Joseph Lamont Johnson, Jr. v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

November 13, 2013 Session

JOSEPH LAMONT JOHNSON, JR. v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2004-A-273 Steve Dozier, Judge

No. M2012-02310-CCA-R3-PC- Filed February 27, 2014

The petitioner, Joseph Lamont Johnson, was convicted of two counts of aggravated robbery,

one count of aggravated assault, and one count of felony evading arrest. The trial court then

reduced one of the aggravated robbery convictions to aggravated assault pursuant to State

v. Franklin, 130 S.W.3d 789, 798 (Tenn. Crim. App. 2003) and sentenced the petitioner to

an aggregate sentence of fifty-four years. The petitioner’s convictions and sentences were

affirmed on appeal. State v. Johnson, No. M2007-01644-CCA-R3-CD, 2009 WL 2567729,

at *1 (Tenn. Crim. App. Aug. 18, 2009). The petitioner brings this post-conviction action

alleging that he received the ineffective assistance of counsel in that: (1) trial counsel failed

to convey a plea offer or inform the petitioner regarding his potential exposure; (2) trial

counsel did not adequately investigate the case; (3) trial counsel performed deficiently by not

moving to dismiss one of the aggravated robbery counts; (4) trial counsel performed

deficiently by not moving to suppress a witness’s identification of the petitioner; (5) appellate

counsel performed deficiently by failing to challenge the petitioner’s sentencing range; and

(6) that the cumulative errors above resulted in the deprivation of the right to counsel. After

a thorough review of the record, we conclude that the petitioner has failed to prove one or

both prongs of a claim of ineffective assistance of counsel with respect to each claim, and

we accordingly affirm the denial of the petition.

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

and Remanded

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which T HOMAS T.

W OODALL and C AMILLE R. M CM ULLEN, JJ., joined.

David A. Collins, Nashville, Tennessee, for the appellant, Joseph Lamont Johnson, Jr.

Robert E. Cooper, Jr., Attorney General & Reporter; Clark B. Thornton, Assistant Attorney

General; Victor S. Johnson, District Attorney General; and Rachel Sobrero, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL AND PROCEDURAL HISTORY

The convictions in this case arose from the robbery of a Taco Bell in Nashville.

Johnson, 2009 WL 2567729, at *1. According to testimony at trial, the petitioner, wearing

a maroon hoodie, entered the restaurant shortly after it opened at 10:00 a.m. Id. A store

employee, Ebony Moore, went to the back to alert the manager, Sam Alshinawa, that there

was a robbery in progress. Id. According to the manager, the two returned to the dining area,

where the petitioner grabbed Ms. Moore’s hair and threatened to hurt her.1 Throughout the

incident, the petitioner kept his hand in his pocket, which appeared heavy, as though it

contained a gun. Id. at *2. Mr. Alshinawa was frightened, and Ms. Moore pleaded for Mr.

Alshinawa to help her. Id. The petitioner took between $200 and $300 dollars from the

store, some of it in $5 and $1 bills, and he then demanded the surveillance video. Id.

Because there was none, Mr. Alshinawa gave him a training video. Id. Mr. Alshinawa

testified that the petitioner then slammed Ms. Moore’s head into the wall. Id. The petitioner

fled to the vehicle where the co-defendant, Willie Harris, was waiting. Id. He was followed

by Mr. Alshinawa, who used a metal object to break several of the car’s windows. Id.

The police arrived to see Mr. Alshinawa attack the car while the petitioner was still

on the store’s property. Id. After a high-speed chase during which the petitioner sped

directly toward Officer Michael Windsor’s police vehicle, swerving at the last minute, the

petitioner and co-defendant abandoned their vehicle. Id. at *2-3. The co-defendant was

captured with a little over $200 in twenties, tens, and fives. Id. at *3. The petitioner, who

was wearing a maroon hoodie, had $42 in his pants. Id. at *3-4. A creek near the foot chase

yielded an unspecified amount cash, a cell phone, and a driver’s license and social security

card belonging to the petitioner. Id. at *3. A Taco Bell video cassette was recovered from

the petitioner’s car. Id. at *4. The petitioner and co-defendant were returned to the store,

where they were identified by Mr. Alshinawa. Id.

The petitioner testified on his own behalf at trial. According to the petitioner, he was

under the influence of drugs and alcohol when he entered the store. Id. Because no one was

present to wait on him, he lay on the counter. Id. Eventually, Mr. Alshinawa pushed his

head, which escalated into “scuffling.” Id. As the petitioner exited the store, he was

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Ms. Moore did not testify at trial.

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followed by Mr. Alshinawa, who began to break the car windows with a metal pipe. Id. The

petitioner’s testimony was that Mr. Alshinawa then shouted, “Is this what you want?” and

threw the videotape into the car. Id. The petitioner then recounted the car chase, noting that

a police car swerved in front of him and he had to take evasive action. Id. at *4-5.

The jury found the petitioner guilty of two counts of aggravated robbery, one count

of aggravated assault, and one count of evading arrest. However, the trial court, citing

Franklin, 130 S.W.3d at 796, reduced the conviction for the aggravated robbery of Ms.

Moore to aggravated assault, concluding that since only store property had been taken, the

evidence did not support more than one conviction for aggravated robbery. Id. at *5. The

trial court sentenced the petitioner to twenty-eight years as a Range III, persistent offender

for the aggravated robbery conviction. The court sentenced the petitioner as a Range II,

multiple offender to eight years for one aggravated assault, ten years for the other, and to

eight years for the evading arrest conviction. The trial court ordered that the sentences be

served consecutively for an aggregate term of fifty-four years. Id. at *1. After trial, the

petitioner grew dissatisfied with his retained attorney. He was appointed new counsel, and

appellate counsel filed and pursued his direct appeal. This Court affirmed his convictions

and sentences.

The petitioner filed a timely pro se petition for post-conviction relief. Counsel filed

an amended petition on behalf of the petitioner, and the post-conviction court held an

evidentiary hearing.

The petitioner testified that trial counsel represented him for thirteen months, during

which time, with the exception of trial counsel’s hiring and of the trial, he never saw his

attorney. The petitioner introduced a record of his jail visits which covered the duration of

his pre-trial incarceration and in which trial counsel’s name never appears. The petitioner

testified he had eight or nine appearances in court prior to his trial date, but trial counsel

never spoke to him about the case in the holding areas. Trial counsel did not provide him

with discovery, as they had “no communication.” Trial counsel also failed to provide him

with street clothing for the jury trial. The petitioner testified that he was not aware that he

would be on trial until the morning the trial began, that he did not have a chance to contact

his family or get clothing for trial, and that a court officer was looking for clothing for him

on the morning of trial. Counsel did not have an opening statement, did not have any

prepared questions written down in anticipation of examining witnesses, and did not take

petitioner’s suggestions for questions to ask witnesses. The petitioner stated that his trial

counsel did not investigate or interview any of the State’s witnesses. He testified that, had

trial counsel interviewed Ms. Moore, she would have refuted Mr. Alshinawa’s statements

regarding the assault against her. According to the petitioner, neither the State nor his

attorney subpoenaed her, and Ms. Moore was not even present in the Taco Bell.

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The petitioner also asserted that trial counsel never conveyed the State’s plea offer to

plead guilty to the charges and be sentenced to twenty years as a Range II offender.

Furthermore, trial counsel never informed him that he could be facing an aggregate sentence

of over fifty years. The petitioner testified that, had he known about the potential punishment

and the offer, he would have accepted the offer. On cross-examination, however, he

maintained he had not committed any robbery, but when asked if he would have pled guilty

to the crime, he answered, “It’s possible, if I knew what I was facing going to trial. It’s

highly likely, yes, I would have accepted that 20[-]year deal.” He elaborated that if he had

known the range of sentencing he faced, he would have taken the twenty years. He also

noted that he had pleaded guilty on other robbery charges because he was guilty. The

petitioner testified, as further corroboration that trial counsel had not told him the range of

punishment he faced, that trial counsel at the sentencing hearing told the trial court that he

did not know how the petitioner’s federal bank robbery conviction would be classified for

the purposes of establishing range.

The petitioner also testified that he believed his counsel was deficient in not moving

to have one of the aggravated robbery counts dismissed, because while the indictment alleged

he had taken property from two separate people, the proof showed that he took money only

from the business. The petitioner testified that he was ultimately sentenced for aggravated

assault as a lesser-included offense of aggravated robbery.

The petitioner next alleged his counsel was deficient in failing to file a motion to

suppress evidence of the show-up identification. Trial counsel did not advise him that if he

testified, he would essentially be conceding issues of identification by putting himself at the

scene of the crime.

The petitioner further alleged that his trial counsel erred in allowing the trial court to

count his two prior state convictions for aggravated robbery separately, insisting that, as they

were both committed on the same day, they should only count as one conviction for the

purposes of establishing a sentencing range. The petitioner’s appellate counsel refused to

raise this as an issue on appeal.

Detective Norris Tarkington, who investigated the crime and was a witness at the

petitioner’s trial, testified that he did not recall trial counsel ever contacting him to discuss

the facts of the case or the identification. Regarding the show-up identification, Detective

Tarkington testified that the defendant was standing next to a police vehicle in handcuffs that

were not readily visible and that he then brought the witnesses individually to make an

identification. He testified that at the time, it was standard procedure to conduct a show-up

if a suspect were apprehended within two hours of a crime. He elaborated on

cross-examination that the petitioner had been continuously in sight of police from the time

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he left the parking lot until the time he was apprehended. Detective Tarkington recalled that

Ms. Moore told him that the petitioner had grabbed her by the hair and told her to open the

cash register, then pulled her to the back. He did not recall Mr. Alshinawa saying that Ms.

Moore was forced to lie on the floor or that she was not dragged but walked to the back of

the store alone to tell him about the robbery. Mr. Alshinawa had also not told him that the

petitioner slammed Ms. Moore’s head into a steel door or that he and the petitioner had

begun shoving each other. Detective Tarkington did not recall any prosecutor contacting him

regarding finding Ms. Moore.

David Hopkins, who represented the co-defendant at trial, testified that he made a few

attempts to contact the petitioner’s attorney prior to trial to discuss trial strategy, but he was

unsuccessful. Close to the time of trial, he was able to speak with petitioner’s attorney and

attempted to arrange a meeting, but they were unable to do so. Mr. Hopkins testified that on

the day of trial, he had arrived early with clothing for his client, but trial counsel did not

arrive on time, forcing the parties to wait for him. Trial counsel then asked to see Mr.

Hopkins’s copy of the discovery materials and started to review them. As he flipped through

the discovery, he asked Mr. Hopkins a question similar to: “What’s this case about?” Mr.

Hopkins testified that he did not speak to trial counsel because the jury pool was already

being brought into the courtroom, but trial counsel “seemed serious” in asking the question.

The petitioner’s appellate counsel testified that he did not challenge the sentencing

as a Range III offender because he believed the petitioner was sentenced within the correct

range, having committed three prior Class B felonies and one Class C felony.

Trial counsel agreed that the petitioner had eight or nine court appearances and

testified that they had “multiple discussions” during which the petitioner asserted that he had

been at the Taco Bell, but the robbery was a misunderstanding and he had committed no

crime. The petitioner had maintained his innocence’ and “he wasn’t going to take any pleas.”

Trial counsel asserted that, while he did not give the petitioner the State’s letter, he did

convey the plea offer, and the petitioner rejected it. Trial counsel testified that, “basically

they’re wanting him to plead to a lot of time, and he said, well, I’m innocent, I didn’t rob

anybody, I didn’t do it. He always said the same thing … .But in any event, even prior to the

trial, he basically said that I’m not taking a deal of any sort.”

He acknowledged that he did not know at the time of the sentencing hearing how the

petitioner’s federal bank robbery conviction would be classified in Tennessee. He testified

that he believed the classification was usually decided by the trial court, using analogous

state crimes. He testified he did not look at the petitioner’s prior convictions to determine

if they were on the same day. Trial counsel testified that he did not think the petitioner

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would get as lengthy a sentence as he did. Regarding discussions with the petitioner about

sentencing, trial counsel testified as follows:

Q. Okay. Did you ever have a discussion about the range of

punishment he was facing?

A. No, because I don’t think we discussed what the total range

was. I think we talked about what he could get for each

individual offense, and mainly we were focused on the

aggravated robbery portion, because I told him he could get

eight to 30 on those cases. But we didn’t talk about if the cases

got split up and if they were consecutive and you know,

everything could come down. We were mainly focused on the

class B felonies.

Trial counsel testified that the defense theory of the case was that the petitioner lacked

intent to rob the victims and that Mr. Alshinawa had been disrespectful to the petitioner, who

was a customer, and the two became involved in a physical altercation. He testified that he

did not move to dismiss the second count of aggravated robbery because he believed that the

issue of a second robbery was a jury question. He testified that he didn’t challenge the

show-up both because the police had followed the petitioner from the actual scene of the

crime and because the petitioner acknowledged being at the Taco Bell.

Trial counsel acknowledged not interviewing any of the State’s witnesses, but stated

he spoke with the police officers and detectives regarding the case. He stated that he did not

give the petitioner a copy of the discovery because the petitioner was in jail, and he didn’t

want the documents available to other inmates. However, he asserted he did discuss the

discovery with the petitioner. He acknowledged looking at Mr. Hopkins’s discovery, but

stated he did so because the photographs were of better quality than his copy. He testified

that he did ask what the case was about but did so as a joke. He also testified that he had

been in contact with the petitioner’s family regarding bringing clothing, and that he was late

because he was in the building trying to find clothing for the petitioner with the aid of the

court officers.

Trial counsel admitted that he had received two public censures from the Board of

Professional Responsibility in 2004 and 2006 for neglecting and failing to prepare a child

support case and for filing a late notice of appeal and brief in another case. He testified that

the petitioner had also filed a complaint against him but that the complaint had been found

to be without merit.

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The post-conviction court denied the petition. The court found that “Although trial

counsel did not visit the petitioner as often as he should have,” the petitioner could not show

prejudice because he offered no evidence of a viable defense that could have been pursued.

The post-conviction court further found that there was no deficiency or prejudice in counsel’s

not moving to dismiss the second aggravated robbery charge. The post-conviction court

found no merit in the issue that trial counsel should have challenged the show-up, noting that

there was no evidence it was prejudicial or suggestive, and no prejudice was shown. The

post-conviction court denied relief on the issue of counsel’s failure to interview or call Ms.

Moore, noting that she could not be found for the hearing and that there was no prejudice.

The post-conviction court also accredited trial counsel’s testimony that he did convey the

plea offer to the petitioner, who refused it, and it declined to find prejudice on the issue. The

post-conviction court denied relief on the sentencing issues, finding that the convictions were

not subject to the twenty-four hour merger rule and that there was accordingly no deficiency

or prejudice.

ANALYSIS

I. Standard of Review

Tennessee’s Post-Conviction Procedure Act provides for relief when a conviction or

sentence is void or voidable because of the abridgment of any right guaranteed by the

Constitution of Tennessee or the Constitution of the United States. T.C.A. § 40-30-103

(2010). To obtain post-conviction relief, a petitioner must prove his allegations of fact by

clear and convincing evidence. T.C.A. § 40-30-110(f). Clear and convincing evidence is

evidence “which leaves ‘no serious or substantial doubt about the correctness of the

conclusions drawn from the evidence.’” Grindstaff v. State, 297 S.W.3d 208, 221 (Tenn.

2009) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)). On

appeal, a post-conviction court’s findings of fact are conclusive unless the evidence

preponderates otherwise. Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006). Accordingly,

questions concerning the credibility of the witnesses, the weight and value of evidence, and

the factual issues raised by the evidence are to be resolved by the post-conviction court, and

an appellate court may not substitute its own inferences for those drawn by the post-

conviction court. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001). The post-

conviction court’s decisions on questions of law or mixed questions of law and fact, such as

a claim of ineffective assistance of counsel, are reviewed de novo. Nichols v. State, 90

S.W.3d 576, 586 (Tenn. 2002).

The petitioner asserts that various errors committed by his trial counsel deprived him

of his right to counsel under the Sixth Amendment to the United States Constitution and

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article I, section 9 of the Tennessee Constitution. In order to establish that he received the

ineffective assistance of counsel, the petitioner must show both that his lawyer’s performance

was deficient and that the deficiency resulted in prejudice. Pylant v. State, 263 S.W.3d 854,

868 (Tenn. 2008). Deficiency can be shown if the petitioner demonstrates that his attorney’s

services were not “within the range of competence demanded of attorneys in criminal cases.”

Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). A petitioner must demonstrate

deficiency by “showing that counsel made errors so serious that counsel was not functioning

as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Felts v. State, 354

S.W.3d 266, 276 (Tenn. 2011) (quoting Strickland v. Washington, 466 U.S. 668, 687

(1984)). A reviewing court indulges “a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.” State v. Burns, 6 S.W.3d 453,

462 (Tenn. 1999).

To prevail on the prejudice prong, the petitioner “must establish a reasonable

probability that but for counsel’s errors the result of the proceeding would have been

different.” Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007) (quoting Vaughn, 202 S.W.3d

at 116). A reasonable probability is “a probability sufficient to undermine confidence in the

outcome.” Id. A claim may be denied for failure to prove either prong, and a court need not

address both if the petitioner has failed to establish either deficiency or prejudice. Goad v.

State, 938 S.W.2d 363, 370 (Tenn. 1996).

II. Ineffective Assistance in Plea Negotiations

The petitioner’s first claim is that trial counsel performed deficiently in failing to

render effective assistance during plea bargaining. The petitioner testified that trial counsel

never conveyed the State’s offer to sentence him concurrently as a Range II offender to an

effective twenty-year sentence. Although trial counsel acknowledged he did not give the

State’s offer letter to the petitioner, he testified that he “did relay the offer, as we had to, and

he said he was not taking any time for this.” In what became essentially a contest of

credibility in which the petitioner asserted he did not know of the offer and trial counsel

asserted he did, the trial court accredited the testimony of trial counsel and found that the

offer was conveyed.

The State’s offer was made on December 2, 2004. The petitioner’s trial began on

December 6, 2004. In the intervening days, trial counsel’s name continued to remain

conspicuously absent from the roster of visitors whom the petitioner received in prison.

Testimony at the hearing established that trial counsel was late to court on the day of trial,

and the petitioner testified that his time before trial was taken up with the issue of finding

adequate clothing and that the jury was in the box by time he was brought into the courtroom.

The petitioner asks us to infer, from these facts, that the offer was not conveyed to him, and

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he asks us to conclude that the evidence preponderates against the trial court’s finding that

trial counsel conveyed the plea offer. However, we cannot say that the fact that trial counsel

did not visit the prison precludes the possibility that he conveyed the offer in some other way.

Neither post-conviction counsel nor the State inquired into the minutiae of the manner in

which the offer was conveyed, and although the evidence suggests that trial counsel did not

conveyed the offer in person, there is no evidence regarding the possibility that it was

conveyed in some other manner; there is simply the testimony of counsel that he conveyed

the offer and that of the petitioner that counsel did not do so. Ultimately, then, the question

remains one of credibility. Questions concerning the credibility of the witnesses, the weight

and value of evidence, and the factual issues raised by the evidence are resolved by the post-

conviction court. Honeycutt, 54 S.W.3d at 766-67. Furthermore, a post-conviction court’s

factual determinations are conclusive unless the evidence preponderates otherwise, Vaughn,

202 S.W.3d at 115. We conclude that the evidence does not preponderate against the post-

conviction court’s determination that the offer was conveyed.

However, the testimony of trial counsel and the petitioner did not conflict regarding

another aspect of the plea offer: that trial counsel never told the petitioner that, if he elected

to reject the offer, his sentences could be run consecutively. The State asks us to consider

this issue waived because, although the petition alleged that trial counsel did not convey a

plea offer, it did not allege that trial counsel’s communication of the plea offer was defective,

specifically in that trial counsel did not alert the petitioner to the aggregate sentence he

faced. See T.C.A. § 40-30-110(c) (“Proof upon the petitioner’s claim or claims for relief

shall be limited to evidence of the allegations of fact in the petition.”). The petition does

allege that trial counsel never came to see the petitioner, never spoke to him about his case,

had not adequately investigated the petitioner’s classification for sentencing purposes, and

never spoke to him regarding a plea offer. While the petition does not specifically allege that

trial counsel was deficient in not conveying the aggregate sentence the petitioner faced, we

choose to examine the issue on the merits.

The Strickland standard for determining whether a petitioner received the ineffective

assistance of counsel applies in plea negotiations as well as during trial. Missouri v. Frye,

132 S. Ct. 1399, 1407, 1409 (2012); see Hill v. Lockhart, 474 U.S. 52, 58 (1985).

Accordingly, “counsel have responsibilities in the plea bargain process, responsibilities that

must be met to render the adequate assistance of counsel that the Sixth Amendment requires

in the criminal process at critical stages.” Frye, 132 S. Ct. at 1407. A fair trial does not

correct deficient performance because of “the reality that criminal justice today is for the

most part a system of pleas, not a system of trials.” Lafler v. Cooper, 132 S. Ct. 1376, 1388

(2012). Accordingly, “it is insufficient simply to point to the guarantee of a fair trial as a

backstop that inoculates any errors in the pretrial process.” Frye, 132 S. Ct. at 1407.

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In Magana v. Hofbauer, 263 F.3d 542, 549-50 (6th Cir. 2001), as in the petitioner’s

case, trial counsel testified that he had never told the accused that his sentences could be run

consecutively. In Magana, trial counsel in fact had assured his client that the sentences

would be concurrent and that the most he could be sentenced to after trial was ten years,

which was equivalent to the State’s plea offer. Id. The Sixth Circuit concluded that trial

counsel’s “gross misadvice to his client regarding the client’s potential prison sentence,

certainly fell below an objective standard of reasonableness under prevailing professional

norms.” Id. at 550; see also Wooten v. Raney, 112 Fed. App’x 492, 496 (6th Cir. 2004)

(noting that “in some cases the failure to inform a defendant correctly of his sentencing

exposure at trial may constitute ineffective assistance of counsel…” but rejecting the claim

based on prejudice); Grindstaff, 297 S.W.3d at 221 (quoting Moss v. United States, 323 F.3d

445, 474 (6th Cir. 2003) for the proposition that “the failure of counsel to ‘provide

professional guidance ... regarding ... sentence exposure prior to a plea may constitute

deficient assistance’”). “A criminal defendant has a right to expect at least that his attorney

will review the charges with him by explaining the elements necessary for the government

to secure a conviction, discuss the evidence as it bears on those elements, and explain the

sentencing exposure the defendant will face as a consequence of exercising each of the

options available.” U.S. v. Wolfe, No. 2:11-CR-33, 2012 WL 1957427, at *10 (E.D. Tenn.

May 31, 2012) (quoting Smith v. United States, 348 F.3d 545, 553 (6th Cir. 2003)). Based

on the unconflicting testimony of the petitioner and trial counsel, trial counsel did not alert

the petitioner to his potential sentencing exposure if he proceeded to trial. Furthermore, trial

counsel’s testimony seemed to suggest that he had told the petitioner he could get as little as

eight years’ imprisonment for the aggravated robbery charge, which would be the minimum

for a Range I offender. We conclude that trial counsel’s performance was deficient.

The Supreme Court has recently addressed what a petitioner must prove to show

prejudice when alleging that counsel’s deficient performance resulted in the rejection of a

more favorable plea offer:

In these circumstances a defendant must show that but for the

ineffective advice of counsel there is a reasonable probability

that the plea offer would have been presented to the court ( i.e.,

that the defendant would have accepted the plea and the

prosecution would not have withdrawn it in light of intervening

circumstances), that the court would have accepted its terms,

and that the conviction or sentence, or both, under the offer’s

terms would have been less severe than under the judgment and

sentence that in fact were imposed.

Lafler, 132 S. Ct. at 1385; see also Magana, 263 F.3d at 551-52 (predating Lafler and

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concluding that the petitioner established a reasonable probability that he would have

accepted the plea based on his own testimony, on the large disparity between the ten-year

offer and his forty-year exposure, and on trial counsel’s testimony that the petitioner stated,

after receiving the misadvice, that he would reject the offer “[u]nder those circumstances”).

The Sixth Circuit does not require a defendant to support his own assertion that he would

have accepted the offer with additional objective evidence. Griffin v. U.S., 330 F.3d 733,

737 (6th Cir. 2003); Smith, 348 F.3d at 551.

In this case, the disparity between the offer, which was for twenty years’

imprisonment, and the petitioner’s exposure, which was fifty-eight years, is large. See U.S.

v. Morris, 470 F.3d 596, 602 (6th Cir. 2006) (“This Court has given special weight to

significant disparities between penalties offered in a plea and penalties of a potential sentence

in determining whether a defendant suffered prejudice by not accepting a plea offer.”).

Furthermore, the State’s case against the petitioner was particularly strong. Nevertheless,

there is also evidence which suggests the petitioner would not have accepted any plea offer.

First and most tellingly, the petitioner’s own testimony on the issue was equivocal, as he

testified at times that he would have taken the offer and at other times that it was “highly

likely” or “possible” that he would have. Second, the petitioner maintained his innocence

throughout the trial and post-conviction proceedings. The petitioner’s testimony was that no

robbery took place and that the store manager fabricated the robbery after an argument

escalated into a physical confrontation. But see Griffin, 330 F.3d at 738 (noting that

“declarations of innocence are therefore not dispositive on the question of whether [the

petitioner] would have accepted the government’s plea offer” and remanding for a hearing).

Finally, petitioner’s counsel testified that petitioner was adamantly opposed from the

beginning to taking a plea offer, and he testified that the petitioner did not want to plead

guilty because he steadfastly maintained that he was innocent of the crime. The post-

conviction court “accredit[ed] the testimony of trial counsel that he did communicate the

offer and that the petitioner was not interested in taking any plea.” In light of the post-

conviction court’s factual finding that the petitioner was “not interested in taking any plea”

and other evidence suggesting that the petitioner was not interested in plea bargaining, we

conclude that the petitioner has failed to establish by clear and convincing evidence that he

would have taken the twenty-year plea offer. Accordingly, the petitioner has not shown a

reasonable probability that, but for trial counsel’s failure to alert him to his potential

sentencing exposure, the plea offer would have been presented to and accepted by the

sentencing court. See Smith v. State, No. E2003-00655-CCA-R3-PC, 2004 WL 73267, at *7

(Tenn. Crim. App. Jan. 9, 2004) (declining to find prejudice stemming from an allegation that

counsel did not discuss consecutive sentencing because the petitioner’s testimony showed

“that he wanted to prove his innocence and that he believed that he had a chance to be

acquitted on all the charges”).

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III. Failure to Investigate

The petitioner next asserts that he received the ineffective assistance of counsel at

trial, in that trial counsel neglected to investigate the case, interview witnesses, or

communicate adequately with him.

The petitioner, based on prison records which show trial counsel never visited him,

asserts that his trial counsel never met with him or discussed the case with him prior to trial.

Trial counsel testified that he met with the petitioner on the eight or nine occasions when the

petitioner was in the courthouse, and that he discussed the case with the petitioner during

those times, though sometimes only briefly. The trial court accredited trial counsel’s

testimony, although it acknowledged that trial counsel “did not visit the petitioner as often

as he should have.” The petitioner makes no allegation of prejudice in this regard or

explanation of how the trial would have been different if trial counsel had held additional

meetings with the petitioner. Accordingly, this issue is without merit.

The petitioner also challenges trial counsel’s failure to interview witnesses,

particularly Mr. Alshinawa and Ms. Moore. The petitioner urges that there were

discrepancies between Mr. Alshinawa’s testimony and his initial statement to the police, and

that interviewing witnesses “may have produced even more.” He particularly points to the

fact that Mr. Alshinawa’s initial statement to police apparently did not allege that the

petitioner forced anyone to lie on the floor or that the petitioner slammed Ms. Moore’s head

into a door. However, the petitioner did not call Mr. Alshinawa at the post-conviction

hearing to demonstrate any further inconsistencies in his testimony. When a claim of

ineffective assistance of counsel is premised on counsel’s failure to interview or call

witnesses, the witnesses must be presented at the post-conviction hearing. Black v. State, 794

S.W.2d 752, 757 (Tenn. Crim. App. 1990). “As a general rule, this is the only way the

petitioner can establish that . . . the failure to have a known witness present or call the

witness to the stand resulted in the denial of critical evidence which inured to the prejudice

of the petitioner.” Pylant, 263 S.W.3d at 869 (quoting Black, 794 S.W.2d at 757). This is

because the court cannot speculate as to what a witness’s testimony might have been. Black,

794 S.W.2d at 757. Presenting the witness allows the post-conviction court to determine

whether that witness’s testimony would have been credible, material, and admissible. Pylant,

263 S.W.3d at 869-70. Without the post-conviction testimony of Mr. Alshinawa and Ms.

Moore, the claim is purely speculative and the petitioner cannot show prejudice.

Accordingly, this claim is without merit.

The petitioner alleges trial counsel’s performance was deficient in not preparing an

opening statement or theory of defense. The petitioner also objects to counsel’s performance

in not challenging the discrepancies in Mr. Alshinawa’s testimony at trial. However, the

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petitioner can show no prejudice from these alleged shortcomings. Regarding counsel’s

opening statement, the petitioner has presented no proof regarding how the outcome of the

trial would have been different had counsel’s preparation been more thorough. Although the

petitioner called Detective Tarkington at the hearing to testify about inconsistencies between

Mr. Alshinawa’s initial statement to the police and his trial testimony, the fundamentals of

the witness’s testimony – that the defendant entered the store, threatened Mr. Alshinawa and

Ms. Moore with what appeared to be a gun in his pocket, and took money from the cash

register – remained unchanged. Accordingly, he cannot show a reasonable probability that,

but for any alleged errors, the result of the proceeding would have been different.

IV. Franklin Claim

The petitioner next asserts that his trial counsel was deficient in failing to move to

dismiss one of the two counts of aggravated robbery based on State v. Franklin, 130 S.W.3d

789 (Tenn. Crim. App. 2003). In Franklin, a robbery was committed in which two store

employees were forced to hand over store property at gunpoint. Id. at 791. The defendant

in Franklin was convicted of two counts of aggravated robbery, but this Court found that

only one conviction for aggravated robbery could stand, as there was only one taking. Id.

at 798. However, the second count was not dismissed; instead, it was reduced to the lesser

included offense of aggravated assault. Id. In the petitioner’s case, nearly the same series

of events transpired. The petitioner was convicted of both counts, but one count was reduced

to the lesser included offense of aggravated assault.

“The Double Jeopardy Clause has been interpreted as providing three separate

protections: (1) protection against a second prosecution for the same offense after acquittal;

(2) protection against a second prosecution for the same offense after conviction; and (3)

protection against multiple punishments for the same offense.” State v. Watkins, 362 S.W.3d

530, 541 (Tenn. 2012) (emphasis added). As such, Franklin stands for the proposition that,

if the proof supports only a single taking from the business, two convictions cannot stand.

See also State v. Anthony, No. W2004-00255-CCA-MR3-CD, 2004 WL 2848380, at *7

(Tenn. Crim. App. Dec. 10, 2004) (reducing two out of four counts of aggravated robbery

to aggravated assault when the defendant robbed one customer and the cash registers of three

employees); State v. Johnson, No. W2002-00987-CCA-R3-CD, 2003 WL 22080778, at *11

(Tenn. Crim. App. Sept. 4, 2003) (modifying one conviction for especially aggravated

robbery to aggravated assault where two store employees were shot during a robbery in

which money was taken from the store). The State may, of course, charge certain crimes

under alternative theories, and the petitioner offers no support for the proposition that, had

the second aggravated robbery charge been challenged, the trial court would have been

obliged to dismiss the count entirely. See, e.g., State v. Howard, 30 S.W.3d 271, 275 n.4

(Tenn. 2000). Accordingly, the post-conviction court correctly found that trial counsel did

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not perform deficiently in not moving to dismiss the second count and that there was no

prejudice.

V. Failure to File Motion to Suppress Identification Evidence

The petitioner next asserts that his trial counsel’s performance was deficient because

trial counsel did not move to suppress Mr. Alshinawa’s identification of the petitioner when

the petitioner was returned to the scene of the crime in handcuffs. “To be admissible as

evidence, an identification must not have been conducted in such an impermissibly

suggestive manner as to create a substantial likelihood of irreparable misidentification.”

State v. Cribbs, 967 S.W.2d 773, 794 (Tenn. 1998). If the identification was suggestive, the

court must consider whether the identification was ultimately reliable. State v. Biggs, 211

S.W.3d 744, 749 (Tenn. Crim. App. 2006). A show-up, in which a witness is presented with

either a single photograph or single suspect for the purposes of identification, is “inherently

suggestive and unfair to the accused.” State v. Thomas, 780 S.W.2d 379, 381 (Tenn. Crim.

App. 1989). However, the practice is permissible when “the showup occurs as an

on-the-scene investigatory procedure shortly after the commission of the crime.” Thomas,

780 S.W.2d at 381. While presenting the suspect in handcuffs has been condemned, “a

suspect in handcuffs does not establish that the show-up identification was impermissibly

suggestive when reliability of the identification may be otherwise established.” Ross v. State,

No. W2008-01130-CCA-R3-PC, 2009 WL 2568202, at *9 (Tenn. Crim. App. Aug. 20,

2009); see State v. Strickland, No. M2002-01714-CCA-R3-CD, 2003 WL 22243440, at *13

(Tenn. Crim. App. Sept. 30, 2003) (concluding a show-up “was not impermissibly suggestive

so as to give rise to a substantial likelihood of misidentification” when it took place within

an hour of the crime, at the scene, and as part of an on-the-scene investigatory procedure).

Here, the victims summoned the police while the robbery was occurring, and the police

arrived to see the petitioner and his co-defendant still in the parking lot, pursued by one of

the victims. The petitioner initiated a high-speed chase during which he never left officers’

line of sight up until his capture. He and the codefendant were apprehended with a

substantial amount of cash, and the store video was found in their vehicle. Because the

show-up was part of an on-the-scene investigatory procedure immediately after the

commission of the crime, the identification was not subject to suppression.

Moreover, identity was substantially not at issue in the petitioner’s case. See Bowles

v. State, No. M2003-01740-CCA-R3-PC, 2004 WL 1656476, at *4 (Tenn. Crim. App. July

23, 2004) (concluding that counsel was not ineffective in failing to obtain DNA evidence

when identity was not at issue). Counsel’s actions must be evaluated in light of the

information counsel receives from the accused. Felts, 354 S.W.3d at 277 (“The

reasonableness of counsel’s actions may be determined or substantially influenced by the

defendant’s own statements or actions. . . .” (quoting Strickland, 466 U.S. at 691)). In the

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case at bar, the petitioner never denied being on the scene or being the individual who

became involved in a conflict with the store manager. See Sadler v. State, No. M2008-02853-

CCA-R3-PC, 2010 WL 10968, at *5 (Tenn. Crim. App. Jan. 4, 2010) (rejecting post-

conviction petitioner’s claim that counsel was deficient in not alerting the petitioner that

several witnesses were not able to identify him from a line-up when counsel testified that he

shared the information and that identity was not at issue). Instead, he maintained that he was

present in the Taco Bell as a customer and that the store manager initiated a confrontation

with him and eventually assaulted him with a lead pipe. He denied feigning that he had a gun

or robbing the store, and he explained that the manager had inexplicably thrown a video

cassette into his car after breaking the window. As noted above, the petitioner fled the

restaurant pursued by the victim, and he never left officers’ line of sight during the ensuing

chase. Mr. Alshinawa then identified the petitioner at trial. In these circumstances, trial

counsel was not deficient for failing to move to suppress the identification, and the petitioner

cannot show that, but for the alleged error, the result of the proceeding would have been

different. See Majors v. State, No. M2011-02353-CCA-R3-PC, 2012 WL 3291801, at *4

(Tenn. Crim. App. Aug. 13, 2012) (concluding that counsel was not ineffective for failing

to challenge show-up when victims made unequivocal identifications at trial). Accordingly,

we conclude that the post-conviction court did not err in finding that trial counsel’s

performance was not deficient or prejudicial.

VI. Sentencing Range

The petitioner’s final allegation of deficient performance is the assertion that both his

trial counsel and his appellate counsel failed to argue that he was sentenced under the version

of Tennessee Code Annotated section 40-35-107(b)(4) in place in 2005 rather than 2003 2 and

that he should not have been sentenced as a Range III offender for the aggravated robbery.

The petitioner maintains that under State v. Horton, 880 S.W.2d 732 (Tenn. 1994) and

Tennessee Code Annotated section 40-35-107(b)(4), his two prior state convictions for

aggravated robbery should be treated as one conviction for the purpose of establishing range

because they occurred within one twenty-four hour period. He argues that cases holding

otherwise were decided after his sentencing hearing and cannot therefore be applied to his

case.

In 2003, Tennessee Code Annotated section 40-35-107(b)(4) provided:

Convictions for multiple felonies committed as part of a single

course of conduct within twenty-four (24) hours constitute one

2

Insofar as the petitioner alleges he was sentenced under the 2005 version of the Sentencing Act, his

allegation is refuted by the appellate opinion on direct appeal. Johnson, 2009 WL 2567729, at *16 n.3.

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(1) conviction for the purpose of determining prior convictions;

however, acts resulting in bodily injury or threatened bodily

injury to the victim or victims shall not be construed to be a

single course of conduct.3

The identical language appears in the 2003 version of Tennessee Code Annotated section

40-35-106, and the Sentencing Commission’s comments to section 107 note that “[a]part

from the numbers of prior felony convictions, the provisions of this section are the same as

§ 40-35-106 concerning multiple offenders.” The Sentencing Commission’s comments to

Tennessee Code Annotated section 40-35-106, in turn, elucidate how the merger rule should

be applied, and, more importantly, how violent crimes are excluded from the twenty-four-

hour merger rule. As an example, the Commission notes that “if the defendant was convicted

of robbing several people in the same store, such would constitute separate convictions for

enhancement purposes for a new violation of the law.” T.C.A. § 40-35-106 Sentencing

Comm’n Cmts. (2003). Accordingly, the Sentencing Commission’s comments indicate that

the rule the petitioner complains of was already firmly established at the time of his crimes.

Neither does case law, either at the time of his crime or at the present time, support

the petitioner’s contention. State v. Bailey, No. 01C01-9507-CR-00220, 1996 WL 234083,

at *2 (Tenn. Crim. App. May 9, 1996) (concluding that, while two prior attempted

aggravated robberies were part of a single course of conduct, they also threatened bodily

injury and there was no error in determining “that the two attempted aggravated robbery

convictions qualified as separate prior convictions for the purpose of sentencing this

Defendant as a multiple offender”); accord State v. Middlebrook, No. M2009-02276-CCA-

R3-CD, 2011 WL 198689, at *6-7 (Tenn. Crim. App. Jan. 11, 2011) (“Following our review,

we conclude that the statutory elements of robbery include a threat of bodily injury when the

State is required to prove that the defendant committed the act through violence or by putting

the person in fear.”); State v. Buchanan, No. M2007-02870-CCA-R3-CD, 2008 WL

4467185, at *5 (Tenn. Crim. App. Oct. 6, 2008) (“Both robbery and aggravated assault

contain elements that the defendant cause or threaten to cause bodily injury.”); see also State

v. Baker, 751 S.W.2d 154, 166 (Tenn. Crim. App. 1987) (rejecting, under prior statute, the

claim that two robberies completed in twenty-four hours were part of a single course of

conduct with no substantial change to the criminal objective).

Accordingly, we discern no error.

3

This statute currently excludes from the twenty-four-hour merger rule felonies for which the

statutory elements include serious bodily injury, bodily injury, threatened bodily injury, or threatened serious

bodiliy injury to the victim, as well as aggravated burglary. T.C.A. § 40-35-107(b)(4) (2010).

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VII. Cumulative Error

Finally, the petitioner argues that trial counsel’s cumulative errors deprived him of his

right to counsel under the Sixth Amendment of the United States Constitution and under

article I, section 9 of the Tennessee Constitution. “The cumulative error doctrine is a judicial

recognition that there may be multiple errors committed in trial proceedings, each of which

in isolation constitutes mere harmless error, but which when aggregated, have a cumulative

effect on the proceedings so great as to require reversal in order to preserve a defendant’s

right to a fair trial.” State v. Hester, 324 S.W.3d 1, 76 (Tenn. 2010). The petitioner’s

argument fails because the doctrine is only applicable where the accused has established

there was more than one error committed. Id. at 77; see also Porter v. State, No. M2012-

01139-CCA-R3-PC, 2013 WL 1197730, at *12 (Tenn. Crim. App. Mar. 26, 2013) (quoting

Leonard v. State, No. M2006-00654-CCA-R3-PC, 2007 WL 1946662, at *21 (Tenn. Crim.

App. July 5, 2007) for the proposition that “[o]ur Court has previously noted that a Petitioner

who has failed to show that he received constitutionally deficient representation on any single

issue may not successfully claim that his constitutional right to counsel was violated by the

cumulative effect of counsel’s errors”). The post-conviction court did not err in rejecting this

argument.

CONCLUSION

Based on the foregoing, we affirm the judgment of the post-conviction court.

However, we note that the judgment forms, while reflecting the petitioner’s conviction

offenses and the fact that he had a jury trial, do not have a check in the “Guilty” box. Under

Tennessee Rule of Criminal Procedure 36, “[a]fter giving any notice it considers appropriate,

the court may at any time correct clerical mistakes in judgments, orders, or other parts of the

record, and errors in the record arising from oversight or omission.” This rule has also been

applied when a defendant challenges the legality of the judgment. Cantrell v. Easterling, 346

S.W.3d 445, 449 (Tenn. 2011) (citing Wilkerson v. Carlton, No. E2007-02453-CCA-R3-HC,

2008 WL 4949227 (Tenn. Crim. App. Nov. 20, 2008)). Accordingly, we remand with

instructions for the post-conviction court to correct the judgment sheets.

_________________________________

JOHN EVERETT WILLIAMS, JUDGE

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