IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JUNE 1997 SESSION
FILED
July 16, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
JEFFERY D. YATES, )
) C.C.A. No. 02C01-9608-CR-00276
Appellant, )
) Shelby County
V. )
) Honorable Bernie Weinman, Judge
)
STATE OF TENNESSEE, ) (Post-Conviction: Ineffective Assistance
) of Counsel)
Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
A C Wharton, Jr. Charles W. Burson
Shelby County Public Defender Attorney General & Reporter
On Appeal Sarah M. Branch
Walker Gwinn Counsel for the State
Assistant Public Defender 450 James Robertson Parkway
Nashville, TN 37243-0493
At Trial
Donna Armstard William L. Gibbons
Assistant Public Defender District Attorney General
Criminal Justice Complex
201 Poplar, Suite 201 Reginald Henderson
Memphis, TN 38103 Assistant District Attorney General
Criminal Justice Complex
201 Poplar, Suite 301
Memphis, TN 38103
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
The appellant, Jeffery D. Yates, was convicted by a jury of especially
aggravated kidnapping, aggravated kidnapping, and attempted aggravated
robbery. He was sentenced to eighteen years for the especially aggravated
kidnapping, ten years for the aggravated kidnapping, and five years for the
attempted aggravated robbery. His sentences are to be served concurrently.
The appellant filed a pro se petition for post-conviction relief alleging ineffective
assistance of counsel, and then his appointed attorney filed an amended petition
for post-conviction relief. Also, a second pro se amended petition was filed with
the court. The trial court denied the appellant relief at a post-conviction hearing.
We affirm.
On appeal, the appellant argues that he was denied effective counsel
because his attorney failed to properly investigate his case or prepare for trial.
Because the appellant was a juvenile at the time of the crimes, he received a
hearing in Juvenile Court before being transferred to Criminal Court. The
appellant claimed that no witness identified him at the hearing; and had his
attorney requested a transcript of this hearing or had he listened to the tape of
the hearing, the appellant would have been acquitted of the charges. Also, the
appellant alleges that his attorney was ineffective for failing to visit the scene of
the crime.
The state argues that the appellant’s attorney was effective. The state
contends that the appellant has not shown how his attorney’s failure to obtain the
transcript of the transfer hearing prejudiced his case, having failed himself to
present a copy of this transcript during his post-conviction hearing and having
failed to show how this transcript would result in his acquittal.
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With regard to the appellant’s argument, the appellant’s attorney testified
that he discussed the juvenile court transfer hearing with the appellant. Also, the
attorney stated that he interviewed the state’s witnesses and the appellant’s
girlfriend once or twice before trial; and he stated that he told the appellant that his
co-defendant’s testimony at trial would be damaging to the appellant. The
attorney denied that the appellant gave him the names of any other possible
witnesses. Furthermore, the attorney testified at the post-conviction hearing that
he was fully prepared for trial, having discussed the case with the appellant on
several occasions before trial and having discussed the indictments and possible
ranges of punishment with him as well. The attorney explained that he did not
file any pretrial motions because there was an open file regarding discovery in
the case.
The appellant’s attorney reviewed the psychiatric examination of the
appellant that was completed in January 1992. Because that examination
determined that the appellant was competent to stand trial, the attorney did not
order another examination. Although the appellant’s attorney obtained a
settlement offer which included a five-year concurrent sentence, the judge would
not accept the plea because the appellant testified that he was not guilty.
To be granted relief on the ground of ineffective assistance of counsel, an
appellant must establish that the advice given or the services rendered were not
within the competence demanded of attorneys in criminal cases and that, but for
counsel’s deficient performance, the result of his or her trial would have been
different. Strickland v. Washington, 466 U.S. 668 (1984). In Tennessee, the
appropriate test is whether counsel’s performance was within the range of
competence demanded of attorneys in criminal cases. Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975).
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In post-conviction proceedings, petitioners bear the burden of proving
their allegations by a preponderance of the evidence. Black v. State, 794
S.W.2d 752, 755 (Tenn. Crim. App. 1990); McBee v. State, 655 S.W.2d 191,
195 (Tenn. Crim. App. 1983). Furthermore, the trial court’s findings of fact in
post-conviction hearings are conclusive on appeal unless the evidence
preponderates against those findings. Butler v. State, 789 S.W.2d 898, 899
(Tenn. 1990); State v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983);
Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).
This Court finds that the appellant has failed to carry the burden of
establishing that his attorney was ineffective. Because the evidence does not
preponderate against the hearing court’s findings, we affirm that court’s
judgment.
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_____________________________
PAUL G. SUMMERS, Judge
CONCUR:
____________________________
DAVID H. WELLES, Judge
____________________________
JOE G. RILEY, Judge
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