                                                                                        06/07/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs March 7, 2017

                CALVIN ELLISON v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Madison County
                        No. C-16-157   Roy Morgan, Judge


                            No. W2016-01784-CCA-R3-PC


The petitioner, Calvin Ellison, appeals from the denial of his petition for post-conviction
relief, which petition challenged his 2013 convictions of misdemeanor reckless
endangerment, aggravated assault, and employing a firearm during the commission of a
felony. Because the petitioner failed to establish that he was prejudiced by counsel’s
failure to challenge the consecutive alignment of his sentences and because he failed to
establish that counsel performed deficiently in any other regard, we affirm the denial of
post-conviction relief.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and ROBERT L. HOLLOWAY, JR., JJ., joined.

Joseph T. Howell, Jackson, Tennessee, for the appellant, Calvin Ellison.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant
Attorney General; Jerry Woodall, District Attorney General; and Al Earls, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

              The Madison County Grand Jury charged the petitioner with one count of
attempted first degree murder, two counts of aggravated assault, and one count of
employing a firearm during the commission of or attempt to commit a dangerous felony.
The evidence adduced at the petitioner’s trial established that the petitioner and victim
Joshua Cathey exchanged words at a Jackson convenience store about the petitioner’s
interactions with Mr. Cathey’s wife, Princess Cathey. See State v. Calvin Ellison, No.
W2013-02786-CCA-R3-CD, slip op. at 3 (Tenn. Crim. App., Jackson, Dec. 10, 2014),
perm. app. denied (June 17, 2015). Mr. and Ms. Cathey testified that the petitioner
followed Mr. Cathey to his car and then fired several shots at the car as Mr. Cathey drove
away with Ms. Cathey in the passenger’s seat. See id., slip op. at 2-3. The petitioner and
his friend, Lewis Grimes, III, testified that the petitioner fired on the Catheys only after
Mr. Cathey drove his vehicle toward the petitioner at a high rate of speed. See id., slip
op. at 6-7. The petitioner provided two pretrial statements to the police, denying both
times that he had fired a weapon at the Catheys. See id., slip op. at 4-5, 7. The jury
convicted the petitioner of reckless endangerment, aggravated assault, and employing a
firearm during the commission of or attempt to commit first degree murder. See id., slip
op. at 7. The jury acquitted the petitioner of the second charge of aggravated assault. See
id.

               Following his unsuccessful bid for relief on direct appeal, the petitioner
filed a timely petition for post-conviction relief, alleging, among other things, that he was
denied the effective assistance of counsel. The petitioner also filed a motion to set aside
the fines and costs associated with his convictions. In an amended petition, the petitioner
averred that counsel performed deficiently by failing to raise the imposition of
consecutive sentencing as an issue on appeal; failing to challenge the duplicitous
indictment; failing to object to the jury instructions, certain testimony, and violations of
the petitioner’s protection against double jeopardy; and failing to adequately inform the
petitioner of the charges against him.

               At the August 22, 2016 evidentiary hearing, the petitioner testified that he
presented counsel with “12 different issues to” be included on direct appeal and that
counsel “only chose like two or three of them.” The petitioner said that he wanted
counsel to raise the issue of prosecutorial misconduct on direct appeal. By way of
explanation, the petitioner claimed that he was originally charged by indictment with
only a single count of aggravated assault related to the incident with the Catheys. He said
that the assistant district attorney originally assigned to his case “threw out that
indictment and reindicted” him on the more serious charges only after he “caught a
charge against a . . . jail sheriff deputy” who was “related to” that particular assistant
district attorney. He claimed that the seriousness of the new charges reflected the
assistant district attorney’s desire to punish the petitioner for “the charge against his
cousin” and for the petitioner’s refusal to “accept 11/29 over in . . . [g]eneral [s]essions”
court. The petitioner insisted that someone in the district attorney’s office “sent a letter”
to trial counsel admitting that the indictment on more serious charges was an act of
retaliation by that office as a favor to one of the assistant district attorneys general.

              The petitioner testified that counsel also performed deficiently by failing to
adequately address on appeal the consecutive alignment of the sentence for his conviction
of employing a firearm during a dangerous felony, arguing that counsel “didn’t argue”
the issue “the way he supposed to had argued” because counsel “didn’t know at the time”
                                             -2-
how to argue the issue. He claimed that he had “investigated the charge” and that the
consecutive alignment of his sentences was illegal because “all these charges is on the
same person.” He insisted that his “6 and 10 should be run together.” The petitioner also
claimed that he should have been sentenced as a Range I offender because the State failed
to file a notice seeking enhanced punishment and that he was improperly denied pretrial
jail credits.

              The petitioner stated that counsel performed deficiently by failing to object
to instances of prosecutorial misconduct. He then embarked on a meandering narrative
response the gist of which was that he believed a particular assistant district attorney,
whose relative the petitioner had apparently assaulted, exerted his influence in an
improper manner in the petitioner’s case, insisting that there was “something fishy there.”
He also claimed that the assistant district attorney general who prosecuted the case
engaged in misconduct during his cross-examination of the petitioner and during the
closing argument.

              The petitioner also claimed that counsel performed deficiently by failing to
file a motion to suppress “an illegal arrest,” testifying that “the crime scene, it was
tampered with” and that the police “didn’t get all the evidence properly how they [are
supposed] to got [sic] it, and then they made mistakes.” He insisted that the police had
not reviewed the video surveillance from the convenience store “properly because the
tech said there wasn’t no [sic] video for the outside.” He contended that had the police
properly viewed the video surveillance, he “wouldn’t never have been charged because it
showed that the victim tried to run [him] over and [he] was lawfully defending” himself.
He also claimed that the police had failed to take photographs and collect relevant
evidence and that “as a personal vendetta” against the petitioner, the police “did a messy
crime scene” and “didn’t handle the evidence proper.”

              The petitioner testified that he asked counsel to raise the issue of duplicity
in the indictment, arguing that the count charging him with employing a firearm during
the commission of a dangerous felony actually charged “two different crimes in one
count of a[n] indictment.” He claimed that the charge violated double jeopardy principles
because he was punished twice for a single act during the same criminal episode against
the same victim.

               With regard to his motion to set aside fines and costs, the petitioner testified
that the State withdrew an amount each month from his inmate trust account toward the
payment of his fines and costs and that the remainder was insufficient for him to live on
in prison each month.



                                              -3-
               During cross-examination, the petitioner acknowledged that the jury
viewed the video surveillance of the incident in its entirety and that they had the benefit
of the petitioner’s testimony that he shot at Mr. Cathey in self-defense. The petitioner
also conceded that the police took photographs of the Cathey’s vehicle and that the
photographs were admitted into evidence and viewed by the jury. The petitioner
admitted that he was acquitted of the aggravated assault of Ms. Cathey, but he insisted
that his trial counsel deserved no credit for the acquittal, chalking that result up to his
own “work and effort of . . . reading through [his] motion.” The petitioner identified a
copy of the State’s notice seeking enhanced punishment and agreed that it was filed far in
advance of his trial, but he argued that it was “not the proper form.”

               Counsel, an assistant district public defender, testified that he represented
the petitioner at trial and on appeal. Counsel testified that the petitioner sent him a letter
suggesting grounds to be raised on direct appeal, and he explained to the petitioner that
those grounds could not be raised on appeal because they had not been raised in the
motion for new trial and that he had no “basis to pursue those particular grounds.”
Counsel said that, in regards to the petitioner’s claim of prosecutorial misconduct, the
district attorney’s office assigned a different assistant district attorney general to
prosecute the petitioner’s case after counsel asked that the original assistant district
attorney general be removed from the case. “Based on that,” counsel “didn’t think there
were any grounds to pursue an appeal on that.” Counsel said that he did not challenge the
consecutive alignment of the petitioner’s sentences because it was his opinion that
consecutive alignment of the firearms conviction “was mandated by law.”

                Counsel said that the petitioner had asked him to file a motion to suppress
his pretrial statement as well as a motion to have the prosecutor removed. Counsel filed
both motions, and the court held hearings on them.

               During cross-examination, counsel testified that the district attorney’s
office had an “open file” discovery policy that permitted counsel to “make copies of
whatever is in” the case file. He said that he availed himself of the opportunity to copy
all of the discovery materials and that he had reviewed the materials with the petitioner.
In particular, counsel said that he reviewed the recording of video surveillance from the
convenience store with the petitioner. He did not provide the petitioner with a copy of
the recording because the petitioner, who was incarcerated at the time, had no method to
play the video recording.

             Counsel testified that the State filed a timely notice seeking enhanced
punishment and that the petitioner was properly sentenced as a Range II offender. He
said that the petitioner received the minimum sentence for both of his convictions.
Counsel agreed that consecutive sentences were required by law in the petitioner’s case.
                                             -4-
               The post-conviction court denied relief, accrediting counsel’s testimony
and concluding that the petitioner had failed to establish by clear and convincing
evidence any facts supporting his claims of ineffective assistance. The court also found
that the petitioner had failed to prove his claim of prosecutorial misconduct. With regard
to the petitioner’s claimed double jeopardy violation, the post-conviction court found that
this court had considered and rejected this claim on direct appeal. The court found that
the petitioner had failed to prove any fact to support his claims of evidence tampering.
The post-conviction court deemed the alignment of the petitioner’s sentences “proper,”
explaining, “It was mandated consecutive and that is the law. . . . [I]t was mandated that
those sentences that ran consecutive be consecutive according to statutory requirements
in the State of Tennessee.” The post-conviction court specifically did not rule on the
petitioner’s claim for pretrial jail credits. The court granted the petitioner’s request to
waive the fines in his case but refused to waive the court costs and litigation taxes.

               In this appeal, the petitioner contends that the post-conviction court should
have granted relief because he was deprived of the effective assistance of counsel at trial
and on appeal, essentially reiterating each of the claims of deficient performance raised in
his original petition. The State asserts that the trial court did not err by denying relief.

              We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence 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. A post-
conviction petitioner bears the burden of proving his or her factual allegations by clear
and convincing evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to
the post-conviction court’s findings of fact the weight of a jury verdict, and these findings
are conclusive on appeal unless the evidence preponderates against them. Henley v.
State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn.
Crim. App. 1997). By contrast, the post-conviction court’s conclusions of law receive no
deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453
(Tenn. 2001).

               Before a petitioner will be granted post-conviction relief based upon a
claim of ineffective assistance of counsel, the record must affirmatively establish, via
facts clearly and convincingly established by the petitioner, that “the advice given, or the
services rendered by the attorney, are [not] within the range of competence demanded of
attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and
that counsel’s deficient performance “actually had an adverse effect on the defense,”
Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, the petitioner “must
show that there is a reasonable probability that, but for counsel’s unprofessional errors,
                                             -5-
the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at
694. Should the petitioner fail to establish either deficient performance or prejudice, he is
not entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).
Indeed, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697.

               When considering a claim of ineffective assistance of counsel, a reviewing
court “begins with the strong presumption that counsel provided adequate assistance and
used reasonable professional judgment to make all significant decisions,” Kendrick v.
State, 454 S.W.3d 450, 458 (Tenn. 2015) (citing Strickland, 466 U.S. at 689), and “[t]he
petitioner bears the burden of overcoming this presumption,” id. (citations omitted). We
will not grant the petitioner the benefit of hindsight, second-guess a reasonably based trial
strategy, or provide relief on the basis of a sound, but unsuccessful, tactical decision
made during the course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn.
Crim. App. 1994). Such deference to the tactical decisions of counsel, however, applies
only if the choices are made after adequate preparation for the case. Cooper v. State, 847
S.W.2d 521, 528 (Tenn. Crim. App. 1992).

              A claim of ineffective assistance of counsel is a mixed question of law and
fact. Kendrick, 454 S.W.3d at 457; Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010);
State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453,
461 (Tenn. 1999). When reviewing the application of law to the post-conviction court’s
factual findings, our review is de novo, and the post-conviction court’s conclusions of
law are given no presumption of correctness. Kendrick, 454 S.W.3d at 457; Fields, 40
S.W.3d at 457-58; see also State v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

               The petitioner first asserts that counsel performed deficiently by failing “to
establish a record for appellate review.” The petitioner’s actual complaint appears to be,
however, that counsel did not raise all of the issues that the petitioner wanted him to raise
on direct appeal. In any event, the record was adequate for our review of those issues
that counsel did raise on appeal.

              The petitioner contends that trial counsel should have raised a claim of
prosecutorial misconduct on appeal. The petitioner failed to present a single item of
evidence at the post-conviction hearing to support his claim that the charges in this case
were filed as a personal vendetta against him by a rogue assistant district attorney general
who continued to exert a nefarious influence over the proceedings even after the trial
court granted counsel’s motion to remove that particular assistant district attorney
general. In consequence, there is no merit to his contention that this claim should have
been raised on direct appeal.
                                             -6-
                The petitioner also claims counsel should have challenged his conviction of
employing a firearm during the commission of a dangerous felony on grounds that the
conviction violated double jeopardy principles because he was convicted for aggravated
assault based upon the exact same conduct. Where, as is the case here, a petitioner has
been convicted of violating two different statutes, the claim is one of multiple
description. In State v. Watkins, our supreme court adopted the Blockburger test for
multiple description claims. State v. Watkins, 362 S.W.3d 530, 556 (Tenn. 2012). “The
first step of the Blockburger test is the threshold question of whether the convictions arise
from the same act or transaction.” Id.

              If the threshold is surpassed, meaning the convictions arise
              from the same act or transaction, the second step of the
              Blockburger test requires courts to examine the statutory
              elements of the offenses. If the elements of the offenses are
              the same, or one offense is a lesser included of the other, then
              we will presume that multiple convictions are not intended by
              the General Assembly and that multiple convictions violate
              double jeopardy. However, if each offense includes an
              element that the other does not, the statutes do not define the
              “same offense” for double jeopardy purposes, and we will
              presume that the Legislature intended to permit multiple
              punishments.

Id. at 557. Although the petitioner’s convictions of aggravated assault and employing a
firearm during the commission of a dangerous felony arose from the same transaction,
those convictions do not violate principles of double jeopardy because each conviction
requires proof of a fact that the other does not. A conviction of aggravated assault
required proof that the petitioner caused Mr. Cathey “to reasonably fear imminent bodily
injury,” T.C.A. § 39-13-101(a)(2), and a conviction of employing a firearm during the
commission of attempted first degree murder does not contain such a requirement, see
T.C.A. § 39-17-1324. A conviction of employing a firearm during the commission of
attempted first degree murder required proof that the petitioner employed a firearm
during an attempt to commit a premeditated and intentional murder. See Calvin Ellison,
slip op. at 13-14 (discussing necessary elements for petitioner’s conviction). A
conviction of aggravated assault contains no such requirements. Because the petitioner’s
convictions do not offend principles of double jeopardy, counsel did not perform
deficiently by failing to challenge the convictions on double jeopardy grounds.

              The petitioner presented no evidence to suggest that trial counsel performed
deficiently by failing to “file a motion to suppress an illegal arrest.” “[T]he law is settled
                                             -7-
in this State that there is no constitutional immunity from an unlawful arrest.” Nelson v.
State, 470 S.W.2d 32, 33 (Tenn. Crim. App. 1971); see Manier v. Henderson, 442
S.W.2d 281, 282 (Tenn. Crim. App. 1969) (“There is no constitutional immunity from an
unlawful arrest.”); State v. Lindsay Ochab, No. M2015-02290-CCA-R3-CD, slip op. at 7
(Tenn. Crim. App., Nashville, Oct. 26, 2016) (“The phrase ‘suppress the arrest’ is a
syntactical anomaly . . . .”). “[T]he appropriate remedy in the criminal justice arena for
an illegal arrest is suppression of any evidence obtained as a direct or indirect result of
the arrest.” State v. Baker, 966 S.W.2d 429, 432 (Tenn. Crim. App. 1997). The
petitioner does not suggest what, if any, evidence was gathered as a result of his arrest.
Instead, he reiterates claims that the crime scene evidence was tampered with, that the
police failed to preserve video footage, and that the police failed to properly photograph
the scene. None of these claims find support in the record. In consequence, the record
does not indicate that trial counsel performed deficiently in this regard.

             The petitioner also claims that his counsel should have challenged the
consecutive alignment of the sentences imposed for his convictions of aggravated assault
and employing a firearm during the commission of a dangerous felony. The record
suggests that counsel, the prosecutor, and the trial court believed that consecutive
alignment of the petitioner’s convictions of aggravated assault and employing a firearm
during the commission of a dangerous felony was mandated under the terms of Code
section 39-17-1324. That statute provides, in relevant part:

             (c) A person may not be charged with a violation of
             subsection (a) or (b) if possessing or employing a firearm is
             an essential element of the underlying dangerous felony as
             charged. In cases where possession or employing a firearm
             are elements of the charged offense, the state may elect to
             prosecute under a lesser offense wherein possession or
             employing a firearm is not an element of the offense.

                    ....

             (e)(1) A sentence imposed for a violation of subsection (a) or
             (b) shall be served consecutive to any other sentence the
             person is serving at the time of the offense or is sentenced to
             serve for conviction of the underlying dangerous felony.

T.C.A. § 39-17-1324(c), (e)(1). The petitioner was specifically charged with and
convicted of employing a firearm during the commission of the attempted first degree
murder of Mr. Cathey. The petitioner was not convicted of the attempted first degree
murder of Mr. Cathey but was instead convicted of misdemeanor reckless endangerment.
                                            -8-
Aggravated assault, as charged in this case, could not have served as the predicate felony
for the petitioner’s conviction under Code section 39-17-1324 because use of a firearm
was an element of the offense. Under these circumstances, Code section 39-17-1324 did
not mandate consecutive alignment of the petitioner’s sentences. Thus, counsel and the
court were mistaken if it was their belief that consecutive sentencing was mandatory.

               That being said, even assuming that counsel’s failure to challenge the
sentence alignment was based upon his misapprehension of the applicable law and that
this failure amounted to deficient performance, the petitioner has failed to establish by
clear and convincing evidence that he was prejudiced by counsel’s deficient performance.
The petitioner did not exhibit to the evidentiary hearing a transcript of his sentencing
hearing. Without examining the transcript, we cannot say with certainty that the trial
court would not have elected to impose consecutive sentencing based upon one of the
permissive grounds contained in Code section 40-35-115. This is particularly true given
that the enhanced punishment notice appended to the evidentiary hearing establishes that
the petitioner had an extensive criminal history that spanned the entirety of his adult life
and included prior convictions of aggravated assault and weapons possession. In
consequence, the petitioner has failed to establish “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.

              Accordingly, we affirm the criminal court’s order denying relief.

                                                   _________________________________
                                                  JAMES CURWOOD WITT, JR., JUDGE




                                            -9-
