        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs January 5, 2016

                 JURICO READUS v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                    No. 06-06183 Carolyn Wade Blackett, Judge


              No. W2015-00338-CCA-R3-PC - Filed February 23, 2016


The petitioner, Jurico Readus, appeals the denial of his petition for post-conviction relief,
which petition challenged his Shelby County Criminal Court jury convictions of felony
murder and attempted especially aggravated robbery. Discerning no error, we affirm the
denial of post-conviction relief.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ALAN E.
GLENN and D. KELLY THOMAS, JR., JJ., joined.

Rosalind Brown, Memphis, Tennessee, for the appellant, Jurico Readus.

Herbert H. Slatery III, Attorney General and Reporter; Lacy E. Wilber, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Nicole Germain,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

               A Shelby County Criminal Court jury convicted the petitioner of the first
degree felony murder of Luis Reyes Hernandez and two counts of the attempted
especially aggravated robbery of Luis Reyes Hernandez and his nephew, Jary Reyes. On
direct appeal, this court summarized the relevant facts as follows:

                     The evidence at trial established that the defendant
              approached the two victims, pointed a gun at them, demanded
              the deceased victim’s money, and then shot both victims
              when a struggle ensued after the co-defendant hit the
              surviving victim. Although the surviving victim testified that
              the defendant did not verbally demand his money, he also
                testified that he had a limited understanding of English, that
                he nevertheless understood from the context that the
                defendant wanted his money, and that he thought the co-
                defendant was approaching him in order to take his money.

State v. Jurico Readus, No. W2011-01544-CCA-R3-CD, slip op. at 6 (Tenn. Crim. App.,
Jackson, Jan. 16, 2013), perm. app. denied (Tenn. June 13, 2013). The defendant
provided a statement to the police prior to trial acknowledging his involvement in the
offenses, explaining

                that he and his cousin saw the victims, and that he “pointed
                the gun and told them to give me everything out of their
                pockets.” The defendant instructed his cousin to check the
                victims’ pockets, and the surviving victim and co-defendant
                began “tussling.” The surviving victim began to yell and
                “shots were fired.”        The defendant stated that he
                “accidentally” shot the co[-]defendant and shot twice at one
                victim and three times at the other. He stated that neither he
                nor the co-defendant took property from the victims. The
                defendant explained that they had gone to the apartments to
                “get some money” and further elaborated that he meant
                “[r]obbing Mexicans, getting some money.” The defendant
                described where he had left the weapon at the co-defendant’s
                house.

Id., slip op. at 5.

              On January 28, 2014, the petitioner filed a timely petition for post-
conviction relief alleging that he had been denied the effective assistance of trial counsel.
Specifically, he claimed that his counsel performed deficiently by failing to ensure
suppression of the petitioner’s pretrial statement to the police, by failing to develop an
alternative theory of defense and to cross-examine a State’s witness in a manner that
would have supported such a theory, by failing to object to the trial court’s refusals to
conduct “a proper sentencing hearing” or instruct the jury regarding parole consideration,
and by failing to object to the trial court’s “sentencing the petitioner to a 51-year sentence
with the possibility of parole that is in fact a de facto life sentence without parole.”
Following the appointment of counsel, the petitioner filed two amended petitions for
post-conviction relief, reiterating these same grounds for relief and adding a claim that
the mandatory life sentence in this case amounted to cruel and unusual punishment.



                                             -2-
               At the November 17, 2014 evidentiary hearing, the petitioner testified that
on the day of the offenses, he went to the home of his cousin, Toddreck Watts, for a short
time and that the two parted company before Mr. Watts was shot. He said that Mr.
Watts’s mother picked him up and drove him to the hospital to speak to the police despite
that the 16-year-old petitioner’s parents were at church. The petitioner testified that at
the hospital the police questioned him about the shooting before his parents arrived and
that he told them that he and Mr. Watts were walking to Mr. Watts’s house when Mr.
Watts was struck by a stray bullet. The petitioner testified that although his parents
arrived at the hospital, they were not allowed to transport the petitioner to the police
station for further questioning. Instead, the petitioner traveled to the police station in the
back of an unmarked patrol car accompanied by two police officers. Once at the police
station, he said, he was handcuffed and shackled to a chair inside an interview room
where he waited several hours without food or water before more officers arrived to
interview him. The petitioner said that he initially told his parents the same version of
events he provided to the police at the hospital. After his stepfather “told [him] that [he]
need[ed] to go ahead and tell the truth,” the petitioner provided the statement that was
admitted into evidence at trial, which he characterized as “what actually happened.” He
said that he was not allowed to speak with his mother at any point prior to giving the
statement and that his stepfather, who was Mr. Watts’s cousin, was interested in finding
out the truth about who had shot Mr. Watts.

               The petitioner insisted that although he met with his trial counsel prior to
trial, the two did not discuss trial strategy. He said that he felt unprepared for his trial.
He acknowledged, however, that he discussed with counsel the advantages and
disadvantages of testifying at trial and that he made the decision not to testify. The
petitioner said that trial counsel did not present any witnesses at trial and that he wanted
his mother and stepfather to testify, even though neither was present during the offenses.
The petitioner also complained that trial counsel failed to explain to him what was meant
by a sentence of life with the possibility of parole. He said that the trial court did not
conduct a sentencing hearing prior to imposing the life sentence.

               Ann Marie McCallum, the petitioner’s mother, testified that on the day of
the offenses, she was at church when she received a telephone call from Mr. Watts’s
mother, who told her to come to the hospital because Mr. Watts had been shot. She said
that she did not have an opportunity to speak with the petitioner alone that day. She said
that the police told her and her husband, the petitioner’s stepfather, to come to the police
station where the petitioner was to be questioned. They went to the police station, and,
after about an hour, an officer came and asked the petitioner’s stepfather to come into the
interview room. She said that after the petitioner provided a statement, the officer gave
her a paper to sign but that she “really didn’t know what [she] was signing.” She said

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that she was not given any opportunity to assess the situation or to seek counsel prior to
the petitioner’s providing his statement.

               Walter Lee Raiborn, Jr., testified that he married the petitioner’s mother
when the petitioner was five years old. He explained that Mr. Watts’s “great
grandmother was married to [his] second cousin,” so the two men considered themselves
cousins. Mr. Raiborn relayed a series of events for the day of the offenses that matched
that provided by Ms. McCallum. Mr. Raiborn said that when he was allowed to speak
with the petitioner, he urged the petitioner to tell the truth. He acknowledged that he did
not know that the petitioner had been accused of murdering Mr. Hernandez. He said that
he did not consider suggesting that the petitioner ask for an attorney. Mr. Raiborn said
that he told the petitioner’s counsel that Mr. Watts was his cousin.

               Trial counsel testified that he filed a motion to suppress the petitioner’s
incriminating pretrial statement on grounds that the statement was involuntary and that
the police lacked probable cause to arrest the defendant. He recalled that in preparing for
the hearing on the motion to suppress the petitioner’s statement, he spoke with the
petitioner, the petitioner’s mother, and the petitioner’s stepfather to develop a timeline
leading up to the petitioner’s confession. He said that after discussing that timeline and
reviewing the advice of rights and rights waiver forms, “it became obvious that it was
going to be a hard time kind of attacking what happened once the parents got involved.”
He decided that the best strategy was to attack the petitioner’s initial interview with the
police, which led to the later statement, and that the petitioner “was really the only one
who could testify to that.” He stated that “for the most part [the petitioner] didn’t give
any incriminating statements until the Raiborns got involved.” He said that he did not
call either of the petitioner’s parents to testify at the suppression hearing because their
testimony would not have supported his strategy. Counsel testified, “As a matter of fact,
it would probably hurt us since they had actually both parents had signed the statement
and Mr. Raiborn had signed the statement and the Waiver of Rights.”

              Trial counsel testified that he met with the petitioner 28 times at the jail in
addition to the meetings he had with the petitioner and the petitioner’s parents during
court appearances. He said that he had “in excess of 75 contacts either in the courts or
going down to discuss the matter with him in the jail.” Counsel recalled that the reason
for the large number of visits with the petitioner was to allow him to “cover everything
from strategy to range of punishment, to testifying.” He added that he also reviewed the
discovery materials with the petitioner and that he told the petitioner that the most
damning piece of evidence was the petitioner’s detailed confession to the crimes.
Counsel said that when asked, the petitioner “agreed that what he had told the police was
actual accurate rendition of what actually transpired which was consistent” with the
statements provided by Mr. Watts and by Mr. Reyes. He testified that the defense
                                             -4-
strategy was to emphasize the defendant’s youth as a means to undermine the “mountain
of proof” of the defendant’s guilt.

              Trial counsel testified that the State never made any plea offer that included
a reduction in the charged offenses or the sentence of life imprisonment despite counsel’s
attempts to negotiate. Counsel said that as to the convictions of attempted especially
aggravated robbery, the trial court did not conduct “a Sentencing Hearing on those per
se.” He explained that the prosecutor agreed to a sentence of 10 years for each
conviction to be served concurrently to one another and concurrently to the life sentence
imposed for the murder conviction. Counsel said that the prosecutor’s agreement
allowed the petitioner to avoid the possibility of consecutive sentencing. He recalled that
he discussed the sentence with the petitioner and that the two specifically discussed the
specifics of the sentence of life imprisonment. He said that he did not object to the
imposition of the life sentence because that was the only sentence available under the
law.

               During cross-examination, trial counsel reiterated that the primary thrust of
his motion to suppress the petitioner’s statement was that the statement was not voluntary
and that the basis for that claim was the petitioner’s youth and the fact that some of the
questioning occurred prior to the arrival of the petitioner’s parents. Consequently, trial
counsel said that he took into consideration the petitioner’s age, maturity level,
familiarity with the criminal justice system, and his family and social background. He
testified that he found the petitioner to be an intelligent young man with a good family
background. When asked whether he had moved for the suppression of the petitioner’s
statement under the terms of Code section 37-1-115, counsel responded that he had not
invoked the statute but had argued that the State lacked probable cause to arrest the
defendant, one of the exceptions to the application of that statute. He noted that “[a]ll of
these issues were addressed and litigated and then ruled upon.”

               In a written order denying relief, the post-conviction court concluded that
the petitioner had failed to establish any of his claims by clear and convincing evidence.
The court found that counsel did not perform deficiently by failing to seek suppression of
the petitioner’s statement under the terms of Tennessee Code Annotated section 37-1-115
because the petitioner’s statement was not subject to suppression under the terms of that
statute. The court also concluded that the petitioner had failed to establish that counsel
performed deficiently by failing to communicate a plea offer from the State because the
uncontroverted proof at the evidentiary hearing established that no such offer had been
made. The court determined that counsel did not perform deficiently by failing to object
to the imposition of the life sentence in this case because that sentence was the only one
available under the law. Finally, the court concluded that the petitioner’s life sentence
did not violate the constitutional prohibition on cruel and unusual punishment.
                                            -5-
              In this appeal, the petitioner reiterates his claim of ineffective assistance of
counsel, arguing that counsel failed to adequately advocate for suppression of his pretrial
statement under the terms of Tennessee Code Annotated sections 37-1-115 and -127.

              We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence is void or
voidable because of the abridgement of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. A post-
conviction petitioner bears the burden of proving his or her factual allegations by clear
and convincing evidence. Id. § 40-30-110(f). 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. 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).

              A claim of ineffective assistance of counsel, specifically, is a mixed
question of law and fact. See Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015); Lane
v. State, 316 S.W.3d 555, 562 (Tenn. 2010); State v. Honeycutt, 54 S.W.3d 762, 766-67
(Tenn. 2001). 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. Kendrick, 454 S.W.3d at 457; Fields, 40
S.W.3d at 457-58; see also State v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

               Before a petitioner will be granted post-conviction relief based upon a
claim of ineffective assistance of counsel, the record must affirmatively establish, via
facts clearly and convincingly established by the petitioner, 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
that 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. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. 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.

                                             -6-
              When considering a claim of ineffective assistance of counsel, a reviewing
court “begins with the strong presumption that counsel provided adequate assistance and
used reasonable professional judgment to make all significant decisions,” Kendrick, 454
S.W.3d at 458 (citing Strickland, 466 U.S. at 689), and “[t]he petitioner bears the burden
of overcoming this presumption,” id. (citations omitted). 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).

              The petitioner argues that his statement was obtained in violation Code
section 37-1-115 and thus subject to suppression under Code section 37-1-127 and that
trial counsel performed deficiently by failing to make this argument in the trial court.
Code section 37-1-115 provides, in pertinent part, as follows:

             (a) A person taking a child into custody shall within a
             reasonable time:

             (1) Release the child to such child’s parents, guardian or other
             custodian upon a promise by such person or persons to bring
             the child before the court when requested by the court unless
             such child’s detention or shelter care is warranted or required
             under § 37-1-114; or

             (2) Bring the child before the court or deliver such child to a
             detention or shelter care facility designated by the court or to
             a medical facility if the child is believed to suffer from a
             serious physical condition or illness that requires prompt
             treatment. A person taking a child into custody shall give
             notice thereof, together with a reason for taking the child into
             custody, to a parent, guardian or other custodian and to the
             court. If the child is taken into custody pursuant to the
             provisions of § 37-1-113(a)(3) prior to the filing of a petition,
             a petition under § 37-1-120 shall be filed as soon as possible
             but in no event later than two (2) days after the child is taken
             into custody excluding Saturdays, Sundays and legal
             holidays.



                                            -7-
T.C.A. § 37-1-115(a). Code section 37-1-127 provides that “[a]n extra-judicial
statement, if obtained in the course of violation of this part or that would be
constitutionally inadmissible in a criminal proceeding, shall not be used against the
child.” Id. § 37-1-127(c).

               We note, initially, that the issue of the voluntariness of the petitioner’s
statement as well as the probable cause supporting the detention that preceded the
statement was thoroughly litigated at trial and on appeal. See Jurico Readus, slip op. at
9-12. On direct appeal, this court affirmed the trial court’s ruling that, examining the
totality of the circumstances, the petitioners’s waiver of his rights and his subsequent
confession were voluntary. See id., slip op at 12. Any attempt to shoehorn a rehashing of
this issue into a claim that counsel performed deficiently by failing to adequately move
for suppression of the petitioner’s statement is insufficient to overcome the bar of Code
section 40-30-106, which provides that “[a] ground for relief is previously determined if a
court of competent jurisdiction has ruled on the merits after a full and fair hearing.”
T.C.A. § 40-30-106(h).

              Moreover, the petitioner’s claim that his statement should have been
suppressed under the terms of Code sections 37-1-115 and -127 lacks merit. Our
supreme court has held that Code section 37-1-127(c) “guarantees only that a juvenile’s
statements taken in violation of T.C.A. § 37-1-115 will not be used against him or her in
a proceeding in juvenile court.” State v. Lundy, 808 S.W.2d 444, 446 (Tenn. 1991)
(citing Colyer v. State, 577 S.W.2d 460, 462 (Tenn. 1979); State v. Turnmire, 762 S.W.2d
893, 896 (Tenn. Crim. App. 1988)) (emphasis added); see also State v. Carroll, 36
S.W.3d 854, 862 (Tenn. Crim. App. 1999) (“Thus, when police take a child into custody
and conduct an interrogation, the admissibility of any resultant statement in a juvenile
court proceeding will depend both upon satisfaction of the reasonable time requirements
of Tenn. Code. Ann. § 37-1-115 and the knowing and voluntary nature of the
confession.” (emphasis added)).

                 Finally, the petitioner claims that, had counsel sought suppression of the
petitioner’s statement pursuant to Code section 37-1-127(c) in the juvenile court, the
statement could have been deemed inadmissible at the transfer hearing and that, without
the statement, the petitioner would not have been transferred to be tried as an adult. In
our view, this claim is too specious to warrant relief under the circumstances in this case.
First, it is not clear from the evidence adduced at the suppression hearing, the trial, or the
evidentiary hearing that the State failed to comply with the terms of Code section 37-1-
115. To be sure, the petitioner was not released to the custody of his parents following
his confession, but the petitioner presented no evidence with regard to the time when the
petitioner was taken before the juvenile court. Code section 37-1-115 requires “that,
within a reasonable time of taking a child into custody, the police must either release the
                                             -8-
child to his parents’ custody, bring the child before the court, or place the child in an
appropriate detention facility for juveniles, thereby triggering procedural protections
relating to the detention of juveniles.” Carroll, 36 S.W.3d at 863 (first emphasis added).
Additionally, Code section 37-1-115 allows for continued detention of a child in the
custody of the police when “such child’s detention or shelter care is warranted or required
under § 37-1-114.” T.C.A. § 37-1-115(a)(1). One such exception contained in Code
section 37-1-114 exists when “[t]here is probable cause to believe the child has
committed a delinquent offense constituting . . . [a] crime against a person resulting in the
. . . death of the victim.” Id. § 37-1-114(a), (c)(1). Both the trial court and this court
considered and rejected the petitioner’s claim that the police lacked the probable cause to
support his custodial interrogation. See Jurico Readus, slip op. at 12.

              Because the evidence does not preponderate against the post-conviction
court’s conclusion that the petitioner failed to prove his claim of ineffective assistance of
counsel by clear and convincing evidence, we affirm the judgment of that court denying
post-conviction relief.

                                                    _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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