        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                 May 19, 2015 Session

                   CODY COFER v. STATE OF TENNESSEE

               Appeal from the Circuit Court for Cumberland County
                     No. 090016    David A. Patterson, Judge


              No. E2014-01844-CCA-R3-PC – Filed September 28, 2015


The Petitioner, Cody Cofer, appeals from the denial of post-conviction relief by the
Circuit Court for Cumberland County. He was convicted of two counts of felony murder
and one count of attempted especially aggravated robbery, for which he received
consecutive life sentences and a concurrent twelve-year sentence. On appeal, the
Petitioner argues that he received ineffective assistance of counsel at both the trial and
appellate levels. 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

CAMILLE R. MCMULLEN, J., delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J., and D. KELLY THOMAS, JR., J., joined.

Gregory P. Isaacs and J. Franklin Ammons, Knoxville, Tennessee, for the Petitioner,
Cody Cofer.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Randall A. York, District Attorney General; and Amanda Worley, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

        This case arises from the shooting deaths of the victims, Keith Patton and William
Asher, during a home invasion on November 7, 2008, in Crab Orchard, Tennessee. As a
result, the Cumberland County Grand Jury indicted the Petitioner for two counts of
felony murder and one count of attempted especially aggravated robbery. Co-defendants
Alexander Carino, Joshua Hutson, and Amanda Spence were also implicated for their
participation in these offenses. A full recitation of the underlying facts can be found in
this Court‟s opinion on direct appeal. See State v. Cody Cofer, No. E2011-00727-CCA-
R3-CD, 2012 WL 3555310, at *1-14 (Tenn. Crim. App. Aug. 20, 2012), perm. app.
denied (Tenn. Dec. 10, 2012).

       The evidence at trial established that on November 7, 2008, a group of people had
gathered at Patton‟s residence after a birthday dinner at a local restaurant. Id. at *1. Five
individuals, including Patton and Asher, were seated in the living room when two armed
men entered Patton‟s home and demanded money. Id. The first man who entered the
room was significantly taller and carried an assault rifle. The second man was armed
with a pistol. Both intruders were dressed in black and wearing masks and gloves. Id. at
*2. When Patton stood up from his chair and approached the men, they began to fire
their weapons. Id. After the shooting, a third masked man appeared at the doorway to
see what had happened. The man armed with the pistol ordered the third man to “get out
there and watch out.” Id. Patton was lying on the floor with visible gunshot wounds, and
Asher remained on the couch gasping for air. Id. at *2-3. The intruders fled the scene in
what appeared to be a black Kia. Id. Eyewitnesses were unable to identify the race of the
three masked men. Id. at *2.

        At trial, the State presented co-defendants Joshua Hutson and Amanda Spence as
key witnesses. See id. at *4-7. Hutson testified that on the evening of November 7,
2008, his girlfriend at the time, Anna Claire Daniels, drove him to a Taco Bell in Oak
Ridge to meet with the Petitioner and Alexander Carino. Id. at *4, *7. The Petitioner
then drove with Carino and Hutson to Cumberland County in a “dark colored four door
Kia” and Daniels returned to Knoxville. Id. According to Hutson, Daniels was not
involved in the plan, but she was aware that the three men were going to rob someone.
Id. at *4.

       On the way to Cumberland County, the men stopped at the Petitioner‟s home in
Kingston to retrieve black clothing. Id. at *4, *8. After arriving in Cumberland County,
the men drove to Amanda Spence‟s home where they discussed the robbery. Id. at *4.
Spence knew the location of Patton‟s home and provided the men with a diagram of the
layout of the residence. Id. Hutson then drove the Kia and took Carino and the Petitioner
to Patton‟s home. He parked in Patton‟s driveway as Carino entered the home first,
armed with an assault rifle, followed by the Petitioner, who was carrying a pistol. Id.
After the shooting, Hutson fled on foot through the woods. He had both his own and
Carino‟s cell phone and keys in his possession, and he attempted to call Daniels. Id. at
*4-5. He was able to reach the Petitioner, who was with Carino. The Petitioner informed
Hutson that they had left Patton‟s home and that Spence would pick him up. Id. at *5.
Hutson was then arrested and taken into custody that evening. Id.

       Co-defendant Amanda Spence testified that she provided information to Carino
regarding Patton‟s home as a robbery target. Id. She knew Carino as “Reno” but she did
                                            -2-
not meet the Petitioner until the night of the shooting. Throughout the day on November
7, 2008, she received several phone calls from Carino, and they communicated through
text message. Id. at *6. That night, when Spence returned to her house, she saw a black
four-door Kia, as well as Carino, Hutson, and the Petitioner. Id. About thirty minutes to
an hour after the three men went to Patton‟s residence, Spence received an incoming call
on her cell phone from an “865” number. Id. When she answered the phone, the
Petitioner yelled that things did not go as planned. He also told her to pick Hutson up
from Patton‟s home. Spence testified that she could recognize the Petitioner‟s “distinct
accent” which was “really ghettoish.” Id. When Spence called Carino, Hutson answered
the phone. She said she exchanged multiple calls with Hutson and the Petitioner in a
“panic type situation.” Id. She informed Carino that Hutson was arrested, and Carino
told her they were returning to Knoxville. The following day, Spence was arrested. Id.

       The proof from the Petitioner‟s trial most relevant to the issues raised in his
petition for post-conviction relief pertains to the testimony of Anna Claire Daniels. In its
opinion on direct appeal, this Court summarized the evidence as follows:

               Anna Claire Daniels testified that she had known Hutson since the
       two were in sixth grade and were dating at the time of these events.
       Daniels said that she also knew Carino, through Hutson, and the
       [Petitioner], with whom she went to kindergarten. Daniels testified that, on
       the day of the shooting, she and Hutson spent the morning and afternoon
       together. At some point, she drove Hutson to a Taco Bell in Oak Ridge,
       Tennessee to meet the [Petitioner] and Carino. Daniels said that she
       returned to Knoxville while the three men planned to drive to Crossville in
       a black Kia. She said that “they had bad intentions” to “settle a dispute.”
       Hutson and Daniels had contact after she dropped him off at the Taco Bell,
       but Hutson became “very short” and evasive as to where he was and what
       he was doing. Daniels said she sent a text message to Hutson, but he did
       not respond. Daniels said that she fell asleep at her home and, when she
       woke up around 11:30 p.m., she noticed she had missed several phone calls
       from Hutson at around 10:30 p.m. Daniels said that she suspected that
       “something wasn‟t right” when she returned Hutson‟s phone calls, and
       Hutson‟s cellular phone was turned off. Daniels said she then called
       Carino‟s girlfriend, Ashley Snow, and learned that the men needed a ride.

               Daniels testified that she, along with Snow and one of Snow‟s
       friends, drove to a BP gas station in Solway, Tennessee, to meet Carino and
       Hutson. When she arrived, however, she found Carino and the [Petitioner].
       When she inquired about Hutson, she was told “they‟ve got him.” She later
       learned that Hutson was not there because he had been arrested. Carino and
                                            -3-
      the [Petitioner] began taking items out of the vehicle they had been driving,
      a red Explorer, and placing the items in Daniels[‟s] car. Daniels said that
      Carino got into her car, and the [Petitioner] left. As Daniels drove back to
      Hutson‟s apartment with Carino, Snow, and Snow‟s friend, she began to
      understand what had occurred based on the conversation in the car. Daniels
      recalled that she turned onto a side road in Karns by a baseball field, and
      Carino got out of the car. Daniels said that she was instructed to turn the
      car around. She did so and when she returned to where Carino had exited
      her car, she saw his shoes burning on the side of the road. Carino got back
      into the car, and Daniels drove to Hutson‟s apartment.

             Daniels testified that, as the night progressed, she grew more
      concerned about Hutson and what had occurred in Cumberland County.
      The following day, she contacted police and provided information about
      Carino‟s location, and he was later arrested. Daniels said that she also gave
      a statement to police and assisted [TBI] Agent [Tommy] Calahan in finding
      the area where Carino burned his shoes. Daniels testified that she and
      Hutson were no longer in a relationship, although she had spoken with him
      “a couple of weeks ago.”

              On cross-examination, Daniels agreed that Hutson was the source of
      most of the information she provided to police. From Hutson, she had
      learned that the three men were going to “see about marijuana and possibly
      fifty thousand dollars.” Daniels said that she dropped Hutson off at a Taco
      Bell to meet Carino and the [Petitioner] at 6:30 or 7:00 p.m. eastern time.
      Daniels said that she met the [Petitioner] and Carino at the BP gas station at
      around midnight eastern time.

Id. at *7-8. To further corroborate the Petitioner‟s participation in the shooting and
robbery, the State introduced evidence that law enforcement executed a search warrant at
the Petitioner‟s home in Kingston, Tennessee on November 10, 2008. Authorities
recovered a Motorola AT&T cell phone and a pair of Nike shoes. Id. at *8. An AT&T
employee testified that the subscriber of the recovered phone was “Cody Coser” and that
the phone number was 865-XXX-3032. Id. at *9. Investigator Jeff Slayton of the
Cumberland County Sheriff's Department testified that Hutson was apprehended first and
that he had two cell phones in his possession. Hutson was the subscriber to one of the
phones, and the number of the other phone was listed in his “Contacts” section as
“Reno.” Id. Hutson‟s phone also included the contact for phone number 865-XXX-3032
as “Cody C.” Id. at *10. The same phone number was listed in Carino‟s phone as
“Cofer.” Id.

                                           -4-
       TBI agent Tommy Calahan interviewed Daniels on the evening of November 9,
2008. Id. at *12. He also obtained cell phone records pertaining to the Petitioner,
Carino, Hutson, and Spence, and submitted the phones to TBI Technical Services for
forensic analysis. Id. Agent Calahan testified extensively regarding the cell phone
communication between Carino, Spence, and the Petitioner on the day of the offense.
This Court summarized the State‟s evidence as follows:

              Agent Calahan testified about text messages that were sent after the
      shooting. He said that these messages occurred primarily between Spence
      and the [Petitioner], who Spence had just met. Agent Calahan said that
      Spence told investigators that she did not know the [Petitioner]‟s cell phone
      number until she received a phone call that night from an unknown number
      that she learned was the [Petitioner]‟s number when she answered the
      phone call. Agent Calahan confirmed that the [Petitioner]‟s cell phone
      number was not in Spence‟s list of contacts on her phone. The text
      messages between the [Petitioner]‟s cell phone and Spence‟s cell phone
      began after the [Petitioner] placed a phone call to Spence, which occurred
      after the shooting. At 10:39 p.m., a text message was sent from Spence‟s
      cell phone to the [Petitioner]‟s cell phone, stating “Tell Reno to call me,
      UMMA DO ME.” Agent Calahan said this text is significant in that Hutson
      had Carino‟s cellular phone. At 3:10 a.m. on November 8, a text message
      was sent from Spence‟s cellular phone to the [Petitioner]‟s cellular phone
      stating, “Hey, they got dude under investigative hold „til Monday.”

              Agent Calahan testified that he also compiled a record of actual
      calls. Agent Calahan identified a phone call between Hutson and the
      [Petitioner] at 2:29 p.m. on November 7, 2008. The location of the cell
      tower used to connect the [Petitioner]‟s call was in Oak Ridge, Tennessee.
      Agent Calahan said that this was consistent with the [Petitioner]‟s text
      message at 3:52 p.m. to Carino that indicated he was in “Da Ridge.” Agent
      Calahan testified that an incoming phone call at 4:09 p.m. from Hutson‟s
      cell phone indicated use of the Oak Ridge Tower, which showed the
      [Petitioner]‟s continued presence in Oak Ridge. Agent Calahan noted that
      Autumn Hale, who owned the black Kia, lived in Oak Ridge. Agent
      Callahan summarized the contents of the cellular phone call records,
      explaining that few calls were placed before the homicide and the “cell
      phones [went] crazy” among the relevant parties after the homicide. Agent
      Calahan testified that the first phone call placed from the [Petitioner]‟s
      cellular phone after the shooting was to Carino‟s cellular phone, which was
      in Hutson‟s possession. After the phone call to Carino‟s cellular phone,
      there were two phone calls placed to Spence‟s cellular phone. The cell
                                           -5-
       phone tower used to connect the call for the [Petitioner]‟s phone was
       located in Crab Orchard, Tennessee. Phone calls continued to be placed
       and received from the [Petitioner]‟s cellular phone, and the records
       indicated that the cell towers used included those in Crab Orchard, Ozone,
       Futrell Lane, Rockwood, Kingston, and Oak Ridge. Agent Calahan said
       that the record of the cell towers used indicated that the [Petitioner] left
       Crab Orchard after the shooting and traveled to Oak Ridge and Knoxville.
       Agent Calahan also noted that the records showed a “dead time,” with no
       phone usage for thirty-eight minutes, from 8:55 p.m. to 9:33 p.m., which is
       the time frame of the homicides.

              Agent Calahan testified that, based on his investigation, he suspected
       that the weapons might be located in or along the Clinch River, which runs
       between Cumberland County and Oak Ridge. Agent Calahan identified the
       Smith and Wesson .40 caliber pistol and the Nato .223 caliber assault rifle,
       which were recovered within feet of each other in the Clinch River, below
       the Highway 58 bridge. TBI testing confirmed that these two weapons
       were used in the homicides.

Id. at *13-14. At trial, the State also introduced evidence that on April 5, 2009,
correctional officer Wilson White of the Cumberland County Sheriff‟s Department
observed the Petitioner slip Carino a piece of paper immediately after the inmates had
breakfast. Id. at *11. Correctional officers retrieved the coded note, which was
deciphered for the jury as follows:

       [M]an, did you not hear, they have nuttin on da car, it was clean. It wasn‟t
       up here, who went in the crib with dude, no witnesses saw a car there. The
       police know girl was in the area, tried to pick dude up. What‟s girl‟s name
       when was at Amanda‟s? Dud girl don‟t know if I came up here or not.
       Some witness say a n---a was in the house. Did you put the clip in the little
       strap? You gotta know. Did you have any text in your phone? I trashed
       mine. They can‟t place, prove I had my phone. Witnesses saw two, they
       think three, but not for sure. Did you get back your motion of discovery?
       Answer all my questions. Do you think you put the clip in that, then
       handed it back?

Id. at *12.

       Based on the above evidence, the jury convicted the Petitioner as charged of two
counts of felony murder and one count of attempted especially aggravated robbery. Id. at

                                            -6-
*14. This Court summarized the proof presented at the Petitioner‟s sentencing hearing as
follows:

              Danny Williams, a Board of Probation and Parole officer, testified
       that he prepared the investigative report for sentencing. Williams read the
       following statement submitted by the [Petitioner], as to his version of the
       events, “I let someone use my phone and they were involved in the crime of
       robbery and murder. No involvement, but my cell phone.”

              Williams summarized the [Petitioner]‟s criminal history, which
       consisted of two convictions for driving without a drivers‟ license, an
       evading arrest conviction, a driving on a suspended license conviction, a
       criminal impersonation conviction, a disorderly conduct conviction, and
       two misdemeanor convictions for marijuana possession. These offenses
       occurred between 2004 and 2007. Williams said that the [Petitioner]‟s
       record indicated that three probation violations were filed but were
       subsequently dismissed. Williams said that, at the time these offenses were
       committed, the [Petitioner] had pending charges and was out of jail on bond
       for the sale and delivery of marijuana in Knox County. Williams said that
       the Knox County charges were dismissed after the [Petitioner]‟s trial in this
       case. Williams said that the [Petitioner] admitted marijuana use since he
       was fifteen years old and use of ecstasy. Terry Patton, Patton‟s sister, read
       her victim impact statement at the sentencing hearing.

The trial court sentenced the Petitioner to consecutive terms of life imprisonment and a
concurrent twelve-year sentence. See id. at *15.

        On direct appeal, the Petitioner argued that the evidence was insufficient to
establish his identity as a participant in the offenses and that the trial court erred by not
declaring Anna Claire Daniels as an accomplice as a matter of law. Id. at *15, *18. The
Petitioner further asserted that the trial court erred by failing to charge the jury with a
missing witness instruction, that the State‟s closing argument was improper, and that the
trial court imposed an excessive sentence. Id. at *1. This Court affirmed the Petitioner‟s
sentences and convictions, and the Tennessee Supreme Court denied his application for
permission to appeal on December 10, 2012.

        On June 26, 2013, the Petitioner filed a timely pro se petition for post-conviction
relief alleging the denial of effective assistance of counsel. He later filed an amended pro
se petition on August 21, 2013. On December 9, 2013, the Petitioner filed a second
amended petition with the assistance of counsel. The post-conviction hearing occurred
on August 27, 2014.
                                            -7-
        Post-Conviction Hearing. At the post-conviction hearing, Anna Claire Daniels
testified, in large part, consistently with her testimony at trial. She stated that she began
dating Joshua Hutson in 2004 and that they ended their relationship a few weeks before
the Petitioner‟s trial in November 2010. Daniels said that Hutson did not provide her
with many details about his plans for the evening of November 7, 2008. It was her
understanding that some people in Cumberland County owed Carino and the Petitioner
money from a bad drug deal, and the two men needed Hutson‟s help. She acknowledged
that the plan involved robbing someone of drugs and money.

        Daniels agreed that she dropped Hutson off at the Taco Bell in Oak Ridge that
afternoon and that she drove to the BP gas station in Solway at around midnight. She
explained that the BP station was located between Oak Ridge and Knoxville and that she
went there expecting to pick Hutson up. She said that Carino and the Petitioner placed
items in her car, though she did not know what the items were. At the time, Daniels was
concerned about Hutson‟s whereabouts. However, Carino would not disclose what had
happened despite her repeated questioning. She said she let Carino out of her car at a
baseball field in Karns because he was very anxious and was ordering her to do things.
She turned her car around as instructed, and she denied knowing that Carino intended to
destroy certain items. When Daniels asked Carino why his shoes were burning, he
remained vague and just repeated that something bad had happened. She later learned
that he was trying to destroy evidence related to a double homicide. She said that she
testified truthfully at trial and that she answered the questions that were presented.

         Daniels agreed that she did not testify at trial about going into the BP gas station
that night and purchasing lighter fluid. She said that Carino and the Petitioner had
ordered her to do so, and she did not recall the purchase until she read some transcripts.
She was not asked about the lighter fluid at trial, and she was not interviewed by trial
counsel or an investigator from his office. Daniels testified that she did not know that the
lighter fluid would be used to burn shoes or other evidence. She stated that trial counsel
never asked her about a surveillance video from the BP station. After viewing the
surveillance video, Daniels could not identify herself. She said that her memory would
not have been refreshed if she had been shown the video in 2008. She further stated that
if trial counsel had interviewed her, she would have been truthful regarding what she was
able to recall. Daniels said that prior to the post-conviction hearing, no one had ever
questioned her about the lighter fluid.

       Trial counsel testified that he began practicing law in 1981 and that he focused
primarily on criminal defense. In the past decade, he had practiced mostly in court-
appointed murder cases at the state level. When he was appointed to represent the
Petitioner in 2008, trial counsel had tried about eighteen murder cases. He said that in
                                             -8-
this case, he had the assistance of co-counsel and two investigators. Trial counsel stated
that he personally interviewed four or five witnesses. He could not recall the names of
the individuals that his investigators had interviewed. He agreed that eyewitnesses at the
Patton residence were unable to identify the three perpetrators. Counsel stated that the
theory of the defense was that the State lacked any direct or corroborating evidence to
establish the Petitioner‟s identity as the second intruder in the home invasion.

       Trial counsel said that he was aware that Anna Claire Daniels was an important
witness for the State and that she would testify at trial. He argued at trial and on appeal
that Daniels should have been declared an accomplice as a matter of law and that her
testimony required corroboration. He testified that he remained disappointed that he
could not convince the courts of his position. Trial counsel stated that the fact that
Daniels bought lighter fluid “would not have hurt” his theory that she was an accomplice.
He said that the State provided him with the BP surveillance video, but he could not
recall whether the Petitioner appeared in the video. He did not want the jury to see the
Solway BP video and conclude that the Petitioner was present that evening. Trial counsel
recalled that his investigators interviewed the BP clerk. He said he did not interview
Daniels because he already had her police statement. Trial counsel opined that Daniels‟s
statement was critical evidence and that her testimony and recollection tended to
minimize her own involvement. He testified that his decision not to interview Daniels
was “tactical” and not based on neglect, and he explained his strategy as follows:

             As to not interviewing her, I had her written statement, I knew she
      was going to minimize what she had to say and I‟d rather the jury hear from
      her on direct to minimizing and then use her statement, plus use Mr.
      Calahan as rebuttal to show that she had every incentive to minimize her
      involvement. Because I felt very strongly that the court was not going to
      declare her as an accomplice as a matter of law simply because she was not
      charged.

       Trial counsel said he knew that Daniels went into the BP store and that the
defendants used an accelerant. He did not know whether his cross-examination of
Daniels would have been more effective if he had known that she had purchased lighter
fluid. He disagreed that Daniels‟ BP purchase was “the most significant piece of
evidence” to establish her status as an accomplice. He believed that her prior awareness
of the criminal conduct was the most critical factor.

       Trial counsel acknowledged that Hutson was represented by counsel who was also
representing the Petitioner on a separate charge in Knox County. He was aware that
Hutson‟s counsel and the Petitioner had discussed the instant case. According to trial
counsel, Hutson made a statement inculpating the Petitioner before Hutson‟s counsel was
                                            -9-
appointed to represent Hutson. Hutson‟s counsel represented Hutson from November
2008 to July 2009, and a different attorney represented Hutson at trial. Trial counsel said
that he had several in-chambers discussions in General Sessions Court about this conflict
of interest. Hutson‟s counsel stated that he sought an opinion from the Board of
Professional Responsibility, and the case “languished for two or three months” while they
awaited the outcome. Trial counsel said he believed that there was “an out and out
conflict” but he was willing to wait for formal guidance. He had prepared a written
motion raising the conflict of interest, which he sent to Hutson‟s counsel. However, trial
counsel did not file that motion. He said he adopted the motions filed by Carino‟s
counsel, including a motion to disqualify Hutson‟s counsel.

        Trial counsel agreed that the handwritten coded note retrieved at the Cumberland
County Jail was a significant piece of evidence for the State. He stated that he
“strenuously tried to keep this [evidence] out” and objected on numerous grounds to its
admission at trial. Counsel recalled that after his objection based on lack of foundation,
the State “cured” the objection when the correctional officer testified that he personally
observed the Petitioner pass the note to Carino. He said that his objections were
overruled when he renewed them. He acknowledged that he filed a motion for new trial
arguing that the coded note was improperly introduced into evidence and that the note
failed to corroborate any accomplice testimony. Trial counsel said that it was his practice
to raise as many grounds as possible to preserve issues for appeal. However, he did not
include issues from the motion in the appellate brief if they were insignificant. He said
that co-counsel handled the appeal, and the issue of the coded note may have been
inadvertently omitted. He acknowledged that he signed the appellate brief as counsel of
record. He believed that the defense selected and pursued the strongest arguments on
direct appeal.

       Trial counsel identified a motion to withdraw that he filed about two weeks before
the Petitioner‟s trial. He testified that at the time of the motion, his relationship with the
Petitioner had deteriorated to the extent that he could not effectively represent the
Petitioner. Trial counsel said that “there was a significant change” in their relationship
after he filed the motion and before the trial date. He stated that his difficulties with the
Petitioner “evaporated” after the Petitioner stopped “receiving advice and information
from third parties.”

       Trial counsel testified that he personally filed three or four motions on the
Petitioner‟s behalf, and he adopted the motions filed by Carino‟s counsel. He
acknowledged that he largely deferred to the motion practice of Carino‟s counsel and that
he did not spend much time on the motions in this case. He agreed that there were
differences in the representation of the Petitioner and of Carino. Trial counsel stated that
the “main motion” he filed was a request for the State to identify corroborating evidence.
                                            -10-
       Trial counsel said that the State initially sought the enhanced punishment of life
without parole for the Petitioner. As a result, the trial court approved funding for a
mitigation expert to present proof in the penalty phase. After voir dire, however, the
State approached trial counsel and offered to withdraw its notice of intent to seek
enhanced punishment if counsel refrained from emphasizing Carino‟s plea deal or his
status as “the ring leader.” Trial counsel testified that he consulted the Petitioner and his
family, and they agreed to accept the State‟s offer. He said he did not regret this trial
strategy. He acknowledged that he did not present mitigation evidence at the Petitioner‟s
sentencing hearing. Counsel opined that trial courts rarely align murder sentences
concurrently to avoid a “free pass” for the second homicide. He said that he raised the
issue of sentencing on appeal without the expectation of prevailing.

        At the conclusion of the hearing, the post-conviction court denied relief after
noting that post-conviction counsel did not present proof to establish prejudice to the
Petitioner. The court then supplemented its oral ruling with a written order entered on
September 8, 2014. In its order, the court concluded that the Petitioner failed to
demonstrate either deficient performance or prejudice arising therefrom. It further noted
that “the proof presented by the Petitioner does not cause this court reason to question the
jury‟s finding of guilt beyond a reasonable doubt.” The Petitioner timely appealed the
post-conviction court‟s order.

                                               ANALYSIS

       The Petitioner argues that he received ineffective assistance of counsel at trial and
on appeal. Specifically, he asserts that trial counsel was ineffective because counsel: (1)
failed to interview Anna Claire Daniels; (2) failed to properly challenge the conflict of
interest involving the Petitioner and Hutson‟s counsel; (3) failed to raise the issue of the
admissibility of the coded note on appeal; (4) failed to properly establish grounds for his
motion to withdraw as the Petitioner‟s counsel, and further failed to raise the denial of the
motion on appeal; (5) failed to file multiple pretrial motions on the Petitioner‟s behalf;
and (6) failed to effectively represent the Petitioner during sentencing.1 The State
responds that the post-conviction court properly denied relief because the Petitioner
failed to establish that he received ineffective assistance of trial and appellate counsel.
We agree with the State.

       Post-conviction relief is only warranted when a petitioner establishes that his or
her conviction or sentence is void or voidable because of an abridgement of a
constitutional right. T.C.A. § 40-30-103. The Tennessee Supreme Court has held:

       1
           We have renumbered the Petitioner‟s issues for clarity.
                                                    -11-
             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 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 citations and quotation
marks omitted); see Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011); Frazier v. State,
303 S.W.3d 674, 679 (Tenn. 2010). A post-conviction petitioner has the burden of
proving the factual allegations by clear and convincing evidence. T.C.A. § 40-30-110(f);
Tenn. Sup. Ct. R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn.
2009). Evidence is considered clear and convincing when there is no serious or
substantial doubt about the accuracy of the conclusions drawn from it. Lane v. State, 316
S.W.3d 555, 562 (Tenn. 2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009);
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).

       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 quotation marks 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. Vaughn, 202 S.W.3d at 116 (citing Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975); Strickland v. Washington, 466 U.S. 668, 687 (1984)).
“[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

                                          -12-
insufficient showing of one component.” Goad v. State, 938 S.W.2d 363, 370 (Tenn.
1996) (citing Strickland, 466 U.S. at 697).

        A petitioner successfully demonstrates deficient performance when the petitioner
establishes 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;
Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated once the
petitioner establishes “„a reasonable probability that, but for counsel‟s 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). This two-prong Strickland test applies to claims of
ineffective assistance of counsel at either the trial or appellate levels. See Campbell v.
State, 904 S.W.2d 594, 596 (Tenn. 1995) (citing Evitts v. Lucey, 469 U.S. 387 (1985)).

        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). 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. However,
this “„deference to matters of strategy and tactical choices applies only if the choices are
informed ones based upon adequate preparation.‟” House v. State, 44 S.W.3d 508, 515
(Tenn. 2001) (quoting Goad, 938 S.W.2d at 369).

        I. Pretrial Investigation of Anna Claire Daniels. First, the Petitioner argues
that trial counsel was ineffective for failing to reasonably investigate Anna Claire Daniels
before trial.2 He asserts that if counsel had interviewed Daniels, he would have
discovered the full extent of her role in the criminal activity occurring on November 7,
2008. The Petitioner maintains that if trial counsel had learned that Daniels purchased
lighter fluid to enable Carino to destroy evidence, counsel would have more effectively
presented the argument that Daniels was an accomplice as a matter of law to the trial
court. He argues that Daniels‟s status as an accomplice would have altered the outcome
at trial because her testimony would have required corroboration. To the extent the
Petitioner‟s claim attempts to re-litigate Daniels‟s status as an accomplice as raised and
rejected by this Court on direct appeal, we consider this issue previously determined and

        2
          In his second amended petition for post-conviction relief and in his brief, the Petitioner also
asserts that trial counsel was ineffective for failing to interview Alexander Carino. However, this issue
was not developed at the post-conviction hearing nor was it supported by argument in the brief. The issue
is accordingly waived.
                                                  -13-
therefore waived. See T.C.A. § 40-30-106(f) (Issues that have been “previously
determined” may not be re-litigated in a post-conviction procedure.). However, we will
consider on the merits the Petitioner‟s claim that trial counsel was ineffective due to his
failure to interview Daniels.

        At the post-conviction hearing, Daniels acknowledged that she did not testify at
trial regarding her purchase of the lighter fluid. She said she did not know that the lighter
fluid would be used to burn evidence and that she complied with Carino‟s orders out of
concern for Hutson‟s whereabouts. According to Daniels, she did not recall the lighter
fluid purchase until after the trial when she read about it in some transcripts. She was
unable to positively identify herself in the BP surveillance video. After Daniels learned
of the double homicide in Cumberland County, she contacted the police the following
day and cooperated with the authorities.

       Trial counsel testified that it was the defense‟s position that Daniels should have
been declared an accomplice as a matter of law and that she should have been charged.
He stated that the fact that Daniels bought lighter fluid “would not have hurt” his theory,
but he did not believe the purchase was “the most significant piece of evidence” to
establish her status as an accomplice. Counsel said he made the tactical decision not to
interview Daniels, because he wanted to use her police statement and Agent Calahan to
show that Daniels minimized her own involvement in the events. He believed he
effectively accomplished his goal of showing that Daniels minimized her role in the
homicide through his cross-examination of Agent Calahan.

        In its written order denying relief, the post-conviction court rejected the
Petitioner‟s assertion that “the proof establishing his presence at the scene of the murders
is solely based on the testimony of co-defendants, accomplices and Daniels, who was
also an accomplice.” It noted that the trial court appropriately instructed the jury that
Daniels‟s role in the robbery was a question of fact for the jury to determine. The post-
conviction court found that the testimony of Daniels and the co-defendants was
corroborated by the Petitioner‟s cell phone records as well as the note he passed to Carino
“relating [to] events occurring at the scene of the murders.”

       We have reviewed the record and agree with the post-conviction court‟s
determination that the State offered independent corroborative testimony at trial to
sustain the Petitioner‟s convictions. In other words, the Petitioner has not demonstrated
that but for trial counsel‟s failure to interview Daniels, the outcome of the proceeding
would have been different. In reaching this conclusion, we are unpersuaded that Daniels
would have been declared an accomplice as a matter of law if the trial court had known
of Daniels‟s purchase of lighter fluid. Moreover, as previously stated, we are reluctant to
rehash whether Daniels was an accomplice as a matter of law because this Court
                                            -14-
previously determined this issue on direct appeal. 3 See Cody Cofer, 2012 WL 3555310,
at *19. Nevertheless, we are unable to conclude that trial counsel‟s failure to interview
Daniels and learn of her purchase of lighter fluid on the night of the offense was deficient
performance.

        As part of their duties and criteria for representation, “a defense attorney, or his
agent, should interview not only his own witnesses but also those that the Government
intends to call, when they are accessible.” See Vaughn, 202 S.W.3d at 116 (internal
citations and quotations omitted). However, in this case, trial counsel testified that he
had Daniels‟s statement to police prior to trial and realized that she was minimizing her
role in the offense. Trial counsel believed that if he had interviewed Daniels prior to trial,
she would have known the questions he was going to ask and further minimize her role in
the offense. Given Daniels‟s testimony at the post-conviction hearing, explaining that
she was forced to purchase the accelerant and that she did not know what it would be
used for, we conclude that trial counsel made a legitimate tactical decision not to
interview Daniels. Tactical choices made by counsel are given deference, and the courts
must not measure trial counsel‟s deficiency by “20-20 hindsight.” Id. at 121 (internal
citations omitted).

        The Petitioner argues that had trial counsel interviewed Daniels, he would have
discovered that Daniels purchased accelerant on the night of the offense. However, trial
counsel aggressively argued that Daniels should have been classified as an accomplice as
a matter of law based on other compelling evidence including her prior awareness that a

       3
           This Court reasoned on direct appeal:

                The testimony at trial was that Hutson and Spence were both indicted for their
       participation in these crimes. Daniels, however, was not indicted for these crimes.
       Daniels testified that she drove Hutson to a Taco Bell, where he met Carino and the
       [Petitioner]. She knew the men had “bad intentions” to “settle a dispute,” but she was
       unaware of the details of their plan. Daniels testified that Hutson became evasive and
       “short” in their communication when she tried to learn his location and plans. Later that
       night, Daniels drove to pick up Hutson at a BP gas station and found only the [Petitioner].
       She inquired as to Hutson‟s whereabouts and was given a vague answer. As she listened
       to the conversation between Carino and his girlfriend, she began to put together the
       events of the night and became concerned. Based upon what she heard and her inability
       to contact Hutson, Daniels contacted the police and cooperated fully with the
       investigation. This evidence does not indicate that Daniels, “with common intent[,]
       unite[d]” in the commission of these homicides and attempted robbery. Although she did
       provide Hutson a ride to meet his codefendants, her role beyond that is unclear. Thus, the
       trial court properly left this issue to the jury for its determination.

Cody Cofer, 2012 WL 3555310, at *19.

                                                   -15-
crime was about to occur, her involvement as the driver for the co-defendants after the
double homicide, and her witnessing the destruction of evidence. While Daniels‟s
purchase of the accelerant was certainly relevant to establishing her accomplice status,
given the other evidence concerning her involvement, we cannot say that its omission
would have altered the outcome of the trial. Accordingly, the Petitioner has failed to
establish deficient performance or prejudice arising therefrom. He is not entitled to
relief.

        II. Conflict of Interest With Hutson’s Counsel. Next, the Petitioner claims that
trial counsel was ineffective in failing to properly challenge the conflict of interest
involving the Petitioner and Hutson‟s counsel. He argues that prejudice should be
presumed because Hutson‟s counsel simultaneously represented Hutson and the
Petitioner. He contends that counsel‟s failure to independently raise this issue harmed his
defense because Hutson benefited from speaking to law enforcement first and claiming to
be the individual who was outside the Patton residence at all times. In addressing this
claim, the post-conviction court denied relief because the Petitioner presented no proof
that trial counsel was ineffective in failing to challenge the conflict of interest involving
Hutson‟s counsel and the Petitioner.

        Tennessee Supreme Court Rule 8 states that “a lawyer shall not represent a client
if the representation involves a concurrent conflict of interest. A concurrent conflict of
interest exists if . . . the representation of one client will be directly adverse to another
client[.]” Tenn. Sup.Ct. R. 8, RPC 1.7(a)(1). There is a presumption of prejudice “only
if the defendant demonstrates that counsel „actively represented conflicting interests‟ and
that an „actual conflict of interest adversely affected his lawyer‟s performance.”
Strickland, 466 U.S. at 692 (quoting Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)); see
also Netters v. State, 957 S.W.2d 844, 847 (Tenn. Crim. App. 1997); State v. Thompson,
768 S.W.2d 239, 245 (Tenn. 1989)). “[A]n actual conflict of interest includes any
circumstances in which an attorney cannot exercise his or her independent professional
judgment free of „compromising interests and loyalties.‟” State v. White, 114 S.W.3d
469, 476 (Tenn. 2003) (quoting State v. Culbreath, 30 S.W.3d 309, 312-13 (Tenn. 2000)
(quoting Tenn. R. Sup. Ct. 8, EC 5-1)).

       We conclude that the Petitioner failed to establish that Hutson‟s counsel was
burdened by an actual conflict of interest. The Petitioner was required to prove that trial
counsel‟s performance was deficient and that this deficiency prejudiced his defense.
Trial counsel testified at the post-conviction hearing that he had several in-chambers
discussions regarding the simultaneous representation of Hutson and the Petitioner by
Hutson‟s counsel. During those discussions, counsel told the trial court that he believed
there was “an out and out conflict.” Although he drafted a motion to disqualify Hutson‟s
counsel, he did not file it because he was willing to wait for an opinion from the Board of
                                            -16-
Professional Responsibility. He said that Hutson‟s counsel was no longer representing
Hutson at the time of trial. The trial record reflects that during a motion hearing on
March 4, 2010, Carino‟s counsel argued that Hutson‟s counsel should be disqualified,
and trial counsel adopted the motions filed by Carino‟s counsel. However, the trial court
determined that the matter was moot because Hutson‟s counsel was no longer involved in
the case and did not represent any co-defendants. At the post-conviction hearing, the
Petitioner did not present any proof to establish a reasonable probability that an
independent motion raised by trial counsel would have resulted in a different outcome,
therefore he has failed to meet his burden of proof in this claim.

       III. Admission of the Coded Note. The Petitioner‟s next claim concerns
counsel‟s appellate representation. He alleges that counsel was ineffective in failing to
challenge the admission of the coded note on direct appeal, even though the issue was
included in the motion for new trial. The Petitioner contends that correctional officer
Wilson White never testified that he saw the Petitioner or Carino write the note, and the
State offered no evidence such as handwriting analysis to establish the author of the note.
He argues that trial counsel should have objected to Agent Calahan‟s purely speculative
testimony regarding the coded note. He further asserts that trial counsel conceded that
the omission may have been inadvertent rather than a tactical.

       At the post-conviction hearing, trial counsel testified that he objected to the
admission of the coded note based on authentication and chain of custody. After the
court sustained his objection, the State laid a foundation for the evidence. When trial
counsel renewed his evidentiary objection, the trial court overruled him and admitted the
note. He acknowledged challenging the admission of the note in the motion for new trial
and stated that it was his practice to include as many issues as possible to preserve them
for appeal. Trial counsel opined that the defense pursued the strongest arguments on
direct appeal and did not include weaker issues. In rejecting this claim for relief, the
post-conviction court found that “[n]o proof was shown by the Petitioner that the note
was improperly admitted. No authority was cited by the Petitioner that the ruling made
by the trial court was improper. The Petitioner has not shown that had [trial counsel]
presented this issue to the appellate court, he would have been successful.”

       We agree with the post-conviction court‟s conclusion that trial counsel was not
ineffective in this regard. Although the Petitioner faults trial counsel for failing to
challenge the admission of the note on appeal, he has failed to establish that counsel‟s
performance was prejudicial. Initially, we note that “[a]ppellate counsel are not
constitutionally required to raise every conceivable issue on appeal.” Carpenter v. State,
126 S.W.3d 879, 887 (Tenn. 2004) (citing King v. State, 989 S.W.2d 319, 334 (Tenn.
1999)). Where a petitioner claims that counsel failed to raise a certain issue on appeal,
this Court should consider the merits of the issue. Id.
                                           -17-
        At trial, correctional officer Wilson White testified that on the morning of April 5,
2009, he was assigned to central control where he had a clear view of all the inmates in
the Cumberland County Jail. See Cody Cofer, 2012 WL 3555310, at *11. He said that
he personally observed the Petitioner slip a piece of paper into the hallway as Carino was
returning a breakfast tray. Based on Officer White‟s request, another correctional officer
immediately retrieved the note from Carino and brought it back to central control.
Officer White stated that the piece of paper and the other correctional officer remained
visible to him at all times. He said that he recognized the note because of its torn corner.
After Officer Wilson identified the evidence and established an unbroken chain of
custody, it was within the trial court‟s discretion to admit the coded note. See, e.g., State
v. Cannon, 254 S.W.3d 287, 296 (Tenn. 2008) (“[W]hen the facts and circumstances that
surround tangible evidence reasonably establish the identity and integrity of the evidence,
the trial court should admit the item into evidence.”); State v. Holbrooks, 983 S.W.2d
697, 700 (Tenn. Crim. App. 1998) (citing State v. Goodman, 643 S.W.2d 375, 381 (Tenn.
Crim. App. 1982)); see also Tenn. R. Evid. 901(a), (b). In our view, the facts and
circumstances surrounding the coded note reasonably established its identity and
integrity. Accordingly, the trial court did not abuse its discretion, and the Petitioner has
made an insufficient showing that he suffered prejudice due to counsel‟s failure to
challenge the admission of the note on appeal.

        IV. Motion to Withdraw. The Petitioner also asserts that trial counsel failed to
properly establish grounds for his motion to withdraw as counsel, and further failed to
seek appellate review after the denial of the motion to withdraw. He contends that the
trial court “plainly abused its discretion” in denying counsel‟s motion to withdraw. In
dismissing this claim, the post-conviction court found no proof that trial counsel was
deficient for failing to further the motion to withdraw at trial or on appeal. We conclude
that the evidence does not preponderate against the post-conviction court‟s findings.

       “[A]lthough the United States Constitution and the Constitution of Tennessee
guarantee an indigent criminal defendant the right to assistance of counsel, the right does
not include counsel of choice, special rapport with counsel, confidence in counsel, or
even a meaningful relationship with counsel.” Mobley v. State, 397 S.W.3d 70, 93
(Tenn. 2013) (citing State v. Carruthers, 35 S.W.3d 516, 546 (Tenn. 2000); Morris v.
Slappy, 461 U.S. 1, 13-14 (1983)). The essential purpose of the right to counsel is to
guarantee an effective advocate, rather than counsel preferred by the defendant.
Carruthers, 35 S.W.3d at 546 (citing Wheat v. United States, 486 U.S. 153, 159 (1988)).
Once appointed, counsel should not seek to withdraw unless compelled to do so and with
a showing of good cause. Mobley, 397 S.W.3d at 93 (citing Parton v. State, 455 S.W.2d
645, 649-50 (Tenn. Crim. App. 1970)); see also T.C.A. § 40-14-205. “Grounds upon
which a trial court may order substitution of counsel include when counsel‟s
                                            -18-
representation is ineffective, when the defendant and counsel have become embroiled in
an irreconcilable conflict, or when there has been a complete breakdown in
communication between counsel and the defendant.” Mobley, 397 S.W.3d at 93 (citing
State v. Gilmore, 823 S.W.2d 566, 568-69 (Tenn. Crim. App. 1991)). We note that “the
trial court has wide discretion in matters regarding the appointment and relief of counsel,
and its action will not be set aside on appeal unless a plain abuse of that discretion is
shown.” State v. Branam, 855 S.W.2d 563, 566 (Tenn. 1993) (citing State v. Rubio, 746
S.W.2d 732, 737 (Tenn. Crim. App. 1987)). A reviewing court will not find an abuse of
discretion unless “there was no substantial evidence to support the conclusion of the trial
judge.” Rubio, 746 S.W.2d at 737.

       In this case, trial counsel filed a motion to withdraw on November 3, 2010, about
two weeks prior to the November 16 trial. At the motion hearing on November 8,
counsel explained that since July 2010, the Petitioner and members of his family had lost
confidence in counsel‟s representation. In particular, trial counsel did not want to file
certain motions that he considered to be frivolous. During the hearing, the trial court
extensively questioned counsel and the Petitioner regarding counsel‟s representation.
The Petitioner conceded that counsel had met with him regularly, conveyed plea offers
from the State, discussed trial strategy and defenses, and conducted a complete
investigation. When asked whether there were other things that counsel should have
done, the Petitioner responded, “No, just motionwise. I‟ve asked to put motions in to see
how they turn out.” The Petitioner acknowledged that trial counsel had experience in
thirty murder trials, and he did not have substitute counsel in mind to represent him. In
denying the motion to withdraw, the court relied heavily on State v. Gilmore, 823 S.W.2d
566 (Tenn. Crim. App. 1991), and noted that it could not find specific and sufficient facts
to support the withdrawal. The court noted that the case was two years old, and the
motion to withdraw was filed on the eve of trial. The court specifically found that
counsel‟s representation was adequate and “entirely within the range of competency[.]”

        Based on the record, we conclude that the Petitioner has failed to establish that
counsel was ineffective in presenting the motion to withdraw as counsel and in not
seeking further review after the denial of the motion. At the post-conviction hearing, trial
counsel testified that his relationship with the Petitioner significantly improved after
family members and other third parties stopped interfering with his representation. We
fail to see what more counsel should have done in arguing the motion to the trial court, or
how this issue would have had merit on appeal. Although the Petitioner and trial counsel
may have had disagreements, a criminal defendant is not entitled to perfect
representation, only constitutionally adequate representation. Denton v. State, 945
S.W.2d 793, 796 (Tenn. Crim. App. 1996). Moreover, “an attorney‟s good faith assertion
of his disqualification is not in itself ineffective representation[.]” Thompson, 768
S.W.2d at 245. Regarding the Petitioner‟s contention that the trial court clearly abused
                                           -19-
its discretion in denying the motion to withdraw, we conclude that there was substantial
evidence in the record to support the trial court‟s ruling. Therefore, the Petitioner has not
demonstrated that he was prejudiced because this issue was not raised on direct appeal.
This claim is without merit.

       V. Pretrial Motions. The Petitioner‟s next allegation of ineffective assistance of
counsel is related to his previous claim regarding the motion to withdraw. He alleges that
counsel should have filed numerous pretrial motions concerning significant evidentiary
and procedural issues. He asserts that the presentation of these motions “could have
resulted in a different outcome” and that counsel‟s omission “clearly resulted in
prejudice.”

        We agree with the post-conviction court that the Petitioner has failed to establish
that trial counsel was ineffective in this regard. Specifically, the Petitioner has not
demonstrated how he was prejudiced by counsel‟s pretrial motion practice. At the
evidentiary hearing, the Petitioner did not present any proof or argument to establish a
reasonable probability that the filing of the Petitioner‟s requested pretrial motions would
have resulted in a different outcome. Accordingly, he is not entitled to relief on this
issue.

        VI. Sentencing. As his final ground for relief, the Petitioner argues that trial
counsel provided ineffective assistance during sentencing. Specifically, he contends that
trial counsel should have presented mitigating factors or evidence to support concurrent
sentencing; should have objected to the trial court‟s finding that the Petitioner committed
the offenses while on probation; and should have informed the court the reason that the
State withdrew its notice of intent to seek enhanced punishment. In rejecting this claim,
the post-conviction court found that the Petitioner failed to present any proof of factors
that the sentencing court could have considered and that the Petitioner did not
demonstrate how counsel‟s representation was ineffective or deficient during sentencing.
We agree that the Petitioner has made an insufficient showing of prejudice based on
counsel‟s performance.

        The record reflects that at the sentencing hearing, the Petitioner did not accept
responsibility for the offenses, as shown in his statement in the presentence report: “I let
someone use my phone and they were involved in the crime of robbery and murder. No
involvement, but my cell phone.” See Cody Cofer, 2012 WL 3555310, at *14. Officer
Danny Williams of the Board of Probation and Parole testified that he interviewed the
Petitioner twice, and the Petitioner denied being present during the offenses. At the
conclusion of the hearing, trial counsel argued that the court should impose concurrent
sentences for the felony murder convictions because consecutive sentencing was akin to
life without parole, an enhanced punishment that the State had withdrawn. The Petitioner
                                            -20-
then challenged his sentences on direct appeal, and this Court affirmed the trial court‟s
imposition of consecutive sentences. Id. at *24.

       At the post-conviction hearing, trial counsel testified that funding for a mitigation
expert had initially been approved because the State was seeking an enhanced
punishment of life without parole. Counsel stated that he consulted the Petitioner and his
family and that it was a matter of trial strategy to accept the State‟s offer to withdraw its
intent to seek enhanced punishment. He conceded that he did not present mitigation
evidence at the sentencing hearing. Trial counsel further testified that he did not expect
to prevail on the sentencing issue on direct appeal.

       At the conclusion of the evidentiary hearing, the court specifically questioned
post-conviction counsel regarding whether the lack of proof presented by trial counsel
prejudiced the Petitioner at sentencing. The following colloquy occurred:

       THE COURT: Ineffective assistance at sentencing, what is the mitigation
       proof? There is none before this court today. I heard none of what it is that
       [trial counsel] would have put on in mitigation. If you had called the
       mitigation specialist, perhaps he would have said to me [the Petitioner]‟s
       eighteen years old at the time, he has an IQ of particular thing, he did this,
       that, I haven‟t heard anything about it.

              ....

       I‟ve got no proof in this record that I can rule upon. Bring your witness,
       bring them to me, show them to me, I don‟t have any of that. That‟s the---

       [POST-CONVICTION COUNSEL]: [Trial counsel] testified that on
       appeal he raised three mitigating factors.

       THE COURT:        And did he raise them when we were sentencing the
       [Petitioner]?

       [POST-CONVICTION COUNSEL]: No.

       THE COURT: He raised them to the Court of Criminal Appeals?

       [POST-CONVICTION COUNSEL]: Yes.

       THE COURT: How would he win, who is it, that proof is not before this
       court? It wasn‟t before the Court of Criminal Appeals either. Who is it that
                                            -21-
       testified to the three things that he said, here, today? Do you see what I‟m
       saying? I have to be able to see that if someone had testified to that, the
       court may have ruled differently. I don‟t have that testimony.

       We conclude that the Petitioner has failed to establish a reasonable probability that
but for counsel‟s alleged errors, the results of the sentencing hearing would have been
different. To demonstrate prejudice based on trial counsel‟s failure to present a
mitigation expert, the Petitioner should have presented such a witness at the post-
conviction hearing. See Pylant v. State, 263 S.W.3d 854, 869 (Tenn. 2008); see also
Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Nor has the Petitioner
shown that he was prejudiced by counsel‟s failure to object to the trial court‟s finding that
he committed the offenses while on probation, given that this Court upheld the separate
finding that the Petitioner was a dangerous offender. See Cody Cofer, 2012 WL
3555310, at *22-24; see also T.C.A § 40-35-115(4). Finally, the Petitioner has not shown
that he would have received concurrent sentences if trial counsel informed the court of
the basis of the State‟s withdrawal of its notice of intent to seek enhanced punishment.
Although the Petitioner complains of counsel‟s representation during sentencing, the
Petitioner has not met his burden of proving his factual allegations by clear and
convincing evidence. See T.C.A. § 40-30-110(f). Accordingly, he is not entitled to relief
on this issue.

                                     CONCLUSION

       After a thorough review of the record, we cannot conclude that the results of the
Petitioner‟s trial and direct appeal were undermined or that the proceedings were
fundamentally unfair because of the alleged errors of counsel. See Strickland, 466 U.S.
at 670 (“[T]he ultimate focus of inquiry must be on the fundamental fairness of the
proceeding whose result is being challenged.”). The Petitioner is not entitled to post-
conviction relief, and the judgment of the post-conviction court is affirmed.



                                                   _________________________________
                                                   CAMILLE R. MCMULLEN, JUDGE




                                            -22-
