         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs October 7, 2008

            JOHNNY JUSTIN POSTLES v. STATE OF TENNESSEE

                  Direct Appeal from the Circuit Court for Madison County
                             No. C-07-160    Roger Page, Judge



                      No. W2007-02874-CCA-R3-PC - Filed April 6, 2009


The petitioner, Johnny Justin Postles, appeals from the post-conviction court’s denial of
post-conviction relief as it relates to the petitioner’s convictions for aggravated criminal trespass and
assault in case assignment 04-720, and aggravated assault, aggravated burglary, and theft under $500
in case assignment 04-721. On appeal, he contends that the post-conviction court erred in denying
relief based on his claim of ineffective assistance of counsel. Following our review of the record and
the parties’ briefs, we affirm the judgment of the post-conviction court denying post-conviction
relief.

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

J.C. MCLIN , J., delivered the opinion of the court, in which DAVID H. WELLES and THOMAS T.
WOODALL , JJ., joined.

Paul E. Meyers, Jackson, Tennessee, for the appellant, Johnny Justin Postles.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General,
for the appellee, State of Tennessee.

                                              OPINION

                                         I. BACKGROUND

        The petitioner was indicted for offenses against the same victim in two indictments. The first
indictment related to events occurring on April 5, 2004, and alleged aggravated criminal trespass,
assault, and false imprisonment. The false imprisonment count was dismissed by the state prior to
trial. The second indictment concerned events that occurred May 21, 2004, and alleged aggravated
burglary, aggravated assault, and robbery. Prior to trial, the two indictments were consolidated. The
jury convicted the petitioner of criminal trespass, assault, aggravated burglary, aggravated assault,
and theft. The petitioner was sentenced to five years and six months incarceration to be served
consecutively to a sentence of eleven months and twenty-nine days. On direct appeal, the
petitioner’s convictions were affirmed. See State v. Johnny J. Postles, No. W2005-01641-CCA-R3-
CD, 2006 WL 3371415 (Tenn. Crim. App., at Jackson, Nov. 20, 2006), perm. app. denied (Tenn.
March 19, 2007). The following is a summary of the facts of the case taken from this court’s opinion
on direct appeal:

       The account of these events were related by the victim, Katina Fuller. She testified
       that she and the defendant had been in a dating relationship for several months until
       April 5, 2004. The defendant had not lived at the victim’s residence but had stayed
       overnight on occasions. Ms. Fuller told the defendant that she did not want him at
       her apartment and told him to leave. The defendant did leave but returned and forced
       an entry by breaking in the door. The defendant pulled the victim’s hair and held his
       hand over her nose and mouth. The victim stated she feared for her safety. She
       waited until she was sure the defendant was asleep and escaped to her cousin’s
       residence to call police. The defendant was arrested and placed under a conditional
       bond in the Jackson City Court whereby, among other provisions, the defendant was
       ordered to refrain from contacting the victim or going to her home.

       On May 21, 2004, the defendant knocked on the victim’s door at approximately
       11:30 p.m. After the victim denied him entry, the defendant left but returned. The
       victim notified police, and an officer responded, but the defendant had left. The
       defendant returned, kicked in the victim’s door, and entered the apartment. The
       victim was holding her cell phone in order to call police when the defendant grabbed
       it and ran from the scene. At a later date, the defendant returned the phone to the
       victim’s father.

       The jury heard testimony from Jackson Police officers who responded to the two
       incidents. Pictures were introduced showing the damage done to the victim’s
       apartment door and door facing on both April 5 and May 21.

       The defendant chose not to present proof. Based on the evidence, the jury returned
       guilty verdicts for criminal trespass, assault, aggravated burglary, aggravated assault,
       and theft.

Johnny J. Postles, 2006 WL 3371415 at *1.

        The petitioner filed a timely pro se petition for post-conviction relief along with a number
of motions including a motion to represent himself in seeking post-conviction relief. On September
10, 2007, the post-conviction court held a hearing regarding the petitioner’s ability to represent
himself. The court questioned the petitioner concerning his experience with managing his personal
business and his knowledge of the law including criminal procedure. The court then ruled that the
petitioner knowingly and voluntarily waived his right to counsel and held that the petitioner would
be allowed to represent himself with “elbow” counsel to assist him in obtaining documents for the
post-conviction hearing and to attend the hearing. At the September 10 hearing, the court also
addressed the petitioner’s allegation that the transcript of the trial contained “manufactured material”
with regard to the withdrawal of his alibi defense. After reviewing a recording of the relevant
proceeding, the court determined that the transcript accurately reflected what transpired in court.

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        On October 9, 2007, an evidentiary hearing was conducted by the post-conviction court. The
petitioner reviewed his allegation as set forth in his petition, stating in pertinent part:

                I’ve alleged in Attachment Number Three of my Petition for Post-conviction
        Relief that [trial counsel] . . . . fraudulently caused said petitioner to withdraw a
        legitimate notice of alibi defense in case number 04-721, fraudulently refused to
        provide said petitioner with a copy of the transcripts and [that the court reporter]
        transcribed over four completely fabricated pages of transcripts.

        Trial counsel testified that he recalled meeting with the petitioner several times at the
Madison County jail. Counsel stated that on or about January 14, 2005, the petitioner told him that
he had been at a men’s shelter on May 21, 2004, and that the shelter’s personnel could provide an
alibi for that date. Counsel recalled that he contacted Mr. Pearson, who ran Crossroads Shelter for
Men, and Mr. Pearson told counsel that he would locate his check-in sheet from May 21, 2004.
Counsel recalled that on the day after speaking to Mr. Pearson, he verified with the petitioner the
facts of his alibi and prepared a Notice of Alibi Defense. Counsel testified that before filing the
notice, he again met with the petitioner and went over the alibi defense. Counsel stated that he told
the petitioner that he would have Mr. Pearson subpoenaed for trial. Counsel stated that Mr. Pearson
appeared on the date of trial and brought the May 21, 2004, sign in sheet. However, the sheet did
not corroborate the petitioner’s alibi because it did not contain the name of the petitioner. Counsel
stated that he brought the absence of the petitioner’s name on the sign-in sheet to the petitioner’s
attention on the day of trial, the same day that he became aware of the contents of the sheet.

         On cross-examination, counsel confirmed that the state had also subpoenaed Mr. Pearson to
testify at trial. Counsel stated that if he did not withdraw the alibi defense, the state would have been
able to call Mr. Pearson as a witness which “would have been a tremendous blow to our case.”
Counsel testified that he had a detailed conversation with the petitioner and told the petitioner it
would be better to withdraw the alibi defense and preclude the state from impeaching the defense.
Counsel stated he requested that the court conduct a proceeding on the record to document his
request to withdraw the petitioner’s alibi defense. The following excerpt from the trial transcript
took place outside the presence of the jury and was made an exhibit at the post-conviction hearing:

        [Counsel]:              Your Honor, as the Court may be aware of, that we filed a
                                Notice of Alibi in defense of this case, that my client, of
                                course, was somewhere else on the date in question on May
                                the 21st of ’04. Out of an abundance of caution I filed it. I
                                subpoenaed the witness. He is here. Of course, we’ve talked
                                to him.

                                ....

        [Counsel]               [A]t that time my client says he was at the shelter on Lane Avenue.
                                The gentleman who runs [the shelter] that I’ve talked to says on the
                                day in question that [the petitioner] wasn’t there. He’s provided me
                                with a copy of people that check in and out.

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The Court:          Now, when you say he wasn’t there you’re referring to [the
                    petitioner]?

[Counsel]:          Yes, sir.

[The State]:        Your Honor, I’ve also subpoenaed Mr. Pearson and I’ve
                    explained to [counsel] that if he withdraws the alibi defense,
                    the rule provides that I can’t bring it up. I believe that’s right.
                    But I said if he doesn’t, then certainly - -and I’m going to call
                    Mr. Pearson and I have documents proving that the records do
                    not support his alibi defense.

The Court:          The records show that [the petitioner] was not there?

[The State]:        That’s correct.

[Counsel]:          That’s right.

[The State]:        So without withdrawing it, you know - - I told - - I talked to
                    [counsel] about possibly if he can officially withdraw his alibi
                    Mr. Pearson can go home. But if he’s not, I think [the
                    petitioner], is still claiming the alibi - -

[Counsel]:          Yes.

[The State]:        - - asserting that these are fabrications.

[Counsel]:          He’s asserting the records are completed (sic) fabrications and
                    a total lie, Your Honor.

[The State]:        I think Mr. Pearson will be a State’s witness.

The Court:          Well, I mean, [counsel], I’ll let you decide after talking to [the
                    petitioner] what you want to do. If he insists on it, of course,
                    you’ll have to put it on but - -

[Counsel]:          It’s going to hurt us, Your Honor.

The Court:          It’s going to hurt your case. I hope he understands that.

[The Petitioner]:   Well, if it is going to hurt my case - -

                    ....


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        [Counsel]:              So, Your Honor, based on that, then, he stated in open court
                                that I would ask that the alibi witness be released and I
                                withdraw it.

        The Court:              Well, [the petitioner], I think, seems like an intelligent man.
                                He understands that if he says he . . . says he was there and
                                the man who runs the place comes in and his records show he
                                wasn’t, it’s going to hurt his case. So based on that, I’ll let
                                you withdraw it.

        [Counsel]:              Thank you, Your Honor.

        The petitioner’s court appointed attorney on direct appeal testified that petitioner accused
trial counsel of forging the check-in sheet from the shelter. Appellate counsel stated he obtained a
copy of the sign-in sheet and had Mr. Pearson sign and date the back of the copy. He assumed that
the copy signed by Mr. Pearson would be enough to satisfy the petitioner that no fraud had occurred
in connection with the sign-in sheet.

         The petitioner also questioned two law enforcement officers who had been present at his trial.
Sergeant Glenn McCarty stated that he generally remembered being in the courtroom during the
petitioner’s trial, however, did not specifically remember any facts of the trial. Deputy Sherry Hall
testified that she recalled that the petitioner’s alibi was not corroborated, that the petitioner decided
not to have the alibi witness testify, and that the defense was dropped.

         After the hearing, the post-conviction court entered an order denying post-conviction relief.
The petitioner now appeals contending that the post-conviction court erred in denying relief. He
asserts that assistance by counsel was ineffective and claims counsel failed to “adequately investigate
the case and misrepresented to the petitioner before trial that petitioner had a viable alibi defense.”
The petitioner submits that “due to this lack of diligence [the petitioner] was led into trial with no
defense at all.”

                                             ANALYSIS

        In order for a petitioner to succeed on a post-conviction claim, the petitioner must prove the
allegations of fact set forth in his petition by clear and convincing evidence. Tenn. Code Ann. §
40-30-110(f) (2006). On appeal, this court is required to affirm the post-conviction court’s findings
unless the petitioner proves that the evidence preponderates against those findings. State v. Burns,
6 S.W.3d 453, 461 (Tenn. 1999). Our review of the post-conviction court’s factual findings, such
as findings concerning the credibility of witnesses and the weight and value given their testimony,
is de novo with a presumption that the findings are correct. See id. Our review of the
post-conviction court’s legal conclusions and application of law to facts is de novo without a
presumption of correctness. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001).

        To establish the ineffective assistance of counsel, the petitioner bears the burden of proving
that (1) counsel’s performance was deficient and (2) the deficient performance prejudiced the

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defense rendering the outcome unreliable or fundamentally unfair. See Strickland v. Washington,
466 U.S. 668, 687 (1984); see also Arnold v. State, 143 S.W.3d 784, 787 (Tenn. 2004). Deficient
performance is shown if counsel’s conduct fell below an objective standard of reasonableness under
prevailing professional standards. Strickland, 466 U.S. at 688; see also Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975) (establishing that representation should be within the range of competence
demanded of attorneys in criminal cases). Prejudice is shown if, but for counsel’s unprofessional
errors, there is a reasonable probability that the outcome of the proceeding would have been
different. Strickland, 466 U.S. at 694. A fair assessment 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.”
Id. at 689; see also Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). Both deficient performance
and prejudice must be established. Strickland, 466 U .S. at 697; see also Goad v. State, 938 S.W.2d
363, 370 (Tenn. 1996). If either element of ineffective assistance of counsel has not been
established, a court need not address the other element. Strickland, 466 U.S. at 697. In considering
claims of ineffective assistance of counsel, “[w]e address not what is prudent or appropriate, but only
what is constitutionally compelled.” United States v. Cronic, 466 U.S. 648, 665 n. 38 (1984).

        In denying relief on the claim that the petitioner raises on appeal, the post-conviction court’s
order states in pertinent part:

               Petitioner filed multiple “attachments,” totaling more than 20 pages of
       information. Notably, there are not specific claims of ineffective assistance of
       counsel contained within those attachments. Rather, there are allegations of fraud,
       conspiracy, and forgery, all of which were refuted by the witnesses at the post-
       conviction hearing. There are no claims that are properly raised for consideration by
       this Court. Petitioner failed to present evidence in support of any claims of
       ineffective assistance of counsel. As such, this Court denies relief on this issue.

We agree with the post-conviction court that the petitioner did not present evidence in support of his
claim of ineffective assistance of counsel. The record shows that the petitioner told counsel of an
alibi defense on January 14, 2005, and that counsel timely filed a notice of the petitioner’s alibi with
the court. Counsel contacted the shelter personnel identified by the petitioner and requested proof
of the petitioner’s presence at the shelter on the date in question. Counsel subpoenaed the alibi
witness to trial. Upon discovering that the sign-in sheet brought to trial by the witness did not
corroborate the petitioner’s alibi, counsel requested that the petitioner be allowed to withdraw the
alibi. Additionally, the petitioner failed to prove the existence of any viable defense, nor did he
show that such defense was unavailable to him at trial. Therefore, we conclude that the petitioner
failed to prove that trial counsel rendered deficient representation or that the petitioner suffered
prejudice as a result of counsel’s handling of the petitioner’s alibi defense. The petitioner is without
relief.

                                           CONCLUSION

       The judgment of the post-conviction court denying relief is affirmed.


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      ___________________________________
      J.C. McLIN, JUDGE




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