        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs December 11, 2013

          AUQEITH LASHAWN BYNER v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Davidson County
                          No. 2008-C-2390 Steve Dozier, Judge



                  No. M2013-00486-CCA-R3-PC - Filed February 27, 2014


Petitioner, Auqeith Lashawn Byner, was indicted by the Davidson County Grand Jury for one
count of possession of .5 grams or more of cocaine within 1,000 feet of a school with the
intent to sell or deliver and one count of reckless driving. After a jury trial, he was convicted
as charged. As a result, he was sentenced to a sixteen-year sentence for the possession of
cocaine with intent to sell conviction and six months for reckless driving, to be served
concurrently to each other but consecutively to the sentence in another case 2007-D-3157.
Petitioner initiated a direct appeal of his convictions but dismissed the appeal voluntarily.
Petitioner later sought post-conviction relief on the basis of ineffective assistance of counsel.
After a hearing, the post-conviction court denied relief. Petitioner appealed. After a review,
we determine Petitioner has failed to establish by clear and convincing evidence that he
received ineffective assistance of counsel at trial. Accordingly, the judgment of the post-
conviction court is affirmed.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which A LAN E. G LENN and C AMILLE
M CM ULLEN, JJ., joined.

Ashley Preston, Nashville, Tennessee, for the appellant, Auqeith Lashawn Byner.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General, and Rachel Sobrero, Assistant
District Attorney, for the appellant, State of Tennessee.
                                           OPINION

                                      Factual Background

       Petitioner was indicted in July of 2008 by the Davidson County Grand Jury for
possession of more than .5 grams of cocaine with intent to sell within 1,000 feet of a school.
Petitioner was also charged with reckless driving. The case proceeded to trial, and Petitioner
was convicted by a jury. Subsequently, the trial court sentenced Petitioner to a sixteen-year
sentence for possession of cocaine with intent to sell in a school zone and six months for
reckless driving. The sentences were ordered to be served concurrently with each other but
consecutively to the sentences in case number 2007-D-3157.1 The direct appeal of
Petitioner’s convictions was voluntarily dismissed. Petitioner filed a timely petition for post-
conviction relief on the basis of ineffective assistance of counsel.

        The post-conviction court held a hearing on the petition. At the hearing, Petitioner
testified that trial counsel failed to file a motion to suppress. Petitioner claimed that had trial
counsel pursued a suppression hearing it would have shown there was “no probable cause
to search” his person. Petitioner testified that trial counsel was “adamant” that the State’s
case was “weak.” He could not recall if trial counsel specifically discussed a plea agreement
but recalled the State offering eight years at 100 percent prior to trial. Petitioner did not find
this offer appealing based on trial counsel’s assessment of the State’s case.

       Petitioner did not recall the specifics of his pretrial meetings with trial counsel but
remembered that they met to prepare for trial. Petitioner claimed that he wanted to testify
but that trial counsel “didn’t want [him] to get on the stand.” He believed that if he testified
the jury would have heard another version of the events leading up to his arrest, including
the fact that the alleged drug sale took place on a Sunday when school was not in session.

        Petitioner also testified that he wanted trial counsel to utilize an investigator but that
trial counsel did not employ an investigator prior to trial.

      Petitioner did not recall meeting with trial counsel prior to the sentencing hearing.
Despite being unable to verbalize his complaints, Petitioner insisted that trial counsel was not
“prepared” at the sentencing hearing.


       1
         Petitioner filed a post-conviction petition in case number 2007-D-3157. See Auqeith Lashawn
Byner v. State, No. M2012-00230-CCA-R3-PC, 2013 WL 3229401, at *1 (Tenn. Crim. App., at Nashville,
June 25, 2013).

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      Petitioner acknowledged that he waived his right to a direct appeal by voluntarily
dismissing the appeal after he filed the notice of appeal.

       Trial counsel also testified. Trial counsel has been licensed since 2006 in the State
of Tennessee and has handled hundreds of criminal cases since that time. She was retained
to represent Petitioner.

       Trial counsel recalled meeting with Petitioner prior to trial, both to convey plea offers
and to prepare for trial. She vehemently denied telling Petitioner that he was going to “beat”
the State. In fact, she testified that she has “never” said that to any client no matter how
strong the case.

        Trial counsel did not file a motion to suppress despite Petitioner’s desire to do so; she
explained that a motion to suppress would have been mostly about the credibility of the
police officer versus the credibility of Petitioner. She could not recall exactly why she never
filed the motion. Trial counsel testified that, at trial, the police officer testified incorrectly
about the day on which Petitioner was arrested. Trial counsel asked the trial court to take
judicial notice of the date of the arrest from the technical record but the trial court declined.
Trial counsel acknowledged, however, that the day of the week that the crime was committed
did not really matter as there was no requirement in the statute that children be present for
a person to be convicted of selling drugs in a school zone.

        Trial counsel testified that she talked with Petitioner about his decision to testify. She
recalled that Petitioner wanted to take the stand but that she advised against testifying. In
fact, she recalled Petitioner being “very upset” but she testified that she “wouldn’t tell
someone you are not allowed to testify” she would only give him her opinion on whether he
should testify.

      Trial counsel testified that she made a motion for judgment of acquittal at the
conclusion of trial. Further, trial counsel filed a notice of appeal. It was later voluntarily
dismissed by Petitioner.

       After the hearing, the post-conviction court entered a written order denying relief. In
the order, the post-conviction court noted Petitioner failed to offer any support other than his
own testimony to show that trial counsel’s failure to file a motion to suppress was ineffective.
Therefore, the post-conviction court found that Petitioner failed to prove trial counsel’s
actions were ineffective. Further, the post-conviction court determined that Petitioner “did
not offer any proof” to support his allegation that trial counsel failed to properly and
adequately investigate the facts. The post-conviction court also found that Petitioner failed
to prove that trial counsel did not communicate with him prior to trial where both Petitioner


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and trial counsel testified otherwise. The post-conviction court accredited the testimony of
trial counsel with regard to Petitioner’s decision to testify. Additionally, the post-conviction
court found that Petitioner failed to show by clear and convincing evidence that trial counsel:
(1) failed to properly voice objections and cross-examine witnesses; (2) failed to properly
raise all issues in a motion for new trial; and (3) did not adequately explain the significance
and consequences of withdrawing the appeal.

       Petitioner filed a timely notice of appeal.

                                            Analysis

         On appeal, Petitioner insists that he received ineffective assistance of counsel because
trial counsel: (1) failed to file a motion to suppress; (2) prevented Petitioner from testifying
at trial; (3) emphasized the weakness of the State’s case, making any plea offers unappealing;
(4) failed to hire an investigator to discredit the police officer’s testimony; (5) failed to
discuss the issues that should be raised at the motion for new trial; and (6) did not prepare
Petitioner for the sentencing hearing. The State disagrees, insisting that Petitioner did not
establish that trial counsel was ineffective.

                              Ineffective Assistance of Counsel

       The post-conviction court’s findings of fact are conclusive on appeal unless the
evidence preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).
During our review of the issues raised, we will afford those findings of fact the weight of a
jury verdict, and this Court is bound by the post-conviction court’s findings unless the
evidence in the record preponderates against those findings. See Henley v. State, 960 S.W.2d
572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). This
Court may not re-weigh or re-evaluate the evidence, nor substitute its inferences for those
drawn by the post-conviction court. See State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn.
2001). However, the post-conviction court’s conclusions of law are reviewed under a purely
de novo standard with no presumption of correctness. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001).

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, the petitioner bears the burden of showing that (a) the services rendered by trial
counsel were deficient and (b) that the deficient performance was prejudicial. See Powers
v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient
performance, the petitioner must show that the services rendered or the advice given was
below “the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975). In order to demonstrate prejudice, the petitioner must


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show that there is a reasonable probability that, but for counsel’s deficient performance, the
result of the proceeding would have been different. See Strickland v. Washington, 466 U.S.
668, 694 (1984). “Because a petitioner must establish both prongs of the test to prevail on
a claim of ineffective assistance of counsel, failure to prove either deficient performance or
resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley v. State,
960 S.W.2d 572, 580 (Tenn. 1997).

       As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record
preponderates against the court’s findings. See id. at 578. However, our supreme court has
“determined that issues of deficient performance by counsel and possible prejudice to the
defense are mixed questions of law and fact . . . ; thus, [appellate] review of [these issues]
is de novo” with no presumption of correctness. Burns, 6 S.W.3d at 461.

        Furthermore, on claims of ineffective assistance of counsel, the petitioner is not
entitled to the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. 1994).
This Court may not second-guess a reasonably-based trial strategy, and we cannot grant relief
based on a sound, but unsuccessful, tactical decision made during the course of the
proceedings. See id. However, such deference to the tactical decisions of counsel applies
only if counsel makes those decisions after adequate preparation for the case. See Cooper
v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

       Looking at Petitioner’s allegations, we determine that Petitioner has failed to
demonstrate that trial counsel was deficient by failing to file a motion to suppress. Petitioner
offered nothing other than his own opinion to support his theory that the officer lacked
probable cause. Trial counsel testified that she did not file a motion to suppress after
reviewing the facts. The decision to file a motion to suppress constitutes a tactical decision.
See Thomas T. Nicholson v. State, No. E2009-00213-CCA-R3-PC, 2010 WL 1980190, at *16
(Tenn. Crim. App., at Knoxville, May 12, 2010). We are not permitted to second-guess a
reasonably-based trial strategy. Adkins, 911 S.W.2d at 347. Further, Petitioner failed to
demonstrate prejudice by the failure of trial counsel to file a motion to suppress. The
evidence does not preponderate against the judgment of the post-conviction court.

       Petitioner also insists that trial counsel was ineffective because she prevented
Petitioner from testifying at trial. Trial counsel maintained at the post-conviction hearing
that she may have advised Petitioner not to testify but that she had never and would never
prevent a client from testifying. The post-conviction court specifically accredited trial
counsel’s testimony. This Court may not on appeal overturn that credibility determination.
See Burns, 6 S.W.3d at 461. Nothing in this record preponderates against the post-
conviction court’s findings and conclusions. Therefore, Petitioner is not entitled to relief.


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        Next, Petitioner complains that trial counsel’s emphasis of the weakness of the State’s
case made any plea offers unappealing and amounted to ineffective assistance of counsel.
However, Petitioner’s testimony at the hearing on the post-conviction petition was that he
was unsure if he was ever told about a plea offer by counsel. Additionally, trial counsel
testified that she would “never” tell a client that he was going to win a case. The post-
conviction court accredited trial counsel’s testimony in this regard. Again, this Court may
not on appeal overturn that credibility determination. See Burns, 6 S.W.3d at 461. The
evidence does not preponderate against the judgment of the post-conviction court. Therefore,
Petitioner is not entitled to relief.

        Petitioner also complains that trial counsel failed to hire an investigator to discredit
the police officer’s testimony. However, Petitioner did not put forth evidence at the hearing
to show what an investigator would have proven or how the officer’s testimony would have
been discredited. A post-conviction petitioner making a claim regarding the failure to call
a witness bears a duty to present the witness at the post-conviction hearing in order to enable
this Court to determine whether his or her testimony might have altered the results of the
trial. See Black v. State, 794 S.W.2d 753, 757 (Tenn. Crim. App. 1990). Because Petitioner
failed to produce such a witness at the hearing, he is not entitled to relief based on a claim
that the failure amounted to ineffective assistance of counsel.

        Petitioner argues that trial counsel did not prepare Petitioner for the sentencing
hearing. However, at the post-conviction hearing, Petitioner was unable to tell the post-
conviction court what he wanted counsel to do at his sentencing hearing that wasn’t
accomplished. In fact, Petitioner admitted trial counsel explained possible sentences ranges
and secured two witnesses that testified at the hearing. Petitioner is unable to show prejudice
by trial counsel’s actions. The evidence does not preponderate against the judgment of the
post-conviction court. This issue is without merit.

        Petitioner lastly claims that trial counsel failed to discuss the issues that should be
raised at the motion for new trial. The record reflects that Petitioner voluntarily dismissed
his direct appeal. This issue is moot.

                                          Conclusion

       For the foregoing reasons, the judgment of the post-conviction court is affirmed.


                                            ___________________________________
                                            JERRY L. SMITH, JUDGE


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