         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                        Assigned on Briefs at Jackson June 3, 2008

                     MICHAEL LEE v. STATE OF TENNESSEE

                    Appeal from the Circuit Court for Williamson County
                        No. CR11767      Timothy L. Easter, Judge



                  No. M2007-01665-CCA-R3-PC - Filed September 29, 2008




The petitioner, Michael Lee, appeals the denial of his petition for post-conviction relief by the
Circuit Court for Williamson County from his convictions for aggravated burglary and theft of
property valued over $1000 for which he was sentenced to fifteen years and twelve years,
respectively, to be served consecutively for a total of twenty-seven years. The petitioner claims the
trial court erred in concluding he was provided the effective assistance of counsel. We affirm the
judgment of the trial court.

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

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which ALAN E. GLENN and D. KELLY
THOMAS, JR., JJ., joined.

Mark M. Mizell, Franklin, Tennessee, for the appellant, Michael Lee.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Ronald L. Davis, District Attorney General; and Mary Katharine White, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                            OPINION

        The petitioner was convicted in a bench trial. In the opinion affirming the convictions, this
court stated the following facts:

                       Deputy Michael J. Terns of the Williamson County Sheriff’s
               Department testified that on August 14, 2002, he was an officer with
               the Spring Hill Police Department, and at about 12:00 p.m. that day,
               he stopped a blue Cadillac for expired license tags and improper
               registration. The defendant, who was driving, told Deputy Terns that
             he did not have a driver’s license and gave Terns a false name. Upon
             conducting a search, Deputy Terns found a wallet under the driver’s
             seat containing what appeared to be a Department of Safety receipt
             with the defendant’s name on it. The defendant then admitted that his
             name was Michael Lee. Deputy Terns found a ladies’ silver-colored
             watch and a men’s watch on the defendant’s person, a sock full of
             rings underneath the dashboard, a pipe used for smoking cocaine
             under the driver’s seat, and a black purse containing a sock filled with
             silver coins inside the vehicle. A search of the trunk revealed a
             television, a TV/VCR combination, and a microwave. The defendant
             said that the ladies’ watch found in his pocket belonged to his
             girlfriend. Cotton said that the vehicle belonged to him, but there was
             no title or registration in the vehicle, and a check of the vehicle
             identification number did not reflect Cotton or the defendant as the
             owner.

                      Detective David Beard of the Williamson County Sheriff’s
             Department testified that he interviewed the defendant who admitted
             that he was with Cotton on the day of the burglary. The defendant
             said that he thought the victims’ home was the home of Cotton’s
             mother. The defendant also told Beard that the ladies’ watch found in
             his pocket belonged to his girlfriend. However, [the owners]
             identified the property recovered from the defendant and Cotton as
             theirs, including the ladies’ watch.

                      Elvis Cotton, the defendant’s cousin and a codefendant,
             testified that he and the defendant were riding together on August 14,
             2002, after “getting high on crack” cocaine. They stopped at the
             [owners’] residence to ask for some gas for their vehicle, but, after
             determining that no one was home and that the back door was open,
             they went inside and took various items of property which they
             intended to sell or trade for drugs. Cotton said he never told the
             defendant that he was going to his mother’s house and that the
             defendant knew where his mother lived. However, when he and the
             defendant were stopped, the defendant overheard him tell the officer
             that the television and jewelry belonged to his mother. Cotton said he
             pled guilty to aggravated burglary and theft over $1000 on November
             12, 2002.


State v. Michael Renee Lee, No. M2003-01077-CCA-R3-CD, Williamson County, slip. op. at 2
(Tenn. Crim. App. Jan. 9, 2004), app. denied (Tenn. May 10, 2004).



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        The trial court held a hearing, and both the petitioner and his former counsel testified. The
petitioner argued his trial counsel was ineffective in three areas: (1) the petitioner was coerced into
signing a written waiver of his right to jury trial; (2) trial counsel failed to investigate and interview
a potentially exculpatory witness before trial; and (3) trial counsel failed to present evidence showing
the petitioner did not have the requisite mens rea to commit the crimes for which he was convicted.

        At the hearing, the petitioner claimed the entire case against him could have been avoided,
had his attorney interviewed the petitioner’s girlfriend, Gwen Santiago. He testified she was the
owner of the woman’s watch that the petitioner had in his pocket when he was arrested. The
petitioner said he thought that the house he was convicted of burglarizing was the house of the co-
defendant’s mother, that the co-defendant had her permission to enter the house, and that she had
given her son the items to take. The petitioner claimed that he received bad advice and that because
of this bad advice, he signed a waiver of jury trial. He said he was assured he would receive a
maximum sentence of fifteen years.

         On cross-examination, the petitioner admitted he had a man’s and a woman’s watch when
he was arrested, both having been reported as stolen and later identified by the owners. The
petitioner refused to admit his criminal record, but he acknowledged his record meant he was a
career offender. The petitioner stated he met and corresponded by letter with his attorney several
times before trial. The petitioner admitted that in one of these letters, his attorney explained to him
why his co-defendant was sentenced as a Range I offender. He admitted that he did not mention to
his attorney in his letters either the possibility that Ms. Santiago was a potential exculpatory witness
or that the woman’s watch belonged to Ms. Santiago. He stated his main request in these letters was
that his attorney get him into drug court.

         The petitioner’s trial counsel testified that the petitioner was interested in the drug court
program. Counsel stated that although she had met with the petitioner at his arraignment and twice
thereafter to share discovery and prepare for trial, the petitioner told her about the girlfriend for the
first time on February 17, 2003–two days before the petitioner’s trial. Counsel testified that the
petitioner told her the girlfriend’s name, but that he did not know how to contact her. Counsel said
that the petitioner then told her to contact his sister to get Ms. Santiago’s telephone number and that
he gave counsel the sister’s telephone number. Counsel testified that she called and that the
telephone number was out of service. Counsel said she looked online for the girlfriend’s address on
the day before trial. She testified she found a possible address, but no telephone number.

        Counsel testified that she and the petitioner discussed the contradictory statements the
petitioner’s co-defendant had given to the police. Counsel stated she and the petitioner talked about
the petitioner’s criminal history and how he would be impeached if he testified. She said they also
discussed the disadvantages of a jury trial, given his extensive record. She stated she brought a
waiver of jury form for the petitioner to sign after they had discussed the right to a jury trial. She
said that the petitioner was not coerced to sign the waiver and that the petitioner neither protested
nor indicated any feeling of coercion at the time he signed it.



                                                   -3-
        Counsel testified that she and the petitioner discussed a plea deal offered by the state
involving twelve- and fifteen-year concurrent sentences as a Range III offender instead of a career
offender. Counsel said she had created a document listing the elements of each offense and the
potential sentences in each range for the petitioner. She stated she and the petitioner had discussed
consecutive and concurrent sentencing. Counsel testified she never indicated the maximum sentence
possible was fifteen years.

        Counsel testified that she and the petitioner discussed the difficulties of bringing in the
petitioner’s theories of the case. First, the petitioner wanted to present proof that the watch was his
girlfriend’s, but he did not provide any contact information for her. Second, the petitioner wanted
to show what he understood from his co-defendant about the house belonging to his mother and he
and the petitioner having permission both to go there and to remove items that his mother had given
the co-defendant. However, the petitioner opted not to testify at trial. Counsel testified that, in spite
of these difficulties, she was able to present the petitioner’s defense claims.

       The trial court found the petitioner did not prove facts to support his claims by clear and
convincing evidence. See T.C.A. § 40-30-110(f). The court found the attorney’s testimony to be
more credible than that of the petitioner.

        The burden in a post-conviction proceeding is on the petitioner to prove his grounds for relief
by clear and convincing evidence. T.C.A. § 40-30-110(f). On appeal, we are bound by the trial
court’s findings of fact unless we conclude that the evidence in the record preponderates against
those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). Because they relate to mixed
questions of law and fact, we review the trial court’s conclusions as to whether counsel’s
performance was deficient and whether that deficiency was prejudicial under a de novo standard with
no presumption of correctness. Id. at 457. Post-conviction relief may only be given if a conviction
or sentence is void or voidable because of a violation of a constitutional right. T.C.A. § 40-30-103.

        Under the Sixth Amendment to the United States Constitution, when a claim of ineffective
assistance of counsel is made, the burden is on the petitioner to show (1) that counsel’s performance
was deficient and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838,
842-44 (1993). A petitioner will only prevail on a claim of ineffective assistance of counsel after
satisfying both prongs of the Strickland test. See Henley v. State, 960 S.W.2d 572, 579 (Tenn.
1997). The performance prong requires a petitioner raising a claim of ineffectiveness to show that
the counsel’s representation fell below an objective standard of reasonableness or “outside the wide
range of professionally competent assistance.” Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. The
prejudice prong requires a petitioner to demonstrate 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, 104 S. Ct. at 2068. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id., 104 S. Ct. at 2068. Failure to satisfy either prong results in the
denial of relief. Id. at 697, 104 S. Ct. at 2069.



                                                  -4-
        In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that
attorneys should be held to the general standard of whether the services rendered were within the
range of competence demanded of attorneys in criminal cases. Further, the court stated that the range
of competence was to be measured by the duties and criteria set forth in Beasley v. United States,
491 F.2d 687, 696 (6th Cir. 1974), and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir.
1973). Also, in reviewing counsel’s conduct, a “fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. “Thus, the fact that a
particular strategy or tactic failed or even hurt the defense does not, alone, support a claim of
ineffective assistance.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). Deference
is made to trial strategy or tactical choices if they are informed ones based upon adequate
preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); see DeCoster, 487 F.2d at 1201.

        First, the petitioner claims he was coerced into signing a written waiver of his right to jury
trial. The trial court found that the evidence did not support the petitioner’s waiver claim and that
he had knowingly and voluntarily waived his right to trial by jury. The evidence shows that the
petitioner signed a written waiver of his right to trial by jury after consulting with his attorney on the
risks of a jury hearing about his extensive criminal record. There is no evidence of coercion. There
is no evidence of deficient performance. The record reflects that the petitioner’s attorney was
prepared and had a waiver form with her during the consultation. We conclude the evidence does
not preponderate against the trial court’s finding of a voluntary waiver.

         Second, the petitioner claims trial counsel failed to investigate and interview a potentially
exculpatory witness before trial. The trial court found counsel’s actions were within the range of
competent assistance, in both trying to contact a witness disclosed to her two days before trial using
the paltry information her client gave her and moving for a continuance to obtain time in which to
try to contact and investigate this witness. On direct appeal, this court held that the trial court acted
within its discretion in denying the motion for a continuance. The trial court also found that counsel
advocated the petitioner’s claims about Ms. Santiago at trial, despite not having her testimony. The
petitioner admitted that any potential testimony he sought from Ms. Santiago was brought into
evidence during his attorney’s cross-examination of the state’s witnesses. Regarding not having Ms.
Santiago’s live testimony at trial, the petitioner testified that he was not prejudiced.

         Additionally, to substantiate a claim regarding failure to call a witness, a petitioner must
present the witness’s testimony at the post-conviction hearing. Only if a petitioner can “produce a
material witness who (a) could have been found by a reasonable investigation and (b) would have
testified favorably in support of [petitioner’s] defense if called” can counsel’s failure to investigate
and interview a potentially exculpatory witness before trial be shown. Black v. State, 794 S.W.2d
752, 758 (Tenn. Crim. App. 1990). Here, the petitioner did not meet his burden because Ms.
Santiago did not testify at this hearing. The evidence does not preponderate against the trial court’s
finding of no deficient representation.



                                                   -5-
        Third, the petitioner claims trial counsel failed to present evidence showing the petitioner did
not have the requisite mens rea to commit the crimes for which he was convicted. Petitioner claimed
his counsel did not present evidence that the petitioner and the co-defendant had permission to
remove the items from the house and that the watch he had when he was arrested belonged to his
girlfriend. The trial court found that the petitioner’s attorney raised these theories at trial, even
without the testimony of the petitioner or Ms. Santiago. The petitioner admitted that all of his
theories were presented on cross-examination. Trial counsel’s testimony corroborated this. The
evidence does not preponderate against the trial court’s finding.

       The post-conviction relief petition alleging ineffective assistance of counsel was properly
dismissed. Based upon the foregoing and the record as a whole, we affirm the judgment of the trial
court.



                                                        ___________________________________
                                                        JOSEPH M. TIPTON, PRESIDING JUDGE




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