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Haire v. State5/3/2005
terrogation. Voluntary, spontaneously-made statements do not trigger an obligation by police to read a custodial arrestee the Miranda litany. See State v. Walton, 41 S.W.3d 75, 85 (Tenn. 2001). Thus, the post-conviction record supports the lower court's ruling that the petitioner failed to establish this claim.
Finally, the petitioner asserts that his counsel performed deficiently by failing to keep him adequately informed about the preparation of his case throughout the course of counsel's representation. Specifically, the petitioner asserts that counsel failed to communicate with him regarding information received from potential expert witnesses or inform him why those experts did not testify at trial. However, the petitioner has failed to allege or demonstrate how he was prejudiced by this alleged omission. See Strickland, 466 U.S. at 693, 104 S.Ct. at 2067. Accordingly, this allegation of ineffective assistance of counsel does not entitle the petitioner to relief.
Challenge to Enhancement of Sentence
The petitioner asserts that his effective twenty-five-year sentence is a result of improperly applied enhancement factors. Specifically, the petitioner asserts that the trial court impermissibly applied three enhancement factors to his second-degree murder sentence in violation of Blakely v. Washington, 542 U.S. __, 124 S.Ct. 2531 (2004), specifically that the defendant was a leader in the commission of the offense, see Tenn. Code Ann. § 40-35-114(2), that the victim of the offense was particularly vulnerable because of mental disability, see id. § 40-35-114(4), and that the defendant possessed or employed a firearm during the commission of the offense, see id. § 40-35-114(9). In this court's 2002 decision addressing the petitioner's direct appeal, which preceded the 2004 Blakely decision, the petitioner challenged his sentence and the trial court's application of two of the enhancement factors outlined above, and this court affirmed the petitioner's sentence. Chris Haire, slip op. at 21-26.
The petitioner has waived the issue for consideration in this appeal; he failed to raise this allegation in his post-conviction petition, thereby providing the lower court the opportunity to address the issue. The Post-Conviction Procedure Act states, "A ground for relief is waived if the petitioner . . . failed to present it for determination in any proceeding before a court of competent jurisdiction in which the ground could have been presented . . . ." Tenn. Code Ann. § 40-30-106(g) (2003). Moreover, the record does not contain a transcript of the petitioner's sentencing hearing. The petitioner bears the burden of preparing an adequate record for appellate review, Tenn. R. App. P. 24(b), and failure to do so results in waiver of any issues for which there is not an adequate record for review, Tenn. Ct. Crim. App. R. 10(b). As such, the petitioner has waived this issue for consideration in the instant appeal. Furthermore, our supreme court has recently held that notwithstanding the United States Supreme Court's holding in Blakely, the Tennessee sentencing structure does not run afoul of the Sixth Amendment. State v. Gomez, __ S.W.3d __, No. M2002-01209-SC-R11-CD, slip op. at 27 (Tenn. Apr. 15, 2005).
In conclusion, none of the petitioner's allegations merit relief, and therefore, the judgment of the post-conviction court is affirmed.
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