        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs March 6, 2012

         COURTENAY D. ROBERTSON v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Madison County
                      No. C-11-9     Roy B. Morgan, Jr., Judge


                 No. W2011-01464-CCA-R3-PC - Filed April 23, 2012


The petitioner, Courtenay D. Robertson, appeals the Madison County Circuit Court’s denial
of his petition for post-conviction relief attacking his jury convictions of attempt to commit
second degree murder, aggravated arson, and felony evading arrest on the basis of ineffective
assistance of counsel. Following our review, we affirm the order of the post-conviction
court.

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

J AMES C URWOOD W ITT , J R., J., delivered the opinion of the Court, in which J OSEPH M.
T IPTON, P.J., and A LAN E. G LENN, J., joined.

Mike Mosier, Jackson, Tennessee, for the appellant, Courtenay D. Robertson.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; James G. Woodall, District Attorney General; and Jody S. Pickens, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

              On direct appeal to this court, the petitioner claimed that the convicting
evidence of aggravated arson was insufficient, that the dual convictions of aggravated arson
and attempted second degree murder violated principles of double jeopardy, and that he
received an excessive sentence. This court affirmed the petitioner’s convictions. See State
v. Courtenay Darrell Robertson, No. W2009-01853-CCA-R3-CD (Tenn. Crim. App.,
Jackson, Nov. 18, 2010).

              The victim of the defendant’s crimes was Belinda Jones. Id., slip op. at 2. In
the early morning hours of November 24, 2007, the victim appeared at the apartment door
of a neighbor; the victim had been burned on her face and chest and said, “Somebody call
911[;] he just set me on fire.” Id. The neighbor spoke with the 911 operator and relayed the
operator’s questions to the victim and the victim’s responses to the operator. The neighbor
testified that the victim stated that the petitioner, her boyfriend, was responsible. The
neighbor went to the victim’s apartment and extinguished a fire in “a box burning under the
table.” Id.

                An officer who responded within three minutes of the call described the victim
as “‘so badly disfigured . . . [that she] didn’t look human.’” Id. The victim told the officer
that the petitioner was responsible for her burns. In the victim’s apartment, the officer found
a box of compact discs and digital video discs that had been set on fire, a burned portion of
a bra, and two bottles of rubbing alcohol, one capped and one uncapped. Id., slip op. at 3.

                The emergency room physician who treated the victim testified that she
suffered second degree burns to her face, front and back of both arms, chest, and three
quarters of her abdomen. Id. He testified that the victim told him that her boyfriend had
poured rubbing alcohol on her and ignited her and that she had rolled on the ground to
extinguish the fire. The doctor opined that the burns, covering 60 percent of the victim’s
body, were the “most painful burns you can have” and that the victim was at “a high risk of
. . . dying.” Id.

               Officers testified at the petitioner’s trial regarding their attempts to apprehend
the petitioner; they detailed a high-speed automobile chase followed by foot pursuit through
a wooded area. Id., slip op. at 4.

                The victim testified that the petitioner, who was the father of her two children
and from whom she was estranged in November 2007, came to her apartment at about 5:00
a.m. on November 24, 2007. They argued, and the petitioner threatened to, and did, pour
rubbing alcohol on her and ignited the alcohol with a lighter. Id. Her shirt “blazed up” and
she ran outside to roll in the grass while the petitioner stood on the porch before driving away
in his car. The victim testified that she was hospitalized until March 2, 2008, and that she
still suffered from her burns. Id.

              The petitioner testified at his trial that he had socialized with the victim on the
evening of November 23, 2007, and that following an argument about her not loving him
anymore, “‘[b]efore [he] knew it, [he] grabbed the alcohol[, and the] next thing [he knew]
she was on fire.’” Id., slip op. at 5. He testified that he tried to extinguish the flames with
a blanket. The petitioner maintained that he did not intend to harm the victim. Id. On cross-
examination, the petitioner testified that he caused the injuries to the victim and admitted that
he had evaded arrest; however, he denied telling an officer that he wanted the victim to feel

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the same pain that he had felt from their breakup. Id.

                During the State’s rebuttal evidence, a police investigator testified that, during
a pretrial interview, the petitioner stated, “‘I should have just left, but my heart was hurting
so bad I wanted her to feel the pain that I was feeling because she won’t let me go.’” Id.

               At the post-conviction evidentiary hearing, the petitioner testified that his trial
counsel only conferred with him “[m]aybe three or four times” before trial. The petitioner
admitted that, despite his trial counsel’s communicating with him inadequately, the petitioner
had a full understanding of the procedure at trial. The petitioner claimed that, although he
saw the discovery materials provided by the State, he never saw any statement given by the
victim.

              The petitioner testified that trial counsel failed to obtain the assistance of an
arson expert, and he claimed that such an expert would have opined that the flames were
supported by the “chemicals from when [the victim] got her hair done more than the
[rubbing] alcohol.” The petitioner also opined that trial counsel should have asked the trial
court to instruct the jury on arson and reckless burning as lesser included offenses of
aggravated arson.

                The petitioner, who was 36 years old at the time of the evidentiary hearing
testified that he had struggled since he was “19 or 20” years old with addiction to alcohol and
cocaine. He testified that he had sought treatment through at least five different
rehabilitation programs, four of which were inpatient facilities. He stated that trial counsel
was aware of this history but that counsel did not attempt to have the petitioner evaluated for
mental debility. The petitioner opined that his subjugation to drugs would have shown that
he “wasn’t in [his] right state of mind” at the time of the offenses. He testified that he had
used cocaine, marijuana, and alcohol and that he was “highly intoxicated” at the time of the
attack on the victim. He stated that trial counsel did not want to use the intoxication or
impairment as “an excuse.” The petitioner maintained that the arresting officer could have
testified to the petitioner’s state of intoxication despite that the officer testified at trial that
he did not recall whether the petitioner appeared to be intoxicated. The petitioner claimed
that this officer had told some of the petitioner’s relatives that the petitioner had “reeked of
alcohol and . . . probably [didn’t] realize what [he] had done.” The petitioner did not know
whether trial counsel had been informed of the officer’s inconsistent out-of-court statement.
In summary, the petitioner testified that counsel “didn’t have no [sic] defense.”

              The petitioner testified that trial counsel had only planned to use one witness
– a character witness – who ultimately was not put on the witness stand. The petitioner
admitted that he agreed to release the witness. The petitioner also admitted that trial

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counsel’s failure to obtain a preliminary hearing transcript probably had no bearing on the
outcome of his trial.

               The petitioner testified that trial counsel did not seek discretionary review of
the direct appeal opinion in the supreme court. He said, “I thought he was gonna do it, but
he said he didn’t . . . .” Nevertheless, the petitioner was aware that counsel had moved to
withdraw from the case after the filing of this court’s opinion and that the petitioner had 60
days from the date of filing in which to apply to the supreme court. He testified that he
“didn’t have the funds to hire an attorney, and [he] had to struggle to get somebody to help
to do the petition on post-conviction” because he “didn’t understand how to do it” himself.

               On cross-examination, the petitioner opined that his trial counsel performed
inadequately because trial counsel “got scared” of the prosecutor and “sold [him] out.” He
further maintained that counsel failed to investigate “the fact of the situation of [the victim’s]
infidelity.” The petitioner testified that he did not have the opportunity to tell the jury the
details of the victim’s “cheating on [him].” The petitioner admitted that he testified before
the jury that the attack on the victim “was a crime of passion.” The petitioner further
admitted “being at [the victim’s] apartment and throwing alcohol on her and setting her on
fire.” Still, he maintained, he lacked the intent to commit arson. He further denied that
igniting the alcohol on the victim’s body was arson.

              The petitioner was the sole witness presented at the evidentiary hearing.
Following his testimony, the State moved to deny the petition for post-conviction relief. The
post-conviction court, after hearing argument, ruled that the petitioner had “not established
by clear and convincing evidence any basis for the granting of . . . post-conviction” relief.

               On appeal, the petitioner claims that his trial counsel was ineffective for failing
to (1) seek the appointment of an arson expert to investigate the act of arson, (2) obtain all
copies of the victim’s statements prior to trial, (3) present evidence concerning the
petitioner’s alcohol and drug impairment and/or seek a mental evaluation of the petitioner,
(4) seek jury instructions on the lesser included offenses of aggravated arson, (5) attack the
multiplicity of the charges in the indictment, and (6) seek discretionary review with the
supreme court on direct appeal. The State argues that, because the petitioner failed to present
clear and convincing evidence to establish his claim of ineffective assistance of counsel, the
trial court correctly denied relief.

              The post-conviction petitioner bears the burden of proving his allegations by
clear and convincing evidence. See T.C.A. § 40-30-110(f) (2006). On appeal, the appellate
court accords to the post-conviction court’s findings of fact the weight of a jury verdict, and
these findings are conclusive on appeal unless the evidence preponderates against them.

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Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631
(Tenn. Crim. App. 1997). By contrast, the post-conviction court’s conclusions of law receive
no deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453
(Tenn. 2001).

                To establish entitlement to post-conviction relief via a claim of ineffective
assistance of counsel, the post-conviction petitioner must affirmatively establish first that
“the advice given, or the services rendered by the attorney, are [not] within the range of
competence demanded of attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975), and second that his counsel’s deficient performance “actually had an
adverse effect on the defense,” Strickland v. Washington, 466 U.S. 668, 693 (1984). In other
words, the petitioner “must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
Should the petitioner fail to establish either deficient performance or prejudice, he is not
entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f
it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697.

              When reviewing a claim of ineffective assistance of counsel, we will not grant
the petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or
provide relief on the basis of a sound, but unsuccessful, tactical decision made during the
course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).
Such deference to the tactical decisions of counsel, however, applies only if the choices are
made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).

               Claims of ineffective assistance of counsel are mixed questions of law and fact.
 State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461
(Tenn. 1999). When reviewing the application of law to the post-conviction court’s factual
findings, our review is de novo, and the post-conviction court’s conclusions of law are given
no presumption of correctness. Fields, 40 S.W.3d at 457-58; see also State v. England, 19
S.W.3d 762, 766 (Tenn. 2000).

               First, the petitioner contends that trial counsel performed deficiently by failing
to obtain an arson expert to show that much of the victim’s injuries emanated from chemicals
on the victim’s recently processed hair, rather than the rubbing alcohol doused on her by the
petitioner. At the outset, we note that the petitioner offered nothing at the evidentiary hearing
to suggest a need for an arson expert other than his own speculation that the fire emanated
from chemicals on the victim’s hair. Furthermore, the petitioner admitted at trial and at the
post-conviction evidentiary hearing to throwing the rubbing alcohol on the victim and

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igniting her alcohol-soaked clothing with his lighter. Likewise, the petitioner failed to
present any expert testimony at the evidentiary hearing in support of this alleged deficiency.
See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990) (stating that a post-
conviction petitioner fails to shoulder his burden of proving ineffective assistance of counsel
in failing to investigate the case or to call certain witnesses when the petitioner, in the
evidentiary hearing, fails to present proof of the prejudicial results of lack of investigation
or fails to call the claimed witnesses). Accordingly, we conclude that the petitioner failed
to establish by clear and convincing evidence that trial counsel was deficient on this point
or that the petitioner was prejudiced by the lack of the assistance of an arson expert at trial.

               Second, the petitioner is also aggrieved by trial counsel’s failure to obtain a
copy of the victim’s statement via pretrial discovery. In the post-conviction hearing, the
petitioner agreed that his attorney availed to the petitioner the discovery materials that the
attorney had obtained, but he complains that no statement of the victim was included in the
materials. Notably, the petitioner was not entitled to discover any pretrial statement of the
victim. See Tenn. R. Crim. P. 16(a)(2) (stating that a defendant is not entitled to discover
“statements made by state witnesses or prospective state witnesses”). In any event, the
petitioner failed to establish that any pretrial statement of the victim existed. Accordingly,
we determine that the petitioner cannot establish any deficiency with respect to counsel’s
performance in this regard.

               Third, the petitioner also claims that trial counsel failed to present a defense
of intoxication at trial and, likewise, failed to seek a mental evaluation of the defendant prior
to trial. The petitioner’s testimony at the evidentiary hearing, however, belies his claim that
he was so impaired that he could not have formed the requisite intent to commit the charged
offenses. Moreover, in the post-conviction evidentiary hearing, he failed to present evidence
of either his history of addiction, his impairment at the time of the offenses, or how the
utilization of a mental evaluation could have availed him a defense. Thus, he failed to
establish either deficient performance of counsel or prejudice. See Black, 794 S.W.2d at 757.

                Fourth, the petitioner asserts that his trial counsel should have moved the court
to instruct the jury on reckless burning as a lesser included offense of aggravated arson. The
only evidence presented relative to this claim is the petitioner’s conclusory allegation that
trial counsel should have requested lesser included offense instructions. Because no jury
instructions were exhibited to the evidentiary hearing, the record contains no evidence that
the trial court did or did not instruct on lesser included offenses to each charge. Indeed, the
absence of trial counsel’s testimony at the evidentiary hearing hinders our review of this
issue. Consequently, no testimony addresses trial counsel’s knowledge of the jury instruction
issue and his strategic decisions, if any, concerning the jury instructions. Furthermore, we
determine some ambiguity in the post-conviction court’s statements concerning the absence

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of any lesser included instructions. In fact, the post-conviction court, who also presided over
the petitioner’s trial, commented that “I charged what I felt was the proper . . . lesser included
offenses under the law.” Thus, it appears that the trial court did, in fact, instruct on lesser
included offenses, although the record is silent as to what specific lesser included offenses
were charged by the trial court.1 The petitioner was obliged to present evidence to establish
his claim of counsel’s ineffective assistance. See Gdongalay P. Berry v. State, No. M2010-
01136-CCA-R3-PD, slip op. at 6 (Tenn. Crim. App., Nashville, Nov. 4, 2011) (ruling that
“[t]he petitioner’s failure to present any proof at the evidentiary hearing . . . necessarily
means that the petitioner failed to prove any of these grounds by clear and convincing
evidence”), perm. app. denied (Tenn. 2012). Accordingly, we conclude that the petitioner
failed to establish his claim concerning lesser included offense instructions.

               Next, the petitioner posits that his indictment alleged two offenses – attempted
second degree murder and aggravated arson – that reflect multiplicity and violate double
jeopardy safeguards. He complains that his trial counsel did not seek to dismiss one of the
charges. We discern, however, that the claim of a double jeopardy bar via duplicity was
presented to and addressed by this court on direct appeal. See Courtenay Darrell Robertson,
slip op. at 9. As such, the issue of double jeopardy was previously determined. See T.C.A.
§ 40-30-106(f), (h). The petitioner is bound by that adjudication, and his claim of ineffective
assistance of counsel fails because no prejudice has been – or can be – shown.

               Finally, the petitioner complains that this court’s ruling on the multiplicity issue
was one of first impression and that it merited an appeal to the supreme court. We note, and
the petitioner concedes, that trial counsel fully complied with the provisions of Tennessee
Supreme Court Rule 14 in withdrawing from the case following the filing of the opinion of
this court. In such a situation, trial counsel is not further obliged to represent the petitioner.
Also, the petitioner had the opportunity to file a pro se application for discretionary review
in the supreme court, but he declined to do so. Likewise, we decline to conclude that counsel
committed ineffective assistance regarding this allegation.

                Having determined that the record supports the post-conviction court’s ruling
that the petitioner failed to establish his allegations of ineffective assistance of counsel by
clear and convincing evidence, we affirm the post-conviction court’s order denying relief.

                                                            _________________________________
                                                            JAMES CURWOOD WITT, JR., JUDGE



        1
         The direct appeal record in this particular case, of which this court may take judicial notice, contains
neither a copy in the technical record nor a transcript of the jury instructions.

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