               IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                AT NASHVILLE
                          Assigned on Briefs June 2, 2015


              OMAR ALEJANDRO GARCIA v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Davidson County
                       No. 2012-A-441    Steve R. Dozier, Judge



                  No. M2014-02126-CCA-R3-PC – Filed August 14, 2015
                           _____________________________

Omar Alejandro Garcia (“the Petitioner”) filed a petition for post-conviction relief
alleging that he received ineffective assistance of counsel. After a hearing, the post-
conviction court denied relief. Upon 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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which ROBERT W.
WEDEMEYER and D. KELLY THOMAS, JR., JJ., joined.

Sunny Eaton, Nashville, Tennessee, for the appellant, Omar Alejandro Garcia.

Herbert H. Slatery III, Attorney General and Reporter; Tracy L. Alcock, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and J. Wesley King,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                         OPINION
                             Factual and Procedural Background

                                      Guilty Plea Proceedings

      The Davidson County Grand Jury indicted the Petitioner with two counts of
aggravated robbery and one count of possession of a firearm during the commission of a
dangerous offense.1 The Petitioner pleaded guilty to both counts of aggravated robbery.

        1
         It is not clear from the record whether or not the possession of a firearm during the commission
of a dangerous offense charge was dismissed as part of the Petitioner‟s plea agreement.
Pursuant to a plea agreement, the Petitioner was sentenced to two terms of twenty years‟
incarceration to be served concurrently.

        During the plea colloquy, the trial court explained that the Petitioner was charged
with two counts of aggravated robbery, which carried a potential sentence of eight to
thirty years each. The Petitioner affirmed that he understood the charges against him and
their respective ranges of punishment. The Petitioner also affirmed that he had spoken
with his trial counsel about the charges and sentencing ranges.

        The trial court informed the Petitioner of his rights to a trial by jury, to have
representation during a trial, to be present at the trial, to cross-examine witnesses, to
maintain his innocence, to call his own witnesses, to remain silent, and to appeal. The
Petitioner affirmed that he understood these rights and that he knowingly and voluntarily
gave them up in exchange for the plea agreement. The Petitioner denied being forced,
threatened, coerced, intimidated, or pressured into accepting the plea agreement. He also
stated that he was not under the influence of drugs or alcohol and that he understood his
felony convictions could be used against him to enhance any future sentence.

       The State made the following offer of proof:

              [O]n December 3rd, 2011[,] at approximately 10 o‟clock in the
       evening [,] metro police responded to a robbery call at Murfreesboro Pike at
       an apartment complex. Elmar Castro, the victim who is present today here
       in court, was sitting beside the apartment complex pool down loading
       music on his computer using the apartment wifi. While he was there, a
       vehicle approached and three of these individuals jumped out of the
       vehicle, came up to him brandishing guns and robbed him of his computer
       and a gym bag that was used to carry the computer. Mr. Castro was able to
       describe the vehicle to metro police. He described it as a red vehicle with a
       loud muffler and a partial tag number of 893. The men that robbed Mr.
       Castro were wearing bandanas around their faces.

              Within [forty] minutes of Mr. Castro being robbed, another robbery
       occurred at a different apartment complex on Linbar Drive. Mr. Raphael
       Martinez, the second victim who is also present here in court today, had
       returned home from eating dinner after work. He parked his work vehicle
       and as he exited his vehicle, he was approached again by three individuals
       brandishing guns. Specifically Mr. Martinez described a revolver and a
       semiautomatic gun. Mr. Martinez was robbed of [the] contents of his
       wallet, cash, [and] a gold ring that had a blue stone in it.

                                           -2-
              The individuals ran away and jumped into a red vehicle that matched
       the same description that had been given [by] Mr. Castro. The individuals
       that robbed Mr. Martinez were wearing bandanas though the bandana
       slipped on one of the defendants‟ faces, that would be [the Petitioner], and
       Mr. Martinez was able to view enough of his face to identify him later at a
       show[-up identification].

              Officers were in the area responding to the robbery of Mr. Castro,
       and observed the vehicle near the area of Tampa Drive. Officers pulled in
       behind the vehicle when it stopped at the residence [] of the remaining co-
       defendant Marcelo Amelo. Metro officers took the occupants of the red
       vehicle with the 893 license tag number into custody. They were found to
       be in possession of Mr. Martinez‟s social security card, a credit card,
       Martinez‟s contractors [sic] license, Mr. Martinez‟s class ring, as well as
       Mr. Castro‟s computer, and the bag that contained the computer. Also
       found inside the vehicle were bandanas and two weapons that matched the
       description previously given by Mr. Martinez, there was a revolver and
       there was a semiautomatic gun. [] [The Petitioner] was [in] the front seat
       passenger and underneath him was the semiautomatic gun. He also made
       an admission in his statement to police about the weapon as well.

       Before entering his plea, the Petitioner confirmed his satisfaction with the
representation of trial counsel. After accepting the Petitioner‟s plea, the trial court
sentenced the Petitioner, as a multiple offender, to two, concurrent terms of twenty years‟
incarceration.

                              Post-Conviction Proceedings

       The Petitioner filed a timely petition for post-conviction relief, claiming he
received ineffective assistance of counsel when trial counsel failed to: (1) familiarize
himself with Tennessee sentencing law, particularly the July 2010 amendment to
Tennessee Code Annotated section 40-35-108(b); (2) contact the Petitioner‟s attorney
that represented him during his juvenile adjudications; (3) contact the arresting officer in
the Petitioner‟s juvenile adjudications; (4) request the recording from the Petitioner‟s
juvenile adjudications; and (5) file a motion contesting the State‟s intent to seek to
classify the Petitioner as a career offender based on his juvenile adjudications.
Additionally, the Petitioner asserted his guilty plea was involuntary and unknowing.

      At the post-conviction hearing, the Petitioner testified that he spoke and
understood English, was able to converse with trial counsel, and understood his
conversations with trial counsel. The Petitioner stated that his convictions for two counts
                                           -3-
of aggravated robbery were his first felonies as an adult. The Petitioner said from the
time he was indicted to the time he entered the guilty plea, trial counsel visited the
Petitioner in jail about every six months, or approximately three times during an eighteen
month period. When trial counsel visited the Petitioner, the Petitioner stated that trial
counsel did not discuss the facts of the Petitioner‟s case or his charges and, instead, told
the Petitioner, “don‟t worry about it.” Additionally, the Petitioner stated that trial counsel
told him that his juvenile charges could not be used against him. The Petitioner stated
that trial counsel never confirmed that he spoke with the Petitioner‟s juvenile court
attorney or the arresting officer. The Petitioner also stated that he asked trial counsel to
file a motion to prevent the State from using the juvenile adjudications to enhance his
sentence, and trial counsel‟s response was “I‟m going to see.”

        The Petitioner also testified that trial counsel originally told him that he would
likely be sentenced to eight to twelve years if he was found guilty at trial. However, after
the State presented its notice to seek career offender status, the Petitioner stated trial
counsel told him he could expect to be sentenced to thirty or sixty years after trial. The
Petitioner stated that if he had been facing eight to twelve years, he would have gone to
trial instead of agreeing to a guilty plea. The Petitioner additionally testified that he did
not feel like trial counsel had investigated his case, he did not understand what defenses
he could have argued at trial, and that he “didn‟t have any legal assistance about [his]
case.”

       On cross-examination, the Petitioner stated that trial counsel discussed his charges
with him on the day he pleaded guilty and that the Petitioner understood that he was
pleading guilty to two counts of aggravated robbery with two concurrent sentences of
twenty years. The Petitioner also stated that trial counsel discussed the plea form with
him. The Petitioner admitted that, while trial counsel never discussed what the
Petitioner‟s defense at trial might be, the Petitioner himself did not know what defense he
would claim at trial. Additionally, the Petitioner admitted that he met with trial counsel
several times before trial to discuss the status of his case and the plea bargains offered by
the State. The Petitioner also admitted that trial counsel filed a motion to suppress a
piece of evidence in his case. On redirect examination, the Petitioner stated that his six
juvenile delinquency adjudications on charges of rape of a child arose out of a single
incident.

       Next, trial counsel testified that he has practiced as a licensed attorney in
Tennessee for nineteen years and that approximately ninety percent of his practice was
criminal defense. Trial counsel also stated that he had represented criminal defendants in
approximately eighty to ninety jury trials. Trial counsel stated that his goal in his
representation of the Petitioner was to “try to mitigate and also try to see if [he could] get

                                            -4-
[the Petitioner] an in-county sentence . . . .” Trial counsel stated that he had identified
several mitigating factors in the Petitioner‟s case, such as the Petitioner‟s prior record,
good job, and his minimal involvement in the robberies. Trial counsel also worked to
have the Petitioner‟s charges reduced to simple robbery, so that the Petitioner would have
been facing a sentence of six years instead of eight to twelve years.

        Trial counsel stated that “it got really ugly” when the State gave the Petitioner
notice of the State‟s intent to have the Petitioner classified as a career offender based on
the Petitioner‟s juvenile adjudications. Trial counsel also testified that the State notified
the Petitioner that one of the Petitioner‟s co-defendants was going to testify against him.
Trial counsel stated that he notified the Petitioner‟s mother of the State‟s intentions and
that the State‟s offer had changed to “a much higher offer.” Trial counsel stated that at
the guilty plea hearing, he asked the trial judge for permission to “have [the Petitioner‟s]
girlfriend and his mom and [the Petitioner and trial counsel] go back in the back to talk
about the situation.”

        Trial counsel stated that after the State notified the Petitioner of its intent to seek
career offender status, trial counsel researched the issue himself and had two other
attorneys research the issue because trial counsel felt that the notice was “kind of a curve
ball that [was] thrown at the last second.” Both of the attorneys who researched the issue
agreed with trial counsel that the State could validly use the Petitioner‟s juvenile
adjudications to seek career offender status.

       Trial counsel obtained a copy of the Petitioner‟s juvenile adjudications but did not
speak to the juvenile attorney or the arresting officer and did not file any motions
regarding the Petitioner‟s potential career offender status. However, trial counsel stated
that he confirmed that the Petitioner had been adjudicated delinquent for the rape of a
child charges. Trial counsel also testified that he asked the State to lower its offer of two
twenty-year sentences but “the offer never went down.” Additionally, trial counsel stated
that he discussed the State‟s offer of two twenty-year sentences with the Petitioner. Trial
counsel advised the Petitioner that if he went to trial, he could be sentenced to two thirty-
year terms to be served consecutively and that “the State‟s case was pretty strong.”
Finally, trial counsel stated that the Petitioner made the ultimate decision to plead guilty.

       Trial counsel also stated that he had discussed the facts of the case with the
Petitioner multiple times and that they had discussed the roles played by each co-
defendant in the robberies. Trial counsel confirmed that he had driven out to the scene of
the crime to investigate the Petitioner‟s account of the crime, that he had spoken with the
Petitioner about his juvenile adjudications, and that he filed a motion to suppress the
show-up identification.

                                             -5-
       On cross-examination, trial counsel stated that in his research of the Petitioner‟s
juvenile adjudications, he did not “look at dates and times of the events or anything
specific about the case when [he] got the judgment . . . .” Instead, trial counsel stated he
only examined the final adjudication. Additionally, trial counsel stated that if he had
determined that the State could not have used the Petitioner‟s juvenile adjudications to
enhance his sentence, trial counsel would not have advised the Petitioner to plead guilty
and would have instead advised the Petitioner to go to trial.

       After cross-examination, the post-conviction court asked trial counsel about the
State‟s previous plea offer, which the Petitioner rejected. Trial counsel did not recall
what the rejected offer was, but he stated that he informed the Petitioner of the offer and
the Petitioner rejected the offer. After the State offered the rejected plea offer
memorandum into evidence, trial counsel stated that the offer was for twenty years at
Range II or 35%, which was close to the maximum that the Petitioner could have
received at trial without being a career offender.

        In a detailed written order, the post-conviction court denied relief. The post-
conviction court noted that it “accredits the testimony of trial counsel, who said that he
reviewed the juvenile materials, researched the issue, and asked two attorneys to research
it as well.” The post-conviction court also noted that the Petitioner had not submitted any
proof that his juvenile adjudications could not have been used by the State to enhance his
sentence. Additionally, the post-conviction court stated that trial counsel “cannot be
faulted for not filing a pre-trial motion for the Court to determine the [P]etitioner‟s range
since that would not be done until and only if the defendant was convicted and the Court
knew what offense the conviction was for.” The post-conviction court also found that
trial counsel discussed the facts, charges, and the plea bargain with the Petitioner and that
trial counsel had sufficiently prepared for trial by investigating the scene of the crime and
discussing the crime with the Petitioner. The post-conviction court additionally found
that trial counsel had filed and litigated a motion to suppress evidence in the Petitioner‟s
case. The post-conviction court held that the Petitioner had failed to prove that trial
counsel‟s representation was deficient or that the Petitioner had been prejudiced by trial
counsel‟s alleged deficient representation. This timely appeal followed.

                                         Analysis

        In order to prevail on a petition for post-conviction relief, a petitioner must prove
all factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f)
(2012); Jaco v. State, 120 S.W.3d 828, 830 (Tenn. 2003). “Evidence is clear and
convincing when there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.” Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn.
2009) (quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)).
                                             -6-
       This court will review de novo the factual findings of the post-conviction court,
but the lower court‟s factual findings are “entitled to substantial deference on appeal
unless the evidence preponderates against those findings.” Fields v. State, 40 S.W.3d
450, 456 (Tenn. 2001). However, this court will conduct a purely de novo review of the
post-conviction court‟s application of law to its factual findings. Id. at 457. When
reviewing the trial court‟s findings of fact, this Court does not reweigh the evidence or
“substitute [its] own inferences for those drawn by the trial court.” Id. at 456.
Additionally, “questions concerning the credibility of the witnesses, the weight and value
to be given their testimony, and the factual issues raised by the evidence are to be
resolved by the trial judge.” Id. (citing Henley v. State, 960 S.W.2d 572, 579 (Tenn.
1997)).

                             Ineffective Assistance of Counsel

         The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.
art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel,
a petitioner must prove two factors: (1) that counsel‟s performance was deficient; and (2)
that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687
(1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that
the same standard for ineffective assistance of counsel applies in both federal and
Tennessee cases). Both factors must be proven in order for the court to grant post-
conviction relief. Strickland, 466 U.S. 687; Henley, 960 S.W.2d at 580; Goad v. State,
938 S.W.2d 363, 370 (Tenn. 1996). Additionally, review of counsel‟s performance
“requires that every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel‟s challenged conduct, and to evaluate the
conduct from counsel‟s perspective at the time.” Strickland, 466 U.S. at 689; see also
Henley, 960 S.W.2d at 579. We will not second-guess a reasonable trial strategy, and we
will not grant relief based on a sound, yet ultimately unsuccessful, tactical decision.
Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).

        As to the first prong of the Strickland analysis, “counsel‟s performance is effective
if the advice given or the services rendered are within the range of competence demanded
of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that
counsel was deficient, the petitioner must demonstrate “that counsel‟s acts or omissions
were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688, and
Baxter, 523 S.W.2d at 936).


                                            -7-
       Even if counsel‟s performance is deficient, the deficiency must have resulted in
prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, the petitioner “must show
that there is 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.” Strickland, 466 U.S. at
694. In the context of a plea bargain, the petitioner must establish prejudice by showing
that “but for counsel‟s errors, he would not have pleaded guilty but would have insisted
upon going to trial.” Hicks, 983 S.W.2d at 246 (citing Hill v. Lockhart, 474 U.S. 52, 59
(1985)).

       On appeal, the Petitioner contends that the post-conviction court erred by
dismissing his petition for relief because the Petitioner proved that trial counsel‟s
performance was deficient and that the Petitioner suffered prejudice as a result of this
deficiency. Specifically, the Petitioner alleges that his trial counsel “failed to investigate
or challenge the prosecution‟s intent to utilize the Appellant‟s juvenile adjudications
against him, and further failed to understand the legal limits of the prosecution‟s potential
use of the juvenile adjudications if they were brought into evidence and used against
him.”2

                Failure to File Motions and Investigate Career Offender Status

       First, the Petitioner contends that trial counsel‟s performance was deficient
because trial counsel did not contest the State‟s intent to use the Petitioner‟s juvenile
adjudications to seek to have the Petitioner classified as a career offender. The Petitioner
argues that his six juvenile adjudications do not make him a career offender because the
adjudications fall under the twenty-four hour merger rule, and therefore would be
considered to be a single conviction for sentencing purposes.

       The record shows that trial counsel discussed the State‟s Notice of Intent to
Enhance with the Petitioner, researched the law himself, and had two additional attorneys
research the issue. After researching the issue, trial counsel and the additional attorneys
concluded that the State could validly use the Petitioner‟s juvenile adjudications to
elevate his offender status. The post-conviction court found that trial counsel sufficiently
investigated the Petitioner‟s alleged career offender status and that trial counsel could not
have properly filed a motion contesting the State‟s intent to use the Petitioner‟s juvenile
adjudications at the pre-trial stage. The evidence does not preponderate against these
findings.

        2
           In his petition for post-conviction relief, the Petitioner alleged ineffective assistance of counsel
and that his guilty plea was involuntary and unknowing. Because the Petitioner does not allege on appeal
that his guilty plea was involuntary or unknowing, we will not address that issue.
                                                    -8-
         Additionally, a criminal defendant has the burden of proving that his crimes were
performed within a twenty-four hour period so as to fall under the merger rule. See State
v. Kenneth Edward Watts, No. E2010-00553-CCA-R3-CD, 2011 WL 5517000, at *7
(Tenn. Crim. App. Nov. 8, 2011); see also Mitchell Darnell Eads v. State, No. E2012-
02232-CCA-R3-PC, 2013 WL 3105613, at *3 (Tenn. Crim. App. Jun. 17, 2013)
(applying the twenty-four hour merger rule in a post-conviction challenge for ineffective
assistance of counsel). The Petitioner failed to present credible evidence at the post-
conviction evidentiary hearing that his juvenile adjudications occurred within a twenty-
four period and, thus, would not have supported a career offender classification.
Therefore, the Petitioner failed to prove that he was prejudiced by any alleged deficiency
in trial counsel‟s performance. He is not entitled to relief on this issue.

                          Failure to Investigate Witnesses

       Second, the Petitioner contends that trial counsel‟s performance was deficient
because counsel did not investigate two witnesses involved in the Petitioner‟s juvenile
adjudications. Specifically, the Petitioner argues that trial counsel should have
interviewed the police officer that arrested the Petitioner on those charges and the
attorney that represented the Petitioner at the adjudications. However, the Petitioner did
not have either the arresting officer or his juvenile attorney testify at the post-conviction
hearing. See Ernest Cunningham v. State, No. M2008-01313-CCA-R3-PC, 2009 WL
4723398, at *13 (Tenn. Crim. App. Dec. 9, 2009) (“[I]n order for a petitioner to
successfully allege ineffective assistance of counsel based upon the failure to call a
witness, a petitioner must be able to „produce a material witness who (a) could have been
found by a reasonable investigation and (b) would have testified favorably in support of
his defense if called.‟”) (quoting Black v. State, 794 S.W.2d 752, 758 (Tenn. Crim. App.
1990)). Therefore, this issue is without merit, and the Petitioner is not entitled to relief.

                   Failure to Request Juvenile Adjudication Recording

       The Petitioner also argues that trial counsel should have requested the recording of
the adjudication proceeding from the juvenile court. Again, the Petitioner failed to
produce the recording from his juvenile adjudications at his post-conviction evidentiary
hearing. Instead, the Petitioner only vaguely alleged that the recording would show that
he is not a career offender. See Owens v. State, 13 S.W.3d 742, 756 (Tenn. Crim. App.
1999) (“For purposes of proving an ineffective assistance of counsel claim, proof of
deficient representation by omission requires more than a speculative showing of lost
potential benefit.”); Thomas Alvin Carter v. State, No. E2005-00625-CCA-R3-PC, 2006
WL 176545, at *27-28 (Tenn. Crim. App. Jan. 23, 2006) (holding that the petitioner had
failed to prove by clear and convincing evidence that his trial counsel‟s failure to
investigate his prior criminal record had resulted in prejudice because petitioner did not
                                             -9-
produce the criminal record at the post-conviction hearing or for review on appeal).
Therefore, the Petitioner failed to prove that he was prejudiced by any alleged deficiency,
and he is not entitled to relief on this issue.

                                       Conclusion

       For the aforementioned reasons, the judgment of the post-conviction court is
affirmed.

                                                   _________________________________
                                                   ROBERT L. HOLLOWAY, JR., JUDGE




                                          - 10 -
