        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on Briefs May 6, 2014

                DEVARON TAYLOR v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                   No. 08-01054    James M. Lammey, Jr., Judge


              No. W2013-01588-CCA-R3-PC - Filed September 16, 2014


The petitioner, Devaron Taylor, appeals the denial of his petition for post-conviction relief,
arguing that the post-conviction court erred in finding that he received effective assistance
of counsel. Following our review, we affirm the denial of the petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P.J., and
C AMILLE R. M CM ULLEN, J., joined.

Constance Wooden Alexander, Memphis, Tennessee, for the appellant, Devaron Taylor.

Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Bryce Phillips, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                           FACTS

       In 2009, the petitioner was convicted by a Shelby County Criminal Court jury of first
degree felony murder, attempted especially aggravated robbery, and aggravated burglary, for
which he received an effective sentence of life with the possibility of parole. This court
affirmed the convictions on direct appeal. State v. Devaron Taylor, No. W2009-01252-CCA-
R3-CD, 2011 WL 4027147, at *1 (Tenn. Crim. App. Sept. 12, 2011). The petitioner’s
convictions stemmed from his participation with a friend, Alvin Gordon, in breaking into the
home of an elderly neighbor with the intention of stealing his car and then shooting and
killing the victim when he returned home. Id. at *1-3. The petitioner admitted his
participation in the crimes, while at the same time attempting to minimize his involvement,
in both a statement to police and in his trial testimony. Id. at *2-3. Our direct appeal opinion
provides the following synopsis of his trial testimony:

               [The petitioner] testified that on September 25, 2007, he woke up
       around 11 or 12:00 and walked to Magnolia, the area in which the victim lived.
       Alvin Gordon called him and asked, “Do you want to get the old man’s car?”
       [The petitioner] replied that he “didn’t care.” [The petitioner] walked to
       Gordon’s house, and together they walked to William (“Eddie”) Milam’s
       house, but no one answered the door at Milam’s house. [The petitioner] and
       Gordon then walked to the victim’s house. [The petitioner] testified that
       Gordon used a screwdriver to “pop” the window out and used a trash can to
       step up and go inside through the window. Gordon looked around inside and
       told [the petitioner] that no one was there, and [the petitioner] went inside.
       Inside the victim’s house, they found a 12-gauge shotgun. [The petitioner]
       testified that Gordon handed him the shotgun, he handed it back, and Gordon
       put the shotgun down on the bed beside the window. Gordon also found some
       12-gauge shotgun shells, which he also placed on the bed.

               [The petitioner] testified that he searched the house, looking for the
       victim’s car keys. [The petitioner] found latex gloves in the bathroom and he
       put them on so as not to leave fingerprints, and he and Gordon continued to
       look for the car keys. They did not find any car keys, and [the petitioner]
       looked through the victim’s dresser. He testified that Gordon appeared with
       duct tape and asked if he wanted to “tie [the victim] up.” [The petitioner] told
       Gordon, “No, we just came to get the keys to the car.” [The petitioner] took
       the duct tape from Gordon and placed it on the dresser. [The petitioner] told
       him that he thought “things [were] getting out of hand.” [The petitioner] took
       off the gloves and began to leave. Gordon told [the petitioner] to wait, and
       [the petitioner] went back to the front of the house to wait. Then, they saw the
       victim returning home. [The petitioner] testified that the victim came to the
       back of the house where [the petitioner] and Gordon were standing and pulled
       back the curtain. The victim called Gordon by name, and Gordon pushed [the
       petitioner] aside, pulled out a gun and shot the victim. [The petitioner]
       grabbed the shotgun and they both jumped out of the window and ran. As they
       ran away from the victim’s house, [the petitioner] saw Gordon reach down and
       take something from the victim’s pocket. [The petitioner] threw the shotgun
       into the bushes. They then walked to William Milam’s house. [The petitioner]
       later told Milam to get the shotgun out of the bushes.

              [The petitioner] admitted that he went to the victim’s house to steal his

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       car and that they waited on the victim to arrive home. [The petitioner] and
       Gordon stole $9.50 in quarters from the victim. [The petitioner] heard the
       victim gagging as he ran away from the home. [The petitioner] explained how
       he believed that the latex gloves he was wearing were found lying under the
       victim’s body. He testified that he had taken the gloves off, and the victim
       took them from him when he was standing at the window before he was shot.
       On direct examination, [the petitioner] denied knowing in advance that Gordon
       had a gun with him that day, but he later admitted on cross examination that
       he did, in fact, know that Gordon possessed a gun.

Id.

       On July 18, 2012, the petitioner filed a pro se petition for post-conviction relief in
which he raised a number of claims, including ineffective assistance of trial counsel. Post-
conviction counsel was appointed and an evidentiary hearing held, at which the petitioner
alleged several instances of ineffective assistance of counsel. He confines himself on appeal,
however, to alleging that counsel was ineffective for failing to have him undergo a mental
health evaluation and for failing to properly advise him on the consequences of waiving his
sentencing hearing. We will, therefore, summarize only those portions of the evidentiary
hearing testimony that are relevant to those claims.

        During his direct examination testimony, the petitioner, who said he was eighteen at
the time of his trial and had gone as far as the ninth grade before dropping out of school,
primarily complained about the unfairness of the felony murder statute and the fact that
Gordon received a plea-bargain sentence of thirteen and a half years, while he was serving
a life sentence. He said that he agreed to waive his sentencing hearing on the
recommendation of trial counsel, who told him that if he did so, he would receive a deal
involving a life sentence with the possibility of parole running concurrently to the sentences
for his other offenses. He did not, however, “really . . . know what was going on.” On cross-
examination, the petitioner testified that he had wanted the opportunity to testify at a
sentencing hearing in order to “[s]how [his] remorse to the family and . . . really
acknowledge the jury to the disparity . . . of . . . the time that [he] had received in comparison
with the time that [Gordon] received.”

       Trial counsel testified that the State made no plea offers to the petitioner and that he
did not learn of Gordon’s plea deal until after the petitioner had been convicted. He said he
saw no reason to think that the petitioner needed a mental evaluation, testifying that the
petitioner was “most cognizant,” “very knowledgeable about the facts and what was going
on with his case,” and one of the “better-communicating clients” he had had. On cross-
examination, he testified that he had been practicing law for sixteen or seventeen years and

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had handled “much more than ten” murder trials during his career. He stated that having the
petitioner waive the sentencing hearing in order to receive the minimum sentence was “very
much a tactical strategic move” on his part, and one with which the petitioner agreed after
he discussed it with him.

       At the conclusion of the hearing, the post-conviction court denied the petition, finding
that the petitioner had not met his burden of showing that trial counsel was in any way
deficient in his performance or that he was prejudiced as a result of any alleged deficiency.
On May 31, 2013, the court entered an order of dismissal in which it incorporated by
reference its oral findings of fact and conclusions of law from the evidentiary hearing.
Thereafter, the petitioner filed a timely notice of appeal to this court.

                                        ANALYSIS

        Post-conviction relief “shall be granted 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.” Tenn. Code Ann. § 40-30-103 (2012). The
petitioner bears the burden of proving factual allegations by clear and convincing evidence.
Id. § 40-30-110(f). When an evidentiary hearing is held in the post-conviction setting, the
findings of fact made by the court are conclusive on appeal unless the evidence
preponderates against them. See Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006). When
reviewing factual issues, the appellate court will not reweigh the evidence and will instead
defer to the post-conviction court’s findings as to the credibility of witnesses or the weight
of their testimony. Id. However, review of a post-conviction court’s application of the law
to the facts of the case is de novo, with no presumption of correctness. See Ruff v. State, 978
S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel, which presents
mixed questions of fact and law, is reviewed de novo, with a presumption of correctness
given only to the post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

       To establish a claim of ineffective assistance of counsel, the petitioner has the burden
to show both that trial counsel’s performance was deficient and that counsel’s deficient
performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S.
668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting
that same standard for determining ineffective assistance of counsel that is applied in federal
cases also applies in Tennessee). The Strickland standard is a two-prong test:

       First, the defendant must show that counsel’s performance was deficient. This
       requires showing that counsel made errors so serious that counsel was not
       functioning as the “counsel” guaranteed the defendant by the Sixth

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       Amendment. Second, the defendant must show that the deficient performance
       prejudiced the defense. This requires showing that counsel’s errors were so
       serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The
reviewing court must indulge a strong presumption that the conduct of counsel falls within
the range of reasonable professional assistance, see Strickland, 466 U.S. at 690, and may not
second-guess the tactical and strategic choices made by trial counsel unless those choices
were uninformed because of inadequate preparation. See Hellard v. State, 629 S.W.2d 4, 9
(Tenn. 1982). The prejudice prong of the test is satisfied by showing a reasonable
probability, i.e., a “probability sufficient to undermine confidence in the outcome,” that “but
for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.

        On appeal, the petitioner argues that counsel was ineffective for failing to have him
undergo a mental health evaluation before trial and for failing to explain to him the purpose
and effect of waiving a sentencing hearing. In support, he cites the fact that he was eighteen
at the time of trial and had only a ninth grade education, as well as his testimony that he did
not understand why counsel recommended that he waive the sentencing hearing.

        In denying relief, the post-conviction court found that the petitioner failed to show that
trial counsel was in any way deficient in his representation or that the petitioner was
prejudiced by any of counsel’s actions or inactions. We conclude that the record fully
supports the findings and conclusions of the post-conviction court. Trial counsel testified
the petitioner was cognizant, communicative, and engaged and that he saw no basis to
request a mental evaluation. He further testified that he made a strategic decision to have the
petitioner waive the sentencing hearing in order to receive the minimum sentence, that he
discussed the issue with the petitioner, and that the petitioner agreed that it would be in his
best interest to do so. The petitioner has simply not shown that counsel was in any way
deficient in his representation or that he was prejudiced by counsel’s alleged deficiencies.

                                        CONCLUSION

      Based on our review, we conclude that the petitioner has failed to meet his burden of
showing that he was denied the effective assistance of trial counsel. Accordingly, we affirm

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the judgment of the post-conviction court denying the petition for post-conviction relief.




                                                  _________________________________
                                                  ALAN E. GLENN, JUDGE




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