Joe Turner v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs January 21, 2016

JOE TURNER v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Knox County

No. 98504 Bob R. McGee, Judge

No. E2015-00849-CCA-R3-PC – Filed March 8, 2017

The Petitioner, Joe Turner, filed a petition in the Knox County Criminal Court seeking

post-conviction relief from his convictions of two counts of aggravated rape, one count of

especially aggravated kidnapping, one count of aggravated assault, and the accompanying

effective sentence of one hundred years in the Tennessee Department of Correction. The

Petitioner alleged that his appellate counsel was ineffective by failing to appeal the trial

court‟s refusal to admit potentially exculpatory DNA evidence. After a hearing, the post-

conviction court denied relief. Upon review, we affirm the judgment of the post-

conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER and CAMILLE R. MCMULLEN, JJ., joined.

Gerald L. Gulley, Jr., Knoxville, Tennessee, for the Appellant, Joe Turner.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior

Counsel; Charme Allen, District Attorney General; and Philip H. Morton, Assistant

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

OPINION

I. Factual Background

On direct appeal, this court summarized the proof adduced at trial as follows:

[T]he victim, A.T., testified that at the time of the offenses

she was addicted to drugs and alcohol but that she had been

“sober” for more than a year. The victim said that she met

the [Petitioner] on Keith Avenue one to one and one-half

months prior to the instant offenses. She and the [Petitioner]

started a relationship, and they occasionally used crack

cocaine and alcohol.

In August 2006, the victim was hired to clean rooms at

the Best Value Inn in exchange for room and board. The

[Petitioner] stayed with her. He promised to look for

employment; however, after job searching, he often came

back to the room drunk or with crack cocaine.

The victim testified that at times the [Petitioner] was

violent. He took her belongings and threatened to burn them.

He would also “strip [her]” so that she was unable to leave.

He frequently grabbed her arms and physically restrained her.

She said she did not want to be with the [Petitioner], but she

was afraid of him.

The victim worked at the motel for one week before

her job was terminated on August 16, 2006. The night before

she lost her job, the [Petitioner] kept the victim awake until

3:00 a.m. “ranting and raving,” making it difficult for her to

work the next day. The victim said that on August 16, the

[Petitioner] left to look for a job, and she began cleaning

rooms. Her boss called her downstairs and told her he had to

“let her go.” The victim asked to be given a reason for her

dismissal, and her boss responded that the [Petitioner] had

been harassing the guests. The victim asked if she could

continue to stay and work at the motel if she evicted the

[Petitioner], but her boss told her that they both needed to

leave. The victim left the [Petitioner‟s] belongings at the

motel because she was unable to carry them. She told the

motel clerk that the [Petitioner] would return later for his

belongings.

At 5:00 or 5:30 p.m., after arranging to stay with a

woman who lived on Keith Avenue, the victim went to a

nearby convenience store. While she was there, the

[Petitioner] confronted her. He was angry and cursing

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because she had left his belongings at the motel. She told him

that the relationship was not working and that his behavior

had cost her a job and a place to stay. The victim left the

store and went to the house where she was staying.

At 10:00 or 11:00 p.m., the victim returned to the store

and bought a quart of beer. When she walked out of the store,

the [Petitioner] grabbed the “neck area” of her shirt with one

hand. In his other hand, he had an open Buck knife. The

[Petitioner] repeatedly called the victim a “bitch.” He held

the knife to her throat, threatened to kill her, and dragged her

to a dirt pile behind the store. The [Petitioner] told her that

“no one else was going to have [her]” and threatened to “rape

[her] dead body.” Hoping to get the [Petitioner] to stop, the

victim told him that God was watching them. The

[Petitioner] responded by hitting both sides of her head and

pushing her onto the dirt pile. The victim said the [Petitioner]

was angrier than she had ever seen him.

The [Petitioner] ordered the victim to remove her

clothes, and she reluctantly complied. She pled with the

[Petitioner] to let her go. He used profanity, strangled her,

and kept the knife near her face and neck. The victim briefly

lost consciousness while the [Petitioner] strangled her. After

the victim‟s clothes were removed, the [Petitioner] penetrated

her vagina with his penis then ejaculated on her face. The

[Petitioner] laughed, kicked dirt on her, and ordered her to get

dressed.

The [Petitioner] then forced the victim to go to an

abandoned house which was dark and smelled of urine. The

[Petitioner] pushed the knife into her neck and ordered the

victim to lie on a blue couch that was in the house. When she

complied, he penetrated her again.

Afterward, the [Petitioner] appeared to be asleep.

When the victim saw that it was getting light outside, she

squirmed out from under the [Petitioner] and stood. She told

him she would not tell police about the rapes if he allowed

her to leave. The [Petitioner] allowed her to leave, but he

followed her out of the house. She found a telephone and

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called 911. The victim said she was disoriented, confused,

weak, and had trouble breathing because of the strangulation.

An ambulance arrived and transported the victim to

Baptist Hospital where she was examined. Later, she went to

an out-of-county domestic violence shelter because she was

afraid of the [Petitioner]. The victim stated that the ordeal

lasted from 10:30 p.m. on August 16, 2006, until 7:30 a.m. on

August 17, 2006.

The victim said that the [Petitioner] always carried a

knife and that he liked to “flip” knives at odd times, such as

when he watched television. Because of the strangulation,

she had trouble swallowing for a month. She said that she

had bruises and scrapes and that she healed slowly. She also

stated that “mentally those scars are a lot deeper.” She

acknowledged that she had previously had consensual sex

with the [Petitioner] but maintained that she did not consent

on the night of the offenses.

Ginger Evans testified that on August 17, 2006, she

was called to Baptist Hospital Emergency Department to

perform a sexual assault forensic examination on the victim.

When Evans first saw the victim, she was curled in a “fetal

position” on an examination table. She was crying and was

clearly upset. The victim told Evans that she was scared, and

she asked Evans to find her a safe place to stay.

The victim told Evans that she had been sexually

assaulted and strangled by the [Petitioner]. Evans said that

the victim complained of pain and that she had marks and

scratches on her body. Evans stated that the victim had

broken blood vessels in her eyes and significant bruises on

her neck, ears, and chin[,] which were consistent with

strangling. Evans found dirt in various places on the victim‟s

body, including her genital area, which could have been

consistent with the victim being thrown on a pile of dirt.

Additionally, Evans collected swabs from the victim‟s face

and genital area. When she examined the victim‟s genital

area, she saw redness and excoriation, which she described as

a tearing away of the top layers of skin where the victim‟s

legs connected with her pubic bone.

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Kimberly Bryant, a Tennessee Bureau of Investigation

[(TBI)] forensic scientist, testified that the swab from the

victim‟s face revealed the presence of limited spermatazoa.

She said that the [Petitioner‟s] genetic material was present in

the swab.

Knoxville Police Department Investigator Steve Sill

testified that he was working in the Violent Crimes Unit

around 7:30 a.m. on August 17, 2006, when he received a call

to respond to Baptist Hospital to investigate a rape complaint.

When he arrived at the hospital, the victim was “very

emotional, scared, upset. Obviously in some type of a crisis.”

Investigator Sill said the victim had bruises on her face, neck,

arms, and legs, which corroborated her story.

Later that day, Investigator Sill went to the

convenience store where the offenses occurred. He noticed a

depression on the dirt pile behind the store. He walked the

neighborhood and found an abandoned blue house and couch,

which matched the victim‟s descriptions.

State v. Joe Michael Turner, No. E2009-00069-CCA-R3-CD, 2010 WL 3706434, at *1-3

(Tenn. Crim. App. at Knoxville, Sept. 22, 2010) (footnote omitted).

A jury convicted the Petitioner of two counts of aggravated rape, one count of

especially aggravated kidnapping, three counts of aggravated kidnapping, and one count

of aggravated assault. Id. at *3. The trial court sentenced the Petitioner as a persistent

offender to consecutive sentences of fifty years for the aggravated rape convictions. Id.

The trial court ordered the Petitioner to serve a fifty-year sentence for the especially

aggravated kidnapping conviction to be served concurrently with the sentence for the

second aggravated rape conviction. Id. “Finally, the trial court sentenced the [Petitioner]

as a career offender to thirty years for each aggravated kidnapping conviction and fifteen

years for the aggravated assault conviction and ordered that those sentences be served

concurrently with the other sentences, for a total effective sentence of one hundred

years.” Id.

On direct appeal, the Petitioner challenged the length of the individual sentences

and the imposition of consecutive sentencing. Id. at *1. Upon review, this court

concluded that the aggravated kidnapping convictions should be merged into the

especially aggravated kidnapping conviction. Id. This court affirmed the judgments of

the trial court in all other respects. Id.

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Thereafter, the Petitioner filed a petition for post-conviction relief, alleging among

other claims that his appellate counsel was ineffective by failing to challenge the trial

court‟s exclusion of evidence that male DNA detected on a vaginal swab from the victim

did not match the Petitioner‟s DNA.

At the post-conviction hearing, the Petitioner said that trial counsel represented

him for approximately one year. Trial counsel occasionally spoke with the Petitioner,

who was incarcerated in Knox County, by telephone and met with him only twice. The

Petitioner said that trial counsel did not sufficiently investigate the case or discuss the

case with him. The Petitioner received copies of discovery from the trial court, not from

trial counsel.

The Petitioner said that on the day of trial, he saw a TBI report on DNA analysis

on the desk in front of trial counsel. The Petitioner had never seen the report. The report

stated that a swab taken from the victim‟s vagina as part of the rape kit revealed DNA

from an unknown male contributor and did not match the Petitioner. Trial counsel did

not introduce the report during trial and did not question any of the witnesses about the

report. The Petitioner opined that the report would have made a difference in the jury‟s

verdict and in the sentences he received.

The Petitioner testified that appellate counsel met him only once and did not

discuss the appeal with him.1 The Petitioner wrote appellate counsel letters about the

issues he wanted raised on appeal and when he did not receive a response, wrote a letter

complaining about appellate counsel to the Board of Professional Responsibility. The

Petitioner said that appellate counsel did not send him a copy of the appellate briefs or

this court‟s opinion on his direct appeal. The Petitioner said that after the brief was filed,

appellate counsel explained that he did not raise an issue about the DNA evidence

because trial counsel failed to preserve the issue in the trial court. The Petitioner said that

trial counsel challenged the exclusion of DNA evidence at trial and in the motion for new

trial.

On cross-examination, the Petitioner said that he did not realize that his attorneys

were allowed to make tactical and strategic decisions about his case and that they were

not required to comply with all of his requests.

Trial counsel testified that he had practiced law for twenty-one years; the first ten

years he was a prosecutor, and the next eleven years were primarily in criminal defense.

Regarding the exclusion of the DNA evidence, trial counsel said that the TBI report

1

The parties agreed that appellate counsel was not available to testify at the post-conviction hearing

because he had retired from the practice of law. The post-conviction court further stated that appellate

counsel had moved to another state.

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reflected that male DNA on the vaginal swab taken from the victim did not match the

Petitioner. Trial counsel recalled that the trial court made a pretrial ruling that evidence

that DNA from an unknown male was found on the vaginal swab was not admissible

because it was not relevant. Trial counsel raised the trial court‟s exclusion of the DNA

evidence on the vaginal swab in the motion for new trial.

Trial counsel recalled that the Petitioner attempted to have him “fired” on the

morning of trial and that shortly after the trial was concluded, the trial court relieved him

as counsel because counsel and the Petitioner‟s relationship had deteriorated.

On cross-examination, trial counsel said that he was prepared for trial. The

defense was that the sex was consensual, and identity was not an issue. Trial counsel

acknowledged that the Petitioner‟s DNA was found on the victim‟s face, which

corroborated her testimony that the Petitioner ejaculated on her face. Additionally, the

victim testified that the Petitioner raped her on a dirt pile behind a convenience store,

which was corroborated by Detective Still‟s testimony that he saw an indentation in the

dirt pile.

At the conclusion of the hearing, the post-conviction court recalled that the State‟s

case against the Petitioner was “very strong,” that the victim was a “convincing” and

“impressive” witness, and that forensic evidence supported her testimony. The court

stated:

There wasn‟t much of anything anybody could do

about the DNA. I ruled on it – as I recall, I think I kept out

the parts that did not name the [Petitioner], under the theory

of the Rape Shield Statute. And I would still stand on that.

There was a time – there used to be a time when,

before we had DNA, if there was some semen found in a

victim, or on a victim, some questioning was permitted about

recent sexual activity, perhaps with other people, because that

would raise the question of the identity of the person who left

that semen there. But that – that issue disappeared with . . .

DNA evidence, so . . . . There is no need to bring in any other

evidence of any other kind of sexual activity.

Regarding appellate counsel, the post-conviction court stated that

The only specific issue that‟s been raised in that

respect was that he didn‟t argue the DNA issue on appeal.

But this Court‟s satisfied that . . . it would have done no good

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to do so. And his failure to do so was not prejudicial to the

[Petitioner].

The post-conviction court found that the Petitioner had failed to prove that either

his trial counsel or his appellate counsel was ineffective. On appeal, the Petitioner

challenges only the post-conviction court‟s ruling regarding the effectiveness of appellate

counsel.

II. Analysis

To be successful in a claim for post-conviction relief, a petitioner must prove the

factual allegations contained in the post-conviction petition by clear and convincing

evidence. See Tenn. Code Ann. § 40-30-110(f). “„Clear and convincing evidence means

evidence in which there is no serious or substantial doubt about the correctness of the

conclusions drawn from the evidence.‟” State v. Holder, 15 S.W.3d 905, 911 (Tenn.

Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.

1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded

their testimony, and the factual questions raised by the evidence adduced at trial are to be

resolved by the post-conviction court as the trier of fact. See Henley v. State, 960

S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court‟s findings of fact are

entitled to substantial deference on appeal unless the evidence preponderates against

those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

A claim of ineffective assistance of counsel is a mixed question of law and fact.

See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction

court‟s findings of fact de novo with a presumption that those findings are correct. See

Fields, 40 S.W.3d at 458. However, we will review the post-conviction court‟s

conclusions of law purely de novo. Id.

When a petitioner seeks post-conviction relief on the basis of ineffective

assistance of counsel, “the petitioner bears the burden of proving both that counsel‟s

performance was deficient and that the deficiency prejudiced the defense.” Goad v.

State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668,

687 (1984)). To establish deficient performance, the petitioner must show that counsel‟s

performance was below “the range of competence demanded of attorneys in criminal

cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the

petitioner must show that “there is a reasonable probability that, but for counsel‟s

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694. Moreover,

[b]ecause a petitioner must establish both prongs of the

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test, a failure to prove either deficiency or prejudice provides

a sufficient basis to deny relief on the ineffective assistance

claim. Indeed, a court need not address the components in

any particular order or even address both if the [petitioner]

makes an insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697). The same test is used to

determine the effectiveness of trial counsel and appellate counsel. See Carpenter v. State,

126 S.W.3d 879, 886 (Tenn. 2004).

This court has previously observed:

“[F]ailure to preserve and/or assert all arguable issues on

appeal is not per se ineffective assistance of counsel, since the

failure to do so may be a part of the counsel‟s strategy of

defense. Counsel is not constitutionally required to argue

every issue on appeal, or present issues chosen by his client.

The determination of which issues to present on appeal is a

matter of counsel‟s discretion.”

State v. Matson, 729 S.W.2d 281, 282 (Tenn. Crim. App. 1986) (quoting State v.

Swanson, 680 S.W.2d 487, 491 (Tenn. Crim. App. 1984)). Moreover, “[a]ppellate

counsel are not constitutionally required to raise every conceivable issue on appeal.”

Carpenter, 126 S.W.3d at 887. Generally, “appellate counsel‟s professional judgment

with regard to which issues will best serve the [Petitioner] on appeal should be given

considerable deference[, and this court] should not second-guess such decisions, and

every effort must be made to eliminate the distorting effects of hindsight.” Id.

Our supreme court has set forth the following “non-exhaustive list” of factors

which “is useful in determining whether an attorney on direct appeal performed

reasonably competently in a case in which counsel has failed to raise an issue”:

1) Were the omitted issues “significant and obvious”?

2) Was there arguably contrary authority on the omitted

issues?

3) Were the omitted issues clearly stronger than those

presented?

4) Were the omitted issues objected to at trial?

5) Were the trial court‟s rulings subject to deference on

appeal?

6) Did appellate counsel testify in a collateral proceeding as

to his appeal strategy and, if so, were the justifications

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reasonable?

7) What was appellate counsel‟s level of experience and

expertise?

8) Did the petitioner and appellate counsel meet and go over

possible issues?

9) Is there evidence that counsel reviewed all the facts?

10) Were the omitted issues dealt with in other assignments

of error?

11) Was the decision to omit an issue an unreasonable one

which only an incompetent attorney would adopt?

Id. at 888. “A petitioner alleging ineffective assistance of appellate counsel must prove

both that (1) appellate counsel was objectively unreasonable in failing to raise a particular

issue on appeal, and (2) absent counsel‟s deficient performance, there was a reasonable

probability that the petitioner‟s appeal would have been successful.” Michael Fields v.

State, No. E2015-01850-CCA-R3-PC, 2016 WL 5543259, at *8 (Tenn. Crim. App. at

Knoxville, Sept. 29, 2016) (citing Smith v. Robbins, 528 U.S. 259, 285-86 (2000)), perm.

to appeal denied, (Tenn., Jan. 19, 2017).

The Petitioner makes a general complaint that appellate counsel should have

challenged the trial court‟s exclusion of evidence that the male DNA detected on the

victim‟s vaginal swab did not match the Petitioner‟s DNA. The State maintains that

appellate counsel‟s decision to omit the issue was based on “sound professional

judgment” because the evidence was inadmissible under the “rape shield law.” We agree

with the State.

Our supreme court has explained that “[r]ape shield laws were adopted in response

to anachronistic and sexist views that a woman who had sexual relations in the past was

more likely to have consented to sexual relations with a specific criminal defendant.”

State v. Sheline, 955 S.W.2d 42, 44 (Tenn. 1997). The rape shield laws were designed to

prevent “the trial of the rape victim based on her past sexual conduct.” Id. Tennessee‟s

rape shield rule, Tennessee Rule of Evidence 412, “limits the admissibility of evidence

about the prior sexual behavior of a victim of a sexual offense[] and establishes

procedures for determining when evidence is admissible.” Id.; see also State v. Douglass

Leon Lyle, No. E2012-00468-CCA-R3-CD, 2013 WL 1281857, at *12 (Tenn. Crim.

App. at Knoxville, Mar. 28, 2013). “Tennessee Rule of Evidence 412 permits [an

accused] to introduce specific instances of a victim‟s sexual behavior only if the

prosecutor or victim presents evidence during the trial regarding the victim‟s sexual

behavior.” State v. Mustapha Boutchiche, No. E2007-00473-CCA-R3-CD, 2009 WL

102949, at *6 (Tenn. Crim. App. at Knoxville, Jan. 12, 2009). In determining whether

the contested evidence is admissible, a court must balance “the evidence‟s probative

value against the harm that disclosure will cause to the victim. This balance includes

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consideration of the harmful effect the proof may have on the victim.” Tenn. R. Evid.

412, Advisory Comm‟n Cmts. Essentially, “Rule 412 is a rule of relevance and is written

as a rule of exclusion.” State v. Brown, 29 S.W.3d 427, 430 (Tenn. 2000). “As with

other evidentiary rulings, the admissibility of the evidence [under Rule 412] rests in the

discretion of the trial court.” Sheline, 955 S.W.2d at 46.

In order for the evidence to be admissible under the rule, the accused generally

must file no later than ten days prior to trial a written motion seeking to offer such

evidence, and the “motion shall be accompanied by a written offer of proof, describing

the specific evidence and the purpose for introducing it.” Tenn. R. Evid. 412(d).

Tennessee Rule of Evidence 412(c) provides in pertinent part that

[e]vidence of specific instances of a victim‟s sexual behavior

is inadmissible unless admitted in accordance with the

procedures in subdivision (d) of this rule, and the evidence is:

....

(4) If the sexual behavior was with persons other than the

accused,

(i) to rebut or explain scientific or medical evidence, or

(ii) to prove or explain the source of semen, injury, disease, or

knowledge of sexual matters, or

(iii) to prove consent if the evidence is of a pattern of sexual

behavior so distinctive and so closely resembling the

accused‟s version of the alleged encounter with the victim

that it tends to prove that the victim consented to the act

charged or behaved in such a manner as to lead the defendant

reasonably to believe that the victim consented.

On appeal, the Petitioner contends that one of his “defense theories was that the

victim had a history of drug use and prostitution, and that the interaction of [the

Petitioner] and the victim was of a commercial nature in which the presence of [the

Petitioner‟s] DNA resulted from consensual activity by the victim.” The Petitioner

argues that the evidence of an unknown male‟s sperm on the victim‟s vaginal swab

buttressed this claim and was therefore admissible under Rule 412. The State responds

that allowing the Petitioner to adduce proof that the victim had sexual intercourse with

another man “is precisely the type of proof that Rule 412 is designed to regulate.”

Therefore, the State contends that this issue would not have been successful on direct

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appeal. We agree with the State.

We note that the record reveals the Petitioner never claimed at trial or at the post-

conviction hearing that the sexual encounter with the victim was a “commercial

transaction” or that the victim was a prostitute;2 instead, he argued that he and the victim

were involved in a relationship and that the sex was consensual. In his post-conviction

petition and at the post-conviction hearing, the Petitioner merely raised a general

challenge to the exclusion of the unknown male DNA evidence, contending that appellate

counsel was ineffective because he was aware of the issue and should have raised it on

appeal. A party is bound by the evidentiary theory argued to the post-conviction court

and may not change or add theories on appeal. State v. Alder, 71 S.W.3d 299, 303 (Tenn.

Crim. App. 2001). Accordingly, we are not required to address issues raised for the first

time on appeal. State v. Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim. App. 1996).

We agree with the post-conviction court that the Petitioner has failed to show that

he would have been successful on appeal if appellate counsel had raised the issue of the

trial court‟s exclusion of the DNA evidence. We note that although this specific issue has

not been addressed in this jurisdiction, another jurisdiction has held that “evidence of

unknown male DNA falls squarely into the general prohibition of Rule 412.” Pribie v.

State, 46 N.E.3d 1241, 1247 (Ind. Ct. App. 2015). In other words, the presence of an

unknown male‟s sperm in a victim‟s vagina is evidence of sexual behavior as defined by

Rule 412. See Tenn. R. Evid. 412(a). Evidence that the victim may have had sexual

intercourse with another man did not negate the fact that the Petitioner‟s sperm was found

on the victim‟s face, corroborating her statement that the Petitioner ejaculated on her face

after vaginally penetrating her. Moreover, the presence of another man‟s semen on a

swab of the victim‟s vagina had no bearing on whether the victim consented to sexual

intercourse with the Petitioner. Robert Allen Edmonds v. Commonwealth, No. 2011-SC-

000059-MR, 2012 WL 2362429, at *3 (Ky., June 21, 2012). We conclude that the

evidence does not preponderate against the post-conviction court‟s finding that the

Petitioner failed to prove that appellate counsel was ineffective.

III. Conclusion

In sum, we conclude that the post-conviction court did not err by denying post-

conviction relief.

_________________________________

NORMA MCGEE OGLE, JUDGE

2

In his amended post-conviction petition, the Petitioner alleged that trial counsel should have cross-

examined the victim about her addiction to crack cocaine and about her engaging in prostitution to

support her addiction. However, no mention of this allegation was made at the post-conviction hearing.

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