           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                              Assigned on Briefs July 19, 2016

                 JOHN JACK LYNCH v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Marshall County
                    No. 2013-CR-129 Forest A. Durard, Jr., Judge
                       ___________________________________

                 No. M2015-02451-CCA-R3-PC – Filed August 11, 2016
                       ___________________________________


Petitioner, John Jack Lynch,1 appeals from the denial of post-conviction relief in which
he argued that he received ineffective assistance of counsel. After a thorough review, we
determine Petitioner has failed to show clear and convincing evidence that he received
ineffective assistance of counsel. Accordingly, the judgment of the post-conviction court
is affirmed.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and D. KELLY THOMAS, JR., JJ., joined.

Brian C. Belden, Fayetteville, Tennessee, for the appellant, John ―Jack‖ Lynch.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Robert Carter, District Attorney General; and Andrew Wright, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                            OPINION

        A jury found Petitioner guilty of a violation of the Habitual Motor Offenders Act,
eleventh offense driving under the influence (―DUI‖), and violation of the implied
consent law. In a separate trial, he was found guilty of felony failure to appear. As a
result, Petitioner was sentenced to an effective eleven-year sentence. The convictions
were affirmed on direct appeal. See State v. John Edward Lynch, No. M2010-02481-


       1
        Petitioner is identified in the record by various names, including ―John ‗Jack‘ Lynch,‖ ―John
Edward Lynch,‖ ―John Lynch,‖ and ―Jack Lynch.‖
CCA-R3-CD, 2012 WL 3679575, at *1 (Tenn. Crim. App. Aug. 24, 2012), perm. app.
denied (Tenn. Feb. 13, 2013).

        Petitioner first sought post-conviction relief in a pro se petition in November 2013.
In the petition, he attacked only his conviction for failure to appear. John Edward Lynch
v. State, No. M2014-01831-CCA-R3-PC, 2015 WL 2399725, at *1 (Tenn. Crim. App.
May 19, 2015). The State filed a response pointing out that Petitioner swore the petition
before a Florida notary but listed a West Tennessee address. The State subsequently filed
a memo with the post-conviction court notifying the court that the copy of their response
was returned and stamped ―return to sender.‖ Id. An order was given for transport of
Petitioner for a hearing. However, Petitioner was moved from state to federal custody
with the notation ―out to court.‖ As a result, the post-conviction court dismissed the
petition without prejudice. Several months later, the post-conviction court sua sponte
dismissed the petition on the merits, finding Petitioner was not entitled to relief because
he raised the same issues in the post-conviction petition as on direct appeal. Petitioner
appealed. Id. The order appealed from indicates Petitioner filed ―again‖ a petition for
post-conviction relief. According to this Court, there was no petition in the record other
than the ―same pro se petition he timely filed in November 2013.‖ On appeal, this Court
reversed the post-conviction court‘s judgment and remanded for appointment of counsel
in the event Petitioner was indigent and for an evidentiary hearing. Id. at *3-4.

        On remand, counsel was appointed and an amended petition was filed. In the
amended petition, ineffective assistance of counsel was raised as a ground for relief.
Specifically, the petition ―incorporated‖ the claims in the pro se petition and additionally
alleged that trial counsel was ineffective ―when he failed to call Petitioner‘s wife as a
witness in order for Petitioner‘s wife to offer a reasonable excuse as to why Petitioner . . .
failed to appear.‖

       At the evidentiary hearing, Petitioner testified that he was convicted of failure to
appear in 2010. At the time, he was represented by two attorneys from the office of the
Public Defender. Petitioner recalled that he wanted his wife to testify at the trial so that
she could tell the jury that he had a reasonable excuse for failing to appear: that Petitioner
and his family moved to Florida after their house burned and a neighbor molested their
daughter. Petitioner wanted his wife to testify because he was trying to avoid getting
impeached by his own prior criminal history. Petitioner admitted that he had prior
convictions for DUI, selling marijuana, and aggravated assault. Petitioner also claimed
that he did not want to testify because he was ―nuts.‖ In his own words, Petitioner
explained:

             I‘m crazy. I take mental health medication and I say things I
       shouldn‘t say. I‘m like Donald Trump[,] I say stupid things and I don‘t
       mean to, you know what I mean? But I take 150-miligrams of Trazodone.
                                             -2-
       I wrote and told [counsel], you know, I‘m in a fog. I think I should have
       got a downward departure because I got mental illness. I have been in two
       mental institutions, I have taken Trazodone since I have been in prison. I
       was taking it across the street at the jail.

Petitioner explained that he was ―forced‖ to testify but acknowledged that trial counsel
advised him not to testify. He wanted the State of Tennessee to pay for his wife to fly
from Florida to Tennessee to testify as a defense witness but claimed that his family
would have paid for the airfare.

       After Petitioner was convicted at the DUI trial prior to the trial for the failure to
appear charge, he no longer wanted counsel‘s representation. Petitioner claimed that trial
counsel ―couldn‘t save Jesus.‖ Petitioner claimed that his father would have hired a new
attorney. The trial court declined to remove trial counsel from the case, and Petitioner
was, as stated above, ultimately convicted of failure to appear.

       Trial counsel testified that at the time of Petitioner‘s hearing, he had taken twenty
to twenty-five cases to trial. Trial counsel recalled meeting with Petitioner on several
occasions because he represented Petitioner in two separate cases. Trial counsel was
assisted by another attorney from the Public Defender‘s Office.

       Trial counsel acknowledged that the trial was moved forward on the court calendar
and that he did not initially request a continuance. Trial counsel was prepared for trial
and did not think a continuance was necessary. However, trial counsel asked for a
continuance in order to preserve the issue for appeal.

        Trial counsel recalled that Petitioner‘s wife was the only potential witness
identified by Petitioner. Trial counsel talked to Petitioner‘s wife about the facts and
circumstances surrounding Petitioner‘s failure to appear. According to that conversation,
trial counsel learned that it was Petitioner‘s wife who advised Petitioner to leave town or
skip court because their house burned and their daughter was molested. Trial counsel
determined that Petitioner‘s wife‘s testimony would not be beneficial because she did not
claim that some sort of ―family emergency‖ occurred that would have justified failing to
appear in court. In other words, trial counsel decided Petitioner‘s wife would not be a
beneficial witness because of the potential for damaging testimony on cross-examination.
He stated:

       [A] family emergency could qualify; however, [Petitioner‘s] wife telling
       [Petitioner] to just flat out not come back to court and move to another state
       and not handle – not try to deal with the charges would not be a good
       defense. I believe that would just essentially be telling the jury he is guilty.

                                             -3-
       Trial counsel advised Petitioner not to testify at trial because there was sufficient
proof to argue a reasonable defense without his testimony. When Petitioner testified, the
State was restricted to the use of Petitioner‘s prior convictions that fell within the ten-year
range. In fact, trial counsel did not recall the State‘s questioning Petitioner about his
prior convictions, in part because he ―quickly admitted to the elements of failure to
appear.‖

        At the conclusion of the hearing on the petition for post-conviction relief, the post-
conviction court took the matter under advisement. In an order dismissing the petition,
the post-conviction court noted that trial counsel attempted to secure a continuance so
Petitioner‘s wife could attend trial but that the trial court denied the motion and this Court
upheld that decision on direct appeal. The post-conviction court determined there was
―nothing more‖ trial counsel could do at that point because there is ―no evidence
[Petitioner‘s wife] would have actually attended the trial and any evidence she would
have testified favorably.‖ In addition, the post-conviction court noted that Petitioner
failed to bring his wife as a witness to the post-conviction hearing. Finally, the post-
conviction court noted that it did not matter if Petitioner ―does not like his appointed
counsel or has no confidence in his abilities‖ if trial counsel is an ―effective advocate.‖
Moreover, the post-conviction court determined that it ―appear[ed] the problem was not
with trial counsel but the demeanor of the Petitioner.‖ Finally, the post-conviction court
noted Petitioner‘s motion to have counsel relieved was untimely.

                                           Analysis

       On appeal, Petitioner argues that trial counsel‘s failures ―both individually and
collectively‖ deprived him of his constitutional right to effective assistance of counsel.
Alleging ―various inadequacies,‖ Petitioner‘s brief discusses trial counsel‘s failure to call
Petitioner‘s wife to testify at trial as the sole source of ineffective assistance of counsel.
The State posits that Petitioner failed to prove prejudice by omitting his wife as a witness
at the post-conviction hearing and that the post-conviction court properly dismissed the
petition.

       Post-conviction relief is available for any conviction or sentence that 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. In order to
prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations
by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d
152, 156 (Tenn. 1999). ―Evidence is clear and convincing when there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.‖
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).


                                              -4-
       Both the Sixth Amendment to the Constitution of the United States and Article I,
section 9 of the Tennessee Constitution guarantee the right of an accused to the effective
assistance of counsel. In order to sustain a claim of ineffective assistance of counsel, a
petitioner must demonstrate that counsel‘s representation fell below the range of
competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975). Under the two prong test established by Strickland v. Washington, 466
U.S. 668, 687 (1984), a petitioner must prove that counsel‘s performance was deficient
and that the deficiency prejudiced the defense. See Burnett v. State, 92 S.W.3d 403, 408
(Tenn. 2002). Because a petitioner must establish both elements in order 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). ―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).

       The test for deficient performance is whether counsel‘s acts or omissions fell
below an objective standard of reasonableness under prevailing professional norms.
Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the
questionable conduct from the attorney‘s perspective at the time, Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and ―should indulge 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). A defendant in a criminal case is not entitled to
perfect representation, only constitutionally adequate representation. Denton v. State,
945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other words, ―in considering claims of
ineffective assistance of counsel, ‗we address not what is prudent or appropriate, but only
what is constitutionally compelled.‘‖ Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting
United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)). This Court will not use
hindsight to second-guess a reasonable trial strategy, Adkins v. State, 911 S.W.2d 334,
347 (Tenn. Crim. App. 1994), even if a different procedure or strategy might have
produced a different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim.
App. 1980). ―The fact that a particular strategy or tactic failed or hurt the defense does
not, standing alone, establish unreasonable representation.‖ House v. State, 44 S.W.3d
508, 515 (Tenn. 2001) (quoting Goad, 938 S.W.2d at 369). However, this deference to
the tactical decisions of trial counsel is dependent upon a showing that the decisions were
made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.
App. 1992).

        Even if a petitioner shows that counsel‘s representation was deficient, the
petitioner must also satisfy the prejudice prong of the Strickland test in order to obtain
relief. The question is ―whether counsel‘s deficient performance renders the result of the
trial unreliable or the proceeding fundamentally unfair.‖ Lockhart v. Fretwell, 506 U.S.
                                            -5-
364, 372 (1993). A petitioner must show that there is a reasonable probability ―sufficient
to undermine confidence in the outcome‖ that, ―but for counsel‘s unprofessional errors,
the result of the proceeding would have been different.‖ Burns, 6 S.W.3d at 463 (quoting
Strickland, 466 U.S. at 694). The petitioner is not required to show that he would have
been acquitted; a showing of a ―reasonable probability of being found guilty of a lesser
charge, or [receiving] a shorter sentence‖ is sufficient to satisfy the prejudice prong.
Brimmer v. State, 29 S.W.3d 497, 508 (Tenn. Crim. App. 1998).

        Whether a petitioner has been denied the effective assistance of counsel presents a
mixed question of law and fact. Burns, 6 S.W.3d at 461. This Court will review the
post-conviction court‘s findings of fact ―under a de novo standard, accompanied with a
presumption that those findings are correct unless the preponderance of the evidence is
otherwise.‖ Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P.
13(d); Henley, 960 S.W.2d at 578). This Court will not re-weigh or re-evaluate the
evidence presented or substitute our own inferences for those drawn by the trial court.
Henley, 960 S.W.2d at 579. Questions concerning witness credibility, the weight and
value to be given to testimony, and the factual issues raised by the evidence are to be
resolved by the post-conviction court. Momon, 18 S.W.3d at 156 (citing Henley, 960
S.W.2d at 578). However, the post-conviction court‘s conclusions of law and application
of the law to the facts are reviewed under a purely de novo standard, with no presumption
of correctness. Fields, 40 S.W.3d at 458.

       In seeking post-conviction relief, petitioners often insist that trial counsel failed to
either discover, interview, or call witnesses to testify in favor of the defense. If a
petitioner relies upon this ground for relief in a post-conviction petition, ―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). Neither this Court nor the post-conviction
court is at liberty to speculate what a witness‘s testimony would have been. Id. Without
the missing witness‘s testimony, a petitioner cannot show prejudice. Id. at 758. In this
case, Petitioner did not call his own wife to testify at the post-conviction hearing—the
very witness he complained trial counsel failed to call at trial.

        Moreover, the record does not preponderate against the post-conviction court‘s
conclusion that trial counsel exercised reasonable judgment when deciding not to call
Petitioner‘s wife as a witness. Trial counsel interviewed Petitioner‘s wife, who revealed
that she actually encouraged Petitioner to ―skip‖ his court appearance. Trial counsel
chose not to call her as a witness because he thought the testimony would be damaging to
the case. As stated above, this Court will not use hindsight to second-guess a reasonable
trial strategy, Adkins, 911 S.W.2d at 347, and Petitioner did not prove that he was
somehow forced to testify solely because his wife did not. Trial counsel testified that
proof about the house fire came in during the State‘s case-in-chief and counsel was able
to argue that Petitioner had a reasonable excuse for failing to appear without the
                                              -6-
Petitioner‘s testimony. Petitioner has failed to show that he is entitled to relief. The
judgment of the post-conviction court is, therefore, affirmed.

                                          Conclusion

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


                                            ____________________________________
                                           TIMOTHY L. EASTER, JUDGE




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