             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT KNOXVILLE
                               Assigned on Briefs November 18, 2008

                     BRYAN LEE CABLE v. STATE OF TENNESSEE

                           Appeal from the Circuit Court for Blount County
                              No. C-16729    Michael H. Meares, Judge



                       No. E2007-02668-CCA-R3-PC - Filed February 12, 2009


The petitioner, Bryan Lee Cable, appeals the denial of his petition for post-conviction relief. In this
appeal he asserts that he was denied the effective assistance of counsel at trial. Discerning no error,
we affirm the judgment of the post-conviction court.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which THOMAS T. WOODALL
and ROBERT W. WEDEMEYER , JJ., joined.

Robert L. Huddleston, Knoxville, Tennessee, for the appellant, Bryan Lee Cable.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General;
Mike Flynn, District Attorney General; and Rocky H. Young, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                                      OPINION

                A Blount County Circuit Court jury convicted the petitioner, Bryan Lee Cable, of
two counts of aggravated burglary, a Class C felony; two counts of theft of $10,000 or more, a Class
C felony; two counts of burglary, a Class D felony; and four counts of theft of $1000 or more, a
Class D felony. The trial court imposed an effective sentence of 24 years’ incarceration. This court
affirmed the 24-year sentence on direct appeal. See State v. Brian Lee Cable, No.
E2005-00608-CCA-R3-CD, slip op. at 10 (Tenn. Crim. App., Knoxville, May 19, 2006).1 Our
supreme court denied the petitioner’s application for permission to appeal on September 25, 2006.
See State v. Bryan Lee Cable, No. E2005-00608-SC-R11-CD (Tenn., Sept. 25, 2006). The petitioner
then filed a timely petition for post-conviction relief.



         1
          Although this court spelled the petitioner’s name “Brian” in our opinion on direct appeal, the post-conviction
record reflects a spelling of “Bryan.” W e will use the latter spelling. The petitioner did not challenge the propriety of
his convictions on direct appeal.
                In his petition, the petitioner claimed that his convictions were based upon evidence
obtained during an unconstitutional search and seizure, that his convictions were based upon the
violation of his privilege against self-incrimination, that he was denied the effective assistance of
counsel, and that he had obtained newly discovered evidence that called into question the validity
of his convictions. The petitioner, through his appointed counsel, filed an amended petition on
September 10, 2007, alleging that his trial counsel should have pursued allegations that one of the
victims had improper contact with a juror and that counsel should have filed a motion to sever the
offenses. The petitioner abandoned grounds that his convictions were based upon illegally seized
evidence or a violation of his privilege against self-incrimination and that newly discovered evidence
affected his convictions.

                 At the November 9, 2007 evidentiary hearing on his petition, the petitioner testified
that his trial counsel never discussed any type of trial strategy with him and claimed that the two
“didn’t have that much contact.” The petitioner also expressed confusion regarding the court
proceedings, explaining, “I don’t really understand things that goes [sic] on. I don’t understand
what’s going on as far as court and things like that. I don’t understand those questions and stuff.”
He blamed his lack of understanding on “a learning disorder” he had “ever since [he] was a little
kid.” The petitioner stated that he asked trial counsel to subpoena “[a]bout seven or eight” witnesses
to testify on his behalf but he could only remember “some of the names.” Included among his list
of desired witnesses were potential co-defendants, “the[] Reynolds boys.” The defendant claimed
that he and trial counsel had never discussed the filing of a motion to sever the offenses.

               During cross-examination, the petitioner admitted that he had given an incriminatory
statement to police prior to trial and that trial counsel successfully had portions of the videotaped
statement redacted. The petitioner also conceded that one of the witnesses he wanted trial counsel
to subpoena, Roger Gibson, had testified as a witness for the State. The petitioner, acknowledging
that Mr. Gibson was one of the victims in the case, stated, “He testified on the State’s behalf. But
I was wanting him to be a witness there on other issues.” The petitioner testified that he was “not
sure [Mr. Gibson] could have” offered testimony on his behalf regarding some of the offenses. The
petitioner insisted that testimony from the Reynolds brothers “would have helped [him]
tremendously.” He explained, “[T]hey w[ere] the one[s] that actually did the crime. I was just the
one involved in the stolen property.”

                The petitioner also conceded that he had rejected a plea offer that included an eight-
year sentence, another offer that included a ten-year sentence, and finally an offer that included a 12-
year sentence, but he claimed that he had done so only on the advice of trial counsel. He stated that
he was “confused” because trial counsel had told him the potential sentence if convicted at trial
would be three to six years. The petitioner acknowledged that if the trial court granted post-
conviction relief and agreed to sever the offenses at a new trial, he would be facing a longer potential
sentence with a greater release eligibility date.

                 On redirect examination, the petitioner insisted that the Reynolds brothers, if called
to testify on his behalf, would have “helped clear” him. The petitioner also claimed that his mother
told counsel about improper contact between one of the jurors and one of the victims. The petitioner
insisted that he rejected the plea offers because he “really just didn’t understand.” He explained,

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                [W]hat I . . . understood was if you had a right to remain silent when
                you’re arrested and you got that right to take it to a trial, and if they
                find you guilty then you get your time that way. That’s the way I
                understood it. I didn’t understand you could go and get found guilty
                and then walk out with 24 years, as I did. I didn’t understand it like
                that.

The petitioner stated, “I was told that all I could get was three to six years and I might as well go
ahead and take it to the box. That’s what my counselor told me.” He insisted that counsel never
warned him that he could face consecutive sentences and that counsel did not explain release
eligibility. The petitioner explained, “He told me that if I took it to the box, after it was over, if I got
the three to six that I should be able to go home.”

               Trial counsel testified that the petitioner faced “numerous charges involving thefts,
receiving stolen property, and a couple of burglaries” that “involve[d] separate occurrences, though
many of which involved the same participants.” Trial counsel explained,

                The . . . State was claiming that [the petitioner] was involved in many
                episodes of dealing with stolen property in various ways, either
                stealing it, o[r] breaking into houses or outbuildings and then just,
                you know, pawning or selling or disposing of the property in various
                ways. Many, or in fact most of which involved Jonathan and Albert
                Reynolds and a couple of other folks that he worked with. But, in
                fact, they were over a 60-day period approximately, and most of
                which involved different victims.

Counsel testified that he had advised the petitioner “after significant amounts of thought about the
matter, that [he] thought it would be in [the petitioner’s] best interest to try the matters together
rather than filing a Motion for Severance.” Counsel stated that he still believed the advice to be
good. He explained, “I think that it’s a very debatable kind of issue . . . but I thought [the
petitioner’s] best chance of coming out . . . with the least severe sentence . . . was to try the cases
together.” Counsel stated, “I think today I would probably tell him the same thing. But it was a
close question.”

               Counsel testified that he had no recollection of any discussion involving improper
contact between one of the jurors and one of the victims. Counsel stated that the petitioner wanted
him to interview the “alleged . . . co-conspirators” to see “what their stories would be,” but he “was
unable to get any cooperation from the individuals.” He testified that he decided not to issue
subpoenas to these individuals because he thought they “would, in all likelihood, be hostile.”

                Counsel testified that the petitioner “had said something about some past learning
difficulties,” but counsel insisted that the petitioner “did not appear to have any real difficulty . . .
answering . . . questions, explaining . . . what had happened, what he was trying to do.” Counsel
noted that the petitioner’s recorded statement was “a hundred and some odd transcript pages to the
officers, answering their questions, that appear to be direct and to the point and detailed.” Counsel

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insisted that he “had no reason to believe that [the petitioner] didn’t understand the charges against
him and what our potential defenses were and . . . what evidence we could put on.”

                 On cross-examination by the State, counsel testified that he was successful in having
portions of the petitioner’s statement retracted prior to trial. In addition, he recalled that the jury
returned verdicts of not guilty on two of the 12 counts and a verdict of guilty on a lesser included
offense on one of the 12 counts. Counsel denied telling the petitioner that he faced a maximum
sentence of six years. Counsel stated that he did not tell the petitioner to reject any of the plea offers
from the State, but he admitted that he did tell the petitioner he thought there was a good chance that
his sentences would be ordered to be served concurrently rather than consecutively. Counsel opined
that the petitioner was “never really willing” to consider the plea offers because he didn’t “want to
serve a penitentiary sentence.”

               Counsel stated that he believed the petitioner’s statement to be “pretty solid” and
described the case as one “where if the statement gets in, . . . the question was just how many counts
this man was going to get convicted of.” Counsel testified that his strategy “was to get as many
counts thrown out as [he] could and to try to get the [c]ourt to treat the matter as one episode and run
whatever counts remained concurrent . . . to expose him to the least possible sentence.”

                On redirect, counsel stated that he believed the petitioner “got treated a lot more
harshly than [he] expected and . . . was justified by the law.” Counsel reiterated that his reason for
not filing a motion to sever the offenses was “to try to convince [the trial court] that they were one
transaction, because [he] wanted the sentences to be run together as if they were one transaction.”
Counsel also stated that trying the cases had the desired effect of getting not guilty verdicts on two
of the charges. Counsel explained that they “were heavy underdogs to win . . . any of these cases”
given the petitioner’s detailed statement. He stated, “[M]y thinking was, if we’re going in as heavy
underdogs, if we’re going to have a sympathetic jury, is to take maximum advantage of it and get
rid of as many counts as possible rather than having to face ten or twelve separate juries.”

               At the conclusion of the hearing, the post-conviction court denied relief. The court
accredited counsel’s testimony “with respect to the decisions that he made with respect to his
representation of the [p]etitioner.” The post-conviction court found “no deficiency in [c]ounsel’s
performance with the trial preparation, his calling of witnesses, or in his judgment, the decision to
not file a Motion to Sever in this case.” In its later-filed written order, the court found that
“counsel’s strategy with respect to not seeking a severance of defendant’s cases was successful in
having defendant sentenced as a Range I offender albeit he was unsuccessful in avoiding the [c]ourt
imposed consecutive sentencing.”

                In this appeal, the petitioner contends that the post-conviction court erred by denying
relief. He alleges that counsel performed deficiently by failing to file a motion to sever and that
counsel’s deficiency inured to his detriment. The State, of course, disagrees, arguing that counsel’s
decision to forego a motion to sever the offenses qualifies as tactical decision. We agree with the
State.



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                The post-conviction petitioner bears the burden of proving his or her allegations by
clear and convincing evidence. T.C.A. § 40-30-110(f) (2006). On appeal, the appellate court
accords to the post-conviction court’s findings of fact the weight of a jury verdict, and these findings
are conclusive on appeal unless the evidence preponderates against them. Henley v. State, 960
S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997).
By contrast, the post-conviction court’s conclusions of law receive no deference or presumption of
correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).

                When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, he must first establish that the services rendered or the advice given were below “the
range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975). Second, he must show that the deficiencies “actually had an adverse effect on the
defense.” Strickland v. Washington, 466 U.S. 668, 693 (1984). The error must be so serious as to
render an unreliable result. Id. at 687. It is not necessary, however, that absent the deficiency, the
trial would have resulted in an acquittal. Id. at 695. Should the petitioner fail to establish either
factor, he is not entitled to relief. Our supreme court described the standard of review as follows:

                               Because 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 defendant makes an insufficient
               showing of one component.

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

               On claims of ineffective assistance of counsel, the petitioner is not entitled to the
benefit of hindsight, may not second-guess a reasonably based trial strategy, and cannot criticize a
sound, but unsuccessful, tactical decision made during the course of the proceedings. Adkins v.
State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference to the tactical decisions of
counsel, however, applies only if the choices are made after adequate preparation for the case.
Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

               Claims of ineffective assistance of counsel are regarded as mixed questions of law
and fact. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453,
461 (Tenn. 1999). When reviewing the application of law to the post-conviction court’s factual
findings, our review is de novo, and the post-conviction court’s conclusions of law are given no
presumption of correctness. Fields, 40 S.W.3d at 457-58; see also State v. England, 19 S.W.3d 762,
766 (Tenn. 2000).

                Trial counsel testified that he considered filing a motion to sever the offenses but
specifically chose not to do so in hopes of obtaining a more favorable sentence. Although he
conceded that his strategy was not successful, counsel insisted that he would make the same decision
again if presented with similar circumstances. This court does not examine every allegedly deficient

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act or omission in isolation, but rather we view the performance in the context of the case as a whole
because our primary concern is the fundamental fairness of the proceeding of which the result is
being challenged. State v. Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). Therefore, this
court will not second-guess tactical and strategic decisions by defense counsel. Henley, 960 S.W.2d
at 579. Measured by these standards, it is readily apparent that the petitioner failed to carry his
burden for post-conviction relief. No doubt exists that the petitioner is displeased with the services
and representation he received or that he is particularly aggrieved by the sentence he received.
Nevertheless, the failure of trial counsel’s strategy does not, in this instance, entitle the petitioner to
post-conviction relief. Adkins, 911 S.W.2d at 347.

                Accordingly, the judgment of the post-conviction court is affirmed.


                                                         ___________________________________
                                                         JAMES CURWOOD WITT, JR., JUDGE




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