Tommy Blevins v. State ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
TOMMY MACK BLEVINS,
AT NASHVILLE
)
FILED
) March 10, 1998
Appellant, ) C.C.A. NO. 01C01-9711-CR-00508
) (No. 933-0062 Below) W. Crowson
Cecil
VS. ) Appellate Court Clerk
) PUTNAM COUNTY
STATE OF TENNESSEE, )
) The Hon. Leon C. Burns, Jr.
Appellee. )
) (Denial of Post-Conviction Relief)
) AFFIRMED PURSUANT TO RULE 20
ORDER
This matter is before the Court upon the state’s motion requesting that the
judgment in the above-styled cause be affirmed pursuant to Rule 20, Tennessee Court of
Criminal Appeals Rules. Finding that the trial court properly denied post-conviction relief,
we grant the state’s motion to affirm the judgment pursuant to Rule 20.
The petitioner contends that he received ineffective assistance of counsel.
Specifically, he contends that counsel was ineffective by failing to call Allen Gullett and
Keith Napier to testify on his behalf and by denying him the opportunity to testify on his own
behalf.
In denying relief, the trial court held that the testimony of the petitioner was
not credible and that there was no ineffective assistance of counsel. The trial court
determined that trial counsel made efforts to reach witnesses whose names were provided
to him by the petitioner, including Mr. Napier, that Mr. Gullett’s name was not given to trial
counsel until the trial was nearly over, giving him no chance to locate and talk with him, and
that trial counsel advised the petitioner not to testify on his own behalf, and “certainly with
the prior record and being on parole, and counsel cannot be held to be ineffective for
advising the petitioner that he shouldn’t testify in light of the prior record that Mr. Blevins
had.”
In seeking post-conviction relief on the basis of ineffective assistance of
counsel, a petitioner must first establish that the services rendered or the advice given was
below "the range of competence demanded of attorneys in criminal cases." Baxter v.
Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Second, the petitioner must show that the
deficiencies "actually had an adverse effect on the defense." Strickland v. Washington,
466 U.S. 668, 693, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984).
On appeal, the findings of fact made by the post-conviction court are
conclusive and will not be disturbed unless the evidence contained in the record
preponderates against them. Rhoden v. State, 816 S.W.2d 56, 60 (Tenn. Crim. App.
1991). The burden is on the petitioner to show that the evidence preponderates against
those findings. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978), cert. denied,
441 U.S. 947, 99 S.Ct. 2170, 60 L.Ed.2d 1050 (1979).
Having reviewed the record in this case, the petitioner’s brief, and the state’s
motion, we find that the petitioner has failed to show that the evidence preponderates
against the trial court’s findings.
IT IS, THEREFORE, ORDERED that the judgment of the trial court is
affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals Rules. The petitioner
being indigent, costs are taxed to the state.
ENTER, this the ____ day of _______________, 1998.
_____________________________
JOHN H. PEAY, JUDGE
CONCUR:
_____________________________
JERRY L. SMITH, JUDGE
_____________________________
THOMAS T. WOODALL, JUDGE
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