        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs December 1, 2009

              LAMARIO SUMNER a/k/a LAMARIO FLEMING v.
                       STATE OF TENNESSEE

              Direct Appeal from the Criminal Court for Shelby County
                       No. 03-07118     Paula Skahan, Judge


              No. W2009-00453-CCA-R3-PC - Filed November 10, 2010


Petitioner, Larmio Sumner a/k/a Lamario Flemming, appeals the post-conviction court’s
dismissal of his petition for post-conviction relief in which he alleged the ineffective
assistance of trial counsel. Specifically, Petitioner contends that trial counsel’s assistance
was ineffective because he failed to (1) request a jury instruction on aggravated assault as
a lesser included offense of each count charged in the indictment; and (2) appeal the trial
court’s imposition of consecutive sentencing. After a thorough review, we affirm the
judgment of the post-conviction court.

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

THOMAS T. WOODALL, J., delivered the opinion of the Court, in which JOHN EVERETT
WILLIAMS and J.C. MCLIN , JJ., joined.

Lance R. Chism, Memphis, Tennessee, for the appellant, Lamario Sumner.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; William L. Gibbons, District Attorney General; and Byron B. Winsett,
III, Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

I. Background

       Following a jury trial, Petitioner was convicted of two counts of aggravated robbery.
The trial court sentenced Petitioner as a Range III, persistent offender, to twenty years for
each conviction. The trial court ordered Petitioner to serve his sentences consecutively for
an effective sentence of forty years.
       The facts supporting Petitioner’s convictions were summarized by this Court on
appeal as follows:

             On April 26, 2003, the two victims, Maria Lawson and Angel Silva,
      met at Memphis de Noche, a local Memphis club. After a brief conversation,
      the two went outside to Lawson’s Jeep Cherokee and drove behind the club
      in order to “have sex.” Lawson admitted to prostituting at the club. Lawson
      was seated in the driver’s seat of the vehicle, and Silva was standing outside
      the passenger door when a car with two black males pulled up behind
      Lawson’s vehicle. The passenger of the vehicle, later identified as the
      Appellant, exited the car and brandishing a pistol, approached Silva and
      demanded money. Silva removed his wallet from his pocket and threw it to
      the ground. As the Appellant bent to retrieve the wallet, Silva fled and hid
      between two parked cars. The Appellant then approached Lawson’s side of
      the vehicle, demanding that she surrender her keys to the vehicle. Lawson
      handed the Appellant the keys, but as he attempted to enter the vehicle, she
      “hollered real loud.” At this point, rescue-minded patrons of the bar emerged.
      The Appellant fled the Jeep Cherokee, taking Lawson’s purse with him, and
      he began firing his gun at the oncoming patrons. One or more of the patrons,
      who were also armed, returned fire. After the gunfire stopped, Silva emerged
      from his hiding spot and proceeded back around the building. The Appellant,
      who was still present at this time, shot Silva in the chest. The Appellant then
      fled the scene on foot. The driver of the vehicle, who had remained in the
      vehicle during the commission of the offenses, drove away.

             A club security guard escorted Lawson as she moved her vehicle to a
      more secure location. During the process of moving her vehicle, Lawson
      found the Appellant’s driver license in the floorboard. When the police
      arrived on the scene, Lawson and the security guard returned to the scene, and
      Lawson gave the driver license to an officer, identifying the man as the
      perpetrator.

             Silva was transported to a nearby hospital where he underwent surgery
      for a gunshot wound to the chest. After his discharge, Silva was interviewed
      by the police through an interpreter, and he identified the Appellant as his
      assailant from a photo line-up.

State v. Lamario Sumner, No. W2005-00122-CCA-R3-CD, 2006 WL 44377, at *1 (Tenn.
Crim. App., at Jackson, Jan. 6, 2006), perm. to appeal denied (Tenn. May 30, 2006).


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II. Post-Conviction Hearing

       Petitioner testified that he retained trial counsel in April 2003. Petitioner said that he
met with trial counsel approximately seven or eight times before trial, and trial counsel
reviewed the facts of the case with him. Petitioner told trial counsel that he, Fred Richards
and Michael Benton were riding down Lamar Avenue on April 26, 2003, at approximately
11:30 p.m. to midnight. The group stopped briefly at one bar and then decided not to go into
the establishment. Petitioner got out of the vehicle on Lucy Street and was picked up by
Tony Thomas, Courtney Gordon, and Antonio Drive. The four men went to a bar on Elvis
Presley Boulevard, arriving at approximately 12:30 a.m. They stayed for a few minutes and
then drove to a nightclub at approximately 1:00 a.m. Petitioner noticed that he did not have
his driver’s license with him. Petitioner said that he received a telephone call from his
mother at approximately 2:00 a.m. She told Petitioner that police officers had been to her
house looking for Petitioner. The officers told her that Petitioner was armed and dangerous.
Petitioner said that his girlfriend, Siobhan Fleming picked him up at the club and they drove
to Ms. Fleming’s house where Petitioner spent the night.

        Petitioner stated that he provided the names and telephone numbers of his friends to
his trial counsel. Petitioner acknowledged that he had trouble trying to contact these people
but said trial counsel did not do any investigation as to their whereabouts. Petitioner stated
that trial counsel did not file a motion to suppress the driver’s license found in Ms. Lawson’s
vehicle. Trial counsel also did not ask for a DNA analysis of the hat Petitioner was allegedly
wearing at the time of the commission of the offenses, as Petitioner had requested.
Petitioner stated that trial counsel “constantly” urged him to enter a plea of guilty. Petitioner
acknowledged that trial counsel negotiated a sentence of “seven point two,” but Petitioner
said that he wanted to proceed to trial because he did not want to accept any sentence that
carried a period of confinement. Petitioner stated that trial counsel did not want to go to trial
because Petitioner’s family could not afford to pay the attorney’s fee for services beyond the
plea negotiation stage.

        On cross-examination, Petitioner acknowledged that the State extended six offers of
settlement, each offer involving less confinement time than the previous. Petitioner also
acknowledged that trial counsel explained each offer to him. Petitioner stated that he felt
that trial counsel was pressuring him to enter a plea of guilty because he kept bringing
different offers of settlement to him. Petitioner said that he was not aware that trial counsel
was required to present each offer to him. Petitioner did not recollect trial counsel stating
that he could not find any of the alibi witnesses based on the information Petitioner
provided. Petitioner acknowledged that he did not try to find the alibi witnesses himself
before trial. Petitioner acknowledged that Mr. Silva did not identify him as the perpetrator
from a line-up of eight African-American men. Petitioner agreed that trial counsel moved

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for a dismissal of the case based on the results of the line-up, which was granted by the
General Sessions Court. Petitioner acknowledged that he was arrested again for the charges
in the criminal trial court approximately five months later.

        Sergeant James Terry Max, with the Memphis Police Department, testified that he
interviewed Mr. Silva in the hospital on April 29, 2003. Speaking through an interpreter,
Mr. Silva described the perpetrator’s vehicle but could only give a general description of the
perpetrator himself. Sergeant Max stated that the interview lasted only a short time because
Mr. Silva was heavily medicated. The next interview occurred on May 9, 2003. Mr. Silva,
through an interpreter, described the perpetrator as an African-American male and gave
information concerning the man’s height and complexion. Sergeant Max showed Mr. Silva
a photographic line-up. After a few minutes, Mr. Silva identified Petitioner as the
perpetrator, but Mr. Silva did not display much confidence in his choice. Sergeant Max
described Mr. Silva’s identification as “tentative.” On cross-examination, Sergeant Max
stated that Ms. Lawson identified Petitioner as the perpetrator from the photograph on the
driver’s license that was found in her vehicle.

         Trial counsel stated that he did not appeal the imposition of consecutive sentencing
because he did not feel that he would prevail on the issue, and he felt that there was more
support for the issues he did raise. Trial counsel said that the trial court was very thorough
in its findings supporting consecutive sentences and “ruled within the bounds of the law.”

        Trial counsel said that he did not request a jury instruction on aggravated assault as
a lesser included offense of aggravated robbery because the theory of defense was based on
identity, not that the charged offense did not occur. Trial counsel also believed that the jury
would not have convicted Petitioner of aggravated assault based on the evidence presented
concerning the robbery of two persons at gunpoint.

        Trial counsel said that Petitioner was consistent in his description of his activities on
April 26, 2003. Initially, however, he did not discuss the potential of an alibi with Petitioner
because Petitioner was focused only on securing the dismissal of the charges against him.
Trial counsel said that the State began settlement negotiations “pretty quickly.” When the
offer included a sentence of 7.2 years at twenty percent, trial counsel stated that he “began
practically begging” Petitioner to accept the offer. Trial counsel was aware that the State
had found Ms. Lawson, and that Ms. Lawson would testify at trial.

       Trial counsel stated that Petitioner always referred to his alibi witnesses by their
nicknames except for Ms. Fleming. Trial counsel asked Petitioner to give him any
information that would allow him to locate these people. Petitioner gave trial counsel some
telephone numbers in May 2003. Attempts to reach the witnesses by these numbers were

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unsuccessful. Trial counsel asked Petitioner to enlist his mother’s and Ms. Fleming’s
assistance in finding the witnesses, but he never heard from them. Trial counsel said that
Petitioner never showed any interest in talking about his alibi witnesses, and trial counsel
doubted that even if found they would corroborate Petitioner’s version of the events. Trial
counsel stated that “the State” had a list of the potential alibi witnesses and was also unable
to locate any of them.

III. Standard of Review

        To succeed on a challenge of ineffective assistance of counsel, the petitioner bears
the burden of establishing the allegations set forth in his petition by clear and convincing
evidence. T.C.A. § 40-30-210(f). However, the trial court’s application of the law to the
facts is reviewed de novo, without a presumption of correctness. Fields v. State, 40 S.W.3d
450, 458 (Tenn. 2001). A claim that counsel rendered ineffective assistance is a mixed
question of fact and law and therefore also subject to de novo review. Id.; State v. Burns,
6 S.W.3d 453, 461 (Tenn. 1999).

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, he or she must establish that counsel’s performance fell below “the range of
competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). In addition, he or she must show that counsel’s ineffective performance
actually adversely impacted his defense. Strickland v. Washington, 466 U.S. 668, 693, 104
S. Ct. 2052, 2067 (1984). In reviewing counsel’s performance, the distortions of hindsight
must be avoided, and this Court will not second-guess counsel’s decisions regarding trial
strategies and tactics. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The reviewing court,
therefore, should not conclude that a particular act or omission by counsel is unreasonable
merely because the strategy was unsuccessful. Strickland, 466 U.S. at 689, 104 S. Ct. at
2065. Rather, counsel’s alleged errors should be judged from counsel’s perspective at the
point of time they were made in light of all the facts and circumstances at that time. Id. at
690, 104 S. Ct. at 2066.

       A petitioner must satisfy both prongs of the Strickland test before he or she may
prevail on a claim of ineffective assistance of counsel. See Henley v. State, 960 S.W.2d 572,
580 (Tenn. 1997). That is, a petitioner must not only show that his or her counsel’s
performance fell below acceptable standards, but that such performance was prejudicial to
the petitioner. Id. Failure to satisfy either prong will result in the denial of relief. Id.
Accordingly, this Court need not address one of the components if the petitioner fails to
establish the other. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.



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IV. Jury Instructions

       Petitioner argues that trial counsel’s assistance was ineffective because he failed to
request in writing a jury instruction on aggravated assault as a lesser included offense of
aggravated robbery. Petitioner contends that he was prejudiced by trial counsel’s decision
to forego such a request because the State did not establish beyond a reasonable doubt that
the jury would not have convicted him of aggravated assault had they been extended the
opportunity to do so.

        We note at the outset that Petitioner, not the State, has the burden of proving that he
or she was prejudiced by an alleged deficiency on the part of trial or appellate counsel.
Strickland, 466 U.S. at 687, 104 S.Ct. 2052. To establish prejudice, 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.” Id., 466 U.S. at 694.
        A defendant is required to request in writing that the trial court instruct the jury on
any specifically identified lesser included offense. T.C.A. § 40-18-110(a). In the absence
of such a request, the trial court may charge the identified lesser included offense, but the
defendant is not entitled to the charge. Id. § 40-18-110 (b). Aggravated assault is a lesser
included offense of aggravated robbery. State v. Swift, 308 S.W.3d 827, 831-32 (Tenn.
2010); State v. Franklin, 130 S.W.3d 789, 798 (Tenn. Crim. App. 2003); State v. James
Carlos Ward, No. M2009-00417-CCA-R3-CD, 2010 WL 1949155, at *9 (Tenn. Crim.
App., at Nashville, May 14, 2010); State v. Joseph Wayne Graves, No. W2007-02552-CCA-
R3-CD, 2009 WL 3273959, at *10 (Tenn. Crim. App., at Jackson, Oct. 13, 2010), perm. to
appeal denied (Tenn. Apr. 15, 2010).

        In the case sub judice, Petitioner was indicted for especially aggravated robbery in
one count and convicted of the lesser included offense of aggravated robbery. In another
count, Petitioner was charged with and convicted of aggravated robbery. We note that the
jury considered the lesser-included offenses of aggravated robbery and robbery in one count,
and robbery in the other count, and convicted Petitioner of aggravated robbery in each count,
to the exclusion of the immediate lesser included offense of robbery. Harmless error may
be shown where the jury convicts on the higher offense to the exclusion of the immediately
lesser offense, necessarily rejecting other lesser offenses. State v. Williams, 977 S.W.2d
101, 106 (Tenn. 1998). For this reason, we conclude that Petitioner was not prejudiced by
his trial counsel’s failure to request an instruction on the lesser included offense of
aggravated assault.

      Notwithstanding the jury’s rejection of an intermediate lesser offense, we also
conclude that the error is harmless in that it appears beyond a reasonable doubt that the error

                                             -6-
did not affect the outcome of the trial.” See State v. Allen, 69 S.W.3d 181, 191 (Tenn.
2002). As Petitioner candidly acknowledges in his brief, failure to instruct the jury on
aggravated assault as a lesser included offense is harmless error “when the proof
overwhelmingly showed that a theft occurred.” See State v. Banks, 271 S.W.3d 90, 129-30
(Tenn. 2008) (noting that the only variation between aggravated robbery and aggravated
assault is the robbery component); see also State v. Henry Hawkins, No. W2005-00781-
CCA-R3-CD, 2006 WL 1703817, at *16 (Tenn. Crim. App., at Jackson, June 21, 2006),
perm. to app. denied (Tenn. Oct. 30, 2006) (concluding that “no rational juror could have
found the defendant committed an assault or aggravated assault without committing a
robbery or an aggravated robbery and, therefore, the trial court’s failure to charge aggravated
assault as a lesser included offense is harmless error). Ms. Lawson testified at trial that
Petitioner was armed with two guns. He pointed one gun at her head when he demanded
her car keys and kept the other gun by his side. Ms. Lawson said that when the other bar
patrons rushed into the parking lot in response to her screams, Petitioner ran off with her
purse. Mr. Silva testified that Petitioner approached him, pointed a gun at him, and
demanded money. Mr. Silva said that he threw his wallet on the ground in front of
Petitioner and then ran away.

       Petitioner acknowledges that “the proof clearly showed that he committed a theft
against both Angel Silva and Maria Lawson.” Trial counsel testified at the post-conviction
hearing that he did not request an instruction on aggravated assault because Petitioner did
not deny that the offenses occurred, just that he was not the perpetrator. Petitioner does not
offer any reason why his case is distinguishable from the situations presented in Banks and
Henry Hawkins. Based on the foregoing, we conclude that Petitioner has failed to show that
he was prejudiced by trial counsel’s failure to request a jury instruction on aggravated
assault. Petitioner is not entitled to relief on this issue.

V. Sentencing Issues

       Petitioner argues that trial counsel’s assistance was ineffective because he failed to
appeal the trial court’s imposition of consecutive sentencing. Petitioner submits that an
effective sentence of forty years was “greater than that deserved for the offense committed”
and not “justly deserved.” See T.C.A.§ 40-35-102(1), -103(2). Petitioner points out that he
was acquitted of especially aggravated robbery regarding the offense against Mr. Silva, the
jury having concluded he did not cause any serious bodily injury. He also argues that his
prior criminal record consists primarily of juvenile offenses, and the current crimes were
committed “in a short period of time as part of one episode.” Petitioner also argues that no
one was injured during the commission of the prior offenses for which he had been
convicted.


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       A criminal defendant has a constitutional right to counsel on his first appeal, and this
right necessarily includes the right to effective assistance of counsel. House v. State, 911
S.W.2d 705, 712 (Tenn. 1995) (citing Douglas v. California, 372 U.S. 353, 83 S.Ct. 814
(1963); Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993)). The same principles applicable
to deciding the effectiveness of trial counsel apply to appellate counsel. House, 911 S.W.2d
at 712. Thus, Petitioner’s appellate counsel must not only have been ineffective in his
performance, Petitioner must also have been prejudiced by appellate counsel’s deficient
conduct. Strickland, 466 U.S. at 693. To demonstrate he was prejudiced by appellate
counsel’s actions, Petitioner must show that there is a reasonable probability that the result
on appeal would have been different but for the errors of counsel. Id. at 694.

       The trial court sentenced Petitioner as a Range III, persistent offender, based on
Petitioner’s conviction in November 2000 of two counts of especially aggravated
kidnapping and one count of especially aggravated robbery, all Class B felonies, in
November 2000. See T.C.A. § 40-35-107(2). According to the presentence report,
Petitioner was sixteen years old when these offenses were committed in July 1998, and he
was transferred to the Shelby County Criminal Court to be tried as an adult. In addition, if
a defendant is convicted of one or more criminal offense, consecutive sentencing may be
imposed at the discretion of the trial court if one or more of the criteria in Tennessee Code
Annotated section 40-35-115(b) is present. In this instance, the trial court found that
Petitioner had an extensive history of criminal activity, and that he was a dangerous offender
whose behavior indicated little or no regard for human life and no hesitation about
committing a crime in which the risk to human life is high. T.C.A. § 40-35-115(b)(2), (4).

       In addition to his three convictions in 2000, Petitioner has the following juvenile
adjudications: unlawful possession of a weapon, driving while license suspended, refusal
to submit to a blood alcohol test, and reckless driving in 1998; burglary of an automobile,
theft of an automobile and possession of cocaine with intent to sell in 1996; aggravated
assault, coercion of a witness, robbery, evading arrest, and two adjudications for theft of a
vehicle in 1995. In addition, Petitioner’s pre-sentence report indicates that he dropped out
of school in the ninth grade and has no history of employment.

       In determining that Petitioner was a dangerous offender, the trial court found that the
circumstances surrounding the commission of the offenses were aggravated noting that not
only did Petitioner rob two people at gun point, he discharged his weapon in a crowded
parking lot. The trial court also considered the circumstances of Petitioner’s prior offenses.
At the sentencing hearing on his aggravated robbery convictions, Dana Santos, the victim
of one of the especially aggravated kidnapping offenses, testified that she and her friend,
Jessica Neighbors, were stopped at a red light when Petitioner got into the back passenger
seat. Petitioner ordered Ms. Neighbors to “take him where he needed to go or he was going

                                             -8-
to hurt us.” Ms. Neighbors crossed the Mississippi state line and Petitioner directed her to
an abandoned apartment building. Petitioner told Ms. Neighbors to turn the headlights off.
Petitioner held a gun to Ms. Neighbors’ temple, and told the women to get out of the vehicle.
The women complied, and Ms. Santos stated that she and Ms. Neighbors ran behind a tree
because they were afraid that Petitioner was going to shoot them. Ms. Santos identified
Petitioner as her assailant at the sentencing hearing.

       Based on these factors, the trial court found that confinement for an extended period
was necessary to protect society from Petitioner’s unwillingness to lead a productive life.
The trial court observed that it was apparent that “all this [petitioner] wants to do is put guns
on people and terrorize the community and be a big man with a gun.” The trial court found
that imposition of the minimum sentence for each aggravated robbery conviction and the
order of consecutive sentencing was reasonably related to the seriousness of the offenses.

       Trial counsel testified at the post-conviction hearing that he reviewed the motion for
new trial and chose those issues which he believed had a chance of success on the merits.
Trial counsel said, however, that he believed that Petitioner met the criteria for consecutive
sentencing and that the trial court properly considered the principles of sentencing in
ordering Petitioner to serve his sentences consecutively. There is no requirement that
counsel raise a non-frivolous issue on appeal if, as a matter of professional judgment,
counsel feels the issue should not be addressed. See Carpenter v. State, 126 S.W.3d 879,
887 (Tenn. 2004). Based on our review, we conclude that the evidence does not
preponderate against the post-conviction court’s finding that trial court’s assistance in this
regard was not deficient.

        Moreover, we conclude that Petitioner has failed to show that there is a reasonable
probability that the outcome of the appeal would have been different had trial counsel raised
the issue of consecutive sentencing on appeal. Petitioner’s history of criminal activity
supports the trial court’s finding that Petitioner has an extensive criminal record. This Court
has repeatedly approved the consideration of a defendant’s history of juvenile adjudications
in determining whether a defendant has an extensive record of criminal activity for
consecutive sentencing purposes. See State v. Gann, 251 S.W.3d 446, 465 (Tenn. Crim.
App. 2007); State v. Mickens, 123 S.W.3d 355, 396 (Tenn. Crim. App. 2003); State v. Andre
Perkins, No. W2007-02774-CCA-R3-CD, 2009 WL 1741400, at *9 (Tenn. Crim. App., at
Jackson, June 17, 2009), no perm. to appeal filed; State v. Robert Donterious Connor, No.
M2007-01619-CCA-R3-CD, 2008 WL 4614449, at *14 (Tenn. Crim. App., at Nashville,
Oct. 17, 2008), perm. to appeal denied (Tenn. July 27, 2009). The record also supports the
trial court’s finding that Petitioner is a dangerous offender, and that the trial court considered
all of the principles of sentencing. Petitioner is not entitled to relief on this issue.


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                             CONCLUSION

After a thorough review, we affirm the judgment of the post-conviction court.

                                          _________________________________
                                          THOMAS T. WOODALL, JUDGE




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