FILED
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
September 19, 1997
AUGUST 1997 SESSION
Cecil W. Crowson
Appellate Court Clerk
ROSS JONES, )
)
Appellant, ) C.C.A. No. 01C01-9604-CR-00155
)
vs. ) Davidson County
)
STATE OF TENNESSEE, ) Honorable Ann Lacy Johns, Judge
)
Appellee. ) (Post-Conviction)
)
FOR THE APPELLANT: FOR THE APPELLEE:
JACK E. SEAMAN JOHN KNOX WALKUP
Attorney at Law Attorney General & Reporter
The Tower
611 Commerce St., Ste. 2704 LISA A. NAYLOR
Nashville, TN 37203 Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
VICTOR S. JOHNSON III
District Attorney General
ROGER D. MOORE
Assistant District Attorney General
Washington Square
222 Second Ave. North, Ste. 500
Nashville, TN 37201-1649
OPINION FILED: ____________________
AFFIRMED - RULE 20
CURWOOD WITT
JUDGE
OPINION
The petitioner, Ross Jones, appeals the Davidson County Criminal
Court's dismissal of his petition for post-conviction relief. The petitioner is currently
serving a sentence of 15 years in the Tennessee Department of Correction for a
conviction of aggravated burglary. In this appeal, he presents two issues for our
review: (1) whether he was denied the effective assistance of counsel, and (2)
whether the sentencing statute under which he was sentenced is unconstitutional.
Following a review of the record, we affirm the judgment of the lower court pursuant
to Rule 20 of the rules of this court.
The petitioner was convicted following a jury trial in the Davidson
County Criminal Court. His conviction was affirmed by this court on February 8,
1995, and the supreme court denied review. State v. Ross Jones, No. 01C01-9405-
CR-00175 (Tenn. Crim. App., Nashville, Feb. 8, 1995), perm app. denied concurring
in results only (Tenn. 1995). The petitioner filed his post-conviction petition on
September 25, 1995. Counsel was appointed, the petition was amended and a
hearing was held at which the petitioner and his trial counsel testified. The lower
court denied relief, finding the petitioner failed to carry the burden of proof as to the
ineffective assistance of counsel claims and that the appellate courts had previously
rejected analogous challenges to the constitutionality of the sentencing statute. The
petitioner then perfected his appeal to this court.
Having filed his post-conviction petition after May 10, 1995, the
effective date of the new Post Conviction Procedure Act, the petitioner has the
burden of proving his allegations of ineffective assistance of counsel by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-210(f) (Supp. 1996). The
petitioner testified on his own behalf as to some of his claims, and he elected to
present no evidence whatsoever on other claims. The state presented the
testimony of the petitioner's trial counsel. The testimony of the petitioner and trial
counsel was contradictory on key points. The trial court found petitioner's trial
2
counsel credible and rejected the contrary testimony given by the petitioner. As
such, the court found the petitioner failed to carry the burden of proof.1 The
evidence does not preponderate against the lower court's judgment in this regard.
Butler v. State, 789 S.W.2d 898, 900 (Tenn. 1990).
Next, the petitioner, who was sentenced as a persistent offender,
argues he is entitled to a minimum sentence because the Sentencing Reform Act
of 1989 violates the separation of powers provision of Article II, Section 2 of the
Tennessee Constitution by setting release eligibility and giving the trial court the
authority to require service of a definite percentage of a sentence prior to parole
eligibility. As the lower court correctly found, the challenged portion of the
Sentencing Reform Act of 1989 does not violate separation of powers. See, e.g.,
William Lee Tollett v. State, No. 01C01-9605-CR-00180, slip op. at 3-4 (Tenn. Crim.
App., Nashville, Apr. 24, 1997); Frank Bell v. Ricky Bell, Warden, No. 01C01-9602-
CR-00058, slip op. at 1 (Tenn. Crim. App., Nashville, Jan. 30, 1997), perm. app.
denied (Tenn. 1997); cf., e.g., Jackie Lee Childs v. State, No. 01C01-9604-CR-
00164, slip op. at 3-4 (Tenn. Crim. App., Nashville, Apr. 24, 1997) (Sentencing
Reform Act of 1982); Charles Massengill v. State, No. 01C01-9605-CR-00191, slip
op. at 3-5 (Tenn. Crim. App., Nashville, May 16, 1997) (Sentencing Reform Act of
1982).
The court below committed no error of law requiring reversal. The
judgment is affirmed pursuant to Rule 20, Court of Criminal Appeals Rules.
1
The trial court incorrectly relied on the "preponderance of the evidence"
standard of proof required under the previous Post Conviction Procedure Act.
This misplaced reliance is of no consequence, however, because the old
standard is more favorable to the petitioner than the current "clear and
convincing" standard.
3
_______________________________
CURWOOD WITT, JUDGE
CONCUR:
_______________________________
JOE G. RILEY JR., JUDGE
_______________________________
__________ WALKER, SPECIAL JUDGE
NOTE: NEED JUDGE WALKER'S FULL NAME
4
Ross Jones v. State
Combined Opinion