Alicia Shayne Lovera v. State ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE
January 4, 2000
OCTOBER 1999 SESSION Cecil Crowson, Jr.
Appellate Court Clerk
ALICIA SHAYNE LOVERA, )
)
Appellant, ) No. 03C01-9901-CC-00030
)
) Sevier County
v. )
) Hon. Rex H. Ogle, Judge
)
STATE OF TENNESSEE, ) (Post-conviction)
)
Appellee. )
CONCURRING OPINION
I concur in the majority opinion. However, I disagree with its assumption that
because of State v. Brenda Anne Burns, No. W1995-00004-SC-R11-CD, Henry County
(Tenn. Nov. 8, 1999) (for publication), our standard of review on the ineffective assistance
of counsel claim is de novo. Since day one of the creation of post-conviction procedures,
the findings of the trial court in a post-conviction case have been given the weight of a jury
verdict. See Janow v. State, 4 Tn. Crim. App. 195, 200, 470 S.W. 2d 19, 21 (1971). In
fact, in reviewing the issue of the effective assistance of counsel, our supreme court stated
that it “must now determine whether the evidence in the record preponderates against the
trial court’s finding that the petitioner failed to establish that he was denied his
constitutional right to effective assistance of counsel.” Henley v. State, 960 S.W.2d 572,
580 (Tenn. 1997). In this respect, I do not believe that the supreme court intended in one
sentence, without further discussion, to overrule sub silentio over thirty years of
jurisprudence regarding the standard of review in post-conviction cases. Thus, I believe
that the standard of review remains whether the evidence preponderates against the trial
court’s finding that the petitioner received the effective assistance of counsel.
_________________________
Joseph M. Tipton, Judge