Joseph Lamont Johnson, Jr. v. State of Tennessee ( 2014 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
November 13, 2013 Session
JOSEPH LAMONT JOHNSON, JR. v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2004-A-273 Steve Dozier, Judge
No. M2012-02310-CCA-R3-PC- Filed February 27, 2014
The petitioner, Joseph Lamont Johnson, was convicted of two counts of aggravated robbery,
one count of aggravated assault, and one count of felony evading arrest. The trial court then
reduced one of the aggravated robbery convictions to aggravated assault pursuant to State
v. Franklin, 130 S.W.3d 789, 798 (Tenn. Crim. App. 2003) and sentenced the petitioner to
an aggregate sentence of fifty-four years. The petitioner’s convictions and sentences were
affirmed on appeal. State v. Johnson, No. M2007-01644-CCA-R3-CD, 2009 WL 2567729,
at *1 (Tenn. Crim. App. Aug. 18, 2009). The petitioner brings this post-conviction action
alleging that he received the ineffective assistance of counsel in that: (1) trial counsel failed
to convey a plea offer or inform the petitioner regarding his potential exposure; (2) trial
counsel did not adequately investigate the case; (3) trial counsel performed deficiently by not
moving to dismiss one of the aggravated robbery counts; (4) trial counsel performed
deficiently by not moving to suppress a witness’s identification of the petitioner; (5) appellate
counsel performed deficiently by failing to challenge the petitioner’s sentencing range; and
(6) that the cumulative errors above resulted in the deprivation of the right to counsel. After
a thorough review of the record, we conclude that the petitioner has failed to prove one or
both prongs of a claim of ineffective assistance of counsel with respect to each claim, and
we accordingly affirm the denial of the petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
and Remanded
J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and C AMILLE R. M CM ULLEN, JJ., joined.
David A. Collins, Nashville, Tennessee, for the appellant, Joseph Lamont Johnson, Jr.
Robert E. Cooper, Jr., Attorney General & Reporter; Clark B. Thornton, Assistant Attorney
General; Victor S. Johnson, District Attorney General; and Rachel Sobrero, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL AND PROCEDURAL HISTORY
The convictions in this case arose from the robbery of a Taco Bell in Nashville.
Johnson, 2009 WL 2567729, at *1. According to testimony at trial, the petitioner, wearing
a maroon hoodie, entered the restaurant shortly after it opened at 10:00 a.m. Id. A store
employee, Ebony Moore, went to the back to alert the manager, Sam Alshinawa, that there
was a robbery in progress. Id. According to the manager, the two returned to the dining area,
where the petitioner grabbed Ms. Moore’s hair and threatened to hurt her.1 Throughout the
incident, the petitioner kept his hand in his pocket, which appeared heavy, as though it
contained a gun. Id. at *2. Mr. Alshinawa was frightened, and Ms. Moore pleaded for Mr.
Alshinawa to help her. Id. The petitioner took between $200 and $300 dollars from the
store, some of it in $5 and $1 bills, and he then demanded the surveillance video. Id.
Because there was none, Mr. Alshinawa gave him a training video. Id. Mr. Alshinawa
testified that the petitioner then slammed Ms. Moore’s head into the wall. Id. The petitioner
fled to the vehicle where the co-defendant, Willie Harris, was waiting. Id. He was followed
by Mr. Alshinawa, who used a metal object to break several of the car’s windows. Id.
The police arrived to see Mr. Alshinawa attack the car while the petitioner was still
on the store’s property. Id. After a high-speed chase during which the petitioner sped
directly toward Officer Michael Windsor’s police vehicle, swerving at the last minute, the
petitioner and co-defendant abandoned their vehicle. Id. at *2-3. The co-defendant was
captured with a little over $200 in twenties, tens, and fives. Id. at *3. The petitioner, who
was wearing a maroon hoodie, had $42 in his pants. Id. at *3-4. A creek near the foot chase
yielded an unspecified amount cash, a cell phone, and a driver’s license and social security
card belonging to the petitioner. Id. at *3. A Taco Bell video cassette was recovered from
the petitioner’s car. Id. at *4. The petitioner and co-defendant were returned to the store,
where they were identified by Mr. Alshinawa. Id.
The petitioner testified on his own behalf at trial. According to the petitioner, he was
under the influence of drugs and alcohol when he entered the store. Id. Because no one was
present to wait on him, he lay on the counter. Id. Eventually, Mr. Alshinawa pushed his
head, which escalated into “scuffling.” Id. As the petitioner exited the store, he was
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Ms. Moore did not testify at trial.
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followed by Mr. Alshinawa, who began to break the car windows with a metal pipe. Id. The
petitioner’s testimony was that Mr. Alshinawa then shouted, “Is this what you want?” and
threw the videotape into the car. Id. The petitioner then recounted the car chase, noting that
a police car swerved in front of him and he had to take evasive action. Id. at *4-5.
The jury found the petitioner guilty of two counts of aggravated robbery, one count
of aggravated assault, and one count of evading arrest. However, the trial court, citing
Franklin, 130 S.W.3d at 796, reduced the conviction for the aggravated robbery of Ms.
Moore to aggravated assault, concluding that since only store property had been taken, the
evidence did not support more than one conviction for aggravated robbery. Id. at *5. The
trial court sentenced the petitioner to twenty-eight years as a Range III, persistent offender
for the aggravated robbery conviction. The court sentenced the petitioner as a Range II,
multiple offender to eight years for one aggravated assault, ten years for the other, and to
eight years for the evading arrest conviction. The trial court ordered that the sentences be
served consecutively for an aggregate term of fifty-four years. Id. at *1. After trial, the
petitioner grew dissatisfied with his retained attorney. He was appointed new counsel, and
appellate counsel filed and pursued his direct appeal. This Court affirmed his convictions
and sentences.
The petitioner filed a timely pro se petition for post-conviction relief. Counsel filed
an amended petition on behalf of the petitioner, and the post-conviction court held an
evidentiary hearing.
The petitioner testified that trial counsel represented him for thirteen months, during
which time, with the exception of trial counsel’s hiring and of the trial, he never saw his
attorney. The petitioner introduced a record of his jail visits which covered the duration of
his pre-trial incarceration and in which trial counsel’s name never appears. The petitioner
testified he had eight or nine appearances in court prior to his trial date, but trial counsel
never spoke to him about the case in the holding areas. Trial counsel did not provide him
with discovery, as they had “no communication.” Trial counsel also failed to provide him
with street clothing for the jury trial. The petitioner testified that he was not aware that he
would be on trial until the morning the trial began, that he did not have a chance to contact
his family or get clothing for trial, and that a court officer was looking for clothing for him
on the morning of trial. Counsel did not have an opening statement, did not have any
prepared questions written down in anticipation of examining witnesses, and did not take
petitioner’s suggestions for questions to ask witnesses. The petitioner stated that his trial
counsel did not investigate or interview any of the State’s witnesses. He testified that, had
trial counsel interviewed Ms. Moore, she would have refuted Mr. Alshinawa’s statements
regarding the assault against her. According to the petitioner, neither the State nor his
attorney subpoenaed her, and Ms. Moore was not even present in the Taco Bell.
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The petitioner also asserted that trial counsel never conveyed the State’s plea offer to
plead guilty to the charges and be sentenced to twenty years as a Range II offender.
Furthermore, trial counsel never informed him that he could be facing an aggregate sentence
of over fifty years. The petitioner testified that, had he known about the potential punishment
and the offer, he would have accepted the offer. On cross-examination, however, he
maintained he had not committed any robbery, but when asked if he would have pled guilty
to the crime, he answered, “It’s possible, if I knew what I was facing going to trial. It’s
highly likely, yes, I would have accepted that 20[-]year deal.” He elaborated that if he had
known the range of sentencing he faced, he would have taken the twenty years. He also
noted that he had pleaded guilty on other robbery charges because he was guilty. The
petitioner testified, as further corroboration that trial counsel had not told him the range of
punishment he faced, that trial counsel at the sentencing hearing told the trial court that he
did not know how the petitioner’s federal bank robbery conviction would be classified for
the purposes of establishing range.
The petitioner also testified that he believed his counsel was deficient in not moving
to have one of the aggravated robbery counts dismissed, because while the indictment alleged
he had taken property from two separate people, the proof showed that he took money only
from the business. The petitioner testified that he was ultimately sentenced for aggravated
assault as a lesser-included offense of aggravated robbery.
The petitioner next alleged his counsel was deficient in failing to file a motion to
suppress evidence of the show-up identification. Trial counsel did not advise him that if he
testified, he would essentially be conceding issues of identification by putting himself at the
scene of the crime.
The petitioner further alleged that his trial counsel erred in allowing the trial court to
count his two prior state convictions for aggravated robbery separately, insisting that, as they
were both committed on the same day, they should only count as one conviction for the
purposes of establishing a sentencing range. The petitioner’s appellate counsel refused to
raise this as an issue on appeal.
Detective Norris Tarkington, who investigated the crime and was a witness at the
petitioner’s trial, testified that he did not recall trial counsel ever contacting him to discuss
the facts of the case or the identification. Regarding the show-up identification, Detective
Tarkington testified that the defendant was standing next to a police vehicle in handcuffs that
were not readily visible and that he then brought the witnesses individually to make an
identification. He testified that at the time, it was standard procedure to conduct a show-up
if a suspect were apprehended within two hours of a crime. He elaborated on
cross-examination that the petitioner had been continuously in sight of police from the time
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he left the parking lot until the time he was apprehended. Detective Tarkington recalled that
Ms. Moore told him that the petitioner had grabbed her by the hair and told her to open the
cash register, then pulled her to the back. He did not recall Mr. Alshinawa saying that Ms.
Moore was forced to lie on the floor or that she was not dragged but walked to the back of
the store alone to tell him about the robbery. Mr. Alshinawa had also not told him that the
petitioner slammed Ms. Moore’s head into a steel door or that he and the petitioner had
begun shoving each other. Detective Tarkington did not recall any prosecutor contacting him
regarding finding Ms. Moore.
David Hopkins, who represented the co-defendant at trial, testified that he made a few
attempts to contact the petitioner’s attorney prior to trial to discuss trial strategy, but he was
unsuccessful. Close to the time of trial, he was able to speak with petitioner’s attorney and
attempted to arrange a meeting, but they were unable to do so. Mr. Hopkins testified that on
the day of trial, he had arrived early with clothing for his client, but trial counsel did not
arrive on time, forcing the parties to wait for him. Trial counsel then asked to see Mr.
Hopkins’s copy of the discovery materials and started to review them. As he flipped through
the discovery, he asked Mr. Hopkins a question similar to: “What’s this case about?” Mr.
Hopkins testified that he did not speak to trial counsel because the jury pool was already
being brought into the courtroom, but trial counsel “seemed serious” in asking the question.
The petitioner’s appellate counsel testified that he did not challenge the sentencing
as a Range III offender because he believed the petitioner was sentenced within the correct
range, having committed three prior Class B felonies and one Class C felony.
Trial counsel agreed that the petitioner had eight or nine court appearances and
testified that they had “multiple discussions” during which the petitioner asserted that he had
been at the Taco Bell, but the robbery was a misunderstanding and he had committed no
crime. The petitioner had maintained his innocence’ and “he wasn’t going to take any pleas.”
Trial counsel asserted that, while he did not give the petitioner the State’s letter, he did
convey the plea offer, and the petitioner rejected it. Trial counsel testified that, “basically
they’re wanting him to plead to a lot of time, and he said, well, I’m innocent, I didn’t rob
anybody, I didn’t do it. He always said the same thing … .But in any event, even prior to the
trial, he basically said that I’m not taking a deal of any sort.”
He acknowledged that he did not know at the time of the sentencing hearing how the
petitioner’s federal bank robbery conviction would be classified in Tennessee. He testified
that he believed the classification was usually decided by the trial court, using analogous
state crimes. He testified he did not look at the petitioner’s prior convictions to determine
if they were on the same day. Trial counsel testified that he did not think the petitioner
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would get as lengthy a sentence as he did. Regarding discussions with the petitioner about
sentencing, trial counsel testified as follows:
Q. Okay. Did you ever have a discussion about the range of
punishment he was facing?
A. No, because I don’t think we discussed what the total range
was. I think we talked about what he could get for each
individual offense, and mainly we were focused on the
aggravated robbery portion, because I told him he could get
eight to 30 on those cases. But we didn’t talk about if the cases
got split up and if they were consecutive and you know,
everything could come down. We were mainly focused on the
class B felonies.
Trial counsel testified that the defense theory of the case was that the petitioner lacked
intent to rob the victims and that Mr. Alshinawa had been disrespectful to the petitioner, who
was a customer, and the two became involved in a physical altercation. He testified that he
did not move to dismiss the second count of aggravated robbery because he believed that the
issue of a second robbery was a jury question. He testified that he didn’t challenge the
show-up both because the police had followed the petitioner from the actual scene of the
crime and because the petitioner acknowledged being at the Taco Bell.
Trial counsel acknowledged not interviewing any of the State’s witnesses, but stated
he spoke with the police officers and detectives regarding the case. He stated that he did not
give the petitioner a copy of the discovery because the petitioner was in jail, and he didn’t
want the documents available to other inmates. However, he asserted he did discuss the
discovery with the petitioner. He acknowledged looking at Mr. Hopkins’s discovery, but
stated he did so because the photographs were of better quality than his copy. He testified
that he did ask what the case was about but did so as a joke. He also testified that he had
been in contact with the petitioner’s family regarding bringing clothing, and that he was late
because he was in the building trying to find clothing for the petitioner with the aid of the
court officers.
Trial counsel admitted that he had received two public censures from the Board of
Professional Responsibility in 2004 and 2006 for neglecting and failing to prepare a child
support case and for filing a late notice of appeal and brief in another case. He testified that
the petitioner had also filed a complaint against him but that the complaint had been found
to be without merit.
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The post-conviction court denied the petition. The court found that “Although trial
counsel did not visit the petitioner as often as he should have,” the petitioner could not show
prejudice because he offered no evidence of a viable defense that could have been pursued.
The post-conviction court further found that there was no deficiency or prejudice in counsel’s
not moving to dismiss the second aggravated robbery charge. The post-conviction court
found no merit in the issue that trial counsel should have challenged the show-up, noting that
there was no evidence it was prejudicial or suggestive, and no prejudice was shown. The
post-conviction court denied relief on the issue of counsel’s failure to interview or call Ms.
Moore, noting that she could not be found for the hearing and that there was no prejudice.
The post-conviction court also accredited trial counsel’s testimony that he did convey the
plea offer to the petitioner, who refused it, and it declined to find prejudice on the issue. The
post-conviction court denied relief on the sentencing issues, finding that the convictions were
not subject to the twenty-four hour merger rule and that there was accordingly no deficiency
or prejudice.
ANALYSIS
I. Standard of Review
Tennessee’s Post-Conviction Procedure Act provides for relief when a conviction or
sentence is void or voidable because of the abridgment of any right guaranteed by the
Constitution of Tennessee or the Constitution of the United States. T.C.A. § 40-30-103
(2010). To obtain post-conviction relief, a petitioner must prove his allegations of fact by
clear and convincing evidence. T.C.A. § 40-30-110(f). Clear and convincing evidence is
evidence “which leaves ‘no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” Grindstaff v. State, 297 S.W.3d 208, 221 (Tenn.
2009) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)). On
appeal, a post-conviction court’s findings of fact are conclusive unless the evidence
preponderates otherwise. Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006). Accordingly,
questions concerning the credibility of the witnesses, the weight and value of evidence, and
the factual issues raised by the evidence are to be resolved by the post-conviction court, and
an appellate court may not substitute its own inferences for those drawn by the post-
conviction court. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001). The post-
conviction court’s decisions on questions of law or mixed questions of law and fact, such as
a claim of ineffective assistance of counsel, are reviewed de novo. Nichols v. State, 90
S.W.3d 576, 586 (Tenn. 2002).
The petitioner asserts that various errors committed by his trial counsel deprived him
of his right to counsel under the Sixth Amendment to the United States Constitution and
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article I, section 9 of the Tennessee Constitution. In order to establish that he received the
ineffective assistance of counsel, the petitioner must show both that his lawyer’s performance
was deficient and that the deficiency resulted in prejudice. Pylant v. State, 263 S.W.3d 854,
868 (Tenn. 2008). Deficiency can be shown if the petitioner demonstrates that his attorney’s
services were not “within the range of competence demanded of attorneys in criminal cases.”
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). A petitioner must demonstrate
deficiency by “showing that counsel made errors so serious that counsel was not functioning
as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Felts v. State, 354
S.W.3d 266, 276 (Tenn. 2011) (quoting Strickland v. Washington, 466 U.S. 668, 687
(1984)). A reviewing court indulges “a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” State v. Burns, 6 S.W.3d 453,
462 (Tenn. 1999).
To prevail on the prejudice prong, the petitioner “must establish a reasonable
probability that but for counsel’s errors the result of the proceeding would have been
different.” Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007) (quoting Vaughn, 202 S.W.3d
at 116). A reasonable probability is “a probability sufficient to undermine confidence in the
outcome.” Id. A claim may be denied for failure to prove either prong, and a court need not
address both if the petitioner has failed to establish either deficiency or prejudice. Goad v.
State, 938 S.W.2d 363, 370 (Tenn. 1996).
II. Ineffective Assistance in Plea Negotiations
The petitioner’s first claim is that trial counsel performed deficiently in failing to
render effective assistance during plea bargaining. The petitioner testified that trial counsel
never conveyed the State’s offer to sentence him concurrently as a Range II offender to an
effective twenty-year sentence. Although trial counsel acknowledged he did not give the
State’s offer letter to the petitioner, he testified that he “did relay the offer, as we had to, and
he said he was not taking any time for this.” In what became essentially a contest of
credibility in which the petitioner asserted he did not know of the offer and trial counsel
asserted he did, the trial court accredited the testimony of trial counsel and found that the
offer was conveyed.
The State’s offer was made on December 2, 2004. The petitioner’s trial began on
December 6, 2004. In the intervening days, trial counsel’s name continued to remain
conspicuously absent from the roster of visitors whom the petitioner received in prison.
Testimony at the hearing established that trial counsel was late to court on the day of trial,
and the petitioner testified that his time before trial was taken up with the issue of finding
adequate clothing and that the jury was in the box by time he was brought into the courtroom.
The petitioner asks us to infer, from these facts, that the offer was not conveyed to him, and
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he asks us to conclude that the evidence preponderates against the trial court’s finding that
trial counsel conveyed the plea offer. However, we cannot say that the fact that trial counsel
did not visit the prison precludes the possibility that he conveyed the offer in some other way.
Neither post-conviction counsel nor the State inquired into the minutiae of the manner in
which the offer was conveyed, and although the evidence suggests that trial counsel did not
conveyed the offer in person, there is no evidence regarding the possibility that it was
conveyed in some other manner; there is simply the testimony of counsel that he conveyed
the offer and that of the petitioner that counsel did not do so. Ultimately, then, the question
remains one of credibility. Questions concerning the credibility of the witnesses, the weight
and value of evidence, and the factual issues raised by the evidence are resolved by the post-
conviction court. Honeycutt, 54 S.W.3d at 766-67. Furthermore, a post-conviction court’s
factual determinations are conclusive unless the evidence preponderates otherwise, Vaughn,
202 S.W.3d at 115. We conclude that the evidence does not preponderate against the post-
conviction court’s determination that the offer was conveyed.
However, the testimony of trial counsel and the petitioner did not conflict regarding
another aspect of the plea offer: that trial counsel never told the petitioner that, if he elected
to reject the offer, his sentences could be run consecutively. The State asks us to consider
this issue waived because, although the petition alleged that trial counsel did not convey a
plea offer, it did not allege that trial counsel’s communication of the plea offer was defective,
specifically in that trial counsel did not alert the petitioner to the aggregate sentence he
faced. See T.C.A. § 40-30-110(c) (“Proof upon the petitioner’s claim or claims for relief
shall be limited to evidence of the allegations of fact in the petition.”). The petition does
allege that trial counsel never came to see the petitioner, never spoke to him about his case,
had not adequately investigated the petitioner’s classification for sentencing purposes, and
never spoke to him regarding a plea offer. While the petition does not specifically allege that
trial counsel was deficient in not conveying the aggregate sentence the petitioner faced, we
choose to examine the issue on the merits.
The Strickland standard for determining whether a petitioner received the ineffective
assistance of counsel applies in plea negotiations as well as during trial. Missouri v. Frye,
132 S. Ct. 1399, 1407, 1409 (2012); see Hill v. Lockhart, 474 U.S. 52, 58 (1985).
Accordingly, “counsel have responsibilities in the plea bargain process, responsibilities that
must be met to render the adequate assistance of counsel that the Sixth Amendment requires
in the criminal process at critical stages.” Frye, 132 S. Ct. at 1407. A fair trial does not
correct deficient performance because of “the reality that criminal justice today is for the
most part a system of pleas, not a system of trials.” Lafler v. Cooper, 132 S. Ct. 1376, 1388
(2012). Accordingly, “it is insufficient simply to point to the guarantee of a fair trial as a
backstop that inoculates any errors in the pretrial process.” Frye, 132 S. Ct. at 1407.
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In Magana v. Hofbauer, 263 F.3d 542, 549-50 (6th Cir. 2001), as in the petitioner’s
case, trial counsel testified that he had never told the accused that his sentences could be run
consecutively. In Magana, trial counsel in fact had assured his client that the sentences
would be concurrent and that the most he could be sentenced to after trial was ten years,
which was equivalent to the State’s plea offer. Id. The Sixth Circuit concluded that trial
counsel’s “gross misadvice to his client regarding the client’s potential prison sentence,
certainly fell below an objective standard of reasonableness under prevailing professional
norms.” Id. at 550; see also Wooten v. Raney, 112 Fed. App’x 492, 496 (6th Cir. 2004)
(noting that “in some cases the failure to inform a defendant correctly of his sentencing
exposure at trial may constitute ineffective assistance of counsel…” but rejecting the claim
based on prejudice); Grindstaff, 297 S.W.3d at 221 (quoting Moss v. United States, 323 F.3d
445, 474 (6th Cir. 2003) for the proposition that “the failure of counsel to ‘provide
professional guidance ... regarding ... sentence exposure prior to a plea may constitute
deficient assistance’”). “A criminal defendant has a right to expect at least that his attorney
will review the charges with him by explaining the elements necessary for the government
to secure a conviction, discuss the evidence as it bears on those elements, and explain the
sentencing exposure the defendant will face as a consequence of exercising each of the
options available.” U.S. v. Wolfe, No. 2:11-CR-33, 2012 WL 1957427, at *10 (E.D. Tenn.
May 31, 2012) (quoting Smith v. United States, 348 F.3d 545, 553 (6th Cir. 2003)). Based
on the unconflicting testimony of the petitioner and trial counsel, trial counsel did not alert
the petitioner to his potential sentencing exposure if he proceeded to trial. Furthermore, trial
counsel’s testimony seemed to suggest that he had told the petitioner he could get as little as
eight years’ imprisonment for the aggravated robbery charge, which would be the minimum
for a Range I offender. We conclude that trial counsel’s performance was deficient.
The Supreme Court has recently addressed what a petitioner must prove to show
prejudice when alleging that counsel’s deficient performance resulted in the rejection of a
more favorable plea offer:
In these circumstances a defendant must show that but for the
ineffective advice of counsel there is a reasonable probability
that the plea offer would have been presented to the court ( i.e.,
that the defendant would have accepted the plea and the
prosecution would not have withdrawn it in light of intervening
circumstances), that the court would have accepted its terms,
and that the conviction or sentence, or both, under the offer’s
terms would have been less severe than under the judgment and
sentence that in fact were imposed.
Lafler, 132 S. Ct. at 1385; see also Magana, 263 F.3d at 551-52 (predating Lafler and
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concluding that the petitioner established a reasonable probability that he would have
accepted the plea based on his own testimony, on the large disparity between the ten-year
offer and his forty-year exposure, and on trial counsel’s testimony that the petitioner stated,
after receiving the misadvice, that he would reject the offer “[u]nder those circumstances”).
The Sixth Circuit does not require a defendant to support his own assertion that he would
have accepted the offer with additional objective evidence. Griffin v. U.S., 330 F.3d 733,
737 (6th Cir. 2003); Smith, 348 F.3d at 551.
In this case, the disparity between the offer, which was for twenty years’
imprisonment, and the petitioner’s exposure, which was fifty-eight years, is large. See U.S.
v. Morris, 470 F.3d 596, 602 (6th Cir. 2006) (“This Court has given special weight to
significant disparities between penalties offered in a plea and penalties of a potential sentence
in determining whether a defendant suffered prejudice by not accepting a plea offer.”).
Furthermore, the State’s case against the petitioner was particularly strong. Nevertheless,
there is also evidence which suggests the petitioner would not have accepted any plea offer.
First and most tellingly, the petitioner’s own testimony on the issue was equivocal, as he
testified at times that he would have taken the offer and at other times that it was “highly
likely” or “possible” that he would have. Second, the petitioner maintained his innocence
throughout the trial and post-conviction proceedings. The petitioner’s testimony was that no
robbery took place and that the store manager fabricated the robbery after an argument
escalated into a physical confrontation. But see Griffin, 330 F.3d at 738 (noting that
“declarations of innocence are therefore not dispositive on the question of whether [the
petitioner] would have accepted the government’s plea offer” and remanding for a hearing).
Finally, petitioner’s counsel testified that petitioner was adamantly opposed from the
beginning to taking a plea offer, and he testified that the petitioner did not want to plead
guilty because he steadfastly maintained that he was innocent of the crime. The post-
conviction court “accredit[ed] the testimony of trial counsel that he did communicate the
offer and that the petitioner was not interested in taking any plea.” In light of the post-
conviction court’s factual finding that the petitioner was “not interested in taking any plea”
and other evidence suggesting that the petitioner was not interested in plea bargaining, we
conclude that the petitioner has failed to establish by clear and convincing evidence that he
would have taken the twenty-year plea offer. Accordingly, the petitioner has not shown a
reasonable probability that, but for trial counsel’s failure to alert him to his potential
sentencing exposure, the plea offer would have been presented to and accepted by the
sentencing court. See Smith v. State, No. E2003-00655-CCA-R3-PC, 2004 WL 73267, at *7
(Tenn. Crim. App. Jan. 9, 2004) (declining to find prejudice stemming from an allegation that
counsel did not discuss consecutive sentencing because the petitioner’s testimony showed
“that he wanted to prove his innocence and that he believed that he had a chance to be
acquitted on all the charges”).
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III. Failure to Investigate
The petitioner next asserts that he received the ineffective assistance of counsel at
trial, in that trial counsel neglected to investigate the case, interview witnesses, or
communicate adequately with him.
The petitioner, based on prison records which show trial counsel never visited him,
asserts that his trial counsel never met with him or discussed the case with him prior to trial.
Trial counsel testified that he met with the petitioner on the eight or nine occasions when the
petitioner was in the courthouse, and that he discussed the case with the petitioner during
those times, though sometimes only briefly. The trial court accredited trial counsel’s
testimony, although it acknowledged that trial counsel “did not visit the petitioner as often
as he should have.” The petitioner makes no allegation of prejudice in this regard or
explanation of how the trial would have been different if trial counsel had held additional
meetings with the petitioner. Accordingly, this issue is without merit.
The petitioner also challenges trial counsel’s failure to interview witnesses,
particularly Mr. Alshinawa and Ms. Moore. The petitioner urges that there were
discrepancies between Mr. Alshinawa’s testimony and his initial statement to the police, and
that interviewing witnesses “may have produced even more.” He particularly points to the
fact that Mr. Alshinawa’s initial statement to police apparently did not allege that the
petitioner forced anyone to lie on the floor or that the petitioner slammed Ms. Moore’s head
into a door. However, the petitioner did not call Mr. Alshinawa at the post-conviction
hearing to demonstrate any further inconsistencies in his testimony. When a claim of
ineffective assistance of counsel is premised on counsel’s failure to interview or call
witnesses, the witnesses must be presented at the post-conviction hearing. Black v. State, 794
S.W.2d 752, 757 (Tenn. Crim. App. 1990). “As a general rule, this is the only way the
petitioner can establish that . . . the failure to have a known witness present or call the
witness to the stand resulted in the denial of critical evidence which inured to the prejudice
of the petitioner.” Pylant, 263 S.W.3d at 869 (quoting Black, 794 S.W.2d at 757). This is
because the court cannot speculate as to what a witness’s testimony might have been. Black,
794 S.W.2d at 757. Presenting the witness allows the post-conviction court to determine
whether that witness’s testimony would have been credible, material, and admissible. Pylant,
263 S.W.3d at 869-70. Without the post-conviction testimony of Mr. Alshinawa and Ms.
Moore, the claim is purely speculative and the petitioner cannot show prejudice.
Accordingly, this claim is without merit.
The petitioner alleges trial counsel’s performance was deficient in not preparing an
opening statement or theory of defense. The petitioner also objects to counsel’s performance
in not challenging the discrepancies in Mr. Alshinawa’s testimony at trial. However, the
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petitioner can show no prejudice from these alleged shortcomings. Regarding counsel’s
opening statement, the petitioner has presented no proof regarding how the outcome of the
trial would have been different had counsel’s preparation been more thorough. Although the
petitioner called Detective Tarkington at the hearing to testify about inconsistencies between
Mr. Alshinawa’s initial statement to the police and his trial testimony, the fundamentals of
the witness’s testimony – that the defendant entered the store, threatened Mr. Alshinawa and
Ms. Moore with what appeared to be a gun in his pocket, and took money from the cash
register – remained unchanged. Accordingly, he cannot show a reasonable probability that,
but for any alleged errors, the result of the proceeding would have been different.
IV. Franklin Claim
The petitioner next asserts that his trial counsel was deficient in failing to move to
dismiss one of the two counts of aggravated robbery based on State v. Franklin, 130 S.W.3d
789 (Tenn. Crim. App. 2003). In Franklin, a robbery was committed in which two store
employees were forced to hand over store property at gunpoint. Id. at 791. The defendant
in Franklin was convicted of two counts of aggravated robbery, but this Court found that
only one conviction for aggravated robbery could stand, as there was only one taking. Id.
at 798. However, the second count was not dismissed; instead, it was reduced to the lesser
included offense of aggravated assault. Id. In the petitioner’s case, nearly the same series
of events transpired. The petitioner was convicted of both counts, but one count was reduced
to the lesser included offense of aggravated assault.
“The Double Jeopardy Clause has been interpreted as providing three separate
protections: (1) protection against a second prosecution for the same offense after acquittal;
(2) protection against a second prosecution for the same offense after conviction; and (3)
protection against multiple punishments for the same offense.” State v. Watkins, 362 S.W.3d
530, 541 (Tenn. 2012) (emphasis added). As such, Franklin stands for the proposition that,
if the proof supports only a single taking from the business, two convictions cannot stand.
See also State v. Anthony, No. W2004-00255-CCA-MR3-CD, 2004 WL 2848380, at *7
(Tenn. Crim. App. Dec. 10, 2004) (reducing two out of four counts of aggravated robbery
to aggravated assault when the defendant robbed one customer and the cash registers of three
employees); State v. Johnson, No. W2002-00987-CCA-R3-CD, 2003 WL 22080778, at *11
(Tenn. Crim. App. Sept. 4, 2003) (modifying one conviction for especially aggravated
robbery to aggravated assault where two store employees were shot during a robbery in
which money was taken from the store). The State may, of course, charge certain crimes
under alternative theories, and the petitioner offers no support for the proposition that, had
the second aggravated robbery charge been challenged, the trial court would have been
obliged to dismiss the count entirely. See, e.g., State v. Howard, 30 S.W.3d 271, 275 n.4
(Tenn. 2000). Accordingly, the post-conviction court correctly found that trial counsel did
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not perform deficiently in not moving to dismiss the second count and that there was no
prejudice.
V. Failure to File Motion to Suppress Identification Evidence
The petitioner next asserts that his trial counsel’s performance was deficient because
trial counsel did not move to suppress Mr. Alshinawa’s identification of the petitioner when
the petitioner was returned to the scene of the crime in handcuffs. “To be admissible as
evidence, an identification must not have been conducted in such an impermissibly
suggestive manner as to create a substantial likelihood of irreparable misidentification.”
State v. Cribbs, 967 S.W.2d 773, 794 (Tenn. 1998). If the identification was suggestive, the
court must consider whether the identification was ultimately reliable. State v. Biggs, 211
S.W.3d 744, 749 (Tenn. Crim. App. 2006). A show-up, in which a witness is presented with
either a single photograph or single suspect for the purposes of identification, is “inherently
suggestive and unfair to the accused.” State v. Thomas, 780 S.W.2d 379, 381 (Tenn. Crim.
App. 1989). However, the practice is permissible when “the showup occurs as an
on-the-scene investigatory procedure shortly after the commission of the crime.” Thomas,
780 S.W.2d at 381. While presenting the suspect in handcuffs has been condemned, “a
suspect in handcuffs does not establish that the show-up identification was impermissibly
suggestive when reliability of the identification may be otherwise established.” Ross v. State,
No. W2008-01130-CCA-R3-PC, 2009 WL 2568202, at *9 (Tenn. Crim. App. Aug. 20,
2009); see State v. Strickland, No. M2002-01714-CCA-R3-CD, 2003 WL 22243440, at *13
(Tenn. Crim. App. Sept. 30, 2003) (concluding a show-up “was not impermissibly suggestive
so as to give rise to a substantial likelihood of misidentification” when it took place within
an hour of the crime, at the scene, and as part of an on-the-scene investigatory procedure).
Here, the victims summoned the police while the robbery was occurring, and the police
arrived to see the petitioner and his co-defendant still in the parking lot, pursued by one of
the victims. The petitioner initiated a high-speed chase during which he never left officers’
line of sight up until his capture. He and the codefendant were apprehended with a
substantial amount of cash, and the store video was found in their vehicle. Because the
show-up was part of an on-the-scene investigatory procedure immediately after the
commission of the crime, the identification was not subject to suppression.
Moreover, identity was substantially not at issue in the petitioner’s case. See Bowles
v. State, No. M2003-01740-CCA-R3-PC, 2004 WL 1656476, at *4 (Tenn. Crim. App. July
23, 2004) (concluding that counsel was not ineffective in failing to obtain DNA evidence
when identity was not at issue). Counsel’s actions must be evaluated in light of the
information counsel receives from the accused. Felts, 354 S.W.3d at 277 (“The
reasonableness of counsel’s actions may be determined or substantially influenced by the
defendant’s own statements or actions. . . .” (quoting Strickland, 466 U.S. at 691)). In the
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case at bar, the petitioner never denied being on the scene or being the individual who
became involved in a conflict with the store manager. See Sadler v. State, No. M2008-02853-
CCA-R3-PC, 2010 WL 10968, at *5 (Tenn. Crim. App. Jan. 4, 2010) (rejecting post-
conviction petitioner’s claim that counsel was deficient in not alerting the petitioner that
several witnesses were not able to identify him from a line-up when counsel testified that he
shared the information and that identity was not at issue). Instead, he maintained that he was
present in the Taco Bell as a customer and that the store manager initiated a confrontation
with him and eventually assaulted him with a lead pipe. He denied feigning that he had a gun
or robbing the store, and he explained that the manager had inexplicably thrown a video
cassette into his car after breaking the window. As noted above, the petitioner fled the
restaurant pursued by the victim, and he never left officers’ line of sight during the ensuing
chase. Mr. Alshinawa then identified the petitioner at trial. In these circumstances, trial
counsel was not deficient for failing to move to suppress the identification, and the petitioner
cannot show that, but for the alleged error, the result of the proceeding would have been
different. See Majors v. State, No. M2011-02353-CCA-R3-PC, 2012 WL 3291801, at *4
(Tenn. Crim. App. Aug. 13, 2012) (concluding that counsel was not ineffective for failing
to challenge show-up when victims made unequivocal identifications at trial). Accordingly,
we conclude that the post-conviction court did not err in finding that trial counsel’s
performance was not deficient or prejudicial.
VI. Sentencing Range
The petitioner’s final allegation of deficient performance is the assertion that both his
trial counsel and his appellate counsel failed to argue that he was sentenced under the version
of Tennessee Code Annotated section 40-35-107(b)(4) in place in 2005 rather than 2003 2 and
that he should not have been sentenced as a Range III offender for the aggravated robbery.
The petitioner maintains that under State v. Horton, 880 S.W.2d 732 (Tenn. 1994) and
Tennessee Code Annotated section 40-35-107(b)(4), his two prior state convictions for
aggravated robbery should be treated as one conviction for the purpose of establishing range
because they occurred within one twenty-four hour period. He argues that cases holding
otherwise were decided after his sentencing hearing and cannot therefore be applied to his
case.
In 2003, Tennessee Code Annotated section 40-35-107(b)(4) provided:
Convictions for multiple felonies committed as part of a single
course of conduct within twenty-four (24) hours constitute one
2
Insofar as the petitioner alleges he was sentenced under the 2005 version of the Sentencing Act, his
allegation is refuted by the appellate opinion on direct appeal. Johnson, 2009 WL 2567729, at *16 n.3.
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(1) conviction for the purpose of determining prior convictions;
however, acts resulting in bodily injury or threatened bodily
injury to the victim or victims shall not be construed to be a
single course of conduct.3
The identical language appears in the 2003 version of Tennessee Code Annotated section
40-35-106, and the Sentencing Commission’s comments to section 107 note that “[a]part
from the numbers of prior felony convictions, the provisions of this section are the same as
§ 40-35-106 concerning multiple offenders.” The Sentencing Commission’s comments to
Tennessee Code Annotated section 40-35-106, in turn, elucidate how the merger rule should
be applied, and, more importantly, how violent crimes are excluded from the twenty-four-
hour merger rule. As an example, the Commission notes that “if the defendant was convicted
of robbing several people in the same store, such would constitute separate convictions for
enhancement purposes for a new violation of the law.” T.C.A. § 40-35-106 Sentencing
Comm’n Cmts. (2003). Accordingly, the Sentencing Commission’s comments indicate that
the rule the petitioner complains of was already firmly established at the time of his crimes.
Neither does case law, either at the time of his crime or at the present time, support
the petitioner’s contention. State v. Bailey, No. 01C01-9507-CR-00220, 1996 WL 234083,
at *2 (Tenn. Crim. App. May 9, 1996) (concluding that, while two prior attempted
aggravated robberies were part of a single course of conduct, they also threatened bodily
injury and there was no error in determining “that the two attempted aggravated robbery
convictions qualified as separate prior convictions for the purpose of sentencing this
Defendant as a multiple offender”); accord State v. Middlebrook, No. M2009-02276-CCA-
R3-CD, 2011 WL 198689, at *6-7 (Tenn. Crim. App. Jan. 11, 2011) (“Following our review,
we conclude that the statutory elements of robbery include a threat of bodily injury when the
State is required to prove that the defendant committed the act through violence or by putting
the person in fear.”); State v. Buchanan, No. M2007-02870-CCA-R3-CD, 2008 WL
4467185, at *5 (Tenn. Crim. App. Oct. 6, 2008) (“Both robbery and aggravated assault
contain elements that the defendant cause or threaten to cause bodily injury.”); see also State
v. Baker, 751 S.W.2d 154, 166 (Tenn. Crim. App. 1987) (rejecting, under prior statute, the
claim that two robberies completed in twenty-four hours were part of a single course of
conduct with no substantial change to the criminal objective).
Accordingly, we discern no error.
3
This statute currently excludes from the twenty-four-hour merger rule felonies for which the
statutory elements include serious bodily injury, bodily injury, threatened bodily injury, or threatened serious
bodiliy injury to the victim, as well as aggravated burglary. T.C.A. § 40-35-107(b)(4) (2010).
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VII. Cumulative Error
Finally, the petitioner argues that trial counsel’s cumulative errors deprived him of his
right to counsel under the Sixth Amendment of the United States Constitution and under
article I, section 9 of the Tennessee Constitution. “The cumulative error doctrine is a judicial
recognition that there may be multiple errors committed in trial proceedings, each of which
in isolation constitutes mere harmless error, but which when aggregated, have a cumulative
effect on the proceedings so great as to require reversal in order to preserve a defendant’s
right to a fair trial.” State v. Hester, 324 S.W.3d 1, 76 (Tenn. 2010). The petitioner’s
argument fails because the doctrine is only applicable where the accused has established
there was more than one error committed. Id. at 77; see also Porter v. State, No. M2012-
01139-CCA-R3-PC, 2013 WL 1197730, at *12 (Tenn. Crim. App. Mar. 26, 2013) (quoting
Leonard v. State, No. M2006-00654-CCA-R3-PC, 2007 WL 1946662, at *21 (Tenn. Crim.
App. July 5, 2007) for the proposition that “[o]ur Court has previously noted that a Petitioner
who has failed to show that he received constitutionally deficient representation on any single
issue may not successfully claim that his constitutional right to counsel was violated by the
cumulative effect of counsel’s errors”). The post-conviction court did not err in rejecting this
argument.
CONCLUSION
Based on the foregoing, we affirm the judgment of the post-conviction court.
However, we note that the judgment forms, while reflecting the petitioner’s conviction
offenses and the fact that he had a jury trial, do not have a check in the “Guilty” box. Under
Tennessee Rule of Criminal Procedure 36, “[a]fter giving any notice it considers appropriate,
the court may at any time correct clerical mistakes in judgments, orders, or other parts of the
record, and errors in the record arising from oversight or omission.” This rule has also been
applied when a defendant challenges the legality of the judgment. Cantrell v. Easterling, 346
S.W.3d 445, 449 (Tenn. 2011) (citing Wilkerson v. Carlton, No. E2007-02453-CCA-R3-HC,
2008 WL 4949227 (Tenn. Crim. App. Nov. 20, 2008)). Accordingly, we remand with
instructions for the post-conviction court to correct the judgment sheets.
_________________________________
JOHN EVERETT WILLIAMS, JUDGE
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