        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs December 11, 2012

              CHANDA LANGSTON v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                   No. 2009-A-647     Cheryl Blackburn, Judge


               No. M2012-00841-CCA-R3-PC - Filed February 22, 2013


Petitioner, Chanda Langston, pleaded guilty without a recommended sentence to six counts
of forgery and one count of theft of property valued at $60,000 or more. The trial court
imposed an effective sentence of twelve years in confinement. Following an unsuccessful
direct appeal, petitioner now claims that trial counsel rendered ineffective assistance of
counsel at the sentencing hearing. Following our review, we affirm the judgment of the post-
conviction court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which T HOMAS T. W OODALL and
N ORMA M CG EE O GLE, JJ., joined.

James O. Martin, III (on appeal), and David S. Sadlow (at post-conviction hearing),
Nashville, Tennessee, for the appellant, Chanda Langston.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and James Milam and Bret Gunn,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                        OPINION

                             I. Facts and Procedural History

                        A. Facts from the Guilty Plea Proceeding

       Petitioner pleaded guilty in the Davidson County Criminal Court to six counts of
forgery between $1,000 and $10,000, a Class D felony, and one count of theft of property
valued at more than $60,000, a Class B felony. State v. Chanda Dawn Langston, No.
M2009-02247-CCA-R3-CD, 2010 WL 3822829, at *1 (Tenn. Crim. App. Sept. 30, 2010).
The terms of the plea provided that the trial court would determine petitioner’s length of
sentence and manner of service. Id. The trial court held a sentencing hearing, at which the
following evidence was received:

              At the sentencing hearing, Barry Canter, the victim, testified that he was
       the owner and operator of Cooks Orthopedics and Putnam County Orthopedic
       Appliance Company. He said that he employed [petitioner] as a bookkeeper
       and that she worked at his businesses for over six years. He said he noticed
       unexplained money discrepancies and asked the [petitioner] if she knew the
       source of the problems. Mr. Canter said [petitioner] responded by stating that
       she did not know anything and that she did not think accountants or billing
       agents were responsible. Mr. Canter stated that after this conversation, his
       wife noticed a company check written to [petitioner] for $1,600. He said that
       he and his attorney confronted [petitioner] with the check and that she
       admitted forging it.

               Mr. Canter testified that he had evidence showing that [petitioner]
       forged 149 company checks, beginning in July 2004 and continuing until
       October 2008, for a total loss of $233,285.79. He said the indictment reflected
       only a portion of this loss, charging [petitioner] for forging fifty-five company
       checks, from January 2007 until October 2008, for a loss of about $106,000.
       Mr. Canter said [petitioner]’s actions forced him to borrow $200,000, secured
       by a second mortgage on his home, to keep his companies running. He said
       that he and his wife worked longer hours six days a week and earned reduced
       pay or no pay in an attempt to save the companies. He said that he was unable
       to pay employee commissions or bonuses. Mr. Canter stated that ordering
       [petitioner] to pay restitution would not help the financial health of his
       companies, as it would take [petitioner] more than thirty years to repay the
       amount taken.

              Metropolitan Nashville Police Detective Casey Stupka testified that she
       investigated the forgeries and theft. She stated that [petitioner] was authorized
       to write company checks for legitimate company purposes. She determined
       that [petitioner] made company checks payable to herself and recorded the
       missing money as payment to company vendors. Detective Stupka said that
       she obtained a subpoena for [petitioner]’s bank account records and that she
       examined how [petitioner] spent the money taken. She said [petitioner] spent
       the money on fast food, a 2006 Dodge Durango, gasoline, and consumer



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goods. She stated [petitioner] appeared to be supporting multiple people with
the money.

        [Petitioner] acknowledged that she forged 149 company checks, that
she took company money and placed it in her personal bank account, and that
her actions caused Mr. Canter and his companies financial trouble. She said
she knew her actions would be discovered, and she acknowledged there was
no justification for her acts. She stated that she did not tell Mr. Canter the
truth when he first asked about the missing money because he did not ask if
she was the person who took the money and because he did not suspect her at
that time.

        [Petitioner] expressed remorse. [Petitioner] testified that she wanted to
repay the money taken but doubted if she could ever repay the full amount.
[Petitioner] stated that she would attempt to pay at least half of her salary as
restitution if she received an alternative sentence but that she would likely be
unable to pay more than $250 per month even if she were able to obtain a good
job.

       [Petitioner] testified that she supported up to fifteen people with the
money taken from Mr. Canter, including friends and family. She stated that
she spent some of the money on necessities. She admitted she spent hundreds
of dollars on hotel rooms and more than $300 per month on cellular telephones
for herself and her boyfriend.

      The trial court found that the following enhancement factors applied
pursuant to Tennessee Code Annotated section 40-35-114:

(1)    [petitioner] had a previous history of criminal behavior;

(6)    the amount of damage to property sustained by or taken from the victim
       was particularly great; and

(14)   [petitioner] abused a position of private trust.

See T.C.A. § 40-35-114 (Supp. 2009). The trial court found no mitigating
factors applicable.

       [Petitioner] was sentenced to four years’ confinement for each of the six
forgery convictions and twelve years’ confinement for the theft conviction.

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       The sentences were imposed concurrently, for an effective sentence of twelve
       years’ confinement. The trial court denied [petitioner]’s request for alternative
       sentencing, stating that confinement was necessary to avoid depreciating the
       seriousness of the offense and was particularly suited to provide an effective
       deterrence to others likely to commit similar offenses. . . .

Id. at *1-2.

       On direct appeal, appellant contended that her effective sentence was excessive. She
also challenged the trial court’s denial of her request for alternative sentencing. Id. at *2.
This court affirmed the judgments of the trial court. Id.

                                   B. Procedural History

        Petitioner filed for post-conviction relief in July 2011. Following appointment of
counsel by the post-conviction court, she filed an amended petition through counsel in
October 2011. The amended petition challenged the voluntariness of her guilty plea and
raised the issue of ineffective assistance of counsel at her sentencing hearing. The post-
conviction court held an evidentiary hearing on February 12, 2012, at which petitioner and
trial counsel testified.

                           C. Facts from the Evidentiary Hearing

       Petitioner testified that her fiancé retained trial counsel on her behalf. Trial counsel
represented her at the guilty plea submission hearing, the sentencing hearing, and on appeal.
Petitioner stated that she entered her guilty plea on advice of counsel. She further stated that
she only met with him for ten to fifteen minutes on court dates. She explained that trial
counsel gave her no guidance with respect to her other options aside from pleading guilty.
He told her that she was going to have a sentencing hearing and that he had the paperwork
prepared. Petitioner said that trial counsel explained the charges against her but nothing else.
She stated that she did not receive discovery. She further testified that trial counsel did not
explain any favorable treatment she might receive by pleading guilty instead of standing trial.
Her understanding was that she would receive probation by pleading guilty. When she
subsequently learned that she would have a sentencing hearing, she was “kind of confused
and a little upset.”

       At the time of her plea, petitioner understood that she would plead guilty and have a
sentencing hearing that would include a determination of whether the court would suspend
her sentence and place her on probation. After she entered the guilty plea, trial counsel
informed her that the minimum sentence she could receive was eight years and the maximum

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was twelve years. Petitioner testified that based on what she understood to be the range of
punishment, it “probably” would have affected her decision to plead guilty, and she would
have elected to stand trial.

        She stated that trial counsel did not prepare her for the sentencing hearing. She also
recalled that trial counsel was frequently late for court appearances and failed to appear on
occasion. Petitioner testified that she did not feel that she made an informed decision with
regard to pleading guilty. She was pregnant at the time and was “emotionally distressed.”
She was suffering a high-risk pregnancy and was not receiving proper medical care.
Petitioner believed that her physical condition impacted her ability to process and understand
the circumstances of her case. Based on her physical state, petitioner did not believe that her
guilty plea was freely and voluntarily entered.

       Petitioner recalled that on the day of the sentencing hearing, trial counsel was
approximately two and one-half hours late to court. She recalled that counsel’s tardiness
caused the trial judge to be late for another appointment. Petitioner sensed that the trial judge
was “very upset” and that she received a harsher sentence because of trial counsel’s tardiness.
Trial counsel presented petitioner as the only witness at the sentencing hearing.

       On cross-examination, petitioner acknowledged that she had testified at her bond
hearing and admitted her guilt. She admitted that she knew she was guilty but said that she
did not deserve a twelve-year sentence. She confirmed that her primary complaint was the
length of her sentence.

       The State reviewed the transcript of petitioner’s guilty plea submission hearing with
her during cross-examination. In the transcript, the trial court explained to petitioner that if
she received a ten-year sentence, she would be eligible for probation, but if she were
sentenced to a greater term, she would have to serve the sentence in the department of
correction. At the plea submission hearing, the trial court clarified, “I guess the worst case
scenario for you is that you could get a 12[-]year sentence and I could make you serve it in
the [d]epartment of [c]orrection[ ]. Do you understand that’s a possibility?” Petitioner
responded affirmatively. She acknowledged that the transcript correctly reflected the
colloquy. She also admitted that “regardless of what [trial counsel] did or didn’t tell [her],
the judge told [her] . . . in open court” that she might receive a twelve-year sentence to be
served in prison. Petitioner stated that while trial counsel could not have presented any
witnesses to testify that she was not guilty, he should have presented character witnesses at
the sentencing hearing to demonstrate that she acted under extenuating circumstances.

       Petitioner clarified that when she appeared in court to enter her guilty plea on July 9,
2009, she thought she “was coming in . . . to sign off on probation.” Someone informed her

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that her probation had “fell [sic] through,” and she would have a sentencing hearing at a later
time. She admitted that when she pleaded guilty, she knew that probation was not
guaranteed. Petitioner stated that she felt rushed to give her testimony at the sentencing
hearing.

       The post-conviction court questioned petitioner about why she persisted in a guilty
plea when she learned that she was not guaranteed probation. Petitioner stated that she was
scared and that trial counsel told her it was in her best interest to plead guilty and have a
sentencing hearing. Petitioner told the court that trial counsel should have called her fiancé
as a witness but then admitted that he would have testified that she was supporting a drug
habit for him and other people. Petitioner stated that she was unaware that the jury was not
involved in sentencing. She thought that if her convictions and sentences were set aside, she
could be sentenced by a jury.

        Trial counsel testified that he represented petitioner from her bond hearing through
the sentencing hearing. He stated that he met with petitioner’s fiancé “no less than six or
seven” times, sometimes on Sundays. Trial counsel worked toward securing a plea involving
probation for petitioner but never guaranteed her that she would receive it. He
communicated with the prosecutor several times, but they could not reach an agreement. The
prosecutor informed trial counsel that the only way petitioner could receive any form of
alternative sentencing was for her to enter a guilty plea without a recommended sentence.
Trial counsel explained to petitioner that it was the only chance she had to get probation, or
she would have to stand trial on every count of the indictment. He explained that if the jury
convicted her, the trial court would determine whether the sentences would be served
concurrently or consecutively, and she faced the potential of a lengthy sentence. Trial
counsel testified that petitioner decided to enter a guilty plea and to submit the sentencing
determination to the trial court because she did not have a criminal record and had formulated
a restitution plan.

        Trial counsel stated that he met with petitioner at court appearances. He noted that
he never missed a court date and explained that petitioner may have thought he was not
present because on discussion dates, inmates are not always brought up to the courtroom
from the jail. He testified that he was late for petitioner’s sentencing hearing because he was
involved in a hearing in another courtroom. Trial counsel recounted telling petitioner that
he did not need to call additional witnesses at the sentencing hearing because their testimony
would have been cumulative and because they had shared in the proceeds of petitioner’s
crimes. In addition, he did not want to expose them to criminal liability. Although trial
counsel’s tardiness made the trial judge late for an appointment, trial counsel was aware that
he could have asked to bifurcate the hearing and continue it at a later time. He stated that if
it had been helpful to his client, he would have done so.

                                              -6-
       Following the hearing, the post-conviction court denied relief by written order dated
April 8, 2012.

                            II. Ineffective Assistance of Counsel

       In her brief, petitioner stated, “Petitioner respectfully submits to this Honorable Court
only the error of the [post-conviction] court in failing to grant a new sentencing hearing
based on the ineffective assistance of counsel.” As such, petitioner’s challenge to the
voluntariness of her guilty plea is abandoned and will not be addressed herein. See Ronnie
Jackson, Jr. v. State, No. W2008-02280-CCA-R3-PC, 2009 WL 3430151, at *6 n.2 (Tenn.
Crim. App. Oct. 26, 2009) (“While the Petitioner raised additional issues in his petition for
post-conviction relief, he has abandoned those issues on appeal”).

                                   A. Standard of Review

        To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that
his or her “conviction or sentence is void or voidable because of the abridgement of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn.
Code Ann. § 40-30-103 (2012). A post-conviction petitioner bears the burden of proving his
or her allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f)
(2012). “‘Evidence is clear and convincing when there is no serious or substantial doubt
about the correctness of the conclusions drawn from the evidence.’” Lane v. State, 316
S.W.3d 555, 562 (Tenn. 2010) (quoting Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn.
2009)).

        Appellate courts do not reassess the trial court’s determination of the credibility of
witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing R.D.S. v. State, 245
S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of witnesses is a matter entrusted
to the trial judge as the trier of fact. R.D.S, 245 S.W.3d at 362 (quoting State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996)). The post-conviction court’s findings of fact are conclusive on
appeal unless the preponderance of the evidence is otherwise. Berry v. State, 366 S.W.3d
160, 169 (Tenn. Crim. App. 2011) (citing 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)). However, conclusions
of law receive no presumption of correctness on appeal. Id. (citing Fields v. State, 40 S.W.3d
450, 453 (Tenn. 2001)). As a mixed question of law and fact, this court’s review of
petitioner’s ineffective assistance of counsel claims is de novo with no presumption of
correctness. Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011) (citations omitted).

      The Sixth Amendment to the United States Constitution, made applicable to the states
through the Fourteenth Amendment, and article I, section 9 of the Tennessee Constitution

                                              -7-
require that a criminal defendant receive effective assistance of counsel. Cauthern v. State,
145 S.W.3d 571, 598 (Tenn. 2004) (citing Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975)).
When a petitioner claims that he received ineffective assistance of counsel, he must
demonstrate both that his lawyer’s performance was deficient and that the deficiency
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Finch v. State,
226 S.W.3d 307, 315 (Tenn. 2007) (citations omitted). It follows that if this court holds that
either prong is not met, we are not compelled to consider the other prong. Carpenter v. State,
126 S.W.3d 879, 886 (Tenn. 2004).

       To prove that counsel’s performance was deficient, petitioner must establish that his
attorney’s conduct fell below an objective standard of “‘reasonableness under prevailing
professional norms.’” Finch, 226 S.W.3d at 315 (quoting Vaughn v State, 202 S.W.3d 106,
116 (Tenn. 2006)). As our supreme court has previously held:

       “[T]he assistance of counsel required under the Sixth Amendment is counsel
       reasonably likely to render and rendering reasonably effective assistance. It is
       a violation of this standard for defense counsel to deprive a criminal defendant
       of a substantial defense by his own ineffectiveness or incompetence. . . .
       Defense counsel must perform at least as well as a lawyer with ordinary
       training and skill in the criminal law and must conscientiously protect his
       client’s interest, undeflected by conflicting considerations.”

Id. at 315-16 (quoting Baxter, 523 S.W.2d at 934-35). On appellate review of trial counsel’s
performance, this court “must make every effort to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct
from the perspective of counsel at that time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn.
2006) (citing Strickland, 466 U.S. at 689).

         To prove that petitioner suffered prejudice as a result of counsel’s deficient
performance, he “must establish a reasonable probability that but for counsel’s errors the
result of the proceeding would have been different.” Vaughn, 202 S.W.3d at 116 (citing
Strickland, 466 U.S. at 694). “A ‘reasonable probability is a probability sufficient to
undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at 694). As such,
petitioner must establish that his attorney’s deficient performance was of such magnitude that
he was deprived of a fair trial and the reliability of the outcome was called into question.
Finch, 226 S.W.3d at 316 (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999)).




                                             -8-
                B. Ineffective Assistance of Counsel at the Sentencing Hearing

       Petitioner contends on appeal that trial counsel rendered ineffective assistance during
the sentencing hearing by failing to meet with petitioner prior to the hearing, arriving late to
the hearing, and failing to call any witnesses to testify on her behalf.

       We first note that in the post-conviction court, petitioner raised the issue of trial
counsel’s failure to meet with her in the context of her challenge to the voluntariness of her
guilty plea. Thus, the post-conviction court addressed this claim in the context in which it
was framed in that court. In the context of the voluntariness of petitioner’s guilty plea, the
post-conviction court rejected this claim of error, stating:

               It is uncontroverted that Petitioner was given the opportunity to confer
        with [trial counsel] regarding her plea agreement. Petitioner testified at the
        evidentiary hearing that she entered the plea based on the advice of [trial
        counsel.] [Trial counsel] testified that he explained the circumstances
        surrounding Petitioner’s plea – including the option to go to trial and face
        sentencing or enter a guilty plea and be sentenced by the Court after a
        sentencing hearing. . . . [Trial counsel] also explained that he advised
        Petitioner that her only chance for probation in her case was to enter a plea and
        hope the judge would sentence her to probation as she was eligible to be
        considered for alternative sentencing. The Court credits the testimony of [trial
        counsel.

Because the record supports the post-conviction court’s findings of fact, we afford them the
weight of a jury verdict. Berry, 366 S.W.3d at 169 (citing Henley, 960 S.W.2d at 578-79).
Moreover, petitioner has failed to establish how she was prejudiced by trial counsel’s failure
to meet with her additional times. She is not entitled to relief on this claim.

       Petitioner asserts that trial counsel’s late arrival to her sentencing hearing inured to
her prejudice.1 In its order, the post-conviction court concluded:




        1
          To be sure, petitioner does not claim that trial counsel’s tardiness caused the trial court to sentence
her more harshly. At the evidentiary hearing, the post-conviction court addressed petitioner’s counsel,
“[T]he implication seems to be that whatever irritation I might have with [trial counsel] being late, that I
would take it out on his client as opposed to him. And I’m just wondering if that’s a matter you want to
pursue further in case you need to do that in front of another judge. . . .” Post-conviction counsel replied,
“No. To the extent I inferred that, I apologize to Your Honor because I think Your Honor also indicated her
willingness to continue the matter . . . .”

                                                      -9-
               While the Court has a preference for the punctuality of attorneys who
       are scheduled to appear, tardiness, in and of itself, cannot rise to the level of
       ineffective assistance of counsel. Although [trial counsel] was more than two
       hours late to the hearing, the hearing was still able to take place[,] and there is
       no evidence that the hearing was rushed in order to meet the time constraints.
       Had additional testimony been requested, as [trial counsel] noted in his
       testimony, this Court would have bifurcated the proceeding as it has routinely
       done when needed. [Trial counsel’s] tardiness was described in his testimony
       at the post-conviction hearing as resulting from the other hearing running
       abnormally long and his not being allowed to leave by the other court. This
       Court’s afternoon docket on August 20, 2009, contained only two hearings –
       the first of which had already been completed. Thus, there was ample time for
       the proceeding[,] and the argument that the hearing was unnecessarily hurried
       due to her counsel’s tardiness is not supported by the record. Petitioner has not
       demonstrated by clear and convincing evidence that the delay in her sentencing
       constituted ineffective assistance of counsel.

The record supports the post-conviction court’s findings of fact. Moreover, petitioner has
failed to demonstrate that she was prejudiced by trial counsel’s late arrival to her sentencing
hearing. She is not entitled to relief on this claim.

         Finally, petitioner claims that trial counsel erred by failing to call additional witnesses
to testify at her sentencing hearing. The post-conviction court noted that trial counsel “made
the strategic decision not to call [other witnesses], stating that the witnesses would not only
be cumulative in light of the evidence already in the record[,] but their testimony that they
were individuals who spent the stolen funds would have subjected them to criminal and/or
civil liability.” The post-conviction court credited trial counsel’s testimony. In addition, as
the post-conviction court properly noted in its order denying relief, “[w]hen a petitioner
contends that trial counsel failed to discover, interview, or present witnesses in support of
his defense, these witnesses should be presented by the petitioner at the evidentiary hearing.”
See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).

        We agree with the post-conviction court’s findings. Trial counsel explained that he
had a legitimate reason for not calling additional witnesses. This court has held the failure
to call specific witnesses to be a “legitimate trial tactic” in some cases. Scott v. State, 936
S.W.2d 271, 273 (Tenn. Crim. App. 1996). In addition, petitioner has not demonstrated that
she was prejudiced by trial counsel’s failure to call other witnesses. “[She] did not present
the testimony of any uncalled witnesses or otherwise present any evidence that would have
made a difference if presented. . . .” Id. We deny petitioner relief on this claim.



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                                     CONCLUSION

       After a thorough review of the record, the parties’ briefs, and the applicable law, we
affirm the judgment of the post-conviction court.

                                                   _________________________________
                                                   ROGER A. PAGE, JUDGE




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