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
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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 ).
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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:
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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.
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DAVID G. HAYES, Judge
CONCUR:
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JOHN H. PEAY, Judge
___________________________________
JOHN EVERETT W ILLIAMS, Judge
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