RODERICK SAMMUAL CHADWICK v. STATE OF TENNESSEE

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs at Knoxville December 18, 2013

RODERICK SAMMUAL CHADWICK v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County
No. 2007-D-3266 Monte Watkins, Judge

No. M2013-00778-CCA-R3-PC - Filed January 9, 2014

Petitioner, Roderick Sammual Chadwick, was convicted by a jury of attempted voluntary
manslaughter and aggravated assault, for which he received concurrent sentences of twelve
years and fifteen years, respectively, as a Range III, career offender. Upon his guilty plea to
another count in the indictment, being a felon in possession of a handgun, he received an
additional six-year sentence to be served consecutively, for an effective sentence of twenty-
one years. Following an unsuccessful direct appeal, petitioner filed the instant petition for
post-conviction relief. The court denied relief after conducting an evidentiary hearing. This
appeal follows, in which petitioner claims multiple instances of ineffective assistance at trial
and on direct appeal. Upon our review, we affirm the judgment of the post-conviction court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

R OGER A. P AGE, delivered the opinion of the court, in which JOSEPH M. T IPTON, P.J., and
N ORMA M CG EE O GLE, J., joined.

Elaine Heard, Nashville, Tennessee, for the appellant, Roderick Sammual Chadwick.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel;
Victor S. Johnson, III, District Attorney General; and Roger Moore, Assistant District
Attorney General, for the appellee, State of Tennessee.

OPINION

I. Facts and Procedural History

As a result of his involvement in a Davidson County shooting on May 5, 2007, a grand
jury returned a three-count indictment against petitioner, charging him with attempted first
degree murder, aggravated assault, and being a felon in possession of a handgun. State v.
Roderick Sammual Chadwick, No. M2008-02270-CCA-R3-CD, 2010 WL 2025463, at *1
(Tenn. Crim. App. May 21, 2010); see Tenn. Code Ann. §§ 39-12-101, -13-102, -13-202,
-17-1307. Petitioner pleaded guilty to the handgun charge and proceeded to trial on the
remaining two counts. Roderick Sammual Chadwick, 2010 WL 2025463, at *1. A jury
found petitioner guilty of the lesser included offense of attempted voluntary manslaughter,
a Class D felony, and aggravated assault, a Class C felony. Id.; see Tenn. Code Ann. §§
39-12-101, -102, -211.

A. Facts from Trial

On direct appeal, this court summarized the facts developed at trial as follows:

This case arises from a May 5, 2007 argument [among] the Defendant,
Ceneka Shaw and Charles Marshall, which occurred next to a club called
Decades in downtown Nashville. The argument ultimately led to the
Defendant[’s] shooting Ceneka Shaw and pointing and shooting his weapon
at Charles Marshall, although Marshall was not hit by a bullet. Nearby officers
observed someone firing multiple shots in the parking lot next to Decades.
They saw a blue vehicle leave the lot, and a pursuit ensued. The car was
stopped, and the Defendant and the other two passengers were taken into
custody. Following a “show-up” identification on the scene, Marshall
identified the Defendant as the shooter. A photograph line-up was shown to
Shaw at the hospital, and he likewise identified the Defendant. Additionally,
a crane operator was climbing his crane when he heard gunshots and observed
the ensuing police chase. The operator saw the person on the front passenger
side of the vehicle throw something out the window. Officers later recovered
a Glock 9mm pistol at the area the operator described; seven 9mm casings
were recovered from the scene of the shooting.

Roderick Sammual Chadwick, 2010 WL 2025463, at *1.

B. Procedural History

Following petitioner’s unsuccessful direct appeal to this court, he did not request
discretionary review with our supreme court. He timely filed the instant petition for post-
conviction relief, and after appointment of counsel, he filed an amended petition. The court
held an evidentiary hearing on February 13, 2013, nearly two years after the first petition was
filed, and subsequently denied post-conviction relief. This appeal follows.

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 C. Facts from Evidentiary Hearing

Petitioner testified on his own behalf. He stated that trial counsel had represented him
for approximately one year prior to trial and that he did not “have too much interaction” with
trial counsel until “almost . . . the time the trial started.” Petitioner stated that trial counsel
visited with him only “three or four times” prior to trial. Two of those meetings occurred at
the jail, and the remainder took place on court dates. The majority of petitioner’s meetings
with trial counsel focused on trial preparation because he was not amenable to pleading
guilty. He stated, “[T]he offers [the State] put on the table wasn’t nothing [sic] I was willing
to deal with.”

Petitioner asserted that although trial counsel was aware that two other people were
in the car with petitioner when he was arrested, trial counsel failed to call them as witnesses.
Specifically, he faulted trial counsel for failing to call Sonny Barbary as a witness at trial.
Petitioner believed that if called, Mr. Barbary would have refuted the evidence set forth by
the State. The other witness, Corey Terrell, was characterized as a “body guard,” and
petitioner thought that Mr. Terrell lived out of state at the time of trial and could not be
located. Petitioner also challenged trial counsel’s failure to retain the services of a private
investigator.

Petitioner stated that trial counsel continued to represent him on direct appeal from
his convictions. He maintained that he did not receive a complete copy of the transcript from
the trial. He stated that by not having a complete copy of the transcript, his appeal was
impacted because the “appeals court couldn’t rule unless they [had] the documents in their
entirety.”

In sum, petitioner testified:

As far as [trial counsel] goes, to me[,] he was a good attorney. He
fought good [sic] for me, . . . to the best I feel that he could . . . . [He] just
made a few mistakes, as far as getting all my transcripts in to the Appeals
Court. And, I mean, that’s pretty much it. He done [sic] good on it, just the
appeals thing.

On cross-examination, the State elicited from petitioner that although he was charged
with attempted first degree murder, the jury convicted him of the lesser included offense of
attempted voluntary manslaughter. Petitioner agreed that the verdict was a “really good
result.”

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 The State questioned petitioner with regard to his knowledge of the statements given
by the two passengers in the car with him on the night of the offenses. Petitioner maintained
that he did not know what effect the testimony of Mr. Barbary or Mr. Terrell would have had
on the proceedings, even though they both told law enforcement officers that they were
present but that they did not know what had happened. Petitioner explained that his position
at trial was that the shooting was self-defense. He faulted trial counsel for not retaining a
private investigator who could have gotten “all the facts together[] so that we could give a
good case.”

Petitioner presented the testimony of Sonny Barbary, his cousin by marriage, who
confirmed that he was present on the night in question. He acknowledged that he witnessed
all of the events but that he told police that he did not know what had happened.

Mr. Barbary explained that on the night of the shooting, he, Mr. Terrell, and petitioner
were going “downtown.” On the way, they stopped on the side of the road and asked
someone if the club to which they were going was still open. He stated, “And for some odd
reason[,] they just snapped and went off on us, started screaming and hollering.” He opined
that the individuals were “highly intoxicated with drugs[] because they [were] sweating,”
despite the fact that they were wearing tank tops. Mr. Barbary said that Mr. Terrell was a
security guard and that he exited the vehicle first. Mr. Barbary, who was intoxicated and was
asleep in the back seat, woke up and attempted to exit the vehicle, but he could not open the
door because it had a child-proof lock engaged. Before he could roll down the window and
manually open the door from the outside, everything had “escalated to a whole big
misunderstanding.” The two parties exchanged words, and one of the men standing outside
“smacked” Mr. Barbary and Mr. Terrell. One of the other men pulled out a weapon. Shots
were fired, and petitioner, Mr. Barbary, and Mr. Terrell ran for their vehicle.

Mr. Barbary said that as they drove away, one of the individuals pursued their vehicle
on foot while holding “some guns.” Petitioner jumped out of the car and began shooting at
the other people “to get them off of [them].” He said that the police only saw petitioner
shooting and that they did not see the other men with weapons. Mr. Barbary stated that no
one interrogated the other men, and he thought that petitioner only shot at them because they
began shooting first and petitioner was trying to defend himself. When interrogated, Mr.
Barbary told the police that the other people were firing weapons at them, but he did not tell
them that petitioner also fired a weapon because he knew that petitioner was a convicted
felon and he did not want him to go back to jail. On cross-examination, Mr. Barbary
admitted to a lengthy criminal history.

The State then presented trial counsel as a witness. He had begun his law practice at
the District Attorney General’s Office in Nashville, had practiced in the area of criminal

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defense, and at the time of the evidentiary hearing, was employed as a Federal Public
Defender in the Middle District of Tennessee. When he was appointed to represent petitioner
on a separate criminal matter, the first action he took was requesting that petitioner remain
out of custody on bond. The trial court granted the motion, but petitioner committed the
offenses in the instant case while the other matter was pending. The instant case was not the
first to arise in terms of sequence, but it was the first to proceed to trial. During the course
of trial counsel’s representation, petitioner was either out on bond or incarcerated locally, so
trial counsel was able to meet with him as needed.

Trial counsel opined that he and petitioner “got along together pretty well.” While
petitioner was out on bond, trial counsel and petitioner visited the first crime scene and took
photographs of the area. Following that time, they enjoyed a good working relationship.

Trial counsel reviewed petitioner’s criminal history and characterized it as “bad.” At
one point, he wrote petitioner a letter informing him that he would be sentenced as a career
offender because of his criminal record. In the letter, trial counsel advised petitioner that if
he were convicted of attempted first degree murder, he would face a potential sentence of
sixty years. Trial counsel also explained to petitioner the range of punishment for the other
charges he faced.

Trial counsel recalled that the case involved five people: petitioner; Mr. Barbary; Mr.
Terrell; Mr. Shaw, the victim of the attempted murder charge; and Mr. Marshall, the victim
of the aggravated assault charge. Trial counsel believed that he “had a pretty good handle”
on what had occurred and that he did not require the services of a forensic expert. He stated
that after he interviewed petitioner and his companion, he immediately knew he could not
present the companion as a witness because his version of the occurrence did not support a
theory of self-defense. Instead, trial counsel focused on the relative height difference
between Mr. Shaw and petitioner, emphasizing that as a former basketball player, Mr. Shaw
would be “menacing” to a person of petitioner’s stature. He also argued that based on the
resting place of the bullets, Mr. Marshall was not an intended victim and that the shooting
was reckless, but not intentional, in that regard. Trial counsel opined that he “raised what
[he] believed was most viable and in [petitioner’s] best interest at the jury trial.” He thought
it was a successful defense, based on the jury’s returning a verdict of attempted voluntary
manslaughter.

Trial counsel testified that he remained involved in petitioner’s case and that he filed
the motion for a new trial and the direct appeal brief. He stated that he thought that the trial
had been “very clean”; “a lot of things with the witnesses went very well, the way [he]
designed them to go[,] [a]nd [he] didn’t see any big mistakes that would be sufficient for
some type of reversal.” On appeal, he raised sufficiency of the evidence as an issue but was

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not surprised that the Court of Criminal Appeals affirmed the conviction. He also raised the
issue of consecutive sentencing.

On cross-examination, trial counsel acknowledged that he spoke with one of
petitioner’s companions, but he could not remember his name. He did not interview the other
person because he could not be located. Trial counsel said that although the person he
interviewed was cooperative and willing to testify, he chose not to present him as a witness,
based on the version of the events he presented. Trial counsel also admitted that an issue
arose with the transcripts on appeal that precluded review of the issues he raised.

Upon this evidence, the post-conviction court denied relief. Petitioner filed a timely
notice of appeal.

II. Analysis

A. Standard of Review

To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that
his or her “conviction or sentence is void or voidable because of the abridgement of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn.
Code Ann. § 40-30-103. A post-conviction petitioner bears the burden of proving his or her
factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f).
“‘Evidence is clear and convincing when there is no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.’” Lane v. State, 316 S.W.3d 555,
562 (Tenn. 2010) (quoting Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009)).

Appellate courts do not reassess the trial court’s determination of the credibility of
witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing R.D.S. v. State, 245
S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of witnesses is a matter entrusted
to the trial judge as the trier of fact. R.D.S., 245 S.W.3d at 362 (quoting State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996)). The post-conviction court’s findings of fact are conclusive on
appeal unless the preponderance of the evidence is otherwise. Berry v. State, 366 S.W.3d
160, 169 (Tenn. Crim. App. 2011) (citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn.
1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App.1997)). However, conclusions
of law receive no presumption of correctness on appeal. Id. (citing Fields v. State, 40 S.W.3d
450, 453 (Tenn. 2001)). As mixed questions of law and fact, this court’s review of
petitioner’s ineffective assistance of counsel claims is de novo with no presumption of
correctness. Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011) (citations omitted).

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 The Sixth Amendment to the United States Constitution, made applicable to the states
through the Fourteenth Amendment, and article I, section 9 of the Tennessee Constitution
require that a criminal defendant receive effective assistance of counsel. Cauthern v. State,
145 S.W.3d 571, 598 (Tenn. Crim. App. 2004) (citing Baxter v. Rose, 523 S.W.2d 930
(Tenn. 1975)). When a petitioner claims that he received ineffective assistance of counsel,
he must demonstrate both that his lawyer’s performance was deficient and that the deficiency
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Finch v. State,
226 S.W.3d 307, 315 (Tenn. 2007) (citation omitted). It follows that if this court holds that
either prong is not met, we are not compelled to consider the other prong. Carpenter v. State,
126 S.W.3d 879, 886 (Tenn. 2004).

To prove that counsel’s performance was deficient, petitioner must establish that his
attorney’s conduct fell below an objective standard of “‘reasonableness under prevailing
professional norms.’” Finch, 226 S.W.3d at 315 (quoting Vaughn v. State, 202 S.W.3d 106,
116 (Tenn. 2006)). As our supreme court held:

“[T]he assistance of counsel required under the Sixth Amendment is counsel
reasonably likely to render and rendering reasonably effective assistance. It
is a violation of this standard for defense counsel to deprive a criminal
defendant of a substantial defense by his own ineffectiveness or incompetence.
. . . Defense counsel must perform at least as well as a lawyer with ordinary
training and skill in the criminal law and must conscientiously protect his
client’s interest, undeflected by conflicting considerations.”

Id. at 315-16 (quoting Baxter, 523 S.W.2d at 934-35). On appellate review of trial counsel’s
performance, this court “must make every effort to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct
from the perspective of counsel at that time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn.
2006) (citing Strickland, 466 U.S. at 689).

To prove that petitioner suffered prejudice as a result of counsel’s deficient
performance, he “must establish a reasonable probability that but for counsel’s errors the
result of the proceeding would have been different.” Vaughn, 202 S.W.3d at 116 (citing
Strickland, 466 U.S. at 694). “A ‘reasonable probability is a probability sufficient to
undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at 694). As such,
petitioner must establish that his attorney’s deficient performance was of such magnitude that
he was deprived of a fair trial and that the reliability of the outcome was called into question.
Finch, 226 S.W.3d at 316 (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999)).

B. Issues

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 1. Failure to Present a Witness at Trial/Failure to Obtain a Private Investigator

Petitioner argues that trial counsel should have called Mr. Barbary as a witness at trial.
He further posits that had trial counsel hired a private investigator to assist in the preparation
of petitioner’s defense, the investigator would have deduced the import of Mr. Barbary’s
“significant, specific, and compelling testimony.” The State counters that Mr. Barbary’s
testimony was problematic and could have harmed petitioner’s case. We agree with the
State.

At the evidentiary hearing, petitioner presented Mr. Barbary as a witness. Mr. Barbary
relayed a version of the shootings that he had not previously disclosed to police officers. In
fact, he admitted that he lied to law enforcement by telling them he was present but denying
any knowledge of the shooting. Mr. Barbary’s recollection of the events was that the victims
became enraged for no reason, struck them, and then began to fire weapons toward them as
he, petitioner, and Mr. Terrell fled in their vehicle. He further stated that petitioner returned
fire as they were driving away because they were being pursued by one of the victims, who
was holding a gun at the time. Mr. Terrell also admitted to a lengthy criminal history.

Trial counsel acknowledged that he spoke with one of petitioner’s companions in
preparing for trial but that he could not recall whether it was Mr. Barbary or Mr. Terrell. He
stated that he elected not to present the companion as a witness because his version of the
events did not support the theory of self-defense. Further, he described his trial strategy
during the post-conviction hearing.

The post-conviction court omitted this issue from its written order. Tennessee Code
Annotated section 40-30-111(b) mandates that “[u]pon the final disposition of every petition,
the court shall enter a final order[ ] and . . . shall set forth in the order or a written
memorandum of the case all grounds presented[ ] and shall state the findings of fact and
conclusions of law with regard to each such ground.” See Sykes v. State, 477 S.W.2d 254,
260 (Tenn. Crim. App. 1971) (noting the post-conviction court’s failure to make findings of
fact and conclusions of law in summarily denying relief and “reiterat[ing] and
re-emphasiz[ing] . . . the importance and mandatory character of those statutory
obligations”); Brown v. State, 445 S.W.2d 669, 671 (Tenn. Crim. App. 1969) (concluding
that the general assembly’s use of the word “shall” clearly indicated that the post-conviction
court’s duty to make findings of fact is mandatory). If a trial court does not make oral
findings, it should include its findings of fact in an order. Frank Robert Bigsby v. State, No.
M2002-02260-CCA-R3-PC, 2003 WL 22927139, at *2 (Tenn. Crim. App. Dec. 11, 2003)
(citing State v. Higgins, 729 S.W.2d 288, 290-91 (Tenn. Crim. App. 1987)). It was error for
the post-conviction court to omit making the required findings of fact.

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 While we emphasize that appellate review of post-conviction cases is “seriously
frustrated[,] if not completely thwarted[,]” Frank Robert Bigsby, 2003 WL 22927139, at *2
(quotation omitted), by a court’s failure to make the requisite findings, given the specific
nature of the limited claim advanced on appeal in this particular case, the record is sufficient
for us to review petitioner’s claim of error. The sole question for our determination is
whether trial counsel rendered ineffective assistance of counsel in failing to present Mr.
Barbary as a witness. Our independent examination of the testimony at the evidentiary
hearing and the record developed at trial are adequate to allow a full appellate review of
petitioner’s claim.

Our review of the record indicates that trial counsel, an experienced criminal defense
attorney, formulated a trial strategy that involved the theory of self-defense based on the size
differential between petitioner and one of the victims. Mr. Barbary’s rendition of the facts
indicated that he, petitioner, and Mr. Terrell had escaped immediate danger and were fleeing
by vehicle. Although he claimed that one of the victims followed on foot, petitioner and his
companions were in a superior position to effect their escape. Mr. Barbary offered no
testimony that the victim was firing a weapon at them as they attempted to drive away; rather,
he said that the victim was holding a weapon. Petitioner’s actions in “jumping” from their
vehicle and firing at the victim were inapposite to a theory of self-defense. Trial counsel
appropriately adhered to the planned trial strategy and did so successfully, as evidenced by
the jury verdict of a lesser included offense of attempted voluntary manslaughter. Petitioner
is not entitled to relief.

Insofar as petitioner claims error in this regard relative to trial counsel’s failure to
procure the services of a private investigator, he presented no evidence that a private
investigator would have assisted in the preparation of his defense vis-a-vis Mr. Barbary. The
record refutes this claim, and petitioner is not entitled to relief.

2. Failure to Communicate Regularly with Petitioner

Petitioner claims that trial counsel met with him only “three or four times” prior to
trial. Trial counsel testified that he was able to meet with petitioner as needed because
petitioner was either released on bond or incarcerated locally during the time of trial
preparation. In fact, trial counsel and petitioner visited a crime scene and photographed
evidence. Trial counsel advised petitioner with regard to his range of punishment and
potential sentence exposure.

The post-conviction court noted that trial counsel met with petitioner on several
occasions. Petitioner has failed to demonstrate deficient performance or ensuing prejudice.
Even if trial counsel had visited more often, “[b]ecause . . . petitioner has failed to

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satisfactorily prove how this lack of communication might have affected the results of the
trial, no relief can be granted on this basis.” Brimmer v. State, 29 S.W.3d 497, 511 (Tenn.
Crim. App. 1998). Petitioner is not entitled to relief on this claim of error.

3. Failure to Provide a Complete Record on Direct Appeal and
Failure to Seek Discretionary Review by the Tennessee Supreme Court

The United States Supreme Court has recognized that due process of law requires that
a convicted defendant receive effective assistance of counsel on the direct appeal from his
conviction(s). See Evitts v. Lucey, 469 U.S. 387 (1985). We apply the same two-prong test
of Strickland to determine whether appellate counsel was constitutionally effective.
Carpenter, 126 S.W.3d at 886. As such,

[i]f a claim of ineffective assistance of counsel is based on the failure to raise
a particular issue, as it is in this case, then the reviewing court must determine
the merits of the issue. Obviously, if an issue has no merit or is weak, then
appellate counsel’s performance will not be deficient if counsel fails to raise
it. Likewise, unless the omitted issue has some merit, the petitioner suffers no
prejudice from appellate counsel’s failure to raise the issue on appeal. When
an omitted issue is without merit, the petitioner cannot prevail on an
ineffective assistance of counsel claim.

Id. at 887-88. Thus, to fully review petitioner’s claim of ineffective assistance of appellate
counsel, we must first determine the merits of the underlying issues, the sufficiency of the
evidence and the propriety of consecutive sentencing.

However, our review of those issues is limited by post-conviction counsel’s failure
to include in the post-conviction record the transcripts that were missing on direct appeal. We
note that the State moved to admit the record on direct appeal into evidence at the post-
conviction hearing. However, there is no indication that post-conviction counsel ever
supplemented the direct appeal record with the transcripts that were missing on direct appeal.
Without said transcripts, we cannot review the sufficiency of the convicting evidence or the
trial court’s sentencing considerations, which we must do to reach a conclusion with regard
to whether the failure to include the transcripts on direct appeal prejudiced petitioner. It is
appellant’s duty to prepare a record that conveys “a fair, accurate, and complete account of
what transpired with respect to those issues” presented for review. Tenn. R. App. P. 24(b);
see State v. Griffis, 964 S.W.2d 577, 596 (Tenn. Crim. App. 1997). We cannot surmise what
the result would have been, nor may we presume prejudice from the lack of a complete
record. Petitioner is not entitled to relief on this claim.

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 Insofar as he claims that trial counsel erred in failing to pursue discretionary review,
we deny relief on this issue. Post-conviction counsel did not elicit testimony from trial
counsel with regard to his reasons for not pursuing this avenue. Again, without the benefit
of the aforementioned transcripts, we cannot discern what, if any, merit his claims may have
had on direct appeal; thus, we are unable to presume prejudice by trial counsel’s failure to
appeal to our supreme court.

4. Failure to Properly Withdraw from Petitioner’s Case

In a passing comment, petitioner states that trial counsel failed to properly withdraw
from his case subsequent to the release of this court’s opinion on direct appeal. He failed to
elicit testimony from trial counsel on this issue, neglected to advance an argument, and
omitted any citation to legal authority to persuade this court to find deficient performance or
prejudice.

Each claim of error presented on appeal must include the following:

(A) the contentions of the appellant with respect to the issues presented, and
the reasons therefor, including the reasons why the contentions require
appellate relief, with citations to the authorities and appropriate
references to the record (which may be quoted verbatim) relied on; and

(B) for each issue, a concise statement of the applicable standard of review
(which may appear in the discussion of the issue or under a separate
heading placed before the discussion of the issues)[.]

Tenn. R. App. P. 27(a)(7)(A)-(B). Moreover, Rule 10(b) of the Rules of the Court of
Criminal Appeals states, “Issues which are not supported by argument, citation to authorities,
or appropriate references to the record will be treated as waived in this Court.” Based on
these premises, we deny petitioner relief.

CONCLUSION

Based upon our review of the record as a whole, the applicable legal authorities, and
the briefs of the parties, we affirm the judgment of the post-conviction court.

_________________________________
ROGER A. PAGE, JUDGE

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