                                                                                           11/05/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs March 21, 2018

                 JAMES CARROLL v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Maury County
                     Nos. 23899, 23969 Robert L. Jones, Judge
                      ___________________________________

                           No. M2017-01075-CCA-R3-PC
                       ___________________________________

The Petitioner, James Carroll, filed a petition seeking post-conviction relief from his
convictions of aggravated assault and driving under the influence (DUI), second offense
and effective four-year, six-month sentence. In the petition, the Petitioner alleged that (1)
the State violated his due process rights by failing to collect and preserve evidence
pursuant to State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999), and that (2) his trial counsel
was ineffective (a) by failing to challenge the State’s Ferguson violation and (b) by
advising the Petitioner to waive his motion for new trial and his direct appeal. 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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which THOMAS T.
WOODALL and CAMILLE R. MCMULLEN, JJ., joined.

Brandon E. White, Columbia, Tennessee, for the Appellant, James Carroll.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant
Attorney General; Brent A. Cooper, District Attorney General; and Caleb Bayless,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background

                                          A. Trial
        The Petitioner was indicted for the aggravated assault of his girlfriend, Laura
Johnson Clark, and for driving under the influence (DUI), second offense. At trial,1
Columbia Police Officer Jennifer Dalton testified that on November 1, 2014, the victim
called 911 and reported that someone had doused her with lighter fluid and threatened to
set her on fire. Around 2:30 or 3:00 p.m., Officer Dalton responded to the victim’s one-
bedroom, efficiency apartment. The front door was standing open, and the victim, who
was under the influence of alcohol, was standing inside the apartment, crying and
shaking. Officer Dalton saw multiple patches on the right side of the victim’s shirt that
were either stained, discolored, or wet. Officer Dalton took photographs of the victim’s
shirt, which were shown to the jury. Officer Dalton did not smell any lighter fluid, but
she explained that she was familiar with lighter fluid and knew the smell dissipated
quickly. On a dresser inside the small apartment, Officer Dalton saw a bottle of lighter
fluid and a “lighter holder” that attached to a belt. The victim asked Officer Dalton for
permission to smoke a cigarette, but Officer Dalton told her not to smoke.

       The victim testified the she and the Petitioner had been drinking “[q]uite a bit” the
night before the incident and that they got up around 7:00 a.m. on the morning of the
offense and started drinking. The Petitioner was drinking whiskey and the victim had
two “40 ounce beer[s],” but the Petitioner “was kind of drinking [the victim’s second
beer] with his whiskey, so [she] didn’t really get a lot of it.”

        Later in the day, they argued, but she could not recall what caused the argument.
During the argument, the Petitioner grabbed a can of lighter fluid, sprayed her arm once,
and threatened to set her on fire. The victim said that the spray was “just a squirt” and
that her shirt was not soaked with lighter fluid. After the Petitioner threatened her, he put
his hand on the Zippo lighter, which was in a holder attached to his belt, but he did not
remove the lighter from its holder. The victim opined that the Petitioner did not intend to
follow through with his threat, that he did not mean her any harm, and that he was only
joking. Nevertheless, after he threatened her, she went outside the apartment and called
the police to “come and settle us down.” The Petitioner left the apartment when he
discovered she had called the police. The victim acknowledged she asked Officer Dalton
if she could smoke a cigarette but said that she was advised against it. The victim did not
recall telling the 911 operator that she was afraid for her life but acknowledged that she
may have said it.

       The Petitioner testified that he had consumed alcohol the night before the incident
but that only the victim drank alcohol on the morning of the incident. After he made
lunch for the victim and himself, they sat beside each other on the bed. The victim
accused him of drinking all of her beer, and the Petitioner laughed at the accusation,

       1
        We have gleaned these facts from the trial transcripts which were submitted as exhibits at the
post-conviction hearing.
                                                -2-
which angered her. The Petitioner got up and walked to the dresser to fill his lighter with
lighter fluid. While his back was to the victim, she stood up and bumped him as she
walked past him. The Petitioner reassembled the lighter and put it in his pocket. The
victim went outside, walked to a nearby apartment, and sat calmly in a chair. The
Petitioner said that he left the apartment because the victim was drunk and because he did
not want the situation to get worse. The Petitioner opined that the only way the victim
could have gotten any lighter fluid on her was by bumping into him; however, he said he
was not sure any lighter fluid got on her clothes. The Petitioner explained that Zippo
lighter fluid came out of the can in a narrow stream and that a person would have to be
restrained before they could be soaked with lighter fluid. The Petitioner acknowledged
that the lighter fluid was clear, that it had hardly any smell, and that it quickly
evaporated. He did not think lighter fluid would stain clothing. He noted that a warning
on the back of the lighter fluid can stated that any clothing with lighter fluid on it should
be thrown away. The Petitioner said that the victim did not remove her clothes. The
Petitioner agreed that Officer Dalton may not have smelled lighter fluid on the victim’s
shirt because lighter fluid did not have much of an odor.

       Shortly after the offense, Officer Josh Garner stopped the Petitioner’s vehicle
approximately one-quarter of a mile from the victim’s apartment. The Petitioner exited
the vehicle at Officer Garner’s request. Officer Garner saw a half-empty bottle of
whiskey inside the vehicle. The Petitioner’s speech was slurred, and he smelled of
alcohol. The Petitioner acknowledged that he had been drinking alcohol the previous
night but maintained he had not consumed any alcohol that day. Officer Garner arrested
the Petitioner for DUI.

       Based upon the foregoing proof, the jury convicted the Petitioner of aggravated
assault and DUI. The Petitioner waived his right to have a jury determine whether he had
a prior DUI conviction. The trial court found the Petitioner guilty of DUI, second
offense. Thereafter, the Petitioner filed a motion for new trial. However, the Petitioner
executed a written waiver of his motion for new trial and did not pursue a direct appeal.

                                    B. Post-Conviction

       The Petitioner timely filed a pro se petition for post-conviction relief, counsel was
appointed, and an amended petition was filed. In pertinent part, the Petitioner alleged
that that the State violated his due process rights by failing to collect and preserve the
victim’s shirt pursuant to State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999), and that his trial
counsel was ineffective by failing to challenge the State’s Ferguson violation and by
advising the Petitioner to waive his motion for new trial and his direct appeal.

       At the post-conviction hearing, the Petitioner testified that Officer Dalton’s
allegation that the victim’s shirt was “soaked” with lighter fluid was impossible because
                                            -3-
lighter fluid “comes out [of the can] the size of half of a pencil lead. In order to soak
somebody, especially to the extent that it was contended, you would have to hold
somebody down and pour it on them, to get them actually wet that way.” He also
recalled that Officer Dalton said she did not smell lighter fluid on the victim. The
Petitioner contended that Officer Dalton should have been able to smell lighter fluid if it
had been on the shirt.

        The Petitioner stated that trial counsel told him that a direct appeal “would do no
good” because they would not be permitted to introduce new evidence during the appeal.
The Petitioner thought trial counsel would not be helpful on appeal and said that trial
counsel provided incorrect advice regarding whether the Petitioner should waive his right
to a direct appeal.

        The Petitioner said that to his knowledge, trial counsel never investigated the
apartment where the aggravated assault allegedly occurred. The Petitioner and trial
counsel had a telephone conversation regarding whether lighter fluid would stain the
victim’s shirt. Trial counsel advised the Petitioner that he did not have the victim’s shirt
for testing and that another shirt might not stain or bleach the same as the victim’s shirt.
Trial counsel did not investigate whether lighter fluid might have an effect on a person’s
skin. The Petitioner acknowledged that at trial, the State brought up “to a degree” that
lighter fluid could irritate skin. The Petitioner said that he was a smoker, that he had used
Zippo lighters since he was twenty years old, and that he knew lighter fluid could burn
his skin if he failed to wash it off.

       On cross-examination, the Petitioner said that he thought trial counsel should have
introduced proof that the victim walked less than ten feet away from the Petitioner, sat
down, and called the police, which he thought belied her claim that she was afraid of him.

       The Petitioner said that he requested new counsel on two occasions because he
thought trial counsel would not help him. The State made a plea offer with a one-year
sentence. The Petitioner agreed that, “in hindsight,” he should have accepted the plea
offer, but he stated that he had not wanted to plead guilty to an offense he did not
commit. The Petitioner said that trial counsel spent ten minutes providing him with the
reasons a direct appeal would not be successful. The Petitioner acknowledged that he did
not have any evidence that a direct appeal would have been successful.

      The Petitioner said that his relationship with the victim continued after he was
charged with assaulting her and that they arrived at the post-conviction hearing together.
He maintained, however, that he did not have contact with her until after the trial. He did
not know if she still had the shirt at the time he resumed contact with her and never
thought about asking her for the shirt.

                                            -4-
       On redirect examination, the Petitioner said that after he was arrested for DUI, he
was in jail for at least six months before he was released on bond. While he was in jail,
he did not have access to the victim’s shirt. The Petitioner said that “in hindsight,” he
thought he should have pursued a direct appeal. At the time, however, he thought it
would be a “wast[e of] time” because the trial court had denied his requests for a new
attorney, and he thought trial counsel would not put forth an adequate effort on appeal.

       On recross-examination, the Petitioner said that he recalled speaking with trial
counsel on two occasions at the jail. He asserted that trial counsel “didn’t go out of his
way to help me whatsoever.” The Petitioner maintained that trial counsel was not
prepared for trial and should have brought “other facts” to the jury’s attention. Trial
counsel advised the Petitioner to accept the State’s plea offer which included a sentence
of eleven months and twenty-nine days. The Petitioner said that he would have accepted
the plea offer despite his innocence if he had known trial counsel would not have been
more helpful.

       Trial counsel said that he was licensed to practice law in 2012, that he had been
involved in five or six trials, and that all of the trials were criminal cases. A different
attorney represented the Petitioner at the preliminary hearing, and trial counsel was
appointed to represent the Petitioner at trial.

      Trial counsel reviewed the discovery provided by the State. Additionally, trial
counsel researched whether spraying lighter fluid on another person could constitute an
aggravated assault; however, he was unable to find any cases directly on point.

        Trial counsel said that he met with the Petitioner on multiple occasions. They
discussed trial procedure, jury selection, and whether the Petitioner should testify. Trial
counsel acknowledged that he never went to the apartment to investigate. Trial counsel
also acknowledged that he did not interview Officer Dalton or the victim but said that he
reviewed their preliminary hearing testimony. He said that in late spring 2015, he used a
white t-shirt he owned to test how lighter fluid would spread on the shirt. He used a can
of lighter fluid similar to the one found in the apartment. Trial counsel acknowledged
that testing on the victim’s blue shirt may have had different results.

       Trial counsel said that his main objective at trial was to establish the Petitioner did
not intend to harm the victim. The Petitioner consistently maintained that he had a lighter
in one hand and a can of lighter fluid in the other hand when the victim bumped into him,
causing lighter fluid to splash onto her shirt. Trial counsel said that he knew prior to trial
that the victim had tried to smoke a cigarette in front of Officer Dalton. He may have
known that the victim did not ask to change clothes and that Officer Dalton did not smell
lighter fluid on the victim. Trial counsel said that when he performed his tests on the
white t-shirt, he thought the lighter fluid had a distinctive smell. He acknowledged that
                                            -5-
his tests were “inconclusive.” Trial counsel did not investigate the possible effects of
lighter fluid on human skin.

       Trial counsel said he advised the Petitioner that the trial court might not allow
them to test a shirt and lighter fluid during trial. Nevertheless, he acknowledged that he
never requested the trial court’s permission to conduct such testing.

        Trial counsel agreed that the two photographs of the victim and her blue shirt were
not “HD quality” and were “a bit grainy.” He further agreed that he could not determine
by looking at the photographs whether lighter fluid was on the shirt. Trial counsel never
asked the State where the shirt was located. Trial counsel acknowledged that he did not
file a motion to have the State preserve the shirt and that by the time of trial, the shirt was
not available.

       Trial counsel said that he never told the Petitioner that he should not pursue a
direct appeal. However, he advised the Petitioner that appeals which raised only
sufficiency concerns rarely were successful. Regarding his decision not to file a
Ferguson motion to exclude evidence regarding the shirt, trial counsel explained that
based on his experience as an attorney and as a former law enforcement officer, “the
general practice is that materials that possess a chemical hazard or a flammable hazard
would not be preserved.” Trial counsel said he was aware “the courts had already ruled
they’re not under an obligation to preserve that.”

       On cross-examination, trial counsel said that after he filed a motion for new trial,
he met with the Petitioner at the Place of Hope where the Petitioner was undergoing
rehabilitation. The Petitioner “indicated to [trial counsel] that he did not want to pursue
it, he was just going to take responsibility for this and get on with his life.”
Subsequently, the Petitioner signed a written waiver of his motion for new trial. The
waiver, which was submitted as an exhibit at the post-conviction hearing, contains
provisions which state that the Petitioner “acknowledges that [the] withdrawal of his
Motion for a New Trial procedurally extinguishes his right to appeal” and that the
Petitioner “does not wish to proceed with an appeal.” Trial counsel denied forcing the
Petitioner to waive his motion for new trial and his direct appeal. He stated that he
merely advised the Petitioner that in his experience, direct appeals involving only
challenges to the sufficiency of the evidence rarely were successful and said that the
Petitioner made the decision to forego the appeal. Trial counsel said that his opinion
regarding the appeal had not changed and that he still thought the Petitioner had little
chance of success on appeal.

        Trial counsel said that he advised the Petitioner to accept the State’s offer to plead
guilty to domestic assault and receive a suspended sentence of eleven months and twenty-
nine days. The Petitioner, however, rejected that advice and chose to go to trial. Trial
                                             -6-
counsel noted that the victim had testified at trial that “there was never any lighter out”
during the offense, which was contrary to what the Petitioner had told trial counsel. Trial
counsel said that it would have benefitted the State’s case if he had chosen to impeach the
victim. After the State rested its case-in-chief, trial counsel and the Petitioner discussed
the possible benefits and risks of the Petitioner’s testifying. Trial counsel advised the
Petitioner that he did not think an acquittal was likely but that the jury might convict the
Petitioner of a lesser-included offense. In his motion for judgment of acquittal, trial
counsel argued that lighter fluid alone was not a deadly weapon.

      At the conclusion of the hearing, the post-conviction court filed a written order,
denying relief. On appeal, the Petitioner challenges the post-conviction court’s ruling.

                                       II. Analysis

        To be successful in a claim for post-conviction relief, a petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn.
Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.
1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded
their testimony, and the factual questions raised by the evidence adduced at trial are to be
resolved by the post-conviction court as the trier of fact. See Henley v. State, 960
S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court’s findings of fact are
entitled to substantial deference on appeal unless the evidence preponderates against
those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

       First, we will address the Petitioner’s claim that the State violated his due process
rights by failing to collect and preserve the victim’s shirt. The Due Process Clause of the
Fourteenth Amendment to the United States Constitution and article I, section 8 of the
Tennessee Constitution afford every criminal defendant the right to a fair trial. See
Johnson v. State, 38 S.W.3d 52, 55 (Tenn. 2001). As such, the State has a constitutional
duty to furnish a defendant with exculpatory evidence pertaining to the defendant’s guilt
or innocence or to the potential punishment faced by a defendant. See Brady v.
Maryland, 373 U.S. 83, 87 (1963).

        In State v. Ferguson, 2 S.W.3d 912, 915-18 (Tenn. 1999), our supreme court
addressed the issue of when a defendant is entitled to relief in the event the State has lost
or destroyed evidence that was alleged to have been exculpatory. The court explained
that a reviewing court must first determine whether the State had a duty to preserve the
lost or destroyed evidence. Id. at 917. Ordinarily, “the State has a duty to preserve all

                                            -7-
evidence subject to discovery and inspection under Tenn. R. Crim. P. 16, or other
applicable law.” Id. However,

              “[w]hatever duty the Constitution imposes on the States to
              preserve evidence, that duty must be limited to evidence that
              might be expected to play a significant role in the suspect’s
              defense. To meet this standard of constitutional materiality,
              evidence must both possess an exculpatory value that was
              apparent before the evidence was destroyed, and be of such a
              nature that the defendant would be unable to obtain
              comparable evidence by other reasonably available means.”

Id. (quoting California v. Trombetta, 467 U.S. 479, 488-89 (1984)).

       If the proof demonstrates the existence of a duty to preserve the evidence and
further shows that the State has failed in that duty, a court must proceed with a balancing
analysis involving consideration of the following factors:

              1. The degree of negligence involved;
              2. The significance of the destroyed evidence, considered in
              light of the probative value and reliability of secondary or
              substitute evidence that remains available; and
              3. The sufficiency of the other evidence used at trial to
              support the conviction.

Id. (footnote omitted). If the court’s consideration of these factors reveals that a trial
without the missing evidence would lack fundamental fairness, the court may consider
several options such as dismissing the charges or providing an appropriate jury
instruction. Id. This court reviews the trial court’s decision concerning the fundamental
fairness of a trial conducted without the missing evidence under a de novo standard of
review. State v. Merriman, 410 S.W.3d 779, 791 (Tenn. 2013).

       We note that the Petitioner could have raised a Ferguson challenge during trial or
on direct appeal. As this court has explained:

              It is well established that a party may not raise an issue in a
              post-conviction petition that could have been raised on direct
              appeal. State v. Townes, 56 S.W.3d 30, 35 (Tenn. Crim.
              App. 2000). “A ground for relief is waived if the petitioner
              personally or through an attorney failed to present it for
              determination in any proceeding before a court of competent
              jurisdiction in which the ground could have been presented.”
                                           -8-
              Tenn. Code Ann. § 40-30-206(g) (1997). “The opportunity to
              raise the issue during a direct appeal of the conviction,
              coupled with a failure to pursue that appeal or a failure to
              raise the issue during that appeal, constitutes a waiver of the
              issue pursuant to Code section 40-30-206(g) for purposes of a
              post-conviction relief proceeding.” Townes, 56 S.W.3d at 35.

Andrew Cole v. State, No. W2002-01432-CCA-R3-PC, 2003 WL 22071451, at *4 (Tenn.
Crim. App. at Jackson, Aug. 29, 2003). Therefore, the Petitioner has waived any
freestanding issues concerning a potential Ferguson violation.

       Next, we will turn to the Petitioner’s claims of ineffective assistance of counsel. A
claim of ineffective assistance of counsel is a mixed question of law and fact. See State
v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s
findings of fact de novo with a presumption that those findings are correct. See Fields,
40 S.W.3d at 458. However, we will review the post-conviction court’s conclusions of
law purely de novo. Id.

        When a petitioner seeks post-conviction relief on the basis of ineffective
assistance of counsel, “the petitioner bears the burden of proving both that counsel’s
performance was deficient and that the deficiency prejudiced the defense.” Goad v.
State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). To establish deficient performance, the petitioner must show that counsel’s
performance was below “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, 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. Moreover,

              [b]ecause a petitioner must establish both prongs of the test, 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 insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).

       The Petitioner contends that his trial counsel was ineffective by failing to file a
motion to dismiss the charge of aggravated assault based upon the State’s Ferguson
violation or by failing to file a motion to instruct the jury on the Ferguson violation. Trial
                                            -9-
counsel testified that he decided not to file a Ferguson motion based upon his experience
as a law enforcement officer and as a lawyer that materials which pose a potential hazard
generally are not preserved. The post-conviction court disagreed with this reasoning,
finding that the victim’s shirt was not too hazardous for the State to collect and store.
Regardless, the post-conviction court found that the State did not have a duty to collect or
store the shirt, noting that the issue underlying the Petitioner’s aggravated assault charge
was not primarily whether lighter fluid was on the victim’s shirt. The issue was whether
the Petitioner intentionally sprayed the lighter fluid on the victim’s shirt and threatened to
burn her or whether the lighter fluid on her shirt resulted from her accidentally bumping
into the Petitioner. Therefore, the materiality of the shirt was not readily apparent. This
court has stated that “the mere possibility of exculpatory content does not trigger a
finding that the State failed in its general duty to preserve evidence under Ferguson.”
State v. Ronnie D. Sims, No. M2004-02491-CCA-R3-CD, 2005 WL 3132441, at *8
(Tenn. Crim. App. at Nashville, Nov. 22, 2005) (citing State v. Coulter, 67 S.W.3d 3, 54-
55 (Tenn. Crim. App. 2001)). The post-conviction court determined, accordingly, that
“[p]reserving the shirt was not required or even appropriate” and that Ferguson was not
applicable. We agree.

       The post-conviction court also found that Officer Dalton’s testimony and the
photographs of the shirt adequately described the amount of lighter fluid sprayed on the
shirt and the areas on the shirt on which the fluid was sprayed; in other words, they
constituted reliable substitute evidence, which satisfied Ferguson. As such, the post-
conviction court found that trial counsel was not ineffective by failing to file a motion for
dismissal of the charges or or a jury instruction based upon Ferguson.

       The Petitioner next asserts that his trial counsel was ineffective by advising him to
waive his direct appeal. The Petitioner contends trial counsel should have appealed the
sufficiency of the evidence sustaining the Petitioner’s aggravated assault conviction,
asserting that “merely spraying someone with lighter fluid does not constitute the offense
of aggravated assault” and that the State did not prove that the Petitioner “used or
displayed his lighter in a manner” suggesting he intended to ignite the lighter fluid.

       “In Tennessee, a criminal defendant has the right to one level of appellate review.”
Serrano v. State, 133 S.W.3d 599, 604 (Tenn. 2004) (citing Tenn. R. App. P. 3(b) (2003);
Collins v. State, 670 S.W.2d 219, 221 (Tenn. 1984)). “Because a defendant has a
statutory right to appeal, an attorney has an obligation to consult with the defendant about
an appeal following a conviction.” Arroyo v. State, 434 S.W.3d 555, 559 (Tenn. 2014).
After the consultation, the attorney should comply with the defendant’s wishes; in other
words, if the defendant wants to file an appeal, the attorney should comply. Id. at 559-
60. However, the law does not require a defendant to appeal a criminal conviction;
accordingly, a defendant may waive his right to appeal if he so desires. Serrano, 133
S.W.3d at 604. As a protection of a defendant’s rights, Tennessee Rule of Criminal
                                            - 10 -
Procedure 37(d) requires that when a defendant chooses to waive the right to a direct
appeal, counsel for the defendant shall file a written waiver of appeal, signed by the
defendant, which clearly reflects that the defendant was aware he had the right to appeal
and was voluntarily waiving it.2 Id.; see also Carter v. State, 102 S.W.3d 113, 119 (Tenn.
Crim. App. 2002).

        The post-conviction court found that the proof adduced at trial was sufficient to
sustain the Petitioner’s aggravated assault conviction to the satisfaction of the jury and
the trial court as thirteenth juror; therefore, the Petitioner suffered no prejudice by
abandoning an appeal of the sufficiency of the evidence. In support of this finding, the
post-conviction court noted that Officer Dalton testified regarding the victim’s “hysterical
mental state” and that the photographs established three, separate stains of lighter fluid on
the victim’s shirt, which the court found “strongly suggest[ed]” the lighter fluid was
placed on the shirt intentionally, not accidentally. The court also found that the victim’s
testimony at trial clearly was designed to be favorable to the defense and that the
Petitioner had placed undue weight on her altered version of events in choosing to go to
trial and reject the State’s favorable plea offer. Moreover, the post-conviction court
noted that the victim was present at the post-conviction hearing but did not testify. The
post-conviction court opined that the Petitioner’s main complaint was his dissatisfaction
with his choice to reject the State’s plea offer, not his dissatisfaction with trial counsel.

        Moreover, trial counsel testified that he never advised the Petitioner not to pursue
a direct appeal; he merely cautioned the Petitioner that appeals which challenged only the
sufficiency of the convicting evidence had little chance of success. The Petitioner did not
testify that trial counsel told him not to pursue a direct appeal and instead essentially
testified that trial counsel told him an appeal would not be successful. Trial counsel
testified that the Petitioner had entered a rehabilitation program and chose to waive his
direct appeal in order to “get on with his life.” Although trial counsel had filed a motion
for new trial, the Petitioner signed a waiver of his motion for new trial and direct appeal,
which was filed on November 6, 2015. The Petitioner acknowledged that he waived his
direct appeal because he thought it would be a “wast[e of] time.” We conclude that the
Petitioner is not entitled to post-conviction relief.

                                           III. Conclusion

       Upon review, we conclude that the post-conviction court’s judgment should be
affirmed.
                                            _________________________________
                                            NORMA MCGEE OGLE, JUDGE

        2
           The written waiver in the record was signed by the Petitioner, trial counsel, the prosecutor, and
the trial court.
                                                  - 11 -
