Tommy Blevins v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: March 10, 1998
• Docket: 01C01-9711-CR-00508
• Status: Published

Opinion

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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