                                                                                            02/27/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs August 8, 2017

             BOBBY DANIEL PETTIE v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Bedford County
                       No. 18247-PC     F. Lee Russell, Judge


                             No. M2016-01838-CCA-R3-PC


The Petitioner, Bobby Daniel Pettie, appeals from the Bedford County Circuit Court’s
denial of his petition for post-conviction relief. The Petitioner contends that he is entitled
to post-conviction relief due to numerous instances of ineffective assistance of counsel.
Discerning no error, we affirm the judgment of the post-conviction court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and J. ROSS DYER, JJ., joined.

M. Wesley Hall IV, Unionville, Tennessee, for the appellant, Bobby Daniel Pettie.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Robert James Carter, District Attorney General; and Michael David Randles, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                              FACTUAL BACKGROUND

      Following a jury trial, the Petitioner was convicted of initiation of
methamphetamine manufacture, promotion of methamphetamine manufacture,
possession of a firearm during the commission of a dangerous felony, and possession of
methamphetamine. State v. Bobby Daniel Pettie, No. M2014-00113-CCA-R3-CD, 2015
WL 351229, at *1 (Tenn. Crim. App. Jan. 28, 2015), perm. app. denied (Tenn. May 14,
2015). The trial court imposed a total effective sentence of twenty-two years, eleven
months, and twenty-nine days. Id. This court affirmed the Petitioner’s convictions and
sentences on direct appeal. Id. Our supreme court declined to review this court’s opinion
on May 14, 2015.
       The evidence at trial established that a Shelbyville Police Department officer
observed the Petitioner driving a motorcycle “wearing dark-colored sunglasses” even
though it was dark outside. Pettie, 2015 WL 351229, at *1. The Petitioner also matched
the description “of a person who had been observed by a Dollar General Market
employee making suspicious purchases earlier in the day.” Id. The officer followed the
Petitioner and “initiated a traffic stop” after observing the Petitioner driving recklessly.
Id.

       The Petitioner did not have a driver’s license. Pettie, 2015 WL 351229, at *1.
The Petitioner claimed that he had left his license at his mother’s house, which was
nearby. Id. The officer explained to the Petitioner that he could arrest the Petitioner for
driving without a license, but that he would follow the Petitioner back to the Petitioner’s
mother’s house to “resolve the issue.” Id. At the Petitioner’s mother’s house, the officer
smelled an odor consistent with the manufacture of methamphetamine coming from
inside the house. Id. at *2. The officer seized the Petitioner and advised him of his
rights. Id. The Petitioner consented to a search of the house and a nearby truck. Id.

        A glut of material associated with the manufacture of methamphetamine was
found in the truck and house. Pettie, 2015 WL 351229, at *2-3. The officer testified at
trial that he believed that methamphetamine had recently been made and that the
Petitioner had “intended to dispose of the evidence quickly but had not yet done so” due
to the state in which he found the materials. Id. at *4. The officer also found “a loaded
twelve-gauge shotgun under the rear passenger seat of the [Petitioner’s] truck.” Id. at *3.
Additionally, a small amount of methamphetamine was seized from a jar. Id. at *5. The
Petitioner confessed to manufacturing and using methamphetamine, but claimed that he
had only done so in Alabama. Id. at *3-4.

        On April 8, 2016, the Petitioner filed a pro se petition for post-conviction relief.
Counsel was appointed to represent the Petitioner in this matter and an amended petition
was filed on June 17, 2016. As pertinent to our review,1 the petitions alleged that the
Petitioner’s original counsel failed to investigate several witnesses, failed to inform him
of his confession prior to his having rejected a plea offer, and failed to prepare for and
raise several legal arguments at his suppression hearing. The petitions also alleged that
trial counsel2 failed to file pretrial motions to dismiss claiming unnecessary delay and
vindictive prosecution, failed to raise the issues of the Petitioner’s bond revocation and
denial of the right to self-representation on appeal, and failed to “adequately argue issues
on appeal” regarding the Petitioner’s sentencing range.


1
  This opinion will only address the factual and procedural background regarding the instances of
ineffective assistance of counsel raised in the Petitioner’s appellate brief.
2
  Trial counsel represented the Petitioner at trial and on appeal.
                                               -2-
       Original counsel testified at the post-conviction hearing that she was retained to
represent the Petitioner. Original counsel “had multiple meetings” with the Petitioner.
She also spoke with the officers involved in the Petitioner’s arrest and the Petitioner’s
mother even though his mother was not present for the search. Original counsel admitted
that she had been given the name of a potential witness, “Jimmy,” by the Petitioner.
Other than “Jimmy,” original counsel was not told about any other witnesses to the
Petitioner’s stop or the search. Original counsel also attempted to identify the Dollar
General Market employee who had provided a tip to the police, but she was unable to do
so.

        Original counsel testified that prior to the suppression hearing, she reviewed the
“cite and release” statute and explained to the Petitioner that it was not applicable to his
case. Original counsel explained that she chose not to argue that in her suppression
motion because she did not think “that was [their] best argument.” Rather, original
counsel focused on the fact that the house did not belong to the Petitioner and argued that
he did not have the authority to consent to a search of the house. Original counsel also
testified that she did not separately challenge the Petitioner’s confession because there
was no dispute that the Petitioner “was read his Miranda [r]ights and he did agree to just
talk with [the officer] and be recorded.”

       Original counsel testified that she knew about the Petitioner’s confession and
informed him of it “in [g]eneral [s]essions [c]ourt.” Original counsel recalled that the
Petitioner had “a pretty cordial conversation” with the arresting officer about how to
manufacture methamphetamine. Original counsel testified that a copy of the confession
was made available to the Petitioner prior to the plea negotiation deadline. A copy of the
confession had been mailed to the address provided by the Petitioner, and original
counsel later emailed the Petitioner that he could pick up a copy of the confession at her
office. Original counsel “also tried to listen to” the confession with the Petitioner, but the
Petitioner told her to turn it off “about ten minutes in” because “it was bad.”

       Original counsel testified that the State agreed not to charge the Petitioner with
possession with intent to sale or unlawful possession of a firearm in exchange for the
Petitioner’s waiving the preliminary hearing, which he did. However, original counsel
later testified that she had advised the Petitioner that he could face an unlawful
possession of a firearm charge if his case went to trial. In addition, original counsel
recalled that the State offered the Petitioner eight years as a Range I, standard offender,
which she thought was an excellent offer because the Petitioner qualified as a Range II,
multiple offender. Original counsel believed that the State was not aware of several prior
convictions the Petitioner had in Alabama when it made the offer. The Petitioner rejected
the offer despite original counsel’s advice to accept it.


                                             -3-
       However, plea negotiations continued until the day before the Petitioner’s trial was
scheduled to begin. Original counsel testified that she met with the Petitioner the day
before his trial was scheduled to begin to convey a final plea offer from the State. The
Petitioner then told original counsel that he did not trust her and fired her. Original
counsel testified that she warned the Petitioner that if he fired her the day his trial was to
begin the trial court would revoke his bond. However, the Petitioner insisted that he did
not want original counsel to represent him any longer. Original counsel filed an
emergency motion to withdraw that was heard the next day and granted by the trial court.

       Trial counsel testified that he was appointed to represent the Petitioner after
original counsel was fired. After the Petitioner fired original counsel, a new indictment
was filed bringing the simple possession and unlawful possession of a firearm charges.
Trial counsel testified that he did not file a motion to dismiss on grounds of undue delay
or vindictive prosecution because he did not believe there were legal grounds to support
such a motion.

       Trial counsel explained that the Petitioner caused any undue delay by firing
original counsel the day before his trial was scheduled to begin. Trial counsel further
explained that he did not believe there was a case for vindictive prosecution because at
the time of the original indictment the State was unaware of the Petitioner’s Alabama
convictions and the arresting officers had not told the prosecutor about the shotgun.

        Trial counsel testified that he saw no reason to challenge the Petitioner’s Alabama
convictions on appeal because he had researched the issue and determined that they could
be used to increase the Petitioner’s range. Trial counsel further testified that he filed a
motion to reduce the Petitioner’s bond, but he did not raise on appeal the Petitioner’s
bond revocation or the alleged denial of the Petitioner’s right to represent himself. Trial
counsel noted that he attempted to argue that the Petitioner’s stop was not valid due to the
“cite and release” statute even though it had not been raised in the suppression motion or
motion for new trial. Despite the waiver of this issue, this court addressed the merits of
trial counsel’s “cite and release” argument and rejected it.

       The Petitioner testified that he hired original counsel to represent him and that he
gave original counsel a list of potential witnesses. The Petitioner claimed that he initially
did not receive a copy of his confession from original counsel because original counsel
had mailed it to the wrong address. The Petitioner denied that he asked that his mail be
sent to his mother’s house rather than his Alabama address. Despite the fact that original
counsel was engaged in plea negotiations with the State until the date the Petitioner’s trial
was scheduled to begin, the Petitioner claimed that he received his confession “almost a
month” after plea negotiations had ended. Likewise, the Petitioner claimed that original
counsel did not attempt to listen to the confession with him until after plea negotiations
had ended.
                                             -4-
       The Petitioner testified that he did not remember his confession or know that it
was recorded because he was intoxicated during the confession. The Petitioner claimed
that he did not initially tell original counsel he was intoxicated during his confession
because he did not know there was a confession, but that he told counsel about his
intoxication once he received his confession from her. The Petitioner explained that
while the officers were searching his truck and his mother’s house he “snuck and took”
some pills.

       The Petitioner testified that he rejected the State’s plea offer because he felt that
original counsel was pressuring him into accepting the State’s offer “so that [she]
wouldn’t have to represent [him] at trial, because [she] wanted more money.” The
Petitioner testified that he was prepared to represent himself after he fired original
counsel, but that the trial court would only allow him to represent himself after a
continuance. According to the Petitioner, if he had been allowed to represent himself the
day his trial was originally scheduled, then he would not have been charged with simple
possession and unlawful possession of a firearm. The Petitioner testified that he believed
these extra charges were added because he fired original counsel.

        On July 22, 2016, the post-conviction court entered a written order denying post-
conviction relief. The post-conviction court accredited the testimony of original and trial
counsel over the Petitioner’s testimony. With respect to original counsel, the post-
conviction court noted that none of the witnesses that she allegedly failed to investigate
testified at the post-conviction hearing. The post-conviction court concluded that original
counsel had thoroughly prepared for the suppression hearing and that there “was no
failure to present any defensible argument[s] or any useful evidence” at the suppression
hearing. With respect to trial counsel, the post-conviction court concluded that there was
no legal basis for any of the arguments the Petitioner thought trial counsel should have
pursued at trial or on appeal. The post-conviction court reiterated that “the efforts of
neither” original or trial counsel “fell below the applicable standard for criminal defense
attorneys.” This timely appeal followed.

                                       ANALYSIS

        The Petitioner contends that he is entitled to post-conviction relief due to
numerous instances of ineffective assistance of counsel. Regarding original counsel, the
Petitioner argues that original counsel failed to investigate several witnesses, that she
failed to provide the Petitioner with a copy of his confession “in a timely manner,” that
she “failed to adequately prepare for the suppression hearing,” and that she “failed to
argue at the suppression hearing the issue of cite and release or the Petitioner’s
competency at [the] time of [his] confession.” Regarding trial counsel, the Petitioner
argues that trial counsel “failed to file appropriate motions” such as “a motion to dismiss
based on unnecessary delay” or “due to vindictive prosecution,” that he failed to “address
                                            -5-
[on appeal] the prejudicial bond . . . imposed on [the] Petitioner” or that the Petitioner
“was denied the right to represent himself at trial,” and that trial counsel “failed to
adequately argue issues on appeal specifically dealing with [the] Petitioner’s appropriate
sentencing range.” The State responds that the Petitioner failed to establish that original
or trial counsel performed deficiently or that he was prejudiced by their performance.

       The burden in a post-conviction proceeding is on the petitioner to prove his
allegations of fact supporting his grounds for relief by clear and convincing evidence.
Tenn. Code Ann. § 40-30-110(f); see Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn.
2009). On appeal, we are bound by the post-conviction court’s findings of fact unless we
conclude that the evidence in the record preponderates against those findings. Fields v.
State, 40 S.W.3d 450, 456 (Tenn. 2001). Additionally, “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 post-conviction court. Id.
However, we review the post-conviction court’s application of the law to its factual
findings de novo with no presumption of correctness. Id. at 457.

       Criminal defendants are constitutionally guaranteed the right to effective
assistance of counsel. Dellinger, 279 S.W.3d at 293 (citing U.S. Const. amend. VI;
Cuyler v. Sullivan, 446 U.S. 335, 344 (1980)). When a claim of ineffective assistance of
counsel is made under the Sixth Amendment to the United States Constitution, the burden
is on the petitioner to show (1) that counsel’s performance was deficient and (2) that the
deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984); see
Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). In reviewing a trial counsel’s
conduct, we make every effort to “‘eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.’” Felts v. State, 354 S.W.3d 266, 277
(Tenn. 2011) (quoting Strickland, 466 U.S. at 689).

        Deficient performance requires a showing that “counsel’s representation fell
below an objective standard of reasonableness,” despite the fact that reviewing courts
“must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 688-89. “The fact that a
particular strategy or tactical decision failed does not by itself establish deficiency.”
Felts, 354 S.W.3d at 277 (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).
Prejudice requires proof of “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. “Because a petitioner must establish both prongs of the test,
a failure to prove either deficiency or prejudice provides a sufficient basis to deny relief
on the ineffective assistance claim.” Goad, 938 S.W.2d at 370. The Strickland standard


                                            -6-
has been applied to the right to counsel under article I, section 9 of the Tennessee
Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

        In determining whether appellate counsel’s failure to raise an issue on appeal
constitutes ineffective assistance of counsel, our supreme court has held that “unless the
omitted issue has some merit, the petitioner suffers no prejudice from appellate counsel’s
failure to raise the issue on appeal. When an omitted issue is without merit, the petitioner
cannot prevail on an ineffective assistance of counsel claim.” Carpenter v. State, 126
S.W.3d 879, 887-88 (citing United States v. Dixon, 1 F.3d 1080, 1083 (10th Cir. 1993)).
“Generally, the determination of which issues to present on appeal is a matter which
addresses itself to the professional judgment and sound discretion of appellate counsel”
as these are “tactical and strategic choices,” which should not be second-guessed.
Cooper v. State, 849 S.W.2d 744, 747 (Tenn. 1993).

       The Petitioner failed to present any witnesses in support of his allegation that
original counsel failed to investigate possible witnesses. This court has long held that
“[w]hen a petitioner contends that trial counsel failed to discover, interview, or present
witnesses in support of his defense, 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). This is the only way the petitioner can establish that failure “to call the witness to
the stand resulted in the denial of critical evidence which inured to the prejudice of the
petitioner.” Id. We cannot speculate as to what a witness may have said if presented or
how the witness may have responded to a rigorous cross-examination. Id. As such, we
conclude that this issue is without merit.

        As for the Petitioner’s claims that original counsel failed to “timely” inform him
of his confession and failed to adequately prepare for the suppression hearing, we note
that the post-conviction court accredited original counsel’s testimony over the
Petitioner’s. Original counsel testified that she made the Petitioner aware of his
confession “in [g]eneral [s]essions [c]ourt” and that she mailed a copy of the confession
to the Petitioner as well as providing him with another copy to pick up at her office.
Original counsel also attempted to listen to the confession with the Petitioner. Similarly,
original counsel testified that she met with the Petitioner multiple times, spoke with the
officers involved in the Petitioner’s arrest and the search, and spoke with the Petitioner’s
mother. The evidence does not preponderate against the post-conviction court’s finding
that original counsel provided the Petitioner with his confession and adequately prepared
for the suppression hearing.

       The Petitioner also faults original counsel for not arguing at the suppression
hearing that his stop was invalid due to the “cite and release” statute or that he was
intoxicated during his confession. Original counsel testified that she reviewed the “cite
and release” statute, determined that it was not applicable to the Petitioner’s case, and
                                             -7-
explained that to the Petitioner. Moreover, this court made the same determination on the
Petitioner’s direct appeal. See Pettie, 2015 WL 351229, at *10. Regarding the
Petitioner’s claim that he was intoxicated during his confession, the Petitioner testified
that he did not tell original counsel about this until well into the pretrial proceedings
because he was unaware he gave a confession. Original counsel cannot be faulted for
failing to raise an argument the Petitioner did not bring to her attention. Accordingly, we
conclude that this issue is without merit.

        The Petitioner argues that trial counsel was ineffective for failing to seek a
dismissal of the simple possession and unlawful possession of a firearm charges as a
result of vindictive prosecution or unnecessary delay. It is well settled that “‘the initial
charges filed by a prosecutor may not reflect the extent to which an individual is
legitimately subject to prosecutions’” and that “an initial charging decision is not binding
upon the State with respect to the future course of the prosecution.” State v. Mann, 959
S.W.2d 503, 510 (Tenn. 1997) (quoting United States v. Goodwin, 457 U.S. 368, 382
(1982)). “Allegations of prosecutorial vindictiveness or selective prosecution in the
institution of a prosecution, have constitutional implications that, if proven, may warrant
dismissal of the indictment.” State v. Skidmore, 15 S.W.3d 502, 508 (Tenn. Crim. App.
1999) (citing Blackledge v. Perry, 417 U.S. 21, 27 (1974)). However, “as long as the
prosecutor has probable cause to believe that an accused committed an offense, the
determination whether to prosecute rests entirely within the prosecutor’s discretion,
subject to these constitutional limitations.” Id.

        Original counsel testified that the State agreed not to bring the unlawful possession
of a firearm charge in exchange for the Petitioner’s having waived a preliminary hearing,
but later testified that she advised the Petitioner that he could still face the charge if his
case went to trial. Furthermore, trial counsel recalled that these charges were not initially
brought because the investigating officers had not informed the prosecutor about the
shotgun and because the prosecutor was unaware of the Petitioner’s Alabama
convictions. Regardless, the State had probable cause to believe that the simple
possession and unlawful possession of a firearm offenses had been committed.
Accordingly, we conclude that trial counsel was not deficient for failing to bring a motion
to dismiss due to vindictive prosecution or unnecessary delay.

        The Petitioner also complains that trial counsel failed to raise on appeal the issues
of his bond revocation and denial of right to self-representation. A trial court may revoke
a defendant’s bond if the defendant “engages in conduct which results in the obstruction
of the orderly and expeditious progress of the trial or other proceedings.” Tenn. Code
Ann. § 40-11-141(b). The trial court viewed the Petitioner’s firing of original counsel on
the day before the trial was scheduled to begin as an obstruction and revoked the
Petitioner’s bond. Likewise, for a defendant to exercise his right to self-representation

                                             -8-
the request must be made “in a timely manner,” and the right cannot be used “‘as a tactic
for delay, for disruption, for distortion of the system, or for manipulation of the trial
process.’” State v. Hester, 324 S.W.3d 1, 30, 33 (Tenn. 2010) (quoting United States v.
Mosley, 607 F.3d 555, 558 (8th Cir. 2010)). Again, the Petitioner did not make his
request to represent himself until the day his trial was scheduled to begin. Accordingly,
we conclude that this issue is without merit.

       Finally, the Petitioner contends that trial counsel “failed to adequately argue issues
on appeal specifically dealing with [the] Petitioner’s appropriate sentencing range.”
However, the Petitioner has presented no argument as to why his sentencing range was
incorrect. Trial counsel testified that he researched the issue and determined that the
Petitioner’s Alabama convictions could be used to enhance the Petitioner to a Range II,
multiple offender. The evidence does not preponderate against this conclusion.
Accordingly, we conclude that the post-conviction court did not err in denying the
petition for post-conviction relief.

                                     CONCLUSION

       Upon consideration of the foregoing and the record as a whole, the judgment of
the post-conviction court is affirmed.



                                                   _________________________________
                                                   D. KELLY THOMAS, JR., JUDGE




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