
publicized and one of the victims was a court clerk. The state contends that the petitioner received
the effective assistance of counsel. We agree with the state.

        Under the Sixth Amendment, when a claim of ineffective assistance of counsel is made, the
burden is on the petitioner to show that (1) counsel’s performance was deficient, and (2) the
deficiency was prejudicial in terms of rendering a reasonable probability that the result of the trial
was unreliable or the proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838,
842-44 (1993). The Strickland standard has been applied to the right to counsel under article I,
section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).
When a petitioner claims that ineffective assistance of counsel resulted in a guilty plea, the petitioner
must prove that counsel performed deficiently and that but for counsel’s errors, the petitioner would
not have pled guilty and would have insisted upon going to trial. Hill v. Lockhart, 474 U.S. 52, 59,
106 S. Ct. 366, 370 (1985).

       In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that
attorneys should be held to the general standard of whether the services rendered were within the
range of competence demanded of attorneys in criminal cases. Further, the court stated that the

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range of competence was to be measured by the duties and criteria set forth in Beasley v. United
States, 491 F.2d 687, 696 (6th Cir. 1974) and United States v. DeCoster, 487 F.2d 1197, 1202-04
(D.C. Cir. 1973). Also, in reviewing counsel's conduct, a “fair assessment of attorney performance
requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982).

        In order for a petitioner to succeed on a post-conviction claim, the petitioner must show the
allegations set forth in his petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-
210(f). A trial court’s findings of fact in a post-conviction hearing are conclusive on appeal unless
the evidence in the record preponderates against those findings. See Butler v. State, 789 S.W.2d
898, 899 (Tenn. 1990). However, we review the trial court's conclusions of law--such as whether
counsel’s performance was deficient or whether that deficiency was prejudicial--under a purely de
novo standard. Id. at 457. Post-conviction relief may only be given if a conviction or sentence is
void or voidable because of a violation of a constitutional right. Tenn. Code Ann. § 40-30-203.

         The petitioner contends that he received the ineffective assistance of counsel because his trial
attorney failed to interview witnesses, did not subpoena witnesses to the suppression hearing or trial,
and did not hire an investigator to help with the case. However, despite his allegations that West
Memphis police officers and several character witnesses would have offered testimony favorable to
his case had trial counsel interviewed them or called them to testify at the suppression hearing or
trial, the petitioner did not present the testimony of any of these witnesses. Without any proof at the
post-conviction hearing as to the testimony that these witnesses would have offered, the petitioner
cannot demonstrate that he was prejudiced by their failure to be interviewed or called on his behalf.
See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Furthermore, the petitioner
failed to offer any proof as to how an investigator could have benefitted his defense. We believe that
he is not entitled to relief on this issue.

        Next, the petitioner contends that his trial attorney failed to investigate thoroughly his mental
condition. However, we agree with the trial court that the petitioner’s trial attorney adequately
investigated his mental history. The petitioner’s trial attorney requested that the petitioner receive
a mental evaluation. Dr. Nichols performed the evaluation and testified that the petitioner was very
bright and verbal. In addition, Dr. Nichols determined that the petitioner was competent at the time
of the offense and competent to stand trial. Dr. Nichols said that he was not asked to determine if
the petitioner suffered from diminished capacity and said that he could not render an opinion about
it. Again, the petitioner did not offer any proof to contradict Dr. Nichols’ findings and did not
present any proof regarding a diminished capacity defense. We believe that the petitioner has not
demonstrated deficient performance or prejudice and is not entitled to relief.

         Finally, the petitioner contends that he received the ineffective assistance of counsel because
his trial attorney refused to file a change of venue motion. Although the trial court did not address
this issue in its order, we believe that the petitioner has failed to demonstrate that he is entitled to
relief. The petitioner testified that he could not get a fair trial in Shelby County because of excessive

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publicity about the case and because one of the robbery victims was a Shelby County court clerk.
However, the petitioner did not present any proof that a change of venue motion was warranted and
he did not demonstrate how he was prejudiced by trial counsel’s failure to file a change of venue
motion. The petitioner has failed to show that counsel’s performance was deficient and that he was
prejudiced by the deficiency.

       Based on the foregoing and the record as a whole, we affirm the judgment of the trial court.



                                                     __________________________________
                                                     JOSEPH M. TIPTON, JUDGE




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