        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                        Assigned on Briefs September 3, 2014

             MICHAEL JOHN STITTS v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Madison County
                     No. C-13-222     Roy B. Morgan, Jr., Judge




              No. W2013-02550-CCA-R3-PC - Filed September 16, 2014


A Madison County jury convicted the Petitioner, Michael John Stitts, of theft of property
valued between $1,000 and $10,000. The trial court sentenced the Petitioner to serve six
years in confinement. On direct appeal, this Court affirmed the Petitioner’s conviction and
sentence. State v. Michael John Stitts, W2011-02673-CCA-R3-CD, 2013 WL 257069, at *8
(Tenn. Crim. App., at Jackson, Jan. 23, 2013), no Tenn. R. App. P. 11 application filed. The
Petitioner filed a petition seeking post-conviction relief, claiming that he had received the
ineffective assistance of counsel. After a hearing, the post-conviction court denied the
Petitioner relief. The Petitioner appeals this denial, maintaining that his attorney was
ineffective. After a thorough review of the record, the briefs, and relevant authorities, we
affirm the post-conviction court’s judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which A LAN E. G LENN
and R OBERT L. H OLLOWAY, J R., JJ., joined.

J. Colin Morris, Jackson, Tennessee, for the Appellant, Michael John Stitts.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney
General; James G. Woodall, District Attorney General; and Rolf Hazlehurst, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION
                                         I. Facts
                                         A. Trial

       On direct appeal, this Court provided the following summary of the evidence
presented at trial:

             Charles [FN1] Ohonba testified that his wife, Lola’s, car broke down
       when he was driving home to Jackson from Memphis. A mechanic from
       AutoZone looked at the vehicle and determined that it needed a new motor and
       recommended the [Petitioner] to install it. The [Petitioner] stopped by the
       Ohonbas’ house, examined the car, and agreed that it needed a new motor.
       The [Petitioner] told Charles that he would do the job for $625 and that the car
       would be ready in three days.

               FN1. Because two of the witnesses have the same surname, we
               will refer to them by first name for clarity. We mean no
               disrespect by this practice.

              Because Charles needed the car right away, he gave the [Petitioner]
       $300 to begin work on the car. The [Petitioner] had the car towed from the
       Ohonbas’ residence, but Charles did not know to where the car was towed.
       Charles met with the [Petitioner] the following week, but the [Petitioner] told
       him that the car was not ready and that he needed the remaining $325 to
       complete the work. The [Petitioner] collected the $325 from Charles early the
       following month. Thereafter, every time Charles contacted the [Petitioner] to
       check on the status of his car, the [Petitioner] gave him a number of excuses
       as to why the car was not ready.

               Charles said that the [Petitioner] never told him that he was going to
       sell the car to a salvage yard, and he never consented for the [Petitioner] to do
       so. The [Petitioner] did not return the money Charles paid to have the car
       repaired or give him any of the money from the sale of the car. He said that
       he did not sell the car to the [Petitioner]. He recalled that the [Petitioner] came
       over to his house two times, both times to get money from Charles, and Lola
       was present when he paid the [Petitioner] $325. Charles stated that he
       eventually called the police and learned from an investigator that the
       [Petitioner] had sold his car to a salvage yard.

               Two receipts were admitted as exhibits at trial. On the first, the
       [Petitioner] handwrote, “Full amount $625.00. Charles Ohonba paid $300.00
       down on getting a motor install[ed] in his 1999 Ford Taurus station wagon.
       He owe[s] a balance of $325.00 to [the [Petitioner]].” The receipt was dated
       July 13, 2010. The second receipt indicates that Charles paid the [Petitioner]
       $325 “for his engine & parts” on August 14, 2010.

                                               -2-
        Lola Ohonba testified that she met the [Petitioner] when he came to her
and Charles’ home to collect the balance owed for repairing her car. The
[Petitioner] had already taken the car after the first payment. Lola said that she
was the lawful owner of the 1999 Ford and produced a certificate of title
reflecting her ownership. She recalled that she purchased the vehicle in 2008
for $12,000. She said that she did not sell her car to the [Petitioner] or consent
to him taking the car to the salvage yard. The [Petitioner] did not return her
car or the money that was paid to repair it, or give her the money he received
from selling the car to the salvage yard.

        Officer Lucille Ellen Williams with the Jackson Police Department
testified that the Ohonbas contacted the police on August 28, 2010, regarding
a possible theft. She took a suspicious situation report, but no charges were
brought because it was not known at the time that the car had been sold to a
salvage yard.

        Elaine Robbins, office manager at Hutcherson Metals, identified several
documents showing that the [Petitioner] sold them a 1999 Ford Taurus. The
first document was the weigh ticket, which indicated that the [Petitioner]
brought in a car, as well as the gross, tare, and net weight. The ticket also
included the [Petitioner]’s signature, phone number, and right thumbprint. The
ticket showed that Hutcherson purchased the vehicle for $384.80. The second
document was a motor vehicle bill of sale the defendant submitted to
Hutcherson, affirming that he was the legal and lawful owner of the vehicle—a
1999 Ford and its vehicle identification number (“VIN”).

        The third document was the yard ticket, which was completed by the
guard. The ticket showed, among other things, the make and VIN number of
the vehicle, the tag number, and the date and time the transaction occurred-
October 20 at 1:45. It also contained a signature line where the [Petitioner]
indicated that he was the lawful owner of the materials being sold. The fourth
document was a copy of the check issued to the [Petitioner] in the amount of
$384.80, bearing the [Petitioner]’s thumbprint. The fifth document was a copy
of the [Petitioner]’s Tennessee identification card.

       Robbins testified that she was subsequently contacted by the Jackson
Police Department regarding a possible stolen vehicle and was provided with
a VIN number. Robbins used that VIN number to locate the ticket and pull up
the [Petitioner]’s information. She said that the [Petitioner] represented
himself to be the lawful owner of the car.

                                       -3-
       Investigator Steve Pope with the Jackson Police Department was
assigned to investigate the suspicious situation report involving the Ohonbas’
vehicle. After talking to Charles, he began searching for the car in the scrap
yards, “the first and most obvious place[.]” He contacted Hutcherson Metals,
where a match was located to the VIN number on the Ford belonging to Lola
and a vehicle sold for scrap by the [Petitioner]. Robbins provided him with the
supporting documents demonstrating that the [Petitioner] had sold Lola’s car
to Hutcherson for scrap metal.

        Investigator Pope said that the VIN number on the motor vehicle bill of
sale and the yard ticket provided by Robbins matched the VIN number on the
certificate of title provided by Lola. In addition, the fingerprint on the scanned
check matched the [Petitioner]’s fingerprints.FN2 Investigator Pope stated
that, given the totality of the circumstances, it was his opinion that the
[Petitioner]’s “intent from the beginning was to permanently deprive the
Ohonbas of the vehicle.” He uncovered no evidence in the course of his
investigation that the Ohonbas transferred title of their vehicle to the
[Petitioner].

          FN2. The [Petitioner] stipulated that his fingerprints were
          on the documents from Hutcherson.

[The Petitioner]’s Proof

       Gerald Taylor testified that he did “mechanic work” for the [Petitioner]
and that, in July 2010, he helped the [Petitioner] pull the motor out of a 1999
Ford Taurus. Taylor admitted that he did not help the [Petitioner] try to fix the
motor, or see the [Petitioner] try to fix the motor or the car.

       The [Petitioner] testified that he met the Ohonbas in July 2010 when he
assessed their car for repairs, determining that it needed a new motor. He
denied telling Charles that he would have the car repaired in three days. He
said that Charles paid him $300 to remove the engine and cover the “wrecker
fee,” but that he had to wait for Charles to pay the balance of $325 before he
could buy the new engine. After receiving the $325, he began looking for the
replacement motor.

        The [Petitioner] testified that, sometime in October, Charles became
frustrated that the [Petitioner] had not yet found a replacement engine and

                                       -4-
       asked the [Petitioner] to sell the car to a salvage yard. Charles told the
       [Petitioner] that he would use the money from salvage and money paid to the
       [Petitioner] for the repair to buy another car. The [Petitioner] subsequently
       went to the courthouse, picked up a bill of sale, and signed it because Charles
       had given him permission to sell the car as scrap. After selling the car to
       Hutcherson, the [Petitioner] called Charles to inform him that the car had been
       sold but was unable to reach him. The next time the [Petitioner] heard from
       Charles was through the police.

               The [Petitioner] agreed that the money Charles paid for the repair, as
       well as the money from the sale to the salvage yard, should be given to
       Charles. The [Petitioner] identified the documents from Hutcherson regarding
       the sale of the Ohonbas’ vehicle. He claimed that his fiancée, Mary Ann
       Greer, was present when Charles gave him permission to sell the car. The
       [Petitioner] maintained that his intention was to fix the car until Charles asked
       him “to salvage the car for him[.]”

              The [Petitioner] acknowledged that he had prior felony convictions for
       assault and evading arrest but said that he had never stolen anything. On
       cross-examination, he admitted that he was convicted of aggravated assault on
       July 30, 2001, and sentenced to nine years; he pled guilty to two counts of
       aggravated assault on October 15, 1992, and was sentenced to six years; and
       he pled guilty to reckless endangerment on October 15, 1992, and was
       sentenced to two years.

              The [Petitioner] examined the two handwritten receipts given to Charles
       and acknowledged that he wrote the terms of agreement. He also
       acknowledged that there was no documentary proof that the Ohonbas
       transferred title of the car to him. He admitted that he was not the lawful
       owner of the Ohonbas’ vehicle, even though he represented himself as such to
       Hutcherson.

              Mary Ann Greer, the [Petitioner]’s live-in girlfriend, testified that she
       was not physically present when Charles and the [Petitioner] talked about
       scrapping the vehicle, although she heard the [Petitioner]’s side of the
       telephone conversation.

Stitts, 2013 WL 257069, at *1-4. After hearing this evidence, the jury convicted the
Petitioner of theft of property valued between $1,000 and $10,000. The trial court sentenced
the Petitioner to serve six years in confinement for this conviction.

                                              -5-
                                           B. Post-Conviction

         The Petitioner filed a post-conviction petition asserting that he had received the
ineffective assistance of counsel.1 The trial court held a hearing where the parties presented
the following evidence: The Petitioner’s trial attorney, (“Counsel”), testified that she was
retained to represent the Petitioner in March 2011, after the Petitioner’s arraignment.
Counsel stated that she met with the Petitioner and reviewed discovery with him. She
recalled that she had informed the Petitioner that the victims were requesting restitution in
the amount of $2,009.80. Counsel said that the State had originally offered a four-year
sentence of probation “as long as [the Petitioner] paid restitution.” The Petitioner declined
this offer because he believed the case “should have been a civil case.” Counsel stated that
she attempted to relay to the jury that it was the opinion of Officer Williams, who testified
at trial, that this case was a civil matter.

        Counsel testified that, on numerous occasions, she explained to the Petitioner that,
despite the police officer’s opinion, the investigator assigned to the case had proceeded with
prosecution of the case and the Petitioner had been indicted for the offense. Counsel stated
that, at trial, she relayed to the jury that the Petitioner had permission to have the vehicle
based upon an agreement to repair it and that the victims had made two payments toward the
repair work. Counsel described the victims as “unassuming innocent people” who were
“credible” witnesses.

        Counsel testified that her trial strategy did not focus on the value of the vehicle
because the Petitioner’s position was that he did not steal the vehicle. Counsel agreed that
had the jury found the value of the vehicle at $385, the amount the Petitioner received for the
vehicle, the conviction would have been a misdemeanor rather than a felony. She explained
that the Blue Book value for the car at the time was $1,100, so the jury had evidence
supporting a conviction for theft of property valued over $1,000. Counsel confirmed that the
trial court instructed the jury as to the lesser-included offenses which included misdemeanor
theft. Counsel stated that she believed that she had done “everything that [she] possibly
could have done” to convey the Petitioner’s position to the jury.

       On cross-examination, Counsel agreed that Ms. Ohonba, one of the victims, testified
that she paid $12,000 for the vehicle in 2008. Counsel stated that she did not believe there
was anything else she could have done differently that would have affected the outcome of


        1
          In his petition, the Petitioner asserted several claims for post-conviction relief. On appeal, however,
he maintains only his claim of ineffective assistance of counsel. Therefore, we include only the facts from
the hearing that are relevant to this claim.

                                                      -6-
this case.

        The Petitioner testified that, from the onset, he believed this case was a civil rather
than criminal matter because he and the victims had entered a contract. He stated that
Counsel never conducted research on “the civil issue.” The Petitioner agreed that he had
“scrap[ped]” the victims’ car and received $384.80 from the sale. He explained that he did
so at the victim’s, Mr. Ohonba’s, request. The Petitioner was unsure as to whether or not he
had actually notified the victim of the money he received or the victim had already reported
the vehicle missing to the police. He stated that he offered the victim “a little more” than the
amount he received but that the victim refused the offer.

        The Petitioner testified that the victim reported the vehicle’s worth at $500 initially.
Investigator Pope, however, secured a warrant based on the value of the property being over
$1,000. The Petitioner said that Counsel was ineffective in persuading the jury of an
accurate value for the vehicle. He maintained that the victims’ vehicle, a 1999 Ford Taurus
station wagon, was worth the amount paid by the salvage yard, $384.80.

        The Petitioner testified that initially he was employed to replace the engine in the
victims’ Taurus. The Petitioner recalled that he charged $625 to make the repairs on the
vehicle. The victims gave him $300 as a down payment. Once the Petitioner found the
motor needed, he notified the victims and then waited for the remainder of the payment. The
victims did not pay him until the following month. At that time, the “junk yard” no longer
had the engine, so the Petitioner had to wait until the junk yard had another engine. At this
point, the Petitioner had towed the vehicle to his shop and pulled the existing engine out of
the vehicle. The victim called the Petitioner and told him he had “changed his mind” and
asked the Petitioner to “scrap” the vehicle for him. The Petitioner said that there was no
written agreement as to the “scrapping” of the vehicle, only the initial agreement that
referenced the replacement of the engine. The Petitioner maintained that if Counsel had “did
her research” she would have better presented his case as a civil matter to the jury.

         After hearing the evidence, the post-conviction court issued an order denying relief.
It is from this judgment that the Petitioner now appeals.

                                         II. Analysis

        On appeal, the Petitioner contends that he received the ineffective assistance of
counsel because Counsel failed to “place enough emphasis on the value of the automobile
involved in this case.” He maintains that the value of the victims’ vehicle was $384.80, the
amount the salvage yard paid him for the vehicle. The State responds that the Petitioner has
failed to show by clear and convincing evidence that Counsel’s representation was deficient.

                                              -7-
We agree with the State.

        In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional right.
T.C.A. § 40-30-103 (2012). The petitioner bears the burden of proving factual allegations
in the petition for post-conviction relief by clear and convincing evidence. T.C.A. § 40-30-
110(f) (2012). Upon review, this Court will not re-weigh or re-evaluate the evidence below;
all questions concerning the credibility of witnesses, the weight and value to be given their
testimony, and the factual issues raised by the evidence are to be resolved by the trial judge,
not the appellate courts. Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999) (citing Henley
v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997)). A post-conviction court’s factual findings
are subject to a de novo review by this Court; however, we must accord these factual findings
a presumption of correctness, which can be overcome only when a preponderance of the
evidence is contrary to the post-conviction court’s factual findings. Fields v. State, 40
S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction court’s conclusions of law are subject
to a purely de novo review by this Court, with no presumption of correctness. Id. at 457.

       The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9, of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d
453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following
two-prong test directs a court's evaluation of a claim for ineffectiveness:

               First, the [petitioner] must show that counsel’s performance was
       deficient. This requires showing that counsel made errors so serious that
       counsel was not functioning as the “counsel” guaranteed the [petitioner] by the
       Sixth Amendment. Second, the [petitioner] must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose
       result is reliable. Unless a [petitioner] makes both showings, it cannot be said
       that the conviction or death sentence resulted from a breakdown in the
       adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417, 419
(Tenn. 1989).

      In reviewing a claim of ineffective assistance of counsel, this Court must determine
whether the advice given or services rendered by the attorney are within the range of
competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail
on a claim of ineffective assistance of counsel, a petitioner must show that “counsel’s


                                               -8-
representation fell below an objective standard of reasonableness.” House v. State, 44 S.W.3d
508, 515 (Tenn. 2001) (citing Strickland, 466 U.S. at 688).

        When evaluating an ineffective assistance of counsel claim, the reviewing court should
judge the attorney’s performance within the context of the case as a whole, taking into account
all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753 S.W.2d 148,
149 (Tenn. Crim. App. 1988). The reviewing court must evaluate the questionable conduct
from the attorney’s perspective at the time. Strickland, 466 U.S. at 690; Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court must be highly deferential and
“should indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Burns, 6 S.W.3d at 462. Finally, we note that a
petitioner 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)).
Counsel should not be deemed to have been ineffective merely because 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. However, deference
to matters of strategy and tactical choices applies only if the choices are informed ones based
upon adequate preparation.” House, 44 S.W.3d at 515 (quoting Goad v. State, 938 S.W.2d
363, 369 (Tenn. 1996)).

        If a petitioner shows that counsel’s representation fell below a reasonable standard,
then the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694; Nichols v. State, 90
S.W.3d 576, 587 (Tenn. 2002). This reasonable probability must be “sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875 S.W.2d 662,
665 (Tenn. 1994).

        As to the Petitioner’s claim regarding the value of the car, the post-conviction court
noted that, on direct appeal of the conviction, this Court found sufficient evidence to support
the conviction for theft of property valued over $1,000. The post-conviction court also noted
that the jury was “properly charged all the way down to the possibility they could find the
value of the vehicle less than $500 if they wanted to.” The post-conviction court concluded
that the Petitioner had not shown by clear and convincing evidence that Counsel was
ineffective in this regard.

       We conclude that the record does not preponderate against the post-conviction court’s

                                                -9-
findings. Counsel testified that she did not focus on the amount of the vehicle because the
defense theory of the case was that the Petitioner had not stolen the vehicle. She stated that,
even so, the Blue Book value of the vehicle was $1,200. As the trial court correctly noted,
this Court affirmed the Petitioner’s conviction for theft of property over $1000, finding
sufficient evidence was presented to the jury that the value of the car was valued over $1000.
Stitts, 2013 WL 257069, at *4. Moreover, the jury was charged with the lesser-included
offenses and, by its verdict, discredited the value the Petitioner received from the salvage yard
from the sale of the vehicle as the value of the vehicle. Accordingly, the Petitioner has not
proven by clear and convincing evidence that Counsel’s representation was deficient or that
he was prejudiced by the alleged deficiency. The Petitioner is not entitled to relief.

                                        II. Conclusion

       After a thorough review of the record and relevant authorities, we conclude that the
post-conviction court properly denied post-conviction relief. Accordingly, we affirm the
judgment of the post-conviction court.


                                                     _________________________________
                                                     ROBERT W. WEDEMEYER, JUDGE




                                              -10-
