                                                                                          01/30/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs December 3, 2019

              JOHNNY WILKERSON v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                    No. 14-03148       W. Mark Ward, Judge
                     ___________________________________

                           No. W2019-00459-CCA-R3-PC
                       ___________________________________

The Petitioner, Johnny Wilkerson, appeals the denial of post-conviction relief from his
two convictions for aggravated robbery, for which he received an effective forty-year
sentence. In this appeal, the Petitioner alleges that trial counsel provided ineffective
assistance in failing to investigate his case, in failing to explain why he could not have a
suppression hearing, and in failing to call an alibi witness at trial. We affirm the
judgment of the post-conviction court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY, JR., and J. ROSS DYER, JJ., joined.

Earnest J. Beasley, Memphis, Tennessee, for the Petitioner, Johnny Wilkerson.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

       The Petitioner’s convictions stem from the January 24, 2014 armed robbery of
victims Margaret Robinson and Jason Eschhofen. State v. Johnny Wilkerson, No.
W2016-00078-CCA-R3-CD, 2016 WL 6596103, at *1 (Tenn. Crim. App. Nov. 7, 2016).
The victims had just left Robinson’s home when the Petitioner approached them, pointed
a small black gun at them, and demanded their wallets and cell phones. Id. The victims
complied with these demands, and the Petitioner threatened to kill them before fleeing the
scene. Id. After ensuring that the Petitioner had left the area, the victims returned to
Robinson’s home, where Eschhofen notified the police about the incident. Id.
       Officers later used cell phone records to locate Robinson’s phone in the possession
of Corey Durham, who claimed he had purchased the phone from the Petitioner. Id. at
*3. The police then created several photographic lineups. Id. at *1-2. The victims were
unable to identify the perpetrator in the first and second lineups, which included
Durham’s picture; however, when the officers included the Petitioner’s picture in the
third photographic lineup, both Robinson and Eschhofen identified the Petitioner as the
individual who robbed them. Id. *1-3. They also identified the Petitioner as the robber at
the preliminary hearing and at trial. Id. at *1-2.

       During the investigation, officers spoke to the Petitioner’s roommate, who
consented to a search of his home, and they eventually found “a small, black, toy pistol in
the residence[.]” Id. at *3. Officers also found the victims’ wallets inside a garbage can
located on the curb in front of the Petitioner’s home. Id.

       The Petitioner, during his interview with police, denied any involvement in the
robbery. Id. However, based on the photographic identifications of the Petitioner and the
recovery of the stolen items from the Petitioner’s home, officers arrested the Petitioner.
Id. Later, the Petitioner told the police that Durham had robbed the victims while he
waited in the car, unaware of Durham’s intent to rob anyone. Id. at *4. The Petitioner
claimed he only realized what had happened when Durham returned to the car with the
stolen phones. Id. He acknowledged that he later tried to help Durham sell the phones.
Id.

        At trial, the Petitioner denied any involvement in the robbery of the victims. Id.
The Petitioner stated that the toy gun the police found at his home “might have belonged
to his son, who had recently visited.” Id. at *5.

      At the conclusion of trial, the jury convicted the Petitioner, as charged, of two
counts of aggravated robbery, and the trial court imposed consecutive sentences of
twenty years for each conviction. Id. The Petitioner appealed, and this court affirmed his
convictions. Id. at *7.

       On November 16, 2016, the Petitioner filed a timely pro se petition for post-
conviction relief, alleging numerous claims. Following the appointment of counsel, the
Petitioner filed an amended petition, which incorporated the previous claims and
additionally alleged, in part, that counsel was ineffective in failing to file a motion to
suppress evidence, statements, and photographic identifications and that counsel was
ineffective in failing to pursue an alibi defense or call an alibi witness.

       At the post-conviction hearing, the Petitioner testified that trial counsel failed to
file a motion to suppress the photographic identifications. He said that he filed a pro se
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suppression motion, which was granted by the first trial judge, but when his case was
transferred to a different division, a suppression hearing never took place. He also stated
that when he informed trial counsel of his desire to suppress the identifications made in
the photographic lineup, trial counsel repeatedly told him that he could not have a
suppression hearing because there were no statements to suppress. The Petitioner said he
told her he did not understand what she meant, and trial counsel “actually turned around
and walked away from [him].” On cross-examination, the Petitioner acknowledged that
trial counsel informed him there was no legal basis to support a suppression motion for
the photographic identifications.

        The Petitioner additionally claimed that trial counsel failed to pursue an alibi
defense and failed to call an alibi witness at trial. He asserted that Laura Montigo, his
girlfriend at the time of the offense, would have helped his alibi defense. Although he
informed trial counsel of Montigo, he said trial counsel “never took [the] initiative to
contact her at all” because trial counsel claimed it “wouldn’t be a help.” Although the
Petitioner acknowledged that he was unable to locate and present Montigo for the post-
conviction hearing, he claimed that Montigo would have testified that the “toy gun
apparently found under [his] refrigerator” belonged to the Petitioner’s son.

          Trial counsel also testified at the post-conviction hearing. She said that although
she had filed suppression motions challenging identification in other unrelated cases, she
did not find a legal basis to challenge the photographic identifications in the Petitioner’s
case. She noted that there were three photographic lineups and that it was not until the
third lineup, when the Petitioner’s picture was added, that the victims identified the
Petitioner as the perpetrator, which added credibility to the identifications. She asserted
that aside from the photographic identifications, there was substantial evidence of the
Petitioner’s guilt, including the presence of the victims’ wallets in the Petitioner’s trash,
Corey Durham’s statement that he bought the victim’s phone from the Petitioner, and the
victims’ identifications of the Petitioner as the perpetrator both at the preliminary hearing
and at trial. Trial counsel did not recall the Petitioner’s filing a pro se suppression motion
during her representation of him. She said that while the Petitioner “may have” informed
her of Montigo, Montigo was “not really an alibi [witness] if she’s just going to say that .
. . it’s a toy gun.”

        After the evidentiary hearing, the post-conviction court entered a written order
denying relief. Regarding the Petitioner’s claim that trial counsel was ineffective in
failing to file a motion to suppress the photographic identifications, the post-conviction
court made the following findings of fact and conclusions of law:

       The Petitioner testified that he filed a pro se Motion to Suppress his
       identification which was never heard. He believed that as a result his trial
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       counsel provided ineffective assistance of counsel. Trial counsel testified
       that she was not aware of any legal ground upon which to base a motion to
       suppress the eyewitness identifications. Petitioner has not identified any
       legal ground upon which such a motion should have been based and has
       failed to demonstrate that there is a reasonabl[e] probability that such [a]
       motion would have been granted. Petitioner has failed to demonstrate
       either “deficient performance” or “prejudice” with regard to this issue.



As to the Petitioner’s claim that trial counsel failed to call an alibi witness, the post-
conviction court made the following findings and conclusions:


       Petitioner contends that his trial counsel should have called his girlfriend,
       L[a]ura Montigo, as a witness in the case because she could have testified
       that the toy gun that was found in the Petitioner’s residence really belonged
       to the Petitioner’s son. Ms. Montigo was not called as a witness in the
       post-conviction evidentiary hearing. In addition, her testimony could not
       be described as providing an alibi, but merely corroborating the State’s
       proof that the Petitioner had access to the toy gun, which could have been
       used in the armed robbery. Petitioner has failed to demonstrate either
       “deficient performance” or “prejudice” with regard to this issue.



Because no evidence was presented regarding trial counsel’s alleged failure to properly
investigate the Petitioner’s case, the post-conviction court made no findings of fact or
conclusions of law regarding this issue. Following entry of the order denying post-
conviction relief, the Petitioner filed a timely notice of appeal.

                                        ANALYSIS

       The Petitioner alleges that trial counsel provided ineffective assistance in failing to
investigate his case, in failing to explain why he could not have a suppression hearing,
and in failing to call an alibi witness at trial. The State counters that the post-conviction
court properly denied relief. We agree with the State.

      Post-conviction relief is only warranted when a petitioner establishes that his or
her conviction or sentence is void or voidable because of an abridgement of a

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constitutional right. Tenn. Code Ann. § 40-30-103. The Tennessee Supreme Court has
held:

              A post-conviction court’s findings of fact are conclusive on appeal
       unless the evidence preponderates otherwise. When reviewing factual
       issues, the appellate court will not re-weigh or re-evaluate the evidence;
       moreover, factual questions involving the credibility of witnesses or the
       weight of their testimony are matters for the trial court to resolve. The
       appellate court’s review of a legal issue, or of a mixed question of law or
       fact such as a claim of ineffective assistance of counsel, is de novo with no
       presumption of correctness.



Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (citations and internal quotation
marks omitted); see Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011); Frazier v. State,
303 S.W.3d 674, 679 (Tenn. 2010). A post-conviction petitioner has the burden of
proving the factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-
30-110(f); Tenn. Sup. Ct. R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94
(Tenn. 2009). Evidence is considered clear and convincing when there is no serious or
substantial doubt about the accuracy of the conclusions drawn from it. Lane v. State, 316
S.W.3d 555, 562 (Tenn. 2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009);
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).

       In order to prevail on an ineffective assistance of counsel claim, the petitioner
must establish that (1) his lawyer’s performance was deficient and (2) the deficient
performance prejudiced the defense. Vaughn, 202 S.W.3d at 116 (citing Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975); Strickland v. Washington, 466 U.S. 668, 687 (1984)).
A petitioner successfully demonstrates deficient performance when the petitioner
establishes that his attorney’s conduct fell “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, 523 S.W.2d at 936). Prejudice arising
therefrom is demonstrated once the petitioner establishes “‘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. at 370 (quoting 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.” Id.

       First, the Petitioner alleges that trial counsel failed to properly investigate his case
and that this failure “may very well have been outcome determinative.” In particular, he
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claims that had trial counsel adequately investigated his case, she would have “uncovered
problems with identification.” He also asserts that trial counsel’s failure to properly
investigate resulted in her being unprepared for trial. The State responds that the
Petitioner has waived this issue by raising it for the first time on appeal and that, waiver
notwithstanding, the Petitioner has failed to establish that trial counsel provided
ineffective assistance. We agree. The record shows the Petitioner failed to present any
proof or argument supporting this claim at his evidentiary hearing, and the post-
conviction court never addressed this issue in its order denying relief. Consequently, the
Petitioner has waived this issue. See Tenn. R. App. P. 36(a); Cauthern v. State, 145
S.W.3d 571, 599 (Tenn. Crim. App. 2004) (“[A]n issue raised for the first time on appeal
is waived.”); see also Brimmer v. State, 29 S.W.3d 497, 530 (Tenn. Crim. App. 1998)
(concluding that the Petitioner waived issues by failing to present any evidence
concerning these issues at the post-conviction hearing). In any case, given that absolutely
no proof was presented on this claim at the post-conviction hearing, the Petitioner has
failed to establish that trial counsel’s performance was deficient and prejudicial.
Accordingly, we conclude the Petitioner is not entitled to relief on this claim.

        Second, the Petitioner claims that trial counsel failed to “explain to [him] why he
could not have a suppression hearing” on the photographic identifications and asserts that
this failure was “outcome determinative.” The State initially argues that the Petitioner
has waived this issue by raising it for the first time on appeal. Alternatively, the State
contends that, even if this issue is interpreted as a claim regarding trial counsel’s failure
to file a suppression motion, the post-conviction court properly denied relief because
counsel made a strategic decision not to file a frivolous motion and the Petitioner has
failed to show that a such a motion would have been successful. We agree that the
Petitioner has failed to establish that trial counsel provided ineffective assistance as to
this issue. At the post-conviction hearing, the Petitioner never presented a ground upon
which a suppression motion could have been made, and trial counsel testified that she
could find no legal basis to support such a motion. “It is a petitioner’s burden to submit
evidence (and not just his testimony surmising on the merits of a pre-trial suppression
motion) that the suppression motion would have been granted and that there is a
reasonable probability that the trial proceedings would have concluded differently if trial
counsel had pursued a motion to suppress evidence.” Charles Bradford Stewart v. State,
No. M2015-02449-CCA-R3-PC, 2017 WL 2645651, at *14 (Tenn. Crim. App. June 20,
2017); see Terrance Cecil v. State, No. M2009-00671-CCA-R3-PC, 2011 WL 4012436,
at *8 (Tenn. Crim. App. Sept. 12, 2011) (“In order to show prejudice, Petitioner must
show by clear and convincing evidence that (1) a motion to suppress would have been
granted and (2) there was a reasonable probability that the proceedings would have
concluded differently if counsel had performed as suggested.”). Here, the Petitioner
failed to present any evidence that a suppression motion would have been granted. The
Petitioner also failed to show a reasonable probability that had a suppression motion been
                                            -6-
pursued, the outcome of his case would have been different, especially in light of the
other overwhelming evidence of his guilt. Because the Petitioner has failed to establish
that trial counsel’s performance was deficient and prejudicial as to this issue, he is not
entitled to relief.

        Finally, the Petitioner asserts that trial counsel failed “to call an alibi witness that
[he] believes would have made a difference in his trial” and contends that this failure was
“outcome determinative.” The State counters that this claim fails because the Petitioner
never called Laura Montigo to testify at the post-conviction hearing. The State also
asserts that because Montigo’s testimony did not establish an alibi for the Petitioner, it
would not have affected the outcome of his trial. We agree that the Petitioner, by not
having Montigo testify at the post-conviction hearing, has failed to establish that he was
prejudiced by trial counsel’s failure to present her at trial. See Black v. State, 794
S.W.2d 752, 757 (Tenn. Crim. App. 1990) (stating that whenever a petitioner argues that
trial counsel failed to discover, interview, or present witnesses in support of his defense,
these witnesses should be presented at the post-conviction hearing because this is the
only way the petitioner can show that this failure to discover, interview, or present these
witnesses inured to his prejudice). We also note that even if Montigo had testified in
accordance with the Petitioner’s claims, she would not have been an alibi witness. As the
post-conviction court recognized, Montigo’s testimony would have “merely
corroborating the State’s proof that the Petitioner had access to the toy gun, which could
have been used in the armed robbery.” Accordingly, the Petitioner is not entitled to
relief.

                                      CONCLUSION

      Based on the aforementioned authorities and reasoning, the judgment of the post-
conviction court is affirmed.




                                               ____________________________________
                                               CAMILLE R. MCMULLEN, JUDGE




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