        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs February 5, 2013

               DERRICK SORRELL v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                    No. 03-01955     John T. Fowlkes, Jr., Judge


                 No. W2012-01025-CCA-R3-PC - Filed April 16, 2013


The petitioner, Derrick Sorrell, appeals the post-conviction court’s denial of his petition for
post-conviction relief from his first-degree murder conviction, arguing he received the
ineffective assistance of counsel. After 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 OHN E VERETT W ILLIAMS
and C AMILLE R. M CM ULLEN, JJ., joined.

Paul K. Guibao (on appeal) and Ryan Wiley (at hearing), Memphis, Tennessee, for the
appellant, Derrick Sorrell.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy P. Weirich, District Attorney General; and Muriel Malone, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                                           FACTS

       The petitioner was convicted of one count of first-degree premeditated murder and
one count of felony murder, arising out of his killing the victim, Mark Kent, while engaged
in a drug deal. State v. Derrick Sorrell, No. W2006-02766-CCA-R3-CD, 2009 WL
1025873, at *1 (Tenn. Crim. App. Apr. 8, 2009), perm. app. denied (Tenn. Aug. 17, 2009).
The trial court merged the convictions, and this court affirmed the judgments of the trial
court on direct appeal. Id. The Tennessee Supreme Court denied the petitioner’s application
for permission to appeal. Id.
The underlying facts of the case were recited by this court on direct appeal as follows:

At trial, Officer Richard Jewell, Jr. testified that he received a call informing
him that a person had been seen slumped over the wheel of a car near East
Parkway and Young. The officer said that he arrived at the parking lot of the
Sunshine Car Wash and observed a Dodge Avenger Coupe parked about three
feet from a pay phone. The officer observed the victim leaning forward in the
seat with what appeared to be a gunshot wound to the side of his face.

       Officer Adam Merritt testified that there was blood and brain matter
inside the vehicle and that he did not attempt to open the car doors because
there were no signs of life.

       Officer Jewell testified that they opened the vehicle when the Crime
Scene Unit arrived. Inside the vehicle, they observed that the rear seat had
been “flipped up” and noticed the victim’s blood on the center console.
Officer Jewell opined that the console and the glove box had indentations
consistent with someone trying to force them open.

       Officer David Galloway, with the Crime Scene Unit, testified that he
found a spent .380 caliber bullet casing behind the front driver’s seat. The
officer also testified that, outside the vehicle by the passenger door, they
found a white paper that appeared to have blood on it.

        Jerry Sims, a retired latent print examiner, testified that the bloody
fingerprint on the piece of paper found in the victim’s car belonged to the
[petitioner].

        Doctor Teresa Campbell, who performed the victim’s autopsy, testified
that the victim had two gunshot wounds to the head, one to the right side of
his face and one behind his ear at the base of his skull. The doctor testified
that the victim had a stippling pattern on his face that indicated the gun had
been discharged within two feet of his face. She determined that the cause of
death was multiple gunshot wounds. The doctor testified that the wound to
the face would not have caused an immediate death, but the wound to the base
of the skull would have caused instantaneous death.

       Tiffany Dotson testified that she had lived with the victim for six or
seven years. She testified that she last saw the victim at approximately 10:00
p.m. when he left the house to wash her car, a 1996 Dodge Avenger. She

                                       -2-
testified that she fell asleep, awoke about midnight, and realized the victim
had not returned home. She called the victim on his cell phone but was unable
to reach him. Dotson went back to sleep, woke up about 3:00 a.m., and again
tried to call the victim. She said this was unusual and began to call the
hospitals, the police, and the impound lot. She learned that her car had been
involved in a homicide. She phoned the victim’s father and told him what she
knew. Dotson said that she listened to the voice mail messages from the
victim’s phone later that day and contacted the police to tell them she thought
one message was important.

       Officer James Fitzpatrick testified that he went to the scene of the
homicide on June 19, 2001. He believed that the voice mail left on the
victim’s phone was an accidental recording. The officer said that the voice
mail caught his attention because one of the individuals speaking said that he
“searched up under his butt.” The officer opined that someone had moved the
victim around and searched underneath him. He further testified that he
thought the conversation had something to do with the homicide.

        Officer Fitzpatrick testified that he spoke with the [petitioner] on
October 29, 2001, and took a written statement from him. Initially, the
[petitioner] denied any knowledge of the killing. The officer told the
[petitioner] that they had his fingerprint from the crime scene, and the
[petitioner] denied that he had ever been to the car wash where the victim was
slain. The [petitioner] eventually acknowledged that he had spoken with the
victim and had made an appointment to meet him at the car wash at East
Parkway and Young. The [petitioner] said he left before the victim was
killed. The officer testified that he told the [petitioner] it would not be
possible for him to have left before the victim was killed because the
[petitioner]’s fingerprint inside the car was made in the victim’s blood.

        The [petitioner] told the officer that “David Covington” was the person
who killed the victim. The [petitioner] explained to the officer that he had
arranged to meet the victim to purchase two ounces of cocaine. The
[petitioner] said he had forty dollars to buy the drugs and was concerned
because forty dollars was typically not enough money to purchase one ounce
of cocaine. The [petitioner] said that during their negotiation, David
Covington opened the passenger side door of the car and fired two shots. The
[petitioner] said that Mr. Covington ran around the car to the driver’s side.
The [petitioner] said that he went to his car and left the car wash.


                                      -3-
               In his formal statement, the [petitioner] denied shooting the victim. He
       maintained that David Covington shot the victim with a chrome .380 caliber
       pistol. The [petitioner] said he had known Covington for ten years. The
       [petitioner] told the officers that he had blood on his clothes and that he threw
       away his shirt but laundered his pants.

              The officers played an audiotape for the [petitioner] that was made
       from the victim’s voice mail messages. The recording was from an
       “accidental” phone call between two men. The recording contained a
       conversation about searching underneath the victim after he was killed. One
       officer testified that, after hearing the recording, the [petitioner] became
       agitated and his speech pattern became stuttered and accelerated. The officers
       asked the [petitioner] whom he was talking to, and he replied that he was
       talking to his cousin, Lorenzo Towns. When pressed about why he had told
       so many different stories about that night, the [petitioner] terminated his
       conversation with the officers.

              Lieutenant Darrell Sheffield testified that he obtained a search warrant
       for the victim’s cellular telephone after receiving information about the
       victim’s voice mail. He received a detailed bill showing the phone numbers
       from calls received and placed on the victim’s phone. The lieutenant was able
       to determine that the [petitioner] was the subscriber of the phone number used
       when the incident happened.

               Tabitha Bender, an employee of Cricket Communications, testified that
       she reviewed the telephone records for both the victim and the [petitioner] for
       calls originating on June 18, 2001. She testified that the [petitioner] called the
       victim six times between 9:04 p.m. and 10:39 p.m. She testified that the
       victim phoned the [petitioner] one time, at 9:45 p.m.

              Carolyn N. Cambers, an employee of the Shelby County Sheriff’s
       Department, testified that she is responsible for recording telephone calls that
       originate from the county jail. A taped telephone call made by the [petitioner]
       was introduced into evidence where he tried to convince someone to tell the
       police that another person had killed the victim.

Derrick Sorrell, 2009 WL 1025873, at *1-3.

      On June 21, 2010, the petitioner filed a pro se petition for post-conviction relief, in
which he raised, among other things, various allegations of ineffective assistance of counsel.

                                              -4-
The post-conviction court conducted an evidentiary hearing on January 6, 2011.

       At the hearing, the petitioner testified that he suffered from paranoid schizophrenia
and had been on medication for “a long time,” including prior to his arrest and conviction.
He had had mental health problems since he was young, and his mother abused him. He told
counsel that he was on medication and was seeing a doctor in the jail, yet he was never sent
for a mental evaluation. He was housed “in the suicide tank” at times. He told counsel he
did not think he could testify due to the stress of being cross-examined by “a professional
prosecutor.”

       The petitioner testified that his meetings with counsel were too short. At one
particular meeting, he met with counsel and another attorney to discuss a plea, but his nerves
were “messed up that day” and he had trouble understanding. He told counsel about his
difficulties and asked for help. He admitted that he rejected a thirteen-year offer but
explained that the “voices started talking to [him]” and “before [he] kn[e]w it, they had
already set it for trial[.]” He received discovery from the State but did not understand all of
it. Counsel tried to explain things to him but did not meet with him long enough for him to
gain understanding.

        On cross-examination, the petitioner testified that he did not tell counsel about his
mental health issues, including his being diagnosed as paranoid schizophrenic. He stated
that he did not tell counsel that he was hearing voices, although he did tell counsel that he
was taking medication and that the medications were affecting him. However, he elaborated
that he and counsel did not “discuss[] it long enough for [him] to get into it, because it is
very hard to tell somebody that. You think that they are going to take advantage of you[.]”
The voices in his head told him that counsel was not there to help him. He also did not tell
the judge about the voices in his head because “the voices w[ere] crowding [him] out” and
telling him that even the judge was against him. He later testified, inconsistently, that he did
tell counsel that he was hearing voices.

         Trial counsel testified that he took over the petitioner’s case in 2005 after the
petitioner’s original attorney passed away. There was nothing in the original attorney’s file
to indicate the petitioner had a mental condition. There was an indication “[f]rom the intake,
. . . at one time in the intake . . . that [the petitioner] had told them that he had seen a
psychologist there and they asked him if he was under medication and if they had given him
any and he said, no.” Counsel was not aware of the petitioner ever being placed in the
“suicide tank,” or that would have triggered a mental evaluation. He said that he would only
know about any medical treatment the petitioner received in jail if the petitioner told him
about it. Questioned whether he asked the petitioner about any mental health issues, counsel
explained:

                                              -5-
              What I did with [the petitioner] is like I do with everybody, I interview
       them numerous times and see if I believe that they are competent. Now, I am
       not a psychiatrist, but I can sit there and see, can they help me, can they tell me
       what is going on and he definitely could. The [petitioner] that I saw today is
       not the one that I saw a couple of years ago.

        Counsel testified that he had multiple meetings with the petitioner, including one
lengthy meeting in which they reviewed applicable portions of more than forty hours of
jailhouse phone calls made by the petitioner. Counsel did not feel that the petitioner
appeared “extremely erratic” in any of those phone conversations. Counsel said that he had
worked in the public defender’s office for several years and that they had a “special
emphasis on mental health type issues and [was] . . . told, right off, to be especially sensitive
to that.” He said that the petitioner’s thought process seemed “very quick” and that he
“never heard anything about voices, or seeing people. I can assure you that.”

       On cross-examination, counsel recalled that the petitioner had no difficulty
understanding when the trial judge explained to him about whether he wanted to go to trial,
and counsel remembered the petitioner saying that the plea offer was too long and that he
wanted to go to trial. Counsel did not have any problems communicating with the petitioner
during trial. Counsel stated that, had he “any indication that [the petitioner] was not
competent, or he was not able to make a decision then . . . I would have had him evaluated.”
He also noted that a number of other people in the public defender’s office dealt with the
petitioner, and there was no indiction in the file that anyone had detected a mental problem.

        After the conclusion of the evidentiary hearing, the post-conviction court made oral
findings, followed by a written order, denying post-conviction relief. The court found that
the petitioner failed to prove his factual allegations by clear and convincing evidence and
failed to show that counsel was ineffective or that he was prejudiced.

                                         ANALYSIS

       The petitioner argues that he received the ineffective assistance of counsel at trial,
specifically focusing on counsel’s not seeking a mental evaluation.

       Post-conviction relief is available to a petitioner who establishes that his or her
conviction or sentence is void or voidable because of an abridgement of a constitutional
right. Tenn. Code Ann. § 40-30-103. The post-conviction petitioner bears the burden of
proving his 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
post-conviction court “are entitled to substantial deference on appeal unless the evidence

                                               -6-
preponderates against those findings.” Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001); see
also Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review is of
purely factual issues, the appellate court should not reweigh or reevaluate the evidence. See
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). 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, 40 S.W.3d at 458; Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

        The right to effective assistance of counsel is safeguarded by the Constitutions of both
the United States and the State of Tennessee. See U.S. Const. Amend. VI; Tenn. Const. art.
I, § 9. Ordinarily, to establish that he was denied the effective 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
       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 benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the adversarial process that the
trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686.

                                                -7-
       The prejudice prong of the Strickland 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.

       Courts need not approach the Strickland test in a specific order or even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S.
at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency or
prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”).

        With regard to counsel’s not requesting a mental evaluation, the court observed that
the petitioner had not presented any documentation or examinations to show that he had a
mental problem. The court also noted counsel’s testimony that he did not observe in his
numerous interactions with the petitioner any indication that the petitioner had a mental
problem or “action would have been taken.” The court determined that the petitioner’s
“credibility is just not good and those types of issues will have to be decided in favor of
[counsel].” The court noted that “when [the petitioner] testified, he tried to make it seem
as though he is having difficulty and hearing voices. Yet, he seems to communicate well
with his attorney in the courtroom, as well as with court personnel.” The court perceived
that “[i]t just seems as though this is a case of malingering.”

       The record supports the post-conviction court’s determinations. The petitioner did
not obtain a mental evaluation or submit any documentation that supported his claim that he
suffered from a mental problem. Counsel, an experienced attorney who was “especially
sensitive” to looking for mental health issues, was not informed of and did not observe any
indication that the petitioner was suffering from a mental health problem. The post-
conviction court judged the credibility of the witnesses and determined the petitioner’s
testimony to be not credible, as was its province. The petitioner failed to prove that counsel
performed deficiently or that any deficiency caused him prejudice.

        We note that after the parties submitted their briefs in this case, the petitioner
submitted a pro se brief, asserting that he was denied first-tier appeal of his original post-
conviction petition, his conviction was based on evidence obtained pursuant to an unlawful
arrest, and the caption in his indictment was fatally defective. We initially note that, in light
of the fact that the petitioner is represented by counsel, we consider only counsel’s appellate
brief, and not that prepared and filed by the petitioner himself. See State v. Lyons, 29
S.W.3d 48, 51 (Tenn. Crim. App. 1999).

         In any event, the petitioner suffered no prejudice as to his claim that he was denied
first-tier appellate review of his post-conviction petition because his post-conviction counsel

                                               -8-
did not file a timely notice of appeal because the record shows that the matter was addressed,
new counsel was appointed to assist the petitioner on appeal, and this court has now
thoroughly reviewed the petitioner’s claims. With regard to his allegations of an unlawful
arrest and defective indictment, such issues are waived because they were not presented on
direct appeal. See Tenn. Code Ann. § 40-30-106(g) (stating that a ground for relief is
waived if the petitioner personally or through an attorney failed to present it for
determination in any proceeding before a court of competent jurisdiction in which the
ground could have been presented).

                                      CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the denial of the petition.




                                                   _________________________________
                                                   ALAN E. GLENN, JUDGE




                                             -9-
