            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                             Assigned on Briefs September 5, 2012

                RICKY RONELL JONES v. STATE OF TENNESSEE

                     Appeal from the Circuit Court for Madison County
                          No. C11140     Donald H. Allen, Judge


                  No. W2011-02737-CCA-R3-PC - Filed January 22, 2013


The Petitioner, Ricky Ronell Jones, appeals the Madison County Circuit Court’s denial of
his petition for post-conviction relief from his jury convictions. On appeal, the Petitioner
contends that trial counsel was ineffective by failing to adequately investigate and prepare
for trial. Upon review, we affirm the judgment of the post-conviction court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which T HOMAS T.
W OODALL and J EFFREY S. B IVINS, joined.

Joseph T. Howell, Jackson, Tennessee, for the Petitioner-Appellant, Ricky Ronell Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel;
James (Jerry) G. Woodall, District Attorney General; and Joseph T. Howell, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                                OPINION

        The Petitioner was convicted by a Madison County jury of rape of a child, a Class A
felony, and incest, a Class C felony, against his twelve-year-old daughter, L.J. He received
concurrent sentences of twenty-five years as a Range I, child rapist at one hundred percent
for the rape of child conviction and six years as a Range I, standard offender for the incest
conviction. These sentences were to be served consecutively to three convictions to which
he pled guilty regarding his fifteen-year-old daughter, B.J.,1 for a total effective sentence of


        1
          With respect to crimes against B.J., the Petitioner pled guilty to rape, a Class B felony, incest, a
Class C felony, and sexual battery, a Class E felony. He received concurrent sentences of twelve years as
a Range I violent offender at one hundred percent for the rape conviction and six and two years, respectively,
thirty-seven years. For his crimes against L.J., the jury imposed a $50,000.00 fine for the
rape of a child charge and a $10,000.00 fine for the incest charge, which the trial court
reduced to $5,000.00 and $1,000.00, respectively.

       While his direct appeal was pending, the Petitioner filed a pro se petition for post-
conviction relief alleging ineffective assistance of counsel with respect to his jury convictions
regarding L.J. After counsel was appointed, the parties entered an agreed order staying
proceedings pending this Court’s decision on direct appeal. This Court affirmed the
judgments of the trial court on August 30, 2011. State v. Ricky Ronell Jones, No. S2010-
01831-CCA-R3-CD, 2011 WL 3849562 (Tenn. Crim. App., at Jackson, Aug. 30, 2011)
(concluding evidence was sufficient to support jury verdicts and affirming consecutive
sentencing).2

       The facts, in pertinent part, from our direct appeal show that the Petitioner, L.J., B.J.,
and the Petitioner’s sister, Stephanie Reid, testified at trial. L.J. said that

        about two or three months before her twelfth birthday, [she] was at home with
        B.J. and the [Petitioner] while her mother and brother were at work. L.J. was
        in her bedroom watching television, and B.J. was in her bedroom. The
        [Petitioner] called L.J. to her parents’ bedroom. When she walked into the
        bedroom, the [Petitioner] was sitting on the bed. He was wearing a shirt, but
        his pants were down. He told L.J. to put his penis in her mouth. After one or
        two minutes of moving his penis “back and forth” in L.J.’s mouth, the
        [Petitioner] stopped, walked away, and went into the laundry room. . . .

Id. at *1. L.J. testified that when first questioned by her mother in the presence of B.J. and
her aunt, Stephanie Reid, L.J. denied that the Petitioner had “done anything” to her “because
she was scared.” However, she testified that “when she was alone with her mother, [she]
disclosed the details of the incident in her parents’ bedroom.” Id.

        L.J.’s sister, B.J., corroborated her account of the offense:

        B.J. testified that . . . . in the summer of 2008, she was at home with L.J. and
        the [Petitioner] while her mother and brother were at work. B.J. said that she



as a Range I standard offender for the incest and sexual battery convictions. The Petitioner’s guilty pleas and
sentences therefrom are not at issue in this appeal.
        2
       Trial Counsel testified that he did not file a petition for permission to appeal to the Tennessee
Supreme Court but that the Petitioner might have filed one pro se.

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        was on the family computer in her parents’ bedroom. The [Petitioner] was also
        in the room. B.J. left to go to the bathroom and heard the [Petitioner] call L.J.
        into the bedroom. When B.J. went to the bathroom, she left the door to her
        parents’ bedroom open, but when she returned, the door was closed. B.J.
        opened the door “a little” and saw the [Petitioner] and L.J. in the bedroom.
        She said that the [Petitioner’s] penis was in L.J.’s mouth.

Id.

        The proof further showed that the Petitioner provided a statement of admission to
Deputy William Alan Kirby of the Madison County Sheriff’s Department. Deputy Kirby
testified that on January 8, 2009:

        The [Petitioner] told [him] that he was “feeling down because of what [he]
        did.” Deputy Kirby asked what the [Petitioner] meant, and the [Petitioner] said
        he had done “something real bad.” Deputy Kirby asked the [Petitioner] if he
        wanted to talk about it. The [Petitioner] told Deputy Kirby, “I touched my
        daughter . . . . I fondled my daughter, my twelve-year old daughter.”

Id. at *2.

        The Petitioner testified at trial and denied engaging in oral sex with L.J. He said that
he was blind in his right eye and that in February of 2008, he had a cornea transplant in his
left eye. Id. The Petitioner testified that “[h]is wife and son were employed, and the
[Petitioner] stayed home to care for B.J. and L.J.” Id.

         At the post-conviction hearing, the Petitioner testified that Counsel “should have sent
out his State investigator to talk to Ronell Jones, which is [the Petitioner’s] son; [his] wife
at the time, Juana Jones; and [his] sister, Stephanie Reed.” The Petitioner believed that each
of these persons would have said that L.J. “did say that [the Petitioner] did not commit this
offense.”

       The Petitioner testified that he could not read “the investigation” himself, but he
recalled that “somewhere” it “said something to the effect that [the offense occurred] . . .
seven months within [L.J.’s] twelfth birthday.”3 He said that Counsel “should have looked


        3
          On cross-examination, the Petitioner testified that L.J.’s birthday was August 18 and that it was
because of her age that he “ended up with just this last charge here,” presumably rape of a child. L.J.
testified that she was born August 19, 1996. Jones, 2011 WL 3849562, at *1. Tennessee Code Annotated
Section 39-13-522 (2006 & Supp. 2007) defines rape of a child as the “unlawful sexual penetration of a

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into the allegations about that seven months earlier” and should have obtained his medical
records, which would have shown that he had one retinal detachment repaired in early 2007,
another retinal detachment repaired in “2007 going into 2008,” and a cornea transplant in
February of 2008. He testified that after the retinal surgery, he had “to look down at [his]
feet everywhere” he went for “six to eight weeks,” and that after the cornea transplant, he
“was not able and even mobile until October of 2008.” He said medical records would have
proven that he was “bedridden” after his surgeries, and “there was no way [he] could have
walked away [from L.J.] because [he] wasn’t mobile[.]” He could not recall whether he told
Counsel that his medical condition rendered him immobile.

       The Petitioner testified that he asked Counsel to obtain Mrs. Jones’s work records in
an effort to prove that he was not alone with L.J. seven months prior to her twelfth birthday.
The Petitioner believed the records “would have [shown] that [Mrs. Jones] had a day job at
the time.” The Petitioner also asked Counsel to obtain Mrs. Jones’s bank statements to show
that she had “a motive to see [him] get out of the way,” because they would have revealed
that Mrs. Jones received “$1700 off [his] Social Security money from February up until
December of 2009 while [he] was incarcerated.”

       The Petitioner wanted Counsel to have his statement to Deputy Kirby suppressed
because he was on suicide watch at the time he made the statement to Deputy Kirby. The
Petitioner wanted the jury to know that when he made the alleged statement, he “was in
duress and under a lot of stress . . . and [he felt] like that probably would have voided their
thoughts about that statement that Officer Kirby made.”

        On cross-examination, the Petitioner acknowledged that he testified at trial and told
the jury he was “legally blind.” He agreed that his sister, Ms. Reid, testified on his behalf
at trial regarding L.J.’s conversation in January of 2009, wherein the Petitioner says L.J.
denied he committed the crimes.

        Counsel testified that he was appointed to represent the Petitioner around the time of
his arraignment and that he represented him at trial and on appeal. He met with the Petitioner
eight times in jail prior to trial. He shared discovery with the Petitioner and acknowledged
that a fellow inmate read documents to the Petitioner because of his “eye condition[.]”
Counsel testified that he was able to communicate with the Petitioner and believed the
Petitioner understood his discussions.



victim . . . [who is] more than three (3) years of age but less than thirteen (13) years of age.” Because L.J.
testified, and the record does not contradict, that she was born in 1996, whether the offense occurred a few
months prior to or after her twelfth birthday, section 39-13-522 of the Code applies.

                                                      4
        Counsel subpoenaed Mr. Jones for trial and decided not to call him as a witness
because Mr. Jones “basically said he was not present when anything did or didn’t happen and
he really didn’t know anything one way or the other[.]” Counsel further explained that Mr.
Jones did not seem “very sympathetic to our side.” He would have called Mr. Jones to testify
“[i]f he would have had anything that would have helped, . . . but he just didn’t have any
information.” Counsel confirmed that Ms. Reid testified at trial as a witness for the defense.

       Counsel said he did not obtain the Petitioner’s medical records because he thought that
the jury would see that the Petitioner had vision problems, and his “daughters testified that
he had vision problems and things like that.” Additionally, Counsel testified that he did not
note any issue regarding the Petitioner’s bank records until after the Petitioner was tried and
convicted. As to Mrs. Jones’s work records, Counsel said the indictment did not list a
specific date and “the State’s theory was that [L.J.] . . . couldn’t recall what day it was so I
don’t know that we could have disproven the offense date because she didn’t really know
what it was. She just said a certain time period in 2008.” Further, Counsel recalled the
Petitioner’s daughters “said that [their mother] was not there and that’s why he was
babysitting.”

      Regarding the Petitioner’s allegations that Counsel should have suppressed his
statement to Deputy Kirby, Counsel stated:

               I don’t know that we talked about it being suppressed. I know his
       contention was that basically when he made that statement, he was referring
       to his other daughter, the daughter he pled guilty to the offenses with. So, I
       didn’t want to bring that out at all and have the jury hear he had pled guilty to
       incidents with the other daughter. We tried to keep it vague and let Deputy
       Kirby just testify about that. I remember he did say that he was basically not
       referring to [L.J.], but to [B.J.]

Counsel believed there was no legal basis upon which to support a motion to suppress the
Petitioner’s statement to Deputy Kirby. Counsel stated, “He wasn’t being interrogated. It
was a voluntary statement I think that he made after they had reports that he tried to commit
suicide in the jail and I think Deputy Kirby was just investigating that . . . .” Finally, on
cross-examination, Counsel testified that the Petitioner did not deny making the statement
to Deputy Kirby.

       Counsel additionally explained “the problem with [the Petitioner’s] theory” that his
eye surgery precluded him from being active enough to commit the offense was that the
crimes he was charged with involved no “force or anything like that.” Counsel stated the
Petitioner was charged with instructing L.J. in the bedroom to perform oral sex on him.

                                               5
       The post-conviction court denied the petition on December 15, 2011, and the
Petitioner timely filed a notice of appeal December 27, 2011. In its order denying relief, the
post-conviction court determined the following:

              that trial counsel fully investigated the Petitioner’s case, spoke
              with witnesses, called witnesses to testify, met and consulted
              with the Petitioner eight times before trial, discussed trial
              strategy with the Petitioner, and consulted with the Petitioner
              throughout the trial [and]

              that trial counsel found no legal basis to file a Motion to
              Suppress the Petitioner’s voluntary statement, that the Petitioner
              was found to be competent for trial, and that the Petitioner
              testified at his trial [and]

              that the State had a very strong case based upon the evidence
              against the Petitioner[.]

The post-conviction court additionally found that “the advice given and services rendered by
trial counsel . . . were within the range of competence demanded of attorneys representing
defendants in criminal cases” and that “the Petitioner failed to establish by clear and
convincing evidence that his trial counsel’s performance was deficient and that any alleged
deficient performance prejudiced the defendant.”

                                        ANALYSIS

       On appeal, the Petitioner asserts that Counsel’s performance with respect to the
charges involving L.J. was deficient because he failed to interview witnesses, obtain records,
and seek suppression of the Petitioner’s statement to Deputy Kirby. The State responds that
the Petitioner failed to prove deficient performance of Counsel or prejudice. We agree with
the State.

      Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction is void or voidable because of an abridgement of a constitutional right. T.C.A.
§ 40-30-103 (2006). 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

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       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) (internal quotation and citations
omitted). “The petitioner bears the burden of proving factual allegations in the petition for
post-conviction relief by clear and convincing evidence.” Id. (citing T.C.A. § 40-30-110 (f);
Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006)). Evidence is considered clear and
convincing when there is no serious or substantial doubt about the accuracy of the
conclusions drawn from it. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)
(citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).

       Vaughn further repeated well-settled principles applicable to claims of ineffective
assistance of counsel:

              The right of a person accused of a crime to representation by counsel
       is guaranteed by both the Sixth Amendment to the United States Constitution
       and article I, section 9, of the Tennessee Constitution. Both the United States
       Supreme Court and this Court have recognized that this right to representation
       encompasses the right to reasonably effective assistance, that is, within the
       range of competence demanded of attorneys in criminal cases.

Vaughn, 202 S.W.3d at 116 (internal quotations and citations omitted).

       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. Id. (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[A] failure to
prove either deficiency or prejudice provides a sufficient basis to deny relief on the
ineffective assistance claim. 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, 104 S. Ct. at 2069).

       A petitioner successfully demonstrates deficient performance when the clear and
convincing evidence proves that his attorney’s conduct fell below “an objective standard of
reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S.
at 688, 104 S. Ct. at 2065; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is
demonstrated once the petitioner establishes “‘a reasonable probability that, but for counsel’s

                                              7
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, 104 S. Ct. at 2068).

        We note that “[i]n evaluating an attorney’s performance, a reviewing court must be
highly deferential and should indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” State v. Burns, 6 S.W.3d 453,
462 (Tenn. 1999) (citing Strickland, 466 U.S. at 689, 104 S. Ct. 2065). Moreover, “[n]o
particular set of detailed rules for counsel’s conduct can satisfactorily take account of the
variety of circumstances faced by defense counsel or the range of legitimate decisions
regarding how best to represent a criminal defendant.” Strickland, 466 U.S. at 688-89, 104
S. Ct. at 2065.

        A. Failure to interview witnesses. The Petitioner argues that Counsel failed to
interview the Petitioner’s son, Mr. Jones, the Petitioner’s wife at the time of the offenses,
Mrs. Jones, and the Petitioner’s sister, Ms. Reid, to show that L.J. “had stated that he (the
Petitioner) did not commit the alleged offenses.” The post-conviction court found that trial
counsel “spoke with witnesses, [and] called witnesses to testify.” The record shows that
Counsel interviewed Ms. Reid several times and interviewed Mr. Jones at trial. Counsel
additionally subpoenaed Mr. Jones to trial and chose not to call him to testify. Counsel
explained that Mr. Jones was not an eyewitness, had no information regarding the case, and
was unsympathetic to the Petitioner. The Petitioner further acknowledged that Ms. Reid
testified at trial as a witness for the defense and that she addressed L.J.’s statements made
in January of 2009. The record supports the determination of the post-conviction court.
Accordingly, the Petitioner has failed to show deficient performance of counsel or prejudice
as a result.

       B. Failure to obtain records. The Petitioner next contends that Counsel’s
performance was deficient due to his failure to obtain the Petitioner’s medical records and
Mrs. Jones’s work records and bank statements. The post-conviction court found that
Counsel “fully investigated the Petitioner’s case . . . discussed trial strategy with the
Petitioner, and . . . . none of trial [C]ounsel’s actions or omissions were so serious as to fall
below the objective standard of reasonableness under prevailing professional norms.” Here,
the Petitioner failed to produce any of these records at his evidentiary hearing. This court has
repeatedly stated that “[f]or purposes of proving an ineffective assistance of counsel claim,
proof of deficient representation by omission requires more than a speculative showing of
a lost potential benefit.” Owens v. State, 13 S.W. 3d 742, 756 (Tenn. Crim. App. 1999)
(affirming denial of post-conviction relief where petitioner “failed to produce any evidence
at the post-conviction hearing indicating that an investigator would have discovered any
information favorable to her case.”). The Petitioner claims that had Counsel “investigated

                                               8
these records, counsel would have learned that Mrs. Jones was not working during the
evenings and the Petitioner was not alone with the alleged victim.” Because the Petitioner
failed to produce these records at the post-conviction hearing, his claim of Mrs. Jones’
whereabouts at the time of the offense is no more than pure speculation. Accordingly,
counsel’s decision not to produce Mrs. Jones’s employment records did not amount to
deficient performance or prejudice. The Petitioner is not entitled to relief on this issue.

        We further conclude that Counsel’s decision not to produce the Petitioner’s medical
records did not constitute deficient performance. Here, the Petitioner contends that
production of his medical records would have shown that “he [was] incapacitated at the time
of the alleged offense.” However, the record shows that the medical records would not have
proven that the Petitioner was unable to commit the offense. Counsel believed that it was
sufficient for the jury to see that the Petitioner had vision problems. Moreover, testimony
of the Petitioner’s blindness and eye conditions was elicited at trial, including from the
Petitioner and his daughters. See Jones, 2011 WL 3849562, at *2. Finally, as Counsel
stated, the Petitioner was charged with instructing L.J. to perform oral sex which did not
require force.

        Next, the Petitioner asserts that Mrs. Jones’s bank records would have shown that she
had a financial motive for the Petitioner to go to jail. Here, Counsel testified that the
Petitioner did not mention the bank records until after trial. The post-conviction court found,
and we agree, that the Petitioner has failed to demonstrate deficient performance or prejudice
as a result. Accordingly, he is not entitled to relief on this issue.

        C. Failure to suppress statement. The Petitioner argues that Counsel should have
sought the suppression by the court of his statement to Deputy Kirby. The State responds
that this complaint concerns “trial strategy [and] tactical decisions made by his trial counsel.”
We agree. Here, Counsel testified that the Petitioner did not deny making the statement but
rather explained only that he was speaking of his older daughter, B.J., at the time. The record
shows that Counsel wanted to avoid bringing attention to the statement because the Petitioner
had entered guilty pleas to similar offenses against his older daughter. Additionally, counsel
testified that there was no legal basis to support a motion to suppress. We view counsel’s
decision not to file a motion to suppress as a tactical decision which we are unwilling to
second-guess. Owens v. State, 13 S.W.3d 742, 756 (Tenn. Crim. App. 1999). In so much
as the Petitioner seemingly argues that he wanted an opportunity to explain the alleged
stressful circumstances surrounding when he gave the statement to Deputy Kirby, the
Petitioner testified at trial. The record supports the determination of the post-conviction
court. Accordingly, the Petitioner has failed to show that counsel engaged in deficient
performance or prejudice as a result. He is not entitled to relief.



                                               9
                                          CONCLUSION

         Upon a thorough review of the record, we affirm the judgment of the post-conviction
court.

                                                         ___________________________
                                                         CAMILLE R. McMULLEN, JUDGE




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