                                                                                         12/04/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs October 18, 2017

          JOSHUA MATTHEW CLINE v. STATE OF TENNESSEE

               Appeal from the Circuit Court for Montgomery County
                No. 41300063       William R. Goodman III, Judge
                     ___________________________________

                           No. M2017-00168-CCA-R3-PC
                       ___________________________________


Petitioner, Joshua Matthew Cline, appeals the denial of his petition for post-conviction
relief from his April 2013 convictions for two counts of rape of a child. Petitioner argues
that he received ineffective assistance of counsel. After a review of the record and the
briefs of the parties, we determine Petitioner has failed to establish that he received
ineffective assistance of counsel. Accordingly, the judgment of the post-conviction court
is affirmed.


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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which D. KELLY THOMAS,
JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Joshua Matthew Cline.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
John W. Carney, District Attorney General; and Robert Nash, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                       OPINION

                          Factual and Procedural Background

       On March 4, 2008, Petitioner raped his adopted daughter, a six year-old child.
State v. Joshua Matthew Cline, No. M2013-01846-CCA-R3-CD, 2014 WL 1281526, at
*1 (Tenn. Crim. App. Mar. 31, 2014), perm app. denied (Tenn. Aug. 27, 2014). The rape
was recorded on video, and Petitioner was convicted in federal court of production of
child pornography and sentenced to twenty-seven years and three months for that offense.
Id. In state court, Petitioner entered an open guilty plea to two counts of rape of a child,
and the trial court sentenced him to consecutive terms of twenty-five years in the
Tennessee Department of Correction.1 Id. Petitioner challenged the imposition of
consecutive sentencing as an abuse of discretion by the trial court, but this Court affirmed
the trial court’s judgments. Id.

        At Petitioner’s plea hearing, the prosecutor stated that Petitioner’s conviction was
based upon a video containing footage of the victim being raped by Petitioner.
Subsequently, the trial court asked Petitioner if he understood that he would be pleading
to multiple felonies and that the trial court would make a sentencing determination
independently. Petitioner responded, “Yes, Your Honor.” The trial court informed
Petitioner of his right to a jury trial, his right to confront witnesses, his right to call
witnesses, his right to remain silent, his right to testify, and his right to an appeal. Each
time that the trial court informed Petitioner of a right, the trial court asked if Petitioner
understood that he would be giving up that right by pleading guilty. Each time, Petitioner
stated, “Yes, Your Honor.” The trial court asked Petitioner if he committed each rape,
and both times Petitioner replied, “Yes, Your Honor.” Then, the trial court found
Petitioner guilty of two counts of rape of a child and dismissed the other charges brought
against him.

       At the sentencing hearing, the Petitioner’s ex-wife testified about the impact that
Petitioner’s action had on both her and the victim. With regard to the victim, she stated,

        [It has] affected every part of her life as well. She not only lost her
        childhood, she’s lost her innocence, she lost her purity, she lost her father[-
        ]figure as well, and she has no concept of what that’s supposed to be really.
        She’s [a] preteen now and trying to have her understand what a relationship
        is supposed to be like is very difficult and it’s a day-to-day struggle with us.

Petitioner also testified at the sentencing hearing and spoke about his struggles during
childhood and his military service. Trial counsel asked, “Why did you plead guilty?”
Petitioner responded, “Because I really don’t want my family to go through this. . . . I
want them to be able to move on; I want to move on. . . . I want to do what I can to help
them recover and be able to move on in life.” When asked if he had anything else to say,
Petitioner said, “Nothing coming to mind.” After argument by the State and trial counsel,
the trial court sentenced Petitioner to twenty-five years on each count and ordered the


        1
          The judgments for Petitioner’s two counts of rape of a child were not included in the record on
Petitioner’s appeal of his denial of post-conviction relief. However, this Court takes judicial notice of the
judgments that were contained in the record on direct appeal.
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sentences to run consecutively. However, the sentence in count one was run concurrently
with Petitioner’s federal sentence.

      Petitioner filed a pro se petition for post-conviction relief on August 31, 2015.
Seven months later, his appointed counsel filed an amended petition. The post-
conviction court held a hearing.

        Because Petitioner was incarcerated in a federal facility in Petersburg, Virginia, he
testified via electronic deposition. He could recall meeting with trial counsel only two
times over four to five months but conceded that they might have met a “couple” times
more. Further, he claimed that he did not meet with anyone else from trial counsel’s law
office. Petitioner remembered the trial court telling him about his rights and how he
would be waiving those rights by pleading guilty. He recounted that when the trial court
asked if he knowingly and voluntarily pled guilty, he responded, “I understand and I do.”

       Petitioner maintained that he had never seen the video and that “there was really
no reference to [the video] as well.” But, Petitioner admitted that he was aware of the
existence of a video and that trial counsel discussed the existence of the video with him.
Petitioner claimed that trial counsel did not properly investigate whether the video was
obtained improperly and subject to suppression. Petitioner asserted that he would not
have pleaded guilty if he had seen the video and other documents that were allegedly kept
from him. One of those documents was the report of the Department of Children’s
Services (“DCS”), which Petitioner had “heard” contained no admission by the victim
that she was the child in the video. Petitioner maintained that if he had been provided all
of the information, he would have gone to trial because he “got basically, what [he]
would have gotten had [he] gone to trial, which is a life sentence.”

       With regard to his representation by trial counsel Petitioner went on to say:

       I don’t really see how she really represented me. She didn’t question the
       witnesses on the stand during sentencing; didn’t provide, really any support
       other than sitting there . . . [n]o mitigating factors were presented; I wasn’t
       given information as far as what evidence was supposed to be used or
       planned to be used. She wouldn’t answer correspondence.

       Petitioner admitted that trial counsel objected to some testimony during the
sentencing hearing and the testimony was excluded. He further admitted that trial
counsel put on mitigation evidence regarding his childhood, his mother’s mental health
issues, and Petitioner’s history as a victim during his childhood. Despite the introduction
of this evidence, Petitioner indicated that he wanted to talk about his experiences in the
military dealing with post-traumatic stress disorder, anxiety, and depression. Petitioner
claimed that he was aware that the trial court could run his sentence consecutively to his
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federal sentence but that he was not aware that the trial court could run his state sentences
consecutively to one another. He says that he understood the total sentence on both
counts to be “25-years period[.]”

       Trial counsel testified at the post-conviction hearing that she had been a licensed
attorney since 2005 and that she had handled two to three child sex cases a month at the
public defender’s office. Trial counsel said that she met with petitioner “at least six
times” via video monitor and that it was her practice to meet with clients in person on
serious cases like this one. According to trial counsel, during her meetings with
Petitioner, she discussed the contents of the child forensic report and the DCS records.
Further, she said that those documents were provided to Petitioner as a part of his
discovery package. Trial counsel indicated that she viewed the video and discussed its
contents with Petitioner. Trial counsel conducted research and determined that the video
was seized legally.

       Trial counsel testified that she recognized that Petitioner was serving a federal
sentence and investigated whether there was a bar to prosecution by the State. Trial
counsel conducted multiple plea negotiations with the State which culminated in the State
agreeing to the plea ultimately entered by Petitioner. She stated that Petitioner pled
guilty to production of the video in federal court, and the contents of the video revealed
that the person doing the filming was also the person engaging in the criminal act. Trial
counsel went on to say that the victim was identifiable from the contents of the video.
Trial counsel said that she discussed the case with Petitioner and told him that it was
likely that he would be convicted on all of his charges if the case went to trial. She
further explained that the maximum sentence for a conviction on all counts could be over
100 years. In trial counsel’s opinion, the best shot at getting concurrent sentencing was
to do an open plea. Trial counsel recounted that Petitioner told her that “he wanted to
take a guilty plea, because he didn’t want to put the child through anymore and his wife
— ex-wife through anymore[.]”

       The post-conviction court found that Petitioner knowingly and intelligently
entered his guilty plea and that trial counsel provided effective assistance. Petitioner now
appeals, arguing that trial counsel rendered ineffective assistance and that Petitioner’s
guilty plea “was not rendered knowing and voluntary, fully understanding the
ramifications of said plea.” The State responds that Petitioner received effective
assistance of counsel and that Petitioner’s guilty plea was voluntary.

                                          Analysis

      Post-conviction relief is available for any conviction or sentence that 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. In order to
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prevail in a claim for post-conviction relief, a petitioner must prove his or her factual
allegations by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18
S.W.3d 152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is no
serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.” Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).

        Both the Sixth Amendment to the Constitution of the United States and article I,
section 9 of the Tennessee Constitution guarantee the right of an accused to the effective
assistance of counsel. See Davidson v. State, 453 S.W.3d 386, 392-93 (Tenn. 2014). In
order to sustain a claim of ineffective assistance of counsel, a petitioner must demonstrate
that counsel’s representation fell below the range of competence demanded of attorneys
in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under the two
prong test established by Strickland v. Washington, 466 U.S. 668, 687 (1984), a petitioner
must prove that counsel’s performance was deficient and that the deficiency prejudiced
the defense. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting
that the same standard for determining ineffective assistance of counsel applied in federal
cases also applies in Tennessee). Because a petitioner must establish both elements in
order to prevail on a claim of ineffective assistance of counsel, “failure to prove either
deficient performance or resulting prejudice provides a sufficient basis to deny relief on
the claim.” Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997). “Indeed, a court need
not address the components in any particular order or even address both if the [petitioner]
makes an insufficient showing of one component.” Goad v. State, 938 S.W.2d 363, 370
(Tenn. 1996) (citing Strickland, 466 U.S. at 697).

       Whether a petitioner has been denied the effective assistance of counsel presents a
mixed question of law and fact. Burns, 6 S.W.3d at 461. This Court will review the
post-conviction court’s findings of fact “under a de novo standard, accompanied with a
presumption that those findings are correct unless the preponderance of the evidence is
otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P.
13(d); Henley, 960 S.W.2d at 578). This Court will not re-weigh or re-evaluate the
evidence presented or substitute our own inferences for those drawn by the trial court. Id.
at 456. Questions concerning witness credibility, the weight and value to be given to
testimony, and the factual issues raised by the evidence are to be resolved by the post-
conviction court. Id. However, the post-conviction court’s conclusions of law and
application of the law to the facts are reviewed under a purely de novo standard, with no
presumption of correctness. Id. at 458.

       The test for deficient performance is whether counsel’s acts or omissions fell
below an objective standard of reasonableness under prevailing professional norms.
Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the
questionable conduct from the attorney’s perspective at the time, Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and “should indulge a strong presumption that counsel’s
                                            -5-
conduct falls within the wide range of reasonable professional assistance,” State v. Burns,
6 S.W.3d 453, 462 (Tenn. 1999). This Court will not use hindsight to second-guess a
reasonable trial strategy, even if a different procedure or strategy might have produced a
different result. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994);
Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). However, this
deference to the tactical decisions of trial counsel is dependent upon a showing that the
decisions were made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528
(Tenn. Crim. App. 1992).

        Even if a petitioner shows that counsel’s representation was deficient, the
petitioner must also satisfy the prejudice prong of the Strickland test in order to obtain
relief. The question is “whether counsel’s deficient performance renders the result of the
trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S.
364, 372 (1993). A petitioner must show that there is a reasonable probability “sufficient
to undermine confidence in the outcome” that, “but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Burns, 6 S.W.3d at 463 (quoting
Strickland, 466 U.S. at 694). Because Petitioner’s ineffective assistance of counsel
claims relate to his guilty plea, in order to show prejudice he “must prove that counsel
performed deficiently and ‘there is a reasonable probability that, but for counsel’s errors,
he would not have pled guilty and would have insisted on going to trial.’” Grindstaff v.
State, 297 S.W.3d 208, 217 (Tenn. 2009) (quoting Hill v. Lockhart, 474 U.S. 52, 59
(1985)). “[A]n error by counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error had no effect on the
judgment.” Hill, 474 U.S. at 58. (quoting Strickland, 466 U.S. at 691).

       In this case, trial counsel met with Petitioner multiple times. During those
meetings, trial counsel and Petitioner discussed the DCS report, the contents of the video,
implications of going to trial, and Petitioner’s sentencing exposure. Trial counsel
negotiated a plea agreement with the State and provided advice to Petitioner on whether
to take the deal. Petitioner took the deal because “he didn’t want to put the child through
anymore and his wife—ex-wife through anymore[.]” At the sentencing hearing, trial
counsel objected to inadmissible testimony, conducted a direct examination of Petitioner,
entered letters on behalf of Petitioner into evidence, and argued on Petitioner’s behalf.
Trial counsel’s actions met an objective standard of reasonableness. Trial counsel was
not deficient.

       Moreover, Petitioner has failed to show that he was prejudiced by trial counsel’s
actions. Petitioner admitted to raping the victim, and at the sentencing hearing, he stated
that he was pleading guilty to relieve the burden on his family. Now, in hindsight,
Petitioner claims that he would have not have pled guilty. None of the deficiencies in
representation alleged by Petitioner create a reasonable probability that he would not
have pled guilty.
                                            -6-
       Petitioner’s brief contains an issue statement which, at best, can be described as
inartfully drafted. This issue statement mentions that Petitioner’s “guilty pleas was [sic]
not rendered knowing and voluntary,” and the State’s brief contains an independent
argument that Petitioner’s guilty plea was knowing and voluntary. Yet, the issue
statement is the only time that the phrase “knowing and voluntary” appears in Petitioner’s
brief. No argument is made regarding the voluntariness of Petitioner’s plea nor is any
case law cited on that issue. Thus, any claim that Petitioner’s guilty pleas were not
knowing and voluntary that exists independently of his ineffective assistance of counsel
claim is waived. See Tenn. Ct. Crim. App. R. 10(b) (stating “Issues which are not
supported by argument, citation to authorities, or appropriate references to the record will
be treated as waived in this court.”).

                                        Conclusion

       For the foregoing reasons, the judgments of the post-conviction court are affirmed.


                                          ____________________________________
                                          TIMOTHY L. EASTER, JUDGE




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