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Reid v. State3/29/2004
erspective at the time. Strickland, 466 U.S. at 690; Cooper, 849 S.W.2d at 746; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court must be highly deferential and "should indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Burns, 6 S.W.3d at 462. Counsel should not be deemed to have been ineffective merely because a different procedure or strategy might have produced a different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980).
On appeal, the Petitioner argues that the post-conviction court erred when it found that the Petitioner was not denied effective assistance of counsel. Specifically, he asserts that the post-conviction court erred when it found there was no merit to the Petitioner's claim that Counsel was ineffective by not raising the issue of the sufficiency of the convicting evidence on appeal. Further, the Petitioner urges this Court to hold that "in all criminal appeals as of right that if the issue of sufficiency of the evidence is not presented to the appellate court, it is per se ineffective assistance of counsel."
Citing Johnson v. State, 733 S.W.2d 525 (Tenn. Crim. App. 1987), and Rhoden v. State, 816 S.W.2d 56 (Tenn. Crim. App. 1991), the Petitioner acknowledges in his brief that "as it currently stands the sufficiency of the evidence is not reviewable in a post-conviction case," and that " he determination of which issues to present on appeal is a matter of counsel's discretion." State v. Swanson, 680 S.W.2d 487, 491 (Tenn. Crim. App. 1984). Further, the Petitioner concedes that "the failure of counsel for a criminal defendant to argue every single issue that a case may present or to present every issue in an appeal that a client may request is not per se ineffective assistance of counsel." See Swanson, 680 S.W.2d at 491.
In support of his argument, the Petitioner alleges that by holding that failure to raise the issue of the sufficiency of the convicting evidence is per se ineffective assistance of counsel, this Court would "further the objectives of due process, restore the right of appeal to the convicted defendant, and further lessen the likelihood that a defendant will be convicted without there being substantial proof beyond a reasonable doubt." The Petitioner further alleges that classifying the decision not to present the issue of the sufficiency of the convicting evidence on appeal as a "tactical decision or strategic decision " is not a valid argument. The State argues that the Petitioner failed to show that: (1) Counsel's representation at trial and on appeal was "in any way deficient or that failed to meet the standard of competence demanded of attorneys in criminal cases;" or (2) "raising the issue of insufficiency of evidence would have made any difference in the final outcome of his case."
First, we conclude that Counsel was not ineffective by failing to raise the issue of the sufficiency of the convicting evidence on appeal. Counsel testified at the post-conviction hearing that he decided that the issue of the sufficiency of the convicting evidence was not a viable issue to raise on appeal. Counsel further testified that he evaluated the witnesses' inconsistencies but concluded that all of the witnesses clearly stated that the Petitioner was involved in the crime. Counsel recalled that he made the strategic decision to focus the appeal on what was "most important" and the strongest argument on appeal. Counsel determined that the Petitioner's strongest issue on appeal was the State's improper attack on the Petitioner's credibility. Counsel concluded that the State's reference to the Petitioner's pre-trial silence "m
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