        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                    ASSIGNED ON BRIEFS FEBRUARY 14, 2012

           DELAWRENCE WILLIAMS v. STATE OF TENNESSEE

                     Appeal from the Circuit Court for Dyer County
                       No. C03-405     R. Lee Moore, Jr., Judge


                  No. W2010-02293-CCA-R3-PC - Filed May 29, 2012


The petitioner, Delawrence Williams, appeals the post-conviction court’s denial of his
petition alleging ineffective assistance of counsel on the grounds that: (1) prior to trial, his
counsel did not inform him of the possibility of consecutive sentencing and (2) his counsel
failed to research and sufficiently argue against the imposition of consecutive sentences at
his sentencing hearing. Because the petitioner has not shown deficiency by clear and
convincing evidence, we affirm the denial of the post-conviction petition.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which JOSEPH M. T IPTON,
P.J., and C AMILLE R. M CM ULLEN, J., joined.

Danny H. Goodman, Jr., Tiptonville, Tennessee, for the appellant, Delawrence Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; and C. Phillip Bivens, District Attorney General, for the appellee, State of
Tennessee.

                                          OPINION

                               Facts and Procedural History




       A jury found the petitioner, Delawrence Williams, guilty of possession of .05 grams
or more of cocaine with intent to deliver, a Class B felony, and simple assault, a Class A
misdemeanor. The petitioner committed the acts giving rise to these convictions while he
was released on bond, awaiting the arrival of the date set for him to report to jail on another
conviction in the same county. The petitioner was sentenced as a Range II, multiple offender
to fourteen years for the possession with intent to deliver and to a concurrent eleven months
and twenty-nine days for the assault, for an effective sentence of fourteen years. This
fourteen-year sentence was ordered to run consecutively to the petitioner’s twelve-year
sentence for his earlier conviction.

       The facts giving rise to the petitioner’s convictions are discussed in detail in our
opinion on direct appeal. To summarize, the petitioner was arrested as a result of an
argument he had with his girlfriend, Vivial Taylor. At trial, Ms. Taylor testified that in the
course of the argument, she attempted to run over the petitioner with her car and the
petitioner struck her windshield with a swing blade. When the sheriff’s department
responded to the incident, an officer observed what appeared to be illegal drugs in the trailer
where the petitioner lived. Pursuant to a search warrant, a marijuana cigar, a paper towel
with what appeared to be crack cocaine, a razor blade with white residue, five plastic bags
with one ounce of cocaine each, and over four thousand dollars in several cash bundles were
discovered in the petitioner’s room and in his closet. The petitioner shared the trailer with
other individuals who had access to his room.               See State v. Williams, No.
W2009-00748-CCA-R3-CD, 2009 WL 3754367, at *1-3 (Tenn. Crim. App. Nov. 10, 2009).

        In June of 2010, the petitioner filed this timely post-conviction petition alleging
ineffective assistance of counsel. The petitioner was appointed counsel and filed an amended
petition in September 2010.

         At the hearing on the post-conviction petition, the petitioner testified that his trial
counsel “did a fair job” in general, but was ineffective because he did not cite to authority
when arguing against consecutive sentencing under Tennessee Rule of Criminal Procedure
Rule 32(c)(3)(C). The petitioner testified that he had never received a consecutive sentence
before, did not know that consecutive sentencing was a possibility, and would not have gone
to trial if he had been properly informed. The petitioner further testified that the first time
he had heard he might receive a consecutive sentence as a career criminal was at the
sentencing hearing, and that his lawyer had never discussed the possibility with him prior to
that time.

        During cross-examination, the petitioner acknowledged that he was on bond when he
was charged with the offenses for which he was convicted. He testified that his counsel had
informed him he would be sentenced as a Range I offender if he pled guilty but a Range II
offender if he opted to go to trial. The petitioner testified that he understood that his offender
classification would affect the range of his potential sentence to confinement.

       Trial counsel for the petitioner also testified at the hearing. Trial counsel testified that

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he recalled receiving a letter from the prosecution prior to trial, in which the prosecution
noted its position that any sentence would have to run consecutively to the petitioner’s earlier
Dyer County conviction and “any offer would have to involve a mandatory consecutive
sentence.” Trial counsel stated that there was a plea offer from the prosecution included with
that letter and that he had communicated this offer to the petitioner.

        Concerning his conduct at the petitioner’s sentencing hearing, trial counsel testified
that he did not cite to authority in response to the prosecution’s argument that the petitioner’s
sentences must be run consecutive to his earlier conviction given Rule 32 of the Tennessee
Rule of Criminal Procedure 32 because he did not believe any cases fit the petitioner’s
circumstances, as the petitioner had already been convicted of the first offense when he was
out on bond. Trial counsel testified that he did argue regarding whether Rule 32 applied to
the petitioner, but trial counsel did not contest the petitioner’s claim that he had never
discussed with the petitioner the possibility of being sentenced to consecutive sentences as
a professional criminal. Trial counsel had no recollection of doing any legal research
concerning whether the sentences would have to be served consecutively if the petitioner was
out on bond when he committed the later offense. Trial counsel testified that his argument
relied on the language of Rule 32 itself.

        After all the testimony was taken, the post-conviction court, which had also served as
the trial court, noted that, during sentencing, it had intended to make the petitioner’s sentence
consecutive whether or not it was mandatory to do so and that it had considered the pre-
sentencing report and the absence of a work history in doing so. “My memory about this was
that I sentenced him to [a] consecutive sentence – consecutive sentence number one because
it was probably mandatorily consecutive but even if it was not mandatorily consecutive I
found that he was a professional criminal and it was certainly . . . discretionary for me to do
so.” The post-conviction court noted that this last determination was based on evidence that
the petitioner had no income aside from the sale of drugs. The post-conviction court, finding
no deficiency in the performance of petitioner’s counsel and no prejudice, denied the petition.

                                           Analysis

       In order to be successful on a post-conviction petition, a petitioner must show both
deficient performance by counsel and prejudice resulting from that deficient performance.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficiency requires a showing that
counsel’s errors were so serious that counsel did not function as the counsel guaranteed under
the Sixth Amendment to the United States Constitution. Id. at 687. Representation must fall
below “an objective standard of reasonableness” and must surmount a “strong presumption
that counsel’s conduct falls within the wide range of reasonable professional assistance.”
Calvert v. State, 342 S.W.3d 477, 486 (Tenn. 2011) (quoting Strickland, 466 U.S. at 694).

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       Once deficiency has been shown, the petitioner must demonstrate that the deficiency
resulted in prejudice. Prejudice is established when the petitioner shows that there is a
reasonable probability that, but for counsel’s deficiency, the results of the proceeding would
have been different. Strickland, 466 U.S. at 694. A reasonable probability is one “sufficient
to undermine confidence in the outcome.” Id. A petitioner must show both deficient
performance and resulting prejudice. Failure to prove either prong is a basis for denying the
petition; the court need not address both prongs or analyze the requirements in any particular
order. Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). In order to succeed on a post-
conviction claim, the petitioner must establish the grounds for relief by clear and convincing
evidence. T.C.A. §40-30-110(f) (2010). Clear and convincing evidence is evidence that
leaves 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).

        The petitioner’s first claim for relief is that his trial counsel was ineffective for failing
to alert him to the possibility that the sentence on his felony drug charge could be ordered to
run consecutively to his earlier Dyer County conviction. The petitioner asserts that, had
counsel informed him of the possibility that consecutive sentences could be imposed, he
would have pled guilty rather than go to trial. The petitioner testified he was unaware of the
possibility of consecutive sentencing until his own sentences were imposed consecutively.

         However, his trial counsel testified that, prior to trial, the State had indicated by letter
that it believed consecutive sentences were mandatory. Trial counsel also testified that there
was “[n]o question that the District Attorney’s office felt that any offer would have to
involve a mandatory consecutive sentence.” Trial counsel stated that he communicated the
contents of a plea offer in that letter to the petitioner. The post-conviction court found no
deficiency; implicitly, it credited trial counsel’s testimony that he communicated the contents
of a plea offer involving consecutive sentencing to the petitioner rather than the petitioner’s
assertion that he had never heard of the concept of consecutive sentences. The post-
conviction court did not err in failing to find trial counsel’s performance deficient.

       The petitioner also alleges that his trial counsel was ineffective for failing to research
and present arguments that his sentences were not required to be consecutive. Tennessee
Rule of Criminal Procedure 32(c)(3)(C) requires mandatory consecutive sentences for “a
felony committed while the defendant was released on bail and the defendant is convicted
of both offenses.” Like Rule 32(c)(3)(C), Tennessee Code Annotated section 40-20-111(b)
(2010) requires consecutive sentencing when “a defendant commits a felony while the
defendant was released on bail” and the defendant is convicted of both offenses. The
testimony at the post-conviction hearing establishes that trial counsel argued that the court
was not required to sentence the defendant to consecutive sentences. Trial counsel’s
argument was based on the language of Rule 32 and premised on the fact that the petitioner

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had already been convicted of the crime for which he was out on bond. The petitioner’s trial
counsel acknowledged that he did not do any research to find cases that might assist him in
interpreting Rule 32(c)(3)(C) in a light favorable to the petitioner.

        The petitioner has failed to establish either deficient performance or any resulting
prejudice as a result of counsel’s failure to argue that his sentences were not required to be
served consecutively to his earlier conviction. The petitioner cites no case supporting the
proposition that the statutory mandates of Rule 32(c)(3)(C) would not apply to his case. The
plain language of Rule 32 provides no exception for crimes committed after a petitioner has
been convicted. It does not specify when convictions must occur at all. It only requires that
the defendant commit a felony while released on bail and be convicted of both offenses. We
have approved the enhancement of a sentence based on Tennessee Annotated section 40-35-
114(13)(A), allowing the court to consider that the defendant was “[r]eleased on bail or
pretrial release, if the defendant is ultimately convicted” of the crime, when the defendant
was on bail following his conviction. State v. Davis, No. 01C01-9507-CR-00226, 1996 WL
85188, at *4, *6 (Tenn. Crim. App. Feb. 29, 1996) (noting that the defendant “was released
on bail for the purpose of getting his affairs in order before being confined on his sentences
for his prior drug convictions when the present offenses were committed”). Under the Rule,
the petitioner’s sentence for his felony drug charge was required to run consecutively to his
earlier conviction. See, e.g., State v. Blanton, 926 S.W.2d 953, 961 (Tenn. Crim. App. 1996)
(finding that a conviction for the offense for which defendant was out on bail did not need
to precede the conviction for the second offense because it is “irrelevant whether the
conviction for the first offense, releasing the defendant on bail, occurs prior to the conviction
for the second offense, occurring while the defendant is on bail”). Because Rule 32(c)(3)(C)
and Tennessee Code Annotated section 40-20-111(b) required the sentences to run
consecutively, the petitioner’s trial counsel was not deficient for failing to develop the
argument further, and the petitioner cannot show prejudice. Moreover, the trial court’s
inclusion of an alternative basis for the consecutive sentencing – that the petitioner was a
professional criminal – also precludes a finding of prejudice.

                                       CONCLUSION

       For the foregoing reasons, we affirm the judgment of the post-conviction trial court.




                                                     _________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE




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