Ricardo Antonio Demling v. State of Tennessee

08/04/2021

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

April 13, 2021 Session

RICARDO ANTONIO DEMLING v. STATE OF TENNESSEE

Appeal from the Circuit Court for Bedford County

No. 2016-CR-18229-PC M. Wyatt Burk, Judge

___________________________________

No. M2019-01822-CCA-R3-PC

___________________________________

The petitioner, Ricardo Antonio Demling, was convicted by a jury of theft of property

valued between $10,000 and $60,000, for his involvement in stealing two utility trailer

vehicles (UTVs), and sentenced to fifteen years as a Range III persistent offender to be

served consecutively to any unexpired sentences.1 He now appeals from the denial of post-

conviction relief claiming ineffective assistance of counsel based on the following grounds:

(1) upon receipt of the State’s amended discovery response containing a statement by the

petitioner and the name Christopher Brown, the alleged owner of a UTV, trial counsel’s

failure to move to dismiss the charge, failure to suppress the statement by the petitioner,

and failure to file a motion to continue the trial; (2) failure to interview and secure the

testimony of Christopher Brown; (3) failure to file a motion based on Brady v. Maryland,

373 U.S. 83 (1963), and State v. Ferguson, 2 S.W.3d 912, 916 (Tenn. 1999), concerning

the alleged destruction of a dash cam recording of the instant traffic stop; (4) failure to file

a speedy trial motion to dismiss based on the sixty-seven month delay between the date of

the alleged crime and the date of the arrest; and (5) failure to file a motion to dismiss based

upon the sixteen month delay between the date of the arrest and the trial.2 Upon our review,

we affirm the judgment of the post-conviction court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS, P.J., and JAMES CURWOOD WITT, JR., J., joined.

1

The Petitioner was tried jointly with his co-defendant, Marvin Devon Summers, the driver of the

stolen UTV, who was also convicted and sentenced to ten years’ imprisonment. State v. Marvin Devon

Summers, No. M2017-00033-CCA-R3-CD, 2018 WL 703095, at *1 (Tenn. Crim. App. Feb. 5, 2018), no

perm. to appeal filed.

2

We have rephrased and renumbered the petitioner’s issues for clarity. We also observe there were

several other issues raised in the petition and denied by the post-conviction court. As none of those issues

are included in this appeal, they are waived.

Gregory D. Judkins, Shelbyville, Tennessee, for the Petitioner, Ricardo Antonio Demling.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant Attorney

General; Robert J. Carter, District Attorney General; and Michael D. Randles, Assistant

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

OPINION

Following his conviction, the petitioner filed a direct appeal to this court challenging

generally the sufficiency of the evidence supporting his conviction. He also argued that his

sentence was excessive and asked this court to conduct a plain error review of “all

objections” and “all issues regarding venue and jurisdiction[.]” State v. Ricardo Antonio

Demling, No. M2017-00140-CCA-R3-CD, 2018 WL 618708 (Tenn. Crim. App. Jan. 30,

2018), perm. app. denied (Tenn. June 6, 2018). The proof at trial, as relevant here, is set

forth below:

Roger Dale Smith testified that he owned Smith Equipment in Bedford

County. Mr. Smith stated that, in 2009, Smith Equipment’s main business

was selling lawn mowers, lawn equipment, equipment parts, and utility

vehicles. Smith Equipment was an authorized dealer for Cub Cadet Utility

Vehicles. On September 27, 2009, Mr. Smith worked late at Smith

Equipment and left around 10:30 p.m. The next morning, Mr. Smith arrived

at his business around 7:30 a.m. and noticed that a yellow utility vehicle

owned by Smith Equipment that had been parked in front of the business was

missing. Mr. Smith testified that Smith Equipment purchased the utility

vehicle for $7,600 and that the retail value of the utility vehicle was between

$9,000 and $9,500. Mr. Smith and his employees checked the inventory of

the business and discovered that a second utility vehicle had been stolen. Mr.

Smith stated that the second utility vehicle “was parked on the back side of

the building where it was [ ] basically ... waiting to be serviced.” Mr. Smith

explained that a customer, Nathan Walker, owned the second utility vehicle,

a green and black utility vehicle with accessories. Mr. Walker did not give

anyone permission to remove his utility vehicle from the Smith Equipment

property. Mr. Smith testified that Mr. Walker purchased his utility vehicle

from Cub Cadet for $11,950 and that the utility vehicle retailed for between

$14,000 and $15,000. Mr. Smith explained that the utility vehicles required

keys to start and that Mr. Walker kept the key to his vehicle but that the key

to the other vehicle was inside Smith Equipment.

….

Mr. Smith testified that Smith Equipment filed a claim for the stolen utility

vehicles on its insurance policy and paid a $1,000 deductible. The insurance

-2-

company reimbursed Smith Equipment for the cost of replacing Mr.

Walker’s utility vehicle. The insurance company later contacted Mr. Smith

to inform him that law enforcement had found the stolen utility vehicles,

which Mr. Smith turned over to the insurance company.

….

Trooper Willie Allison testified that he had worked for the Tennessee

Highway Patrol (“THP”) for approximately ten years. On September 28,

2009, Trooper Allison conducted a traffic stop in Clay County at 4:45 p.m.

Trooper Allison stopped “a greyish and pink Suburban” with a trailer

carrying a green utility vehicle and a yellow utility vehicle. He explained that

he stopped the Suburban because the trailer lights were not operating

correctly. As Trooper Allison approached the Suburban, he noticed that the

vehicle had expired “dealer tags.” Trooper Allison checked to see if the

dealer tag belonged to the Suburban, and he found that Bridgett Allison

owned the Suburban and that the dealer tag originated from a dealership in

Nashville. Trooper Allison testified that co-defendant Summers was driving

the vehicle and that the [petitioner] was in the passenger seat. Trooper

Allison separated the [petitioner] and co-defendant Summers and asked them

about the utility vehicles. Both individuals informed Trooper Allison that

they had been hired to transport the utility vehicles from Shelbyville to

Kentucky; however, they could not identify the individual who hired them to

transport the items or where in Kentucky they were supposed to transport the

vehicles. Trooper Allison noted that individuals who hauled vehicles for hire

needed special tags on their vehicle and trailer and that the [petitioner] and

co-defendant Summers did not have the required tags on their vehicle or their

trailer. Trooper Allison also stated that the [petitioner] and co-defendant

Summers did not have keys for the utility vehicles, bills of sale, or other proof

of ownership.

On cross-examination, Trooper Allison explained that the [petitioner] and

co-defendant Summers did not tell him that they had been hired to transport

the utility vehicles to Celina after the owner’s vehicle broke down in

Lebanon. Trooper Allison checked the traffic log and did not find any log

entry for a “motorist assist” for that day. Trooper Allison testified that he

arrested co-defendant Summers for driving on a revoked license and

transported him to the Clay County Jail. He was unsure of how the

[petitioner] was transported to the jail.

Demling, 2018 WL 618708, at *2.

-3-

In affirming the conviction, this court highlighted the proof that showed the physical

descriptions and VINs of the UTVs on the petitioner’s trailer matched the description and

VINs of the UTVs stolen from Smith Equipment, and that Trooper Allison had stopped the

petitioner on the same day that Mr. Smith discovered the UTVs had been stolen from Smith

Equipment. Demling, 2018 WL 618708, at *4. We also determined that the petitioner had

waived his general invitation to this court to review “all objections” and “all issues

regarding venue and jurisdiction” because it was not supported by argument or citation to

the record. Id. at *6.

On March 27, 2019, the petitioner filed a pro se petition seeking post-conviction

relief based on thirty-two separate grounds. On April 5, 2019, the post-conviction court

entered a preliminary order on the petition and appointed post-conviction counsel. On June

3, 2019, the State filed a response denying all claims in the pro se petition and stating that

the grounds for relief relied upon by the petitioner “had been previously determined and/or

waived.” An amended petition, incorporating the pro se petition, was filed on August 1,

2019. On August 6, 2019, the State filed its response, again denying all of the petitioner’s

claims. On September 5, 2019, the post-conviction court conducted an evidentiary hearing

during which the petitioner, trial counsel, and trial counsel for co-defendant Summers

testified.

The petitioner denied he was guilty of the theft in this case. He agreed that he was

a passenger in the Suburban carrying the stolen UTVs on the day of the offense but denied

any knowledge the UTVs had been stolen. According to the petitioner, the Suburban they

were driving belonged to the niece of his co-defendant, Marvin Summers. At the time of

the stop, he thought he was towing equipment belonging to an individual named

Christopher (“Chris”) Brown. Earlier in the day, he had received a call from Christopher

Brown asking for assistance because his vehicle had broken down. The petitioner did not

have a truck to assist Brown, so the petitioner walked four houses down to co-defendant

Summers’ home, who agreed to drive the Suburban to assist Brown. When they arrived at

the location to meet Brown, they detached the trailer with the UTVs from Brown’s vehicle

to their Suburban and began to follow Brown to his home in Celina, Tennessee. Brown

was ahead of them, riding in a gold Maxima driven by his wife. About two hours later, the

petitioner and co-defendant Summers were stopped by Trooper Allison. When they were

stopped, Brown continued to drive and did not return until sometime later. Brown

eventually returned, but the trooper refused to allow him to take the UTVs because he did

not have documentation of ownership of the UTVs. Co-defendant Summers was arrested

for driving without a license, and the petitioner was “released to Christopher Brown.”

When Brown returned, Trooper Allison’s vehicle was behind Summers’ Suburban

and Brown’s vehicle was in front of Summers’ Suburban. Asked “if there was a dash

-4-

camera, [Brown] would have been visible in the video[?],” the petitioner replied, “Yes,

sir.” The petitioner said the entire exchange between Trooper Allison and Brown would

have been captured on the dash cam video. The petitioner believed the dash cam video

was significant because it would have shown Brown claiming ownership of the UTVs and

that the petitioner had Brown’s permission to possess them. He never talked to Brown

again after the day of the offense, and he did not return to Celina until twenty-five days

later when he, along with Summers’ niece, got the Suburban out of the impound lot. The

petitioner said he did not hear about the UTVs again until he was arrested on May 12, 2015,

almost five and a half years later.

The petitioner agreed he was not indicted regarding the theft until March 21, 2016.

For the period between his arrest and indictment the petitioner had made bond and was

“going back and forth to court here.” He said that he met with trial counsel “[j]ust one

time.” He had explained the series of events to trial counsel and had given him Brown’s

name “early on” or within three months of trial counsel being appointed to his case. He

said trial counsel did not express any interest in trying to find Brown. Trial counsel

explained the discovery process to the petitioner, and the petitioner was aware he had filed

a discovery request. However, the State’s initial discovery response did not include the

name or address for Christopher Brown. Asked how the petitioner knew Brown, the

petitioner replied, “His wife worked a previous job with my kids’ mother.” The petitioner

did not have Brown’s address at the time of the post-conviction hearing.

The petitioner agreed that on September 7, a week before trial, the State amended

their discovery response to include a statement the petitioner considered to be

“detrimental” to the case. Trial counsel did not discuss how they could have responded to

the amendment or whether they could have filed a motion to dismiss based on the State’s

late-filed discovery. The petitioner stated that he was shown a “piece of paper that said I

left the scene – I mean that Christopher Brown picked me up from the jail. He showed me

that. I asked him where that came from. And he said the prosecution had that statement.

And I asked him where he got the statement from. He never could tell me.” Post-conviction

counsel then read into evidence the State’s amendment to discovery:

(As Read) If there is a trial in this case, the State intends to offer evidence,

an oral statement made by defendant in response to an interrogation to a

person then known to the defendant to be a law enforcement officer, the

substance of which is as follows: Both defendants were asked by Trooper

Allison about the UTVs and where they were headed with them. Each

defendant replied that they had picked the UTVs up in Shelbyville and were

paid to deliver them to a guy in Kentucky. The defendants were asked the

name of the individual in Shelbyville and Kentucky and neither defendant

-5-

could provide names. Neither defendant mentioned having mechanical

problems earlier in the day on Interstate 40.

The petitioner agreed that if the above conversation had taken place, it would have

been captured on the dash cam video of Trooper Allison’s vehicle. The petitioner said that

he did not seek any continuances in the process of his case and that he told trial counsel he

wanted to bring his case to trial as quickly as possible. By the time of his trial, the petitioner

had no way of finding Brown. The petitioner also said trial counsel did not adequately

cross-examine the victim concerning the value of the UTVs. The petitioner did not believe

the property was appropriately valued because the victim “had the opportunity to recover

that property, [but] they chose to stay with what the insurance company gave them.”

According to the petitioner, the victim never stated how much he received from the

insurance company and trial counsel failed to ask him how he determined the value of the

trailer. The petitioner was concerned because trial counsel failed to make any objections

at all during his trial.

On cross-examination, the petitioner reluctantly agreed that on the day of trial, he

declined to testify stating, “I’ve had brain surgery twice since then. I can barely remember

my own name. I couldn’t spell my name right at that time.” The State pressed the petitioner

regarding the existence of the dash cam video, and the petitioner insisted that it existed

based on the testimony of Trooper Allison. The State clarified that based on Trooper

Allison’s trial testimony, the video was “taped over.” The petitioner agreed while Trooper

Allison may not have personally destroyed the video it was in fact destroyed after three

years. The petitioner reviewed the general sessions warrant for his arrest in this case which

reflected a “conditional forfeiture issued on 10/14/2015.” He agreed this meant his bond

had been forfeited and explained it may have been because he “got in trouble in another

state. . . . [n]ot because I got in trouble here[.]” The petitioner also agreed that he provided

a statement of what happened at the time of the offense in his pre-sentence report and

blamed his drug habit for the offense and did not include a claim of innocence. He did not

recall telling trial counsel he wanted to “put off” or “slow walk” his case because he was

on bond.

Trial counsel for the codefendant testified that he and trial counsel for the petitioner

met with the petitioner and codefendant Summers several times to discuss trial strategy.

Asked what the petitioner’s recollection of the events were, trial counsel for the

codefendant said, “[H]e had no recollection, Your Honor.” The petitioner told him on

several occasions that he could not help them because the petitioner could not remember

anything about the events on the day of the offense. Trial counsel for the codefendant said

there was never any mention of a Chris Brown; however, trial counsel did recall “somebody

had broke[n] down on the interstate.” He recalled at some point the State provided them

with the name Chris Brown, and he made unsuccessful inquiries into who this person was.

-6-

Trial counsel for the codefendant was familiar with the video recording systems used by

law enforcement. He filed a motion to get the dash cam video in this case and determined

that “there wasn’t one.” He did not file a motion to dismiss for lack of a video because he

did not know what was on the video or if it would have been relevant.

Trial counsel for the petitioner testified that he represented the petitioner from

general sessions court to trial in this case. He filed a motion to dismiss based on a lack of

venue which was denied. He said the petitioner was unable to assist in the development of

the case because the petitioner “had a self-inflicted gunshot wound.” Trial counsel said the

first time he heard the petitioner’s version of the offense claiming Chris Brown was the

true owner of the stolen trailer was at the post-conviction hearing. Trial counsel agreed the

petitioner never mentioned Chris Brown during their preparation for trial. Trial counsel

said, even assuming a video existed, there was no reason to believe it contained exculpatory

information. Trial counsel could not recall when he first became aware of Chris Brown.

He believed the name may have been provided to him in the State’s discovery. Upon

learning the name Chris Brown, trial counsel made unsuccessful attempts to locate him.

Trial counsel insisted the petitioner never advised him of Chris Brown. A January 27, 2017

letter from trial counsel to the petitioner was admitted into evidence and noted, in relevant

part, as follows:3

It doesn’t matter how many times that you ask me for a document

about Christopher Brown, I still won’t have anything other than where the

name appears in discovery; You reference him directly because you have a

copy of the discovery which was given to you a total of three times now.

Nonetheless, I attach another copy of the page contained in the discovery

which you seem to directly reference. It seems that you are asking repeatedly

for the same document, one that you already possess. I’m really not sure

where the name Christopher Brown originally came from. I thought that you

were the source and based on what you said, we tried to find information

about him through an additional discovery request and I researched him on

the internet. I do remember that it was asked about during cross-examination

during the trial and my recollection, not having access to the transcripts at

this point, is that nobody knew any Christopher Brown. I believe that the

Trooper said that the tow-truck driver gave you a ride, not Mr. Brown.

Gladly I will examine the trial transcript with the Christopher Brown name

in mind.

As far as your recollection goes, you told me that you recall nothing

from the theft because of your failed attempt at suicide which resulted in

3

The record reflects the trial in this case occurred on September 12-13, 2016.

-7-

extensive brain damage. If you are now claiming to remember things, then

that seems a little disingenuous, just saying.

Asked why trial counsel did not move to suppress Trooper Allison’s statement, trial

counsel said (1) it would not have made a difference to his trial strategy; and (2) he used

the lack of video to discredit Trooper Allison and the State’s case. Trial counsel did not

believe the State manufactured the delay in the petitioner’s arrest to gain any tactical

advantage. Asked why he did not file a motion for speedy trial, trial counsel replied, the

petitioner was on bond and that would have been “contrary to his desires.” Moreover,

following the petitioner’s arrest, trial counsel recalled a “direct request from [the

petitioner]” to “slow walk” the case.

On September 11, 2019, the trial court entered an order denying post-conviction

relief. The order included a twenty-seven-page memorandum of law addressing each of

the issues raised in the petition and setting forth the court’s reasoning and analysis. On

October 10, 2019, the petitioner filed a notice of appeal, and this case is now properly

before this court for review.

ANALYSIS

The petitioner claims he is entitled to post-conviction relief because he was deprived

effective assistance of counsel based on the following grounds: (1) upon receipt of the

State’s amended discovery containing a statement by the petitioner and the name

Christopher Brown, the alleged owner of the UTVs, trial counsel’s failure to move to

dismiss the charge, failure to suppress the statement by the petitioner, and failure to file a

motion to continue the trial; (2) failure to interview and secure the testimony of Christopher

Brown; (3) failure to file a motion based on Brady v. Maryland, 373 U.S. 83 (1963), and

State v. Ferguson, 2 S.W.3d 912, 916 (Tenn. 1999), concerning the alleged destruction of

a dash cam recording of the instant traffic stop; (4) failure to file a motion to dismiss based

on the sixty-seven month delay between the date of the alleged crime and the date of the

arrest; and (5) failure to file a motion to dismiss based upon the sixteen month delay

between the date of the arrest and the trial. We will address each issue based on the

following well established law.

Post-conviction relief is only warranted when a petitioner establishes that his or her

conviction or sentence is void or voidable because of an abridgement of a constitutional

right. Tenn. Code Ann. § 40-30-103. The right of a person accused of a crime to

representation by counsel is guaranteed by both the Sixth Amendment to the United States

Constitution and article I, section 9, of the Tennessee Constitution. Both the United States

Supreme Court and this Court have recognized that this right to representation

encompasses the right to reasonably effective assistance, that is, within the range of

-8-

competence demanded of attorneys in criminal cases. Felts v. State, 354 S.W.3d 266, 276

(Tenn. 2011); Frazier v. State, 303 S.W.3d 674, 679 (Tenn. 2010).

In order to prevail on an ineffective assistance of counsel claim, a petitioner must

establish that (1) his lawyer’s performance was deficient and (2) the deficient performance

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Baxter v.

Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[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 v. State,

938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697).

A petitioner successfully demonstrates deficient performance when the clear and

convincing evidence proves that his attorney’s conduct fell below “an objective standard

of reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland, 466

U.S. at 688; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated once

the petitioner establishes “‘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.’” Id. at 370

(quoting Strickland, 466 U.S. at 694).

A post-conviction petitioner has the burden of proving the factual allegations by

clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f); Tenn. Sup. Ct. R. 28, §

8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). Evidence is considered

clear and convincing when there is no serious or substantial doubt about the accuracy of

the conclusions drawn from it. Lane v. State, 316 S.W.3d 555, 562 (Tenn.

2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009); Hicks v. State, 983 S.W.2d

240, 245 (Tenn. Crim. App. 1998).

A claim for post-conviction relief based on alleged ineffective assistance of counsel

presents a mixed question of law and fact. Mobley v. State, 397 S.W.3d 70, 80 (Tenn.

2013) (citing Calvert v. State, 342 S.W.3d 477, 485 (Tenn. 2011)). This court reviews “a

post-conviction court’s conclusions of law, decisions involving mixed questions of law and

fact, and its application of law to its factual findings de novo without a presumption of

correctness.” Whitehead v. State, 402 S.W.3d 615, 621 (Tenn. 2013) (citing Felts v. State,

354 S.W.3d 266, 276 (Tenn. 2011); Calvert, 342 S.W.3d at 485). However, a post-

conviction court’s findings of fact are conclusive on appeal unless the evidence in the

record preponderates against them. Calvert, 342 S.W.3d at 485 (citing Grindstaff, 297

S.W.3d at 216; State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999)). “Accordingly, appellate

courts are not free to re-weigh or re-evaluate the evidence, nor are they free to substitute

their own inferences for those drawn by the post-conviction court.” Whitehead, 402

-9-

S.W.3d at 621 (citing State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn. 2001)). “As a general

matter, appellate courts must defer to a post-conviction court’s findings with regard to

witness credibility, the weight and value of witness testimony, and the resolution of factual

issues presented by the evidence.” Id. (citing Momon v. State, 18 S.W.3d 152, 156 (Tenn.

1999)).

The petitioner first argues that upon receipt of the State’s amended discovery

response containing a statement by the petitioner which contained the name and address of

Christopher Brown, the alleged owner of the UTVs, trial counsel was ineffective in failing

to file motions to dismiss the charge, to suppress the statement by the petitioner, and/or to

continue the trial. In response, the State points out that trial counsel testified at the post-

conviction hearing that he did not file these motions because they were without merit and

that he made efforts to locate Christopher Brown but was unsuccessful. The State also

asserts that the petitioner has failed to establish prejudice because he has not shown any of

the motions would have been successful or that they would have changed the outcome of

the petitioner’s case. We agree with the State.

In regard to this issue, the post-conviction court determined as follows:

Specifically, the [petitioner] argues that Trial Counsel failed to object

to a “late produced” incriminating oral statement allegedly made by

Petitioner to Trooper Willie Allison regarding how Petitioner came into

possession of the subject property and what he was supposedly doing with

the subject property. The Court, after hearing the testimony of Trial Counsel

affirms that said statement was not introduced as an exhibit at trial. The

Defendant certainly cannot state that he was “unfairly” surprised at trial, and

he was able to cross-examine Trooper Allison regarding his testimony. Trial

Counsel indicated that the state produced this statement prior to trial, after

the “venue motion.” Trial Counsel indicated that the production of this

statement prior to trial did not change the [petitioner’s] trial strategy or tactics

whatsoever. Furthermore, as a trial tactic, Trial Counsel attempted to use the

lack of the “video” together with the statement in order to attempt to show

that the State was playing “hide the ball” and attempted to confuse the jury

on this issue. Trial Counsel was not deficient in this regard, and his

performance cannot be said to be below a reasonable standard. This issue is

without merit.

Second, the Defendant argues that Trial Counsel failed to object to the

“late produced” “identity and address of Christopher Brown who was at the

scene of the stop and claimed the subject property belonged to him and

verified that Petitioner had Mr. Brown’s consent to be in possession of the

- 10 -

subject items of property.” The Court, after reviewing the transcript and the

testimony adduced, at the PC hearing, determines that Christopher Brown

never existed. Trial Counsel scoured the internet and searched extensively

for “Christopher Brown” and his efforts did not yield any usable information.

Furthermore, “Christopher Brown” was not called as a witness at trial, nor

was he called as a witness at the PC hearing. Prior to trial, Trial Counsel

confirmed that the Defendant and the co-defendant never discussed

“Christopher Brown”, and Defendant could not “remember” anything about

the incident due to his self-inflicted gunshot wound to his head and resulting

“brain surgery.” Trial Counsel simply cannot be responsible for locating and

securing an alleged witness that simply did not exist. This issue is without

merit.

The petitioner argues contrary to the finding of the post-conviction court that the

statement in question was admitted at trial. Our review of the record shows the following

exchange between the State and Trooper Allison occurred at trial:

Q. Okay. And what did [the petitioner and the co-defendant] tell you about

these UTVs?

A. They both told me the same story. They said that they were hired from

Shelbyville, a man, to haul these two side-by-sides to Kentucky.

Q. All right. And did you ask them if that was something they did on a regular

basis?

A. They said that’s what they usually do. That they, they take odd jobs like

that and hire, you know, take odd jobs and take things for people, I guess.

Q. All right. And, of course, if that’s a business and that’s what you’re doing,

would it require a special plate on the trailer?

A. Yes, and on the truck. You need a H tag on the truck and you need a trailer

tag, if you’re using both of them for business use.

Q. All right. So, if they were doing that, did they have those, either of those?

A. No.

Q. Okay. Now, were they able to identify to you this person who had asked

them to haul the vehicle?

- 11 -

A. No. They didn’t know their name. They didn’t know his name.

Q. All right. So, they -- so, this individual who had supposedly hired them,

they didn’t even know who, didn’t even give you a name?

A. No.

Q. All right. Were they able to tell you where they were taking them to?

A. They just said somewhere in Kentucky.

Q. Did they know, were they able to tell you where in Kentucky they were

taking them?

A. No.

Q. So, they’d been hired to take these vehicles to Kentucky, but they can’t

tell you where it’s at?

A. That’s correct.

Q. Okay. Did they, were they able to produce the keys to them or did you

find the keys to these vehicles?

A. No, there were no keys to those things.

Q. All right. Eventually, was this car and these, trailer and the UTVs or the

side-by-side, were they eventually all towed away?

A. They were. I had them, because since they were not the owner of the

vehicle, they couldn’t show proof of any kind of bill of sale or anything, since

they were not owners of the side-by-sides or the trailer, I had it towed and

placed a hold on it for, for ownership, for the owner to come and get it.

Q. All right. And as it’s being towed, did they say, Hey, can you give this

guy a call and tell him where his UTVs are?

A. I don’t recall that at all.

On cross-examination, however, Trooper Allison testified as follows:

- 12 -

Q. Okay. Did [the petitioner or the co-defendant] either one, mention anyone

that had hired them to take these vehicles to Celina?

A. If they did, I don’t recall it.

Q. You don’t remember anything about a conversation with either of these

two gentlemen about a vehicle breaking down at I-40 in Lebanon and being

hired to take these vehicles to Celina?

A. No, sir.

Q. You don’t remember any of that? Okay.

A. No, sir. That was never brought up at the time of the stop –

….

Q. Do you have any idea who this Christopher Brown person is that, is that

a name that you’re familiar with?

A. No, sir.

The post-conviction court’s confusion on this issue appears to lie in the precise

statement the petitioner sought to have excluded, which is not entirely clear. Trooper

Allison stated that the petitioner and the codefendant said they were hired by an unnamed

man to haul the UTVs to Kentucky. He denied that the petitioner and co-defendant stated

they were hired to haul them to Celina and did not recall any mention of a vehicle having

broken down or Christopher Brown. Based on the above testimony, we agree with the

petitioner and conclude that the information provided by the State in their amended

discovery response was admitted at trial. This conclusion offers no basis for relief;

however, because trial counsel stated that he used the information in the amended

discovery to his advantage in attempting to cast doubt on the State’s case. We additionally

observe that the petitioner hinges the bulk of his claims in his petition on Christopher

Brown, alleging that Brown’s testimony would have been exculpatory because he was the

true owner of the UTVs. This is problematic because the undisputed proof at trial

established that the true owners of the UTVs were Roger Dale Smith and Nathaniel Walker.

As such, even if we believed that Brown existed and was present at the time of the traffic

stop, the petitioner cannot account for his joint possession of the UTVs only hours after

they had been reported stolen on the same day. In other words, the petitioner ignores the

concept of criminal responsibility, which was charged to the jury and would have similarly

- 13 -

supported the conviction in this case. Accordingly, for this and the reasons set forth in the

order of the post-conviction court, the petitioner has failed to establish deficient

performance of trial counsel in failing to file these motions or prejudice arising therefrom.

He is not entitled to relief.

Next, the petitioner claims trial counsel was ineffective in failing to interview and

secure the testimony of Christopher Brown. The post-conviction court denied relief as to

this claim due to the petitioner’s failure to present Christopher Brown as a witness at the

post-conviction hearing. As articulated by the post-conviction court, this court has

concluded that “[w]hen a petitioner contends that trial counsel failed to discover, interview,

or present witnesses in support of his defense, these witnesses should be presented by the

petitioner at the evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim.

App. 1990). The presentation of the witness at the post-conviction hearing is typically the

only way for the petitioner to establish:

(a) a material witness existed and the witness could have been discovered but

for counsel’s neglect in his investigation of the case, (b) a known witness

was not interviewed, (c) the failure to discover or interview a witness inured

to his prejudice, or (d) 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. Neither the post-conviction court nor this court may speculate on “what a witness’s

testimony might have been if introduced by defense counsel.” Id. While the petitioner

attempts to distinguish his case from the rule in Black, we are unpersuaded. See Tavarus

U. Williams v. State, No. 02C01-9711-CR-00423, 1998 WL 742348 (Tenn. Crim. App.

Oct. 23, 2009).

In Tavarus Williams, this court determined that trial counsel’s negligence prevented

the petitioner from calling the missing witness at the post-conviction hearing and therefore

reversed the post-conviction court’s denial of relief. The court reasoned:

We recognize that this witness’ proposed testimony should have been

produced at the post-conviction hearing under the general rule announced

in Black v. State. However, we think it is fundamentally unfair to hold this

failure of proof against [Williams] and, therefore, find the Black rule

inapplicable under the facts of this case ...

The best evidence that [Williams] had of the crucial testimony was [the

investigator], and he did produce that proof at the hearing. Accordingly,

because [Williams] produced independent proof of vital testimony that

- 14 -

would have been available at the hearing but for his trial lawyer’s

ineffectiveness (in never discovering the witness, not calling him and losing

all record of him), we hold that [Williams] has established both prongs of

the Strickland test.

Id. at *6-7 (internal citations, footnotes, and quotations omitted).

In stark contrast to Williams, the proof at the post-conviction hearing established

that the petitioner could not remember anything about the date of the offense due to a self-

inflicted gunshot wound to his head. This was also reflected at trial during the Momon

hearing and corroborated by trial counsel and counsel for the codefendant. We

acknowledge that the State provided trial counsel with the name and address for

Christopher Brown five days prior to trial; however, it is difficult for this court to attribute

much significance to this amendment when trial counsel did not know who Christopher

Brown was or how he would aid in his case. In any event, trial counsel testified that he

searched for Christopher Brown and was unable to locate him. Trooper Allison also

testified at trial that he did not know who Christopher Brown was. Because the petitioner

failed to present Christopher Brown at the post-conviction hearing, he is not entitled to

relief as to this issue.

In his third claim, the petitioner argues trial counsel was ineffective in failing to file

a Brady or Ferguson motion concerning the alleged destruction of a dash cam recording of

the instant traffic stop. The post-conviction court determined as follows:

In the case of State v. Ferguson, 2 S.W.3d 912, 916 (Tenn. 1999), the

Tennessee Supreme Court adopted a test for courts to use in determining

whether the loss or destruction of evidence in the State’s possession deprived

the defendant of a fair trial. The initial inquiry is whether the State had a duty

to preserve the evidence. Whatever duty the Constitution imposes on the

State to preserve evidence, that duty must be limited to evidence that might

be expected to play a significant role in the defense. To meet this standard of

constitutional materiality, evidence must both possess an exculpatory value

that was apparent before the evidence was destroyed, and be of such a nature

that the defendant would be unable to obtain comparable evidence by other

reasonably available means. Id. at 917 (quoting California v. Trombetta, 467

U.S. 479, 488-89 (1984)).

If the proof demonstrates that the State failed in its duty to preserve

evidence, the analysis moves to a consideration of several factors which

guide the decision regarding the consequence of the breach. Those factors

include “(1) the degree of negligence involved; (2) the significance of the

- 15 -

destroyed evidence, considered in light of the probative value and reliability

of secondary or substitute evidence that remains available; and (3) the

sufficiency of the other evidence used at trial to support the conviction.” Id.

If a trial without the missing evidence would be fundamentally unfair, the

trial court may dismiss the charges, give a jury instruction, or “craft such

orders as may be appropriate to protect the defendant’s fair trial rights.” Id.

See also State v Merriman, 410 S.W. 3d 779 (Tenn. 2013).

The Court will first consider as to whether the State had a duty to

preserve the evidence. As previously mentioned, whatever duty the

Constitution imposes on the State to preserve evidence, that duty must be

limited to evidence that might be expected to play a significant role in the

defense. To meet this standard of constitutional materiality, evidence must

both possess an exculpatory value that was apparent before the evidence was

destroyed, and be of such a nature that the defendant would be unable to

obtain comparable evidence by other reasonably available means. Id. at 917

(quoting California v. Trombetta, 467 U.S. 479, 488-89 (1984)). At trial,

Trooper Allison testified that the initial stop of the Suburban was for a light

law violation with regard to the trailer hauling the UTVs. See Trial Transcript

pg. 64, line 25 and pg. 77, lines 23-24. After issuing a citation for driving on

revoked license and violation of light law, the Suburban, trailer, and UTVs

were towed away from the scene, given the fact that the [petitioner] and co-

defendant could not produce ownership documents for said items. Trooper

Allison testified that he spoke with no other person at the scene other than

the [petitioner], co-defendant, tow truck driver, and his Sergeant. Further,

Trooper Allison did not run the UTVs’ VIN numbers through NCIC because

he could not locate them on the UTVs. Once they left his presence, the UTVs

remained with the tow truck driver. When asked about the “video of the

stop,” Trooper Allison testified that he was driving a “Ford Crown Vic” that

was equipped with a dash cam. The camera at that time was of the “little

cassette” version, not digital. Trooper Allison indicated that he did not

destroy the video, but presumably, the video rolls off after “about three (3)

years.” As such, it is not clear to the Court as to whether the video even

existed, or whether the camera actually captured the stop. Trooper Allison

never indicated that he “viewed” the video. Furthermore, Trooper Allison

testified that he believed that he had no reason to preserve the dash cam

video. His involvement with the matter was simply for a stop and citation for

violation of light law and driving on revoked license. Trooper Allison

testified that he was only made aware of the arrest of the [petitioner] for theft

“a few months before trial.” However, at trial, Trial Counsel attempted to

impeach Trooper Allison with the “destruction” of the video. After

- 16 -

questioning him regarding his phone conversation with Detective Ferris “a

couple of weeks after the stop,” Trial Counsel was able to argue that the video

was “destroyed” after Trooper Allison had an indication that the UTVs were

stolen: In considering the evidence presented at trial and at the PC hearing,

the Court does not believe that the video contained any exculpatory value

that was apparent before the evidence was destroyed and be of such a nature

that the defendant would be unable to obtain comparable evidence by other

reasonably available means; therefore, the State had no duty to preserve the

video. The State has no absolute duty to record the stop, and furthermore,

there is no proof which clear[ly] and convincingly establishes that the stop

was ACTUALLY recorded. The only concrete thing we know is if it was

recorded, it was purged after a period of three (3) years.

However, out of an abundance of caution, the Court will also consider

an alternative holding. If the Court held that the video may have contained

some exculpatory value and should have been preserved by the State, the

analysis moves to a consideration of several factors which guide the decision

regarding the consequence of the breach. Those factors include “(1) the

degree of negligence involved; (2) the significance of the destroyed evidence,

considered in light of the probative value and reliability of secondary or

substitute evidence that remains available; and (3) the sufficiency of the other

evidence used at trial to support the conviction.” Id. In this case, there is no

proof that the “destruction of the dash-cam video” was done in bad faith.

Further, when potentially exculpatory evidence is lost or destroyed

negligence is presumed. Merriman, supra, at 793. However, based upon the

testimony, it appears to be unintentional and amounts to simple negligence.

Regarding the significance of the evidence, the potential exculpatory value

appears to be to refute Trooper Allison’s assertion that there wasn’t a third

party at the scene of the stop. The Defendant contends that “Christopher

Brown” was present. However, in considering the “the sufficiency of the

other evidence used at trial to support the conviction,” the Court concludes

that there was other sufficient evidence to prove the State’s case at trial.

Again, this is not a case wherein the State’s case hinges upon the dash-cam

footage of the patrol car. The Tennessee Court of Criminal Appeals affirmed

that sufficient evidence exists to support the conviction, and therefore this

prong has been adequately tested.

After a review of the forgoing, the Court is of the opinion that

dismissal of charges is really reserved for the most egregious of situations,

particularly involving gross negligence or intentional acts. This situation

involved a simple failure to retrieve footage that “rolled-off” the server in a

- 17 -

three (3) year period. Such conduct is not gross negligence or an intentional

act.

As Trial Counsel and Atty. Parker indicated at the PC hearing, they

did not believe that the State had a duty to preserve the traffic stop video.

Based upon Atty. Parker and Trial Counsel’s interviews with their clients, as

well as all other evidence that existed prior to trial, Trial Counsel did not

believe that said video, if it existed, would have contained any exculpatory

evidence or value. The initial stop by Trooper Allison was for a trailer tail

light violation and an arrest for revoked license. It cannot be said that Trial

Counsel’s representation fell below an objective standard of reasonableness,

or “outside the wide range of professionally competent assistance.”

Furthermore, the Court cannot hold that Trial Counsel’s failure to file a

motion to dismiss based on the loss of the video was deficient performance.

Given the fact that trial counsel cross-examined Trooper Allison regarding

the “destruction” of the video and the circumstances surrounding the timing

of its “destruction,” it would appear that the failure to file a motion to dismiss

was a tactical decision. The issue of the lost video was hotly litigated and

Trial Counsel attempted to plant seeds of doubt and distrust in the minds of

the jury regarding the truth and veracity of Trooper Allison’s testimony.

Petitioner has failed to show that Trial Counsel’s performance was in any

way deficient. Petitioner is not entitled to relief on this issue.

The record does not preponderate against the determination of the post-conviction

court. The petitioner has failed to establish deficient performance or prejudice arising from

trial counsel’s failure to file a motion pursuant to Brady and Ferguson. Accordingly, we

affirm the findings of the post-conviction court and conclude that the petitioner is not

entitled to relief as to this issue.

As his fourth ground for relief, the petitioner argues trial counsel was ineffective in

failing to file a motion to dismiss based on the sixty-seven-month delay between the date

of the alleged crime and the date of the arrest. The post-conviction court determined “there

was a substantial delay in the ultimate arrest of the [petitioner]” but that the petitioner had

failed to show that the State had caused the delay in order to gain tactical advantage over

or to harass the petitioner. In United States v. Marion, 404 U.S. 307 (1971), the United

States Supreme Court explained that “[t]he Due Process Clause of the Fifth Amendment

would require dismissal of the indictment if it were shown at trial that the pre-

indictment delay . . . caused substantial prejudice to the [defendant’s] rights to a fair trial

and that the delay was an intentional device to gain tactical advantage over the

accused.” 404 U.S. at 324-25. In State v. Dykes, 803 S.W.2d 250 (Tenn. Crim. App. 1990),

- 18 -

the Tennessee Supreme Court adopted the Marion approach to determining when a

defendant is entitled to relief for pre-indictment delay and held:

Before an accused is entitled to relief based upon the delay between

the offense and the initiation of adversarial proceedings, the accused must

prove that (a) there was a delay, (b) the accused sustained actual prejudice as

a direct and proximate result of the delay, and (c) the State caused

the delay in order to gain tactical advantage over or to harass the accused.

Dykes, 803 S.W.2d at 256 (citing United States v. Marion, 404 U.S. at 324). Our supreme

court reaffirmed the applicability of the Marion–Dykes rule in State v. Utley, 956 S.W.2d

489 (Tenn. 1997), noting that in “cases involving a pre-arrest delay, the due process inquiry

continues to be guided by Marion.” Id. at 495. The Utley court held that prejudice “cannot

be presumed and instead must be substantiated by the defendant with evidence in the

record” and that “the due process inquiry under Marion also requires proof regarding the

State’s use of the delay to gain tactical advantage.” Id.

The petitioner points out “[f]rom January 14, 2010, when the warrant was obtained,

until the actual arrest date for this charge of May 9, 2015, [he] was arrested and charged

with other crimes in [the state] on seven occasions.” He further avers he actively

participated in probation and community corrections in Tennessee and yet there were no

significant efforts made to prosecute him for over five years. He insists he was prejudiced

by the State’s failure to prosecute based on the destruction of the dash cam video and the

unavailability of Christopher Brown. He acknowledges, while there was no evidence that

the State intentionally delayed the prosecution to gain a tactical advantage over the

petitioner, but cautions that this burden of proof has been viewed by the Tennessee

Supreme Court as “daunting, almost insurmountable[.]” See State v. Gray, 917 S.W.2d

668, 673 (Tenn. 1996). The petitioner then employs the suggestion by this court in

State v. Ahmad R. Manning, No. E2011-01812-CCA-R3-CD, 2013 WL 794154 (Tenn.

Crim. App. Mar. 4, 2013), perm. app. denied (Tenn. Sept. 11, 2013), that applied a

Ferguson-type negligence analysis, and concludes that the petitioner could have “possibly

prevailed in having the Theft charge dismissed.”

In Ahmad R. Manning, the trial court dismissed the indictment because the two-

year delay between the offenses and the indictment gave the State an “[a]lbeit

unintentional” advantage over the defense. On appeal, this court concluded that the trial

court erred by dismissing the indictment under the Marion-Dykes test because “the trial

court must find that the State intentionally delayed the proceedings in order to gain a

tactical advantage or to harass the accused.” Id. at *5. In reversing the trial court’s

dismissal of the indictment, however, this court expressed concern as to “whether in reality

the Marion-Dykes rule affords a defendant meaningful protection of his due process right

- 19 -

to a fair trial in the face of unreasonable and unjustified pre-indictment delay” and

suggested a “Ferguson-type analysis” for such cases. Id. at *6. This court did not

incorporate Ferguson into its own analysis of the issue, and our supreme court denied the

defendant’s application for permission to appeal. Id. at *7. Accordingly, we remain bound

by the Marion-Dykes rule and apply it to the instant case.

The post-conviction court determined, and the petitioner concedes, there was no

proof that the State intentionally caused the delay in order to gain tactical advantage over

or to harass the petitioner. In addition, although the petitioner relies on his somewhat

specious claim that Christopher Brown and the dash cam video capturing the traffic stop

would have been exculpatory, there was no proof of such at the post-conviction hearing.

Accordingly, the petitioner failed to establish he sustained actual prejudice as a direct and

proximate result of the delay. The petitioner is not entitled to relief as to this issue.

As his fifth and final ground for relief, the petitioner argues trial counsel was

ineffective in failing to file a motion to dismiss based upon the sixteen-month delay

between the date of the arrest and the trial. The post-conviction court determined “the

sixteen (16) month delay in this case [was] sufficient to raise the Barker analysis.”

However, the post-conviction court found “the [petitioner] did not assert his right to a

speedy trial . . . [and] specifically instructed Trial Counsel to ‘slow walk’ this matter, as

the [petitioner] was out on bond, and was ‘dealing with other legal matters.’” In denying

relief, the post-conviction court considered the petitioner’s action in doing so as “the very

definition of ‘unclean hands.’”

Both the Sixth Amendment to the United States Constitution and Article I, Section

9 of the Tennessee Constitution guarantee an accused the right to a speedy trial. See U.S.

Const. amend VI; Tenn. Const. art. 1, § 9. The right to a speedy trial is also statutorily

protected in Tennessee. See T.C.A. § 40-14-101 (“In all criminal prosecutions, the accused

is entitled to a speedy trial and to be heard in person and by counsel.”). In addition, Rule

48(b) of the Tennessee Rules of Criminal Procedure provides that the court may dismiss

the indictment if there is unnecessary delay in bringing a defendant to trial. Tenn. R. Crim.

P. 48(b). “The purpose of the speedy trial guarantee is to protect the accused against

oppressive pre-trial incarceration, the anxiety and concern due to unresolved criminal

charges, and the risk that evidence will be lost or memories

diminished.” State v. Utley, 956 S.W.2d 489, 492 (Tenn. 1997) (citing Doggett v.United

States, 505 U.S. 647, 654 (1992)).

The constitutional right to a speedy trial is not implicated until there is an arrest or

a formal accusation from a grand jury. State v. Simmons, 54 S.W.3d 755, 758-59 (Tenn.

2001) (citing Utley, 956 S.W.2d at 491). When evaluating claims of a speedy trial

violation, we apply the four-part balancing test set forth in Barker v. Wingo, 407 U.S. 514

- 20 -

(1972). See also State v. Bishop, 493 S.W.2d 81, 83-85 (Tenn. 1977) (adopting

the Barker analysis in Tennessee). The Barker factors are: (1) the length of the delay; (2)

the reason for the delay; (3) the defendant’s assertion of the right to a speedy trial; and (4)

the prejudice to the defendant because of the delay. Barker, 407 U.S. at 530; Simmons, 54

S.W.3d at 759. “The factors relevant to a speedy trial inquiry are interrelated and depend

upon the particular circumstances of each case.” Simmons, 54 S.W.3d at 762 (declining to

articulate a bright-line rule for speedy trial claims); see also Barker, 407 U.S. at 530 (“A

balancing test necessarily compels courts to approach speedy trial cases on an ad hoc

basis.”). If a reviewing court concludes that the accused has been denied the right to a

speedy trial, the only remedy is reversal of the conviction and dismissal of the

indictment. See Barker, 407 U.S. at 522; Bishop, 493 S.W.2d at 83.

The petitioner was arrested on May 9, 2015, and his trial occurred on September 12-

13, 2016. The length of the delay in this case is one year and four months, which is

sufficient to trigger the speedy trial analysis. Next, we must consider the reason for the

delay. The reasons for post-accusation delay generally fall within four categories: (1)

intentional delay to gain a tactical advantage over the defense or to harass the defendant;

(2) bureaucratic indifference or negligence, including lack of due diligence; (3) delay

necessary for the fair and effective prosecution of the case; and (4) delay caused, or

acquiesced in, by the defense. State v. Wood, 924 S.W.2d 342, 346 (Tenn. 1996); see

also Simmons, 54 S.W.3d at 759. A delay caused or agreed to by the defendant is weighed

against the defendant. Wood, 924 S.W.2d at 346-47; see also Barker, 407 U.S. at 531. It

appears that the petitioner was arrested on May 9, 2015, and posted a $5000 bond. On

October 22, 2015, an order granting conditional forfeiture of the petitioner’s bond was

entered. The petitioner explained this meant his bond had been forfeited and explained it

may have been because he “got in trouble in another state . . . [n]ot because I got in trouble

here[.]” On March 21, 2016, an order of arraignment and continuance was entered

appointing trial counsel and setting the matter for trial or disposition on April 15, 2016.

On April 15, 2016, an order from status review was filed by the trial court setting an April

29, 2016 discovery deadline. Trial counsel did not attribute the delay as an intentional

effort by the State to gain a tactical advantage over the defense. Moreover, although the

petitioner claimed he did not acquiesce to any of the continuances in this case, trial counsel

stated that the petitioner specifically requested his case to be “slow walked” because he

was dealing with other matters and on bond. We find the reason for the delay to be weighed

against the petitioner.

In assessing what, if any, prejudice the petitioner suffered as a consequence of the

delay, the petitioner asserts the loss of the dash cam video, the testimony of Christopher

Brown, and the opportunity to have his sentence served concurrently to his previous

sentences. However, as previously addressed, the dash cam video did not contain

information requiring the State to preserve it, and, despite the protestations of the petitioner

- 21 -

otherwise, Christopher Brown was not the lawful owner of the UTVs. After applying the

Barker balancing test, we conclude that the petitioner’s right to a speedy trial was not

violated. Accordingly, the petitioner has failed to establish deficient performance or

prejudice arising therefrom. He is not entitled to relief.

CONCLUSION

Based on the foregoing reasoning and analysis, the judgment of the post-conviction

court is affirmed.

____________________________________

CAMILLE R. MCMULLEN, JUDGE

- 22 -