Andrew T. Lee v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

September 9, 2015 Session

ANDREW T. LEE v. STATE OF TENNESSEE

Appeal from the Circuit Court for Rutherford County

No. F-71612 Keith Siskin, Judge

No. M2014-02242-CCA-R3-PC – Filed January 18, 2016

_____________________________

In 2012, a Rutherford County jury found the Petitioner, Andrew T. Lee, guilty of

especially aggravated burglary, aggravated assault, tampering with evidence, evading

arrest, and resisting arrest. The trial court sentenced the Petitioner to a total effective

sentence of ten years in the Tennessee Department of Correction. The Petitioner filed a

petition seeking post-conviction relief, which the post-conviction court denied after a

hearing. On appeal, the Petitioner maintains that he received the ineffective assistance of

counsel and that he was denied his right to a speedy trial due to the delay between his

conviction and sentencing. After a thorough review of the record and applicable law, we

affirm the post-conviction court‟s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which THOMAS T.

WOODALL, P.J. and ROBERT L. HOLLOWAY, JR., J., joined.

Peter M. Zettersten, Brentwood, Tennessee, for the appellant, Andrew T. Lee.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant

Attorney General; Jennings H. Jones, District Attorney General; and Nathan S. Nichols,

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

OPINION

I. Facts

A Rutherford County grand jury indicted the Petitioner for especially aggravated

burglary, aggravated assault, tampering with evidence, evading arrest, resisting arrest,

and employing a firearm during the commission of a dangerous felony. These charges

alleged that the Petitioner entered the home of the victim, a woman with whom he had

shared a romantic relationship, and attacked the victim, and another man, who was the

victim‟s new romantic interest. On September 27, 2012, a jury convicted the Petitioner

on all charges except employing a firearm during the commission of a dangerous felony.

In the months following the trial, the Petitioner‟s trial attorney became ill and ultimately

died. The sentencing hearing was delayed and, ultimately, a new attorney was appointed

to represent the Petitioner during sentencing. The trial court held a sentencing hearing on

April 18, 2013, and sentenced the Petitioner to serve sentences of ten years for the

aggravated burglary conviction, ten years for the aggravated assault conviction, ten years

for the tampering with evidence conviction, eleven months and twenty-nine days for the

evading arrest conviction, and six months for the resisting arrest conviction, with all of

the sentences to be served concurrently, for an effective sentence of ten years in the

Tennessee Department of Correction.

Following the sentencing hearing, on April 30, 2013, the Petitioner signed a

waiver of his right to seek a new trial or an appeal. On April 14, 2014, the Petitioner

filed a petition for post-conviction relief, asserting that he had received the ineffective

assistance of counsel and that he was denied the right to a speedy trial due to the six-

month delay between his conviction and sentencing. On September 11, 2014, the post-

conviction court held a hearing on the petition where the parties presented the following

evidence: The Petitioner testified that he hired his trial attorney (“trial counsel”). The

jury convicted him on September 27, 2012, and he was sentenced on April 18, 2013. The

Petitioner stated that he was unable to make bail during the six-month interval between

the trial and his sentencing hearing. The Petitioner believed at the time that he would be

sentenced within thirty days of his conviction date pursuant to the Tennessee Rules of

“Appellate” Procedure.

The Petitioner testified that, in January 2013, he wrote the trial court requesting a

suspended sentence and enclosed a letter from his “Nashville attorney” notifying him that

trial counsel was deceased. The Petitioner explained that the Nashville attorney

represented him on a case in Davidson County. The Petitioner was waiting to be

sentenced in Rutherford County before being sentenced in Davidson County. At some

point, the Petitioner asked the Nashville attorney to check on the status of his sentencing

in Rutherford County, and the Nashville attorney learned that trial counsel had died on

January 18, 2013. The Petitioner recalled that he wrote the letter to the trial court the

week after he learned of trial counsel‟s death, “around January the 24th.”

The Petitioner testified that the trial court appointed a new attorney (“sentencing

counsel”) in February, and she met with the Petitioner on February 14, 2013, for “about

10 minutes, if that.” According to the Petitioner, sentencing counsel again met with the

Petitioner to review the presentence report. The Petitioner stated that sentencing counsel

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never reviewed or discussed the trial with him nor did she ever request the trial

transcripts. The Petitioner agreed that the delay in his sentencing was due to his trial

counsel‟s death but stated that the trial court never provided him with a reason for the

delay between the trial and the sentencing hearing.

The Petitioner testified that, at trial, trial counsel “did a pretty good job, but “could

have did better.” The Petitioner explained that he should not have been charged with

aggravated assault since the State never recovered the gun allegedly used in the offenses.

The Petitioner said that trial counsel also failed to call the Petitioner‟s daughter to testify.

As to sentencing counsel‟s representation, the Petitioner said that the two “got off on the

wrong foot” and that sentencing counsel wanted to “tell [him] what the court system

wanted to do for me instead of help me.” The Petitioner said he had not felt confident in

sentencing counsel‟s expertise or preparation for his sentencing hearing.

The Petitioner identified a letter he received from sentencing counsel identifying

an error in the “Sentencing findings of fact.” The document reflected a sentence of

twenty years when the Petitioner was sentenced to only ten years. The Petitioner

acknowledged that sentencing counsel found this error and corrected it but noted that she

failed to address an error related to enhancement factors. The enhancement factors listed

were redundant and inaccurate. The form twice listed enhancement factor (8), that the

defendant before trial or sentencing failed to comply with the conditions of sentencing

involving release into the community. See T.C.A. § 40-35-114(8). The Petitioner further

noted that, in addition to the redundancy, the factor was inapplicable because he was

never released into the community.

The Petitioner testified that he “wish[ed]” he could have raised this sentencing

error on appeal; however, when he sought to file a motion for new trial, he was informed

that he had waived his right to a new trial and his right to an appeal. The Petitioner

acknowledged that it was his signature on the April 30, 2013 waiver form. He explained

that sentencing counsel spent “about five minutes” reviewing the waiver with him and

that she only discussed parole with him rather than waiver. The Petitioner said he did not

read or understand the waiver because sentencing counsel told him to sign it since he

“couldn‟t make parole.” He said he believed that the waiver he signed was documenting

that he would be paroled in eighteen months. He denied knowing that he was waiving his

right to a new trial or an appeal. The Petitioner noted that there were three incorrect dates

in the waiver, indicating to him that sentencing counsel did not thoroughly review the

document with the Petitioner at the time he signed it.

The Petitioner testified that he and trial counsel talked extensively about appeal

options and that he told the trial court during the sentencing hearing that he wanted to file

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an appeal. Thus, he was surprised when he received the copy of the waiver in response to

his motion for a new trial.

On cross-examination, the Petitioner agreed that sentencing counsel did not force

him to sign the waiver of appeal. He stated that he did not read the document, he just

signed it. As to trial counsel‟s deficiencies, the Petitioner stated that trial counsel failed

to have one of his witnesses, the Petitioner‟s daughter, leave the courtroom and,

therefore, she could not be called to testify. When asked what his daughter would have

said, the Petitioner stated, “I have no idea.” The Petitioner stated that his daughter was

not present during these crimes but could have testified about the Petitioner‟s ongoing

relationship with the victim. The Petitioner agreed that, after learning that his daughter

was excluded from testifying, he could have chosen to testify about his relationship with

the victim but that he declined to do so. The Petitioner agreed that he never made a

demand for a speedy trial.

On redirect examination, the Petitioner agreed that he sent a letter to the trial court

on January 28, 2013, requesting to have his sentencing hearing “as soon as possible.”

The Petitioner sent another letter with the same request in February 2013. The Petitioner

maintained that, when he signed the waiver of his right to appeal, he believed that it

meant, “18 more months I would be home.” He stated that he relied on sentencing

counsel‟s advice when he signed the waiver.

On recross examination, the Petitioner confirmed that he was arrested while

fleeing the scene. He further agreed that he was convicted of aggravated assault on the

basis that he attacked the victim while enjoined by an existing order of protection. He

stated, however, that he was unaware of the order of protection because he and the victim

were dating at the time.

Sentencing counsel testified that she was appointed to represent the Petitioner and

later learned she was appointed because trial counsel could no longer represent the

Petitioner. Sentencing counsel first made copies of the court file and spoke with the

prosecutor on February 8, 2013. Sentencing counsel said that, upon learning that the

Petitioner was “disputing a plea to felony Schedule 6 in Madison county,” she called and

requested the Petitioner‟s criminal history from Madison County. She also requested the

Petitioner‟s probation file from his probation officer. On Sunday, February 12, 2013,

sentencing counsel went to the jail to meet with the Petitioner. She explained that she

went to the jail on the weekend because she felt it was important to make contact with the

Petitioner as soon as possible. She said that this first meeting was more than an hour, and

“it felt like the roles were a little reversed.” The Petitioner stated that he did not plead

guilty to the offense in Madison County because he was in federal custody at the time.

Sentencing counsel said that she thought this was a good avenue for further investigation

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because, if she could successfully attack the Madison County plea, the Petitioner would

be a Range I offender rather than a Range II offender at sentencing. The two discussed

the various agencies and people that sentencing counsel needed to contact in order to

attack the Madison County conviction. The two also discussed the Petitioner‟s

recommendation for sentencing, sentencing hearing strategy, and potential witnesses.

Sentencing counsel testified that, the following day, she researched statistics on

the charges as well as case law relevant to sentencing. Statistically she believed it would

be difficult, even if the Petitioner was Range I, for the Petitioner to “get” a three year

sentence because of the nature of the crimes. On February 14, 2013, sentencing counsel

met with one of the Petitioner‟s probation officers and received copies of the Madison

County booking photos and judgments. Sentencing counsel said that the booking photos

for the person who pled guilty in Madison County were of the Petitioner. She said the

Petitioner later also verified that the booking photos were of him.

Sentencing counsel testified that the Petitioner had asked her to make contact with

his brother, Dontavius Jones, as a witness for the sentencing hearing, and she called and

left Mr. Jones a voice message on February 21, 2013. Sentencing counsel spent much

effort in confirming the Petitioner‟s claim that he was in federal custody in 1997 at the

time of the Madison County plea, but she was unable to find any proof that the Petitioner

was in the federal system at the time the Madison County plea was entered. Sentencing

counsel returned to the jail on February 21, 2013, to meet with the Petitioner and advise

him of the work done on his case to date.

On February 22, 2013, sentencing counsel again called Mr. Jones and provided

him with a status update and advised him that the Petitioner wanted him to testify at the

sentencing hearing. Mr. Jones agreed to testify on the Petitioner‟s behalf and sentencing

counsel interviewed Mr. Jones briefly. Sentencing counsel returned to the jail to meet

with the Petitioner on March 13, 2013, to update him on her progress and research. The

Petitioner continued to insist that he was in federal custody even though there were no

records to confirm his assertion. During this meeting, sentencing counsel also provided

the Petitioner with a list of enhancement and mitigating factors and the “motion for

probation and suspended sentence.” Sentencing counsel said she had not yet filed the

motion, so she reviewed it with the Petitioner to give him the opportunity to make

suggestions. She made his recommended corrections and filed the motion the following

day. She explained that she did not normally file a motion for probation but did so at the

Petitioner‟s instruction.

Sentencing counsel testified that she continued to communicate with authorities in

Madison County in investigating the Petitioner‟s contention that he did not enter the plea

in Madison County. She met with the Petitioner briefly at the jail on March 21, 2013, to

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once again “[b]ring him up to date.” Sentencing counsel provided the Petitioner with the

document she had received from Madison County related to the 1997 plea. The

Petitioner continued to deny that he plead guilty. Later on this same day, sentencing

counsel learned that the sentencing hearing had been moved to April 5, 2013. She

contacted Mr. Jones by telephone and sent a letter to the Petitioner to notify both of them

of the date change.

Sentencing counsel testified that, on April 1, 2013, she received a letter from the

Petitioner requesting a bond hearing. That same day she drafted a motion to reduce bond

and filed it with the clerk‟s office. Sentencing counsel said that a motion to reduce bond

post-conviction can be made, but she had “not often” done so. Ultimately, the trial court

set the Petitioner‟s sentencing hearing and bond reduction hearing for April 18, 2013.

Sentencing counsel once again notified Mr. Jones and the Petitioner of the new court

date.

Sentencing counsel testified that she did not feel it was necessary to request a

transcript of the trial before the sentencing hearing. She explained, “The facts of the case

had already been decided. And that would be contained in the transcripts of the trial.

What we were looking at was purely legal at this point.” Sentencing counsel said that she

cross-examined the victim at the sentencing hearing and found the court file helpful in

preparing for cross-examination. She stated that she felt competent in her abilities to

adequately represent the Petitioner at the sentencing hearing based upon her review of the

record and legal research. Sentencing counsel said that she successfully argued for

concurrent sentencing at the hearing and upon receiving the sentencing order she found

an error and had the error corrected. Sentencing counsel acknowledged that the waiver

incorrectly listed the date of May 18, 2013, for the sentencing hearing rather than April

18, 2013. She described this as an “administrative error.”

Sentencing counsel testified that she met with the Petitioner on April 22 and 30,

2013. On April 22, sentencing counsel informed the Petitioner of the time frame for an

appeal or motion for new trial. She also discussed with him the implications of being

housed in different facilities and potential post-conviction issues. Sentencing counsel

denied telling the Petitioner that he would be out of jail in eighteen months. She said she

generally tells her clients that it is “more than likely” that the parole board will not

approve parole the first time. Sentencing counsel stated that the Petitioner appeared to

understand everything they reviewed during this April 22 meeting. The Petitioner told

sentencing counsel that he wanted to waive his right to a new trial motion and an appeal,

so sentencing counsel prepared a waiver and returned to the jail on April 30, 2013. At

this meeting, sentencing counsel reviewed with the Petitioner each of the judgments in

this case, and then she read aloud to him the waiver. Sentencing counsel said that the

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Petitioner stated “repeatedly” that he did not want a new trial or an appeal, and he signed

the waiver form.

On cross-examination, sentencing counsel testified that the Public Defender‟s

office was appointed to represent the Petitioner on January 9, 2013, and she was assigned

the case on February 8, 2013. She clarified that she first met with the Petitioner on

February 10, 2013, rather than February 12 as she had earlier stated.

On redirect examination, sentencing counsel read the following trial court findings

from the sentencing hearing:

The enhancement factors that the Court is going to find relevant in

this case are, one, that the offense involved more than one victim. Two, the

personal injuries inflicted upon or the amount of damage to the property

sustained or taken from the victim was particularly great. And, finally, the

Defendant before trial or sentencing failed to comply with the conditions of

a sentence involving release into the community.

And, basically, what happened on that was he was on bail for

another offense against this same lady. He was charged with committing

aggravated assault, which he was convicted of in this court, and domestic

assault.

And the charge was on 9 - - that‟s September 6th, 2011. And there

was an order of protection granted against him on September 19th, 2011.

Sentencing counsel agreed that the trial court‟s findings were different than those

delineated in the sentencing findings of fact and the duplication of factors in the findings

of fact was likely an error. She stated that, in her opinion, the errors in the findings of

fact, however, did not change the sentence imposed at the conclusion of the sentencing

hearing.

In a subsequent written order, the post-conviction court denied the Petitioner post-

conviction relief. It is from this judgment that the Petitioner appeals.

II. Analysis

The Petitioner asserts that he received the ineffective assistance of counsel and he

was denied his right to a speedy trial due to the almost seven-month delay between his

conviction and sentencing. The State responds that the Petitioner has failed to show he is

entitled to post-conviction relief. We agree with the State.

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In order to obtain post-conviction relief, a petitioner must show that his or her

conviction or sentence is void or voidable because of the abridgment of a constitutional

right. T.C.A. § 40-30-103 (2014). The petitioner bears the burden of proving factual

allegations in the petition for post-conviction relief by clear and convincing evidence.

T.C.A. § 40-30-110(f) (2014). Upon review, this Court will not re-weigh or re-evaluate

the evidence below; all questions concerning the credibility of witnesses, the weight and

value to be given their testimony, and the factual issues raised by the evidence are to be

resolved by the trial judge, not the appellate courts. Momon v. State, 18 S.W.3d 152, 156

(Tenn. 1999) (citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997)). A post-

conviction court‟s factual findings are subject to a de novo review by this Court;

however, we must accord these factual findings a presumption of correctness, which can

be overcome only when a preponderance of the evidence is contrary to the post-

conviction court‟s factual findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001).

A post-conviction court‟s conclusions of law are subject to a purely de novo review by

this Court, with no presumption of correctness. Id. at 457.

The right of a criminally accused to representation is guaranteed by both the Sixth

Amendment to the United States Constitution and article I, section 9, of the Tennessee

Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6

S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The

following two-prong test directs a court‟s evaluation of a claim for ineffectiveness:

First, the [petitioner] must show that counsel‟s performance was deficient.

This requires showing that counsel made errors so serious that counsel was

not functioning as the “counsel” guaranteed the [petitioner] by the Sixth

Amendment. Second, the [petitioner] must show that the deficient

performance prejudiced the defense. This requires showing that counsel‟s

errors were so serious as to deprive the [petitioner] of a fair trial, a trial

whose result is reliable. Unless a [petitioner] makes both showings, it

cannot be said that the conviction or [ ] sentence resulted from a breakdown

in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Melson, 772

S.W.2d 417, 419 (Tenn. 1989).

In reviewing a claim of ineffective assistance of counsel, this Court must

determine whether the advice given or services rendered by the attorney are within the

range of competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at

936. To prevail on a claim of ineffective assistance of counsel, “a petitioner must show

that counsel‟s representation fell below an objective standard of reasonableness.” House

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v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369

(Tenn. 1996)).

When evaluating an ineffective assistance of counsel claim, the reviewing court

should judge the attorney‟s performance within the context of the case as a whole, taking

into account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell,

753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court should avoid the

“distorting effects of hindsight” and “judge the reasonableness of counsel‟s challenged

conduct on the facts of the particular case, viewed as of the time of counsel‟s conduct.”

Strickland, 466 U.S. at 689-90. 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. Finally,

we note that a defendant in a criminal case is not entitled to perfect representation, only

constitutionally adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn.

Crim. App. 1996). In other words, “in considering claims of ineffective assistance of

counsel, „we address not what is prudent or appropriate, but only what is constitutionally

compelled.‟” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States v.

Cronic, 466 U.S. 648, 665 n.38 (1984)). 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).

“The fact that a particular strategy or tactic failed or hurt the defense, does not, standing

alone, establish unreasonable representation. However, deference to matters of strategy

and tactical choices applies only if the choices are informed ones based upon adequate

preparation.” House, 44 S.W.3d at 515 (quoting Goad, 938 S.W.2d at 369).

If the petitioner shows that counsel‟s representation fell below a reasonable

standard, then the petitioner must satisfy the prejudice prong of the Strickland test by

demonstrating “there is a reasonable probability that, but for counsel‟s unprofessional

errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at

694; Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability

must be “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at

694; Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994).

A. Right to a Speedy Trial

The Petitioner contends that the trial court denied his constitutional right to a

speedy trial by waiting more than six months to conduct the sentencing hearing in this

case. In its order denying relief, the trial court made the following findings about the

delay:

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No formal motion for a speedy trial was ever filed. The jury

returned its verdict on September 28, 2012. The sentencing hearing

occurred on April 18, 2013. During this interval, two major events

occurred: (1) the Trial Judge retired, and the undersigned Judge was

appointed by the Governor to fill the vacancy in office on October 29,

2012; and (2) the Petitioner‟s trial attorney, [ ], fell ill and died on January

27, 2013. The Trial Judge‟s retirement caused a delay, because the

undersigned Judge determined that the Trial Judge was better equipped to

preside over the sentencing hearing, having recently presided over the trial;

an Order was formally issued to that effect on December 17, 2012. [Trial

counsel‟s] illness and death caused a delay, because he missed some Court

hearings, and the Public Defender‟s Office was appointed in his stead on

January 9, 2013. [Sentencing counsel] learned that the case had been

assigned to her on February 8, and immediately began preparing for the

hearing.

The trial court concluded that the trial judge‟s retirement and the death of trial counsel

constituted “good cause” for the delays and that the Petitioner had failed to show the

delays unduly prejudiced him.

The State asserts that the Petitioner has waived any right to a speedy trial

challenge for failure to raise this issue on direct appeal. We agree with the State that a

post-conviction petitioner waives a speedy trial claim if the petitioner did not raise the

issue on direct appeal. T.C.A. § 40-30-106(g); See Givens v. State, 702 S.W.2d 578, 580

(Tenn. Crim. App. 1985). In this case, the Petitioner waived his right to appeal and,

therefore, has waived any claim that he was denied his right to a speedy trial. See Black

v. State, 794 S.W.2d 752, 756 (Tenn. Crim. App. 1990) (holding a ground for relief is

waived if a petitioner knowingly failed to present the issue for review before a court of

competent jurisdiction in which the ground could have been presented). Accordingly, we

conclude that the Petitioner has waived this issue.

B. Ineffective Assistance of Counsel

The Petitioner asserts that he received the ineffective assistance of counsel at trial

and sentencing. The Petitioner contends that trial counsel was ineffective for failing to

sequester the Petitioner‟s daughter as a witness at trial, thereby causing her to be

excluded from testifying. The Petitioner contends that sentencing counsel failed to

adequately prepare for the sentencing hearing, failed to adequately advise him about the

waiver of his right to seek a new trial and to appeal, and failed to object to the erroneous

application of enhancement factors at sentencing.

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1. Trial Counsel

The Petitioner asserts that trial counsel‟s representation was deficient because trial

counsel failed to ask the Petitioner‟s daughter to leave the courtroom during the trial

pursuant to the rule of witness exclusion, thus preventing her from testifying. In his brief,

the Petitioner argues that his daughter would have testified about his ongoing romantic

relationship with the victim, which would have affected the victim‟s credibility because

the victim testified at trial that her relationship with the Petitioner had ended before the

time of the assault.

The post-conviction court made the following findings in its order:

Although the Petitioner believes that [trial counsel] did a “pretty good job”

overall, he complains that [trial counsel] failed to comply with T.R.E. 615

(exclusion of witnesses), resulting in the Petitioner‟s [daughter] not being

allowed to testify; indeed, [trial counsel] failed to instruct the Petitioner‟s

[daughter] to step out of the courtroom when T.R.E. 615 was invoked, so

she was present for all of the testimony, and the Trial Judge did not allow

her to testify. However, the Petitioner acknowledged that he has no idea as

to what his [daughter] would have said, had she been permitted to testify.

Furthermore, the Petitioner acknowledged that his [daughter] was not

present at the time of the assault. The Petitioner believes, however, that his

[daughter] could have testified that he and the victim were still in a

relationship at the time of the assault, and that there was ongoing bickering

between him and the victim at that time.

The evidence does not preponderate against the post-conviction court‟s findings.

The Petitioner testified that he did not know what his daughter would have said at trial

had she been allowed to testify, and she did not testify at the post-conviction hearing. To

succeed on a claim of ineffective assistance of counsel for failure to call a witness at trial,

a petitioner should present that witness at the post-conviction hearing. See 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.” Id.

Accordingly, the Petitioner has failed to prove by clear and convincing evidence

that the omission of his daughter‟s testimony prejudiced him at trial. The Petitioner is not

entitled to relief.

B. Sentencing Counsel

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The Petitioner asserts that sentencing counsel: (1) failed to adequately prepare for

the sentencing hearing; (2) failed to adequately advise him about the waiver of his right

to seek a new trial and to appeal, and (3) failed to object to the erroneous application of

enhancement factors at sentencing.

1. Preparation for Sentencing Hearing

The Petitioner argues that sentencing counsel‟s performance was deficient in that

she failed to adequately prepare for the sentencing hearing because she did not request a

transcript of the trial. The post-conviction court made the following findings in its

written order:

While the most prudent course would have been for [sentencing counsel] to

obtain the trial transcript, this omission, when viewed in light of her overall

strategy, was not “so serious as to fall below an objective standard of

„reasonableness under prevailing professional norms.‟” The thrust of

[sentencing counsel]‟s strategy was to attack the Petitioner‟s Madison

County conviction, and thereby persuade the Court that the Petitioner

qualified as a Range I offender. [The Petitioner] approved of this strategy,

and [sentencing counsel] made every possible effort to succeed in that

regard. Counsel will not be deemed ineffective merely because a different

strategy or procedure might have produced a more favorable result.

Moreover, [sentencing counsel] explored other potential avenues of defense

for the sentencing hearing, and fully apprised herself of the facts and law

applicable to the Petitioner‟s case. Finally, it bears mentioning that

[sentencing counsel] obtained a good result for the Petitioner under the

circumstances, insomuch as she successfully argued for concurrent

sentencing, over the State‟s objection.

(citations omitted).

The evidence does not preponderate against the trial court‟s findings. Sentencing

counsel testified about her extensive investigation into the Petitioner‟s federal

incarceration in an attempt to attack a prior conviction used to classify the Petitioner as a

Range II offender. She and the Petitioner discussed this strategy, and he continued to

maintain that he did not enter the Madison County guilty plea despite all evidence to the

contrary. Sentencing counsel effectively researched sentencing law and successfully

argued against the State‟s position that the Petitioner should receive consecutive

sentences. The Petitioner has failed to meet his burden of proving by clear and

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convincing evidence that sentencing counsel was deficient in this regard. Therefore, he is

not entitled to relief as to this issue.

2. Waiver

The Petitioner argues that sentencing counsel was deficient for failing to properly

advise him about the waiver of his rights to seek a new trial and to appeal, and the

consequences of his waiving these rights. The Petitioner also argues that the waiver is

facially void due to the errors in the date of the Petitioner‟s conviction and sentencing

date. About this issue, the post-conviction court made the following findings:

The Court has found [sentencing counsel] to be more credible than the

Petitioner regarding the content and duration of their April 22 and April 30,

2013 meetings concerning the waiver, and specifically finds that the

Petitioner made a reasoned, informed decision to sign the waiver after

having over a week to weigh his options. In essence, based on information

provided by [sentencing counsel] regarding the likely timetable for an

appeal and the Petitioner‟s inability to pursue parole and an appeal

simultaneously, [the Petitioner] decided that waiving his right to appeal

would provide him with the earliest opportunity to get out of prison. [The

Petitioner] was not coerced into signing the waiver. [Sentencing counsel]

read the waiver form to [the Petitioner], word for word. [The Petitioner]‟s

failure to read the form himself prior to signing it does not defeat its

validity. . . .

As for the waiver form itself, the typographical errors do not

undermine the actual substance of the waiver, or the fact that the form

reflects a voluntary, knowing decision made by the Petitioner.

The evidence does not preponderate against the trial court‟s findings. Counsel met

with the Petitioner on two occasions to discuss a waiver of the right to seek (through

motion) a new trial and to file a notice of appeal. After the Petitioner expressed his desire

to waive these rights, sentencing counsel drafted the document and returned a week later

with the waiver. Counsel discussed each of the Defendant‟s convictions with him and

then read the waiver, in its entirety, aloud to the Petitioner. As to the errors in the

conviction and sentencing date in the waiver, the Petitioner makes no argument as to how

these clerical errors in the waiver prejudiced him. The Petitioner has not shown by clear

and convincing evidence that Counsel was deficient; therefore, he is not entitled to relief.

3. Enhancement Factors

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The Petitioner asserts that sentencing counsel failed to object to “the erroneous

application of certain” enhancement factors and, therefore, he was sentenced at the top of

the applicable range. In its written order denying relief, the post-conviction court found

that the Petitioner‟s attack on the application of enhancement factors was not a

cognizable post-conviction claim. To the extent the Petitioner argues against the

application and weight of the factors, we agree. We now consider whether sentencing

counsel was deficient in her failure to object to “the erroneous application of certain”

enhancement factors.

At the sentencing hearing, the trial court found that the offense involved more than

one victim, the personal injury inflicted upon the victim was particularly great, and

before trial or sentencing, the Petitioner failed to comply with the conditions of a

sentence involving release into the community. In the “Sentencing Findings of Fact,”

issued after the sentencing hearing, the enhancement factor for failing to comply with the

conditions of release into the community is listed twice and omits the factor the trial court

announced at the hearing that the personal injuries were particularly great. As to the

“Sentencing Findings of Fact,” we conclude that this was an administrative error and the

trial court applied the three enhancement factors as announced at the time the Petitioner

was sentenced.

As to the Petitioner‟s contention that sentencing counsel failed to object to the trial

court‟s application of enhancement factor (8), that the Petitioner had failed to comply

with the conditions of release into the community, we conclude that the Petitioner has

failed to show how he was prejudiced by her failure to object1. Our review of the record

before us does not show that the Petitioner failed to comply with a sentence involving

release into the community, factor (8), rather the evidence showed that he committed an

offense while released on bail, factor (13). See T.C.A. § 40-35-114 (8) and (13)(A)

(2014). The trial court correctly applied two other factors, factor (3), the offense

involved more than one victim, and factor (6) the personal injury or damage to the victim

was particularly great. See T.C.A. § 40-35-114 (3) and (6). We note that “misapplication

of an enhancement or mitigating factor does not invalidate the sentence.” State v. Bise,

380 S.W.3d 682, 706 (Tenn. 2012). Accordingly, the Petitioner has failed to show by

clear and convincing evidence that he is entitled to post-conviction relief.

III. Conclusion

1

We note that, although she did not object after the trial court announced its ruling,

during argument at the conclusion of the proof at the sentencing hearing, sentencing counsel

acknowledged that the Petitioner was on bail at the time of the offense but clarified that the

Petitioner was not at that time serving a sentence involving release into the community.

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After a thorough review of the record and relevant authorities, we conclude that

the post-conviction court properly denied the Petitioner‟s petition for post-conviction

relief. Accordingly, we affirm the judgment of the post-conviction court.

_________________________________

ROBERT W. WEDEMEYER, JUDGE

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