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

                     LEON GOINS v. STATE OF TENNESSEE

                    Appeal from the Circuit Court for Dyer County
                        No. 08-CR-234      Lee Moore, Judge




                 No. W2011-00668-CCA-R3-PC - Filed April 23, 2012


The petitioner, Leon Goins, appeals the denial of his petition for post-conviction relief
challenging his Dyer County Circuit Court jury conviction of possession with intent to sell
or deliver .5 grams or more of cocaine and resulting 25-year sentence. In this appeal, he
asserts that he was denied the effective assistance of counsel. Discerning no error, we affirm.

             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.

Danny H. Goodman, Tiptonville, Tennessee, for the appellant, Leon Goins.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney
General; and Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

               On November 21, 2008, a Dyer County Circuit Court jury convicted the
petitioner of possession with intent to sell or deliver .5 grams or more of cocaine, and on
January 20, 2009, the trial court imposed a Range III sentence of 25 years’ incarceration.
The petitioner filed a timely but unsuccessful appeal in this court, see State v. Leon Goins,
No. W2009-02096-CCA-R3-CD (Tenn. Crim. App., Jackson, Oct. 4, 2010), and the
petitioner did not seek discretionary review by the supreme court, choosing instead to file a
petition for post-conviction relief. The facts, as summarized by this court on direct appeal,
are as follows:

                     Officer Thomas Langford of the Dyersburg Police
Department received information from a confidential informant
that he had seen a quantity of drugs in the [petitioner]’s
residence at 607 Peabody. Based upon this information, a
warrant was obtained, and several officers proceeded to the
residence in order to execute it. Upon arriving at the home,
officers observed several people in the yard outside the home.
Because the element of surprise was lost, officers proceeded to
secure the residence through the use of forced entry. Upon
entry, Officer Todd Thayer found one female in the living room
of the residence, who was later determined to be Pam White, the
[petitioner]’s fiance. She was searched, but officers found no
money or drug paraphernalia on her person. In the [petitioner]’s
bedroom, officers discovered a table inside a walk-in closet. On
the table was a rock of crack cocaine, later determined to weigh
7.9 grams. A razor blade, commonly used to cut pieces from a
large rock, was found next to the drugs. No other items of drug
paraphernalia were discovered. However, there was “a lot of
money laying on the dresser” in the bedroom. No attempt was
made to obtain fingerprints from the razor blade because of the
nature of the surface.

       The [petitioner] was found in the backyard of his
residence, along with several other people. He was searched for
safety reasons, and officers discovered $343 in his pocket and
$67 in his wallet. He was arrested by officers on the scene.
However, before officers could question the [petitioner] or
transport him to the jail, he began having chest pains. An
ambulance was called, and he was transported to the local
hospital.

        Based upon the foregoing, the [petitioner] was indicted
by a Dyer County grand jury for one count of possession of
cocaine, over .5 grams, with the intent to sell or deliver. The
[petitioner] pled not guilty, and a jury trial was held. At trial,
each of the officers testified to the above scenario. Additionally,
officers testified that a rock as large as the one found in the
[petitioner]’s closet was not usually for a single user and that the
value of the rock, intact, was approximately $250-$300.
However, Officer Thayer further explained that smaller pieces,
usually weighing .1 grams, were sold directly to users, but larger

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rocks weighing approximately 3.5 grams were sold to those
intending to resell to others. He estimated that the value of the
cocaine found in the [petitioner]’s closet, if broken down into
smaller pieces for resale, would be approximately $1000.

         The [petitioner] presented five witnesses in his defense
and proceeded under a theory that the cocaine belonged to
Stanley Shaw. He first called Stanley Shaw, who admitted that
he had given a sworn statement to police that the cocaine found
in the [petitioner]’s residence was his. However, he clarified in
his testimony that he had lost an $8 rock of cocaine at the
[petitioner]’s house earlier and that he believed that is what he
was accepting responsibility for in the statement. He went on to
testify that the [petitioner] had written out the statement for him.
He testified that he did not live with the [petitioner] at his
residence and that he had been at work on the day the police
came. He further admitted that he was a crack cocaine user but
stated that he did not have the financial ability to purchase a
rock of crack as large as the one found in the [petitioner]’s
home. He went on to state that if he had that much crack, he
would have smoked it all at one time and that it would have
killed him.

        The defense then called Jane Cherry, Stanley Shaw’s
employer. She testified that Shaw was not at work that day
because the bowling alley was closed. According to Cherry,
Shaw earned approximately $70 per month for buffing the
floors.

        Finally, the defense called James Barr, Winston Sharp,
and Pam White. Barr testified that he lived behind the
[petitioner]’s residence and that he was outside on the day the
police came. He stated that the police arrived before the
[petitioner], whom he saw walking up the street. He further
testified that Stanley Shaw had been staying with the
[petitioner], but he did not see him on this particular day. He
also testified that he and the [petitioner] sold scrap metal
together and that the [petitioner] did this to supplement his
social security disability. Finally, he acknowledged his own use
of crack cocaine and admitted that a rock as big as the one found

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              at the [petitioner]’s residence would not normally be for
              personal use.

                     Winston Sharp, the [petitioner]’s cousin, also testified
              that Shaw was living with the [petitioner] at the time. He stated
              that he visited the [petitioner]’s home that day, January 9, and
              that Shaw had asked him if he wanted to buy some crack.
              However, after testifying that this occurred in the summer, he
              acknowledged that he might have been confused about the days.
              Finally, Pam White, the [petitioner]’s fiance, testified that she
              was at the residence on that day and that a party was going on.
              She testified that the [petitioner] was not there but that Shaw
              kept coming “in and out.”

Leon Goins, slip op. at 1-3.

                In his petition, the petitioner alleged, among other things, that he was denied
the effective assistance of counsel. Via an amended petition filed by post-conviction
counsel, the petitioner claimed that his trial counsel performed deficiently by failing to advise
him of the elements of the charged offense, by failing to advise him of a plea offer from the
State, by failing to advise him regarding the applicable sentencing range, by failing to meet
with him before trial or sentencing, by failing to provide him with discovery, and by failing
to subpoena witnesses to testify on his behalf.

                At the evidentiary hearing, the petitioner testified that his trial counsel, an
assistant district public defender, failed to inform him of the elements of the charged offense
prior to his arriving in court on the day of trial. Although the petitioner insisted that counsel
also failed to discuss the applicable sentencing range with him prior to trial, he said, “I
thought I was going to get 45 percent for this charge.” The petitioner said that trial counsel
never discussed the State’s plea offer with him and that he would have considered the offer
had he been made aware of it prior to trial. He said, “I probably would have took [sic] the
plea bargain. But since I didn’t have a plea bargain, I didn’t have any choice but to go to
trial. He said it wasn’t one.”

                The petitioner said that he met with trial counsel only twice prior to trial and
that on both occasions their conversation centered on a statement provided by Stanley Shaw.
As a result of counsel’s failure to meet with him, the petitioner said that he was unprepared
to go to trial. He testified that counsel did not provide him with discovery materials and that
he failed to subpoena potential witnesses. Specifically, the petitioner claimed that he asked
trial counsel to subpoena Mike Taylor and “some of the people that was out there that the

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police didn’t have the name of.” He admitted, however, that he had not provided trial
counsel with the names of those individuals. The petitioner said that these potential
witnesses “would have made a lot of difference because they knew I wasn’t there and they
knew Stanley Shaw was actually the one selling dope.”

               The petitioner said that he did not speak to trial counsel between his conviction
and sentencing and that trial counsel refused the trial court’s order that he “come down there
and do the sentencing report” with the petitioner. The petitioner said that he wanted to call
his nieces, his aunt, and his Uncle Richard as witnesses at the sentencing hearing.

               During cross-examination, the petitioner acknowledged that he was aware of
his prior criminal record and that he had participated in three previous jury trials, including
one for a charge of selling .5 grams or more of cocaine. He nevertheless maintained that he
was unclear on the elements of possession with intent to sell or deliver .5 grams or more of
cocaine, saying, “Laws change.” The petitioner said that his defense was always that the
drugs found during the execution of the search warrant at his residence did not belong to him
and instead belonged to Stanley Shaw. The petitioner maintained that despite his innocence,
he might have accepted a plea offer. The petitioner acknowledged that he had not previously
accepted any plea agreement offered by the State and had gone to trial on several prior
occasions. The petitioner acknowledged that trial counsel presented witnesses on his behalf,
including some whose names were provided to counsel by the petitioner.

                Trial counsel testified that he was appointed to represent the petitioner on June
30, 2008, and that the petitioner told him, “I’m not interested in a plea. I’m going to trial.”
At that time, the petitioner gave trial counsel a statement purportedly signed by Mr. Shaw
admitting his culpability in the offense. He said that the petitioner insisted that the matter be
set for trial. In preparation for trial, trial counsel discussed trial strategy with the petitioner
as well as the potential range of punishment should he be convicted. Counsel said that he
specifically recalled discussing range of punishment with the petitioner because they did it
at the same time they discussed those prior convictions that might be used to impeach the
petitioner at trial.

               Counsel said that he subpoenaed each of the witnesses named to him by the
petitioner but that the defense did not present the testimony of all those witnesses at trial. He
said that he made the decision not to call many of the witnesses because the testimony of
those he did call was “so wildly different than what they told [counsel] in the street” that he
“made a decision at that point to limit . . . damage.” Counsel testified that he chose not to
call the person who notarized Mr. Shaw’s signature on the inculpatory statement because,
when interviewed, she intimated that Mr. Shaw was being intimidated by the petitioner, who
had written the note and accompanied Mr. Shaw to have it notarized.

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               Counsel said that his “hands were tied by” the petitioner, who “decided the trial
strategy and as much as he could he decided trial factors.” Counsel said that his desired trial
strategy was “to pin it on Ms. White” rather than Mr. Shaw, but the petitioner refused to
allow that strategy because Ms. White “had some sort of romantic relationship” with the
petitioner. He testified that he knew that Mr. Shaw would provide testimony that was
contrary to the notarized statement because he had interviewed Mr. Shaw prior to trial.
Counsel reiterated that the greatest difficulty at trial “was that the witnesses that [the
petitioner] provided gave . . . certain statements out on the street and when . . . they were
under oath on the witness stand the story started changing so drastically.” Counsel said that
he found himself “in a hole” and that his only option at that point “was to quit digging.”

               Counsel testified that he and the petitioner did not have a working relationship
between the trial and sentencing because the petitioner, five days after the verdict, had filed
a complaint with the Board of Professional Responsibility that was filled with erroneous
accusations. Counsel said that the visitor’s log from the jail indicated that he had visited the
petitioner at the jail three times and that did not count the times that he met with the
petitioner on court days.

                During cross-examination, trial counsel testified that “[e]xactly the first thing”
that the petitioner said to him when they met following his arraignment was that he would
not consider accepting a plea agreement. Counsel said that he did not think he ever showed
the petitioner a plea offer given the petitioner’s statement. He said that if he thought “there
was any possibility of a plea [he] would have pursued it” because a plea took much less of
his time and effort than preparing for a felony trial. Counsel could not recall whether he gave
the petitioner a copy of the discovery materials. Counsel acknowledged that his last meeting
with the petitioner was “a week to ten days” prior to trial but explained that he did not need
to meet with the petitioner during that time.

               Counsel said that he refused to meet with the petitioner between trial and
sentencing because of “[t]he blatant lies [the petitioner] told about [counsel] in . . . his letters
to the Board of Professional Responsibility.” He acknowledged his obligation to represent
the petitioner at the sentencing hearing but testified that he was unwilling to meet with the
petitioner “one-on-one” because “there is no telling what he’s going to say” to the Board
regarding the counsel’s advice. Counsel said, “I showed up at the sentencing hearing. It was
what it was. We argued what we did. . . . But . . . to be honest with you, I didn’t think that
getting his Sunday School teacher in here and saying that he was a nice guy was really going
to make a whole lot of difference at the sentencing hearing.” Counsel stated that he had
asked the court for permission to withdraw from the case, but the trial court denied his
request.



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              During redirect examination, counsel testified that the petitioner procured the
statement from Mr. Shaw less than a week after the search warrant was executed at his
residence and prior to his even being charged in the case. He said that he was concerned
about the petitioner’s refusal to accept responsibility for the offense and what effect that
might have on his sentencing.

               At the conclusion of the hearing, the post-conviction court denied relief,
accrediting trial counsel’s testimony that he met with the petitioner several times and that the
petitioner was vehemently opposed to considering a plea offer. The court offered its own
independent recollection that the petitioner was eager to go to trial. The court also concluded
that counsel had subpoenaed those witnesses desired by the petitioner. The court determined
that any deficiency in the failure to provide the petitioner with a copy of the discovery
materials did not inure to the petitioner’s prejudice. The post-conviction court ruled that trial
counsel should have met with the petitioner prior to sentencing but that the petitioner had
failed to establish any prejudice stemming from this deficiency.

               In this appeal, the petitioner reiterates his claims that trial counsel performed
deficiently by failing to meet with him a sufficient number of times prior to trial, by failing
to discuss a plea offer with him, by failing to discuss the elements of the charged offense
with him, and by failing to advise him of his sentencing range. 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 abridgment of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United States.”
T.C.A. § 40-30-103 (2006). A post-conviction petitioner bears the burden of proving his or
her allegations by clear and convincing evidence. Id. § 40-30-110(f). On appeal, the
appellate court affords deference to the post-conviction court’s findings of fact, 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).

              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.

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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).

               The accredited testimony of trial counsel established that counsel met with the
petitioner three times at the jail and several times in court. That being said, the petitioner has
failed to allege what, if anything, would have been gained by simply meeting with counsel
more times or how he was prejudiced by the number of meetings between the two. Counsel’s
accredited testimony established that he discussed with the petitioner the potential range of
punishment, and the petitioner’s own testimony established that he was aware of his range
prior to sentencing because he believed he “was going to get 45 percent for this charge.”
Counsel should have related the State’s plea offer to the petitioner, but counsel’s testimony
and the post-conviction court’s own recollections of the petitioner’s case established that the
petitioner was adamant about going to trial. Moreover, although the petitioner testified that
he “probably would have took” the State’s offer, the petitioner acknowledged that he had
insisted on going to trial in all of his previous cases. Finally, although trial counsel did not
meet with the petitioner prior to the sentencing hearing, the petitioner failed to establish any
prejudice flowing from this failure. The petitioner claimed that he wanted to present the
testimony of certain witnesses at the sentencing hearing, but he failed to present those
witnesses at the evidentiary hearing. “When a [post-conviction] 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). If he fails to do so, he generally fails to
establish ineffective assistance of counsel. Id. The post-conviction court may not speculate
“on the question of . . . what a witness’s testimony might have been if introduced” at trial.
Id.; see also Wade v. State, 914 S.W.2d 97, 102 (Tenn. Crim. App. 1995).

                Because the petitioner has failed to establish any prejudice as a result of the
deficiencies in counsel’s performance, the judgment of the post-conviction court denying
relief is affirmed.



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      _________________________________
      JAMES CURWOOD WITT, JR., JUDGE




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