State v. Lonnie Ray Thompson

• Court: Court of Criminal Appeals of Tennessee
• Decided: June 30, 1999
• Docket: 03C01-9809-CC-00319
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE FILED JUNE SESSION, 1999 June 30, 1999

Cecil Crowson, Jr. Appellate C ourt Clerk

LONNIE R. THOMPSON, ) ) No. 03C01-9809-CC-00319 Appellant ) ) HAWKINS COUNTY vs. ) ) Hon. Ben K. Wexler, Judge STATE OF TENNESSEE, ) ) (Post-Conviction) Appellee )

For the Appellant: For the Appellee:

Gerald T. Eidson Paul G. Summers Attorney for Appellant Attorney General and Reporter 107 East Main, Suite 205 Rogersville, TN 37857 Erik W. Daab Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493

C. Berkeley Bell, Jr. District Attorney General

Douglas Godbee Asst. District Attorney General Hawkins County Courthouse Main Street Rogersville, TN 37857

OPINION FILED:

AFFIRMED

David G. Hayes Judge OPINION

The appellant, Lonnie Ray Thompson, appeals the dismissal of his petition

for post-conviction relief by the Hawkins County Criminal Court. On appeal, the

appellant contends, first, that counsel was ineffective for failing to request a mental

evaluation and, second, that his guilty pleas were involuntarily entered because

counsel failed to explain that he would receive a 100% release eligibility date.1

After review, we affirm the judgment of the trial court.

On October 28, 1997, the appellant entered guilty pleas to two counts of

aggravated sexual battery, a Class B felony. The trial court sentenced the appellant

as a range I standard offender to eight years for each count. These sentences were

ordered to be served concurrently. No direct appeal was taken from the sentence.

In April of 1998, the appellant filed for post-conviction relief. After a hearing

on the merits, the trial court denied the appellant’s petition. When a claim of

ineffective assistance of counsel is raised, the burden is upon the appellant to show

(1) that counsel’s performance was deficient and (2) that the deficient performance

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 2064 (1984). The appellant must establish both deficient performance and

prejudice in order to prevail. Id. A reviewing court need not consider the two prongs

of Strickland in any particular order. Strickland v. Washington, 466 U.S. at 697, 104

1 First, we n ote that the appellant fa iled to argue or cite any au thority in his brief w ith respec t to the releas e eligibility date. See Thom as W . Heaton v. State , No. 03C01-9511-CR- 00353 (Tenn. Crim. App. at Knoxville, March 11, 1997) (waiving issue for failure to include argument or cite to authority in brief); Tenn. R. App. P. 27(a)(7). However, this issue was add ress ed in th e pet ition fo r pos t-con viction relief a nd by t he po st-co nvictio n cou rt. Ad dition ally, we note that at the post-conviction hearing and in his brief the appellant contends that trial counsel was inef fective ba sed up on inade quate pr eparation and inves tigation. Th e appe llant failed to raise this is sue in his p etition for po st-co nvictio n relie f nor did the trial co urt ad dres s this issue in its findings. Issues not raised in a petition for post-conviction relief cannot be raised for the first time on appea l. See W illie L. Pegues v. State , No. 02C01- 9705-CR-00182 (Tenn. Crim. App. at Jack son, Ap r. 6, 1998) , perm. to appeal denied, (Te nn. F eb. 1 , 199 9). Ac cord ingly, th is iss ue is waived. See Tenn . Code A nn. § 40- 30-210 (f) (1997 ).

2 S.Ct. at 2069. Moreover, if the appellant fails to establish one prong, a reviewing

court need not consider the other. Id.

In post-conviction proceedings, the appellant must prove the allegations

contained in his petition by clear and convincing evidence. Tenn. Code Ann. § 40-

30-210(f) (1997). Clear and convincing evidence means evidence in which there is

no serious or substantial doubt about the correctness of the conclusions drawn from

the evidence. See State v. Gaylen Dewayne Rhodes, No. 02C01-9703-CC-00121

(Tenn. Crim. App. at Jackson, Feb. 10, 1998), perm. to appeal denied, (Tenn. Oct.

19, 1998) (citation omitted). Moreover, the findings of fact of a trial court have the

weight of a jury verdict and are conclusive on appeal unless the evidence

preponderates against its judgment. Davis v. State, 912 S.W.2d 689, 697 (Tenn.

1995). This court may not reweigh or reevaluate the evidence or substitute its

inferences for those drawn by the post-conviction court. Questions concerning

credibility of witnesses and the weight and value to be given their testimony are for

resolution by the post-conviction court. Black v. State, 794 S.W.2d 752, 755 (Tenn.

Crim. App. 1990).

With respect to the appellant’s allegation of deficient performance, he argues

that trial counsel failed to request a mental evaluation. Beyond the appellant’s

uncorroborated assertion that he received counseling at a mental health center

following his arrest, the record contains absolutely no proof of a prior existing mental

condition. It is the appellant’s burden to establish by clear and convincing evidence

that there was a reasonable probability that he would not have pled guilty had

counsel performed as suggested. In this case, the appellant has failed to make this

showing of prejudice.

With regard to the appellant’s second contention of ineffectiveness of

counsel, the trial court entered the following findings:

3 His lawyer explained it to him. . . . I find in this [sic] questions asked him and the plea of guilty that the hundred (100) percent release eligibility was brought up three different times. . . . I don’t know how much clearer that could have been. . . . He [appellant] says he never heard anything about the hundred (100) percent till he got back in jail. . . . I don’t know who told him what that hundred (100) percent meant; but certainly a person with a G.E.D. ought to know that a hundred (100) percent means all of it.

In the present case, the appellant has failed to carry his burden of

establishing his claims. Moreover, we cannot conclude that the evidence

preponderates against the findings of fact. As a result, we find no error of law

requiring reversal.

The trial court’s judgment is affirmed.

____________________________________ DAVID G. HAYES, Judge

CONCUR:

___________________________________ JOHN H. PEAY, Judge

___________________________________ JOHN EVERETT W ILLIAMS, Judge